Music is an important category in our day-life as it speaks with our souls, henceforth a mind resting mechanism; it is an integral part of many Ugandans’ life, stretching from the noble to the common laymen. It had been unheard since time memorial for a federation in the entertainment industry. Several federations have only been established under the departments of sports, for example, the Federation of Uganda Football Associations (FUFA), Federation of Uganda Basketball Associations (FUBA), and Uganda Athletics Federation (UAF), among others. To date, only a few writers have attempted to make an analysis of musical law issues in Uganda let alone associations and federations themselves.
The question of the day is what the strategy of this Federation of musicians should be, its objective and its modus operandi. There is also an the issue of Political lobbying: You will agree with me that this has been the common notion and argument of several Ugandans, many of whom argue that the Federation is formed on the basis of political lobbying. However, I will argue this in the affirmative, looking at a wider range of demands musicians are advocating for interalia, copyright, reasonable taxes, better infrastructures, among others, can only be brought to life by the free will of legislators.
The Black’s Law Dictionary defines a federation as a league or union of states, groups, or people’s united under a central authority but retaining limited regional sovereignty. In most cases such federations are trade unions, i.e. labour unions and are comprised of professionals in that particular field. Take an example of the American Federation of musicians (A.F.M) under their phrase “In unity there is strength,” the first standing resolution of the AFM was the meaning of a profession. Who is a professional musician? The Federation defined a professional musician to mean any musician, who receives pay for his musical services, shall be considered a professional musician.”
We must acknowledge that Uganda’s music industry is dealing with a bare legal framework that has not systematically propounded well on the music wellbeing. The vast industry of songwriters, musicians, performing artists, producers, managers and all around the idea of music must agree that the way in which people consume music has changed. It is trite law that satius est petere fotesquam sectari rivulos – (It is better to seek the sources than to follow tributaries).
It is a trite fact that there has been a few cases concerning copyright infringement in Uganda, it doesn’t mean that the victims of such infringement have sat on their rights, whether courts have also been shying away to rule on that issue, or legislators have been redundant to legislate proper laws that fit the current music industry demands. I will not discuss much about thus as it was discussed in my article in the 1st Nkumba University law students journal (Musical Work Copyright Law in Uganda viz a viz the Impact of Angella Katatumba’s Case). The rise of streaming on platforms such as Spotify and YouTube, combined and other platforms paying to musicians must be properly analyzed by the Federation from a legal and moral perspective.
Musicians should have it in the context that the law needs to move with the times” as “making and distributing of music is so different, this is why I would to some extent sideline with the Uganda National Musician Federation not the Uganda Performing Right Society (UPRS).
Looking at the idea of publication of music, the Copyrights and Neighbouring Rights Act, 2006 (CNRA) defines “published” to mean a work or sound recording, tangible copies of which have been made available to the public in a reasonable quantity for sale, rental, public lending or for other transfer of the ownership or the possession of the copies, provided that, in the case of work the making available to the public took place with the consent of the author or other owner of copyright, and in the case of a sound recording, with the consent in writing of the producer of the phonogram or his or her successor in title;
Under Section 5, the Act provides for Work eligible for copyright. It provides that the following literary, scientific and artistic works are eligible for copyright, articles, books, pamphlets, lectures, addresses, sermons and other works of a similar nature; dramatic, dramatic-musical and musical works; audio-visual works and sound recording, including cinematographic works and other work of a similar nature;
The Federation can be assigned with the copyright of a musical work from its members, the Act provides for Assignment of licence or transfer of a copyright. It provides that the owner of a copyright may, as if it were movable property—assign his or her economic rights in a copyright to another person; licence another person to use the economic rights in a copyright; transfer to another person or bequeath the economic rights in a copyright in whole or in parts; transfer to any braille production unit in Uganda the economic rights in the braille translation.
