Key IT concerns in copyright bill

What you need to know:

  • Copyright refers to the exclusive right given to authors to reproduce, distribute, modify or display their work of expression.
  • The introduction of the internet as a medium for distribution, modification and display of creative works has complicated the copyright regime.
  • intermediary liability recognises that ISPs are at the centre of distributing online content and tries to exempt them from liability in the event their subscribers infringe on other users’ rights.
  • A government that may be uncomfortable with dissenting views may seek to invoke this clause in order to compel ISPs to take down content that it feels is too critical.

Last week we reviewed the key highlights with respect to the cybersecurity bill. This week we review another bill that is also under public review at the parliamentary ICT committee – the 2017 Copyright (Amendment) Bill.

Copyright refers to the exclusive right given to authors to reproduce, distribute, modify or display their work of expression. The Law of Copyright should balance the interest of the holder and those of the users.

Copyright regimes have been around for more than a hundred years and are fairly well developed. They grant holders of the right a monopoly over their works so that they can recoup a return on their creative efforts.

Just as the cybersecurity bill was based on some international best practice, most copyright laws are based on the recommendations of the World Intellectual Property Organization.

'INTERMEDIARY LIABILITY'

However, the introduction of the internet as a medium for distribution, modification and display of creative works has complicated the copyright regime and necessitated the need for amendments.

One critical amendment that touches on the business of Internet Service Providers (ISP) is known as “intermediary liability”.

Essentially, intermediary liability recognises that ISPs are at the centre of distributing online content and tries to exempt them from liability in the event their subscribers infringe on other users’ rights.

“A person whose rights have been infringed by content to which access is being offered by an Internet Service Provider may request, by way of a takedown notice, that Internet Service Provider removes the infringing content.”

This takedown notice is then reviewed by the communication regulatory authority in conjunction with the umbrella association of service providers. If the complaint is deemed to have merit, the law further says as follows:

Clause 35 B (4): “An Internet Service Provider shall disable access to the material within forty eight hours unless it receives a counter notice from the entity accused of infringement by making available the content fulfilling the requirements set out for a takedown notice and contesting the contents of the takedown notice.”

There is a penalty of half a million shillings for any service provider who fails to disable or take down offending content on receiving a takedown notice.

CENSORSHIP CONCERNS
Whereas this may be the standard intermediary legislation to protect creative works of authors, there are worries that it could also be used as a backdoor mechanism to suppress freedom of speech or execute online censorship.

Essentially, a government that may be uncomfortable with dissenting views may seek to invoke this clause in order to compel ISPs to take down content that it feels is too critical.

How ISPs will navigate that thin line between an author’s copyrights and freedom of expression and potential online censorship from the government will be something to watch in the coming months and years – after the bill is enacted into law.

Mr Walubengo is a lecturer at Multimedia University of Kenya, Faculty of Computing and IT. Email: [email protected], Twitter: @Jwalu