As many readers may know, there are currently no provisions under the Laws of Kenya that specially address the issue of intermediary liability. There are no stated take down laws, policies or procedures. There is also no safe harbour for intermediaries or similar provisions limiting their liability. From an intellectual property (IP) perspective, it will also be recalled that Kenya has not ratified and fully implemented the WIPO 1996 Internet Treaties which many argue has left Kenyan works without adequate protection in the digital online environment.
It is against this backdrop that Kenya Copyright Board invited stakeholders to comment on draft proposals to amend the Copyright Act to address intermediary liability. So far, this blogger has seen the submissions made public by the Kenya Library and Information Services Consortium (KLISC) and those by Strathmore University’s Centre for Intellectual Property and Information Technology (CIPIT). The KLISC and CIPIT submissions are available here and here respectively. As for Safaricom’s views on intermediary liability, this blogger submits that certain inferences can be made from past conduct as well as existing provisions in their contracts with content service providers (CSPs) and rights holders.
KLISC submitted joint comments with EIFL (Electronic Information for Libraries). According to the librarians, while the amendments in general appear to properly balance the competing interests of rights holders, service providers, and the public, there are serious problems with two provisions: the requirement to disable access to the allegedly infringing material within 36 hours, and the imposition of harsh criminal and civil penalties just because the service provider does not disable access upon receiving a notice from a rights holder.
CIPIT’s submission raises several fundamental concerns with the proposed definitions for internet service providers (ISPs) and electronic copy. With regard to the ‘mere conduit’ liability, CIPIT proposes a narrower framing of the conditions under which the concerned content is transmitted by the ISP. For caching, CIPIT proposes that ISP be compelled to take all reasonable steps to expeditiously remove or disable access to cached copies. In addition to the takedown notice and order of a competent court, CIPIT proposes that the ISP should also be required to remove or disable access to cached copies upon obtaining knowledge of the unlawful nature of the cached material. With regard to the material storage limitation as with the mere conduit limitation, CIPIT proposes that the ISP must designate an agent to receive notifications of infringement and has provided through its services, including on its websites in locations accessible to the public, the name, address, phone number and e-mail of the agent.
CIPIT’s final comments are that there are no provisions for dealing with anonymous postings of infringing materials. In addition, CIPIT notes that the draft proposals do not address the “Right to be Forgotten”(recognized most recently in a European Court of Justice case in May 2014, involving Google as an ISP). The Kenyan law should explicitly endorse or deny such protection.
The views of Safaricom, a leading ISP in Kenya, are pretty clear: there must be a separation between infrastructure provision and content provision. In the case of John Boniface Maina v Safaricom Limited  eKLR, Safaricom’s position was that it is an infrastructure provider that enables rights owners and their licensees to avail their musical works to end users. In this connection, Safaricom claimed that it is the CSPs that must be licensed by the relevant collective management organisations (CMOs) to avail music on its “Skiza” portal. In this regard, Safaricom maintained that the CSPs using it’s infrastructure have made representations, warranties, indemnities to Safaricom therefore it is not possible for Safaricom to be held liable whether directly or indirectly for copyright infringement. The vacuum in the law on intermediaries has had an effect on Safaricom’s business so much so that this blogger has been informed that the telco has had to procure insurance to cover against the multitude of costs, penalties, fees, and expenses arising out of copyright infringement claims made against it in the recent past.