Broadcast copyright and regulatory framework for free access to live football broadcasts in Kenya and South Africa
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Date
2018-11
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Abstract
This study investigates the impact of broadcast copyright on access to the broadcasting of football in Kenya and South Africa. Broadcasting is the most important and popular platform over which football matches are distributed globally. Modern broadcasting and telecommunication technologies have created multimedia channels and platforms over which football events are exploited. The exploitation of these sporting events places greater reliance upon copyright and other intellectual property rights. Intellectual property rights in general and copyright in particular monopolises and individualises that which they protect. When football events are broadcast in Kenya and South Africa, they are assimilated into broadcasts which form one of the categories that are copyright protected in the two jurisdictions. At the same time when football games are recorded before transmission, they are protected as audio-visual works within the meaning of the copyright laws of South Africa and Kenya. The exclusive rights that broadcasting organisations enjoy in Kenya and South Africa create a monopoly over the broadcast football matches. Access to these events, therefore, on the part of the public becomes discretional at the whims of the broadcaster transmitting events.
On the other hand, the study found out that football is a popular culture not only in Kenya and South Africa but also across the world. Football is an expression of the people‘s culture and therefore glue that binds people together. It is viewed as a cultural heritage that promotes collective consciousness of a people. It promotes national cohesion and nationhood and thus important for countries like Kenya and South Africa where ethnicity and racial divisions are so pronounced. This calls for stronger legal and policy frameworks towards greater public access to broadcast football. This necessity is also justified by the fact that media transforms football events into stories through commentaries and analysis. The football events therefore become informational assets that have greater constitutional underpinnings within the context of the right to information. The public therefore has a constitutional claim to broadcast football as sports information as well as under the relevant international instruments like the International Convention on the Right of the Child of 1989 and the International Charter on Physical Education and Sport.
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The major findings of the study are that live broadcasting of football events is copyright protected in Kenya and South. This copyright protection though is not backed up by copyright doctrines and philosophies because transmission of football events is not a creation of the mind. Additionally, the exclusive rights that broadcasters enjoy over their broadcasts are buttressed by technological protection measures employed by pay TV services which encase absolutely football events. This situation has been exacerbated by the migration of premium football events from free-to-air (FTA) channels to subscription services which further limits access to broadcast football events that are encrypted.
Based on the foregoing findings, the study makes appropriate recommendations that would bring Kenya and South Africa to a level consistent with the global development. The global development is constructed from the practices and comparative analysis done vis-à-vis developed countries with strong traditions of sports and intellectual property rights.
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Intellectual property, Copyright, Broadcasting -- Kenya, Broadcasting -- South Africa