E-commerce providers abetting copyright piracy and counterfeiting

The recent statement by the Chief Executive Officer of the Pharmacy and Poisons Board (PPB) warning the public of breach of pharmaceutical trading regulations by e-commerce platforms has highlighted their understated role in illicit trade into the country.

Last year the Kenya Copyright Board (KECOBO) wrote to the main e-commerce platforms that operate in the country advising them on the possible abuse of those platforms to advertise, offer for sale or selling of pirate and counterfeit products.

The letter also invited them for further engagement with a possibility of establishing a self-regulatory certification scheme to ensure there is no abuse of the platforms.

During the process, my office found out that some of the e-commerce platforms trading in Kenya are neither locally incorporated nor have a designated management. In addition, a considerable number do not operate from offices declared on their websites or social media.

In Kenya, one of the most significant contributions of e-commerce platforms is the distribution of devices designed to circumvent technological protection measures and offer unauthorised access to content thereby enabling piracy.

In global knowledge-driven economies, being able to control the use of copyright works and optimising different regional markets depending on unique programme and linguistic needs remains a key objective of a media ownership.

The circumvention of technological protection measures including geolocation therefore represents a formidable challenge due to uncontrolled and unauthorised importation and distribution of circumvention devices through e-commerce platforms.

The platforms and their managers risk liability for the offence under section 38(1) (i) of the Copyright Act for distribution of devices designed for circumventing technological protection measures.

We have found out from copyright enforcement that the equipment that ought to be type approved is in most cases not approved as required thus potentially offending provisions of Kenya information and Communications Act. The practices may offend the provisions of the Act in as far as management of ecommerce platforms are concerned.

With the proliferation of these unauthorised equipment, there is need to urgently take coordinated enforcement measures. Since the devices are imported, the enforcement must begin at the ports of entry where verification of type approval and duty payment should be thoroughly done.

On its part, KECOBO remains ready to exercise its enforcement function in collaboration with the Communications Authority of Kenya (CA). In addition, KECOBO shall be proposing a compliance checklist to assist willing e-commerce platforms the avoid risk of criminal and civil liability for copyright infringement and counterfeiting.

Furthermore, I would recommend additional regulations be put in place for the purpose of preventing breach of the various regulatory standards by the e-commerce platforms including verification checks.

It may be time to review the Importation Type Approval Regulations to align with current technological realities.