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Proposed Amendments To Provide Web Blocking Measures In Cases Of Copyright Infringements Online. All comments should be directed to the Executive Director, Kenya 

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SECTION

PROVISION

JUSTIFICATION

Section 2, Copyright Act

Internet Service Provider (ISP) defined

Any person providing information system services including connections for, the transmission or routing of data

No definition found in our existing legislation in Kenya

Section 2, Copyright Act

Electronic Copy Defined

Means a copy of any work in which Copyright subsists by Virtue of this Act and includes the original version of that work

Define copy within context of Copyright law

Section 35A(1), Copyright Act

INTERNET SERVICE PROVIDER NOT LIABLE AS MERE CONDUIT

        I.            An ISP shall not be liable for providing access to or transmitting material, routing or storage of material in ordinary course of business as long as it;

a.       Does not initiate transmission,

b.      Does not select the addressee

c.       Performs the functions in an automatic ,technical manner without selection of the material ;and

d.      Does not modify the material contained in the transmission

      II.            The acts of transmission, routing, and of the provision of access referred to above include automatic, intermediate and transient storage of the information

Secure ISP from unfair Liability for doing its basic task

Section

35A(2), Copyright Act

 

 INTERNET SERVICE PROVIDER NOT LIABLE FOR CACHE COPIES

An ISP shall not be liable for the automatic, intermediate and temporary storage of that material, where the purpose of the storing such material is to make onward transmission of the data more efficient to other recipients  of the service upon their request as long as the ISP;

a.      Does not modify the material

b.      Complies with conditions on access to the material;

c.       Complies with rules regarding the updating the material in conformity with generally adopted/accepted standards within the service sector

d.      Does not interfere with the lawful use of technology to obtain information on the use of the material

e.      Removes or disables access once it receives a takedown notice as provided here below or where the original material has been deleted or access disabled on orders of a competent court

 

Secure ISP from unfair Liability for doing its basic task

Section 35A(3), Copyright Act

INTERNET SERVICE PROVIDER  NOT LIABLE FOR MATERIAL STORAGE

 

        I.            An ISP shall not be liable for damages arising from material  stored at the request of the recipient of the services, as long as it;

a.       Does not have actual knowledge that the material or activity related to the material is infringing the rights of a third party;

b.      Is not aware of the facts or circumstances from which the infringing activity unless the infringing nature of the material is apparent;

c.       Upon the receipt of a takedown notice acts expeditiously to remove or to disable access to the material

      II.            The exemption shall not apply if the recipient of the service is acting under the authority or control of the ISP

Secure ISP from unfair Liability for doing its basic task

Section 35A(4), Copyright Act

LIABILITY FOR PROVISION OF INFORMATION LOCATION TOOLS

An Internet Service Provider shall not be liable for damages incurred by a person if the service provider refers or links users to a webpage containing infringing material or facilitates infringing activity ,by using information location tools including a directory, index ,reference, pointer or hyperlink where the ISP ;

a.       Does not have actual knowledge that the material is infringing the rights of that person;

b.      Is not aware of the facts or circumstances from which the infringing activity or infringing nature of the material is not apparent;

c.       Removes or disables access to, the reference or link to the material or the infringing activity within a reasonable time after being informed that the material or the activity infringes rights of a person

 

Secure ISP from unfair Liability for doing its basic task

Section 35A(5)

TAKE DOWN NOTICE

        I.            Take down notice is a communication by a person whose rights are infringed by material  to which access is being offered by an internet service providers

      II.            A takedown notice shall

a.       Be  in writing and addressed by complainant to the ISP;

b.      Must contain the full names and address of the complainant;

c.       Be  signed by the complainant or his representative;

d.      Describe of the material subject to the alleged infringement;

e.      Identify the rights being infringed;

f.        Contain a telephone, physical and email address of the complainant

g.       Copied to Kenya Copyright Board and the Communication Authority

    III.            An ISP must disable access to the material within 36 Hours.

    IV.            The Internet Service Provider which fails to disable access shall be guilty of an offence and shall on conviction be liable to a jail term of six months or to a fine of Ksh.50,000 or both

      V.            Any person who falsely or maliciously lodges a takedown notice commits an offence and shall on conviction be liable to a jail term of Six months or to a fine of Ksh. 50, 000 or both.

    VI.            An ISP shall not be liable for wrongful takedown in response to a take down notice.

Provides administrative procedure leading to PRESUMPTION of actual knowledge on the part of ISP. Protect parties from malicious reports and ensure compliance

Section 35A(6), Copyright Act

ISP OBLIGATION

        I.            There is no general obligation on the ISP to;

a.        monitor the material  transmitted  or store; or

b.      Actively seek facts or circumstances indicative of infringing activity

      II.            An ISP shall be obliged to provide information to investigative agencies regarding identity of the recipients of their services

    III.            An injunction can issued against an ISP to block access to material subject of infringement where it refuses or neglects to disable access as requested in a takedown notice

Clarify limit of monitoring obligations to enjoy safe Harbour provision provided

 

Prepared and Approved for publication on 21st August 2015 by

Edward SIGEI

 

For: Kenya Copyright Board