Managers of internet service providers (ISPs), who fail to expunge copyrighted content that has been illegally posted on their networks could face up to five years in jail if parliament passes a new bill targeting online intellectual property thieves.
ISP providers who continue transmitting such material 48 hours after its legal owner has informed them of the infringement through a formal takedown request, will be liable to a Sh500,000 fine if found guilty of the offence.
The penalties, which are meant to address widespread and illegal internet-based distribution of copyrighted content in Kenya, are contained in the recently published Copyright (Amendment) Bill, 2017.
“The ISP which fails to take down or disable access when it receives a takedown notice shall be fully liable for any loss or damages resulting from non-compliance to a takedown notice without a valid justification,” the bill states.
Internet firms must, however, prove they were not complicit in the infringement by showing that they did not initiate transmission of the content, modify or promote it or select the recipient.
Owners of blogs and websites that publish copyrighted literary content from newspapers or books without permission will also find themselves in trouble if the bill becomes law.
“A takedown notice…shall attach an affidavit or any other declaration attesting to claim of ownership…and setting out any efforts to have entities responsible for making the content available to remove the content,” the bill states.
“Any person who falsely or maliciously lodges a takedown notice or a counter notice commits an offence and shall, upon conviction, be liable to a fine not exceeding Sh500 or to imprisonment for a term of five years, or to both.”
This change to the law, which the copyright regulator has been chasing for years, is a mirror of the controversial Digital Millennium Copyright Act (DMCA) which serves a similar purpose in the US.
Copyright owners in America rely on the DMCA to have their content, whether copyrighted or not, removed from websites, search engines such as Google or even from media channels like YouTube and SoundCloud.
ISPs, upon receiving a complaint from a copyright holder, normally notify the infringing entity to take down the material themselves and expunge it forcibly if they fail to comply.