RETHINKING THE REGULATION OF COLLECTIVE MANAGEMENT ORGANISATIONS IN AFRICA: LEGISLATIVE LESSONS FROM KENYA, SOUTH AFRICA AND NIGERIA
From a utilitarian perspective, laws on collective administration of copyright and related rights are necessary to bridge the gap between rights holders and users in order to achieve welfare maximisation. The deregistration of the Music Copyright Society of Kenya (MCSK) in Kenya, the collapse of the South African Recording Rights Association Limited in South Africa and the on-going battles involving the Music Copyright Society of Nigeria (MCSN) and the Nigerian Copyright Commission (NCC) in Nigeria are just a few recent examples that highlight the need to rethink the legal framework for regulation of collective management organisations (CMOs) in Africa. In this regard, this article begins with an examination of the legislative frameworks for regulation of CMOs in Kenya, South Africa and Nigeria by considering whether CMOs, once accredited, are adequately supervised by the State to ensure that the former operate effectively for the benefit of both rights holders and users. After examining the state of the respective country laws, this article reviews the current copyright reform initiatives in each of the countries and whether the tabled legislative proposals would be able to address the persisting regulatory challenges in the collective administration of copyright and related rights. This article concludes with several recommendations on reviewing the respective legislative frameworks for regulation of CMOs, the most important being the urgent need for empirical research on the impact of various legislative provisions on the collective management systems of Kenya, South Africa and Nigeria.
SAFARICOM AND INTERNET TAMPERING
Technical research conducted on several Internet service providers in Kenya for the last ten months between June 2016 and March 2017 indicates the presence of a middle-box on the cellular network of one provider, Safaricom Limited. Middle-boxes assume dual-use character in that they can be used for legitimate functions (e.g., network optimisation) and can simultaneously be used for traffic manipulation, surveillance and aiding censorship.
In light of such dual uses, this report makes clear that service providers operating middle-boxes must communicate to the public in a transparent manner the justification for such activity. This is especially relevant as government bodies announce plans to monitor the Internet during Kenya’s current electoral processes.
This brief presents the methodology we use to detect middle-boxes, illustrates how that methodology was applied on Kenyan networks as well as our findings from the ten months investigations. Finally, we contextualization these findings within the Kenyan political and legal processes.
KEEPING THE INTERNET ACCESSIBLE IN SOUTH SUDAN
Internet shutdowns, carried out for stifling communications amongst protesters and dissenters, have become increasingly common in African countries during key political events, especially election periods. For example, in December 2016, both the Gambia and the Democratic Republic of Congo (DRC) shutdown the Internet despite strong statements from the Keep It On campaign and other parties. Further, there was an anticipated escalation of internet censorship events and possible shutdown in Sudan and South Sudan on December 19th, following similar shutdowns in Sudan 2013. Although the shutdown did not materialise in both countries, there are fears of such events occurring in future given the recent civilian protest in November 2016 as millions of Sudanese protested the government’s economic policies and challenged its legitimacy. There are also similar fears of a repeat in the DRC unless the country finds a durable political settlement.
In light of the above, we are teaming with organisations and individuals, some of whom are listed below, to raise awareness of circumvention tools and related projects supported by the Open Technology Fund to help people in Sudan, South Sudan and the Congo to circumvent future internet shutdowns and help keep the internet accessible in these countries under those circumstances. This campaign builds and largely benefits from a similar Access Now campaign on the DRC on 19 December 2016.
A FRAMEWORK FOR ASSESSING TECHNOLOGY HUBS IN AFRICA
This article fills a gap in the research on technology hubs in Africa. It explains the importance of hubs as drivers of technological innovation, social change, and economic opportunity within and beyond the African continent. The article is the first to thoroughly review and synthesize findings from multi-disciplinary grey literature, and integrate insights from qualitative data gathered via interviews and fieldwork. It identifies three archetypes of hubs—clusters, companies, and countries—and discusses examples of each archetype using Kenya as a case study. The article discusses potential collaboration, conflicts, and competition among these archetypes of hubs, and concludes with recommendations for future researchers.
REGIONAL AND INTERNATIONAL BENCHMARKS ON SURVEILLANCE, CYBER CRIMES AND COMPUTER CRIMES
Surveillance, cyber espionage, cyber crimes and computer crimes transverse various regional and international standards and norms as set by the relevant standard setting, norm sharing bodies as well as security forums. They also implicate technical rules, for example relating to internet protocols and the management of internet infrastructure, critical resources such as internet assigned numbers and letters. This report will confine itself to the examination of the standards and norms that have a direct bearing on the exercise of human rights online.
