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Targeting ISPs would help curtail online piracy

Paul Kaindo

Online copyright piracy has been the fastest growing form of copyright infringement globally. This has been attributed to the rapid advancement in technology which has brought a myriad of challenges in the copyright industry.

Kenya has not been left behind in this crime wave. Online piracy refers to the unlawful copying and/or distribution of copyright protected material over the internet without authorisation from the copyright owner.

People have in the recent past been pirating copyright protected content ranging from music, television shows, movies, video games, eBooks, computer software and other digital contents without realising that they are committing a serious crime.

This form of crime is usually committed through communication channels provided by Internet Service Providers (ISPs). ISPs are companies that make it possible for people to communicate over the internet. They provide the means or channel of making content available to the public over the Internet.

Examples of ISPs in Kenya include ZUKU which is a brand under the Wananchi Group, Safaricom, Airtel and Telkom Kenya, which are the principal telecommunication companies in Kenya. Others are Faiba, which is a brand under Jamii Telecom, Access Kenya and Liquid Telecom, the former Kenya Data Networks.

These companies play an important role in ensuring that users communicate remotely through the internet. Without these ISPs, it would not be possible to access the internet. Whether roping in these companies to help in the fight against online piracy would achieve the desired results is yet to be tested in Kenya.

However, it has been argued that since they make it possible for copyright content to be available online, they should also be able to police it to ensure that such content is not pirated and that the content is not in itself an infringement of another person’s copyright.

As a general rule, liability for a wrongful act should be placed on the individual whose action, or inaction, was directly related to the wrongful act. However, it is possible for a person who contributed to the injury to be held liable for the act. ISPs often provide people with the means to make content available over the Internet to the public.

When a person misuses this resource, the ISP has a legal and moral duty to take action to prevent the misuse. If they fail to do so, they ought to be contributorily liable for the willful or negligent failure to take any active steps in preventing the abuse by its subscribers.

Another reason why liability should also fall on ISPs is that when a person abuses the privilege advanced to them by the ISP and violates the copyright laws, they should ideally be liable.

However, it would be hard to find the person who violated the law since most people will use mobile hand-held devices such as laptops, tablets or smart phones. On the other hand, many ISPs are corporate entities with fixed places of business and easy to find.

Thirdly, the infringers may lack financial resources to pay a substantial liability judgment when found guilty of online copyright infringement. Therefore, it would be ideal for copyright holders to target ISPs because they almost always have resources to pay the judgement debt.

The recently published Kenya Copyright (Amendment) Bill, 2017, which is on the committee stage in Parliament, proposes to bring on board ISPs in the fight against online copyright piracy. The Bill, however, states that ISPs will not have an obligation to monitor content or to investigate infringing activity within its services.

It proposes a notice-and-takedown procedure for ISPs to disable access to infringing material. An ISP will only be liable when it fails to pull down a copyright infringing content after a takedown notice has been issued to it by the copyright owner.

The Bill introduces “safe harbours”, which is a United States concept, and constitutes conduct that is exempt from liability and includes cases where an ISP only provides access to, transmits, routes or provides storage for infringing content in the ordinary course of business.

An ISP will not be liable in cases of automatic, intermediate and temporary storage of infringing content for efficient transmission. An ISP will also not be liable where infringing content is stored at the request of the recipient.

Where an ISP refers users to a webpage containing infringing content, they will not be liable. The European Union Data Protection Directive of 1995 attempted to set international safe harbour principles.

On the other hand the United States’ Digital Millennium Copyright Act of 1998 successfully made provisions for safe harbor and managed to tame digital piracy to some extent. Kenya is using the same approach in the Bill in an attempt to deal with the challenges brought about by the technological advancements.

While some people decry the harsh penalties proposed in the Kenya Copyright (Amendment) Bill, many industry players’ hope that the increased penalty will act as a deterrent and at least reduce, if not stop, the illicit web sharing and distribution of copyrighted music, movies, ebooks and other protected material in Kenya. — The writer is an Intellectual Property expert and legal counsel at the Kenya Copyright Board

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