Introduction

For over two decades, the Draft WIPO Broadcasting Treaty has been under development,¹ aiming to give broadcasters updated signal-based protection² against illegal digital reproduction and online redistribution.³ As these negotiations evolve, understanding the position of individual nations becomes crucial. The Centre for Intellectual Property and Information Technology, CIPIT, has undertaken research to examine Kenya’s evolving position on the WIPO Broadcasting Treaty negotiations. The research was supplemented by a workshop held on July 24, 2025. This blog post offers an overview of the research findings and the key insights gleaned from that interactive session.

Kenya’s Legal Framework for Broadcasting Rights

Kenya broadcasting landscape is primarily governed by the Copyright Act⁴ and the Kenya Communications Act⁵. The latter establishes the Communications Authority of Kenya (CA) as the regulatory authority for telecommunications and broadcasting. The CA is mandated to license all radio and TV stations and to shut down unlicensed operators.⁶

The Copyright Act defines a broadcast as ‘the transmission by wire or wireless means, of sounds or images or both… in such a manner as to cause such images or sounds to be received by the public and includes transmission by satellite’.⁷ The Copyright Act grants copyright protection to broadcasts under section 29,⁸ which protection comes into effect only once a broadcast has been transmitted.⁹

This protection grants broadcasters the exclusive rights to control the recording and reproduction of all or a significant portion of a broadcast, as well as its rebroadcasting or transmission to the public, whether through traditional means or over any network.¹⁰ It also covers the unauthorised decoding of encrypted broadcasts, any alteration or modification of the broadcast or its signal before it is aired, and, in the case of television broadcasts specifically, the taking of still images from the broadcast.¹¹ Crucially, the Act acknowledges the interplay between broadcasters and copyright owners. While it presumes permission to broadcast when copyrighted content is included in an audiovisual production,¹² it also ensures that copyright holders, particularly of musical works, retain the right to receive fair remuneration.¹³

The Copyright Act also codifies specific, closed-ended exceptions and limitations to broadcasting rights. The Act permits reproduction by or under the control of a broadcasting authority for authorised broadcast purposes, on condition that such reproductions are destroyed within six months, or longer if agreed, archival preservation of documentary recordings, and broadcasting of public works not managed by a collective management organisation with fair compensation due to the copyright owner.¹⁴ The Act also provides for general exceptions to the use of broadcasts for scientific research, education, parody, pastiche, and caricature.¹⁵

Kenya’s Position on the Draft WIPO Broadcasting Organisations Treaty

Kenya has consistently advocated for a balanced approach throughout the treaty negotiations. In 2003, Kenya submitted a formal proposal to the WIPO SCCR that acknowledged the evolution of Information and Communication Technologies on the communication of broadcasts and the rising threat of cross-border signal piracy.¹⁶ The proposal’s preamble emphasised the need for an equitable framework that would protect broadcasters’ rights while promoting public interest in education, research and access to information.¹⁷

The key aspects of Kenya’s position include defining ‘broadcast’ for legal clarity as transmissions by wire or wireless, including satellite.¹⁸ Kenya proposed that protection be conferred on broadcasting organisations located in a contracting party or whose transmissions emanate from there.¹⁹ Importantly, the proposal stated that the treaty would not affect existing obligations under the Rome Convention or interfere with copyright and related rights in the broadcast itself.²⁰ It also provided for limitations and exceptions, stressing that these should only apply in special cases and not conflict with the normal exploitation of the broadcast and not infringe on broadcasters’ legitimate interests.²¹ However, this stance shifted, when in 2007 Kenya’s delegation placed emphasis on both protection and development sensitivity, emphasising that the draft treaty must balance the interests of established broadcasters with public interest needs.²²

Kenya, with regards to scope, made reference to its 2001 Copyright Act that defined broadcast as transmissions by wire, wireless means and satellite.²³ This technology-neutral definition had the benefit of being applicable to evolving transmission methods. Signal piracy was one of the most pressing challenges identified by the Kenyan delegation; a justification for the treaty. To address the issue, the Kenyan delegation advocated that the scope of signal protection should apply to all emerging platforms and modes of signal delivery.²⁴ However, later, the delegation warned that the treaty should not apply to webcasters as they were viewed as difficult to regulate.²⁵ Kenya also opposed the inclusion of compilations within the scope of protection, arguing that it would add little to the treaty and create ambiguity owing to the unclear legal status of compilations in many countries.²⁶

Kenya acknowledges broadcasting as a crucial means of facilitating public access to information and education, especially in developing countries.²⁷ Furthermore, Kenya supported the African Group’s position, at the SCCR, that protection for broadcasters must be updated in a manner that is balanced and equitable, whilst still serving the public policy objectives of African countries.²⁸

Balancing Broadcasting Copyright and Public Interest Workshop

The recent workshop, organized by CIPIT, provided a platform to deepen understanding of the ongoing negotiations at the SCCR, and analyse the draft treaty’s potential impact on crucial areas like educational access, journalistic freedom, and cultural preservation in Kenya. The overarching theme emphasized the public interest and the necessity of a participatory process to ensure it is adequately considered.

