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With the evolving copyright laws it is important for artists and other players to update themselves with the relevant procedural laws that have recently been introduced in Kenya.

As opposed to other actionable civil claims, copyright claims have a specific prescribed procedure to be followed before one can institute a claim in a court of law.

This article mainly discusses the steps that a copyright holder should take in pursuit of copyright he/she believes has infringed by a third party.

To begin with, this article defines the term copyright as envisioned by the copyright laws of Kenya. According to section 2 of the Copyright Amendment Act 2019, the term ‘copyright’ alludes to the right to exclusive ownership of any works of musical, audio visual, literary and artistic nature by the first owner/author, an assignee or an exclusive licensee, as the case may be, of the relevant portion of the copyright. Any of the above classes of copyright owners may claim copyright over their work.

In other words, copyright means the exclusive and transferable legal right, granted to the author of an artistic peace of work to print, perform film, publish, or record literary, artistic, or musical material.

What should a copyright holder do when his/her work/material has been illegally used?

The procedure is relatively new and quit engaging. It is important to engage a Copyright lawyer who should guide you or act on your behalf.

Before the Copyright amendment Act came into force in September 2019, copyright claims were commenced by serving the infringing party with the usual demand letter. After the Copyright amendment Act came into force, copyright claims were subjected to a fairly alien procedure that require a copyright holder whose copyright has been infringed to undertake a number of preliminary steps before moving to Court. 

At this juncture this article issues a disclaimer to the readers,” The article does not purport that the steps explained hereunder are in mandatory terms.There is notorious use of the word ‘may’ in the Act hence creating an element of discretion as far as the issuance of a takedown notice is concerned.

Going back to the procedure, the Act has introduced the practice of serving a takedown notice to the Internet Service Provider (ISP) of the infringing party. This practice is prevalent in United States and there is some resemblance to the practice in Kenya.

In the US, the Online Copyright Infringement Liability Limitation Act  of 1998 require a copyright holder whose copyright has been infringed to notify the online service provider through a written notification of the claimed infringement.  Section 512(c) of the said Act gives a number of requirements that the written notification must meet.The notice must clearly identify the copyrighted material/work that the copyright holder claims to have been infringed. The copyright holder must also supply reasonably sufficient information to enable the service provider to locate the infringing material. The notice must contain a statement that the complainant has issued the notice in good-faith and in contest of unauthorized use of the copyright owner’s material/work. Finally the notice must contain a statement confirming that that the content of the notification is correct, and under penalty of perjury the complainant or the person issuing the notice is authorized to act on behalf of the owner of an exclusive right that is purportedly infringed.

The US practice is similar to the practice introduced in Kenya by the Copyright Amendment Act, 2019. This is essentially the procedure that should apply in all copyright claims. Ideally, the procedure is as follows:

Step 1

Identification of the Internet Service Provider of the infringing party- This is relevant because this is the party to be served with the takedown notice. An Internet Service provider (ISP) is an entity/a company that offers Internet connections and services to individuals. ISPs may also offer software packages like browsers, websites or e-mail accounts.

Step 2

Preparing a takedown notice- the Act requires the notice to be in writing. The notice must be addressed to the Internet Service Provider or their designated agent. Just as it is in the US, the notice must bear information that will enable the ISP to identify the infringing material. As such, the notice must describe in precise detail the copyright work subject to the purported infringement and which is sought to be removed. The right alleged to be infringed must also be identify and the content sought to be removed must be described with details of where the content is contained supplied.

Step 3

Serving the ISP with a takedown notice- Section 35B.(1) of the Act  requires a person whose rights have been infringed by content to which access is being offered by an Internet Service Provider to request the ISP by way of a takedown notice to remove the infringing content. However, it is not clear if failure to issue the notice amounts to contempt to the laid down procedure as the Act uses the word ‘May’ which in law does not create an obligation. Perhaps the practice is discretionary as the word ‘Shall’ which obligatory in nature may have been deliberately avoided. The notice should be served together with an affidavit or a statutory declaration attesting to the claimed ownership, validity of the rights, good faith and setting out any efforts to have entities responsible for making the content available to remove the content. Details such as the full names phone number, physical and email address of the person whose copyright has been infringed. The notice must also bear the signature of the complainant or his authorized agent. The complainant is also required to avail a copy of the notice to the Kenya Copyright Board, Communication Authority and the recognized umbrella association of service providers.

In conclusion, the above steps should precede any other subsequent steps to be taken by the complainant.

Authored by: Mugo Kamau