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March deadline looms large for Safaricom, Jamii Telkom piracy case

By Steve Umidha

The deadline for Kenya’s two largest telecommunications companies on a controversial piracy case looms large.

The High Court of Kenya will on March 3, 2021 know whether mobile operators Safaricom and Jamii Telkom will answer to piracy related charges.

The tow firms lost a delicate legal battle in a landmark ruling that directed the two operators to disable 141 sites that are suspected to be infringing on South Africa’s Multichoice copyrights.

Justice Wilfrida Okwany in his ruling, heard that 141 websites were carrying Multichoice content that airs on its SuperSport channels illegally with the court relying on the section 35D (2) of the Copyright Act in making the ruling that is set to have serious ramifications for the two operators should that decision be upheld in March.

“A temporary order is hereby issued as per section 35D (2) of the Copyright (Amendment) Act 2019 to the respondents to prevent or impede the use of its service to access a service, website place, domains or facilities,” reads the order issued last week.

The ruling is however a temporary measure preventing the two companies from further infringement of copyright before the matter is conclusively determined pending a full hearing of the suit on March 3, 2021 –in a legal suit that Kenya Copyright Board (KECOBO) and the Communications Authority (CA) are also listed as interested parties.

The directive is a win for Multichoice whose previous takedown notice was not acted upon by the internet service providers (ISPs) but a blow to sports fans across the country who rely on such sites to watch their favourite matches. According to Multichoice, these two ISPs had previously ignored the pay-TV service’s request to take down these sites.

In their defense, Safaricom and Jamii Telkom have maintained that the responsibility of pulling down the contents of the website lies with the Communication Authority of Kenya.

Under the Copyright Act of Kenya, using pirated software is a criminal offence and guilty parties are liable to fines of up to Sh800, 000.

Piracy rates in music and film range from 90 to 95 per cent, while the rate for software is estimated at 79 per cent and books at 30 per cent with the rise in piracy partly being attributed to the changing technology within the digital environment

Unfortunately, the internet provides countless ways for hackers and pirates to enter proprietary IT systems and networks. Detailed data on frequency, tactics and results of cybersecurity incidents are in their infancy in Africa, but tracking services are growing.

Though recent reports and data provided on cybercrime, including content piracy over the internet, has identified Kenya as a hotspot, most Kenyans remain unaware of the unintended consequences of their piracy activities and the harm it causes to communities, consumers and law-abiding citizens.

Earlier last year, a report by the Communications Authority of Kenya, showed there was an increase in cybercrimes attributed to an increasingly high number of malware threats, web application attacks, system misconfiguration and online abuse.

A study by the World Intellectual Property Organization puts the economic contribution of copyright industries in Kenya at Sh85.21 billion annually with the biggest challenge facing the sector being the unauthorized use of copyright protected works (copyright piracy) which has been on the rise in the last decade.

However, even with the rapid growth of cybercrime, prosecution of culprits is still low and slow with only seven percent of cases successfully prosecuted, according to a 2018 cybercrimes report by Serianu. In Kenya, even when cybercriminals are arrested, the penalties are often lenient compared to other jurisdictions.

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