This semester, we kick off a brand new course for final year undergraduate law students on e-commerce and the law. This course aims at explaining the legal challenges that are posed by electronic commerce. We shall also contextualise and problematise on-going legal/policy developments in Kenya to regulate electronic commerce. In this blogpost, we highlight some of the issues that arise in the context of copyright law.

Copyright is the term used to describe the area of intellectual property law that regulates the creation and use made of a range of cultural products such as books, songs, films, works of art and computer programs. Countries generally have laws to protect intellectual property for two main reasons. One is to give statutory expression to the moral and economic rights of creators in their creations and to the rights of the public in accessing those creations. The second is to promote creativity, and the dissemination and application of its results, and to encourage fair trade, which would contribute to economic and social development.

The development of copyright law in Kenya has been influenced by several key international treaties and conventions that date back to the 19th Century. The two most significant international influences for Kenya are the Berne Convention on the Protection of Literary and Artistic Works (1886) and the TRIPS Agreement (1994). In Kenya, the sources of copyright law are the Constitution of Kenya, the Copyright Act Cap 130 Law of Kenya and the Copyright Regulations. The Copyright Act establishes Kenya Copyright Board (KECOBO) which is a state corporation under the Office of the Attorney General and Department of Justice. KECOBO is responsible for the administration and enforcement of copyright law in Kenya. One of KECOBO’s key mandates is the licensing and supervision of collective management organisations (CMOs).

It is important to note that common uses of the Internet – posting, browsing, transmitting, downloading, and caching – may give rise to copyright infringement liability. Many separate, copyright-protected works may be involved in an Internet communication, and the rights of the owners of each of those works may be infringed by Internet use. Further, a single Internet use of a work may infringe various aspects of copyright. According to sections 26 and 32 of the Act, copyright protection grants authors and owners a bundle of exclusive rights which are both economic (reproduction, publication, communication to the public, adaptation, performance/display) as well as moral (paternity and integrity). Economic rights may be transferred either by License, Assignment from the Author to Owner, Licensee or Assignee. This brings us back to our focus: how should e-traders deal with posting, browsing, transmitting, downloading, framing, linking and caching in the context of copyright?

In the case of browsing, the user’s computer creates a temporary copy of the accessed Web site in the computer’s short term memory (RAM) and often creates a more permanent copy on the computer hard drive. This act alone may be viewed an infringement of the exclusive right of reproduction under copyright. Similarly, caching which occurs during browsing is the creation of copies of material in a computer memory to facilitate quick access to the work. Internet service providers and other Internet intermediaries often engage in caching to provide faster access to popular Internet materials. Exclusive rights under copyright may also be infringed when downloading data from the Internet since this involves making a copy of the information on the internet in the user’s computer hard drive or random access memory. The posting of a work on a Web site involves making a copy of the work, authorizing the communication of the work to the public, and authorizing the copying and reproduction inherent in the browsing and downloading of the work. Finally, linking (hyper-linking) and framing are popular methods of using third-party content available on the internet to enhance a webpage. Links between Web sites are the central feature of the Web’s user interface and provide the easy, point-and-click method of navigating from one Web site to another. The mere creation of a link does not in itself, infringe copyright. Similarly framing (an example of which can be seen from Google Images) is the practice of creating a frame or window within a webpage in which content of a different webpage can be displayed. If frames are used to present third party material from commercial sites, this immediately gives rise to issues of copyright infringement.

In the event of a copyright infringement claim, e-traders may be able to rely on fair dealing as a defence. Section 26 of the Act states that: “…the doing of any of those acts by way of fair dealing for the purposes of scientific research, private use, criticism or review, or the reporting of current events subject to acknowledgement of the source” is not covered by the exclusive rights under copyright. In assessing whether a dealing was fair, the Supreme Court in the ‘digital migration’ case set out the following criteria: (1) the purpose of the dealing; (2) the character of the dealing; (3) the amount of the dealing; (4) alternatives to the dealing; (5) the nature of the work; and (6) the effect of the dealing on the work. This test is now part of our law.

Depending on the law governing the e-trader’s online platform then an additional defence is available against copyright infringement. This defence is contained in the so-called ‘safe harbour provisions”. There are two models for limiting liability of e-traders for copyright infringement: the American model based on the Digital Millennium Copyright Act (DMCA) and the European model based on the European Union (EU) Directive on Copyright in the Information Society. Both models limit the liability of e-traders acting as the following: mere conduits, engaging in system(proxy) caching or acting as hosts. In Kenya, the Copyright (Amendment) Bill, 2017, which is currently pending in Parliament,  introduces a localised version of ‘safe harbours’. Borrowed from the American legal framework, these safe harbours constitute conduct by internet service providers (ISPs) such as e-traders that is exempt from liability. The first of these is where an ISP provides access to, transmits, routes or provides storage for infringing content in the ordinary course of business. Secondly, an ISP will be exempt from liability for infringement in cases of automatic, intermediate and temporary storage of infringing content for efficient transmission (system caching). The third exemption is where infringing content is stored at the request of the recipient and the fourth exemption covers instances where the ISP refers users to a webpage containing infringing content. These exemptions subsists as long as the ISPs comply with a set of exemptions outlined under each. Further the Bill proposes a two-step notice-and-takedown procedure for ISPs to disable access to allegedly infringing material. ISPs are to consider requests from persons claiming to be copyright owners and peruse the affidavits on ownership and on the attempts made to contact the websites hosting the infringing material. The impugned websites will have the right to file counter notices with the ISPs. The provision requires compliance with a takedown notice, malicious or not, within 48 hours.

Finally, it is important to note the provisions on Technological Protection Measures (TPMs). Section 35 treats the circumvention of any TPM as an infringement of copyright. These TPMs include passwords, encryption, watermarks and other self-help measures put in place by e-traders or third parties to protect their copyright content online.

Case Law Readings:

Alternative Media Limited v Safaricom Limited [2005] eKLR
Njeri Wangari & Another v Oxford University Press (E.A) Limited [2012] eKLR
John Boniface Maina v Safaricom Limited [2013] eKLR
Communications Commission of Kenya & 5 others v Royal Media Services Limited & 5 others [2014] eKLR