Royal Media Services (RMS), Nation Media Group (NMG) and Standard Group (SG) have recently launched this television (TV) advert on their TV channels Citizen TV, Nation TV (as well as QTV) and KTN respectively in which they allege that GOTv and StarTimes are broadcasting the former’s TV channels without consent thereby infringing on the copyright and related rights of RMS, NMG and SG. Therefore, the advert advises viewers not to purchase GOTv and StarTimes set top boxes until RMS, NMG and SG launch their own set top boxes. This advert comes in the wake of an order by two judges of the Supreme Court on January 5, 2015 temporarily blocking the Communications Authority of Kenya from switching off the analogue signals of the three media houses after the latter made an urgent application requesting more time to complete the migration from analogue to digital broadcasting.
As part of the court of public opinion, this blogger finds it ironic that the advert by the three media houses seems to be an attempt to stand up against perceived law breakers yet the advert itself breaks several laws, including copyright law, which is at the heart of the present dispute. This advert also raises important competition law and consumer protection law issues that ought to be addressed.
Let’s begin with the various copyright law violations in this advert. The first violation relates to the unauthorized synchronisation of the musical work known as “Da Rockwilder” by Rockwilder (as Dana Stinson), Method Man (as Clifford Smith) and Redman (as Reggie Noble), under The Island Def Jam Music Group and licensable from Universal Music Enterprises. Through the entire 39 seconds of the advert, the instrumental version of “Da Rockwilder” can be heard in the background. Ordinarily the right to include such a musical work in the advert (i.e. synchronisation right) would be obtained through Music Copyright Society of Kenya (MCSK) on behalf of the various foreign rights holders mentioned above. Furthermore, a look at the broadcasting license agreements between MCSK and the three media houses clearly shows that synchronization rights are excluded from the bundle of licensed rights. The second violation relates to the use of several images that may not have been licensed for use in the advert including the images of the gavel and the “copyright all rights reserved” image as well as the logos of GoTV and StarTimes which are all protected under copyright law.
A possible defence by the three media houses against the above copyright violations would be fair dealing. Ironically, the most binding precedent on fair dealing in copyright law is the Supreme Court’s decision in the digital migration case! The learned court adopted a test for determining the “fairness” in dealing from the Canadian Supreme Court case of CCH Canadian Ltd v. Law Society of Upper Canada. However it is important to note that the acknowledgement of sources is a necessary condition for any fair dealing under Kenya’s Copyright Act therefore the lack of attribution in the advert means that the fair dealing defence may not be available to the three media houses.
The fundamental claim made by the advert is that GoTV and StarTimes are infringing on the rights of the three media houses under copyright law. However, this claim is fundamentally flawed. In the Supreme Court decision, the learned judges dismissed this very same claim by the three media houses! Therefore the recent TV advert provides ample cause for GoTV and StarTimes to approach the Supreme Court under the law of contempt. However this blogger has expressed some reservations here regarding the reasoning and conclusion of the Supreme Court on this question of copyright infringement via the “must carry rule”.
Aside from copyright, this advert may be construed as a violation of trade mark rights of GoTV and Startimes. According to section 7(d) of the Trade Marks Act, the rights acquired by the registration of a trade mark are infringed by unpermitted use of an identical mark in the course of trade and in such a manner as to render the use of the mark likely to cause injury or prejudice to the proprietor of the trade mark.
Any trade mark law concerns in the advert, particularly as they relate to goodwill and brand reputation would be consistent with the perceived defamatory nature of the advert under the law of torts.
As we await the response of the Communications Authority of Kenya, this blogger believes that the Competition Authority of Kenya as well as the consumer rights protection bodies should also publicly take action given the issues of abuse of dominant position as well as unfair advertising raised by this advert.