Tag Archives: Copyright

DIGITAL RIGHTS IMPLICATIONS OF THE COPYRIGHT (AMENDMENT) ACT (2019)

05 Wednesday Feb 2020

Posted by in Access to Information, Copyright, Intellectual Property

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By Godana Galma

INTRODUCTION

The Copyright (Amendment) Act (2019) (the Act) introduced a Notice and Takedown (NTD) regime in the country’s legal system. Most jurisdictions have adopted NTD as the legal standard to address copyright infringement within cyberspace.[1] This blogger commends the Act for addressing the interests of copyright holders with regard to online infringement. However, apart from copyright, there are other rights that are affected by the structure set out in the Act.

While previous posts relating to the Act have dealt primarily with Intellectual Property considerations, this piece will attempt to highlight both the direct and indirect implications of the Act on digital rights. This analysis will be used to formulate recommendations on how to achieve a balance between copyright and digital rights.

DIGITAL RIGHTS

RIGHT OF ACCESS TO INFORMATION

The right to access information enables citizens to obtain information held by state agencies. In some instances, it extends to private persons. It is based on the premise that governments hold information not for themselves but on behalf of the public. Information-access laws foster transparency and accountability in decision making allowing citizens to participate in governance.[2]

In Kenya, this right is enshrined in Article 35(1) of the Constitution of Kenya (2010)[3] and the Access to Information Act (2016).[4]

This blogger opines that the above right is directly limited by Section 35B (5) which states,

“An Internet Service Provider (ISP) shall disable access to the material within forty eight business hours unless it receives a counter notice fulfilling the requirements set out for a takedown notice and contesting the contents of the takedown notice.”

When an ISP complies with a takedown notice, a number of parties are affected. They are: the person issuing the notice, the ISP, the content publisher and other internet users who want to view the content.

This provision recognizes the interests of content publishers by implicitly providing for the remedy of issuance of a counter notice.[5] However, it fails to provide mechanisms through which content can be reinstated.  In so doing, it ignores the interests of other internet users who may want to access the content. Once a takedown notice is implemented, such individuals have no recourse whether or not actual infringement is upheld. To the extent that there is no restorative mechanism, the NTD structure limits the right of access to information.

In contrast, the United States’ Digital Millennium Copyright Act (1998) recognizes the information-access rights of these other users and providing an elaborate structure through which content may be restored by ISPs.[6]

Additionally, there is no mandate for the Kenya Copyright Board or ISPs to maintain records or a repository regarding NTDs. Availing such information is important not only for users but also for the general public’s right of access to information.[7]

RIGHT TO FREEDOM OF EXPRESSION

Freedom of expression is the right to communicate or express ideas, opinions or beliefs through any media without restraint.[8] This right protects an individual’s autonomy to form his/her own worldview from unjustified censorship.[9] Free speech is constitutionally recognized in Article 33.

This blogger contends that the NTD structure has an indirect effect on the freedom of expression. The framing of certain provisions in the Act promote a culture of censorship.

 Section 35A (1) (b) (v) provides,

“An ISP Provider shall not be liable for infringement…so long as the ISP removes or disables access once it receives a takedown notice…”  

This provision conditions the grant of safe harbor[10] on compliance with takedown notices.Under the Act, an ISP has a maximum of 48 hours to comply with takedown requests.[11] Section 35B (6) further states,

 “An ISP which fails to take down or disable access when it receives a takedown notice shall be fully liable for any loss or damages resulting from non-compliance to a takedown notice without a valid justification.”

While this section gives ISPs a defense to non-compliance, it fails to define what constitutes ‘valid justification.’ Section 35B (10) further provides,

“An ISP Provider shall not be liable for wrongful takedown in response to a valid takedown notice.”

While ISPs face severe criminal sanctions for failure to takedown content, they enjoy immunity against wrongful takedown.

These provisions, when read together, incentivize ISPs to act in a certain manner. First, they condition safe harbor on compliance with takedown notices. Secondly, they give ISPs an extremely short window within which to comply with notices. Lastly, they grant ISPs protection against liability arising out of wrongful takedown. This deliberate framing of these provisions places ISPs in a precarious position. ISPs are forced to weigh the immediate danger of losing their safe harbor against the perceivably lesser threat of upsetting their users.

Thus, there is a general propensity for ISPs to lean on the side of caution and censor the content in question regardless of whether actual infringement has occurred.  While the Act does not explicitly impede free speech, it deliberately promotes a culture of censorship within the conduits of such speech. This is what this blogger refers to as the indirect effect on free speech.

