The Battle Between GoTV, Startimes Vs Kenyan Media

It all began in November 2013.

The Communications Authority of Kenya had directed GoTV and StarTimes to carry the free-to-air signals of Citizen TV, KTN, NTV, and QTV as a condition of their subscription licences. The regulatory instrument required subscription broadcasters to carry a minimum number of Kenyan channels. GoTV and StarTimes complied. 

Royal Media Services (RMS), Nation Media Group, which owned NTV and QTV, and Standard Group, which owned KTN, argued that regulatory compliance did not override their copyright in their broadcasts. Together they filed a petition in the High Court, contending that transmitting their content without consent and without payment constituted copyright infringement.

Justice Majanja of the High Court dismissed the petition on December 23, 2013. He held that the petitioners had not established that their intellectual property rights had been infringed, finding that the subscription broadcasters had carried the signals without altering them and had not claimed authorship over the content.

RMS, Nation Media Group, and Standard Group appealed. The Court of Appeal, in a judgment delivered by Nambuye, Maraga, and Musinga JJA on March 28, 2014, overturned the High Court. Nambuye JA declared that the direction to GoTV and StarTimes to air the petitioners' free-to-air programmes without consent was a violation of their intellectual property rights and was null and void.

The Communications Commission of Kenya, the Attorney General, the Ministry of ICT, and the signal distribution companies Signet Kenya, Pan African Network Group Kenya, and StarTimes appealed to the Supreme Court. A full bench of seven justices, led by Chief Justice Willy Mutunga, delivered a unanimous judgment on September 29, 2014, reversing the Court of Appeal and finding no infringement.

The Supreme Court's ruling rested on two main findings. First, it held that GoTV and StarTimes were not "broadcasting organisations" in the legal sense because they did not take financial and editorial responsibility for the selection, arrangement, and investment in the content they transmitted. Since Section 29 of the Copyright Act grants the right to control rebroadcasting as against other broadcasting authorities, the court concluded that GoTV and StarTimes fell outside the category of entities capable of infringing that right. Second, the court held that the must-carry rule constituted a legitimate limitation on copyright in the public interest. 

For both propositions, it relied heavily on a 2009 decision of the Philippine Supreme Court that arose from an almost identical dispute between a free-to-air broadcaster and a satellite subscription carrier operating under a state-mandated carriage obligation.

Cynthia Amutete, an Advocate of the High Court and a Graduate Assistant at Strathmore Law School, criticised the decision of the Supreme Court. Amutete identified three errors in the court's reasoning, each traceable to the court substituting Philippine legal frameworks for Kenyan statutory analysis.

The first error was the Supreme Court's use of the Philippine definition of a "broadcasting organisation" to determine whether GoTV and StarTimes could be liable, without working through the definitions provided in Kenya's own Copyright Act and the Kenya Information and Communication Act. Kenya's statutes supply their own criteria for what constitutes a broadcasting authority and the court did not apply them.

The second error was the application of the fair use doctrine from the Philippine Intellectual Property Code to a Kenyan copyright question. Kenya's Copyright Act is limited to specific enumerated purposes: scientific research, private use, criticism or review, and the reporting of current events subject to acknowledgement of the source. Fair use, as structured in the Philippine IP Code, is a broader and more flexible doctrine. The two standards are not equivalent, and the Kenyan statute does not contain a fair use provision.

The third error was the court's invocation of a public interest defense to justify the must-carry rule as a copyright limitation. Kenya's Copyright Act does not codify public interest as a standalone exception to copyright protection. The court applied the defense without identifying its statutory basis or defining its scope.

Following the Supreme Court's verdict, Citizen TV, NTV, KTN, and QTV ran an on-air advertising campaign instructing Kenyan consumers not to purchase GoTV and StarTimes set-top boxes, claiming the two providers were carrying their content without consent. 

GoTV obtained a temporary High Court injunction on January 20, 2015, stopping the campaign on the grounds that the advertisement contradicted a ruling that was binding on all parties.

This story first appeared on episode one of Kenyan Founders, The History and Business Strategy of Royal Media Services