Introduction

Digital technology has revolutionized the way copyright works are reproduced, accessed, communicated and distributed. For authors, performers and artists, the ability to exclude others from unauthorised access to their digitally constituted works has been crucial for their commercial profitability and viability. Digital copyright protection has therefore been informed by the need to protect copyright owners from infringement of their works in the virtual market, primarily on the internet.

In response to the technological advancements that have transformed the copyright sector, the Copyright (Amendment) Act of 2019 (the Amendments) came into force on 2^nd October 2019, effectively amending the Copyright Act, 2001(the Act). The principal objective of the Amendments is to align the Act with technological developments that have affected the exploitation and protection of copyright works in Kenya. The Amendments aim to ensure that authors of copyright works get value for their property in the digital environment. The changes in law follow similar approaches by developed jurisdictions such as Singapore and the United States, whose approach towards Intellectual Property has been always been proactive and responsive to technological changes.

Noteworthy under the Amendments are provisions on Internet Service Providers[1] (ISPs) liabilities and obligations, takedown procedures for copyright infringement, resale right of artists, establishment of a copyright tribunal, recognition of the rights of Persons With Disabilities (PWDs) in copyright protection as well as fair dealing provisions in relation to copyright works. This Article will however only seek to briefly highlight provisions under the Amendments relating to Internet Service Providers’ liabilities, with the aim of digital copyright protection.

Copyright Liabilities for ISPs

From their statutory definition, ISPs may be taken to include telecommunication operators offering internet services, social media platforms, online service portals, websites and blogs. Under the Amendments, ISPs are now obligated to:

• comply with the copyright conditions in relation to the access and distribution of the copyright material;
• refrain from involvement in content selection, modification or promotion during transmission;
• restrict access to copyright infringing content accessed under their platform;
• take down any copyright content within forty-eight (48) hours upon receipt of a takedown notice[2] from a copyright holder;
• provide information to investigative agencies on the identity of copyright-infringing subscribers;
• designate an agent or electronic address for the receipt of take down notices; and
• comply with the rules regarding updating of cache in conformity with generally accepted standards within the service sector.

The Amendments go ahead to make provisions on the limitation of liability of ISPs in copyright infringement. The limitations, commonly referred to as ‘safe harbor’ provisions, may be relied upon by ISPs where:

• they do not initiate the transmission of the copyright;
• they do not select the addressee of the content;
• they perform their functions in an automatic, technical manner without selection of materials;
• they do not interfere with the lawful use of technology to obtain information on the use of the copyright material;
• they do not have actual knowledge that the content or activity related to the material is infringing the rights of a third party;
• they are not aware of the facts or circumstances of the alleged copyright infringing activity unless the infringing nature of the material is apparent; and
• they remove or disable access of copyright infringing content upon receipt of a valid takedown notice.

ircumvention of technological protection measures

The Second Schedule of the Amendments provides for general exceptions and limitations to the exclusive rights on the nature of copyrights, which ISPs may rely on in limiting their copyright liability. Subject to acknowledgement of the author(s), copyright claims may be limited to not include;

1. the doing of acts deemed as copyright infringing by way of fair dealing for the purpose of scientific research, private use, criticism or review;
2. the doing of acts by way of parody, pastiche or caricature;
3. the right to quote;
4. any use made of a work for the purpose of judicial proceedings;
5. the reproduction and distribution of copies of an artistic work situated in a place where it can be viewed by the public;
6. the incidental inclusion of a copyright work in an artistic work, sound recording, audio visual work or broadcast; and
7. the reading or recitation in public or in a broadcast by one person of any reasonable extract from a published literary work if accompanied by a sufficient acknowledgement of the author.

Grey areas for ISPs under the Amendments

While efforts to digitize copyrights are appreciated, the Amendments present untenable liabilities on some of the provisions regarding ISPs as highlighted below:

• The practicality of ISPs in monitoring all content transmitted through their platforms to identify copyright infringing content;
• The potential of taking down legitimate content while trying to protect ISP liability in effect breaching the standards of freedom of expression by internet subscribers;
• The denial of the fundamental right of fair hearing for alleged copyright-infringers, against whom ISPs receive a takedown notice to remove content transmitted on their platforms;
• Lack of clarity on what ISPs are supposed to do in the event an alleged infringer, subject to a takedown notice, files a counter notice; and
• Lack of prescribed standards for how to adjudicate competing notices and the rights that parties have after counter notices are filed.

Conclusion

The Amendments ensure that Kenya conforms with international standards by taking into account the need for digital copyright protection in an environment where information is freely shared over virtual networks. ISPs are expected to dutifully comply with the Amendments failure to which they may be liable to offences punishable under the Act. The success of the digital copyright protection will be determined by the gradual implementation of the Amendments and the willingness by ISPs and other intermediaries to adhere to the law.