“In resolving this dispute, account must be taken of the nature of the resource (Spectrum) being contested, the economic fundamentals under-guarding its capitalization, the country’s obligations under international law, and the values decreed in our Constitution. At the end of the day the people of Kenya, local investors, international investors all have a stake. Of course care must be taken so as not to leave this resource to “the tragedy of the commons”. At this stage, we recall the words of Mr. Kimani Kiragu when he urged thus:
“I started by taking you on a flight to the Caribbean and referring to, or quoting Mr. Robert Marley. Let me come back home with regard to the three principles…If I could refer to our very own Ken Wa Maria, ‘these things, these are my things, these are your things, these are our things, these are the fundamentals’.” -Mutunga, CJ & P at para 388.
In the recent case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others  eKLR, the Supreme Court unanimously ruled on several contentious copyright issues relating to Kenya’s ‘imminent shift’ from analogue terrestrial broadcasting to digital terrestrial broadcasting on or before the international analogue switch-off date of June 17, 2015. A copy of the judgment is available here. This blogpost will examine how the Supreme Court addressed the following issues relating to copyright law, namely: (i) whether the Communications Authority of Kenya (CAK) formerly known as Communications Commission of Kenya (CCK) violated the intellectual property (IP) rights of three local free-to-air (FTA) broadcasters: Royal Media, Nation Media, and Standard Group by authorizing two broadcast signal distributors (BSDs) namely Pan African Network Group (PANG) and Signet Kenya Limited along with pay TV broadcasters such as StarTimes Kenya Limited and GOtv Kenya Limited to transmit the broadcasts of the aforementioned FTA broadcasters without the latter’s consent?; and (ii) whether the issue of infringement of IP rights was properly before the High Court, in the petition filed by the FTA broadcasters for the enforcement of their fundamental rights and freedoms?
The digital migration case started off when three local free-to-air (FTA) broadcasters: Royal Media, Nation Media, and Standard Group went to the High Court of Kenya in the case of Royal Media Services Ltd v Attorney General & 2 others  eKLR in a bid to stop the migration from analogue to digital television broadcasting. In its prayers to the court, the petitioners sought, inter alia, an order of permanent injunction restraining several digital broadcasters from broadcasting, distributing or in any way interfering with the Petitioners’ programs, broadcasts, copyrighted material and productions or in any way infringing the Petitioners’ intellectual property rights. Therefore one of the issues for determination in this case was whether these digital broadcasters have breached and or violated the petitioners’ intellectual property rights.
Majanja J. sitting in the High Court dismissed as frivolous the petitioners’ allegations against the pay TV broadcasters for IP rights infringement. According to the learned judge, despite the inclusion of IP rights under Article 40(5), these rights are still considered as ordinary rights as opposed to fundamental rights and freedoms. The court therefore held that only cases of violation of fundamental rights and freedoms warrant a constitutional petition in the High Court. Therefore where IP rights violations occur, the affected person must rely on the specific IP regime established by law to address the area of IP concerned.
Dissatisfied with Majanja J’s decision, the three FTA broadcasters appealed to a three-judge bench sitting in the Court of Appeal in the case of Royal Media Services Limited & 2 others v Attorney General & 8 others  eKLR. Two out of the three appellate judges (Nambuye and Maraga JJA) set aside the judgment of Majanja, J in the High Court and made two IP-related findings in their separate but concurring judgments, namely:- firstly, that Majanja J. erred in law in holding the IP rights of the three FTA broadcasters were not violated by the pay TV broadcasters in broadcasting the former’s programs and content without consent; and secondly, that Majanja J. erred in law in holding that infringement of intellectual property rights could not be the subject of a constitutional Petition. This blogger expressed his shock and disappointment at this majority view of the Court of Appeal here.
This brings us full circle to the present decision by the Supreme Court.
From the outset, it is refreshing to see the Supreme Court zeroing in on the copyright issues in this digital migration case. Firstly, the court engages in the important exercise of determining whether or not a chain of title exists between the alleged infringers and the three FTA broadcasters’ rights. In the case of Signet and PANG, the Supreme Court finds a myriad of letters between the CCK and the three FTA broadcasters showing that the latter had given permission to Signet and PANG (and its pay TV operator StarTimes) to carry their respective FTA broadcasts during the pilot phase of the digital migration process. In the case of GOtv Kenya, it was successfully shown that GOtv was an affiliate of MultiChoice and that the latter had signed Channel Distribution Agreements with all three FTA broadcasters.
However, the underlying issue up for determination by the apex court was whether the conduct of CCK/CAK licensees pursuant to Regulations 14(2)(b) and 16(2)(a) of the Kenya Information and Communications (Broadcasting) Regulations, 2009 (the so-called “must carry” rule) could be reconciled with the constitutional right to protection of intellectual property as well as the provisions of the Kenya Copyright Act.
These Regulations provide as follows:
“14. Subscription broadcasting service licenses and subscription management services.
(1) The Commission may upon application, in the prescribed form, grant a subscription broadcasting services licence for —
(a) satellite broadcasting services;
(b) cable broadcasting services; and
(c) subscription Management services.
(2) The Commission may require a licensee granted a licence under paragraph (1) to —
(b)provide a prescribed minimum number of Kenyan Broadcasting channels.”
“16(2)(a) The Commission may require a person granted a licence under paragraph (1) to distribute on its digital platform free to air and subscription broadcasting services and related data on behalf of other licensed broadcasters.”
Respectfully this blogger disagrees with the Supreme Court’s application of ABS-CBN Broadcasting Corporation v. Philippine Multi-Media System, Inc. & 6 Others, a case decided by the Supreme Court of the Philippines. The point of disagreement is definitional in nature. In the Kenyan context, the Copyright Act defines “broadcast authority” to include “any other broadcaster authorised by or under any written law”. Therefore this means that if Multichoice (which appears to be akin to PMSI in the Philippine case) were licensed to “broadcast” in Kenya, as defined by the Copyright Act, then it would be considered a broadcast authority. In this regard, it is important to note that the definition of “broadcast” under the Copyright Act includes “transmission by satellite”. It follows that Signet, PANG and StarTimes are clearly broadcast authorities since they are all licensed to broadcast by CAK formerly CCK. Therefore it is this blogger’s respectful opinion that the Supreme Court erroneously found that no rebroadcasting had taken place without considering the definition of “broadcast authority” provided in the Copyright Act.
With respect, this blogger submits that the Supreme Court’s attempt to couch the “must carry” rule in fair dealing terms merely confirms the ‘definitional’ argument discussed above. In this connection, this blogger respectfully questions why the Supreme Court brings up ‘fair dealing’ (one of the defences in copyright infringement suits) yet it claims that no act of copyright infringement (i.e. rebroadcasting) was committed by the appellants.
On the issue of constitutional IP protection, this blogger is pleased that the Supreme Court confirmed the precedent set by the learned Majanja J., as discussed above. In this regard, the court held:-
“The principle of avoidance entails that a Court will not determine a constitutional issue, when a matter may properly be decided on another basis. (…) From the foundation of principle well developed in the comparative practice, we hold that the 1st, 2nd and 3rd respondents’ claim in the High Court, regarding infringement of intellectual property rights, was a plain copyright- infringement claim,and it was not properly laid before that Court as a constitutional issue. This was, therefore, not a proper question falling to the jurisdiction of the Appellate Court.”