Copyright News
By Paul Kaindo
ince the primary task of broad-
casters is to create and broad-
cast content, copyright is an
indispensable part of their daily
activities. Copyright in the broadcast
ing industry is intended to guaran-
tee economic reward and encourage
authors and others who make a con
tribution to broadcasting to be creative
and innovative and to protect the cost
and skills invested in the broadcast.
Without adequate copyright protec
tion, broadcasters’ principal business
would be at risk. The need to have a
rights clearance regulation as an essen
tial precondition for the dissemination
of content and broadcasters’ signal on
any platform is therefore essential.
Kenya has one of the most vibrant
broadcasting industries in Africa. The
industry has for a long time continued
to play an important role in the socio-
economic development of the country
and has recorded tremendous growth
since independence. It started from a
single state owned broadcaster and this
has now increased to several private
broadcasters in addition to the state
owned broadcaster.
The advent of new technology cou
pled with mobile and internet con-
nectivity brought with it its own chal-
lenges. Unfortunately, the laws, par-
ticularly copyright laws have not kept
up with this aggressive development.
The interaction between copy
right laws, broadcasting and techno-
logical progress is full of uncertainty
and is fraught with contradictions.
Convergence, which, in broadcasting,
is the combining of all types of media
in digital form, has been one of the
most discussed and debated develop
ments in the broadcasting industry
over the past decade. This technologi
cal advancement is inevitable and is a
positive development that gives broad
casting organisations greater capabili-
ties at lower cost but is likely to under-
mine copyright and related rights.
The process of digital migra
tion prompted by the International
Telecommunications Union’s (ITU)
resolution raised serious copyright
concerns in Kenya which the Kenya
Supreme Court attempted to resolve.
The Kenya Copyright Act 2001
attempts to provide for protection to
broadcasters. It grants broadcasters
exclusive right to control fixation and
rebroadcast of the whole or substantial
part of a broadcast and the commu
nication to the public of the whole or
substantial part of a television broad
cast either in its original form or in
any form recognizably derived from
the original. This level of protection
has been challenged as being gross
ly inadequate in the current techno-
logically advanced era. The Copyright
(Amendment) Bill, 2017 comes in at
an opportune moment to address this
The Bill, introduced in Parliament
towards the end of 2017, seeks to
extend protection to retransmission of
broadcasts over any network; decrypt
ing in any way or form of any encrypt-
ed broadcast; or any adaptation or
modification by way of commentar
ies, or any unauthorised expropriation
of a broadcast or pre-broadcast signal
meant for reception by another broad
caster. The rights granted herein are,
however, subject to fair dealing.
By granting protection against
rebroadcasting over any network and
decryption of encrypted broadcast, the
Bill takes cognizance of possible future
technological advancements and the
potential challenges it is likely to bring
with it.
In addition to the Copyright
(Amendment) Bill, 2017 the recent
ly signed MOU between the Media
Owners Association and the Collective
Management Organisations (CMOs)
creates welcome soundness in license
fee collection and offers a great oppor
tunity for artists to further benefit
from their works. The memorandum
of understanding (MoU) ends years of
push and pull between broadcasters
who are the largest users of musical
works and CMOs.
The Media Owners Association
(MOA) on September 27 last year
signed a joint licensing Memorandum
of Understanding (MoU) with Kenya
Association of Music Producers
(KAMP) representing producers;
Performers Rights Society of Kenya
(PRISK) representing performers and
Music Publishers Association of Kenya
(MPAKE) representing authors, com
posers, arrangers and publishers. This
means that broadcasters can now remit
license fees to the CMOs.
The deal follows several months of
negotiations that were spearheaded by
the Kenya Copyright Board (KECOBO)
which is the regulator for CMOs and
custodian of the Copyright and related
rights laws in Kenya. It further, brings
to life the dream of joint licensing
where users of sound recordings and
audio-visual works will be issued with
a single license by the three CMOs.
Mr Kaindo is an Intellectual Property
Lawyer and a legal Counsel at Kenya
Copyright Board
A Futuristic Look at Copyright in
The Broadcast Industry