Kenya Pushes New Copyright Law Which Will Blame ISPs For Not Magically Stopping Piracy

from the that's-not-the-dmca-you're-copying dept

Update: Quick update on the story below, again alerted by Mitch Stoltz, a copy of the actual text of the law has been released and it does appear to more closely track with the safe harbor protections for ISPs. That is, the claims made by the copyright bureaucrat above that it's about making ISPs liable was misleading... The rest of the post stands however.

Via Mitch Stoltz, we learn of a new proposed copyright law in Kenya that not only would be a disaster for the internet in that country, but where the people pushing it don't even seem to understand what they're talking about. The key element: forcing ISPs to be copyright cops and putting liability on them if they somehow fail to magically stop piracy:
The Government is now turning it’s sights on ISPs in a move to curb piracy, which erodes revenues for the country’s film industry.

“We are proposing to introduce an amendment in the Copyright Act that will place the onus of responsibility for Kenyan content illegally downloaded, squarely on local internet service providers,” said Head of the Kenya Copyright Board (Kecobo) Edward Sigei.
Bizarrely, Sigei argues that he's just copying the DMCA in the US:
“We are borrowing from the Digital Millennium Copyright Act of America and others that have come after it and we have designed an amendment where the ISP will be liable under certain circumstances for infringements that happen through their channels.”
Except, that's the exact opposite approach of the DMCA, whose safe harbors protect ISPs from liability, by noting that the responsibility should be on the actual people infringing, rather than the service providers in the middle. It's this safe harbor protection that allows the internet to function as it does, encouraging platforms for communication, sharing and content creation and hosting. Making ISPs liable puts tremendous liability on those ISPs, meaning they're much less likely to offer such services at all.

Is Kenya really looking to shut down useful internet services in that country?

Even more bizarre is that Kenya claims it's doing this in order to catch up with countries like Nigeria, whose movies have become huge throughout Africa:
This is part of a push to have Kenyan local content earn a larger foothold on Kenya’s airwaves currently dominated by Nigerian and Latin American programming.
Except, if you actually look at why the Nigeraian film business became so successful, it was actually because of a lack of copyright enforcement that helped create informal distribution and promotional channels across Africa. As the Economist explained years ago:
The merchants curse the pirates, but in a way they are a blessing. Pirate gangs were probably Nollywood's first exporters. They knew how to cross tricky borders and distribute goods across a disparate continent where vast tracts of land are inaccessible. Sometimes they filled empty bags with films when returning from an arms delivery. Often they used films to bribe bored guards at remote borders. The pirates created the pan-African market Mr Akudinobi now feeds.
A detailed academic research paper a few years later made it clear that it was piracy, not regulations that helped establish Nigerian film as a dominant player across Africa and further noted that this lack of copyright enforcement actually massively helped the economy.
Notably, although many countries have sought to incentivize particular types of film production through direct government funding, subsidies, or film protection schemes involving film quotas, many of these industries have not been commercially viable in the absence of subsidies or other support schemes. In contrast, Nollywood has created significant volume of local video film content with virtually no government involvement or subsidies. The success of Nollywood may in many respects be attributable to a lack of government involvement and its decentralized nature, which has permitted Nollywood participants to be highly entrepreneurial, adaptive and innovative. Nollywood now may employ as many as 200,000 people directly, with estimates of indirect employment as high as 1 million. The market-driven Nollywood approach is less costly than existing models of film production and distribution and may offer a new model for developing countries that wish to develop domestic film industries.
And yet, Kenya insists that it's trying to copy Nigeria, but it's doing the exact opposite? And it's going to do so by "copying" the DMCA, by apparently doing the exact opposite of the DMCA? It really makes you wonder what officials in Kenya are actually thinking in pushing this forward. Given the nature of the proposal, it looks much more like the wishes of foreign film interests, such as those from Hollywood, looking for yet another beachhead from which to push bogus rules to make ISPs copyright cops, rather than fixing their own business models.

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  • identicon
    Anonymous Coward, 10 Sep 2015 @ 3:21pm

    it looks much more like the wishes of foreign film interests, such as those from Hollywood, looking for yet another beachhead from which to push bogus rules to make ISPs copyright cops, rather than fixing their own business models.

    They are trying to fix their business models; by eliminating the Internet, and the ability of content producers to effectively reach their audience without signing their rights away.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Sep 2015 @ 4:23pm

    Easy solution for Kenyan ISPs. Just file daily mass takedown requests for the entire internet, then blame any false takedowns on anomalies.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Sep 2015 @ 4:28pm

    All the ISPs in Kenya should shut down together for 1 week in protest. All the outrage would put an end to this kind of thinking in a hurry.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 10 Sep 2015 @ 4:40pm

    certain circumstances ?

    "will be liable under certain circumstances"

    The linked article doesn't say what circumstances and apparently the details of the proposal aren't yet available.

    Perhaps you could come back to the topic when the details are known? It might make for a more illuminating discussion?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Sep 2015 @ 4:45pm

      Re: certain circumstances ?

