11
ISSUE
34
By Paul Kaindo
T
he Copyright (Amendment) Act, 2019
which was signed into law by the
president on September 18 address-
es challenges brought about by technologi-
cal changes. It is particularly intended to
address online copyright infringement which
the Copyright Act, 2001 did not address
sufficiently. The new law introduces a take-
down 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 are defences allow ISPs to
avoid liability for copyright infringement
provided they comply with certain statutory
conditions.
The amendment Act denes Internet Service
Providers as persons providing information
services, systems, or access software provid-
ers 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 sys-
tems for generating, sending, receiving, storing,
displaying or processing data and include in-
ternet. 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 take-
down notice requesting the ISP to remove the
infringing content. The takedown notice must
be in writing addressed to the ISP or their des-
ignated agent and must contain the full names,
telephone, physical and email addresses and
signature of the complainant or his authorised
agent. It must sufciently describe and identify
the allegedly infringing content(s) and right(s).
The notice must be accompanied by an af-
fidavit 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 (KECOBO), Communications Authority
of Kenya (CA) and the recognised Internet Ser-
vice Providers’ umbrella association. A take-
down 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’s or its agent’s designated address. The law
obligates ISPs to designate an agent or an ad-
dress for receiving takedown notices.
Once the ISP receives the takedown, it is re-
quired to disable access to infringing content
within 48 hours unless it receives a counter no-
tice contesting the takedown notice and which
fulls the requirements set out in a takedown
notice.
Failure to take down or disable access after
receiving a takedown notice without justica-
tion makes the ISP liable for damages resulting
from the non-compliance. The ISP also com-
mits an offence punishable, upon conviction, by
a ne not exceeding Sh500, 000 or imprison-
ment of ve years, or both.
Lodging a false or malicious takedown or
counter notice is an offence attracting a ne of
up to Sh500, 000 or imprisonment for ve 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 ac-
cess or transmitted, routed, or stored the content
and did not initiate transmission or select ad-
dressees. The safe harbour requires that the ISP
is not involved in content selection, modica-
tion or promotion. This defence applies where
transmission or routing and provision of access
is automatic, transient and intermediate.
This applies in case of automatic, intermedi-
ate and temporary storage of infringing content
brings ISPs under the safe harbour. The Internet
Service Provider must however not have modi-
ed 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 benet 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 ac-
cess 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 infring-
ing content stored at the request of recipients of
its services provided it did not have knowledge
that the content or activity relating to the con-
tent was infringing.
The ISP will not be liable for damages
where it refers or links users to a webpage con-
taining infringing content or unintentionally fa-
cilitates 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 under
the amendment Act to monitor material on its
services or to seek facts or circumstances of in-
fringing activity without being prompted. This
is justied because ISPs transmit huge quanti-
ties of content instantaneously making it im-
practical to expect them to monitor all content.
The ISP will however be liable where the
recipient was acting under its authority. An ISP
will not be liable for wrongful takedown in
response to a valid takedown notice. It will be
considered wrongful takedown if the takedown
is based on an invalid notice.
If the ISP may be liable to injunction from
copyright owner(s) for failure to takedown. The
ISP may be ordered to require to disclose to in-
vestigative agencies of the identity of subscrib-
ers suspected of infringing his/her content.
The law brings Kenyan law in line with in-
ternational standards.
How new copyright law will
safeguard against online infringement