In this legal analysis, ARTICLE 19 reviews the Copyright (Amendment) Bill, 2017, to amend the Copyright Act, 2001, for its compliance with international freedom of expression standards. The 2017 Bill was proposed largely in order to address copyright infringement online, which the 2001 Act did not cover; in particular, it introduced new procedures for copyright owners to address infringements on the Internet.
ARTICLE 19 notes that some aspects of the 2017 Bill are positive and consistent with relevant standards under international law and Kenya’s Constitution. For instance, the Bill’s Second Schedule reiterates ‘fair use’ protections for content utilised for scientific research, criticism or review, reporting, parody, education, and public artistic works. It also emphasises that Internet intermediaries have no obligation to monitor material transmitted on their services or actively seek out infringing content. We observe that if Internet intermediaries are expected to become copyright police on their own platforms, it would have a significant chilling effect on expression as intermediaries will tend to err on the side of censoring any content that could potentially be infringing. Finally, the 2017 Bill protects the privacy interests of users by requiring an order from a court before intermediaries are required to provide details about their users to investigators.
However, ARTICLE 19 is greatly concerned that the notice-and-takedown procedures introduced in the 2017 Bill are unnecessary and fall short of international standards on freedom of expression. The Copyright Act of 2001 already creates a procedure in Article 35(4) to petition a court and obtain relief in the form of damages and fair royalties following a court order. With respect to the notice-and-takedown procedures, we see the 2017 Bill as problematic for the following main reasons:
- Lack of proportionality: The 2017 Bill introduces criminal penalties on intermediaries for failure to take down content, which is a disproportionate response. While intermediaries face severe criminal sanctions for failing to take down content, they face no penalty at all for incorrectly taking down content, meaning that, in reality, intermediaries will err on the side of censoring content to protect themselves from liability. The result will be blocking of legitimate material, in clear breach of international freedom of expression standards.
- Lack of clarity: Key features of the notice-and-takedown procedure, particularly counter notice procedures, lack definition in the 2017 Bill. For instance, there is no clarity on what intermediaries are supposed to do in the event that an alleged infringer, subject to a takedown notice, files a counter notice. Intermediaries are instructed pursuant to Article 35B(4) that they “shall disable access” to the alleged infringing material “unless” they receive a counter notice. However, intermediaries still face liability for any damages for failure to take down a notice, so it is unclear how counter notices affect intermediary liability, if at all. Furthermore, there are no standards for how an intermediary adjudicates two competing notices and what rights, if any, both parties have after counter notices are filed.
- Lack of due process: The 2017 Bill makes no reference to the possibility for judicial review of takedown requests, or any opportunity for administrative appeals. Further, alleged infringers are provided very few, if any, meaningful due process rights. Article 35B(4) provides a mere 48 hours between the Internet Service Provider (ISP) receiving a takedown notice and being required to takedown content. Notably, there is no requirement that the ISP notify the alleged infringer that a takedown notice has been received. The 48-hour window is already a very short period during which most content publishers would have extreme difficulty filing a counter notice or seeking legal advice to protect their rights. Together with the fact that no notification to content publishers is required, it is not clear how content publishers would even discover that a takedown notice has been issued before their content is removed.
- Lack of transparency: There is no requirement on part of the Kenya Copyright Board or of intermediaries to maintain records of takedown requests or provide to the public any logs documenting instances of takedown requests or takedowns of content. This information is important not only for content publishers to be able to assert their rights, but also vital to the public’s right to receive information as well as the right of individuals to express themselves.
- Severe sanctions: Penalties for filing false or malicious takedown notices or counter notices under the 2017 Bill can lead to severe fines and criminal sanctions; while we note that deterring false takedown notices is an important objective, criminal sanctions is a disproportionate means of pursuing it.
Finally, we note with concern that some provisions appear to impose liability on intermediaries for material on their platforms when the “infringing nature of the material is apparent.”
Summary of key recommendations
- Criminal penalties for non-commercial copyright infringement are never proportionate and should be eliminated in favour of civil remedies;
- The 2017 Bill should reference Kenya’s obligations under regional and international human rights standards to safeguard freedom of expression;
- While deterring malicious takedown requests is a legitimate aim, imposing criminal penalties instead of civil remedies is a disproportionate response. The criminal penalty provisions for filing “false or malicious” takedown notices or counter notices should be stricken;
- The notice-and-takedown procedure should be eliminated and the existing court procedures for obtaining relief should be relied on. If, however, the notice-and-takedown provisions remain, the procedure should be amended to incorporate the minimum due process safeguards laid down in ARTICLE 19’s Right to Share Principles;
- Article 35A(1)(c)(ii), which imposes liability on intermediaries for content on their platforms if the “infringing nature of the material is apparent,” should be stricken entirely. We recommend that any “constructive knowledge” requirements such as these be eliminated.
- Article 21(a)(ii)(i) should be stricken. The provision criminalises the circumvention of technical protection measures or the manufacture of devices to circumvent technical protections, which threatens to prevent individuals from using copyrighted works in a way that should ordinarily be protected under fair use.