The Kenya Copyright Board has hailed the Hight Court for moving with urgency and sanctioning a takedown notice as provided for in Section 35B of the Copyright Act amended in 2019 on two Kenyan telecommunications giants in a case filed by MultiChoice Kenya.
In the landmark ruling, the High Court ordered the two telcos in Kenya to immediately pull down and disable 141 sites that were suspected to be infringing on the copyrights of MultiChoice Kenya. This means people were using the sites to access content that was supposed to be aired and owned by MultiChoice Kenya.
“This is the first time that a Kenyan court has sanctioned a takedown notice as provided for in Section 35B of the Copyright Act amended in 2019,” said the Copyright Board in a statement, saying it is committed to ensuring players follow the laid-down rules.
Section 35B of the Copyright Act states that “a person whose rights have been infringed by content to which access is being offered by an internet service provider may request by way of takedown notice that the ISP removes the infringing content.”
MultiChoice Kenya had presented prayers before Justice Winfrida Okwany seeking the two telcos to be compelled to pull down the websites pending the full hearing of the case on March 3, 2021.
Here are the application for orders by MultiChoice Kenya before Justice Winfrida Okwany:
On her part, the Judge gave the orders for the two players to pull down their content as an interim measure to prevent further infringement on the copyrights of MultiChoice Kenya.
Here is the judge’s order:
The Kenyan Copyright Amendment Act of 2019 came into effect on 2 October 2019, repealing and amending various sections of the Copyright Act 12 of 2001 (Chapter 130).
The Amendment Act prescribed the creation of a Copyright Tribunal by the Chief Justice. The jurisdiction of the Tribunal includes appeals from KECOBO and disputes concerning the registration of copyright.
The amended Second Schedule to the Main Act set out several exclusions to copyright infringement. Parody is specifically listed as an exclusion, but this is subject to an acknowledgment of the author of the work.
The addition of Section 26C to the Main Act will also see an exclusion or defense to copyright infringement in circumstances where a work has been adapted to accommodate the blind or visually impaired persons. There are also several exclusions applicable to educational institutions and libraries.