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.

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.

WHATSAPP IRELAND APPEALS RECORD FINE IN EUROPEAN COURT

 

WhatsApp Ireland has filed appeals against the decision to sanction it a record Euros 225million fine by the Data Protection Commissioner last month for violations of users' privacy. The European arm of the messaging service filed both a judicial review application before the Irish High Court seeking to set aside the DPC's decision for want of legality, as well as a statutory appeal against the decision itself.

The DPC announced the fine on 20th August, 2021, after finding WhatsApp violated the European GDPR in the processing of both its users, as well as non-users data, and for sharing users' data with Facebook.
In the Judicial Review filing, WhatsApp seeks to quash the DPC decision for unconstitutionality citing the European Convention on Human Rights. It also claims it was denied fair procedure and equated the fine to a criminal sanction. The application will be heard inter-parties next month. WhatsApp has also appealed the decision on its merits in the Superior Court.

ILLEGAL PHONE TAPPING IMPERILS FRENCH INSIDER TRADING CASE

 

The French government's biggest insider trading case against two individuals teeters on the brink of collapse on claims of data privacy breach by the charged suspects. They accuse authorities of illegally accessing their private communications, authority which they say, should only be availed when national security is threatened. The Court of Justice of the European Union in a 15-judge bench is hearing submissions on whether the evidence relied upon by the French authorities in bringing the case against traders Alexis Kuperfis, and Lucien Selce, should be set aside as inadmissible as the same was illegally obtained. The authorities tapped burner phones used in the alleged market info tip-offs. "The court clarified last year that EU rules ban wide-scale measures forcing internet and phone operators to carry out 'the general and indiscriminate transmission or retention of traffic data and location data.' Such data should only be accessed in case of a “serious threat” to national security, it said

CHINA DATA PROTECTION LAW TO HOLD BIG TECH TO HIGHER STANDARDS THAN SMALL ENTERPRISES

 

China strongly signaled this week that its proposed data privacy law, the Personal Information Protection Act (PIPL) is likely to become law after August 20th when it is considered during the 30th sitting of its 2000-strong parliament which convenes between Aug 17-20. The 98th sitting of the Standing Committee of the National People's Congress chaired by Li Zhanshu, the Communist Party's No. 3, approved for consideration over a dozen draft laws among them the PIPL.

While it largely conforms to other data privacy legislations around the world, its articles on the handling of personal information by State organs, and the cross-border transfer of information are noteworthy. Specifically, China proposes to blacklist any third-party organization that breaches its citizens private information and to order that it no longer receive any personal data of individuals domiciled within China. It also proposes retaliatory reciprocity against countries that "discriminate" against China in the area of data protection.

Personal Information Protection Law of the People’s Republic of China (Draft)
Table of Contents

Chapter I: General Provisions
Chapter II: Personal Information Handling Rules 
Section I: Common Provisions
Section II: Rules for Handling Sensitive Personal Information
Section III: Specific Provisions on State Organs Handling Personal Information
Chapter III: Rules on the Cross-Border Provision of Personal Information
Chapter IV: Individuals’ Rights in Personal Information Handling Activities
Chapter V: Personal Information Handlers’ Duties
Chapter VI: Departments Fulfilling Personal Information Protection Duties and Responsibilities
Chapter VII: Legal Liability
Chapter VIII: Supplemental Provisions

DStv Unveils Targerted Packages for Pubs, Hotels and Offices

 

DStv has repackaged its offerings for its commercial segment customers to better meet the needs of their varied customers and clients.

"The packages are designed to connect commercial customers within different industry sectors like hotels, pubs and clubs, offices, guest houses and serviced apartments," Multichoice Kenya Managing Director, Nancy Matimu said during the revamp ceremony in Nairobi yesterday.

The packages target Hotels for staying customers which will be called DStv Stay, Pubs and Clubs (DStv Play), and Offices (DStv Work).

For example, DStv Work will beam into offices the latest news and headlines from across the world and will be in two offerings, DSTv Work Essential and Work Ultra.

DStv Play will provide various live sports and sports content for pubs and clubs patrons and will come in Basic, Essential and Ultra offerings.

For in-room entertainment, the DStv Stay package will also come in Basic, Essential and Ultra.

Multichoice has been repositioning itself to keep up with changing consumer trends and technology launching offerings across devices and technology platforms.

Safaricom officially receives Ethiopia Mobile License

 Safaricom and its consortium partners received their official license to roll out in the 100million people strong market and will be expected to begin setting up in the next few months.