KENYA: CENSORSHIP FREE INTERNET
Over the last five months we ran OONI tests in Kenya almost every day to examine whether internet censorship events were occurring in the country. Hundreds of thousands of network measurements were collected and analyzed. 1,357 URLs were tested for censorship, including both international websites and sites that are more relevant to Kenya (e.g. local news outlets). Yet, after five months of intensive testing from four local vantage points in Kenya, we found almost no signs of internet censorship in the country.
Zambia is known for its relative political stability, having avoided conflict and maintained a multi-party democratic presidential system since 1991. As part of its Constitution, Zambia guarantees press freedom and various human rights, including freedom of expression and the right to access information, which are enshrined in its Bill of Rights.
Several cases of censorship, however, have been reported over the last decades, including the ban of The Post, one of Zambia’s few independent newspapers, leading up to the country’s 1996 and 2016 general elections. Other cases of censorship were reported between 2013 and 2014, when four independent online news outlets - Zambian Watchdog, Zambia Reports, Barotse Post, and Radio Barotse - were blocked for their critical coverage of the ruling party. OONI revealed at the time that Deep Packet Inspection (DPI) filtering tactics were used to block Zambian Watchdog’s website.
In light of Zambia’s 2016 general elections, the Open Observatory of Network Interference (OONI), in collaboration with Strathmore University’s Centre for Intellectual Property and Information Technology Law (CIPIT), conducted a study to examine whether internet censorship events occurred during the election period. This study was carried out through the collection of network measurements from a local vantage point in Zambia, based on a set of OONI software tests designed to examine whether a set of websites were blocked, and whether systems that could be responsible for internet censorship and surveillance were present in the tested network (MTN Zambia).
The aim of this study is to increase transparency about potential internet controls in Zambia which might have interfered with the democratic process of elections.
INTERNET CENSORSHIP IN SWAZILAND POLICY
Censorship of the internet in Swaziland has been highly shaped by censorship of the traditional forms of media, especially newspapers and magazines. The laws that are used to censor the internet as a form of media are the same laws that are used to censor the internet. This is despite the current proposals to pass internet-specific laws.
Nevertheless, despite the political challenges, the new media, through cross border civil society solidarity, has been growing to create democratic space in response to the increasing authoritarianism and the King’s control over all the traditional media such as television for instance. This has been in the form of utilisation of websites, social media and blogs by political parties, political and democracy activists.
Since 2013, internet based activities have been under the regulation of the Swaziland Communications Commission, which derives its mandate from the Swaziland Communications Commission Act no.10 of 2013. The Commission, which foresees all internet providers in the Kingdom, is under the authority of the Ministry of Information and Communication Technology, which is generally responsible for the regulation of telecommunications in Swaziland.
Until recently, when internet related issues are catching government’s attention, there has been very little in the form of regulatory norms and laws. Since TV, Radio and printed newspapers were traditionally the main media channels, not much was done to establish any internet policy. Therefore, Swaziland does not have any officially recognized legislation or regulation pertaining to important aspects of cyber governance and activities, such as cybercrime but the Kingdom’s Ministry of ICT was the officially recognized agency responsible for implementing a national cyber security strategy.
INTERNET CENSORSHIP IN ZAMBIA: POLICY AND PRACTICE
Although print and broadcast media existed even before Zambia’s independence from Great Britain in 1964, the defining roots of new media can be traced to the period marking the introduction of the internet and economic liberation in 1991. Despite successive changes in governments, some of the policies and practices introduced by previous governments in relation to the traditional media can still be discerned within contemporary new media practice and policy; in particular, the current online censorship regimes.
From 1964 to 1991, under the leadership of Kenneth Kaunda, Zambia had several coup attempts, which prompted the government to impose states of emergencies and restrictions on public movement and self-expressions.
The period 1991- to-date, saw multi-party democracy and economic liberalisation and many state enterprises except for the state media were privatized. Media grew in numbers including private radio stations and newspapers that up to today are still important players in the democratization and political liberalisation of Zambia.
From 1991-2001, the media under President Frederick Chiluba continued to promote political pluralism. The same government also saw the advent of the internet in the country. It was responsible for laying the foundation for internet norms and institutions by passing the Telecommunications Act of 1994 and the establishing of the Communications Authority of Zambia (CAZ) which, since 2009 has since changed its name to Zambia Information and Communication Technology Authority (ZICTA).
