BY DAVID WANJALA
Local private broadcasters have put up a spirited fight against the disregard and ambush by policy makers in the digital migration push, with court battles stretching all the way to the Supreme Court. And though this resulted in postponement of deadlines and ultimate delay in migration, the broadcasters, who have hugely contributed to media development in Kenya, ultimately earned their rightful place, after a long slumber, in the quagmire that has been analogue-digital migration.
Local broadcasters, even as a consortium, could not meet the basic requirements, not even giving a bid bond when the Communication Commission of Kenya rolled out broadcast signal distribution license in 2010. These are licenses for national carriers for those who cannot be able to put up their own infrastructure. Signet and Pan African Group (Pang) won the licenses fairly. Each one of them possess national frequencies across the country.
National frequencies are issued according to one’s ability to roll out transmitters. So far, according to national coverage, Pang has rolled out 120 transmitters, which is according to the regulator’s roll out plan. Signet has so far rolled out 50, meaning they still have more frequencies in store. This is what the local broadcasters have confused to represent the frequencies each of the two have been allocated.
To safeguard the infrastructure that the local broadcasters were supposed to lay off after digital migration, albeit after a court battle ending up in the Supreme Court, the regulator provided them with a self-provisioning license to carry their own content. The same has since been temporarily repossessed by the regulator awaiting final verdict for alleged misconduct by the three broadcasters.
Pang is 100 per cent Chinese. As such, there is an agreement with the regulator for Pang to offload 20 per cent of their shares to local investors after three years of getting the broadcast signal distribution license. It is already close to five years and no local investor has bidded for the 20 per cent from Pang, not even the three local broadcasters.
It is, however, the cutthroat competition in the lucrative business of digital set top boxes to facilitate the migration that has brought the worst out of the three leading private local broadcasters. According to the industry regulator, 3, 745, 594 Kenyan households own TVs. This could easily translate to about 5 million TV sets in use.
At stake, is close to Sh10 billion by July if a set top box is going to cost Sh 2,000 minimum and the local broadcasters found flatfooted after a long slumber in the digital migration craze is aggressively angling for a slice of the pie. This is evidenced in their commercial mid January against digital signal distributors GOtv and StarTimes whose content goes against all known norms in advertising, attracting the wrath of the regulator.
Not only does the content of the shared infomercial by NTV and its affiliate QTV, KTN and Citizen TV contradict a September 2014 court ruling, it smacks of outright malice and its frequency across the four channels betrays the panic of losing out by the local broadcasters in the vast market that digital migration presents.
The infomercial reads: “Citizen TV, NTV, QTV and KTN wish to alert their viewers that StarTimes and GOtv are broadcasting their content without consent. The four stations are taking the necessary steps to stop this infringement on copyright.
“This is to caution our esteemed viewers not to be duped in purchasing StarTimes and GOtv set top boxes as a means to access and watch Citizen TV, NTV, QTV and KTN. The four stations shall soon launch their top set boxes to distribute their free-to-air (FTA) signal to consumers,” it concludes.
Already, the Communications Authority of Kenya (CAK) has withdrawn the temporary authorization granted to the consortium (Africa Digital Network) by the three media houses and subsequently repossessed the frequency spectrum resources allocated to them.
“The advertisement by the three media houses is misleading to the public, is offensive to the market. It is equally in gross violation of the legal and regulatory framework governing the sector. The tone of the advertisement, its content and timing is intended to cause confusion and disrupt the digital migration programme,” said Francis Wangusi, director general, CAK.
Reacting to the move by the media houses, GOtv said their airing of content of the stations was within the law.
“GOtv Kenya Limited would like to assure Kenyans that the company operates within the confines of the laws of Kenya. GOtv Kenya has been and continues to air the content of the above-mentioned four stations, amongst others, pursuant to a “must-carry” obligation imposed by Regulation 14 (2) (b) of the Kenya Information and Communications (Broadcasting) Regulations 2009, whose objective is to ensure that the public has access to information,” read a press statement dispatched to media houses.
