NAIROBI: I read with profound concern early last week the statement by the Director General of the Communications Authority of Kenya (CA) in which he withdrew temporary authorisation granted to the Nation Media Group, Standard Group and Royal Media services to roll out their own separate digital signal distribution network as part of the national digital migration programme.
I was astounded because having sat on the Board of Kenya Copyright Board for seven years and having represented African Union of Broadcasters at the World Intellectual Property meetings on copyright and allied rights, I thought Kenya had made significant strides in the path of respect for intellectual property rights.
The draconian measure of the CA left the IP fraternity worried. We are reversing the gains so far registered in the field.
The statement which is currently found on the website of the CA did not cite the law under which these regressive measures were anchored. But it indicated that the three media houses had mounted misleading advertisements that gave the public the impression that the rebroadcasting and retransmission of their content by StarTimes and Gotv was illegal.
The regulator, in the same statement, threatened to withdraw in future the frequencies assigned to three broadcasting organisations, implicitly if they do not toe the line.
In the last paragraph of the statement, the authority mentioned breach of the ‘must carry’ rule committed by the trio in the said advertisements that prompted the revocation. I now turn to the deconstruction of the concept of ‘must carry’ principle.
The term ‘must carry’ implies legislative obligation of mainly the cable operators to carry television signals of certain broadcasting organisations in a manner subscribers of the network are also able to receive such programmes.
The origin of the ‘must carry’ rules may be traced to the US. The rule was initially intended to serve communities living in mountainous regions that had difficulty in receiving free-to-air broadcasts.
The Federal Communications Commission, however, prohibited cable operators and other multi-channels, video programming distributors from retransmitting commercial televisions, low- power televisions and radio broadcast signals without first obtaining the broadcaster’s consent otherwise called ‘retransmission consent’ which could involve some compensation from the cable operator to the broadcaster for use of the signal.
Conversely, if a local broadcaster required the cable operator that served the same market as the broadcaster to carry the signal, the cable operator was obliged to carry the signal under the ‘must carry’ rule but could not pay compensation to the broadcaster.
The scope of ‘must carry’ has since been extended to other jurisdictions to cover other areas of transmission and content, like sporting events. In all these cases, the broadcaster whose broadcast ‘must be carried’ must either consent to or request for its rebroadcast or retransmission by either a cable operator or another broadcaster within the framework of ‘must carry’ rule.
By withdrawing this authorisation, the CA relied on rule 14(2) b of the Kenya Information and Communications (Broadcasting) Regulations, 2009 that states: ‘The Commission may require a licensee to be granted a licence under paragraph one to provide a prescribed minimum of Kenyan broadcasting channels.’
This rule, in itself, is as vague and ambiguous as it is double-barreled. First, it does not prescribe the so-called ‘minimum Kenyan broadcasting channels.’ Second, it does not define or exemplify what the Kenya broadcasting channels are.
For channels to fit the description of ‘Kenyan broadcasting channels’ what attributes must they possess? Is it the origin of the broadcasts, ownership thereof, nature or language of broadcasting that is the determinant?
The rule, being a subsidiary legislation, falls foul of the Constitution, Parent legislation, Copyright Act and relevant international instruments. First, section 46 of the Kenya Information and Communications Act enjoins all licensed broadcasters to respect copyright and neighbouring rights.
This provision is in conflict with rule 14(2) that gives the authority apparent power to cause licensees to violate the same copyright law.
Article 40(5) of the Constitution enjoins the state to support, promote and protect the intellectual property rights of its people, including those of the three media houses.
The CA’s act therefore undermined the constitutional protection of the three organisations. The state has a constitutional duty to ensure that constitutionality prevails in this matter.
Copyright law gives broadcasters a monopoly right of excludability over their broadcasts subject to the prescribed exceptions and limitations.
Looking at the advertisements which were placed by the three media houses, they were in accord with the Constitution, Kenya Information and Communications Act, Copyright Act, and Rome Convention.