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 3^rd parties as well. ISPs are 3^rd 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.

1. For damages arising from material stored on request as long as it:
   1. Does not have actual knowledge that the material is infringing on the rights of a 3^rd party
   2. Is not aware of the circumstances of the alleged infringement unless the same is apparent
   3. Receives a takedown notice and acts on it within 48 hours to disable or remove access to the alleged infringing content.

Comment: This section creates an automatic obligation for the ISPs to remove or disable access to any alleged infringing content within 48 hours of receipt of a takedown notice. This can be effected by either an internet shut down for that person or having the ISP police, scrutinize or otherwise monitor the person’s internet use to enable them disable the specific cache with the alleged infringing material. The ISP is not obligated to verify the veracity of the takedown notice, only to comply with it. This effect reminds the blogger of the formal judicial processes where a person is required to comply with a court order as long as they are aware of it whether or not they are aggrieved. The correctness of the order or any grievance with the order is not a ground or defense for non-compliance.

1. For damages incurred by anyone if the ISP refers or links its users to a webpage with infringing materials or facilitates infringing activity where the ISP does not have actual knowledge that the material is infringing or is not aware of the circumstances’ of the alleged infringing activity or where the same is not apparent or where it removes or disables access to, the reference or link to the infringing content.

Comment: This reprieve is similar to the one provided under 35 (5) of the Copyright Act where a person claiming infringement is not entitled to damages if at the time of infringement, the infringer did not know or had no reasonable ground to suspect that the work he was using was subject to copyright. However, the assertion or conclusion of infringement does not change. This means that the infringing actions remain infringement but due to the prevailing circumstances’, there would be no damages payable for any loss suffered.

In light of the nexus between ISPs, Internet Freedom and the law, the next post in the series will highlight the contention surrounding ISPs and takedown notices.