By Caroline Wanjiru

This post forms part 2 of our series 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 Take Down Notices

Section 35B covers take down notices, their form, content, addressees etc. A take down notice is a request to an ISP by a copyright holder (complainant) to remove infringing content.

1. The take down notice shall:

1. Be in writing and addressed to the ISP or their agent.
2. Contain the name and address of the complainant.
3. Signed by or for the complainant.
4. Contain specific details of the copyrighted works subject of infringement or which is to be removed.
5. Identify the rights being infringed, for instance the broadcast, production rights etc.
6. Set out the details of the content to be taken down and the location of this content.
7. Be accompanied by a sworn statement attesting to the ownership of the content, validity of the rights under e) above, good faith on the complainant and the efforts (albeit unsuccessful attempts) made to the entities responsible for making the content available remove the content; and
8. be copied to the Board Communication Authority and the recognized ISP umbrella body.

Comment: Conspicuously missing is a requirement to include the alleged infringer (who is the ISP subscriber hence the addressing of the notice to the ISP) in the notice to take down. Such inclusion would notify and provide an alleged infringer of the notice and the option to ‘challenge’ a take-down notice issued to their ISP. There exists a relationship between the ISP and their subscribers contractual or otherwise. The obligation to notify the subscriber, if any, shifts to the ISP (see below). It is not clear as to why such a requirement would be excluded yet the requirement of a sworn statement by the complainant would be presumptive that they have attempted to reach the alleged infringer to remove the infringing content. Would the subscriber not be entitled to demand to be heard before the notice is effected? If yes, at what point would they be heard yet the notice is to be effected within 48 hours? Article 47 of the Constitution of Kenya provides that every person has a right to fair administrative action, this right includes the right to be heard.

1. A take down notice will be deemed delivered
   1. Next business day following physical delivery at an ISP’s registered office.
   2. 2 days after the day post if by registered post.
   3. Immediately if sent by electronically to a designated ISP address.

Comment: This provision has serious implication for the ISPs as it dictates when the 48 hours of compliance starts running. Where an ISP has provided a designated address, time starts running immediately a complainant sends it. It is not clear what would happen if there is delivery failure, if it is sent on a day that the ISP is closed for business or is even intercepted by a third party. While this blogger appreciates the fact that electronic transmission is instant, she acknowledges that there are circumstances that may interfere with the ISPs ability to receive the electronic notification. Legislating on time of delivery elevates time to a statutory requirement which carries weighty consequences. Time is truly of essence. However, having such a statutory requirement is an open invitation to breach. This is best left to the industry to regulate. The Board in charge of regulating ISPs may issue policy directions on the same therefore introducing implementation flexibilities.

1. An ISP shall upon receipt of a valid take down notice, notify the person responsible for making the infringing content available and provide them with a copy as soon as is practicable.

Comment: This provision is vague, yet its content creates a duty for the ISP. The mandatory requirement, albeit on their cost, for the ISP to find or establish mechanisms within which to ‘notify’ an alleged infringer that they have received a takedown notice from the complainant. It’s unclear if the notification should be in the same manner as received from the complainant. For instance, if the takedown notice is received electronically, can the ISP notify the alleged infringer by mail? The latter would mean that time is substantially altered. Yet it is a possibility.

The notification should be immediate or as soon as is practicable. In light of subsection 5 which mandates an ISP to take down content within 48 hours, what is immediate? What takes precedence? Taking down the content or serving the notice on an alleged infringer? If this should be as soon as practicable, whose practicality is it? The complainant whose interest is to have the content taken down; the ISP whose primary interest would be first to serve their clients, must act within 48hours and disable access to the content; or the alleged infringer whose interest is to have the content online at all time and who may be benefiting economically from the content, who may require ‘reasonable’ time to file a counter notice? Lastly, if it is the ISP’s practicability, can they take down the content i.e. comply with the law and then serve notice later? The option of having the notice sent ‘as soon as is practical is ambiguous capable of more than one interpretation.

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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 3^rd parties as well. ISPs are 3^rd 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:

1. 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:

1. It does not initiate transmission
2. it does not select the addressee/person receiving the content
3. these functions are automated and technical such as not to select the material;
4. does not promote the content or the material being transmitted.
5. 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:
   1. does not modify the material;
   2. complies with conditions on access to the material;
   3. complies with rules regarding the updating the cache in conformity with generally accepted standards within the service sector;
   4. does not interfere with the lawful use of technology to obtain information on the use of the material;
   5. 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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