TELCOS PLOT TO SCUTTLE PIRACY BUSTING COPYRIGHT LAW

Kenyan telecommunications operators are pushing amendments to the Copyright Act, that would allow their internet users to continue accessing pirated content with no liability to the internet service provider(ISP).

Specifically, Sections 35B, 35C, and 35D of the Copyright Act, 2019, which importantly, require ISPs to remove or block pirated content from their networks upon notice.

In 2019, amendments were made to the Copyright Act to bring it up to international standards. One of the far reaching additions was the definition of an Internet Service Provider, and the provision for criminal breach of copyright over the internet using various technologies and platforms to illegally sell or share such protected material.

Section 35B and 35D provide for the procedure that the network or platform should follow to take down or prevent access to copyrighted material upon notice by the owner or rights holder. 35D grants the injured party to go to the High Court to enforce the take-down of the said content.

As a result, ISPs can now be held liable if people use their networks to access or to download or distribute copyrighted material illegally.

While this was a first in Copyright law for African countries, the issue of ISP liability has been well established in other countries most notably the US where the Digital Millennium Copyright Act (DMCA) provides them with a way out, the so-called safe harbor, if they were not aware of the infringement taking place on their networks, but acted within 48 hours to block access or bring down offending content, to escape liability.

According to Partners Against Piracy (PAP), an international advocacy group for content creators and creatives who hold intellectual property rights, Kenya is first among several African countries with widespread content piracy over the internet.

A survey of one popular pirated content site showed a total of 92 million visits from Ghana, Kenya, South Africa, Nigeria and Tanzania.

"With seven million visits, visits from IP addresses in Kenya represented the highest number of users of pirated content among the African territories identified during the piracy survey. With five million visits, South Africa came in second. Ghana had around 2,4 million, Nigeria had 2,3 million, and Tanzania 626 694."

Observers now point to telecom operators as the likely push behind the efforts to amend and water down the intermediary liability clauses in the Copyright Act.

Telcos have been against the enforcement of the liability clauses and have out rightly ignored takedown notices issued to them by owners of content or rights holders when content is illegally streamed on their networks

This however, PAP notes, leads to thousands of content creators exposed to piracy with an estimated Sh14.3bn lost in earnings to creatives.

PAP has asked parliament not to repeal the said sections as it threatens content creators intellectual property rights and infringe on their right to earn a livelihood.