Using ‘must carry’ cloak to violate TV firms’ copyright

I read with profound concern the statement by the director-general of the Communications Authority of Kenya (CA) last week, in which he withdrew the temporary authorisation granted to Nation Media Group, Standard Group and Royal Media Services to roll out their own digital signal distribution network.

Having sat on the 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 by CA left the IP fraternity worried that we are reversing the gains so far registered in the field, and in the national digital migration programme.

The statement, which is found on the CI website, did not cite the law under which these regressive measures were anchored.

But, in support thereof, it indicated that the media houses had mounted misleading advertisements that gave the impression that the rebroadcasting and retransmission of their content by StarTimes and GOtv was illegal.

The regulator, in the same statement, threatened to withdrew in future the frequencies assigned to the three broadcasting firms, implicitly if they did not toe the line.

In the last paragraph of the statement, the CA mentioned a breach of the “must carry” rule committed in the said advertisements.

MEANING AND ORIGIN

The term “must carry” implies legislative obligation of mainly cable operators to carry television signals of certain broadcasting firms in a manner subscribers of the network are able to receive the programmes together with other programmes.

The origin of the “must carry” rules could 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 and video programming distributors from retransmitting commercial television, low-power television 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 operator was obliged to do so under the “must carry” rule, but would not pay compensation.

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 firm whose broadcast must be carried must either consent to or request for its rebroadcast or retransmission.

INVOCATION BY CA

In withdrawing the authorisation, the CA relied upon Rule 14(2) b of the Kenya Information and Communications (Broadcasting) Regulations, 2009.

The rule says: “The Commission may require a licensee granted a licence under paragraph 1 to provide a prescribed minimum of Kenyan broadcasting channels.”

This rule, in itself, is as vague and ambiguous as it is a double-barrelled legal construct.

'First, it does not prescribe the so-called “minimum Kenyan broadcasting channels.”

Second, it does not define or exemplify what Kenya broadcasting channels are. Is it the origin of the broadcasts, ownership thereof, nature or language of broadcasting?

The rule, being a subsidiary legislation, falls foul of the Constitution, Parent legislation, Copyright Act and relevant global instruments.

First, S.46 I(g) 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.

S.29 of the Copyright Act provides that copyright in a broadcast shall be the exclusive right to control the doing in Kenya of any of the following acts: “fixation and rebroadcasting of the whole or substantial part of the broadcast…”

Any subsidiary legislation which conflicts with the Constitution and other legislations, including the Parent Act, is null and void and so is rule 14(2) of the Information and Communications (Broadcasting) Regulations, 2009.

The Copyright Act finds legal backing in the Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, of which Kenya is a signatory directly or by extension through the TRIPs Agreement of 1994.

Article 13 of the Rome Convention obliges Kenya to grant broadcasting organisations exclusive right to authorise or prohibit:

• Rebroadcasting of their signals;
• Fixation of their broadcasts;
• The reproduction:

a) of fixations made without their consent;

b) of fixations made for unauthorised purposes;

• Communication to the public of their TV broadcasts against payment of entrance fee.

Article 40(5) of the Constitution enjoins the State to support, promote and protect intellectual property rights of its people, including those of the three media houses. The State has a duty to ensure that constitutionality prevails.

Copyright law gives broadcasters a monopoly right of excludability over their broadcasts, subject to prescribed exceptions and limitations.

Looking at the advertisements placed by the three media houses, they were in accord with the Constitution, Kenya Information and Communications Act, Copyright Act, and Rome Convention, read together with the TRIPs Agreement.

Consequently, there was nothing illegal about them and the action taken by the regulator was unconstitutional and illegal.

The media houses had a right to claim ownership of their broadcasts as well as make it plain that they had not authorised their rebroadcasting, reproduction or retransmission.

Such unauthorised retransmissions could also cause secondary infringement of copyright where content is acquired on the basis of platforms of delivery.

EXCEPTIONS AND LIMITATIONS

The Copyright Law in Kenya has provided a repertoire of exceptions and limitations under which copyrighted works may be used without the consent of the owner. The one cited in the dispute is fair dealing.

S.26(1) of the Copyright Act, however, restricts fair dealing to scientific research, private use, criticism or review or the reporting of current events subject to acknowledgement of the source. The “must carry” rule does not fit into this particular exception and limitation.

The writer is an advocate, IP lecturer and PhD candidate.