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  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.