Partners Against Piracy (PAP) has welcomed the change of heart by the sponsor of the Copyright Amendment Bill 2021, Ms Gladys Wanga, the Homa Bay woman representative who has agreed to drop proposed amendments to the Copyright Act relating to takedown notices for internet service providers (ISPs). This emerged on 15th February 2022, the day the Parliamentary Committee on Communication, Information & Innovation heard memoranda submitted by various stakeholders regarding the Bill.
Partners Against Piracy, a Pan-African, multi-sectoral coalition of stakeholders supporting the creative industry in Kenya, which was in attendance, and called for the deletion of Clauses 5, 6 and 7 in the Bill, which proposes repeal of Sections 35B, 35C and 35D in the Copyright Act. Signed into law by President Uhuru Kenyatta in October 2019, Sections 35B, 35C and 35D are game-changing provisions for Kenya, and the first of their kind in Africa, although common internationally.
The provisions protect the creative industry in Kenya by providing incentives and a legal basis for better cooperation with ISPs, to protect them from being accused of enabling piracy, and to support rightsholders in their fight against unauthorised use of their materials. Repealing sections 35B, 35C and 35D would weaken the fight against content piracy, as it would remove the first line of defense – the ISPs and other platforms that could potentially enable piracy.
The Bill proposed to scrap the allowance for issuing ISPs with take-down notices, which direct them to remove content suspected of going against copyright. Economically, removing 35B, 35C and 35D could mean a Ksh14.3 billion per year loss to Kenyan creatives and a Ksh16.3 billion per year loss in taxes to the government – funds that could be used to develop Kenya’s creative industry and local communities.
Total losses could amount to Ksh92 billion per year, as most digital content is priced in foreign currency, as are the costs of platforms, distributors, and retailers, among others. Through the global awareness raised by PAP and its supporters since the first reading of the Bill last November, parliament has received an avalanche of local and international memoranda against the proposed repeal of sections 35B, 35C and 35D.
Opponents of the matter include MP John Kiarie, who declared that “the proposal to repeal these sections represent the biggest setback in the history of copyright and is akin to disarming Kenyan authors and rights holders.”
In addition, the Music Copyright Society of Kenya (MCSK), in their #SAYNOTOREMOVALOFSECTION35B-35D and #Handsoffsection35B campaigns, agree and reinforce the widely held view that “piracy is currently devastating the creative industry in Kenya,” and that repealing sections 35B-35D of the Copyright Act would “encourage online piracy and loss of revenue making it difficult for creatives to recoup their investments….”
Speaking on the proposed repealing of Sections 35B, 35C and 35D, Ms Wanga, said, “As soon as we go to the floor, in the third reading, all those amendments will be dropped. This is to assure our content creators that this House is not about taking away the gains that we have made in protecting our content creators from piracy.”
She continued, “I have received many calls. This morning I received a call from a congressman in the United States and everyone is concerned. This was never the intention of these amendments. These amendments are meant to support our artists and the broader industry to make sure our artists and content creators are protected – certainly not to take away those very rights.”
A recent letter from the Sports Rights Owners Coalition (SROC), signed by chairman Mark Lichtenstein, said its members were “extremely concerned” at the proposed changes to the Copyright Act if the Bill became law – particularly the plan to repeal sections 35B, 35C and 35D.
According to Kenya Copyright Board (KeCOBO) Executive Director Edward Sigei, “take-down notices are a critical tool for copyright holders and related rights holders to fight digital content piracy by controlling the distribution and economic viability of their work and how it is accessed online.”
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Welcoming the dropping of Clauses 5, 6 and 7 in the Bill, PAP convener and co-founder of MyMovies.Africa™ Mike Strano said, “we can now move forward with the implementation of Sections 35B, 35C and 35D, which will be transformational for Kenya’s creative industry and a model for Africa.”
Strano said PAP had spent the past two years co-creating a framework around takedown notices and other matters with the Technology Service Providers of Kenya (TESPOK) – o which ISPs are members – via a Memorandum of Understanding (MoU).
“We hope that the MoU can be signed immediately,” said Strano, “so that creatives will be able to cooperate with the ISPs against piracy, for mutual benefit and the sustainability of Kenya’s creative industry.”
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