Kenya’s commercial airlines face higher music licence fees under new tariffs, but a simmering dispute with copyright bodies is raising questions over whether the charges will be paid at all.
New rates gazetted by Youth Affairs, Creative Economy and Sports Cabinet Secretary Salim Mvurya will see Collective Management Organisations (CMOs) collect more than Sh30 million annually from airlines and airports for music played in public and onboard spaces.
According to the regulator, Kenya Civil Aviation Authority, the country has more than 1,200 registered commercial planes with major operators being Kenya Airways (KQ), Jambojet, Skyward Express, and Renegade Air.
Under the revised structure, each aircraft will pay an annual fee of Sh25,000, up from Sh20,000, alongside a per-seat charge of Sh900 for onboard music use.
This means a 96-seater Embraer E190 (one of the low-capacity planes used by airlines) will pay Sh86,400 annually, while a 145-passenger Boeing 737 will pay about Sh130,000 and a 234-passenger Dreamliner up to Sh210,600.
The amount due for each Boeing 737 in the previous structure is Sh108,750, and Sh175,500 for the Dreamliner, highlighting the sharp cost increases the airlines face.
But the new tariffs come against the backdrop of a long-running dispute between Kenya Airways and three copyright bodies: the Music Copyright Society of Kenya, the Kenya Association of Music Producers, and the Performers' Rights Society of Kenya.
KQ, the national carrier is already slamming brakes on the fee collection saying they are not applicable to the airline and therefore won't pay.
Sh15 million demand
In a confidential letter dated October 31, 2022 and obtained by BDLife, the three CMOs wrote to KQ's Legal, Risk, and Compliance office, demanding Sh15,558,120 in unpaid music licence fees accumulated between 2019 and 2022.
“We have been instructed by our client to demand, which we hereby do, payment of the aforesaid sum Sh15,558,120 within 14 days of the date hereof. Take notice that unless the said sum is remitted to the bank account provided, we have instructions to institute appropriate legal proceedings against Kenya Airways PLC toward recovery of the said sum,” read the letter from the CMOs’ lawyer.
KQ’s Legal Services Director responded on November 16, 2022, requesting proof of the societies’ mandate from the Kenya Copyright Board (KECOBO), alongside a justification of how the airline’s operations fall within their scope.
“For us to effectively review the basis and validity of the claim raised in your letter under reference, we request that you kindly supply us at your earliest convenience with certified copies of licences held by your client as CMOs and how the Kenya Airways Plc operations fall within the ambit of the same, as well as a basis and breakdown of the amounts being claimed.”
The regulator, KECOBO, joined the dispute, writing to KQ on August 24, 2023, further accusing the national carrier of infringement of the CMO's copyright and further warning of legal consequences.
“KECOBO is in receipt of a complaint by the above organisation against your establishment for infringement of copyright and related rights of various rights holders. The CMO collects licence fees from users of copyrighted works and distributes them to right holders. This is therefore to advise you to pay the licence fee accrued to avoid any legal consequences under the Copyright Act,” read the letter signed by KECOBO Deputy Executive Director.
In a phone interview, the communications office at KQ told BDLife that the airline does not use music across its fleet, and therefore, there is no basis for paying licence fees for a service it does not offer.
“We don’t play Kenyan music on board. We have movies but we do not have any Kenyan music on our on-board entertainment systems. The only music we have is our own KQ content. Even the small collection of music we have is not Kenyan. In short, we have never paid for these music licences as we are not a conduit, or rather, necessarily consumers of that kind of content, so automatically those tariffs don't apply to us.”
Under the Copyright laws, commercial aircraft and airports must pay for music use because playing music in public areas such as terminals, lounges, and boarding areas is considered a public performance under copyright, requiring compensation for artists and creators. It is a legal obligation often managed through licenses to ensure musicians are paid royalties.
Sh500,000 JKIA bill
The new tariffs also include airports. Jomo Kenyatta International Airport (JKIA) will pay an annual music licence fee of Sh500,000 for the music played in its lounges, restaurants, and cafes. This is a sharp increase from Sh100,000.
Mombasa International Airport will be required to pay Sh400,000 up from Sh300,000. The rest of the airports will each pay Sh300,000 up from Sh200,000, with airstrips paying Sh200,000 up from Sh100,000.
The country has a total of 38 airports and airstrips managed by the Kenya Airports Authority KAA, with roughly 15-20 serving commercial, scheduled, or international traffic.
