CONTENT PRODUCERS RAISE ALARM OVER MOVE TO LIFT COPYRIGHT PROTECTIONS

Partners Against Piracy (PAP) has issued a strong protest against plans to amend the Copyright Act, 2019, that will strike out key protection clauses for content creators and rights holders.

The advocacy group, made up of local Kenyan and international artistes, producers, writers among others raised issue with the proposed Copyright (Amendment) Bill, 2021 that is sponsored by Gladys Wanga, a member of the Kenyan parliament.

The proposed Bill will see the deletion of Sections 35B, 35C, and 35D that among others provisions make telecom providers liable for pirated content being streamed on their networks by their users.

To protect the intellectual property rights of the content creators or those licensed to broadcast the content, the Copyright Act requires telcos and other internet service providers (ISPs) to take down or block such content from their networks upon receipt of a takedown notice by the rights holders.

"Partners Against Piracy appeals to Honourable Wanga and the Twelfth Parliament, to please Remove the Repeal of Sections 35B, 35C and 35D from the Copyright (Amendment) Bill 2021, to Avoid further Losses to the Creative Industry and the Government," a statement read

"After all, the Creative Industry has Suffered for Decades from the Unfair Competition from Piracy, so now Deserves better Protection, especially to Recover from COVID-19."

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.

In Kenya, this is likely to take a more consequential path once social media platforms such as Facebook, Twitter, YouTube, and WhatsApp are brought under the radar.

In the US and Europe, they also fall under the same liability framework as ISPs and are required to obey take-down notices as well.

Jurisprudence abroad such as that coming from European Court of Justice has already established that certain activities such as online streaming fall under communications to the public and when there is unauthorized reproduction or rebroadcasting of the same, copyright infringement can be found.

Both the US and Europe do online broadcasts/streams as well as coverage of big live sporting events such as Premier League soccer, Formula 1, La Liga, Athletics, and so on.

There is concern that this right of communication to the public is not sufficiently explained and thus, insufficiently protected in Kenyan law.

In Europe for instance, notorious site ThePirateBay, has been found liable for violating copyright even if it does not post the content itself, as it has argued. But the ECJ has found that the site facilitates the unauthorized sharing and distribution of copyrighted content and thus should be held responsible.

"Instead of Repealing these important Provisions, our Parliament should rather consider Changes to make the Law clearer and more effective, in full co-operation with the ISPs, thus ensuring the Sustainability of the Kenya Creative Industry and the Safety of our Country from such Crimes," PAP said.