Also the history on the development of censorship norms can be traced back to on the massacre of Alice Lenchina’s Lumpa church members for expressing their religious freedoms in defiance to President Kaunda’s humanistic ideology.
ANALYSIS OF INTERNET CENSORSHIP IN ZIMBABWE
Many ordinary Zimbabweans are used to living with their rights to access to information repressed. This also includes the right to freedom of expression, privacy and related rights. Human Rights Defenders, including political activists have particularly been the main targets. Creeping authoritarianism is evident in just about every facet of social and political life in Zimbabwe. Independent media are stifled, journalists intimidated, and opposition parties and civil society groups harassed and subject to a variety of suffocating regulations. Since independence, the successive governments led by Robert Mugabe have wielded monopoly over sate media, which include the print media, telecommunications, and broadcast. Independent media has been under constant assault, and in certain circumstances has been shut down. Therefore in many ways, information controls in the digital age are simply an extension of the information controls which has always been imposed on traditional media.
Through reliance on public order laws such as the Public Order and Security Act (POSA), Criminal Law (Codification and Reform) Act and the Access to Information and Protection of Privacy Act, social media such as WhatsApp or Facebook are monitored, for content that is critical to the President, the Police, and the Army. These laws, in particular POSA, are simply a reincarnation of the laws used by the white minority colonial government to repress the black majority. Therefore, Zimbabwe’s censorship regime is a continuation of the colonial culture of exclusion, and can be traced back to the time when Ian Smith took over as Prime Minister…
EVIDENCE OF SOCIAL MEDIA BLOCKING AND INTERNET CENSORSHIP IN ETHIOPIA
The Ethiopian government considers that social media has empowered populists and extremists to exploit people’s genuine concerns and to spread bigotry and hate. This position was made clear in the Prime Minister’s speech to the UN General Assembly in September. Indeed, a number of political and other activists have been arrested and charged under the Anti-Terrorism Proclamation on the basis of their activities on social media platforms. Yonatan Tesfaye, formerly of the Blue Party, was arrested and charged with terrorism crimes because of his facebook posts criticizing government policy and action.
In the midst of these protests, and in response to the numerous reports from Ethiopia that access to the internet was being blocked, the Open Observatory of Network Interference (OONI) performed a study of internet censorship. OONI is a free software project whose goal is to increase transparency about internet censorship and traffic manipulation around the world. OONI undertook the study in order to assess whether, and to what extent the censorship being reported actually occurred during the protests. OONI sought evidence of websites and instant messaging apps were being blocked; systems causing censorship and traffic manipulation, and inaccessibility of censorship circumvention tools such as Tor and Psiphon.
This report, presents the findings of the OONI study, and Amnesty International’s human rights analysis of these findings. This report also provides details of the technical methodology OONI used to verify the blockade on Whatsapp and the restrictions on websites with political and other content in a second, distinct section.
SURVEILLANCE AND PRIVACY IMPLICATIONS FOR HUMAN RIGHTS DEFENDERS IN ZIMBABWE
The central issue of this research is the extent to which Zimbabwe’s current state of policy and practice on political intelligence and communications surveillance of particular social groups perceived to be opposed to the Zimbabwean Government interests (thereafter called Human Rights Defenders or HRDs) breach the right to privacy. What gaps, if any, are there in bringing the current policy, legislative and practice frameworks in line with international standards and norms, and other comparable national and regional regulatory standards that exhibit best practice? A close examination of the above issue results in the following research questions, which this report seeks to answer:
The legal and constitutional landscape: What laws and constitutional provisions exist to protect privacy in theory? How are they implemented and monitored, and where are the legal and policy gaps? Communications surveillance: What communication surveillance regimes are in place? How are they designed in theory including law and how do they operate in practice?
Adoption of surveillance technologies: Where is the Zimbabwean Government buying surveillance technologies from, and how are these used? What legal regimes are there in place to establish safeguards over the use of advanced surveillance technologies? What is the state of the art in legal protections?
UTILITY MODEL PROTECTION IN KENYA: THE CASE OF SUBSTANTIVE EXAMINATION
The patent-granting authority of the Kenyan government ceased examining applications for utility model certificates (UMCs) in 2014, after 20 years of examination. This event resulted in an immediate and dramatic increase in the number of granted UMCs. The authors reviewed a selection of UMCs, some of which were granted after substantive examination and some of which were granted without substantive examination. Errors were found in both groups, and the overall quality of granted UMCs declined after cessation of substantive examination. The authors conclude that a return to substantive examination of UMC applications would, on balance, be beneficial to Kenya’s innovative ecosystem, and recommend that such examination be reinstated.