      While you have a good point, when have you ever known Copyright maximalists to err on the side of caution?

      reply to this | link to this | view in chronology ]

  • icon
    Wyrm (profile), 10 Sep 2015 @ 5:03pm

    “We are borrowing from the Digital Millennium Copyright Act of America and others that have come after it and we have designed an amendment where the ISP will be liable under certain circumstances for infringements that happen through their channels.”
    Except, that's the exact opposite approach of the DMCA, whose safe harbors protect ISPs from liability,(...)

    Both are right, but not opposite.
    The DMCA does place liability on some service providers (mostly content-hosting services) when they do not remove infringing media they have been notified of. The basic protection from liability can then be lifted... "under certain circumstances". (which are basically "being notified" and "keep hosting content".)
    Dotcom will appreciate knowing he is "protected".

    Not saying that Kenya is actually copying DMCA correctly. We just need more details on who can be liable and under what circumstances. This article lacks details in that regard.

    On the other hand, the comparison with Nigeria is pertinent: even if Kenya does copy DMCA correctly, that is definitely not the way to copy Nigeria and enjoy the same culture spread it experienced.

    reply to this | link to this | view in chronology ]

  • icon
    Mike Masnick (profile), 10 Sep 2015 @ 5:11pm

    Updated

    Added an update. It appears that the claims made by the copyright bureaucrat were misleading and the law does, in fact, include *protections against liability* for ISPs, rather than making them more liable, as was initially claimed...

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 10 Sep 2015 @ 5:15pm

      Re: Updated

      Not a good day for Fact Checking at techdirt today eh?

      reply to this | link to this | view in chronology ]

      • icon
        PaulT (profile), 11 Sep 2015 @ 1:30am

        Re: Re: Updated

        Hey, at least corrections and retractions are updated and made clear on the articles, even if it makes the author look bad and/or force them to completely reverse their original commentary. Too many other venues would either remove or surreptitiously edit the original story to pretend it wasn't wrong, or publish an "apology" elsewhere while leaving the false story intact.

        Maybe it's because I grew up with the UK tabloid tactic of "print the lies on the front page headline, print the retraction next week in tiny print on page 23", but this is one of the reasons I like coming here.

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 11 Sep 2015 @ 12:43pm

          Re: Re: Re: Updated

          Did you learn to be a sycophant in those tabloids too?

          reply to this | link to this | view in chronology ]

          • identicon
            Klaus, 12 Sep 2015 @ 6:51am

            Re: Re: Re: Re: Updated

            Oh look, someone being a twat on the internet. How intriguing and mysterious you are....

            Things change, updates happen. Do you really see a problem with this, because I don't. I don't run a website so I can't say how easy or difficult it is to fact check, edit, maintain a readership... but Techdirt seems to do a pretty fine job of it to me. A one stop shop for tech. And dirt. Sort of.

            reply to this | link to this | view in chronology ]

    • icon
      Wyrm (profile), 10 Sep 2015 @ 7:11pm

      Re: Updated

      Thanks for the additional details.
      DMCA is not really great, particularly with the lack of accountability for wrongful claims, but it's not as bad as what was originally reported.

      Then again DMCA actually has some degree of accountability built-in... "on penalty of perjury" or something like that... but no implementation in national law and private agreements actually enforces that part.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 11 Sep 2015 @ 9:57am

        Re: Re: Updated

        The penalty of perjury only applies if you claim to be someone you are not, not if you claim to own privileges you don't.

        reply to this | link to this | view in chronology ]

  • identicon
    TMC, 10 Sep 2015 @ 5:25pm

    Big surprise. The continent that imported Christian homophobia is also importing this bullshit.

    reply to this | link to this | view in chronology ]

  • identicon
    Mark Wing, 10 Sep 2015 @ 8:44pm

    Techdirt is falling for those Kenyan prince scams again.

    reply to this | link to this | view in chronology ]

  • identicon
    Research Department, Herman Speaking, 10 Sep 2015 @ 9:16pm

    Avoiding Hoaxes

    Here at Techdirt, we've decided to now withhold all stories in order to do additional fact checking, such as waiting for the official version of any documents to be released.

    We like to be the first with news as much as anybody but, as the saying goes, fool me once, shame on me, fool me twice, hire a research department to ensure it doesn't happen again!

    reply to this | link to this | view in chronology ]

  • identicon
    Mark Wing, 10 Sep 2015 @ 10:55pm

    Most media outlets sweep that shit under the rug. Props to Masnick for sacking up.

    reply to this | link to this | view in chronology ]

  • icon
    toyotabedzrock (profile), 10 Sep 2015 @ 11:54pm

    If they want more movies they need to spend less actual time harassing gay people. Sure Nigeria says horrible things but they never really act on them.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 11 Sep 2015 @ 2:17am

    So, a country that has a 46% poverty rate:

    http://www.unicef.org/kenya/overview_4616.html

    And they are worrying about fucking copyrights on the internet?


    See, this is perfect example of lobbying. Politicians "fixing" what they shouldn't fix, and ignoring the really important things, such as feeding your population or reducing that mortality rate.

    Well, they will keep starving, but DON'T WORRY, they won't download a single song.

    Maybe the fact that they don't have the stuff needed to download them is a factor. Yeah.

    reply to this | link to this | view in chronology ]


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