In 2013, three local free-to-air (FTA) broadcasters filed a suit at the High Court of Kenya claiming that certain digital broadcasters were illegally re-broadcasting their programme-carrying signals pursuant toa so-called “must-carry” rule in the Kenya Information and Communication Broadcasting Regulations. The “must-carry” rule compels all signal distributors to carry a prescribed minimum number of Kenyan broadcasting channels, as a precondition to retaining their licences. Although the High Court dismissed the FTA broadcasters’ claims, this dismissal was later reversed in the Court of Appeal. As a result, the matter was appealed before the highest court in the land – the Supreme Court in the case of Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR.
For our purposes, the central issue to be determined by the Supreme Court was whether the ‘must-carry’ rule infringes upon the intellectual property rights of the FTA broadcasters.

From the outset, the court recognized that Article 40 of Kenya’s Constitution enshrines the protection of right to property whereas Article 260 defines “property”to include any vested or contingent right to, or interest in or arising from intellectual property (IP). However the court stated the protection of right to IP is not absolute and can be limited in compliance with the Constitution.

Thus, the apex court had to strike an appropriate balance between various competing rights: on the one hand, the IP rights of the FTA broadcasters and,on the other hand, the society’s right of access to information as well as the rights of consumers which are both at the core of the ”must-carry” rule. In a unanimous decision, the court ruled that the ‘must -carry’ rule fell under the ‘fair dealing’ provision found in Section 26(1)(a) of the Copyright Act. However, the court failed to explain which of the four listed purposes in the fair dealing provision applied to the re-broadcasting taking place pursuant to the “must-carry” rule. . In this regard, the court emphasised the importance of “broad limitations and exceptions integrated into the copyright system to safeguard public interest”.

According to the top court, the “clear public-interest dimension”of the “must-carry” rule outweighs the privateIP rights of the FTA allegedly infringed in effecting the “must-carry” rule. In particular, the court held that this rule was 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; and Article 10 which lists sustainable development as one of the national values and principles that binds persons and entities interpreting the Constitution; as well as Article 11, which requires the State to promote all forms of national and cultural expression through communication, information and mass media;and also Article 35, which gives citizens access to information; and Article 46, which protects the rights of consumers. In this regard, the court notes as follows:

“Such, in our perception, is the proper judicial approach, in view of the transformative setting of Kenya’s socio-political ordering, marked by progressive constitutional beacons that affirm priority for the enhancement and consolidation of fundamental rights and freedoms.”

Reacting to the Supreme Court’s decision, the Chief Legal Counsel at Kenya Copyright Board wrote an article in which he stated:

“The [Supreme Court] judgment provides the relevant authorities with the opportunity to consider the possibility of safeguarding ‘must carry’ provisions by enacting express provisions under the Copyright Act to cater for public interest as enunciated by the court at its next review.”
Perhaps this statement is a sign of future copyright reform in Kenya aimed at balancing the public interest and private rights held by IP owners in a manner that is consistent with the country’s normative human rights framework.