In an earlier post here, this blogger discussed a set of draft amendments published by Kenya Copyright Board (KECOBO) for public comments on the subject of internet service providers (ISPs) and web blocking measures in cases of online copyright infringements in Kenya. Subsequently this blogger discussed here several comments submitted to KECOBO on the draft ISP provisions.
This week, KECOBO has published a revised set of draft amendments on ISP liability available here. KECOBO is once again requesting the public to give comments on these ISP provisions through the email account: firstname.lastname@example.org. In this regard, KECOBO has confirmed that it shall convene a consultative public forum on February 11th 2016 at the Auditorium of NHIF Building starting at 8:00am.
This blogpost is a commentary of the key changes in the revised draft ISP provisions from KECOBO.
The definition of ISP under Section 2 of the Act has been greatly improved by widening the scope of information system services. The section also includes definitions of “information system” and information system services” which were lacking in the earlier draft.
With regard to ‘mere conduit’ liability, a new addition is that an ISP shall not be liable if it does not in any way promote the content or material being transmitted. With regard to ‘cache copies’, an ISP is required to remove or disable access to cached copies upon obtaining knowledge of the unlawful nature of the cached material in addition to instances where there is a take-down notice and order of a competent court.
The most significant change in the ISP provisions is the section on take-down provisions. The revised draft proposes a notice, counter-notice and takedown regime. Additional requirements to be included in the draft for takedown notices include:
setting out the content sought to be removed plus details of where the content is contained and attaching a statement declaring and attesting to validity of claim, good faith and any efforts to have entities responsible for making the content available to remove the content. The revised draft further provides that a takedown notice shall be deemed delivered on the next business day following physical delivery at its registered offices or two days following the day its sent by registered post.
The proposed notice, counter-notice and takedown regime is problematic for several reasons. Firstly, it defeats the aim of the takedown provision because it is not clear whether an ISP is compelled to disable access once it receives a counter-notice. Secondly, it is not clear whether the ISP is required to forward a take-down notice to the alleged infringer and whether the ISP will also be required to alert the copyright owner once the takedown notice has been forwarded or forward the counter-notice to the copyright owner. Thirdly, it is not clear whether there is an obligation on the ISP to retain records identifying the alleged infringer for a period of time in the event that the copyright owner brings an action against the alleged infringer.
The revised draft has removed the 36 hours time limit for an ISP to take-down or disable access to allegedly infringing material. However the draft has significantly increased the prison term for a false or malicious take-down notice from a six month in jail to five years and the fine has increased from Kshs 50,000 to Kshs 500,000. In addition, the draft provides that the party responsible for the misrepresentation will be liable for any damages incurred as a result of a false or malicious take-down notice.