Three independent media houses intend to take their dispute with the Kenyan government over unauthorised use of their content by foreign Pay Television stations to the global intellectual property watchdog for arbitration.

Nation Media Group, the Standard Group and Royal Media Services however said referring the matter to the Geneva-based World Intellectual Property Organisation would be the last resort.

“If local courts cannot solve the case, we will report the matter to the World Intellectual Property Organisation in Geneva,” NMG chairman Wilfred Kiboro said.

Kenya is among the 176 members of WIPO, which has the mandate to implement international copyright laws in these jurisdictions. On its website, WIPO says its dispute resolution procedures “constitute alternatives to court litigation.”

NMG, Standard and Royal Media, who are the top three broadcasters in the country, are members of the Africa Digital Network (ADN) consortium, whose temporary licence to launch digital signal distribution services was on Tuesday last week suspended by the sector regulator, Communications Authority of Kenya (CA), following differences over how the digital migration was being handled.

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NMG owns NTV and QTV. Standard owns KTN while Citizen TV belongs to Royal Media. The four free-to-air channels claim more than a 80 per cent share of television audiences in Kenya.

The withdrawal of the temporary authorisation issued a month ago followed the four stations’ airing of an advice to their viewers not to buy set-top boxes offered by Pay TV firms StarTimes and GOtv in the hope of accessing the free-to-air broadcasts.

StarTimes is associated with Pan-Africa Network Group (PANG) of China while GOtv is a partnership between national broadcaster Kenya Broadcasting Corporation (KBC) and MultiChoice of South Africa.

Mr Kiboro said by favouring foreign distributors over local firms the CA had put at risk investments worth more than Ksh40 billion ($444.4 million) made over the past 15 years as well as jobs in the television value chain.

“My clients are going international, having exhausted domestic jurisdiction following the incomprehensible findings of the Supreme Court on the issue of intellectual property rights,” ADN’s lawyer Paul Muite said in a letter to the two Pay TV companies and the regulator, seen by The EastAfrican.

Meanwhile, ADN will file a case at the Kenya High Court seeking to overturn the CA’s cancellation of its licence over “abuse of its dominance.” The CA said it withdrew ADN’s letter of temporary authorisation for airing the public notice, which the regulator said was intended to “cause confusion and disrupt the digital migration programme.”

In September last year, the Supreme Court ruled that GOtv and StarTimes were not infringing on the copyright of the media houses, saying the content was being retransmitted under the 2009 “must carry” regulation. It held that the two providers delivered the content “digitally without any interference.”

Although WIPO decisions cannot override rulings by local courts, Mr Muite said PANG’s and GOtv’s properties can be attached to compensate ADN if it is found that there was infringement of intellectual property rights.  

A finding that the government abetted abuse of private property rights would adversely affect Kenya’s standing as a conducive environment for foreign investment.

WIPO assists parties in dispute in the selection of mediators with specialised knowledge in resolving intellectual property disputes. The withdrawal of the licence means the consortium cannot roll out its digital infrastructure until the dispute is resolved. Programmes of the three ADN affiliates will only be received through the analog signal, free-to-air set-top boxes and other digital TV operators such as DStv.

The CA said licensing would only resume after it and the Competition Authority of Kenya (CAK) determined whether ADN is engaging in any “cartel-like and anti-competitive behaviour.”

The Media Owners Association, the umbrella for investors in the sector, accused the CA of attempting to armtwist ADN to have its content carried by either the Chinese firm or the KBC subsidiary Signet. This, it said, would compromise the integrity of the broadcasters as independent operators.

Frequencies to foreign firms

The government has issued 174 frequencies to PANG and Signet, compared with only 21 for ADN. The CA could also not explain why why it allocated UHF frequencies meant for universal use to Pay TV operators who would be expected to transmit through satellite, cable or the Internet.

The contentious “must carry” regulation allows digital TV operators to retransmit content for free, even without the consent of the intellectual property owners. ADN is contesting this rule, which the CA introduced to allow viewers access to free-to-air channels from any set-top box or decoder after the migration from analog to digital.

On December 24 last year, the CA wrote to ADN saying it had asked Pay TV operators to obtain consent before carrying content from ADN-affiliated channels. In another letter to StarTimes, GOtv, Zuku and DStv on December 3, the CA had clarified that the “must carry” rule only applied to the public broadcaster, KBC, reversing its November 2013 order that categorised KTN, NTV, Citizen TV and QTV as “must carry.”

CA director-general Francis Wangusi told The East-African that they had reinstated the four networks on the “must carry” rule in the interest of consumers because ADN may “withhold consent” without any reason.

ADN says it spends millions of dollars every year to develop content and wants the two Pay TV providers to share revenue with original content providers whenever they bundle the content into their pay packages.

“Yes, we are a free-to-air model and we have always given our content out for free to the public,” a technical expert from ADN said on condition of anonymity. “Now, suddenly somebody is giving out our content and getting paid for it but not giving us a cent.”

In the third quarter of 2014, Citizen TV had a weekly reach of 86 per cent of viewership, KTN was at 53 per cent, NTV had 52 per cent and QTV 36 per cent.

“Why would somebody buy a StarTimes box?” the ADN expert posed. “What would happen to their sales if they did not carry ADN channels?”

Mr Wangusi however said it was the CA that was keen to see Kenyans continue receiving free-to-air channels as a matter of public interest.

“ADN has to convince us that these TV operators are infringing on their copyright,” Mr Wangusi told The EastAfrican. “As far as we are concerned, nobody is copyrighting their content because their signals are re-broadcasted without distortion.”

Stephen Mutoro, the chairman of the Consumers Federation of Kenya (Cofek), also enjoined in the case, said the dispute would hurt consumers.

“Confusion causes a lot of consumer expense as people are buying set-top boxes that could in time be rendered obsolete,” he said.

ADN is also concerned that Pay TV services could use “clever marketing” to lure consumers to subscribe for Pay TV services that they cannot afford.

Reported by Trevor Analo and Scola Kamau