Why regulator is alarmed by planned copyright law change

In May 2014, police officers accompanied by officials from the Kenya Copyright Board (Kecobo) and MultiChoice Kenya raided a residential house in South B.

They were there to investigate copyright infringement allegations after MultiChoice discovered that the house’s occupant, one Jeffrey Ndungi, was registered as a DSTV subscriber with 11 accounts, which the company deactivated, claiming they were being used for piracy. 

According to the pay-TV provider, Mr Ndungi used his server to forward DSTV content to Egyptian pirates’ servers, which then shared the content in an encrypted format to subscribers without a DSTV account.

The Nigerian Copyright Commission later wrote to Kecobo complaining that Ndungi was at the centre of a cross-border piracy ring in North and West Africa.

Ndungi, who turned out to be a prolific hacker, was arrested by the Federal Bureau of Investigations (FBI) and jailed for 10 years for stealing from the US government by issuing dud cheques electronically.   

Four years later, MultiChoice won the case against Ndungi, but the legal process had exposed limits in the country’s copyright legislation in the fight against piracy.

This prompted an amendment to the Kenya Copyright Act that made internet service providers (ISPs) liable for copyrighted content spread through their systems. In the amendments, right holders could file takedown notices once they found their copyright had been violated.

ISPs were then expected to give a copy of the takedown notice to the person responsible for uploading the infringing content and disabling access to the same within 48 hours unless a counter-notice objecting to the takedown is filed.

In proposing the amendments, Kecobo argued that ISPs had tools and equipment within their systems to block access to shut down networks that spread copyright-infringing content.

A few weeks after the Bill was signed into law, MultiChoice sued Safaricom and Jamii Telecom for not complying with a takedown notice against websites in Kenya that streamed European league football matches pirated from its SuperSport channel.

In December last year, the high court granted MultiChoice interim relief by ruling that the ISPs should take down the content within 14 days, but a swift appeal by the telcos a few days later stalled any further action. 

The ISPs argue that blocking or restricting access to specific IP addresses amounts to a breach of users’ freedom of information and an overreach into censorship, a function the telcos argue they are not equipped to serve.

The case is ongoing, but proposed amendments to the Copyright Act could make it impossible in future for MultiChoice or other firms to pursue ISPs for copyright infringement through their networks.

The Copyright (Amendment) Bill, 2021 sponsored by Homa Bay MP Gladys Wanga proposes a repeal of Sections 35B and 35C that provided for takedown notices and ISP liability respectively.

“The Bill proposes to repeal the provisions on takedown notices and requirements, the role of internet service providers and application for an injunction,” says Ms Wanga in a memorandum accompanying the Bill.

“It is intended to remove the ambiguity in the role of internet service providers. Further, it is to align the Act as there are already legal remedies provided for.”

Kecobo, however, says repealing the sections would represent the biggest setback in the history of copyright and would leave Kenyan content creators, artistes and authors “hanging in the wind.”

“Many Kenyans who use the internet know how hard it is to stop people from misusing copyright works that have been placed online,” said Kecobo Executive Director Edward Sigei.

He said Sections 35B and 35C were introduced in line with the 1996 World Intellectual Property Organisation (Wipo) Internet Treaties to which Kenya is a signatory.

“The Wipo Internet Treaties set out the manner countries could prevent infringement of copyright by providing in their laws the protection of author and work information and access and copy measures,” he said.