Tackling Online Piracy through ISP Blocking Law: The Draft Amendments to the Kenyan Copyright Act 20


The Communication Authority along with The Kenya Copyright Board recently made public a proposal to hold Internet Service Providers ISP’s responsible for blocking “unlawful” content on/from websites hosted in Kenya.

The proposed regulations are said to lay out stringent penalties for ISP’s who do not comply and once approved will be inserted as an amendment to the Copyright Act by the end of 2015.


The media report in The Daily Nation cites the motivation for these proposals being the need for more local media content and that the proposed regulation will build the local media content industry by ensuring that websites that show local content are lawfully doing so. Whereas the article by Standard Digital states that the amendment to the Copyright Act is a push to have local content earn a larger foothold on Kenya’s airways currently dominated by Nigerian and Latin American programming and that there are currently no legal mechanisms that cater for situations where work is uploaded and is being exploited.


It is hoped that with the recent case of Bernsoft Interactive & 2 Ors v. Communications Authority of Kenya & 9 Ors Petition No. 600 of 2014 filed against various internet service provider for hosting a site/ providing access to their users infringing content, internet service providers will provide a robust commentary on the feasibility of the proposed amendments.

A copy of the draft proposals were passed onto the IP Kenya blog here from an officer from the Kenya Copyright Board and a summary of the main points can be found below.

COPY OF THE PROPOSED AMENDMENTS

ISP NOT LIABLE IF MERE CONDUIT

1. An ISP shall not be liable for providing access to or transmitting material, routing or storage of material in ordinary course of business as long as it;

  • Does not initiate transmission,

  • Does not select the addressee

  • Performs the functions in an automatic ,technical manner without selection of the material ; and

  • Does not modify the material contained in the transmission

2. The acts of transmission, routing, and of the provision of access referred to above include automatic, intermediate and transient storage of the information

ISP NOT LIABLE FOR CACHE COPIES

1. An ISP shall not be liable for the automatic, intermediate and temporary storage of that material, where the purpose of the storing such material is to make onward transmission of the data more efficient to other recipients of the service upon their request as long as the ISP;

  • Does not modify the material;

  • Complies with conditions on access to the material;

  • Complies with rules regarding the updating the material in conformity with generally adopted/accepted standards within the service sector;

  • Does not interfere with the lawful use of technology to obtain information on the use of the material;

  • Removes or disables access once it receives a takedown notice as provided here below or where the original material has been deleted or access disabled on orders of a competent court;

ISP NOT LIABLE FOR MATERIAL STORAGE

1. An ISP shall not be liable for damages arising from material stored at the request of the recipient of the services, as long as it;

  • Does not have actual knowledge that the material or activity related to the material is infringing the rights of a third party;

  • Is not aware of the facts or circumstances from which the infringing activity unless the infringing nature of the material is apparent;

  • Upon the receipt of a takedown notice acts expeditiously to remove or to disable access to the material;

2. The exemption shall not apply if the recipient of the service is acting under the authority or control of the ISP.

INFORMATION LOCATION TOOLS

1. An ISP shall not be liable for damages incurred by a person if the service provider refers or links users to a webpage containing infringing material or facilitates infringing activity ,by using information location tools including a directory, index ,reference, pointer or hyperlink where the ISP;

  • Does not have actual knowledge that the material is infringing the rights of that person;

  • Is not aware of the facts or circumstances from which the infringing activity or infringing nature of the material is not apparent;

  • Removes or disables access to, the reference or link to the material or the infringing activity within a reasonable time after being informed that the material or the activity infringes rights of a person.

TAKE DOWN NOTICE

1. Take-down notice is a communication by a person whose rights are infringed by material to which access is being offered by an ISP

  • It shall be in writing and addressed by complainant to the ISP;

  • The notice must contain the full names and address of the complainant;

  • It shall bear the signature of the complainant or his representative;

  • The description of the material subject to infringement;

  • Identification of rights being infringed;

  • Telephone, physical and email address of the complainant;

  • Copy to Kenya Copyright Board and the Communication Authority;

2. An ISP must act or otherwise disable access to the material within 36 Hours.

3. Any person who falsely or maliciously lodges a takedown notice commits an offence and shall on conviction be liable to a jail term of six Months or to a fine of Ksh. 50, 000 or both.

4. An ISP shall not be liable for wrongful takedown in response to a take-down notice.

ISP OBLIGATION

1. There is no general obligation to;

  • monitor the material it transmits or stores; or

  • Actively seek facts or circumstances indicative of infringing activity

2. An ISP shall be obliged to provide information to investigative agencies regarding identity of the recipients of their services.

3. An injunction can issued against an ISP to block access to subject of infringement where it refuses or neglects to disable access as requested in a takedown notice.

For more information, please contact Carole Theuri.

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