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.

Filed Under: copyright, culture, dmca, edward sigei, films, kenya, liability, nigeria