RIGHT TO PRIVACY

The right to privacy is an individual’s right against undue intrusion into fundamental personal matters by public or non-public bodies. Privacy protects us from having information on personal matters unduly publicized or revealed.[12] The digital right to privacy has come under focus in light of the invasive culture pervading the information age. The right to privacy is enshrined in Article 31 of the Constitution.[13]

While privacy is the foundation of a number of individual freedoms, perhaps its most crucial element in modern times is the protection of personal data.[14] In this regard, Parliament passed the Data Protection Act (2019) which provides the legal and institutional mechanism for the protection of personal data.

As with free speech, the Act does not expressly set out to limit the right to privacy. However, the particular wording in certain provisions may indirectly affect the privacy rights of users. Section 35A (1) (c) (ii) states,

“An ISP shall not be liable for damages arising from material stored at the request of the recipient of the services, as long as it is not aware of the facts or circumstances from which the allegedly infringing activity or infringing nature of the material is not apparent”

This blogger pays particular emphasis to this provision as it imposes liability upon ISPs where the infringing nature of the material is ‘apparent.’ The particular wording of this provision can be said to impose a kind of ‘constructive knowledge’[15] obligation on ISPs.[16]

As private entities, ISPs should not be tasked with public enforcement roles.[17] They cannot be expected to determine whether content on their platform is actually infringing as this constitutes a judicial role. Imposing such duties may force them to aggressively police their servers for any sign of infringement. The privacy implications of this scenario are apparent (no pun intended).

In such instances, conducting a surveillance on the activity of users may inadvertently reveal a user’s personal information such as identity and location data.[18] Therefore, by imposing public roles on ISPs, the Act may indirectly infringe on the privacy rights of users.

RECOMMENDATIONS

The Acthas to a great deal, addressed the plight of copyright holders in terms of protecting their works in the digital sphere. However, in so doing, it has directly and indirectly affected other rights of content publishers and other internet users. Drawing from this analysis, this blogger makes certain recommendations.

First, there is need for fundamental reforms to the NTD structure and to develop a framework that embodies interests of all concerned parties.  Rather than incentivizing ISPs to protect themselves, the Act can achieve a degree of balance by imposing correlating duties to protect the interests of other parties i.e. privacy and information-access. This framework may also relieve ISPs of public roles such as the aforementioned constructive knowledge obligations. Such reforms will ensure that ISPs aren’t encouraged to infringe on the rights of other parties in the name of compliance.

This blogger also calls for greater transparency in the takedown notice process. An ideal framework should integrate the interests of other internet users by providing an elaborate process through which content can be restored. Additionally, this piece suggests the development of a process for recognition of a representative body for ISPs. This body should be tasked with a number of obligations such as keeping records. This blogger draws this suggestion from the South African Electronic Communications and Transactions Act (2002) which lays down a clear procedure for recognition of a representative body.[19] Whilst the Act alludes to the recognition of an umbrella association,[20] it does not explicitly define its roles nor the conditions for its recognition. Such a procedure would go a long way in promoting transparency and accountability in the takedown process.

(An upcoming post will focus on the place of automation and the effects of utilizing robotic processes in implementing takedown notices.)

[1] The NTD model introduced by the Digital Millenium Copyright Act (1998) has largely become the standard with nations adopting its basic structure. It was adopted in Europe through the EU’s Electronic Commerce Directive (2000).

[2] P. Gathu, H. Kahindi, ‘Access to Information in Kenya’ Tranparency International,Adili, Issue 155 at https://tikenya.org/wp-content/uploads/2017/06/adili-155-access-to-information-in-kenya.pdf

[3] Article 35 provides (1) Every citizen has the right of access to (a) information held by the State; and (b) Information held by another person and required for the exercise or protection of any right or fundamental freedom.

[4] This Act provides a framework to facilitate disclosure of information held by public entities and private bodies. For instance an individual can seek to access details regarding the government’s revenues and spending which they can obtain from the Budget Documents availed by the National Treasury.

[5] The right to issue a counter notice, though not directly stated, is implied in Section 35B (5) of the Act

[6] S.512, Digital Millenium Copyright Act (1998)

[7] Article 19, ‘Kenya: Copyright (Amendment) Bill 2017’ at https://www.article19.org/resources/kenya-copyright-amendment-bill-2017/

[8] Duhaime’s  Law Dictionary, ‘Freedom of Expression’ at http://www.duhaime.org/LegalDictionary/F/FreedomofExpression.aspx

[9] A. Barak, ‘Freedom of Expression and its Limitations’ Kesher / קשר, No. 8, 1990, pp. 4e–11e at https://www.jstor.org/stable/23902900

[10] A safe harbor is a provision in legislation that provides protection from liability or penalties upon fulfillment of certain conditions. Safe harbor provisions are used to protect parties who act in good faith but violate the law on technicalities beyond their reasonable control.

