Online copyright enforcement in Kenya An examination of the prospective use of intermediary liability

Abstract

Copyright law vests an entitlement in the owner to exclude unauthorized use in their works. The law also vests owners with the sole responsibility of enforcing this private right, often through litigation. However, trends in digital media, have made in much harder for owners to keep track of the use of their content online. These new technologies have increased both the speed and volume of information being disseminated thereby making difficult the identification of infringements, effectively rendering the analog approach to enforcement, untenable. Regions such as the European Union (EU) and countries such as the United States (US) have enacted intermediary liability regimes so as to involve internet service providers in enforcement. These regimes have manifested in different ways: safe harbour systems which provide conditional immunity and more recently, systems which require active-preventative approaches on the parts of intermediaries. Both these regimes have raised concerns of imbalance; either in favour of intermediaries or in favour of owners. Kenya recently enacted the Copyright (Amendment) Act which adopts a safe harbour system similar to those existing in the US. In light of this, the study appraises the different approaches to intermediary liability in the context of the various interests of owners, intermediaries and users and finds that the enforcement of copyright online ought to be strengthened by wider copyright law reform in addition to intermediary liability laws. The proposed reforms include Berne compliant formalities and the encouragement of interoperability of existing copyright registries