Proposed law to hurt earnings of our online content creators

The Bill proposes amongst others repeal of Internet Service Providers (ISP) Liability Provisions. [Courtesy]

I have noted with concern the proposed changes to the Copyright Act contained in the Copyright Amendment Bill currently at the second reading in the National Assembly.

The Bill proposes amongst others repeal of Internet Service Providers (ISP) Liability Provisions contained in sections 35B, 35C and 35 D of the Copyright Act.

Other proposed amendments seek to ring-fence the earnings from ring back tones and establishment of National Rights Registry which are fairly justifiable.

The proposal to repeal the above sections represents the biggest setback in the history of Copyright and is akin to disarming Kenyan authors and right holders. Infringement of copyright online, even as trade in content is now mainly digital, is rife making that provision in the Act very critical.

I was part of the Information and Communications Technology (ICT) Committee that considered and passed the Copyright Amendment Act in 2019, a milestone in our copyright law in line with the digital times that we are in. The Copyright Act now provides safe harbours for ISPs and a procedure for notice and take-down in line with international standards.

These are the provisions that have been proposed for removal under clause 5 to 7 of the current Draft Bill.

When the ICT Committee passed the amendment Act in 2019, it was inspired by articles 11 and 40 of the Constitution. The sections of the Constitution oblige the state to protect and promote Intellectual Property Rights of its citizens. The other reason for the passage was the need to upgrade our laws in line with the World Intellectual Property Organisation  standards.

The Copyright Amendment Act of 2019 will, in my view, be one of the ground-breaking laws the 12th National Assembly has passed since 2017.

As a youthful member of Jubilee, I considered this legislation a fulfilment of the pledges made during our election campaigns. I still consider the passage of the law a legacy of Jubilee administration under President Uhuru Kenyatta.

I am aware that there exists ISP provisions similar to Kenya’s that work well including in South Africa. There is no reason why the provision cannot work very well in Kenya.

I am aware too that ISPs already have technical capability to deal with online threats brought about by terror, fraud, human trafficking and child pornography through joint action.

I have heard from a wide range of investors and stakeholders in the sector and also the Kenya Copyright Board all of whom are opposed to the repeal. And those views have been submitted to Parliament.

From those engagements, I sensed frustration with this proposal with prevalent feeling that the law will in effect dispossess people of their Intellectual Property Rights online.

This is unfortunate considering that online entertainment content is now a significant employer of Kenyan youths who have channels on platforms that allow them to access global markets. Their copyright works are now vulnerable to theft and misappropriation.

If the proposed repeal goes through, any gains from the increase of the earnings from ring back tones shall be wiped out through internet piracy. I wish to make it clear that I will support any proposal that would assure fair remuneration to all copyright holders and will consider supporting the provision on ring back tones with some amendments.

As a creative, I urge my colleagues in Parliament to seriously consider the repercussions of the proposed repeal of those provisions and save the nascent content-based sector which forms part of the President’s legacy.

Mr Kiarie is the Member of the National Assembly, Dagoretti South. [email protected]