There has always been a misinterpretation by my advocates of musicians on what fair use of musical work, the Federation must be ready to table what reasonably can be fair use of a musical work, a case in point was a case of Nince Henry against Nakumatt. However, the Act provides that the fair use of a protected work in its original language or in a translation is not an infringement of the right of the author and requires no consent of the owner of the copyright where the production, translation, adaptation, arrangement or other transformation of the work is for private personal use only;
What amounts to Infringements of copyright? (See Section 46 the CNRA). I have written about this in many articles concerning copyright and I will re-echo the same, Infringement of a musical copyright occurs where, without a valid transfer, licence, assignment or other authorisation under the Act a person deals with any work or performance contrary to the permitted free use and in particular where that person does or causes or permits another person to reproduce, fix, duplicate, extract, imitate or import into Uganda otherwise than for his or her own private use; distribute in Uganda by way of sale, hire, rental or like manner; or exhibit to the public for commercial purposes by way of broadcast, public performance or otherwise.
There’s a thing that musicians have always been doing in reproducing other songs from Musicians who have either passed on or off scene without permission and claim that as long as they attribute them in the song. It is important to underscore to the perspective that the use of a piece of work in a manner prejudicial to the honor or reputation of the author shall be deemed an infringement of the right of the owner of the right.
At the birth of the Federation of Musicians in Uganda, I believe there will be a floodgate of cases in the future because the environment has changed.
The Constitutionality of the Federation/ whether it is a labour union?
Looking at the grund norm provisions, it is clearly evident and true that under article 29, the freedom of association is recognized under the Constitution but however the background of the Federation raises legal questions which answers may be confusing to underscore regarding the lacuna of our laws to deal with the music industry.
However on the other side of the bridge, musicians do not want to go profession. It is not a rebuttable presumption that leadership of any federation will always determine its foundation. The legal maxim goes a capite ad calcem – from head to heel, any structural organization or associations must be built on strong foundation. In line with trade unions, the state has always come out to regulate them in a number of statutes and regulations. With aims to unite musicians and promote their interests in Uganda, the Federation must set up a constitution; sign M.O.Us with national and internal musician associations. For national associations it will be aiming at bringing together all associations in the industry under one umbrella. The Federation must be willing to break the spell towards a minimum wage towards its members which has failed all trade unions in Uganda.
Take an example of The American Federation of Musicians of the United States and Canada (AFM/AFofM) which took the first steps towards creating uniform scales for different types of musical employment in 1878. It has now grown into a big federation with a large basket of musicians.
Article 20 of the Universal Declaration of Human Rights, 1948 it provides that everyone has a right to freedom of peaceful assembly and association.
Constitutionality Of The Musician Federation.
Article 29 of the 1995 constitution of Uganda as amended provides for Protection of freedom of co-science, expression, movement, religion, assembly and association. Article 29 (e) particularly provides that every person shall have the right to freedom of association, including the freedom to form and join associations or unions, including trade unions and political and other civic organisations.
In the same way, Article 40 of the 1995 constitution, as amended provides for Economic rights. It provides that Parliament shall enact laws-
(a) to provide for the right of persons to work under satisfactory, safe and healthy conditions;
(b) to ensure equal payment for equal work without discrimination:
and (c) to ensure that every worker is accorded rest and reasonable working hours and periods of holidays with pay, as well as remuneration for public holidays.
(2) Every person in Uganda has the right to practice his or her profession and to carry on any lawful occupation, trade or business.
(3) Every worker has a right- (a) to form or join a trade union of his or her choice for the promotion and protection of his or her economic and social interests; (b) to collective bargaining and representation; and (c) to withdraw his or her labour according to law. .
According to Professor John Jean Barya, in his book Workers and Law in Uganda; the law which regulates the organisational rights of workers is derived from five different sources namely: constitutional provisions and trade union legislation, the collective agreements (especially Recognition and Procedural Agreements), court decisions (those originating from the Industrial Court and those based on the common law, from ordinary courts), the trade union constitutions themselves and trade disputes legislation (for both the public and private sectors).
Music is one aspect that has promoted culture and local languages. Under the Constitution of Uganda, everything shall be done by the state to promote a culture of co-operation. Understanding, appreciation, tolerance and respect for each other’s customs, traditions and beliefs (National Objective III)
Under the 1995 Constitution, cultural and customary values which are consistent with fundamental rights and freedoms, human dignity, democracy, and with the Constitution may be developed and incorporated in aspects of Ugandan life. The State is required to promote and preserve those cultural values and practices which enhance the dignity and wellbeing of Ugandans; (ii) encourage the development, preservation and enrichment of all Ugandan languages; (iii) promote the development of a sign language for the deaf; and (iv) encourage the development of a national language or languages.
