Law to guard against online infringement

Kenya Copyright Board (KECOBO) executive director Edward Sigei at a past function. The new KECOBO Act is intended to address online copyright infringement. [File, Standard]

The Copyright (Amendment) Act, 2019 which was signed into law by the President on September 18 addresses challenges brought about by technological changes. It is particularly intended to address online copyright infringement which the Copyright Act, 2001 did not address sufficiently. 

The new law introduces a takedown procedure for copyright owners to address infringement over the Internet. It also avails Internet Service Providers (ISPs) certain defences usually referred to as ‘safe harbours’. These defences allow ISPs to avoid liability for copyright infringement provided they comply with certain statutory conditions.

The amendment Act defines ISPs as persons providing information services, systems or access software providers providing or enabling computer access by multiple users to a computer server, including connections for transmission or routing of data.

Information systems under the Act means systems for generating, sending, receiving, storing, displaying or processing data and include internet. ISPs may therefore potentially include persons who own or operate websites, blogs, social media platforms, telecommunication companies and other internet suppliers.

The new law provides that a person whose copyright has been infringed may issue a takedown notice requesting the ISP to remove the infringing content. The takedown notice must be in writing addressed to the ISP or their designated agent and must contain the full names, telephone, physical and email addresses and signature of the complainant or his authorised agent. It must sufficiently describe and identify the alleged infringing content(s) and right(s).

The notice must be accompanied by an affidavit or a declaration attesting to claim of ownership, validity of the rights, good faith and effort taken to have the infringer remove the content. It must be copied to Kenya Copyright Board, Communications Authority of Kenya (CA) and the recognised ISPs’ umbrella association.

A takedown notice is deemed delivered on the next business day following physical delivery at the ISP’s registered physical address or two days after it is sent by registered post or immediately it is sent by electronic communication to the ISP or its agent’s designated address. The law obligates ISPs to designate an agent or an address for receiving takedown notices.

Once the ISP receives the takedown, it is required to disable access to infringing content within 48 hours unless it receives a counter notice contesting the takedown notice and which fulfils the requirements set out in a takedown notice.

Failure to take down or disable access after receiving a takedown notice without justification makes the ISP liable for damages resulting from non-compliance. The ISP also commits an offence punishable, upon conviction, by a fine not exceeding Sh500,000 or imprisonment of five years, or both. 

Lodging a false or malicious takedown or counter notice is also an offence attracting a fine of up to Sh500,000 or imprisonment for five years or both. Any person convicted for the offence is also liable for any consequential damages.

Under the safe harbour provisions, an ISP must demonstrate that it merely provided access or transmitted, routed, or stored the content and did not initiate transmission or select addressees. The safe harbour requires that the ISP is not involved in content selection, modification or promotion. This defence applies where transmission or routing and provision of access is automatic, transient and intermediate.

This applies in case automatic, intermediate and temporary storage of infringing content brings ISPs under the safe harbour. The ISP must however not have modified the content and must have complied with conditions on access and with rules regarding updating of cache in conformity with generally accepted standards within the service sector. The ISP to benefit from safe harbour must have not interfered with any technological protection measures while using the content.

In addition, the ISP is not liable if it removes or disables access to the content upon receipt of a takedown notice or deletes or disables access to the content following a court order or upon acquiring knowledge that the content is infringing.

The law therefore exempts ISPs from liability for damages arising from infringing content stored at the request of recipients of its services provided it did not have knowledge that the content or activity relating to the content was infringing.

The ISP will not be liable for damages where it refers or links users to a webpage containing infringing content or unintentionally facilitates infringing activity through information location tools. This applies where the infringing nature of the content is not obvious and the ISP removes or disables access to the reference or link upon being informed that it is infringing.

There is no general obligation on ISPs to monitor material on its services or to seek facts or circumstances of infringing activity without being prompted. This is justified because ISPs transmit huge quantities of content instantaneously, making it impractical to expect them to monitor all content. However, the ISP will be liable where the recipient acts under its authority. It will not be liable for wrongful takedown unless it is based on an invalid notice.

An ISP may be liable to injunctive relief for failure to take down. It may also be ordered to disclose to investigative agencies identity of subscribers suspected of infringement.

A copyright owner may apply to High Court for grant of interim relief where his/her copyright is being infringed or likely to be infringed in or out of Kenya. Such relief may include orders requiring an ISP to cease enabling, or facilitating, or hosting, or making available the infringing content. The orders may also require the ISP to disable the infringer’s access to its services or to disable access to the infringing content and prevent use of its services to access the infringing content.

The law brings Kenyan Copyright law in line with international standards.

 

Mr Kaindo is an Advocate of the High Court and a Senior Legal Counsel at Kenya Copyright Board