A commentary on broadcast copyright protection in Kenya and South Africa against the prism of WIPO negotiations on the rights of broadcasters

• Published date: 22 January 2021
• Date: 22 January 2021
• Pages: 80-108
• Citation: (2020) IPLJ 80
• Author: Oira, H.

80

A COMMENTARY ON BROADCAST

COPYRIGHT PROTECTION IN

KENYA AND SOUTH AFRICA

AGAINST THE PRISM OF WIPO

NEGOTIATIONS ON THE RIGHTS

OF BROADCASTERS

 

Dean, Mount Kenya Uni versity School of Law, Nairobi, Kenya



Associate Professo r and Dean, School of Law Universit y, of Venda, Thohoyan dou,

South Africa

  

Associate Professo r of Law and Deputy Dean: Teaching and Le arning, Faculty of

Commerce, Adminis tration and Law, University of Zulu land, KwaDlangezwa, South

Africa

  

Professor of Law, Faculty o f Law, University of Nairobi, Nairobi, Kenya

ABST RACT

The concept of broa dcast copyright i s one of the most controversia l and non-felicitous

subjects at domest ic and interna tional levels. Most of the relevant i nternationa l

instru ments and domestic copy right laws merely provide that bro adcasting organis ations

shall enjoy protect ion over their broad casts and progra mme-carrying sig nals. One such

internat ional treaty is the Rome Conventio n for the Protection of Performer s, Producers

of Phonograms, an d Broadcasting O rganisations of 1961 (herein after called th e ‘Rome

Convention’). The other tr eaties that accord protect ion to broadcasting organ isations are

the Convention Relati ng to the Distribution of Pr ogramme-car rying Signals Transm itted

by Satellite of 1974 (hereinaf ter called the ‘Sat ellites Convention’) and the Ag reement

on the Trade-Relate d Aspects of Intellec tual Proper ty Rights (TR IPS) Agreement

of 1994. The copyright pr otection of broadcas ting organisat ions’ broadcasts in K enya

and South Afr ica is largely modelled upo n the protection gr anted under int ernational

       

that broadcas ters enjoy at the inter national level is repl icated in the copyr ight laws of

Kenya and South Af rica.1 This article exa mines the object of protect ion in broadcasts and

programme -carry ing signals in Kenya a nd South Africa . The article fu rther exami nes

 

 

 



1 This concep tual conundr um is stark ly illustrate d generally by PB Hugenh oltz ‘The WIPO

Broadcasti ng Treaty. A conceptual conund rum’ (2019) European Intellectual Property Review

199–2 02.

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the judicial int ervention, if any, in the t wo jurisdictio ns to deconstr uct the notion of

broadcast copy right. In the end , the article wr aps up by carry ing out a comparative

analysis over the mat ter in the two count ries before concluding th at the copyright stat utes

   

technologies.

KEYWORDS: Broadc ast copyright; br oadcasts; progra mme-car rying signal ; copyright

law; sporti ng events; neighbouring r ights; signal-based appr oach; rights-based ap proach.

  

Radio and television broadcast ing have become an essential par t of people’s

daily lives. As a medium of commu nication, they extend into var ieties of

social settings such as news , information, enter tainment and dist anced

events, connecting pe ople from disparate commu nities into a virt ual social

community able to wit ness, in real-time or throug h shifted time progra mming,

thus impacting on a plethor a of social and physical realities.2 Through the

    

a means to share and promote t heir culture, information, ar ts, and music with

the rest of the world.3 Broadcasting thus br ings light to the darkest village and

makes a larger commun ity of many small ones.4

Although broadcasti ng plays a pivotal role in socio-economic, cultura l

and political transfor mation in society, its development is today under the

threat of piracy and sign al piracy brought about by rapid technological

changes.5 The Rome Convention of 1961,6 which is the pioneer international

legal framework under which intellec tual propert y rights of broadcasting

 

of that time. Since 1961, the global and national broadcasting contour s have

fundament ally changed with the advent of digital tech nology, which allows

for new methods of business and additiona l methods of programme delivery

and consumption apar t from the tradit ional over-the-air radio and television

transmission covered u nder the Rome Convention. These new methods

include online intera ctive services, satellite broadcasti ng and other non-linear

2 M O’Shaughnessy a nd J Stadler Media and Society (20 09) 234.

3 F Ramos ‘A fair deal to broa dcasters’ available at f tp://ftp.wipo.int/pub/ library/ebook s/

wipopublicatio ns/wipo_p ub_757efs.pdf (accessed on 28 August 2019); a speech delive red at

the WIPO Sym posium on Broadcas ting, New Commun ication Technologies and I ntellectual

Propert y, Manila (28–30 Apri l 1997). Fidel Ramos was the n president of the Philippines. T he

symposium ca me in the wake of the ado pted by WIPO of the so- called inter net treaties. It for med

the foundatio n of the ongoing negotiations for the p ossible update of the neighbou ring rights of

broadcasti ng organisations in res ponse to the emerging and ne w communication technolog ies.

The symposiu m was attended by one of the au thors of this paper, Dr Oi ra, as a representa tive of

the then Union of Natio nal Radio and Television Organ izations of Africa ( URTNA) a precursor

to the present A frican Union of Broadca sting (AUB).

4 Ibid.

5 See for example, GAGS Kar unarathna, K L Jayarathne and PV KG Gunawardana ‘Classi fication

of voice content in the co ntext of public radio broa dcasting’ (2019) Internatio nal Journal on

Advances in ICT for Emerging Regions 2 in relation to the rapid te chnological growth in ma ss

media technolog y which has complicate d radio broadcasti ng.

6 Th e Internation al Convention for the Protection of Per formers, Prod ucers of Phonogram s and

Broadcasti ng Organization s, done at Rome on 26 October 1961.

A COMMENTARY ON BROADCAST COPYRIGHT PROTECTION IN KENYA AND SOUTH

AFRICA AGAINST THE PRISM OF WIPO NEGOTIATIONS ON THE RIGHTS OF BROADCASTERS

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