On 16 May 2018, President Uhuru Kenyatta (pictured above) assented to the Computer Misuse and Cybercrimes Bill, 2018. The Bill was passed by the National Assembly on 26 April 2018. Readers of this blog will note that, unlike the previous Computer and Cybercrimes Bill, 2017 that was first tabled in Parliament, the Act now contains some new provisions relating to blockchain, mobile money, offences related to cybersquatting, electronic messages, revenge porn, identity theft and impersonation, as well as the newly created National Computer and Cybercrimes Coordination Committee. A copy of the Act is available here.
From an intellectual property (IP) perspective, the Act is significant for several reasons, including that it creates new offences and prescribes penalties related to cyber-infringements, it regulates jurisdiction, as well as the powers to investigate search and gain access to or seize items in relation to cybercrimes. It also regulates aspects of electronic evidence, relative to cybercrimes as well as aspects of international cooperation in respect to investigations of cybercrimes. Finally it creates several stringent obligations and requirements for service providers. Continue reading
Maurice Okoth, former MCSK CEO (left) with his lawyer at the High Court for the delivery of the judgment.
Recently, the High Court delivered its judgment in the case of Republic v. The Director of Public Prosecutions and 4 Others Ex Parte Shamilla Kiptoo and 2 Others HCMA 510 of 2015 (Consolidated) in which the court granted the orders of certiorari and prohibition sought by the Applicants namely Maurice Okoth, Music Copyright Society of Kenya (MCSK) former Chief Executive Officer (CEO), James Maweu Mutisya, former MCSK Board Director, Lillian Njoki Thuo, MCSK Management Accountant, Peter Kisala Enyenze, MCSK Regional Manager and Shamilla Kiptoo, Nasratech Limited Managing Director (and Okoth’s wife).
The order of Certiorari granted by the court quashes the decision, declaration and directive of the Director of Public Prosecutions (DPP), Directorate of Criminal Investigations (CID), Inspector General of Police (IG), Chief Magistrate’s Court and the Attorney General (collectively referred to as the Respondents) to prefer criminal charges against the Applicants based on the facts contained in the Charge Sheet dated 18th November 2015 in Criminal Case No. 1904 of 2015 – Republic v. Dan Maurice Mwande Okoth & 6 others. The order of Prohibition granted by the court directed to the Respondents prohibits the prosecution of the Applicants based on the facts contained in the Charge Sheet dated 18th November 2015 in Criminal Case No. 1904 of 2015 – Republic versus Dan Maurice Mwande Okoth & 6 others. Finally, the court ordered the costs of the application to be borne by the DPP, CID and IG.
Previously we reported here that two content service providers and three individual copyright owners had filed a constitutional petition at the High Court challenging the content of the equitable remuneration right in section 30A of the Copyright Act, the application and implementation of section 30A by the collective management organisations (CMOs) and the manner of licensing and supervision of the CMOs by Kenya Copyright Board (KECOBO).
Recently in the case of Petition No. 317 of 2015 Xpedia Management Limited & 4 Ors v. The Attorney General & 4 Ors Lady Justice Mumbi Ngugi (known to many readers for her landmark decision on anti-counterfeit law and access to medicines here) delivered a judgment at the High Court dismissing claims by content service providers and the copyright owners that the contents and implementation of section 30A are unconstitutional.
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.
This week, Netflix, the popular American multinational subscription video on demand (SVoD) internet streaming media service provider announced that it’s service has gone live globally. Kenya is among 130 countries that can now access internet streaming TV from Netflix. In Kenya, Netflix is now available via their official website: https://www.netflix.com/ke/ which means that for one monthly price Kenyan consumers can sign up to enjoy Netflix original series as well as its huge catalog of licensed TV shows and movies simultaneously with the rest of the world. As of October 2015, Netflix had 69.17 million subscribers globally, including more than 43 million in the United States of America.
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.
The International Federation of Musicians (FIM) reports that powerful record label umbrella body International Federation of the Phonographic Industry (IFPI) has written to Kenya Copyright Board (KECOBO) demanding the removal of Section 30A of Kenya Copyright Act. (See our previous discussions of section 30A here)
According to FIM, the criticism of section 30A by IFPI is an unacceptable “step backwards, the implication of which is that all treaties guaranteeing artists’ rights would be made devoid of any meaning (Rome Convention, WPPT, Beijing Treaty).”