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Proposed law will protect broadcasters’ rights

Paul Kaindo

Since the primary task of broadcasters is to create and broadcast content, copyright is an indispensable part of their daily activities.

Copyright in the broadcasting industry is intended to guarantee economic reward and encourage authors and others who make a contribution to broadcasting to be creative and innovative and to protect the cost and skills invested in the broadcast.

Without adequate copyright protection, broadcasters’ principal business would be at risk. The need to have a rights clearance regulation as an essential 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 which has now increased to several private broadcasters.

The advent of new technology coupled with mobile and internet connectivity brought with it its own challenges. Unfortunately, the laws, particularly copyright laws, have not kept up with this aggressive development.

The interaction between copyright laws, broadcasting and technological 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 developments in the broadcasting industry over the past decade.

This technological advancement is inevitable and is a positive development that gives broadcasting organisations greater capabilities at lower cost but is likely to undermine copyright and related rights.

The process of digital migration prompted by the International Telecommunications Union’s (ITU) resolution raised serious copyright concerns in Kenya which the Supreme Court attempted to resolve.

The Kenya Copyright Act 2001 attempts to provide protection to broadcasters. It grants broadcasters exclusive rights to control fixation and rebroadcast of the whole or substantial part of a broadcast and the communication to the public of the whole or substantial part of a television broadcast either in its original form or in any form recognizably derived from the original.

This level of protection has been challenged as being grossly inadequate in the current technologically advanced era. The Copyright (Amendment) Bill, 2017 comes in at an opportune moment to address this concern.

The bill, introduced in Parliament towards the end of 2017, seeks to extend protection to retransmission of broadcasts over any network; decrypting in any way or form of any encrypted broadcast; or any adaptation or modification by way of commentaries, or any unauthorised expropriation of a broadcast or pre-broadcast signal meant for reception by another broadcaster.

The rights granted in the bill 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 recently signed memorandum of understanding (MoU) between the Media Owners Association (MOA) and the Collective Management Organisations (CMOs) creates welcome soundness in license fee collection and offers a great opportunity for artists to further benefit from their work.

The MoU ends years of push and pull between broadcasters who are the largest users of musical works and CMOs. On September 27 last year, MOA signed a joint licensing 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, composers, arrangers and publishers.

This means that broadcasters can now remit licence 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 licence by the three CMOs. —The writer is an intellectual property lawyer and a legal counsel at Kenya Copyright Board [email protected]

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