CREATIVE INDUSTRY WINS BIG AS HIGH COURT ORDERS ISPS TO BLOCK PIRATING SPORTS WEBSITES

Creative industry wins big as High Court orders ISPs to block pirating industry

By African Times Correspondent

The High Court of Kenya confirmed a

permanent injunction compelling

internet service providers (ISPs) to

block sports pirate websites infringing

on copyrighted material.

In November 2019, Multichoice Kenya

filed a suit against Safaricom PLC and

Jamii Telecom Limited seeking to compel

the ISPs to block live sports

streaming sites on their networks. The

High Court had initially on 26th

November 2020 issued a temporary order

to the ISPs to block the said

infringing content but the same was

swiftly stayed by the Court of Appeal

on application by Safaricom.

In delivering her verdict, Hon. Justice

Wilfrida Okwany made a finding that

MultiChoice Kenya had lawfully issued

valid take down notices to the ISPs and

they ought to have complied with the

same. She further found that the ISPs

have not given any lawful excuse for

their failure to comply with the take

down notices. On delivery of her

ruling, Safaricom requested and were

granted by the court for 72 hours to

comply with take-down notices.

The ISPs have long opposed the takedown

provisions in the Copyright

(Amendment) Act and had even sought to

have the takedown provisions wholly

repealed from the Act 18 months after

their coming into force.

SuperSport has made substantial

financial investments to acquire and

hold the exclusive broadcast and

transmission rights for UEFA Super Cup,

Championship & Europa Leagues, English

Premier League and La Liga in Kenya

and other sub-Saharan Africa countries.

The constant illegal broadcasting over

the internet of their protected

content continues to dent their

revenues from paid up subscriptions.

The resolution of the landmark case

marks the first time that a Kenyan

court has sanctioned takedown notices

in terms of the Copyright Act as

amended in 2019. The amended Act states

in section 35B (1) 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 a takedown

notice, that the ISP removes the

infringing content.”

The Kenya Copyright Board (KECOBO) and

the Communications Authority of Kenya

(CA) were interested parties in the

suit.

Representatives of civil-society

copyright bodies, which work to fight

content piracy and protect intellectual

property, have welcomed the verdict.

“This is a red-letter day in the fight

against piracy in Africa,” said

MultiChoice Kenya Managing Director,

Nancy Matimu. “We have been fighting

for years to ensure that there are

legal copyright protections, and that

those protections are enforced. The

court has reaffirmed the stance of the

law that copyright must be protected.”

According to Nancy, the case would have

enormous implications for the content

industry right across the continent.

“The Kenyan courts have sent a message

to the rest of the world that we

respect the right of content creators

to earn a living from their work,”

added Nancy.

Nancy said if governments in the rest

of Africa followed the Kenyan example,

it would go a long way to strengthening

the standing of Africa as an

investment partner.

She is hopeful that African countries

will follow suit, by introducing

legislation to protect artists,

musicians, broadcasters and all content

creators, to prevent their content

being pirated and used illegally.

“This is a landmark ruling. With this

verdict, Kenya is saying that any

business looking to invest in Kenya can

rest assured that their intellectual

property will be protected.”