Challenges of the music industry.
Copyright has also become a song by every musician who stands to advocate for economic rights of the musicians. Although a few understand it’s meaning entirely well.
The application of legal rights themselves once in place also depends upon the level of consciousness, organisation and strength of the Uganda national musician federation in industrial relations and its members. In this respect, I submit that the struggle for musician’s rights in Uganda has been prima facie based on political lobbying.
In this way I mean, de facto of the presence of the Prime minister at the launching of this Federation was ipso facto an illustration o f political lobbying. In any case political lobbying isn’t bad however it may be a magic bullet as far as the federation system is concerned and even against the exercise of better freedom of association and other existing rights
Significance of the Uganda National Musician Federation.
Perhaps the most obvious ground any musician should consider to join a federation is that musicians can achieve more pay from their music, benefits from royalties and other opportunities that come to the Federation, job security and respect with a union than if they try to negotiate separately on their own. There must be a compulsory registration of its members either yearly to ascertain and make proper planning of the musicians it governs.
A compulsory recognition of a union to have at least 51% membership.
The Federation, like other Federations, for example, the American Federation of Musicians, must be able to assist its members in the following aspects.
- Immigration Assistance
- Claims on default
- Pension Fund
- Negotiated Agreements
- Legal Contracts
- Legislative Representation
- International Musician Free Subscription
- Local Membership Directory
- Local Newsletter Free subscription
- Musical Equipment Discounts
Members’ first doctrine,
Allow me borrow the words of the Uganda Law society president counsel Benard Oudo, “members first” was his campaign aphorism and it has made a difference ever since he stepped into power. If the Federation is to operate successfully it has to pose questions how it is going to handle the issues of musicians? Will it be anyone who feels to have a potential to mime a song or song a lullaby? Will the Federation
Another question posed to the membership of the Federation is whether these contracts will be long term or yearly and are subjected to renewal. Understanding the legal meaning of a contract is an agreement made with the free consent of parties with capacity to contract, for a lawful consideration and with a lawful object, with the intention to be legally bound” It is thus a principle of contract law that in law, when we talk of a contract, we mean an agreement enforceable at law. For a contract to be valid and legally enforceable there must be: capacity to contract; intention to contract; consensus and idem; valuable consideration; legality of purpose; and sufficient certainty of terms. If in a given transaction any of them is missing, it could as well be called something other than a contract”. (See Greenboat Entertainment Ltd Vs City Council of Kampala C.S No. 0580 of 2003)
The Federation can come out with a same format of a performance contract for its members and no events manager or promoter can have access to performance without sufficient consideration of the whole amount.
Analyzing the issue of taxes for musicians.
I know this sounds a blow to most of the musicians, however as a citizen of Uganda The exercise and enjoyment of rights and freedoms is inseparable from the performance of duties and obligations. Under National Objective XXIX of the Constitution, it shall be the duty of every citizen-
(a) to be patriotic and loyal to Uganda and to promote its well-being; (b) to engage in gainful work for the good of that citizen, the family, the common good and to contribute to national development When properly regulated, the Government can equally benefit from the output of music not only on shows but also on digital music stores.
The dynamic change of Uganda’s music.
It is a trite fact that as country we have lost the musical identity and we are now a mixture of a variety of western, other African sounds. The question now is whether the Federation will be in position to revive our sound as Uganda. One will argue that it is good to have a mixture of different sounds as it gives consumers a variety of music. Now the Questions posed are:
Does the Uganda National Musician Federation require a Statutory Instrument to regulate it?
Does the Federation need a general secretariat?
Our next Journal article in the Nkumba University Law Students Journal will answer these questions.
Therefore the Uganda national musician federation is by no means a great idea; however, this can be rebutted as it will depend on the strong roots of the entire leadership, administration and advocacy in contemplation of the national and international legal framework.
About the Author:
Mwanje Gideon alias Batapa is a law student at Nkumba University School of Law; he is passionate about conducting research and a writer/author (Author of the Law and the common person (Luganda translated book).
He serves as the President of the NU SLAW Research Club and President of the Nkumba University Law Society.