By Caroline Wanjiru
This post forms part one of a two part series focused on the Intellectual Property considerations in the Copyright Amendment Act. The IT considerations, focusing on digital rights will be addressed in a follow up series.
ISPs and Copyright
The Copyright Amendment Act (Amended Act) 2019 has brought in new provisions which have created new obligations and extended rights for some parties within the copyright practice in Kenya.
In the next few weeks, the CIPIT IP Team shall undertake a review of these new provisions in a series of blogs all aimed at informing, analyzing and probably providing a critique to the same. This week’s blog begins with looking at the provisions relating to the liability of the Internet Service Providers (ISPs) in Kenya.
From the onset, it is a matter of common notoriety now that copyright enforcement is an arduous task. It requires concerted effort from all players and 3rd parties as well. ISPs are 3rd parties who provide a vehicle through which the copyright owners can easily distribute their works and the users to freely enjoy the same. Section 2 of the Amended Act defines an ISP;
‘As a person providing information system services or access software that provides or enables computer access by multiple users to a computer server including connection for, the transmission or routing of data.’
Simply put an ISP is a company or entity that provides internet access to its subscribers. How this works is that the owner or holder of copyrighted material reduces it to a format which can be transmitted or carried through the ISP network. The aim is to distribute the works to those who have access to internet. Access of the copyrighted material can be free or paid service. Payment is typically to the owner or an authorized agent. Challenge within the copyright arena arises when the material that should be paid for is accessed for free. Such access would be unauthorized and infringing on the rights of the copyright holder. ISPs are enablers of access, authorized or unauthorized hence their inclusion in copyright enforcement.
ISPs and Internet Freedom
Based on their position, ISPs have the capacity to take down or disable access to sites which are considered to be providing access/accessing infringing materials. As is said, every coin has two, or three sides. So the associated question is, in taking down the content or disabling the content, will the ISP be infringing on anyone’s digital or access rights, limiting the user’s internet freedom? Where is the balance, if any? We shall address this with a post.
ISPs and the Law
From their role in the distribution of copyright works, ISPs can be enablers of infringement or can be the infringers depending on their role. Section 35A provides for scenarios where an ISP shall not be liable for infringement. These include where the ISP:
- If it only provides either automatic, intermediate or temporary transmission, routing or storage of content (subject to copyright) in its ordinary course of business on condition that:
- It does not initiate transmission
- it does not select the addressee/person receiving the content
- these functions are automated and technical such as not to select the material;
- does not promote the content or the material being transmitted.
-
For
the automatic, intermediate and temporary storage of content for
purposes making onward transmission of the data more efficient to
other recipients of the service upon their request on condition that
the ISP:
- does not modify the material;
- complies with conditions on access to the material;
- complies with rules regarding the updating the cache in conformity with generally accepted standards within the service sector;
- does not interfere with the lawful use of technology to obtain information on the use of the material;
- removes or disables access once it receives a takedown notice or where the original material has been deleted or access disabled on orders of a competent court or otherwise on obtaining knowledge of unlawful nature of the cached material.
Comment: The above places an obligation on the ISPs to ensure that they do not promote infringing materials under the guise of conducting business. This can be done partly by policing on the content or by requiring the internet content owners to indemnify the ISPs or exonerate them from liability should claims arise.
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