GOtv General Manager Felix Kyengo, further said that the infomercial was defamatory, misleading and contemptuous of a finding of a court of law. In deed, they moved to court on these grounds and obtained injunctive orders against the three local broadcasters.
What is confounding about the threat by the media houses is that the highest court has already pronounced itself on this matter in favour of the digital signal distributors. The Supreme Court, in Supreme Court of Kenya at Nairobi Petition No.14 of 2014 Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others by judgment delivered on 29th September 2014, affirms that the “must-carry” rule does not infringe on the broadcasters’ copyright.
The Supreme Court delved extensively on whether certain property rights had been prejudiced in the Broadcast Signal Distribution (BSD) licensing by CAK, arising from a contention by Royal Media Services (RMS), Nation Media Group (NMG) and Standard Group Limited (SGL) as 1st, 2nd and 3rd respondents, that the appellants – PANG, Signet, StarTimes, GOtv and West Media – transmitted their broadcast content in violation of their intellectual property rights.
Amongst other arguments, the appellants submitted that regulations 14(2) (b) and 16(2) (a) of the Kenya Information and Communications (Broadcast) Regulations of 2009, granted them authorisation to provide a prescribed minimum number of broadcasting channels.
In other words, they were obligated to carry those channels. They further urged that they did not intercept the broadcasters’ content transmission since that content is accessible by virtue of the viewers possessing a digital set-top box with free-to-air capabilities.
The broadcasters, on the other hand, argued that the broadcast regulations cannot override the provisions of the Copyright Act (Cap. 130, Laws of Kenya), and that Section 29 of this Act is not subject to Regulation 14(2)(b). Through their counsel, Paul Muite, they submitted that under the new constitutional dispensation, their consent is required under the Copyright Act.
The genesis and basis of the contention by RMS, NMG and SGL, the Supreme Court ruling says, is a letter from the CCK dated August 19, 2013, copied to the three broadcasters and informing Wananchi Group that under the provisions of Regulation 14(2) (b) they were required to provide free-to-air (FTA) channels from their platform, even in situations where their subscribers had failed to make payment for their subscriptions. The three broadcasters argued that this letter, in effect, gave the Wananchi Group permission to re-broadcast their content without their permission, which was an infringement of their intellectual property rights.
Even though Article 40 of the Constitution protects property rights, that right, the Supreme Court ruled, is not absolute.
“It can be limited because it is not one of the non-derogable rights enshrined in Article 25 of the Constitution,” the court noted.
The letter from CCK to Wananchi Group, the ruling continued, essentially required the Wananchi Group to comply with Regulation 14(2) (b), characterised as a “must-carry” rule, which originated in North America with the advent of cable television. The regulation required cable television companies to carry locally licensed television stations on their cable platforms.
Such regulations, the court further ruled, are found in many European and non-European countries, and that a distinct feature of the European “must-carry” rules is that the obligation can only be imposed if the respective networks are the principal means of receiving radio and television channels for a significant number of end-users of these networks.
The rationale for this rule has been described as a way to preserve the free circulation of information, through access to the most important television channels, such as national public television channels, as well as the principal private television channels, such as the channels owned by the three media houses.
Under the “must-carry” rule, transmission of broadcast frequencies and telecommunication are considered national resources for public interest.
As such, the three broadcasters’ contention that any rebroadcasting without their approval constitutes a copyright-infringement, regardless of the existence of a “must carry” rule, did not augur well with the Supreme Court judges.
Just to put matters into perspective, the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations, also known as The 1961 Rome Convention, defines rebroadcasting as the simultaneous broadcasting by one broadcasting organisation, of the broadcast of another (broadcasting organisation). Working Paper (Eighth Session, Geneva, November 4-8, 2002) prepared by the Secretariat of the Standing Committee on Copyright and Related Rights, defines broadcasting organisations as “entities that take the financial and editorial responsibility for the selection and arrangement of, and investment in, transmitted content”.