[11] Section 35B (5), Copyright (Amendment) Act 2019

[12] ‘Right to Privacy’ Wex Definitions, Legal Information Institute at https://www.law.cornell.edu/wex/right_to_privacy

[13] Article 31 of the Constitution provides, “Every person has the right to privacy, which includes the right not to have—(a) their person, home or property searched;(b) their possessions seized;(c) information relating to their family or private affairs unnecessarily required or revealed; or(d) the privacy of their communications infringed.”

[14] Excerpt from B. Rossler, ‘The Value of Privacy’ (Cambridge: Polity Press 2005) as cited by Justice Odunga in ANM & another v FPA & another [2019] eKLR at http://kenyalaw.org/caselaw/cases/view/174597/

[15] Constructive knowledge is a legal term for information that a party is presumed by law to have and which is obtainable by reasonable inquiry.

[16] ILP Abrogados ‘Actual Knowledge, Constructive Knowledge, Imputed Knowledge and To the Seller´s Knowledge in a Purchase Agreement’ at https://www.ilpabogados.com/en/actual-knowledge-constructive-knowledge-imputed-knowledge-and-to-the-sellers-knowledge-in-a-purchase-agreement/

[17] ISPs are mere private entities offering services to their clients for consideration. As such, they should not be burdened with the obligation to enforce copyright. This mandate falls within the purview of public entities such as KECOBO.

[18] Content recognition and filtering tools generally rely on fingerprinting and watermarking technology, which entail ‘real-time’ monitoring and identification of infringing material before blocking access. These tools conduct a surveillance of network packets thereby revealing personal information. See https://www.tandfonline.com/doi/full/10.1080/13600869.2018.1475906?af=R

[19] Section 71, Electronic Communications and Transactions Act (No. 25 of 2002)

[20] Section 35B (2) (h) Copyright (Amendment) Act (2019)

CAN I GET AWAY WITH THIS? FAIR USE AND FAIR DEALING OF COPYRIGHTED WORK

27 Wednesday Nov 2019

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By Cynthia Nzuki

“When you have wit of your own, it’s a pleasure to credit other people for theirs.”

― Criss Jami, Killosophy

Introduction

Fair use and fair dealing are exceptions applicable to the use of copyrighted works. These exceptions allow third party use of copyrighted work without the owner’s permission without raising copyright infringement claims. In our continuing series of reviewing the Copyright Amendment Act, 2019 (the Amendment Act) and its provisions, this week we focus on the limitations and exceptions of copyright. The Second Schedule which provides for the limitations and exceptions to rights issued by copyright protection. In the Copyright Act, No. 12 of 2001, these were housed under section 26.

In this piece we will focus on fair dealing or fair use as exceptions to copyright protection.

Is Fair Use different from Fair Dealing?

These two concepts are similar but differ slightly.  Fair dealing on one hand is an exception to copyright infringement laid out in the copyright statutes of common law jurisdictions such as Kenya.   Here the statutes spell out the concept and where  a work is copied for a purpose other than one or more of the statutorily provided ( fair dealing purposes), the copying cannot be a fair dealing regardless of the copier’s possibly beneficial or meritorious goal.[1]

Fair use on the other hand is a limitation on rights in works of authorship granted by copyright law; this doctrine is mainly practiced under U.S. copyright law. The fair use provisions in the U.S. copyright law prescribe four factors that must be included in a fairness determination which are: 

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ARTISTS DO NOT LIVE ON THIN AIR: THE COPYRIGHT AMENDMENT ACT ON ARTISTS’ RESALE RIGHT

13 Wednesday Nov 2019

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By Cynthia Nzuki

Introduction

“Artists do not live on thin air. And because they enrich the world with their art, they should be protected. So it is fair that those who trade in their works pay them a share of what they earn. That is the purpose of the resale right: to share all forms of enrichment.” – Ousmane Sow, Senegal.

The Copyright (Amendment) Act, 20191 has brought with it many changes to the old Copyright Act, no.12 of 2001. In our CIPIT Blog we continue to provide insights on the amendments and opening the discussions on the same. The Amendment has introduced the Artist Resale Right, under section 26D. Briefly, this section gives artists the right to receive monetary compensation upon resale of their artwork, in the form of royalties. In this piece, the aim is to highlight what the law provides for; the importance of this section; how the section is to be implemented and challenges likely to be faced in the implementation of this law.

