Recap 

Last week, we discussed the obligations of an Internet Service Provider (ISP) under the Copyright Act. We also looked at the protection granted to them by the Act. Read our last episode here. This week, we discuss counter notices under the Act.

Introduction 

A takedown notice is a formal request, by a copyright owner, to an Internet Service Provider notifying the ISP that content on its website is infringing on the copyright owner’s rights and requesting the removal of the said content from the ISP’s website. This has been applied mainly in YouTube content, where several songs and other artistic content have been taken down from the website after complaints of copyright infringement by copyright owners. This has been made possible by the Copyright Amendment Act 2019, which introduced takedown notices under section 35B of the Act.

A copyright takedown notice can be lodged at any time once the copyright owner becomes aware of the existence of the infringing copy on an ISP’s website. The complainant, however, has to be sure that the said content infringes on his or her copyright. Non-infringing copyrighted contents include those in the public domain as well as those considered to be fair dealings with the copyrighted work. Fair dealings with a copyrighted work may include non-economic use of the copyrighted work for educational or research purposes, provided the copyright owner is duly acknowledged.

Contents of a valid takedown notice

According to section 35B of the Act, a valid takedown notice:

1. Be in writing and addressed by the complainant or his agent to the Internet Service Provider or their designated agent;
2. Contain the full names and telephone, physical and email address of the complainant;
3. Be signed by the complainant or his authorized agent;
4. Describe in specific detail the copyrighted work subject to the alleged infringement or sought to be removed;
5. Identify the rights being infringed.
6. Set out the content sought to be removed with details of where the content is contained.
7. Attach an affidavit or any other declaration attesting to the claim of 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;
8. Be copied to the Board, Communication Authority and the recognised umbrella association of service providers.

Effects of a takedown notice

An ISP is required by the Act, upon receipt of a valid takedown notice, to notify the person responsible for making available the alleged infringing content and provide them with a copy of the notice as soon as is practicable.  Failure to notify the responsible person of the takedown notice is an offense punishable with a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding five years, or both.

The Act also mandates an ISP to disable access to the material within forty-eight business hours unless it receives a counter notice fulfilling the requirements set out for a takedown notice and contesting the contents of the takedown notice.  An ISP that fails to take down or disable access to the infringing copy when it receives a takedown notice will be fully liable for any loss or damages resulting from non-compliance with a takedown notice without a valid justification.

The Act also pre-empts the possibility of people maliciously lodging takedown notices or a counter notice. The Act attempts to discourage such actions and makes it an offense to falsely or maliciously lodge a takedown notice. The offense is punishable with a fine not exceeding five hundred thousand shillings or imprisonment for a term not exceeding five years, or both.

A Counter Takedown Notice

This is a formal response to a takedown notice, by a person against whose content the notice was issued, either contesting the veracity of the takedown notice if the said content has not been taken down or claiming that his or her content was wrongly taken down if the said notice has been acted upon.

  A takedown notice may be filed in any of the following circumstances:

1. Misrepresentation –  where the contents were wrongly labelled as infringing. This would be where the infringing content is purely coincidental and does not amount to copyright infringement.
2. Licence or assignment –  this is where usage of the said content was authorized by a valid license or assignment.
3. Fair use –  where the said content is protected by the fair use doctrine.
4. Public domain – where the said content was in the public domain and therefore not subject to copyright protection.

A valid counter notice must satisfy similar requirements for the validity of a takedown notice discussed above.  

Conclusion

A valid takedown notice enables a copyright owner to request the removal of the infringing content from an ISP’s websites. In the event that the takedown notice is not contested, the infringing copy should be removed or taken down within 48 business hours. The content owner is also allowed to file a counter notice contesting such takedown notices. This new concept is a must-know for copyright owners, as it can be handy at any time, given the rampant use of digital media.

Next week, we shall discuss the concept of artist resale rights. Stay tuned.