Test Case on Liability for Online Copyright Infringement: Music Industry Players Sue ISPs, Telcos and Government

sauti sol sura yako

This blogger has recently come across the case of Bernsoft Interactive & 2 Ors v. Communications Authority of Kenya & 9 Ors Petition No. 600 of 2014, a recently filed constitutional petition seeking injunctive orders to compel internet service providers (ISPs) in Kenya to block websites engaged in piracy and declaratory orders that the State has failed in its constitutional and legal obligations to protect the intellectual property rights of Kenyans. The state organs that are targetted in this Petition including the telecommunications regulator, Communications Authority of Kenya; the copyright office, Kenya Copyright Board and the principal legal advisor to the Government, the Office of the Attorney General. A copy of the petition is available in .pdf here.

The major ISPs (in terms of the number of subscribers in Kenya) have all been enjoined in the suit including: Safaricom, Airtel, Jamii Telecom, Wananchi Group, Access Kenya, Liquid Telecom and Telkom Kenya.

The petitioners cite the infamous site: http://www.wapkid.com which allows users to illegally download sound recordings and audio-visual works online. The ISPs are accused of allowing its subscribers to use its internet networks to illegally acquire copyright works through sites such as wapkid. In this connection, it is alleged that the ISPs allow the transmission in digital form, these copyright protected music through their networks and into, and out of, the personal computers, phones and various gadgets that are used for online copyright piracy.

wapkid sauti sol

To illustrate its claims, the Petition submits into evidence the above screenshot of a Wapkid page linking to the location where one of the Petitioner’s members, Sauti Sol’s musical work known as “Sura Yako” is hosted. Through the “premium” or “free” options on the wapkid site, the user can download the unauthorized copy of Sauti Sol’s audiovisual work to his/her computer or phone or tablet for unlimited viewing or further distribution.

The matter came up for hearing before High Court Justice Lenaola earlier this month.

This blogger commends the petitioners for their efforts and will be closely following the developments in this case.

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