Copyright News
The Role of ISPs in Fight
Against Copyright Infringement
By Linda Otieno
nternet Service Providers (ISPs) have
played an important role in making infor-
mation more accessible to the common
man. With the rise of ISPs, however, the
challenge of proper protection of ownership
of copyright has reared its unsightly head.
Fortunately, the Copyright Amendment Act
2019 was rightly assented on September 18
last year to cure this problem.
Under Section 2 of the Copyright
(Amendment) Act, an Internet Service Pro-
vider (ISP) means a person providing infor-
mation system services or access software
that provides or enables computer access by
multiple users to a computer server including
connections for the transmission or routing
of data.
An Internet service provider is also known
as an Internet access provider (IAP). Exam-
ples of ISPs in Kenya are Safaricom, Airtel,
Zuku and Faiba Internet.
The Copyright Amendment Act (2019)
introduces a takedown notice. A takedown
notice is a written request from a copyright
owner to an ISP to remove content that they
deem to be an infringement of their copyright.
A takedown notice must fulfil certain
major requirements for it to be deemed valid.
Firstly, it must be in writing and addressed by
complainant or his agent to the
Internet Service Provider
or its agent. Secondly,
it must contain the
full names, con-
tacts and phys-
ical address
of the com-
it must be
signed by
the com-
plainant or
his authorised
agent. Fourthly,
it must describe
in specific detail
the copyright work
subject to the alleged
infringement sought to be
An ISP shall not be
held liable for copy-
right infringement if
it removes or disables
access to the infringing
content upon receipt of a
takedown notice. An order of a court of law
may also compel an ISP to take down such
infringing content. There is a danger in fail-
ing to comply with a court order. One may be
held in contempt of court. An ISP may also
eradicate the infringing content after obtain-
ing knowledge of the unlawful nature of the
What amounts to unlawful online mate-
rial? This includes material containing incite-
ment to terrorism or child sexual abuse.
It also covers, inevitably, infringements
of Intellectual Property rights. From the con-
stitutional perspective, hate speech, advocacy
of hatred and propaganda for war may be
viewed as illegal content as they are limita-
tions on the freedom of expression.
The new law lists the acts that are consid-
ered exemptions as offences specifically in
light of the nature of services that ISPs offer.
An ISP shall not be held liable for infringe-
ment if it does not initiate transmission,
does not select the addressee or performs the
functions in an automatic and technical man-
ner without selection of the material. Other
exceptions include not modifying the mate-
rial contained in the transmission and not in
any way promoting the content or material
being transmitted.
An ISP shall not be responsible for
infringement where the purpose of storing the
content in question is to make onward trans-
mission of the data more efficient to other
recipients of the service upon their request.
This defence only stands as long as the ISP
does not modify the material and complies
with conditions on access to the material. It
must also comply with rules regarding
updating the cache in con-
formity with generally
accepted standards
within the service sector. Additionally,
it must not interfere with the lawful use of
technology to obtain information on the use
of the material.
A common remedy for copyright infringe-
ment is damages. Damages are monetary
compensation paid by the offending party to
the aggrieved party. The goal is to attempt
to compensate the aggrieved party for the
loss or such estimated loss. 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 content or activity related
to the material is infringing the rights of a
third party.
It will also avoid liability if it is not aware
of the facts or circumstances of the alleg-
edly infringing activity unless the infringing
nature of the material is apparent. These
exemptions, however, shall not apply if the
recipient of the service is acting under the
authority or control of the ISP.
The challenge in ISPs and copyright is
balancing the copyright owners rights and
those of the internet user. ISPs are enablers
of internet access to the users. ISPs, how-
ever, must take down or disable infringing
content even if users may want to access it.
In taking down infringing content, will ISPs
be infringing on the users right of access to
The Constitution under Article 35 states
that every citizen has the right of access to
information held by the State and
by another person, required for
the exercise or protection of any
right or fundamental freedom.
The solution may not be so
straightforward. However,
one thing is certain: rights
can never be exercised in
absolution. It may lead to
contravention of others’
rights. This may give rise
to anarchy. Every right
has a corresponding
duty in order to bring
balance and peace.