Media law in Kenya in the era of digital broadcasting
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This article analyses media law in the era of digital technology. It attempts to answer four interrelated questions: First, what is digital migration? Second, what is digital technology in the communication context? Third, what are the policies, laws and regulations governing communication and how sustainable are these laws in the emerging digital environment? Fourth, in what ways can we reform communication law in Kenya to address the digital context? Digital broadcasting raises regulatory questions that fall under a three-pronged typology in what I call the Yochai Benkler-Lawrence Lessig (Benkler-Lessig) model. First, the physical layer or architecture comprising transmission, distribution and reception technologies including wires, wireless connectivity and fibre optics. Second, the code or software layer which is the intelligence that runs the system. Third, is the content, which includes voice, data, images or graphics that constitute privacy, pornography, hate speech, copyright, trade mark and domain names system. New technologies and ways of communication have ushered in changes in information production, access and sharing. These changes have revolutionalised business, education, politics and social interaction in Kenya. This year Kenya is expected to migrate analogue TV viewers to digital terrestrial broadcasting technology. This is expected to cost the Government about KES 3 billion. The transmission of broadcasting is expected to raise important intellectual property (IP) issues especially regarding digital copyright, trade mark and the domain name system. Digital broadcasting will see the utilization of digital rather than analogue waveforms to carry broadcasts over assigned radio frequency bands. Sound and pictures will be processed electronically and converted into digital format. This format will then be transmitted and reconverted by the receiver’s set-top box into broadcasts. Viewers are expected to receive better broadcasts, better quality content, additional channels, and other improved services. As Prof Paul Goldstein of Stanford has stated elsewhere creators of broadcast content will be required to produce high-technology and more programmes to cater for the growing demand expected by the viewers and receivers of digital broadcasts or the “celestial jukebox.” Digital broadcasting fundamentally questions traditional copyright doctrine and practice. Creators of digital projects build up some works and interests.