The Copyright (Amendment) Bill, 2017: A welcome relief to copyright holders in Kenya

published on September 11, 2018

The current Copyright law in Kenya was enacted at a time when only 0.62% of Kenyans had internet access. Therefore, the drafters of the current law may not have found it important to make comprehensive provisions to prevent copyrighted materials from being illegally accessed and transmitted over the internet. Currently 26% of Kenyans have access internet. Therefore, there has arisen the need to amend the current law so as to provide for better protection of copyrighted work being transmitted via the internet, hence the proposed amendments to the current law.

Copyright in Kenya is protected under the Copyright Act, 2001 (the “Act”). The Act establishes the Kenya Copyright Board (KECOBO), whose main mandate is to ensure the protection of all literary works, musical works, artistic works, audio-visual works, sound recordings and broadcasts eligible for protection under the Act.

The Act was enacted in 2001 but came into force in 2003. At the time of enactment of the Act, internet coverage in Kenya was at 0.62%¹, therefore, the drafters of the Act may not have found it important to make comprehensive provisions to protect copyrighted materials being transmitted or accessed over the internet from illegal access. However, now that internet access has grown to 26%², it is important to ensure that the provisions of the Act reflect of this change.

The Copyright (Amendment) Bill, 2017 (the “Bill”) seeks to do this by recognizing the important role played by Internet Service Providers (ISPs) with regard to providing internet access as well as transmission avenues for information. The Bill heavily borrows from the Digital Millennium Copyright Act (DMCA), a statute enacted in the United States. The DMCA, though loved and hated in equal measure, been quite successful in protecting copyrighted work from being illegally accessed or transmitted over the internet.

The Bill obliges ISPs to take down or restrict access to any copyright infringing content, within a period of 48 hours after a receipt of any request (to be done a specified manner) from any copyright holder whose right has been infringed by the transmission or access. Failure to take down or restrict access to any copyright infringing content, after receipt of sufficient notice, is an offence which may lead to a fine or even imprisonment.

Further, due to the hurdles KECOBO has faced in the past with regard to identification of individuals transmitting or accessing copyright infringing content via the internet, the Bill also requires ISPs to provide investigation agencies with details of their subscribers suspected of transmitting or accessing infringing copyrighted materials.

The drafters of the Bill are also alive to the fact that ISPs may not necessarily have control over the content transmitted through their systems by their subscribers. Therefore, the Bill excludes the ISPs from liability with regard to transmission of any copyright infringing content through their systems so long as the ISPs:

do not initiate the transmission;
do not select the addressee;
perform the functions in an automatic, technical manner without selection of the material;
do not modify the material contained in the transmission;
do not in any way promote the content or material being transmitted;
does not modify the material;
comply with conditions on access to the material;
comply with rules regarding the updating the cache inconformity with generally accepted standards within the service sector;
do not interfere with the lawful use of technology to obtain information on the use of the material;
do not have actual knowledge that the content or activity related to the material is infringing the rights of a third party; and
remove or disable access to, the reference or link to the content or the infringing activity after being informed that the content or the activity infringes rights of a person³.

The Bill, if enacted, will go a long way in enhancing the protection of all copyrighted work since KECOBO will have the much needed assistance of the ISPs. The Bill is definitely a welcome relief to all copyright holders in Kenya.

It is, however, important to note that since the Bill is still being debated in Parliament, the above stated provisions are subject to any changes proposed by the legislators.

This article first appeared on the website of the Intellectual Property and Entertainment Law Committee of the Legal Practice Division of the International Bar Association, and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.

¹This information is from a report published by the Telecommunication Development Sector (ITU-D) on the percentage of individuals around the world with internet access.
² As above.
³The Copyright (Amendment) Bill, 2017