In recent media reports here and here, Kenya Copyright Board (KECOBO) reveals that it has proposed draft legal provisions to deal with the liability of internet/online intermediaries. KECOBO Chief Legal Counsel (CLC) has been kind enough to share with this blogger a copy of the proposed draft legal provisions available here. KECOBO CLC has also indicated to this blogger that there are plans underway to hold a public forum in the coming months to discuss the draft provisions and receive comments from the public.
KECOBO’s draft provisions appear to adopt an approach that is a hybrid of two approaches namely the US approach in the Digital Millenium Copyright Act (DMCA) and the European approach in the E-commerce Directive. Therefore KECOBO’s draft provisions propose a limitation of intermediary liability for mere conduits, caching, hosting, and information location tools.
Traditionally, internet intermediaries have claimed that they play a mediating role between the authors of content and audiences in that they merely provide intermediary services to the authors and users and play no role in creating and managing content. The range of intermediary services include communications infrastructure; internet service providers (ISPs); website and database hosting; cloud-based services; information indexing, search, retrieval and display; blogging and social media platforms; online application platforms (app stores).
It is not disputed that that business models that provide data-driven intermediary services are key drivers of the digital economy. They not only provide employment in their own right but also support the growth of small and medium-sized businesses, private enterprise and public institutions by reducing the investment overheads for essential telecommunication and ICT services. Small and medium enterprises, which are the key drivers of a modern economy, owe their competitiveness to effective use of ICTs provided by intermediaries, whether as production technology, as information processing technology or as communication technology.
Copyright owners take a different view on the issue of online intermediary liability. Generally, they contend that online intermediaries should be treated by the law as electronic publishers and thus should be held liable for the infringing terabytes flowing through their servers. Readers of this blog will no doubt recall our report on the case of Bernsoft Interactive & 2 Ors v. Communications Authority of Kenya & 9 Ors Petition No. 600 of 2014 involving a constitutional petition which was filed by copyright owners seeking injunctive orders to compel 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.
In this case in which KECOBO is sued as a respondent, the copyright owners claim that ISPs such as Safaricom, Airtel, Jamii Telecom, Wananchi Group, Access Kenya, Liquid Telecom and Telkom Kenya are guilty of allowing their subscribers to use their internet networks to illegally acquire copyright works through sites such as wapkid (as pictured at the top of this blogpost). In this connection, it is alleged that the ISPs ought to be held liable for allowing 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.
This blogger invites readers to post their comments on KECOBO’s draft provisions. We will also communicate the date and venue of the planned public consultative forum.