Addressing the controversies of neighbouring rights of broadcasting organizations under Kenyan and International law
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The advent of neighbouring rights in general and neighbouring rights of broadcasting organizations in particular in 1961 was received with a lot of scepticism by either the creative authors themselves or through their representative associations. This scepticism was grounded on the fact that neighbouring rights majorly fall outside the cathedral of creativity and therefore cannot be copyrightable. In the field of broadcasting, the nature of economic rights conferred upon broadcasters have the potential of conflicting with the economic rights of the owners of the underlying content namely authors of literary, artistic and musical works. This conflict is clearly real or manifest in post-fixation rights like the right of retransmission, reproduction, communication to the public as well as the right of making it available. It is arguable that after fixation, the signal which is generated by broadcasters, disappears or fizzles out and only remains the content which belongs to creative authors unless a broadcaster doubles as one in which case the latter can be assimilated into a creative author. This thesis analyses the extent of this conflict and its impact on the development of the broadcasting sector as well as on the dissemination of information. In addition, the study will seek to analyse both the broadcast signal and the underlying content with a view to finding out what exactly is the object and scope of protection. The reigning discourse is whether it is the broadcast content or the signal or indeed both the signal and content condimented by the technical and entrepreneurial undertaking that constitute the object of protection. On the other hand, the subject of protection in the context of the Rome Convention of 1961 is too restrictive on account of developpement technique (technological development) which has introduced different platforms of broadcast signal delivery and distribution. The evolution of digital technology has not only introduced different business models in the field of broadcasting but has also introduced different means of exploitation of broadcasts. The ensemble of these developments calls for comprehensive modifications of both international and municipal intellectual propriety rights in order to embrace the new technological frontiers. This will spur development in the broadcasting industry as well as enhance the dissemination of information. The new technological frontiers include transmission and exploitation over computer networks as well as cable or wire-related transmissions. Dissemination of information is a strong instrument for socio-political and economic development. Consequently, technological development in the field of broadcasting must be in congruence with or buttressed, in equal force, with the development of intellectual property rights. In the absence of that, the development of the broadcasting sector would be greatly undermined by piracy, joyriding and bootlegging. It is in the context of the foregoing that this thesis seeks to address the contradictions and inconsistencies raised above and the extent to which they impinge upon the exercise of neighbouring rights of broadcasters both in the Kenyan and international legal frameworks. The research then goes ahead to make proposals for legislative and policy reform in tandem with the international and national realities.