Ever since former Chief Justice Willy Mutunga created the Judicial Review division of the High Court, it has breathed life into the Constitutional provision on the right to a fair trial. The Constitution in Article 25 lists the right to a fair trial as among rights that cannot be limited or derogated at any time.
It is listed alongside freedom from torture and cruel, inhuman or degrading treatment or punishment; freedom from slavery or servitude; and the right to an order of habeas corpus, shedding light into its standing in elevating and protecting human rights in Kenya.
Appearing before the Judicial Service Commission(JSC) for interviews for the positions of Court of Appeal Judges, Justice George Odunga was authoritative that none of his decisions has ever been successfully appealed. It was testament of his judicial astuteness. It is in the Judicial Review that his name invited both friends and foe, including scathing attacks from leaders in Parliament. He never wavered, nor felt threatened and in fact, the Chief Justice rose to his defense, among other judges, underlining their independence and urging all those aggrieved to follow the right processes to seek any remedies.
In its elementary principle, fair trial is about procedure. For instance, in our judicial practice, the defendants are provided with the facts and evidence of what they are accused of to enable them to thrash them or provide answers, failure to which the prosecution or plaintiff will be unfair. Courts have said this cannot happen under their watch.
The Copyright (Amendment) law which the National Assembly passed on Thursday, September 12 and signed by the President could end up doing the exact same thing, giving a huge blow to content creators. As the law currently is, everyone and anyone who creates content is at risk.
The law’s provisions on take down notices to Internet Service Providers (ISPs) is flawed. First, the definition of an ISP is broad enough to encompass anyone, including a website owner who runs a news site. So long as they allow for people to make comments on posts published, they are an ISP, coming within the realm of the Act hence they will be required to act accordingly, failure to which, criminal sanctions await them being fine not exceeding Sh500,000 or imprisonment for a term not exceeding five years, or both.
Secondly, an ISP is supposed to bring down a post once they receive a complaint from someone within 48 business hours. Here it is unclear on the execution of the take down. If it is an internet service provider like Zuku for instance, they may bring down a whole article, yet the only offending bits is three lines or photos, but the rest of the content is fine.
Third, the law states that a person who is accused of infringing on copyright can provide a counter notice fulfilling the requirements set out for a takedown notice and contesting the contents of the takedown notice. It stops there. It assumes that the counter notice will be sufficient. There is a possibility that it will not, and the infringed content will continue being there or alternatively someone could decide to be giving counter notices until Jesus comes back.
A critical risk with the take down notice as currently framed is believing that all ISPs are competent copyright experts. This is reckless. If you for instance look at the Parliamentary Hansard on the proceedings in the Houses, Parliamentarians avoided the meat of the Bill, focusing more on things like the tenure and qualifications of the Kenya Copyright Board Executive Director. As a body of law, copyright and broadly intellectual property is extremely technical, not even well versed by most learned friends.
The only safety the take down notice provides is that a person who falsely or maliciously lodges a takedown notice or a counter notice commits an offence and shall, upon conviction, be liable to a fine not exceeding Sh500,000 or to imprisonment for a term not exceeding five years, or to both. But again, the determination of malicious or false is anybody’s guess.
But this could even be better secured by seeking guarantees to protect against vexatious individuals and organisations. A platform like Google which owns YouTube provides for a solution for malicious claims by expecting a guarantee of $10,000 from either parties as the issue is being settled.
In a process where the procedure is right and fair, an independent party, like the proposed Copyright Tribunal or administrative officers at the Copyright Board are best placed to mediate such copyright infringement concerns. They are the competent persons with institutional backing and history to facilitate a progressive realisation of copyright rights, protect abuse and instill confidence.
In addition, a procedure that sets clear adjudication between the accused, accuser and Judge is admirable. Certainly, no one wants these processes that are civil in nature and can be handled administratively to be hemorrhaged in the Judiciary, unless all other processes have been exhausted.
There is a long, winding road ahead to rectify this anomaly.