Why is section 35B of the Copyright Act, 2001 important?

• Robert Mwaura (Tech Policy Fellow- Lawyers Hub)
• April 19, 2022
• Why is section 35B of the Copyright Act, 2001 important?

It seemed like it was a normal day, until I saw this email titled: “Stop Kenyan MPs from Legalizing Piracy which hurts Musicians, Filmmakers & other Creatives” from Change.org.

This caught my attention for 3 reasons.

First, I am a content creator and know how much it would hurt if the work that I had spent countless hours scripting and editing would be pirated. Secondly, I am a lawyer by profession, so I wanted to make sure that what I was reading on email corresponded with what is stated in the Kenyan Copyright Act, 2001. Last, and certainly not the least, I joined the LawyersHub as a fellow working to enhance digital rights, so this email sparked my matchbox of digital rights.

The decision to delete Section 35B The Copyright Act,ⁱ 2001 was shut down but it is still important to understand what this section states. Section 35B deals with takedown notices. While the act does not define what a takedown notice is, it can be defined as a request to a service provider by a content creator to remove material that is infringing on the intellectual property of the content creator.

An internet service provider is defined as a person who has a platform that provides or enables computer access by multiple users to a computer server for the transmission or routing of data. Examples include Google, TikTok, Instagram, YouTube etc.

In particular, Section 35B of the Copyright Act, 2001 requires a takedown notice to:

1. be in writing and addressed to the internet service provider or the internet service provider’s agent;

2. have the full names, telephone number, physical and email addresses of the complainant;

3. be signed by the complainant or the complainant’s authorized agent;

4. describe in specific detail the infringement that has occurredⁱⁱ to the complainant, including the rights that have been infringed and details of where the infringing content is contained;

5. include information on ownership of the intellectual property rights in the infringed content as well as any efforts made to have the entities responsible for making the content available to remove the content e.g. through direct messages; and

6. be copied to the Kenya Copyright Board, Communications Authority and the recognized umbrella association of service providers (e.g. Performers Rights Society of Kenya (PRISK), Music Copyright Society of Kenya (MCSK) etc.

As we can see it is important to notify the person infringing on your copyright directly before issuing a takedown notice.ⁱⁱⁱ Interestingly 35B (3) states that where a takedown notice is delivered via email, it is deemed to have been delivered on the date the email was sent as opposed to physical delivery - in which case it will be deemed to have been delivered on the next business day. If sent by post, the takedown notice will be deemed to have been delivered after two days of postage.

Section 35B (4) states that an internet service provider is meant to furnish a copy of the takedown notice to the accused party as soon as practically possible. This section works to ensure that an accused party is given a fair hearing^iv and has access to information as enshrined in our constitution.^v Should the internet service provider fail to do this, they risk being fined KES 500,000 or being imprisoned for a term not exceeding five years or both. This penalty also applies to people who file false or malicious takedown notices or counterclaims

It is important to note that for counter claims to be valid, they must fulfill the requirements of a takedown notice as outlined above. After notifying the accused person, should the accused person not contest the takedown notice, the internet service provider must disable the access to the infringed material within 48 business hours, otherwise the internet service provider risks being held liable for the intellectual property infringement along with the accused person. We should note that restricting access is different to deleting the content.

Section 35B ends by stating that an Internet Service Provider will not be liable for a wrongful takedown if they were acting on a valid takedown notice.

After reading and internalizing this section, I do see this section’s importance as it offers a quick avenue to address intellectual property infringement and its deletion would leave a huge void in the intellectual property space.

However, I do feel that internet service providers should ascertain that the parties issuing takedown notices have reached out to the parties accused of infringement before issuing a takedown notice.

After reading section 35B of the Copyright Act, 2001, specifically section 35B (2) (d), it seems that takedown notices are only meant to be used in cases of infringement of intellectual property rights. However, I feel that a breach of a person’s right to privacy, which is enshrined in article 31 of the Constitution of Kenya, 2010 could also be reasonable grounds to issue a takedown notice.