The United States wants Kenyan authorities to introduce tougher copyright laws in a move that could significantly change the technology and entertainment industries in East Africa’s largest economy.
The demands are part of negotiating objectives in the Kenya-US trade talks that require Kenya’s commitment before the bilateral deal between the two countries is signed.
In a letter to the Office of the United States Trade Representative, more than 3,200 companies, led by entertainment giants including Netflix, Walt Disney Studios, Universal City Studios and Warner Brothers, have asked Kenya to overhaul copyright legislation by introducing tougher penalties for both individuals and corporates aiding copyright violations.
The companies, which also include giant publishers like Bloomsbury, Penguin Random House and HarperCollins Publishers Worldwide, have made the demands under the powerful International Intellectual Property Alliance (IIPA) lobby group.
IIPA itself is an amalgam of five lobby groups - Association of American Publishers, Entertainment Software Association, Independent Film and Television Alliance, Motion Picture Association and Recording Industry Association of America - which generate over Sh130 trillion in economic output annually.
“Kenya's copyright legal and enforcement frameworks remain deficient, and piracy, particularly online, remains a significant barrier for the creative industries in Kenya,” said IIPA, in a letter to the US Congress. The lobby wants the overhaul of copyright laws to be made a condition for Kenya in the ongoing trade negotiations for a Free Trade Agreement (FTA) that are expected to form a model for similar US bilateral deals with other African countries.
“These negotiations should be a catalyst for the government of Kenya to take the necessary steps to modernise Kenya’s copyright legal and enforcement regimes and improve its marketplace for legitimate digital trade in copyright-protected materials,” said the lobby in the letter.
“IIPA is hopeful that the US-Kenya negotiations will both build on the positive achievements of the US-Mexico-Canada Agreement (USMCA) and depart from certain provisions that are problematic.”
The demands by the US intellectual property industry include obligations for Kenya to implement the World Intellectual Property Organisation (WIPO) Internet Treaties. These include creating effective legal protection for technical measures such as digital locks used by streaming companies like Netflix, Amazon, Apple TV and Hulu to block unauthorised access to their content.
“Comprehensive obligations for copyright enforcement, including criminal penalties, civil remedies, border enforcement measures, anti-camcording enforcement, presumption of ownership, enforcement measures to address online infringement that include secondary liability principles to provide legal incentives for cooperation between service providers and rights holders and liability for aiding and abetting infringing activities,” explained IIPA.
The conditions have already been adopted by the United States Trade Representative Office and are included in the Western super power’s trade negotiating objectives.
The US further says adopting the conditions will also benefit players in Kenya's creatives sector by instilling international best standards against intellectual property theft. According to the summary of US-Kenya Negotiating Objectives, the US has asked the Kenyan government to “seek provisions governing intellectual property rights that reflect a standard of protection similar to that found in US law, including protections related to trademarks, patents, copyright and related rights.
The implications for the adoption of these conditions on Kenya’s entertainment, IT and telecommunications sector will be profound, and government officials who spoke to the Financial Standard said the country has begun implementing some of them.
For example, one condition requires the Kenyan government to establish statutory damages in civil cases as an alternative to actual damages or lost profits.
“This is a critical enforcement tool because in many instances of copyright infringement, especially online, the harm to rights holders is substantial but very difficult and expensive to quantify, often requiring experts,” explained the IIPA in the letter. The Kenya Copyright Amendment Act 2019 says copyright violations for first-time offenders will result in a fine of five times the market value of the legitimate work or Sh1,000 for each infringing copy, whichever is higher or to imprisonment for a term not exceeding 10 years, or both.
Establishing statutory damages would mean owners of the contenting, in this case IIPA members, could get to prescribe a statutory value to be paid if their copyright has been violated.
In addition to this, the US also wants Kenyan authorities to incorporate secondary liability principles by holding service providers responsible for infringements carried out by third parties on their services. “Secondary liability creates legal incentives for service providers to cooperate with copyright owners to address online infringement,” explained IIPA.
“Kenya must implement secondary liability principles to ensure adequate legal incentives for cooperation between service providers and rights holders,” added the lobby. This is already playing out in the High Court in a landmark case where Pay-TV service provider MultiChoice has sued Safaricom and Jamii Telecom Ltd for copyright infringement under the secondary liability principle.
In the suit filed in late 2019 weeks after amendments to the Copyright Act were signed into law, MultiChoice wants the court to compel the two Internet Service Providers (ISPs) to block access to websites streaming European Premiere League matches pirated from its SuperSport channel.
“Section 35b of the Copyright Act obligates an Internet Service Provider to take down any infringing content within 48 hours of being served with a takedown notice,” said MultiChoice in its suit in part.
Kenya Copyright Board Chief Executive Edward Sigei said the case was significant and could set a precedent for other copyright disputes, including those by international content owners. “We believe that the judge agreed in principle with the philosophy behind the case where we were enjoined as an interested party,” said Mr Sigei.
“We established a system where the ISPs are safe from liability if they work with the copyright holder to ensure that pirates do not have access to their networks.”