On 23rd February, 2022, the National Assembly passed the Copyright (Amendment) Bill, 2021(“the Bill”).
The Bill seeks to among others, set the percentages of revenue received by artistes or copyright holders and telecommunication operators from ring back tunes. Currently, artistes receive only 16 percent of revenue generated from the Skiza music platform. The Bill now proposes to have artistes receive 52% of the shared revenue while telecommunication operators receive 16% of the revenue.
The Bill also seeks to repeal sections 35B, 35C and 35D of the Copyright Act, 2001 (“the Act”).
Section 35B of the Act provides that a person whose rights have been infringed by content to which access is being offered by an Internet Service Provider (ISP) may request, by way of a takedown notice, that the ISP removes the infringing content. The section also provides for the procedure for service of takedown notices as well as the procedure to be followed once a takedown notice is served on an ISP. Further, the section provides for the liability of ISPs for failure to comply with a takedown notice after being duly served as well as liability for falsely or maliciously lodging a takedown notice.
Section 35C of the Act provides for the role of ISPs in relation to infringing content whose access is being offered by an ISP which are:
- to provide information to investigative agencies regarding the identity of the subscribers of their services suspected to be engaging in infringement of content on orders of the court upon application by a copyright owner whose rights have been the subject of a takedown notice;
- to designate an agent or electronic or other address for receiving takedown notices under its terms and conditions.
However, the above-mentioned roles do not include an obligation on an ISP to monitor the material transmitted, stored; or linked or to actively seek facts or circumstances indicative of infringing activity within its services.
Section 35D of the Act provides for the application for interim orders where a copyright holder has reasonable grounds to believe that their copyright is being or may be infringed by a person situated in or outside Kenya.
There were concerns that the section 35B of the Copyright Act caused ISPs to determine the legality or otherwise of content, thereby infringing on the freedom of expression; especially since ISPs would likely remove any content that was the subject of a takedown notice in order to protect themselves from liability.
However, we are of the opinion that amending this section to provide a longer period for the person responsible for making available the alleged infringing content (“alleged infringer”), to file a counter notice contesting the contents of a takedown notice; clearly providing the time within which an ISP was required to notify the alleged infringer of the take down notice; and deleting an ISP’s power to take down or disable access to any alleged infringing content, would have addressed those concerns. This is because the amendments would have provided a mandatory ADR mechanism before the parties were allowed to go to Court, as well as clearly providing that only the Court could have the power to determine the legality or otherwise of any content.
In addition to the above amendments, we are of the opinion that there is still need to provide more effective mechanisms to address online infringement of copyright in Kenya. For example, copyright holders could engage ISPs to come up with an online register through which legitimate works are verified and recorded. The register would enable copyright holders or even ISPs to search for infringing content using images or keywords. Thereafter, once determined to be infringing content by a Court, the ISPs could deny access to repeat offenders or even publish a register of repeat offenders. An example of such a register is the Amazon Brand Registry.
In addition, there have been concerns that repealing section 35C of the Copyright Act would eliminate intermediary immunity. However, we are of the opinion that section 35A of the Copyright Act still protects ISPs from liability as long as the ISPs comply with the requirements provided for under that section. These requirements include providing access to/transmitting content, routing or storage of content in an automatic manner without initiating the transmission, selection, modification or promotion of content, or selecting the addressee.
Further, there have been concerns that repealing section 35D of the Copyright Act would eliminate the opportunity for a complainant to seek judicial remedies since the section affirmed a copyright holder’s right to approach the High Court for judicial remedies. However, we are of the opinion that the right to seek judicial remedies for copyright infringement is entrenched both in the Act as well as in other pieces of legislation including the Civil Procedure Act, Cap 21 as well as the Rules.
The Bill now awaits presidential assent before coming into force.
We shall keep you updated on the progress of this matter.
The Bill can be found here