Artist Resale Right (ARR)

AAR is an extension of the IPRs extended to artists. Section 2 of the Amendment Act defines resale royalty right as the right of an artist or a group of artists or successors to receive resale royalty on commercial resale of an artwork. The ARR entitles visual artists and their heirs to retain an interest in all successive commercial re-sales of their artwork and receive a portion of the selling price.2

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Internet Service Providers (ISPs) and Copyright in Kenya: Commentary on the Copyright Amendment Act 2019

23 Wednesday Oct 2019

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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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Internet Service Providers (ISPs) and Copyright in Kenya: Commentary on the Copyright Amendment Act 2019

18 Friday Oct 2019

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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 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:

  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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Mobile Innovation as the Cornerstone of Socio-economic Development in Kenya

17 Monday Apr 2017

Posted by in openAIR

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Over the past few years, Kenya’s innovation scene has come to the limelight, resulting in some naming the country as the technology hub of Africa. Some of the factors that have led to this acclaim are the growing number of shared working spaces, young technology enthusiasts, incubators where developers are mentored and trained, and a craze for mobile application development. The Open AIR team in Kenya- comprised of Dr. Isaac Rutenberg, Victor Nzomo, Louisa Matu-Mureithi and myself, is conducting research on mobile innovation in Kenya. As a researcher on the team, I am helping to conduct research in the case study entitled “Open Collaborative Models of Mobile Tech Innovation in Kenya.”

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Draft National Music Bill: Touted Solution to Artists’ Royalty Woes in Kenya

02 Friday Dec 2016

Posted by in Collective Management Organisations, Copyright

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Photo credit: Julian Manjahi

As alluded to in a previous blogpost here, the Draft National Music Bill 2016 has been touted as a proposed solution to the payment of artists’ royalties in Kenya, in light of the recent issues raised about the constitutionality of section 30A of the Copyright Act. The back and forth regarding the payment of royalties from platforms such as Skiza and subsequent music platforms that may be created, might be found in the Draft National Music Bill. The Bill has been put forward by the Permanent Presidential Music Commission (PPMC) and was published for public comment in June 2016.

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Enacting a Performers Protection Act in Kenya: Possible Solution in Post-Beijing Treaty Era

25 Friday Nov 2016

Posted by in CIPIT Insights, Collective Management Organisations, Copyright

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Following a previous blogpost here on the constitutionality of s30A of the Copyright Act and the role of CMOs, this blogger will now consider whether it would be worthwhile for Kenya to enact a Performance Protection Act encompassing the intellectual property rights proposed for audiovisual performers in the Beijing Treaty (when it comes into force; that is, once 30 eligible states have ratified the Treaty). It would be worthwhile to mention that Kenya signed the Treaty on the 26th of June 2012, although she is yet to ratify or accede to the Treaty.

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Listening to the Skiza Tunes Millions: Section 30A of the Copyright Act Unconstitutional and Role of Collecting Societies

22 Tuesday Nov 2016

Posted by in CIPIT Insights, Collective Management Organisations, Copyright

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Skiza or “sikiza” is the Kiswahili word for listen or pay attention. Skiza Tunes is a caller ring back tone service run by local mobile network operator Safaricom. Since the platform provides Safaricom subscribers with access to caller ring back tunes this service falls within the scope of copyright licensing. The licensing of and collection of royalties from Skiza has been the subject of several court battles since the introduction of s30A of the Copyright Act through the Statute Law Miscellaneous Amendments Act of 2012. This section provides for the right to a single equitable remuneration for the use of sound recordings and audio-visual works to be licensed directly by two collective management organisations (CMOs) namely PRiSK (Performers Rights Society of Kenya) and KAMP (Kenya Association of Music Producers).

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Oh, the Irony: Using Copyright to Take Down CopyrightX Lecture on Copyright

16 Tuesday Feb 2016

Posted by in CIPIT Insights, Copyright

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William Terry Fisher CopyrightX Lecture 3 Part 3 Subject Matter of Copyright Music Harvard Law Sony Music Entertainment

To My CopyrightX Class,

You will recall that only a few hours ago today, we covered the CopyrightX Week 3 Lectures on The Subject Matter of Copyright, including the Lecture on Copyright in Music captioned in the screenshot above. I reckon the full extent of the irony in the current impasse between Sony Music Entertainment (SME), YouTube and our beloved Terry Fisher will become much clearer to you once we cover “Fair Use” in Lecture 9 of the CopyrightX course. To add to the irony, for those of you that had NOT gone through this Week 3 Lecture video, the option of watching it on YouTube is no longer available – thanks to (Sony’s abuse of) copyright.

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