The workshop highlighted a critical tension at the heart of the WIPO negotiations: how to protect the legitimate interests and investments of broadcasting organizations while simultaneously safeguarding public access to information, education, and cultural content. This tension is particularly significant in countries like Kenya, where broadcasting often serves as a primary medium for widespread knowledge dissemination, as starkly evidenced during the COVID-19 pandemic when radio became a lifeline for education in remote areas.

The workshop had a keynote presentation on the history of the negotiation of the draft treaty, followed by an engaging panel comprising experts from academia, government, and the private sector. The key insights from this workshop are highlighted below:

1. Broadcasting as a Cultural and Educational Vehicle

Panelists underscored broadcasting’s foundational role in shaping cultural identity and transmitting knowledge. Both national and private broadcasters in Kenya have historically served the public interest through providing educational programming, children’s content, and news dissemination. Notably, the national broadcaster continues to play a critical role in sharing cultural and educational material, with some private broadcasters in Kenya now incorporating indigenous languages in their programming, thereby contributing to cultural preservation.

Reflecting on the shift brought by digitisation, the liberalisation of Kenya’s broadcast sector ushered in private broadcasters who, despite being profit-driven, contributed significantly to the promotion of democratic values and accelerated technological innovation.

2. From Traditional to Digital Broadcasting: Structural and Legal Shifts

The shift from traditional to digital broadcasting was extensively discussed. Digital broadcasting was broadly defined as content dissemination via the internet through platforms like podcasts, Netflix, and Spotify. This transformation has significantly decentralized content production, empowering individuals and smaller entities to become digital broadcasters.

3. Regulatory Framework and the Role of KECOBO

The Kenya Copyright Board (KECOBO) plays a crucial enforcement and administrative role, particularly in ensuring compliance and addressing copyright offences, including broadcasting ones. Kenya’s Copyright Act provides limitations and exceptions (L&Es) under the Second Schedule, including fair-dealing provisions, allowing users to access certain content lawfully. However KECOBO primarily facilitates access upon formal request and does not proactively engage communities on access needs.

A significant development highlighted was the ongoing amendment of Kenya’s Copyright Act. This revised legislation includes provisions that align with and even surpass those in the draft WIPO treaty, offering enhanced protection for broadcasting organizations. This presents Kenya with a unique opportunity to introduce copyright reforms that could influence the language of the international treaty.

4. Piracy, Commercial Rights, and Treaty Implications

The workshop addressed the growing concern of piracy, where unauthorised use of broadcasts undermines broadcasters’ ability to recover investment costs. Discussions on the balance between public interest and commercial rights, emphasized the need for a more precise definition of “public interest” and clearer fair use guidelines. Overbroad interpretations, it was argued, could jeopardise the financial sustainability of broadcast operations.

The workshop surfaced additional themes of relevance. This included the growing prevalence of simulcasting, where content is simultaneously transmitted on traditional platforms and internet-enabled services. This hybrid broadcasting model underscores the need for updated legal definitions and protections. The discussion underscored that protecting broadcasting activities safeguards the significant financial and technical investments made to deliver content, rather than merely an “empty signal”. It was also discussed that while the role of AI in broadcasting is still evolving, direct AI involvement as a “broadcaster” is currently unlikely due to the legal entity requirement. KECOBO is actively engaged in copyright awareness to combat piracy. The digital landscape, unlike mainstream media, remains amorphous, though content creators are forming associations to influence frameworks.

Conclusion

Kenya’s engagement in negotiating the WIPO Draft Broadcasting Treaty reflects a thoughtful effort to strike a crucial balance between private rights for broadcasters and safeguarding the public interest. While the Copyright Act and the Kenya Communications Act already provide a foundation for regulating broadcasting and related rights; the emergence of challenges like digital piracy and simulcasting in the digital era underscores the urgent need for clearer definitions of a broadcaster and their rights.

Insights from policy experts, regulators, and industry stakeholders at the workshop reaffirmed the importance of narrowly defining the scope of rights and the public interest. This precise approach is essential to ensure that broadcasters can continue their vital role in supporting access to information, knowledge, and preservation of culture in Kenya.