Similarly, Section 2 of the Copyright Act (Cap. 130, Laws of Kenya) defines rebroadcasting as “simultaneous or subsequent broadcasting by one or more broadcasting authorities of the broadcast of another broadcasting authority.”
As such, making programmes available in compliance with the “must-carry” rule is not rebroadcasting; it does not, therefore, infringe on the intellectual property rights of the broadcasters.
The law of copyright, the Supreme Court added, is not set in absolute terms, but is subject to exceptions and limitations that cater for certain interests. These exceptions are conventionally referred to as fair dealing, which, as a defence to copyright claims, is part of broader limitations and exceptions integrated into the copyright system to safeguard public interest, and operates as a limitation to exclusive rights.
The Supreme Court borrowed jurisprudence majorly from two jurisdictions: the Supreme Court of the Philippines in ABS-CBN Broadcasting Corporation v. Philippine Multi-Media System, Inc. & 6 Others, G.R. No. 175769-70 (2009) (ABS-CBN), and in CCH Canadian Ltd. v. Law Society of Upper Canada  1 S.C.R. 339, 366; 2004 SCC13 (CCH), from which it drew parallels with Kenyan copyright law and the Constitution.
The Philippines Supreme Court ruling held that the “must carry” rule was in consonance with the objectives of the public interest at stake, namely, the public’s right to access news and information in order to be a well-informed, and culturally refined citizenry. The Court held the “must carry” rule to be a copyright exception.
In the final analysis, Kenya’s Supreme Court made a finding that CCK did not infringe upon the intellectual property rights of RMS, NMG and SGL in effecting the “must carry” rule.
“And in view of the clear public-interest dimension, we hold that this rule is essentially consistent with the terms of Article 7 of the Constitution, which requires the State to protect and promote the diversity of language in Kenya; Article 10, which lists sustainable development as one of the national values and principles that binds persons and entities interpreting the Constitution; Article 11, which requires the State to promote all forms of national and cultural expression through communication, information and mass media; Article 35, which gives citizens access to information; as well as Article 46, which protects the rights of consumers,” the court ruled.
What is more, the three broadcasters had legal representation in the proceedings in the Supreme Court and one wonders what probity value their threat to sue GOtv and StarTimes for lack of consent and copyright infringement carries.
One thing is clear: the broadcasters have woken up to the fact that GOtv, StarTimes and other pay TV companies now dominate the set top box sales market, and it pains them that they are not direct beneficiaries of the revenue collected by the pay TV companies, particularly because their channels play a major role in consumers’ decisions regarding which provider to use. Properly speaking, their’s is a war long lost.
Their promise to the public that they are soon bringing their own digital decoders from which their signals will be received (CAK’s temporary withdrawal of license aside) may as well be a pipe dream given the final deadline for migration is within the first quarter of 2015. CAK says the broadcasters have not yet even applied to be licensed as vendors.
“The Authority has neither received any application nor granted any type-approval of any set top box model from the three broadcasters, individually or collectively, for sale in Kenya. It is therefore illegal to purport to advertise set-top-boxes that have not been type-approved by the Authority,” CAK director general says.
Even if they were successful in that endeavour, their equipment would still have to undergo a verification process with CAK to ensure they fit specifications, a process that may well take more than three months.
Proper legal claim
Major TV revenue will still be earned through adverts and viewership will, as always, hold the sway. How content reaches the audience will not account for much as advertising revenue still belongs to the broadcaster. The three broadcasters should refocus their energies on improving content development.
The only infringement that GOtv in particular seems guilty of is cutting off subscribers from all FTA channels, save for KBC, whenever customers delay in making payments. This is the gray area the Supreme Court failed to address, despite that the CAK outlined clear instructions to Wananchi Group, one of the providers, regarding this matter.
Properly then, it is regarding this oversight that RMS, NMG and SGL ought to petition the Supreme Court for direction, as cutting off the FTA signals owing to failed or delayed subscription payments amounts to unfair dealing. The lack of consent and copyright infringement claims is misplaced.