ARTICLE 19 Eastern Africa (EA) submitted its recommendations on the Intellectual Property Bill, 2020 (IP Bill, 2020) to the Task Force on the Merger (Task Force). We urged the Task Force to ensure that the IP Bill, 2020 respects the rights to freedom of expression, access to information, media freedom and privacy, as guaranteed in the Constitution of Kenya, 2010 and in international human rights law and standards.
ARTICLE 19 Eastern Africa (EA) submitted its recommendations on the Intellectual Property Bill, 2020 (IP Bill, 2020) to the Task Force on the Merger (Task Force). We urged the Task Force to ensure that the IP Bill, 2020 respects the rights to freedom of expression, access to information, media freedom and privacy, as guaranteed in the Constitution of Kenya, 2010 and in international human rights law and standards.
Although various provisions of the IP Bill, 2020 are consistent with relevant international human rights standards and laws, the same contains several overly restrictive provisions for freedom of expression.
“The Intellectual Property Bill, 2020 must not be used to lower the protection of freedom of expression, access to information and justice, media freedom and privacy in Kenya. The Intellectual Property Bill, 2020 introduces intermediary liability and monitoring requirements on internet service providers (ISPs) with attendant civil and criminal penalties ,” said Mugambi Kiai, Regional Director at ARTICLE 19 Eastern Africa.
In particular, the IP Bill, 2020 introduces a notice-and-takedown system which is very similar to the Digital Millennium Copyright Act in the US. This model inevitably tilts the balance in favour of copyright claims rather than the free expression rights of users. It gives an incentive to hosting services to remove content without proper notice or evidence of actual infringement, which will have a chilling effect on freedom of expression.
Only recently, it was reported in the Wall Street Journal that Google had removed links to news articles as a result of dubious copyright claims. As such ARTICLE 19 Eastern Africa does not support this model but advocates for a court-based notice system or, in the alternative, a notice-and-notice system to deal with copyright claims, which would only require intermediaries to pass on complaints about copyright infringements.
Moreover, the IP Bill, 2020 is not clear on crucial aspects of the proposed procedure, and fails to provide appropriate time-frames for filing counter-notices and appeals mechanisms to hear complaints.
Finally, any reference to ‘constructive knowledge’ standards for internet service providers (or ISPs) must be removed. The IP Bill, 2020 must be absolutely clear that it does not impose any general monitoring requirements that would also be in breach of the right to privacy and Kenya’s Data Protection Act (2019). At present, however, the IP Bill, 2020 is ambiguous on this point and indeed provides for conflicting monitoring requirements. Instructively, the IP Bill, 2020 provides for no general monitoring obligations whilst simultaneously removing immunity protection when the infringing nature of the material is ‘apparent’.
In practice, this means that ISPs will almost certainly have to monitor content going through their networks to identify such ‘apparent’ infringing copyright material (‘constructive knowledge’). We note that ISPs, under clause 239 (6), IP Bill, 2020 are exposed to full civil liability ‘for any loss/damage resulting from non-compliance to a takedown notice.’
On the other hand, clause 239 (7), IP Bill, 2020 exposes ISPs to “a fine not exceeding KES. 500, 000 (c. USD 4,665) or to imprisonment for a term not exceeding five years, or to both” for failing to provide an alleged offender with a copy of the take down notice. ARTICLE 19 EA insists that criminal liability provisions such as this one must be replaced with more proportionate civil liability ones.
Below we summarise ARTICLE 19 Eastern Africa’s recommendations on how to get the balance between FOE protections and IP reforms right.
Summary of key recommendations to amend the Intellectual Property Bill, 2020
- Clearly protect and promote Kenya’s obligations under the Constitution of Kenya, 2010 and international human rights law and standards to safeguard freedom of expression, access to information, press freedom, privacy and data protection. This requires replacing criminal penalties with civil ones.
- Transfer the annual report responsibility to the Intellectual Property Office of Kenya from the Cabinet Secretary. The Intellectual Property Office of Kenya, ISPs and other intermediaries should be required to transparently disclose all takedown requests, counter notices and acquiescence or rejection of the same.
- Delete of any ‘constructive knowledge’ requirements (e.g., in clause 238, IP Bill, 2020) which impose intermediary liability on ISPs, and make explicit reference to ‘actual’ knowledge, which should be obtained by a court order.
- Eliminate the current notice-and-takedown procedure, and replace this with a more rights-centric, alternative system. Where these provisions remain, ARTICLE 19 EA recommends the implementation of safeguards set out in ARTICLE 19’s Right to Share Principles and Dilemma of Liability In particular, internet intermediaries should be given at least seventy-two (72) hours to forward a notice of infringement to an alleged offender. Equally, content providers should be given sufficient time to respond, e.g. fourteen (14) days. The IP Bill, 2020 should set out a clear procedure once a counter-notice is issued to ensure clarity in the law.
Read the full submission
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For more information, please contact Mugambi Kiai, Regional Director: