LIABILITY OF INTERNET SERVICE PROVIDERS TO CONTROL ONLINE

COPYRIGHT INFRINGEMENT UNDER THE ETHIOPIAN COPYRIGHT LAW

LL.M THESIS

BY

ZEKERIA ABDA JUNDA

ADVISOR: MEGERSA DUGASA (ASSISTANT PROFESSOR)

FEB, 2021
HARAMAYA UNIVERSITY, HARAMAYA
Liability of Internet Service Providers to Control Online Copyright Infringement
Under the Ethiopian Copyright Law.

A Thesis Submitted to CollegeofLaw, Postgraduate Program Directorate

HaramayaUniversity

InPartialFulfillmentoftheRequirementsforthe
LL.MDegreeinInternationalEconomicandBusinesslaw

Zekeria Abda Junda

Feb, 2021
HaramayaUniversity,Haramaya
 HARAMAYA UNIVERSITY
POST GRADUATE PROGRAM DIRECTORATE

I hereby certify that I have read and evaluated this Thesis entitled “Liability of Internet
Service Providers to Control Online Copyright Infringement Under the Ethiopian
Copyright Law” prepared under my guidance by Zekeria Abda Junda. I recommend that it
submitted as fulfilling the thesis requirement.

Megersa Dugasa (Assistant Professor)

____________________ ________________ ______________
(Major Advisor) signature date

As a member of board of examiners of LL.M Thesis open Defense examination, I certify that
I have read and evaluated the Thesis Prepared by Zekeria Abda Junda and examined the
candidate. I recommend that the Thesis be accepted as fulfilling the Thesis Requirement for
the Degree of Master of Law in International Economic and Business Law.

1. _________________ _______________ ______________

Chairman person signature date

2. ________________ _________________ ______________

Internal Examiner signature date

3. Kasim Kufa, Assistant Professor _______________ ______________

External Examiner signature date

Final Approval of the Thesis is contingent up on the submission of its final copy to the
Council of Graduate Studies (CGS) through the candidate’s department or school
graduate committee (DGC).
STATEMENT OF THE AUTHOR

By my signature below, I declare and affirm that this Thesis is my own work. I have followed
all ethical and technical principles of scholarship in the preparation, data collection, data
analysis and compilation of this Thesis. Any scholarly matter that is included in the Thesis
has been given recognition through citation. This Thesis is submitted in partial fulfillment of
the requirements for LL.M degree in International Economic and Business law at Haramaya
University. The Thesis is deposited in the Haramaya University library and made available to
borrowers under the rules of the library. I solemnly declare that this Thesis has not been
submitted to any other institution anywhere for the award of any academic degree, diploma or
certificate. Brief quotation from this Thesis may be made without special permission
provided that accurate and complete acknowledgment of the source is made. Request for
permission for extended quotations from or reproduction of this Thesis in whole or in part
may be granted by the head of college or department when, in his or her judgment, the
proposed use of the material is in the interest of scholarship. In all other instances, however,
permission must be obtained from the author of the Thesis.
Name: Zekeria Abda Junda
Signature ____________
Date____________________
College /department: Law

BIOGRAPHICAL SKETCH

The author, Zekeria Abda Junda was born in 1992 GC from his father Abda Junda and his
mother Yaba Hasan in rural village called Homa Biftu located in Gasera district of Bale zone,
Oromiya regional state. He attended his primary education at Homa Biftu primary school and
secondary and preparatory education at Gasera secondary and preparatory school. The author
obtained LL. B degree with great distinction from Haramaya University in 2016.

i
Upon graduation, he has employed as an assistant lecturer of law at Haramaya University,
college of law where he taught various law courses and still serving as instructor. Meanwhile,
in 2018 he started pursuing his LL.M degree in International Economic and Business law.

ACKNOWLEDGMENT

First of all, I would like to thank the Almighty God for granting me the wisdom and
knowledge to make this work in addition to his immeasurable protection.
Next, I express my extreme sense of reverence to my advisor Megersa Dugasa (Assistant
Professor) who has sacrificed his precious time to critically read and give a valuable
comments and suggestions that stimulated the writing of this thesis in the right direction. This
research would not achieve the current status but for his constant guidance and constructive
comments. I always remember his commitment and relaxed nature. His respect and interest to
help others is always in my memory and would like to say thanks again!
I would also be indebted if I do not forward my appreciation to the key authorities of
Ethiopian Intellectual Property Office (EIPO), Ethiopian Ministry of Information and
Communication Technology, Federal High Court, Ethiopian Film Producers Association,
Ethiopian Writers Association, Ethiopian Copyright Association, Ethiopian Musicians
Association and also the individual authors for their insightful response during the interview.

ii
I would like to acknowledge all concerned intellectuals whose work has been directly or
indirectly incorporated in this paper in addition to the usual acknowledgements that was
accorded to them in the form of citation and reference. My sincere gratitude also goes to
Haramaya University which allowed me to attend this program in order to acquire such
important knowledge. Lastly, but not the least, I would like to say thanks and congratulations
to my family for the support they gave me throughout my endeavour which is invaluable and
crucial one.

ACRONYMS AND ABBREVIATIONS

Art. Article
CAS Copyright Alert System
CCI Center for Copyright Information
CD Compact Disk
CR Copyright
CRI Copyright Infringement
DMCA Digital Millennium Copyright Act
DVD Digital Versatile Disc
EIPO Ethiopian Intellectual Property Organization
ETA Ethiopian Telecommunication Agency
ETC Ethiopian Telecommunication Corporation
ETS Ethiopian Telecommunications Services
FDRE Federal Democratic Republic of Ethiopia
ICT Information Communication Technology
IP Intellectual Property

iii
IPA Internet Protocol Addresses
IPR Intellectual Property Right
IPSA Internet Service Providers Association
IRB Industry Representative Body
ISPs Internet Service Providers
MCIT Ministry of Communication and Information Technology
MoTAC Ministry of Transport and communication
MoU Memorandum of Understanding
OSPs Online Service Providers
P. Page
Para. Paragraph
Pp. Pages
UK United Kingdom
US United State of America
WIPO World intellectual Property Organization

TABLE OF CONTENT

CONTENTS PAGES

STATEMENT OF THE AUTHOR...........................................................................................i

BIOGRAPHICAL SKETCH....................................................................................................ii
ACKNOWLEDGMENT..........................................................................................................iii
ACRONYMS AND ABBREVIATIONS..................................................................................iv
TABLE OF CONTENT............................................................................................................v
ABSTRACT.............................................................................................................................vii
1. INTRODUCTION............................................................................................................1
1.1. Background of the Study.........................................................................................1
1.2. Statement of the Problem........................................................................................5
1.3. Objectives of the Study............................................................................................7
1.3.1. General objective...................................................................................................7
1.3.2. Specific Objectives.................................................................................................7
1.4. Research Questions..................................................................................................8

iv
 1.5. Significance of the Study.........................................................................................8
1.6. Scope of the Study....................................................................................................9
1.7. Literature Review....................................................................................................9
1.8. Research Methodology..........................................................................................13
1.9. Limitations of the Study........................................................................................14
1.10. Organization of the Study.....................................................................................15
2. CONCEPTUAL FRAMEWORKON ONLINE COPYRIGHT INFRINGEMENT
AND THE LIABILITY OF ISPs..........................................................................................16
2.1. Introduction............................................................................................................16
2.2. Copyright Infringement on the Internet..............................................................18
2.3. Liability for Online Copyright Infringement......................................................21
2.4. ISP’s Liability to Control Online Copyright Infringement...............................23
2.4.1. Who are ISPs?.....................................................................................................23
2.4.2. Why ISPs Required to Assume a Legal Duty to Control Piracy?........................24
2.4.3. Argument Against ISPs’ Liability........................................................................27
2.5. Regulatory Regime to Govern ISP’s Liability for Online Copyright
Infringement.......................................................................................................................28
2.5.1. The Early Development: the common law principle of secondary liability rule. 28
2.5.2. The Contemporary Development: ISP’s (secondary) Lability to Control Online
Infringement (ISP’s Limited Liability Rule)....................................................................33
3. REVIEW OF INTERNATIONAL APPROACH AND THE EXPERIENCE OF
OTHER COUNTRIES..........................................................................................................43
3.1. Introduction............................................................................................................43
3.2. International Approach.........................................................................................43
3.3. The experience of other countries.........................................................................47
3.3.1. The US Experience..............................................................................................50
3.3.2. The South African Experience.............................................................................61
4. ONLINE COPYRIGHT INFRINGEMENT AND ISP’s LIMITED LIABILITY
RULE UNDER THE ETHIOPIAN COPYRIGHT LAW..................................................70
4.1. Introduction............................................................................................................70
4.2. General Overview of the Ethiopian Copyright legal regime..............................70
4.3. The development of digital network Technology and online copyright
infringement in Ethiopia...................................................................................................74
4.3.1. The Development of ICT System in the country: General Overview...................74
4.3.2. Online Copyright Infringement and its Effects in Ethiopia.................................77
4.4. Liability for Online Copyright Infringement in Ethiopia.......................................80

v
 4.5. The Liability of ISPs to Control Online Copyright Infringement in Ethiopia:
the rule of limited liability under the existent copyright law.........................................83
4.6. The Pressing Need for Regulatory Response.......................................................94
5. CONCLUSION AND RECOMMENDATION...........................................................96
5.1. Conclusion...............................................................................................................96
5.2. Recommendation....................................................................................................96
REFERENCES.....................................................................................................................102
ANNEXE...............................................................................................................................114

LIABILITY OF INTERNET SERVICE PROVIDERS TO CONTROL ONLINE

COPYRIGHT INFRINGEMENT UNDER THE ETHIOPIAN COPYRIGHT LAW

ABSTRACT
The main objective of providing legal protection for copyright under the Ethiopian copyright
system is to protect the author’s interests and that of the public. To strike a balance between
these interests, copyright law provides exclusive rights to the authors to exploit the fruit of
their works, while at the same time, putting some limitations and exceptions on these rights
in favour of public interest. The law forbids any interference with these rights beyond the
allowed limitations and exceptions. Copyright law is thus, meant to achieve the dual goals
embodied under copyright system of the country.However, revolution of internet and
digitalization process disrupted the founding principle of copyright system by giving rise to
new form of copyright violation on the internet generally termed as online copyright
infringement which is the very pressing problem worldwide and to be addressed urgently in
Ethiopia too. Internet technology, unquestionably,brought numerous advantages and
possibilities for the development of copyright industry thereby facilitating the author’s
intellectual creativity and widening markets for the exploitation of their works with much
more versatility than in the past. Nonetheless, it is also the attributes of the same platform
that posed the threat ofpiracy by allowing the illicit internet users to access, exploits or
disseminates, unlawfully and for free, a copyrighted work of others on the internet using
ISP’s platform. The key reason that renders online piracy so complex and problematic issue
is related to the nature of the internet itself; it facilitates the occurrence of large amount of
infringement so easily while making the controlling process extremely difficult task by

vi
allowing anonymous privilege for the perpetrators under which they hide themselves from
the reach legal action for the purpose ofliability. This in turn makes the involvement ISPs
inevitable in the strategy of online copyright protection as they have proven to be the best
and indispensable party to sanction piracy effectively.
The aim of this study is thus, to investigate whether the Ethiopian copyright legal regime
provide protection for copyright in cyberspace, particularly focusing on the liability of
Internet Service Providers to control online copyright infringement under the current
copyright law of the country. In doing so, the study applied doctrinal and comparative legal
research methods relaying on both primary and secondary sources of data. Accordingly, the
critical scrutiny made through this study reveals that, there is no any stipulation neither
regulating copyright in cyberspace nor attributing online copyright protection liability to
ISPs under the existent Ethiopian copyright legal regime. The absence of regulatory
compliance which oblige ISPs to assist online copyright protection strategy can be
considered as the main obstacle to scramble the aspiration of fighting piracy in Ethiopia.
Based on the findings of this study therefore, the researcher suggests that the Ethiopian
government should adopt a regulatory regime which impose online copyright protection
liability on ISPs so that the right holders would enlist ISP’s aid to control the unlawful
dissemination of their works on the internet and enforce their rights against the pirates. This
would also help to accommodate the shortfall of Ethiopian copyright law in this regard.
Keywords: Internet, Copyright, ISPs, Online Copyright Infringement, ISP’s Liability,
Limited Liability Rule

vii
 1

1. INTRODUCTION

1.1. Background of the Study

Copyright is creation of mental labor and thus part of the broader subject of intellectual
property (herein after referred to as IP). 1 It is a property right which subsists in the various
‘works’, such as literary works, artistic works, musical works, sound recordings, films and
broadcasts and etc.2 It is a legal concept, giving exclusive rights to the authors against their
intellectual creativity, usually for a limited period time. 3 Copyright law is a branch of IP law
which governs human intellectual creativity. 4 Copyright law, however, protects only the form
of expression of idea, not the idea itself. The works covered by copyright include: literary
works such as novels, poems, plays, reference works, newspapers, computer programs,
databases, films, musical compositions, and choreography; artistic works such as paintings,
photographs, sculpture, architecture, advertisements, maps and technical drawings.5

The main objective for recognition and providing legal protection for copyright is to strike a
balance between the author’s interest to control and exploit the fruit of their creative works,
and that of public interest to access and fair uses of such works. 6 With this goal in mind, to
protect the author’s interest on the one hand, copyright law provides two sets of exclusive
rights to the authors, these are; economic rights and moral rights. Economic right is an
exclusive legal right given to the creators to control and exploit their works, and
encompasses; the right to reproduce, communicate, broadcast, adapt, translate, arrange,
transform, distribute or import the copyrighted works or to authorize others to exercise any
these rights.7 The moral rights protect the author's creative integrity and reputation as
expressed through the works.8 Any interference with any these rights without prior
1
Peter Groves, Source Book on Intellectual Property, (1997), at 17.
2
David I. Bainbridge, Intellectual Property, 7th Edn, Pearson Longman, Ashford Colour Press Ltd, Gosport,
(2009), at 5 and 31.
3
World Intellectual Property Organization (herein after WIPO), Understanding Copyright and Related Rights, (2013).
4
WIPO, Intellectual Property Handbook: Policy, Law and use, 40-67, (2008).
5
PaulEdward G.International Copyright: The Introduction, (2017), available at:
http://www.internationalcopyrightguide.com . …accessed on 3/4/2020.
6
David Vaver, principle of intellectual property law, cases and materials, (2002).
7
Copyright law in the EU, Silent feature of copyright law across the EU member states, (2018). Available at:
http://www.europarl.europa.eu/thinktank
8
M Jansen, The protection of copyright works on the internet — an overview, The Comparative and
International Law Journal of Southern Africa, Vol. 38, No. 3 (2005), at 345, available at:
http://www.jstor.org/stable /23252622.
 2

authorization is violation of copyright law and termed as ‘Copyright Infringement.9 On the

other hand, in order to protect public interest, copyright law simultaneously put some
limitations and exceptions on these rights so that the flow of information and dissemination
of knowledge will not be hindered.10 However, revolution of internet network technology and
the digitalization process, which recently enveloped in the world, disrupted this founding
principle of copyright protection system and thus, brought drastic alterations to the copyright
regulatory regime that has adopted in the pre-digital era.11 Internetmade possible the
technological innovation and refined how people interact in a way that has never been
possible before its creation.12The greatest advantage of this technology is its transnational
nature and capability to enable people around the planet to exchange great quantities of
digital information within seconds.13 It can be accessed easily through a middle party known
as ‘Internet Service Providers’ (herein after referred to as ‘ISPs’) or ‘Internet
Intermediaries’which provide internet services and other operating system to facilitate
internet activities.14

Internet is however, a double-edged sword technology. Beside the above discussed

advantages, internet technology brought also very challenging effects to various groups of
society as well as some sectors of economy. A particular example, which is the focus of this
study, pertains to online copyright infringement and the liability thereof. 15The attributes of
internet technology that makes it attractive are the same one that brought a threat of online

9
Copyright infringement can be direct or indirect. Direct or primary copyright infringement occur when any
person, without prior authorization, did anything that only the right holder has the right to do under the law.
Secondary or indirect infringement is a means by which a person may be held liable for copyright
infringement even though he or she did not directly engage in the infringing activity. Secondary infringement
may take a form of contributory infringement or vicarious infringement, see: Jonathan Rosenoer, Cyber Law:
The Law of the Internet, (1997), at 4, available at:https://www.amazon.com/CyberLaw-Law-Internet-Volumes-
Mathematics/dp/0387948325
10
Trajce Cvetkovski, Copyright and Popular Media Liberal Villains and Technological Change, University of
Queensland, Australia, (2013).
11
Jim Lahore, Fair Dealing and the Digital Agenda: Will the Copyright Balance Survive? Vol.18(1), Copyright
Reporter, (2000), at 23.
12
Jennifer L. Kostyu, Copyright Infringement on Internet: Determining the Liability of Internet Service
Providers, 48 Cath. U. L. Rev. 1237 (1999), available at: http://scholarship.law.edu/law review/vol48/iss4/8.
13
Mary A. Shulman, Comment on Internet Copyright Infringement Liability: Is an Online Access Provider
More Like a Landlord or a Dance Hall Operator? 27 GOLDEN GATE U. L. REV. 555, 557-58 (1997).
14
Chaubey R. An introduction to cyber-crime and cyber law, Kolkata: Kamal Law House, (2008).
15
Asherry Magalla, Copyright Infringement in Tanzania: the meaning of digital copyright infringement, law
and practice, (2015).
 3

copyright infringement to international copyright society.16 With the advent of digital

network technology, new forms of unauthorized access and dissemination of copyrighted
materials on the internet expanded rapidly beyond the control of the then existent copyright
protection system.17 Through internet network, a large number protected works can be copied,
uploaded, downloaded, distributed or transmitted unlawfully and easily without perceptible
loss in quality.18 Consequently, the right holders are losing a managed control and
exploitation of their creative efforts.19 In one way or another, online copyright infringement
involves three parties, these are; ISPs, primary infringers (internet users) and copyright
holders.20
As concerned liability for online copyright infringement, as a principle, the primary infringers
assume the liability and pay the damage arising out of the infringing conduct. 21 However,
practically it is very difficult for the right holders to identify the primary infringers and ask
them to assume liability. 22 This due to the very inherent nature of internet platform; as said
above, internet technology make it easier for illicit users to engage in high volume of
infringement; it has also a quality to cover the identity of infringer under the guise of
‘internet anonymity’, therefore controlling such large amount of infringement and/or tracing
the alleged infringer is technically the very difficult task and represent great economic burden
for the right holders.23 Moreover, as the illicit users could be very high in number, it is
impractical to identify and sue each perpetrator for the direct infringement. 24 It is also not
easy to know the jurisdiction where the alleged infringing information emanates from or
passed through to arrive at its final destination as it may differ from the place where the
victim is residing. This complex nature of online environment rendered the effort law

16
Copyright Infringements in Cyberspace: The Need to Nurture International Legal Principles, International
Journal of the Computer, the Internet and Management, Vol. 14. No.3, 8-31.
17
Jim Lahore, supra note 11.
18
Just. M, and Biegal, S., Internet File-Sharing and the Liability of Intermediaries for Copyright Infringement:
A Need for International Consensus, The Journal of Information, Law and Technology, Vol.1, (2001), available
at:http://elj.warwick.ac.uk/jilt/03-1/just.html
19
Okitikpi Toritseju, The liability of ISPs for copyright infringement in Nigerian context, (2014), at 1.
20
Graeme B. Dinwoodie (ed.), Secondary Liability of Internet Service Providers, Ius Comparatum – Global
Studies in Comparative Law 25, Springer International Publishing, 1-383, (2017), at 140-143.
21
Mark A. Lemley and R. Anthony Reese, Reducing Digital Copyright Infringement without Restricting
Innovation, Stanford Law Review, Vol. 56, No. 6, 1345-1434, (2004), available at:
https://www.jstor.org/stable/40040194 ...accessed on: 5/6/2019.
22
Siffard J., The Peer-to-Peer Revolution: A Post-Napster Analysis of the Rapidly Developing File-Sharing
Technology, 4, Vand. J. Ent. L. & Prac. (2002), at 93.
23
Id.
24
Mark A. and Reese R. supra note 21.
 4

enforcement against primary infringer almost undoable.25 Consequently, the copyright

holders and policy designers have found the answer to this problem in placing legal liability
for online copyright infringement on those who allowed and enabled the third-party
subscribers, namely; the ISPs.26 The right holders turn to sue ISPs claiming that ISPs are the
party who act as intermediaries and provide infrastructures that facilitate online
infringement.27Plus, they argue that, ISPs possess the requisite apparatus to regulate internet
services’ users, therefore they should be imposed with a legal duty to control the illicit users
on their platform.28 However, there is also counter argument against ISP’s liability claiming
that ISPs are not the infringing entities by themselves, therefore should not take liability
through no fault of their own. Be that as it may however, after an extensive debate, when
proven impossible to control piracy only through direct liability scheme, the accepted
principle is that ISPs ought beer some legal duty to control online infringement.
Accordingly, different jurisdictions have adopted a regulatory regime which imposes online
copyright protection and enforcement liability on ISPs.

Coming to the context of Ethiopia, though the origins of copyright protection in the country
date back to the enactment of penal law and civil law in 1957 and 1960 respectively, these
laws were not effective to adequately address issues of modern copyright protection. In 2004,
the Ethiopian government enacted the Copyright and Neighboring Rights
Protection Proclamation No.410/2004 as the country's first comprehensive legal
framework.29The proclamation provides exclusive rights to the author copyrighted work. 30
Exercise of these rights without prior authorization amount to copyright infringement,
therefore it follows that the holder can bring legal actions against the infringer under the
enforcement provisions of the proclamation. 31 However, similar to the situation of other
jurisdictions, the evolution of internet technology in the country posed a threat of online
infringement offering a remarkable challenge to right holders to control the dissemination of
their works and enforce of their rights on the internet. Internet was introduced to Ethiopia in
25
Jim Lahore, supra note 11.
26
Richard G. Kunkel, Indifference and Secondary Liability for Copyright Infringement, 33 Santa Clara High
Tech. L.J. 1 (2016), available at:http://digitalcommons.law.scu.edu/chtlj/vol33/iss1/3
27
Copyright Infringements in Cyberspace, supra note 16, See also: Siffard j., supra note 22, at 95.
28
Mary A. Shulman, supra note 13.
Copyright and Neighboring Rights Protection Proclamation No. 410/2004, Federal Negarit Gazetta, 10 thyear,
29

No. 55, (2004).

30
Id, Art 7 and 8.
31
Id, Art 35, 36 and 37.
 5

1990s.32 Since then, the level of internet services has been expanding from time to time in
terms of penetration rate, access, speed and the number of subscribers. 33 Ethio-Telecom, the
sole government owned operator, is the only ISP company in Ethiopia. 34It is hardly
questionable that the introduction of internet technology brought numerous advantages and
possibilities for the development of Ethiopian copyright industry of the country thereby
facilitating the author’s intellectual creativity and widening markets for the exploitation of
their works with much more versatility than in the past. It is also equally true that the same
technology dramatically transformed the way how people get access to copyrighted
works.35The increasing use of internet services provided by telecom company opens more
opportunities for thepirates to exploit and/or disseminate, unlawfully and for free, a
copyrighted work of others on the internet which in turn seriously affecting the author’s
rights to exclusively control and use the fruit of their works.Against the background of the
foregoing premise, this study tried to discuss the liability of ISPs to control online copyright
infringement under the Ethiopian copyright legal regime and other related issues. It attempted
to explore why ISPs are required to act against online piracy and the evolving regulatory
approach. It then examined whether the current Ethiopian copyright law impose online
copyright protection liability on ISPs as an effort to fight piracy.

1.2. Statement of the Problem

The inherent quality of internet platform to facilitate the exchange and spread of productive
information on a broadest scale undoubtedly, advanced the development of world society.
Now a days, the content community comprising of researchers, educators, music and
entertainment industries, artists or publishers are highly relying on the internet services to
conduct their activities or to expand the base of their markets.36 The authors of copyrighted

32
Kinfe Micheal Yilma and Halefom Hailu Abraha, The Internet and Regulatory Responses in Ethiopia:
Telecoms, Cybercrimes, Privacy, E-commerce, and the New Media, MIZAN LAW REVIEW, Vol. 9, No.1, 108-
153, (2015), available at:http://dx.doi.org/10.4314/mlr.v9i1.4 …accessed on 13/2/2020. See also; Halefom
Hailu, The State of Cybercrime Governance in Ethiopia, 1-25, (2015).
33
Ethiopian Ministry of Communication and Information Technology, The 2019/20 First Half Business
Performance Report of Ethio-telecom, (2020), available at: https://www.ethiotelecom.et
See also: The Federal Democratic Republic of Ethiopia, The National Information and Communication
Technology (ICT) Policy and Strategy, (2016), available at: http://www.mcit.gov.et/documents/20181/22562/
34
Richard Self, Impact of WTO Accession on Ethiopia’s Telecommunication Services Sector, Revised Final
Report, (Nathan Associates Inc.), et al (2007), at 16.
35
Elias Fikru, Copyrights, Royalties and Music Piracy in Ethiopia, (2016), available at:
https://www.musicinafrica.net/magazine/ copyrights-royalties-and-music-piracy-ethiopia.
36
Siffard, supra note 22.
 6

works benefit from the internet through a quick distribution of their work at a low cost with
no difference in terms of the quality of the reproduction. 37 However, simultaneously the
inherent quality of internet platform allows an anonymous and invisible copyright piracy
thereby facilitating an authorized use of protected works in a complete disregard to the rights
of legitimate authors.38 Since the last three decades, the problem of online copyright
infringement and addressing the ‘liability question’ has been around and still a worldwide
turmoil issues of legal concern.Not an odd to the aforementioned international copyright
society, online piracy is equally an appalling problem in Ethiopia too. The existent Ethiopian
copyright proclamation enacted in 1994 when online piracy was not an imperative issue in
country. The introduction and the increasing access of internet facilities in the country
however, posed the problem of online copyright infringement. The right holders facing a
situation in which the works that they have spent years to create are unlawfully reproduced,
distributed or communicated easier by a simple press of button in seconds within the
competence of ordinary individuals.Therefore, concern of online piracy and the liability
thereof as well as the way out to control this overwhelming problem are now the very
pressing issue to be addressed urgently in the country.
The copyright proclamation protects the authors against infringement of their rights and
provides different remedies so that the right holders would bring legal actions against the
infringer.39 The proclamation seems embraced strict liability and envisages an unvarying
enforcement mechanisms indifference to the types of infringements, therefore anyone who
interferes with any of author’s exclusive rights without prior permission would be held liable
regardless of his knowledge or intention that he is infringing copyright. In view of the same,
though not explicit and still open to argument, the copyright holders may raise this stipulation
as statutory ground to lodge legal action against the person who infringe their rights on the
internet.40 Be that as it may, the inherent nature of online platform, which exasperate
infringement in large amount and hinders legal action against the primary infringers as
discussed above, give reasonable ground to oblige ISPs with a responsibility to act against
the infringementthat take place on the internet. Given this fact however, whether the
Ethiopian copyright law impose online copyright protection liability on ISPs is questionable
and thus, the main issue to be addressed in this study. To this end, the study will make deep
37
Id.
38
Matthew R. Just, Internet File-Sharing and the Liability of Intermediaries for Copyright Infringement: A Need
for International Consensus, Journal of Information, Law and Technology 2003(1)(2001).
39
Copyright Proclamation, supra note 29, Art. 7, 8, 35, 36 and 37.
40
Id.
 7

scrutiny through the existent copyright law to identify if ISPs have legal obligation to control
online infringement as well as the penalty that they may face (if any) for failure to react
against the alleged infringement.
The absence of a clear and balanced legal regime which regulate cyberspace, create a
confusion and left copyright holders, ISPs and internet users without any direction
concerning their rights and obligations in online environment. This confusion stemfrom the
contradictory interests of these parties; on the other hand, ISPs and Internet service users,
want the cyberspace to be free of legal threat. On the other hand, copyright holders, who are
the victims of online infringement, seek an effective legal resolution that enables them to
overcome the challenges of online copyright infringement in manner that would best protect
their interests.41 They are in critique of the current Ethiopian copyright protection system
stating that, it is highly incompetent to regulate copyright in digital age, and vehemently
urging for legislative action so that they could effectively protect and enforce their right on
the internet. Therefore, it is so imperative to undertake some analysis to identify the
regulatory reform that should be made in Ethiopia so as to strike a balance between these
conflicting interests in the manner that would promote the objective of online copyright
protection through ISPs.

1.3. Objectives of the Study

1.3.1. General objective

This study mainly aimed to discuss and analyze major concern relating the need to protect
copyright in cyberspace focusing the liability of ISPs to control copyright infringement that
take place on the internet under the current Ethiopian copyright law.

1.3.2. Specific Objectives

Ø To explore and analyze the liability of ISPs to control copyright infringement that take
place on the internet platform and examine why they are required to take such duty as
well as the governing principle;
Ø To examine and discusses the international approach (if any) and experience of other
countries concerning ISP’s liability to control online copyright infringement;

41
Greame, supra note 20, at 142.
 8

Ø To examine the Ethiopian copyright legal regime and analyze if there is any stipulation
which impose online copyright protection liability on ISPs under this law;
Ø Based on the discovered facts from the analysis, the researcher has forwarded some
recommendations.

1.4. Research Questions

Having this objective, the study strived to answer the following research questions:
1. Should ISPs assume liability to control copyright infringement that take place on the
internet platform? and why they are required to assume such liability?
2. Is there any internationally accepted regulatory regime that govern ISP’s liability to
control online copyright infringement? what about the experience of other countries in
this regard?
3. Who is liable for online copyright infringement under the Ethiopian copyright law?
4. Does the existing Ethiopian copyright law require ISPs to control online copyright
infringement? if not, is there any legal and practical necessities to impose online
copyright protection duty on ISPs in Ethiopia?

1.5. Significance of the Study

The importance of this study is perceptible in terms of its contribution to reveal and create
cognizance to all concerned stakeholders about online copyright infringement; the impacts it
causing on the Ethiopian copyright industry, as well as the possible challenges that the right
holders are facing to control it in Ethiopia. Moreover, it has a vital significance to introduce
and clarify newly evolving concept of ‘ISP’s liability to control online copyright
infringement’ in Ethiopia. The examination and deep scrutiny of Ethiopian copyright law, in
this study, will help to assess whether the existing Ethiopian copyright law require ISPs to act
against piracy as an effort to protect copyright on the internet, and on the basis of the
findings, this study has forwarded recommendation, calling for a regulatory reform to involve
ISPs in online copyright protection strategy in the country. Thus, the study will help to bring
to the attention of the legislator the need to adopt and incorporate ISP’s liability rule into
Ethiopian copyright law as a regulatory scheme to fight piracy. Additionally, the review and
analysis of international trend and the approach of other jurisdictions in relation to the ISP’s
liability to control piracy in this study, will help the government to carefully select and
contextualize the relevant and effective policy that has been tested through actual application.
 9

Further, the study, while helping as a start point for further research, will also be a useful
reference for academicians, students or any person who wants to read for further knowledge.

1.6. Scope of the Study

As mentioned in the objective, it is not within the remit of this study to deal with the all types
of copyright infringement liability, it rather limited only to exploring the positive duty that
ISPs may undertake in order to control copyright infringement that takes place on the internet
under the Ethiopian copyright law. The liability to make damage and criminal liability of
ISPs are thus, out of the purview of this paper. Concerning the subjects of copyright, this
study concerns those works which are subjected to protection in Ethiopia, therefor the term
‘copyright work’ used in the context of this study refers all types of works and the respective
set of copyrights (capable of being infringed on the internet) which are recognized and
protected under the governing Ethiopian copyright legal regime.Regarding ‘ISPs’, so far,
Ethio-telecom is the only government owned ISP company in Ethiopia. However, recently
the government of Ethiopian adopted a new law (Proclamation No. 1148/2019) which, for the
first time, liberalize long-awaited Ethiopian telecommunications sector.42 This may pave a
way for numbers of private companies to participate in telecom sector and provide internet
services in Ethiopia. Therefore, expecting more ISPs private companies soon in Ethiopia, this
policy change has given due consideration in this research, as doing so would not affect the
outcome of the study.

1.7. Literature Review

The problem of online copyright infringement and the issue of ISP’s liability are the most
complex and controversial legal issues that has been around for the last three decades and still
the subject of extensive debates in different parts of the world.43 Hence, it is only in recent
years that the debate and analysis whether ISPs should make damage for the infringing act of
illicit users or assume positive responsibility to control the infringement that take place on the
internet has attracted the attention of legal scholars as a newly developed concerns area of
research in the copyright field. Different scholars have conducted different researches and

42
Communication Service Proclamation No. 1148/2019, Federal Negarit Gazetta, 25 th year, No. 82, 12th
August, (2019), Art 54.
43
Davis P. Connie, The Saga Continues: Secondary Liability for Copyright Infringement Theory, Practice and
Predictions, Akron Intellectual Property Journal: Vol. 3: Iss. 1, Art 7. (2009), available at:
http://ideaexchange.uakron.edu/akronintellectualproperty/vol3/iss1/7.
 10

academic investigations in relation to this issue. However, there is no specific research done
so far on the title:“Liability of Internet Service Providers to Control Online Copyright
Infringement Under the Ethiopian Copyright Law” as my knowledge and access concerned.
This section is thus, devoted to review some relevant studies and the works of other
researchers directly or indirectly related to this theme.

The Internet can be described as history’s greatest technology and the ultimate platform for
digital communication. Currently the world societies are highly relying on the internet service
because, it offer a forum for a true diversity of political discourse, diverse education and
information, unique opportunities for cultural development and myriad avenues for
intellectual activity.44The interactive attributes of Internet nonetheless, stretch the territorial
boundaries to copyright community with some unprecedented challenges affecting the ability
to control and exploit their creative activities exclusively. 45 According to Bryan Mercurio, the
rapid expansion of Internet network and other digital technology has greatly expanded the
‘context’ through which online copyright infringement can occur.46 He asserted that, digital
network enables a quick download and forwarding of protected materials on the internet, with
inexpensive access thereby allowing internet users to effortlessly bypass copyright laws at a
substantial cost to legitimate owner.47 Y. Guo48 stated that there are enormous differences
between digital network medium and the traditional media in terms of copyright infringement
which include among other, the change of copyrighted work to digital format, the ease of
replicating and transmitting of such work to multiple users. Moreover, as internet allow
anonymous representation, illicit users can easily post information hiding their identity. Guo
suggested that, these effects of digital network technology are thus, sufficient to bring the
need for statutory frame work to regulate the role and liability of ISPs in online environment.
Graeme B. Dinwoodie49 also made a detailed discussion concerning the justification why
ISPs need to assume a liability to control infringement on their network. He states that
imposing positive liability on ISPs is the outstanding approach to control the spread of piracy
in online environment where the internet users carry out a wide range infringing activity with
44
Mary Ann, supra note 13.
45
Daveis Gillian, Copyright and the Public Interest, (2002).
46
Bryan Mercurio, Internet Service Provider Liability for Copyright Infringements of Subscribers: A
Comparison of the American and Australian Efforts to Combat the Uncertainty, vol.9, (2002).
47
Id.
48
Yemeei Guo, Modern China’s Copyright Law and Practice, Springer Nature Singapore Pte Ltd, ISBN 978-
981-10-5352-8, (2017), at 179.
49
Graeme B. supra note 20.
 11

no boundary limitation, leaving no trace of their identity. According to Jie Wang50, though
not engage directly in the infringing acts, ISPs enable illicit actor to infringe copyright on
such a large scale that direct legal action against all perpetrators is impracticable. Hence,
ISP’s liability for the infringing act of the subscriber can be justified from practical and
contributory aspects.

In the context of Ethiopian, hitherto there has been very little academic investigation done on
this area. The thesis written by Tibebe Solomon 51 is one of the very relevant writings
conducted on this area. He made important discussion about online copyright infringement,
the types of rights that are highly vulnerable to online piracy, and the adequacy of Ethiopian
copyright law to regulate online piracy and the status of ‘fair use ‘exceptions in online
environment. In doing so he has tried to review important issues about the liability of content
providers, ISPs and the subscribers in Ethiopia. He also emphasized on the possible
advantages and disadvantages that developing countries like Ethiopia may acquire from
acceding to WIPO internet treaties. Though this paper could be considered as the important
and relevant work in this regard, however it has not addressed as to what exactly should be
the liability of ISPs for online copyright piracy as a general, and the liability to control it
under the Ethiopian copyright law in particular. Yemane G. also discussed the causes and
level of infringement of copyright in audiovisual works and the available remedies under the
Ethiopian copyright law.52 However, his discussion limited only to the case of off-line
infringement and, in any way, not related with the issue of the liability of ISPs to control
online piracy. The other related work done on this area is the article written by Halefom
Hialu.53’ He made important discussion about legislatives and institutional response being
undertaken by the government to fight cybercrime. He has also examined criminal liability of
service providers for cybercrime and the exceptions under the then draft Ethiopian computer
crime proclamation.54 In his other work titled as ‘Examining Approach to Internet Regulation
in Ethiopia’,55 Halefom has examined the internet content regulatory regimes. He has
discussed different regulatory models and the approach of Ethiopian government and highly
50
Jie Wang, Regulating Hosting ISPs’ Responsibilities for Copyright Infringement, The Freedom to Operate in
the US, EU and China, Springer Nature Singapore Pte Ltd. 1-249 (2016), at 18 and 19, available at:
https://doi.org/10.1007/978-981-10-8351-8_1
51
Tibebe S., Online copyright infringement and the liability of internet service provider in Ethiopia, (2016).
52
Yemene Gesesew, Infringement and remedies of economic right of audiovisual work under Ethiopian
copyright law: Law and practice in Addis Ababa, (2010).
53
Halefom Hailu, supra note 32.
54
Computer Crime Proclamation No.958/2016, Fed. Neg. Gaz., 22th Year, No. 83, Addis Ababa, (2016).
 12

criticize the tight control and shut down of internet in Ethiopia. He argued that the shutdown
of internet is against the government’s economic interests and developmental visions, and
also affects international relation and image of the country. However, in both of his works,
Halefom did not discuss the points in relation to the liability of ISPs to control online
copyright infringement in Ethiopia. His first work is related with and emphasized on
cybercrimes and different regulatory responses, while the second work deals with internet
regulatory modalities in general and in Ethiopian context.

Other relevant work done on this area is the article written by Kinfe Micheal and Halefom
Hailu.56 This article discuss the interface between the Internet and the Ethiopian IP,
particularly focusing on the effectiveness of Ethiopian patent law to regulate computer
programs, databases, online service provision and digital rights management systems, the
patentability of software-related inventions in digital environment. The issues relating to
Ethiopia’s roles in the global Internet governance ecosystem, and the extent to which
Ethiopian legal education is catching up with the unprecedented changes brought by the
advent of the Internet has also addressed in this article. 57 But, this article not discussed the
issue of digital copyright piracy and the role of ISPs in controlling online infringement.

From the above discussion, it can be under stood that most these literatures, attempted to
discuss the side effects that digital network technology brought to copyright society and tried
to analyzed the practical and legal problems related to protection and enforcement of
copyright in digital environment. These literatures also, especially in other jurisdictions, tried
to question who should be held liable for online infringement and the liability of ISP’s for the
infringing act of their subscribers. However, there are still important legal concern on this
area which prior researches did not closely dwelled with. In the first place, ‘what exactly
should be the liability of ISPs for copyright infringement that occur on their platform in
Ethiopia’ has not been clearly addressed. More importantly, under ISP’s liability rule, ISP
identified as the most effective party to control online piracy and thus, imposed with a
positive duty to react against infringing behaviors that occur on internet system. Despite the

55
Halefom H. Abraha, Examining approaches to internet regulation in Ethiopia, Information &
Communications Technology Law, Vol. 26, No. 3, 293–311, (2017), available at:
https://doi.org/10.1080/13600834.2 017.1374057
56
Kinfe M. Yilma and Halefom H. Abraha, The Internet and Ethiopia’s IP Law, Internet Governance and
Legal Education: An Overview, MIZAN LAW REVIEW, Vol. 9, No.1, 154-174 (2015), at 154.
57
Id.
 13

development of this new strategy however, there is no any research conducted in Ethiopia to
assess the feasibility and effectiveness of using ISPs as a source of regulatory enforcement to
control piracy in Ethiopia. Therefore, the issues in relation to: the legal and practical
problems related to online copyright protection in Ethiopia; the importance and necessity of
imposing positive legal duty (liability) on ISPs to control the online infringement; the scope
and condition this liability scheme; as well as the regulatory reform that should be made
under the Ethiopian copy law on this area are open for further research. Thus, this study, used
the previous literatures as input and, committed to deal with these issues and other related
concerns.

1.8. Research Methodology

To achieve the desired objectives, and give answer to the designed research questions, this
study employed the doctrinal legal research which was essentially library-based studies.
Accordingly, the relevant international and national legal instruments including the existing
literatures, policies and laws were analyzed. The study is also partly comparative as it
approached to and examined the international trend and the experience of others countries for
more insightful understanding of the issue at hand, to evaluate the gap, and provide useful
guidance for the improvement of online copyright protection strategy in Ethiopia Taking in to
consideration the availability of data and nature of research questions, the study approach was
qualitative method relaying on both primary and secondary data sources. The primary sources
of data include; key Informant Interviews, various International, Regional and National Legal
instruments, Declarations, Official Circulars and Publications. by relevant International
Institutions and government departments related to the area of study, and the relevant
domestic laws. Secondary sources used in this study include; Books, Articles, Documents, the
Report and Seminar Proceedings of different conferences, Working Paper, Websites, Cases
and etc.

The researcher employs document analysis and key informant interview as the tools of data
collection to solicit the necessary information from these data sources. Document analysis is
the bulkiest part and the principal tool of data collection method employed by the study.
Accordingly, different international instruments that laid down normative framework for
copyright protection which include; general principles, laws, different treaties such as Berne
Convention for Protection of Literary and Artistic Works, WIPO Internet Treaties, The
Agreement on Trade Related Aspects of Intellectual Property Rights, and relevant
 14

publications and reports of international and regional institutions has been consulted to
explore more about the strategy of controlling copyright piracy through ISPs in online
environment. Furthermore, the relevant Ethiopian legislations including; the FDRE
Constitution, Copyright Laws, Computer Crime Proclamation, Communication Service
Proclamation and Mass Media Proclamation; Official Documents; the Reports and
Recommendations of different National and International Organizations on Ethiopia’s
copyright policy issues; and Scholarly Writings relevant for this study has been reviewed to
assess if Ethiopia has a regulatory frame work to protect copyright in the evolving digital age.

The other tool applied to collect data was the key informant interview made with the
representatives of different government bodies and various copyright associations. The
selection of key informants was purposively made based on the exposure and knowledge of
the participants in relation to the subject under investigation, the position they hold, as well as
relevance and engagement that the selected organizations have with respect to the
development or/and implementation of copyright policy to protect copyright in the country.
Accordingly, to get first-hand information necessary for this study the researcher conducted
interview with the relevant personnel from Ethiopian Intellectual Property Office (EIPO),
Ethiopian Ministry of Information and Communication Technology (MoICT) and from
Copyright Societies which include; the Ethiopian Copyright, Writers, Musicians and Film
Producers Associations, as well as with copyright bench judges from the Federal High Court.
Doing so would have great importance because, the genuine and diligent information from
the participants was an indispensable for the credibility this study and help to buttresses the
synthesis of theoretical aspects with practical situation. The approaches followed to conduct
interviews with the participants were semi-structured and non-directional. Such partially
predetermined and flexible questions were used as all the respondents are not acquainted
equally with the subject matter. Plus, it allows further investigation by introducing additional
questions not anticipated at the start of the interview and to explore subjective explanation
from the participants.
Finally, the obtained data critically analyzed, interpreted and judged qualitatively to make
meaningful analysis and conclusion about the secondary liability of ISPs for online copyright
infringement under Ethiopian copyright law and, based on the obtained result from the
assessment, the study forwarded some important recommendations.
 15

1.9. Limitations of the Study

While doing this research there were certain limitations that may affect its
comprehensiveness. This research conducted on the emerging and very argumentative issue
even at international level, thus there was shortage of recorded data and materials to deeply
analysis the issue in the context of Ethiopia. Since the subject matter of the study is highly
related with the ramification of the pace of technological changes, most of the respondents
are not acquainted the required understanding, which made hurdle to get decisive information
related to the practice. Plus, some of interviewees were very busy with different activities,
while the others were not willing to disclose even the available information. The time and
resource limitation also created difficulty in the course of conducting this study.
Notwithstanding these limitations, the writer tried to address all issues related with the
subject matter and completed this research properly as possible.

1.10. Organization of the Study

The body of this thesis organized in five chapters. The first chapter contains the general
overview which contain a precised introduction of the study. Chapter two laid down the
theoretical and conceptual frameworks on online copyright infringement and the liability of
ISPs to control it. The reasons why ISPs required to assume such duty and the discussion on
emerging approach are among the sub issues covered under this chapter. Chapter three deals
with the international trend and the experience of others countries and, assessed the
regulatory approach of selected jurisdictions concerning this issue. Chapter four is all about
Ethiopia, and focused on the legal and practical analysis of online copyright infringement and
the liability issues in the context of the Ethiopia. The discussion under this chapter sought to
assess who is labile for copyright infringement that take place on the internet in Ethiopian,
and examine whether ISPs are required to control online piracy under the Ethiopian copyright
law. The last chapter of the paper ended up with conclusion and recommendation.
 16

2. CONCEPTUAL FRAMEWORK ON ONLINE COPYRIGHT

INFRINGEMENT AND THE LIABILITY OF ISPs

2.1. Introduction
Copyright is a set of exclusive rights granted (by the law) to the author of creative
expressions. The protection of copyright covers wide array of an incorporeal right against
human intellectual creativities such as literary, artistic, musical and cinematographic works58.
These terms encompass diverse forms of creativities such as writings, computer programs,
databases, musical, photographs and audiovisual works and fine art works such as drawings
and paintings.59 While the concept of copyright is old, the laws granting protection to the
rights are comparatively of recent origin.60 The emergence of printing technology and
capitalism system resulted to the increased usage of creative works thereby spurring the birth
of modern copyright law.Accordingly, in response to the widespread commercial exploitation
of creative works number of copy legislations were enacted in different jurisdictions granting
exclusive rights to the authors and regulating the manner of exploitation of these rights.

The onset and development of copyright laws clearly illustrates the dual goals embodied in
the copyright system. These are; protecting author’s interest to incentivizes the creations
61
while benefiting public by allowing fair access to creative works. To achieve one of the
twofold objectives which inspired the system, copyright law provides sets of exclusive rights
classified as ‘economic and moral’ rights to the author against his creative activity. The
bundles of rights generally included under economic rights are: the reproduction,
communication to the public, broadcasting, adaptation, translation, arrangement or other
transformation, distribution of the original or a copy of the work to the public by sale or
rental, importation of original or copies of the work, or authorizing others to exercise these
rights.62 The economic rights protect the author's economic interests and allow them to earn a
profit by (direct or indirect) exploitation of their works. The moral rights protect the author's

58
Raman Mittal, Copyright Law and the Internet,Journal of the Indian Law Institute, Vol. 46, No. 2, Intellectual
Property Rights Special Issue, 113-152, (2004).
59
Paul Edward, supra note 5.
60
Jerry J. Hua, Toward A More Balanced Approach: Rethinking and Readjusting Copyright Systems in the
Digital Network Era, Springer-Verlag Berlin Heidelberg, (2014), at 39, available at:
https://www.springer.com/gp/book/9783662435168
61
Robert A.Accessibility and commercialization in copyright theory, UCLA Law Review, 1-76, (1995), at 43.
62
Jonathan Rosenoer, supra note 9, at 4.
 17

creative integrity and reputation as expressed through the work.63 The law allows the owner
to exclusively control the use these rights and protect his work from being taken or exploited
by others without permission.64
Beside granting exclusive rights to the authors, copyright law put a series of limitations on
these rights so that the flow of information, the progress and dissemination of cultural
knowledge will not be hindered for general public welfare.65 Even during the period of
copyright protection, certain special uses such as for private, academic, judicial or legislative
purposes are allowed without any specific permission from the copyright owners. These
limitations for instance include; the limited duration of protection, exceptions and exclusions
of certain subject matters, fair use or fair dealing, compulsory licensing and etc. this is
because, if access to protected work is not available, the ultimate goal of advancing
knowledge will not be well served.66Other than the permitted exceptions however, any
interference with the author’s rights is violation of copyright law carrying legal action of
copyright infringement. In a nutshell, even though the exact nomenclature, subject matter and
scope of the rights granted under the umbrella of copyright may vary from country to country
or from one class of work to another, the basic principle of copyright to the balance of the
interests of the individual creator and that of the society at large has generally accepted and
enshrined in modern copyright regimes of all jurisdictions.

However, the emergence and continuous expansion of internet networked technology

distorted the founding Principle of ‘balance of interests’ that originally established in the pre-
digital copyright protection system.67 The technology being much faster than the law, a new
form of unauthorized access to copyrighted material through internet network appeared one
after the other posing the threat of online infringement to the authors, cultural industry as well
as the existing regulatory frame work. Thus, the discussion under this unit provides a
conceptual and theoretical framework about online copyright infringement and the legal duty
that ISPs may undertake to control it. Accordingly, how the development of internet
technology facilitated online copyright invasion interrupting the copyright protection system
would be analyzed. It then examined who is liable for copyright infringement that occur on
the internet and whether ISPs should be held liable for the infringing acts of their subscribers.
63
Id.
64
Id.
65
Trajce Cvetkovski, supra note 10, at 3.
66
Jerry. J. Hua, supra note 60, at 44.
67
Jim Lahore, supra note 11, at 25.
 18

The reasons why ISPs are targeted as feasible and potential party to control online copyright
piracy and the legal regime which govern ISP’s liability also addressed in this unit. In doing
so, the study analysed whether traditional secondary liability rule can effectively regulate the
issue of ISP’s liability for online piracy and the limitations thereof. The last part of this unit
devoted to discuss the emerging legal approach to regulate the role and responsibility that
ISPs may undertake to control online piracy. The scope and the conditions of liability, as well
enforcement mechanisms through which ISPs undertake its duty would be explored under
this part.

2.2. Copyright Infringement on the Internet

The internet, with which we are all familiar, is a gigantic network of computers that allows
people to communicate with others from all over the world. Although there is no official
definition for the term, most scholars would agree upon a description of the internet as a
‘network of networks.68 It is a global system of linked telecommunications and computer
networks which allows the sending of digital data from one computer to another anywhere in
the world. Internet technology was first launched in 1960s, in USA, under the name
ARPANET (Advanced Research Project Agency Network), an international experiment
consisting of interconnected computers and networks designed to share defense-related
research and data between military, defense contractors, and universities. 69 Thus, originally
internet developed as a way of sharing current results of military research sponsored by the
US government.70 At its inception, since ARPANET consisted only four linked
supercomputers, it was only two minutes of a network to be used effectively for military
communications.71 To increase the size and use of the network, the government gave
researchers and private companies more opportunity to use it, and personal messages became
the substance of network traffic. The arrival of inexpensive personal computers and
networking devices brought a flood of new users into the internet network, effectively halting
the use of ARPANET solely for government purposes. 72 Later on, in 1990s the network
attracted many scientists, engineers, Universities and thus, became a vital link of

68
Stephen Segaller, A Brief History of the Internet,TV Books publisher, New York, (1998).
69
National Research Council, Funding a Revolution: Government Support for Computing Research,
Washington, DC: The National Academies Press. (1999), available at: https://doi.org/10.17226/6323
70
John Naughton, The Evolution of the Internet: From Military Experiment to General Purpose
Technology,Journal of Cyber Policy, (2016), available at:10.1080/23738871.2016.1157619
71
Farooque khanzada, Brief History of the Internet -Internet Timeline | Internet Society, (2014).
72
Id.
 19

communication between the users. While ARPANET officially dissolved in 1990, what had
become the Internet kept expanding and continues to do so to a date.73
In the history, the evolution of internet technology can be listed as one of mankind's greatest
technological achievements.74 This technology considered as the ultimate outstanding channel
for the exchange of digital information and the utmost avenue for electronic transactions. 75
By its nature, it is highly interactive platform and can be easily accessed through a middle
party known as ‘Internet Service Provider (ISP)’- the entity that provide infrastructures
necessary for the operation of internet network. 76 The special capability and interactive
feature of the internet distinguishes it from any other communication mediums. Unlike any
technology that has preceded it, internet enables the exchange of gigantic amount of data and
inter-communication among an unprecedented number of people without any intrinsic
geographic limitations with a fast speed, high capacity and reliability. Currently, billions of
people around the world are using Internet daily to communicate with each other, to conduct
research and access a wealth of information, to shop for goods and services, to bank and
invest, to take a class, to access or share entertainment and leisure sources of such as; travel
directories, online games, music, photo, videos, books, magazines and other information.77

Though it is very promising, however the aspects internet technology also brought
unprecedent effects which are found to be potentially threat and harmful to various groups
and economic sectors. A particular example, which is the focus of this study is copyright
industry. Along with legal and legitimate uses discussed above, internet services are also
being applied for plenty of unlawful purposes. One of such illegal activity is pertain to
copyright through internet network which commonly known as ‘Online Copyright
Infringement’ or ‘Online Copyright Piracy’.78 For the purpose of this study, online copyright
infringement refers to the exploitation, dissemination or otherwise making available

73
Id, at 105.
74
V. K. Unni, Internet Service Provider's Liability for Copyright Infringement - How to Clear the Misty Indian
Perspective, 8 RICH. J.L. & TECH. 13 (2001), available at: http://www.richmond.edu/jolt/v8i2/article1.html...
accessed on 27/3/20120.
75
Liability of Online Intermediaries: New Study by the Global Network of Internet and Society Centers, The
Berkman Center for Internet & Society at Harvard Law School, (2015).
76
C.R. Kalmanek et al. (eds.), Guide to Reliable Internet Services and Applications, Computer Communications
and Networks, Springer-Verlag London Limited, 1-629, (2010). DOI 10.1007/978-1-84882-828-51.
77
Michael E. Porter, Strategy and the Internet, Harvard Business Law Review, (2008).
78
Okitikpi Toritseju, The liability of ISPs for copyright Infringement in Nigerian Context, (2014), at 1.
 20

copyrighted contents of other on the Internet without prior permission.79 The rapid expansion
of digital network brought a complete paradigm shift of the way how people access to, and
exploit copyrighted works. Using readily available internet services, people could now easily
access, upload, download or disseminate daily millions of copyrighted materials such as
larger sized documents, images, music, software and even high-resolution movies, on the
internet for free in utter and blatant disregard of author’s rights and other surrounding legal
concerns.80 The eased access of protected work lead to the development of new narration
which goes, “if the consumers can get easily the works for free, why would they ever pay for
a movie ticket, a CD, DVD or other items embodying protected contents?” 81 As more and
more protected products are emerging in digital format, controlling the unlawful
dissemination and free exploitation of these works, and enforcement of copyright on the
internet now became the very urgent consideration in copyright system.82

Is Online Invasion of Copyright Constitute Copyright Infringement?

As discussed above, copyright legal regime provides exclusive rights to the authors which
include; reproduction, distribution, communication, broadcasting, adaptation, translation or
authorship rights so that they enjoy the fruits of their creative energy. 83 Exercising these
rights without prior permission constitute copyright infringement and trigger actionable
offense.84 Nevertheless, in case of online environment the dichotomy of the concept is little
bit ambiguous. One may ask whether interference with any of these rights on the internet
constitute copyright infringement. A critical analysis of copyright legislations of different
jurisdictions and international agreements such as Berne convection and WIPO internet
treaties indicate that copyright infringement occur when anyone, without authorization,
interfere with any of exclusive rights reserved for the authors regardless of the intention, the
means used for, the time when or the place where the alleged infringement occurred. 85 By
contextualizing this insight into the situation of online environment it is possible to infer that,
so long as not authorized, the acts of using, uploading, downloading, sharing, re-
79
Antoni Terra, Copyright Law and Digital Piracy: An Econometric Global Cross-national Study, (2016).
80
Jie Wang, supra note 50, at 2-4.
81
The International Federation of the Phonographic Industry, (2002), available at: http://www.ifpi.org/
82
Raman Mittal, supra note 58.
83
Copyright law in the EU, supra note 7.
84
Burgunder Lee, Legal Aspects of Managing Technology, 5th Edn, South-Western, Cengage Learning, 1-597,
(2011).
85
Jaessica D. Litman, Digital copyright, University of Michigan, Law School, 2nd ed. Amherst, N.Y:
Prometheus Books,1-211, (2006).
 21

arrangement, transmission or conducting other similar activities against the protected

contents on the internet correspond the above discussed acts of off-line copyright invasion,
Therefore, though it took place on the internet, such kind of transgression against owner’s
exclusive rights constitute copyright infringement.86

2.3. Liability for Online Copyright Infringement

Who Should be held Liable for online Copyright Infringement?
While majority of internet users apply internet services for variety of lawful purposes, 87others
use it as copyright infringement platform transaction.88Such kind of irresponsible use of
internet services sounded a panic cybersquatting threat to copyright holders that has proven
hard to control.89 Since the use of the internet started to expand rapidly in the early 1990's, the
problem of online copyright infringement and the question of liability has been around and
still the subject of extensive debates.90This is because of the very nature of digital network
technology and the involvement of discordant interests of different parties in the
transaction.91When digital information transmitted from one point to another, or made
available for the public to access on internet three parties (interests), directly or indirectly,
involve in the transaction up on different capacity.92 These are; ISPs: - an entity that provide
internet services and other operating system to their subscribers through which the primary
infringer commits acts of infringement on the internet. 93 They want to preserve maximum
freedom to operate and lob for the free flow of information that makes the internet services
such a valuable tool. Primary infringer (internet user or subscriber); the person who
unlawfully access to, upload, down load, disseminate or otherwise make available
copyrighted works on the internet to be accessed by others. i.e, the internet user who directly
commit online infringement through ISP’s network system. They want a free access to
internet resources without legal threat. Copyright holders: the person whose rights are
infringed on the internet. They are the victim of online infringement who seek an effective
86
Id.
87
Asherry Magalla, supra note 15, at 3.
88
Id.
89
Shuaibu H. Usman, Review of responsibility of ISPs toward their customer’s network security, journal of
theoretical and applied information technology, Nigeria, (2013), at 70.
90
Raman Mittal, supra note 58.
91
Mittal Raman, Online Copyright Infringement Liability of Internet Service Providers, journal of the Indian
Law Institute, vol. 46, no. 2, (2004), at 288, available at: www.jstor.org/stable/43951908.
92
Graeme B. Dinwoodie, supra note 20, at 142.
93
Id.
 22

legal resolution that enables them to overcome the problem in manner that would best protect
their interests.94 Therefore, the fundamental and controversial legal issues still remain
unsolved are; who is liable for copyright infringement that take place on internet platform?
Should ISPs assume liability for the infringing conduct of their subscribers? if yes, what is
their liability? And how to control it?

As a principle the person who unlawfully post, share, download or otherwise made available
copyrighted materials on the internet assume liability as a primary infringer because, the
liability for primary copyright infringement is strict in nature and arises automatically when a
person engages directly in infringing activity.95 Therefore, the author whose right is being
infringed on the net can bring legal action against the alleged primary intruder. Nonetheless,
as discussed elsewhere in unit one, the very nature of digital network environment makes it
very difficult and almost impossible for copyright holders to identify the internet users who
commit infringement and ask them to assume liability. 96Internet network enables illicit users
to engage in high volume of infringement by hiding their identity under the cover of ‘internet
anonymity therefore, both technically and economically, controlling the dissemination of
their work or locating primary infringer who posts, share or down load the alleged infringing
material is the ever-difficult task for the right holders. 97 Even if caught, the offending
individuals often turn out to be judgment-proof and thus, no guarantee that they will have
sufficient asset to pay the damage. 98 When it has proven impossible to control piracy only by
targeting the primary infringers, copyright holders realized that the only effective and
practically scalable way to protect and enforce their right on the internet is by placing liability
on those who made possible online copyright infringement to occur, namely: the ISPs. 99
Consequently, they turned to target ISPs for the infringing conduct of their subscribers.100

94
Chaubey R., supra note 14.
95
Burgunder L., supra note 84.
96
Siffard J., supra note 22.
97
Id.
98
Ian C. Ballon, Pinning the Blame in Cyberspace: Towards a Coherent Theory for Imposing Vicarious
Copyright, Trademark and Tort Liability for Conduct Occurring Over the Internet, 18 HASTINGS COMM. &
ENT. L.J. 733-766, (1996), at 734 and 35.
99
Goldsmith Jack, Wu Tim, Who Controls the Internet? Illusions of a Borderless World, Oxford University
Press, USA, 1-219, (2006).
100
Richard G. Kunkel, supra note 26.
 23

2.4. ISP’s Liability to Control Online Copyright Infringement

2.4.1. Who are ISPs?

Internet Service Provider (ISP) is considered as the main component of the internet with an
essential role to keep the internet available and steady. 101 It also sometimes called as Internet
Access Provider (IAP) or Online Service Provider or (OSP) or Internet Intermediary, but
commonly known as Internet Service Provider. There is no generally accepted definition of
Internet Service Provider (ISP). The meaning of the context is not uniform in different legal
systems and varies based on the type of the services it provides. 102 For example, the U.S
Digital Millennium Copyright Act (here in after referred as DMCA) define ISPs as: ‘an entity
offering transmission, routing or providing of connections for digital online communications,
between or among points specified by a user, of the material of user’s choice, without
modification to the content of the material as sent or received’.103
The Electronic Commerce Directive of European union (herein after referred to as the EC
Directive) also define Service Provider as ‘a natural or legal person providing an
information society service’.104 The definitions under both instruments are broad enough to
encompass all activities on the internet where the entities provide some sort of services to
users or where it provide a direct connection. Be that as it may, it can be said that Internet
Service Provider is an entity that provides internet network and other related services which
enable the users to connect to internet and access online resources. 105 In addition to providing
access to the internet, they may also provide and host software packages such as browsers, E-
mail accounts, website or home page for the users.106 ISPs involve in all online transactions
and facilitate internet activities such as caching, browsing, mirroring, scanning and also
enable uploading downloading, swapping, temporary storage or transmission of information
(copyrighted or not) form one computer system to another as specified by the users.107

101
Shuaibu H. Usman, supra note 89, at 71 and 72.
102
Chaubey R., supra note 14.
103
Digital Millennium Copyright Act (DMCA), 17 U.S.C, Chapter 12, section 1201 (1998), section 512 (k)(1)
(a), available at: https://www.copyright.gov/legislation/pl105-304.pdf…. accessed on 2/3/2020.
104
The Electronic Commerce (EC Directive) Regulations 2002, come into force on 21st August 2002, Art 2(1) -
(emphasis added),
available at: https://www.legislation.gov.uk/uksi/2002/2013.........accessed on 2/3/2020.
105
Shuaibu H. Usman, supra note 89.
106
William B. Norton, Internet Service Providers and Peering, (2001).
107
M. Taddeo, L. Floridi (eds.), The Responsibilities of Online Service Providers, Law, Governance and
Technology, Springer International Publishing AG, Series 31, 1-341, (2017).
 24

2.4.2. Why ISPs Required to Assume a Legal Duty to Control Piracy?

The change in copyright protection and enforcement strategy of targeting ISPs is the result of
necessity and conveniences so as to control online piracy.108 There are several justifications
why ISPs are required to assume online copyright protection and enforcement duty in the
contemporary development of digital network environment. The following are some of
reasons to justify this trend;109
a) To maintain the objective of copyright in digital environment: the proponents of this
idea argue for the need of effective mechanism to regulate online operations, so that the
right holders can protect their rights by controlling the travel of their works on internet
and be paid for illegal encroachment. They argue that by its nature, copyright is special
entitlement that cannot be described accurately as other ordinary property right, instead it
is a statutory monopoly permitted only for temporary period of time with the general goal
of profiting the owner while aiding social development. 110 Given the special nature of the
right & its sensitivity in digital environment, an effective rule of protection should be
drawn if this goal is to be achieved. Therefore, as far as ISPs could contribute for the
achievement of this objective, they should be imposed with copyright protection
lability.111
b) ISPs facilitate online infringement, so that they have to bear some responsibility: the
commercialization and exponential growth of the internet has created an entirely new set
of infringement problems for copyright holders.112 The quick downloads and forwarding
capabilities on the internet with its inexpensive access, allowed pirates to effortlessly
bypass copyright laws at a substantial cost to legitimate owners. In online environment,
internet platform is regarded as the avenue where infringing materials are available,
whereas ISPs considered as the road or gateway to the site of that infringing materials and

108
Gaye L. Middleton, Copyright Conundrum – Liability of ISPs for Online Copyright Infringement, (2005),
available at: https://pdfs.semanticscholar.org/24fa/e6d96336ffe16197c2caea164597a1b23086.pdf?_
109
Id.
110
Priyambada Mishra and Angsuman Dutta, Striking a Balance between Liability of Internet Service Providers
and Protection of Copyright over the Internet: A Need of the Hour, Journal of Intellectual Property Rights Vol
14, (2009), at 321-329.
111
Kent Sinclair. Jr., Liability for Copyright Infringement Handling Innocence in a Strict-Liability Context,
(1987), at 940-987.
112
Mittal R., Supra note 91.
 25

make possible the infringing transaction to happen.113 ISPs do not simply provide the
transient of protected materials, but also provide the infrastructures which create a of
more enduring chance for the infringers to access, copy or disseminate the materials.
Without the services which provided by ISPs, primary infringers could not have
committed online copyright infringement. In this regard, even though the activities of
ISPs by itself not constitute copyright infringement, they indirectly facilitate the
occurrence of online copyright infringement.114 Therefore, ISPs should involve in online
copyright protection strategy so that a service provider whose facilities are being applied
to commit infringement would also contribute in fighting infringement.
c) Internet anonymity and transitory nature of online infringement: the problem of online
piracy being developed into an economically significant issue.115 The right holders
complain that they are losing billions of dollars because of such a large-scale
infringement which lawsuit against primary infringer is impracticable due to ‘anonymous
privilege’ on the internet. Users can easily post information anonymously without using
their actual name and address. This in turn makes extraordinarily difficult to obtain
identity information about the infringers and the convincing evidences of infringement.116
In such a case, the alleged infringers can be identified only by their Internet protocol
addresses (IPA).117 However, due to its transitory nature, the IPA does not correspond to a
specific person. IPA can to be matched to a user only by that user’s ISP. 118 Therefore,
without the help of ISPs, there is no real means of identifying which user of an IPA
committed infringement. Moreover, the borderless and transnational nature of the internet
exerbate this problem to the uncontrollable level. Because, as copyright enforcement is
essentially territorial, it involves a complex legal and jurisdictional consequences.
Without the intervention of service providers, it is so difficult to control piracy.
d) Lifting the responsibility from ISPs would encourage piracy:without regulatory
sanction, internet network would be used recklessly as infringement avenue and ISPs
may even promote the infringing use of their services to generate profit because, the

113
Id.
114
Id.
115
Mark A. Lemley and R. Anthony, supra note 21.
116
Ke Steven Wan, ISP’s vicarious liability in China, (2011), at 376.
117
Lilian Edwards, Role and responsibility of Internet Intermediaries in the Field of Copyright and Related
Rights, University of Strathclyde, Glasgow, (2011).
118
Id.
 26

ability to upload copyrighted material attracts large number subscribers base.119 ISPs
would also avoid pursuing the development of tools that could lessen the risk of
infringement that took place on their platform. 120 This argument rests on the idea that the
absence of responsibility is disincentive for ISPs to control even a very apparent
infringement on their network.
e) ISPs presumed to have technical and economic ability to control online
infringement:even though the law and economics use different measurements, the legal
theory of justice and economic concept of efficiency have long been combined. Value in
law is usually measured by the justice it achieves while the value in economics is
measured by the costs and benefits it generates. Fortunately, the foundation of indirect
liability regime has the same base and consistent both in economics and legal principles.
From economic analysis, the basic and importance of indirect liability regime is based
upon efficiency,i.e., placing liability on a party who can most effectively prevent
unlawful activity at a low cost.121
As mention in the preceding sections, the normal remedy for protecting copyright against
infringement is by instituting legal actions against one who commit an infringement
because, deterrence theory requires lawmakers to hold wrongdoers liable for their illegal
acts. Like legal theory, the economic literatures also assume that it is desirable to make
wrongdoers to internalize the externality arising out of their illicit acts because, even if
they cannot avoid wrongdoing completely, they would reduce their activity
level.122However, the conditions of the internet make it very difficult to penalize
individual wrongdoers. i. e., the relative anonymity of internet makes the detection of
wrongdoers very costly for the copyright holder to the extent that litigation cost exceeds
the damage to be rewarded.123 In this regard, if compared with the right holders, ISPs are
in a much better position and capable to supervise how its subscribers make use of the
internet and can easily control the infringing conduct. This is because, firstly; ISPs
possess the requisite technological capability to avoid the flowing of infringing contents

119
Graeme B. Dinwoodie, supra note 20.
120
Id.
121
Weixiao Wei, ISP Indirect Copyright Liability Regime: An Economic Efficient Liability Regime for Online
Copyright Protection Shaped by Internet Technology, 23rd BILETA annual conference, (2009), available at:
https://ssrn.com/abstract=1398323 or http://dx.doi.org/10.2139/ssrn.1398323
122
William M. Landes & Douglas Gary Lichtman, Indirect Liability for Copyright Infringement: An Economic
Perspective, John M. Olin Program in Law and Economics Working Paper No. 179, (2003).
123
Greg Mastel, China and the World Trade Organization: Moving Forward Without Sliding Backward, 31 L.
& POL ‘Y INT ‘L BUS. 981, 989 (2000).
 27

or to monitor the infringing subscribers on their networks: 124 they can remove the
infringing materials or and can stop further infringements by blocking the infringing
website. They can also adopt infringement unfriendly policy of service that govern their
relationship with their customers. Secondly; economically also ISPs have (presumably) a
deep pocket than the right holder and thus, at a better position to control infringement.
Therefore, the combined elements of technical and economical capabilities of ISPs are
sufficient enough to create affirmative legal duty which imposes copyright protection
liability on ISPs.

2.4.3. Argument Against ISPs’ Liability

Although we have a plenty of reasons for holding ISPs liable to piracy and practically
justifiable from copyright protection perspective, there are also some essential counter
arguments against secondary liability of ISPs. Since ISPs are not the infringing entity, the
question “why ISPs are being scapegoats through no fault of their own” is still the subject of
extensive debates. Those who oppose ISP’s liability vehemently argue for free distribution of
information on internet network, favor ISPs’ freedom to operate and full public access to
internet networks without any legal threat. They argue that ISPs do not make available
infringing content by themselves but, serve only as “passive conduits” just like a messenger
who are no different from the ‘traditional post office’ which is not liable for a defamatory
letter that is posted through it or a ‘telephone company’ which is not responsible for an
obscene call made by a user.125 Thus, it does not make sense to adopt a rule that could lead to
countless liability on the ISPs whose role in the infringement is nothing more than setting up
an operating a system that is necessary for the functioning of the Internet. 126 They also
contend that ISPs often had only general knowledge that their networks and services may be
used for illegal purposes along with variety of legal and legitimate uses. 127 Therefore,
imposing liability on ISPs is arguably unjustifiable when it is the individual violator's fault to
choose the use the services in the wrong way. 128 Furthermore, they argue that imposing

124
Richard G. Kunkel, supra note 26.
125
Thilini K., Liability of Internet Service Providers for Third Party Online Copyright Infringement: A study of
the US and Indian laws,Journal of Intellectual Property rights, Vol. 12 No. 11 553-561, (2007) at 555.
126
Religious Technology Centre (RTC). v. Netcom On-Line Communications Services, Inc, (N.D. Cal. (1995),
available at: https://law.justia.com/cases/federal/district-courts/FSupp/923/1231/1946287/
127
Id. See also: Dan L. Burk, Toward an Epistemology of ISP Secondary Liability, Philosophy & Technology,
Vol. 24, No.4, 437-454, (2011), available at: https://ssrn.com/abstract=1920050 …. accessed on: 16/05/2019.
128
It is unfair for them to bear the full social costs generated by the user’s unlawful activities mere fact of
providing internet services and facilities where the infringing subscribers are directly liable for their wrongful
 28

liability on ISPs may lead to ISPs’ over-zealous censorship and thereby limiting even a fair
access to online resources. It has also detrimental crippling effect on the future development
of the internet as a resource; if ISPs face such a great risk of liability, they may not operate
effectively and decide either to shut down the internet services or enforced to review all the
contents transmitted through their systems which significantly increase operating costs.129
Consequently, access to the internet would become more expensive and exclusive, negating
the inexpensive benefits society presently receiving from the use of internet.

Nevertheless, to maintain the core objective that shaped early copyright system, the
consensus that ‘copyright needs protection even on the Internet’ has been reached and
accepted that liability ought to be imposed on ISPs for online copyright infringement.
Although the nature of the internet has increased the attractiveness of intermediary liability
the endeavor to find solutions has, at time, been rather controversial due to the absence of
clear regulatory regime which appropriately fits to regulate particular characteristics and the
role of ISPs in cyberspace. In an effort to impose liability on ISPs, at the inception, copyright
holders resorted to common law principle of secondary liability and sought damages from
ISPs for online infringing conduct of their subscribers. Later on, a new regulatory sachem
which clarify what liability should be attached to ISPs for online copyright infringement
evolved and currently adopted in different jurisdictions. The following part this study will
focus and assess these regulatory regimes. In doing so, it will fist analysis whether a
traditional secondary liability rule can effectively regulate the liability of ISPs for online
copyright infringement and the limitations thereof. And then deal with the recently
developing ISP’s liability rule.

2.5. Regulatory Regime to Govern ISP’s Liability for Online Copyright

Infringement

2.5.1. The Early Development: the common law principle of secondary liability rule

Prior to the ubiquitous availability of computers and the Internet, the production and
distribution of creative works were funded and monopolized only by media conglomerates.

acts. See the analysis of the judges in RTC case supra note 126, para 60. See also: Jennifer Newton, Global
Solutions to Prevent Copyright Infringement of Music Over the Internet: The Need to Supplement the WIPO
Internet Treaties with Self-Imposed Mandates, 12 IND. INT’L & COMP. L. REV. 125-155, (2001), at 125.
129
Weixiao Wei, supra note 121, at 1.
 29

During that era, protected works were made available to the consumers only by the author or
authorized person. In case of infringement also, it was so easy for the right holders to trace
the infringer or find the scene infringement with a simple physical search of the premise
where the alleged infringement is taking place and lodge court action against the infringer.
However, as discussed in the preceding sections, with the introduction of Internet, the context
through which copyright infringement occur has greatly expanded and brought a drastic
alteration to the then existing legal principles. 130 In a situation where the direct infringers are
high in number and cannot be identified easily, the copyright regulation that seeks to prevent
misconduct through controlling primary misfeasor has proven ineffective to withstand the
challenges of digital age.131 Hence, resort to secondary liability rule became the only
appropriate option.
Secondary liability, which is also known as indirect or third party liability, is an instance in
which the alleged defendant coerced to bear liability for the objectionable activity of
others.132 This principle of liability initially drawn from common law legal system and
defined as imposition of liability on someone who did not commit the legal wrong directly
but, found responsible for encouraging, facilitating or vicariously engaging in such
objectionable act of third party.133 Secondary liability for copyright infringement represents a
judicially crafted extension of a common law principle of tort based liability found and
imposed in virtually all areas of private laws, i.e. it is derivative liability. 134 Copyright
legislations of most jurisdictions incorporated this principle of liability and have been
applying it to regulate the liability of ISPs for online infringement. 135 The difficulty of
pinpointing the real culprit on the internet has resulted in a piquant situation where the ISPs
are often taken to court for liability and asked to pay compensation for the infringing act of
their subscribers. Perhaps, as ISPs are the only visible face on the internet environment, they
are potentially incumbent to assume liability for the infringing conduct of their subscribers. In
an effort to impose liability on ISPs, copyright owners have relied on the two known common

130
Jennifer L. Kostyu, supra note 12.
131
Mary A. Shulman, supra note 13.
132
Béatrice Martinet Farano, Internet Intermediaries’ Liability for Copyright and Trademark Infringement:
Reconciling the EU and U.S. Approaches, TTLF Working Paper No. 14, 1-222, (2012).
133
Davis P. Connie, supra note 43.
134
Id.
135
Richard G. Kunkel, supra note 26.
 30

law principle of secondary liability adopted under copyright law of the time: contributory
liability and vicarious liability.136

A. Contributory Liability
contributory liability arises when the defendant ‘knowingly induces causes or materially
contributes to aid the wrong full conduct or activity of another’. 137 Accordingly, ISPs would
be liable for contributory copyright infringement if they knowingly induce causes or
otherwise materially contributes to the infringing conduct of primary actor. Therefore, in a
claim which arise from contributory liability, copyright holder must prove that: a) the alleged
ISP knew or should have to know the wrongfulness or infringing nature of the activity of
their subscriber and b) has contributed or participated with the intention to assist such
infringing activity of internet user.138
Nevertheless, it is so difficult to establish contributory liability against ISPs and hold them
liable under the traditional Secondary liability rule because, the above stated two elements of
contributory liability have proven hard to satisfy for the purpose of ISPs’ liability. This is due
to the nature of ISPs’ activity in online transaction. For example, concerning the first
requirement i.e., the ‘knowledge’ element; in the normal course of operation, when digital
information made available on ISPs’ platform or transmits from one point to another through
their network, ISPs use automated technology to obtain or transmit such information because,
in online operation, they perform only technical function (providing technical infrastructures
which facilitate internet activities) without initiation, selection or modification of the
materials contained therein and transmit it to the addressee selected by the user. 139 Therefore,
since ISPs do not, in any way, interfere with contents of the materials being transmitted, they
cannot have a chance to know whether such information is infringing or not.
Moreover, unlike other information such as child pornography, violent image or video, the
materials in which copyright embodied cannot be self-evidently identified as offensive, that
they are under protection or unlawfully uploaded by the person other than the legitimate

136
Jennifer L. supra note 12.
137
Dinwoodie Graeme and Dreyfuss, Rochelle Cooper and Kur, Annette, The Law Applicable to Secondary
Liability in Intellectual Property Cases, New York University Journal of International Law and Politics, Vol.
42, 202-233, (2009), at 202, available at: https://ssrn.com/abstract=1502244 …accessed on: 06/4/2019.
138
William Landes & Lichtman, D., Indirect Liability for Copyright Infringement: Napster and Beyond, The
Journal of Economic Perspectives. Vol. 17, No. 2 Spring, (2003), at 113-124.
139
Robert M. Hirning, Contributory and Vicarious Copyright Infringement in Computer Software: Harming
One Form of Intellectual Property by Protecting Another, 6 CHI. -KENT J. INTELL. PROP. 10 (2006), available
at: ttps://scholarship.kentlaw.iit.edu/ckjip/vol6/iss1/2 ... accessed on: 5/6/2019.
 31

right holders.140 Thus, unless notified by the right holders, ISPs would not be reasonably
expected to have actual knowledge that millions of contents they are caching, hosting, or
storing temporary for transmission are copyrighted and unlawfully uploaded through their
network.141 Therefore, for contributory liability purpose, a mere knowledge on the part of
ISPs that its platform might be used for unlawful purpose is not sufficient to prove that ISPs
has intention or actual knowledge of the alleged infringement.

In order to establish liability of ISP under traditional contributory liability rule, in addition to
actual knowledge, the right holder must also show the ‘participation’ of concerned ISP with
the intention to assist the infringing activity of primary actor. 142 In analysis of the element of
participation, one may argue that ISPs makes substantial participation in the infringing
conduct of the subscriber by providing internet network and other technological
infrastructures which enabled primary infringer to access or disseminate the protected
contents on the internet. However, even if ISPs deemed materially contributed by providing
“means” for primary infringers, the doctrine of “substantial none infringing uses” must be
given a due consideration here; internet services which rendered by ISPs might be used both
for law full or unlawful purpose however, regardless of the purposes for which the users
applied it, by its nature the ‘internet services’ have a substantial none infringing uses and
thus, widely being applied to enhance lawful activities discussed at the begging of this unit.143
Though the infringing activity committed on its platform, ISPs provide internet connection,
primarily, to help the users to facilitate legitimate internet activities. Even when combined
with the proof that the internet services have in fact facilitated infringement, it is the
infringer’s fault to choose the use internet services for infringing purpose.144 For instance, in
a Sony Corp. of America Vs. Universal City Studios Inc case, the US court held that,
“technology developers or seller should not be held labile contributorily if such technology
is developed for ‘substantial non- infringing uses’ no matter that the seller actually knows

140
Sneha Jha and Samar Jha, An Analysis of the Theory of Contributory Infringement, NALSAR University of
Law, Journal of Intellectual Property Rights Vol 11, 318-325 (2006).
141
Eugene A. Burcher & Anna M. Hughes, Religious Technology Center v. Netcom On-Line Communications
Services, Inc.: The Knowledge Standard for Contributory Copyright Infringement and the Fair Use Doctrine , 3
Rich. J.L. & Tech 5 (1997).
142
Carmichael J., Why Online Service Providers Should Not Receive Immunity from Traditional Notions of
Vicarious and Contributory Liability for Copyright Infringement? Loyola of Los Angeles Entertainment Law
Review, (1995).
143
Dan L. Burk, supra note 127.
144
Jennifer Newton, supra note 128, at 129.
 32

that the article is applied for infringement purposes”.145 Therefore, the mere fact of use of
internet services by subscriber for infringing purpose does not typically and automatically
establish copyright holder’s allegation of contributory liability and render the service
providers to pay damage.

B. Vicarious Liability
The second instance of common law secondary liability is vicarious liability. Copyright

holders also sued ISPs under vicarious liability. Vicarious liability applies where the alleged

defendant had the right and ability to control the acts of the primary infringer and received a

direct benefit from the wrong conduct of the infringer.146

Therefore, copyright owner who
want to successfully establish his claim against ISPs under vicarious liability required to
proof sufficiently that: a) the ISPs had the right and ability to control all the activities of their
subscribers or to police the use of infringing materials on their network but failed to do so
and b) that ISPs has received a direct financial benefit from that infringing activities. 147

With regard to the first element – ‘ISP’s right and ability to control’, The automated features
of internet operation and the limited roles of ISPs in common internet activities, prevented
the possibility that ISPs could monitor the large amount of information published in every
second on the internet in order to identify and control the infringing materials, or police the
conducts of millions of its subscribers to control the infringer decades. 148 Therefore, it is very
difficult to establish and justify this element, for the purpose of contributory liability.The
second requirement for vicarious liability is the existence of benefit that alleged defendant
acquired directly from the unlawful activity of primary wrong doer. 149 With regard to the
second element - receiving a direct (financial) benefit: to decide whether ISPs has obtained
direct financial benefits from the primary infringement, the determinative factor is based on
the relationship between the infringement and benefit. If the benefit that the ISPs gained

145
Sony Corporation of America v. Universal City Studios Inc. 464 U.S. 417 (1984), para. 440.
146
Landes W. & Lichtman, D., Indirect Liability for Copyright Infringement: Napster and Beyond, The Journal
of Economic Perspectives. Vol. 17, No. 2. (2003).
147
Lynda J. Oswald, International Issues in Secondary Liability for Intellectual Property Rights Infringement,
American Business Law Journal, Volume 45, Issue 2, 247–282, (2008).
148
Elisa Bertolini, Vincenzo F., and Oreste P., Analysis of ISP Regulation under Italian Law, 141-170, (2017).
149
J.W. Neyers, A Theory of Vicarious Liability, Alberta law review, (2005), at 287.
 33

immensely associated with the infringing activity of the subscribers, it would not be difficult
to determine that it is direct benefit.150 Nonetheless, since ISPs collect flat rate fee (regardless
of infringing and none infringing use) from their subscribers, it is so difficult to establish this
element too.151
To sum up, even though there is a common consensus that ISPs need to take some
responsibility to protect and control copyright infringement on internet, the questions as to
‘what exactly can be the liability and standards under which ISPs should held liable for the
infringing conduct of third party’ has never been answered under the common law principle
of secondary liability rule.152 Due to the fundamental differences between the infringement
that take place on internet network and that of off-line environment, applying the same
standard to ISPs has resulted in contradictory solution. To hold ISPs liable for the infringing
act of others, there must be some strong elements of causation than what are needed in other
ordinary cases. This reflects the underlying doctrinal variance and the uncertainty of
traditional ‘Secondary Liability Standard’ to regulate the fast-changing and unique nature of
online copyright infringement and proven the accompanying need for legislative innovation
to protect copyright in digital environment. 153In order to accommodate the limitations of
traditional law and to regulate the liability of ISPs for online copyright infringement, a new
regulatory scheme known as or “ISP’s Limited Liability Rule” or “ISP’s Secondary Liability
Rule” is evolved in different jurisdictions. The discussion in the following part will focus on
this contemporary evolving regulatory approach which regulate the role and liability of ISPs
to control online copyright infringement.

2.5.2. The Contemporary Development: ISP’s (secondary) Lability to Control Online

Infringement (ISP’s Limited Liability Rule)

The Meaning and Essence of ISP’s Limited Liability Rule

Although, the traditional secondary liability rule has been hailed as a forceful tool for
governing ISP’s liability for fierce of its subscriber’s online infringement however, the
strength of this liability regime has been challenged through practical inspection. 154 The
difficulty in reaching feasible solution, mainly, associated to the far qualification of ISP's role
150
Irini A. Stamatoudi (Ed.), Copyright enforcement and the Internet, Kluwer Law International, (2010).
151
A. Yen, Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability and
the First Amendment, Georgetown Law Journal, Vol. 88, No. 1833, 8-45, (2003), 13 and 14.
152
Jie Wang, supra note 50, at 18.
153
Raman Mittal, supra note 58.
154
Id.
 34

as a secondary infringer with the realm of common law secondary liability standard. This
stance left the right holders without any effective solution to control piracy and enforce their
rights on the internet. Even if they faced a strong factual case of online infringement, legal
ground against ISPs was rather controversial and the missing avenue for relief. These
limitations and the motivation of finding solution for online copyright piracy inspired many
legal scholars and regulators to speculate about what this traditional version of secondary
liability rule would mean for ISPs in a totally new digital network environment.
Accordingly, they started looking for more effective legal regime which appropriately
substantiate the particular characteristics of ISPs and regulate its ability (liability) to protect
and enforce copyright on the internet. Consequently, after prolonged debate and intensive
research, different countries came up with new of regulatory regime known as “ISP’s limited
liability rule” or “ISP’s secondary liability to control online copyright infringement”.

The ‘ISP’s Limited Liability Rule’ is a new version of secondary liability regime which
impose copyright protection duty even on innocent ISPs to compel them to act against
infringement that take place internet. In this context, it refers to the legal duty that ISPs bear
to control online copyright infringement. In other words, it is the contemporary form of
online copyright protection and enforcement strategy which involves the use of ISPs to
actively control infringement that take place on their network by applying different
mechanisms.155
The main objective of ISP’s limited liability rule is to prevent online copyright by imposing
online copyright protection duty on ISPs, while preserving ISP’s freedom to operate. 156 This
positive responsibilityesteemed from the practical necessity that in the era of volatile digital
environment, misconduct on the internet cannot be sanctioned most effectively without the
ability to rely on ISPs. The threat of online infringement is now extremely high and causing
huge amount of loss in copyright industry. The infringers have graduated to using botnets,
internet of things (IoT) and highly advanced technologies targeting a networked electronic
storage (such as iCloud, drive, email and other internet-based sources) to carry out large-scale
attacks against the right holders. The response to this problem inevitably needs active
involvement of ISPs. If hosting ISPs not required to take active role in controlling
infringement, a lot of copyrighted contents will likely to appear on the internet and the

155
S. Anil, The Limit of Liability of Network Service Providers,(2002).
156
Mark A. and Reese R. supra note 21.
 35

aspiration of controlling piracy would deprive of its effectiveness. 157 Hence, ISP’s limited
liability rule is more about the nature that the protection and enforcement of copyright should
take in the surface of digital network era.

This newly emerging liability rule is not only limited to deciding whether service providers
need to hold liability to control online piracy, but also contain liability privileges known as
‘safe harbor’ to protect ISPs from unjustifiable obligation. Becauseas stated above, the
scheme is mainly emphasize on securing the cooperation of ISPs and copyright holders to
fight online infringement together while, at the same time, protecting the interests of ISPs,
internet users and copyright holders.158 Hence, the liability privilege that provided under this
scheme is meant to ensure ISP’s freedom to operate by protecting them from un reasonable
liability so as as to promote the well-functioning of online transactions.
In general, ISP’s limited liability rule,on one hand, contain a clearly defined set of
responsibilities (duty) that ISPs are required to undertake in order to control online copyright
infringement and on the other hand, protect ISPs from unreasonable liability in order to
ensure its freedom to operate in online environment.The discussion under the following
paragraphs looks into the core principles provided under ISP’s limited liability rule.

i. ISPs have no General Monitoring Obligation

In early days, due to the absence of governing principle, whether ISPs need to bear a
responsibility to monitor the data published on the internet, or police the conducts of its
subscribers has been argumentativeissue among legal scholars.159However, with the adoption
of the limited liability scheme,this issue solvedand ISPs relieved from general monitoring
obligation. The ‘no monitoring responsibility’contained in this scheme offer a major
concession for ISPs and protect them from unreasonable burden of monitoring large number
of files passed through its network or affirmatively seeking the facts indicating infringing
activities in advance.160
The automated features of internet operation prevented the possibility that ISPs could
preventively sensorbillions ofdata generated, published, uploaded or shared in every second
on the internet network by the users. Because, ISPs do not make available the information on
157
Graeme B. Dinwoodie, supra note 20.
158
Id.
159
Jie Wang, Hosting ISPs’ Secondary Liability Under the Roof of ‘Safe Harbor’ Provisions, Springer Nature
Singapore Pte Ltd. (2018), at 73.
160
Id.
 36

the internet by themselves, but serve only as a conduits to host, temporarily store ortransmit
thedata originated by the users, hencethere is no chance for themto interfere with contents of
such large amount data being originated by the users. 161 Therefore, it is impracticable and
unreasonable to impose such burdensome obligation on ISPs whose participation in the
online environment consist solely of providing network service, wires, cables, or other
communications channels for the use of others. Even if that would have been possible, ISPs
must expend large amount resources to identify among thedata they are caching, hosting,
storing or transmitting, which one is copyrighted and unlawfully uploaded. 162 This would
have likely a considerable adverse effect on ISPs and as well as on the legitimate internet
users. Because, if ISPs forced to do so,they prefer either to restrict the services they provide
or increase the price which in turn reduce the efficiency of internet transmission,
underminingthe advantages of online transactions and the development of internet as a
recourse.163Therefore, taking into account the special characteristics online transactionand the
role of ISPs in online environment, the operative principle under limited liability approach is
that ISPs have neither general monitoring obligation nor liable for not to actively looking for
the facts or circumstances that would unveil illicit (infringing) activities.164

ii. Notice and Take Down Scheme

‘Notice and take down’ scheme which also known as ‘take down notice’ is an indispensable
part of ISP’s liability rule that developed to allow copyright holders to get the material they
consider infringing removed from the internet. It is a legal procedure by which the holders
request ISPs to remove the infringing content or otherwise disable access to a website where
such content is appearing without their permission. 165 It help the right holders control the
dissemination of their work on the internet at a low cost in cooperation with ISPs.

161
Religious Technology Centre v Netcom case,supra note 125.
162
Elisa B., Vincenzo F. and Oreste P., supra note 148.
163
Niva E., Making technology visible: liability of internet service providers for peer-to-peer traffic, (2005).
164
This principle accepted in many jurisdictions; for instance, it adopted under the Directive 2000/31/EC of the
European Parliament and of the Council of 22 May 2001 on the harmonisation of certain aspects of copyright
and related rights in the information society,Art 15 (1); Kenyan Copyright Act, No.20 of 2019, an Act of
parliament to amend the Copyright Act of 2001, 18th Sep 2019 under section 35; DMCA, supra note 103,
section 512(a-d); State Council, People’s Republic of China, Regulation on the Protection of the Right of
Dissemination via Information network, order No. 468 of the State Council, May 18, 2006, Art. 13 and 20;
South African Electronic Communications and Transactions Act (‘ECTA’) No. 25/2002 (Proc. No. R.68,
Gazette No. 23708, No. 1046, 2002), under section 78.
165
Priyambada M. and Angsuman D., supra note 110, at 324.
 37

Ideally, notice-and-takedown procedure works thus: after finding infringing materials on

internet the holders send complaining notices to ISPs and ask for the removal of such
material from their platform, then the concerned ISP immediately remove the alleged
material.It serve as a way to make ISPs aware of the occurrence of infringement. i.e., it prove
ISP’s actual knowledge of infringement and trigger the obligation to expeditiouslytake action
against the alleged infringement.166 Therefore, in order to reap the benefits of immunity
(exempt from liability), ISPs must institute systems of notice and takedown scheme by which
the right holders can institute complain and upon receiving it, they should promptly delete the
alleged infringing content or block access tothe content identified in the notification. If the
concerned ISPs refused to do so,they cannot benefit from the liability limitation provided in
safe harbor provision.167Generally, a qualified notice and take down mechanism can be seen
as a creative way which provides the right holders with more legal certainty to protect their
right in cyberspace and exempt ISPs from unjustifiable liability by requiring them to fulfill
certain obligations to facilitate copyright enforcement on the internet.

Though a notice-and-takedown procedure contributes a lot to control large-scale of online

infringement, it is also not without limitations. There is a fear that this procedure may
encourages ISPs to indiscriminately remove online material. It could also affect the right to
freedom of speech on the internet based on false claims of infringement. 168 Moreover, it may
encourage the right holder to request removal of law full content which in turn result to a
wrong deletion. Therefore, in order to reduce these limitations, notice and take down scheme
need to be very clear and sufficiently detail in relation to, the procedures to be followed, its
content and the rights and obligations of all concerned stockholders.

iii. Subpoena Procedure Scheme

ISP’s limited liability rule do not protect those end users who abuse provider's facilities to
infringe protected contents, thus in order to help copyright holders to identify and sue the
internet user who commit online infringement using pseudonyms name, ISPs are required to

166
Parti K. and Marin L., Ensuring Freedoms and Protecting Rights in the Governance of the Internet: A
Comparative Analysis of Blocking Measures of Illegal Internet Content and the liability of ISPs, Journal of
Contemporary European Research, (2013), at 138.
167
Tatiana L. Romero, Internet Service Providers (ISPs), online copyright infringement: the US approach,
Vniversitas, núm. 112, julio-diciembre, Pontificia Universidad Javeriana, Bogotá, Colombia, 193-214, (2006),
available at: http://www.redalyc.org/articulo.oa?id=82511207 ...accessed on: 7/6/2019.
168
Id.
 38

disclose the identity information about the alleged infringer under certain circumstances. 169
The legal procedure through which ISPs are required to unveil the identity of illicit users is
known as ‘subpoena procedure’ or ‘identity disclosure mechanism’.170 The scheme helps to
protect the interests of the holders as well as that of ISPs. As concerned copyright holders it
help them to collect pivotal information and reliable evidences about the suspected primary
infringers so that they could bring legal action and establish their claim properly. 171As
concerned ISPs they assume only passive obligation i.e required to disclose the identity of
the alleged infringer only to the extent such information is available to them. In order to
avoid conflicts with the right holders, ISPs are more willing to disclose the identity
information retained by them. Therefore, since these duties require a little effort to fulfill, it
would not unreasonably restrict ISPs’ freedom to operate.

However, there is negative impact in the subpoena procedure on the protection of the
personal privacy of internet users. The procedure may be abused by the right holders to
collect even information that is not relevant to copyright protection. 172 Therefore, in order to
protect privacy of internet users, ISPs should be forbidden to disclose their users’ identity
information without court order or other competent authority.173 Plus, the identity disclosure
mechanism must be conducted following due process, for example, the request must be made
in writing, sufficiently substantiated, and state the occurrence the alleged infringement
properly to sufficiently warrant the disclosure of infringer identity.174

iv. Graduated Response Scheme

Beside public law litigationand enforcement regime, the right holders also realized the
importance to cooperate with ISPs through partnerships arrangement strategy to protect their
rights at private level. This turn to the cooperative ordering and technology-based solutions,
which represents a departure from or alternatively, along with the other dominant strategies

169
Jennifer Bretan, Harboring Doubts about the Efficiency of 512 Immunity under the DMCA, 18 Berkeley
Tech. L.J. 43 (2003), available at: https://doi.org/10.15779/Z38RH5C
170
Id.
171
Kuner C., Study on online copyright enforcement and data protection in selected Member States, DG
Internal Market and Service of European Commission. (2009).
172
In some jurisdiction such as US, UK, German, Canada, Kenya, South Africa and Singapore, identity
disclosure made only after the orders of court or other competent authorities. In other jurisdictions, for example
in China, no specific procedural requirement is imposed on ISPs. See Jerry J. Hua, supra note 60.
173
Parti K. and Marin, supra note 166.
174
Kuner C., supra note 171.
 39

of litigations battles is known as “graduated response scheme”175 Graduated response

scheme is voluntarily arrangement (industry negotiations) made between the right holders
and ISPs to fight piracy through extra-judicial measure capable of private implementation. 176
In some jurisdictions, it is also called as a “three strikes and you are out” model, in which
internet access is suspended or terminated by a user’s ISP following the user’s receipt of
three successive notices of copyright infringement from the concerned ISP. In a graduated
response scheme, the onus of monitoring and enforcing copyrights is shared between content
providers and ISPs.177 With respect the measures, repeated infringement actions culminate in
different measures which varies from a simple infringement notification step to very
aggressive measure in which ISPs implement filtering technologies within their networks and
fully automated processes to suspend internet services of repeated infringer after three times
notifications.178Generally, the use graduated response system provides an efficient and
streamlined process to combat massive online copyright infringement. The enforcement
paradigm embodied in this scheme eschews litigation process in favor of voluntary
cooperation between rights holders and ISPs – the parties that have long been at loggerheads
with each other in the war on piracy, because it is believed that ISPs’ response via systematic
disconnection of infringers or the use of filtering technologies is effective and cheaper
enforcement mechanism to stem the tide of piracy.179 It also help ISPs to continue to develop
and improve their service without worrying about lawsuits and the high costs of legal
defense.180 Plus, since the response in this scheme start by simple notification, it serves as
precocious warning for innocent internet users who accidently commit infringement without
thinking about legal consequences and gives them a chance to abstain from such act.181

v. Digital Right Management and Anti-Circumvention Rule

175
Annemarie Bridy, Graduated Response and the Turn to Private Ordering in Online Copyright Enforcement,
OR. L. REV. (2010), at 81.
176
Peter K. Yu., Graduate Response System, Florida law review, 1374-1429, (2010).
177
Jeremy Beer and Christopher D. Clemmer, Global trends in online copyright enforcement: a non-neutral
role for network intermediaries? 375-409, (2009), available at: http://ssrn.com/abstract= 1529722
178
Adrienne Muir, Online Copyright Enforcement by Internet Service Providers, Journal of Information
Science, (2012), at 257.
179
Rebecca Giblin, Evaluating Graduated Response, Columbia journal of law and the arts, (2014), at 147.
180
Bridy Annemarie, Anti-Counterfeiting Trade Agreement (ACTA) and the Specter of Graduated Response,
American University International Law Review 26 no. 3, 559-578, (2011).
181
Id,at 564.
 40

The internet not only hanged the traditional business models of distribution of protected
information, but it also brought great challenges to copyright protection legal model. With the
changes of traditional business models, the right holders realized that the government
measure alone is not sufficient and strong enough to protect their rights on the internet,
consequently they started looking for ‘self-help measures’ to defend themselves. 182
Accordingly, they have introduced and applied a technological measure known as “Digital
Rights Management (DRM)” measure. DRM is a collective name for technologies or a range
of techniques that prevent one from using a digitalized copyright contents beyond the degree
to which the right holders wishes to allow one to use it. 183 The works most commonly
restricted by DRM include music, visual artwork, image, computer and video games, movies,
literatures so as to prevent authorized viewing, copying, printing, altering etc.184

Even though technical protection measures increased the protection of digital contents,
however, they are not always effective. As soon as the copyright industry seals its products
under a protective wrap, the hackers also started restore free access through circumvention
act.185 As a counter measure, copyright society started to seek regulatory compliance which
support DRM measure both at international and domestic level. At an international level, the
concern of copyright society was first considered on the conference held by WIPO in 1996 at
Geneva. The WIPO Internet Treaties (WIPO Copyright Treaty herein after WCT and WIPO
Performers and Phonographs Treaty herein after WPPT), introduced the new provisions
which deals with anti-circumvention measures, and advise member States to provide
adequate legal remedies against the circumvention of technological measures applied by the
right holders.186 Consequently, different countries have successfully adopted anti-
circumvention rules to protect technological measures from being hacked. For instance, the
US DMCA and the Directive 2001/29/EC of the European Parliament adopted ‘access
control mechanism’which prohibits circumventing technological measures and forbids the

182
Yi Jun Tian, Problems of Anti-Circumvention Rules in the DMCA & More Heterogeneous Solutions, 15
Fordham Intell. Prop. Media & Ent. L.J., (2005), at 749.
183
Trisha Meyer, The Politics of Online Copyright Enforcement inthe EU, Information Technology and Global
Governance, Derrick L. Cogburn American University Bethesda, Maryland, USA, 1-341, (2017), DOI:
10.1007/978-3-319-50974-7_1.
184
Chaudhuri, Sabuj Kumar, Digital rights management: a technological measure for copyright protection and
its possible impacts on libraries, (2007).
185
Jennifer Newton, supra note 128.
186
WIPO Copyright Treaty Dec. 20, 1996, 36 I.L.M. 65, Art 11 and 12, and WIPO Performances and
Phonograms Treaty, Dec. 20, 1996, 36 I.L.M. 76, Art 18 and 19.
 41

trafficking or distribution of the devices or the services that facilitate the circumvention of
technological measures implemented by the right holders.187 Similarly, the Kenyan Copyright
Act of 2001 and the South African ECTA of 2002 also takes a rigid stance against
circumvention of technological measures.188
To conclude, DRM is a self-help measures developed by the right holders to control un
authorized access to their work in digital environment and backed by regulatory protection
both at international and national level. However, such scheme is not without limitations;
firstly,does not guaranty an absolute protection of digital contents; for instance, a file which
encrypted through DRM can be decrypted easily by other more sophisticated technology or
software. Secondly the anti- circumvention measure criticized on the account that an absolute
exclusion of information would endanger the purpose of copyright protection by hindering
the public to access a protected works even through ‘fair use’ principle. Hence, the
legitimate exceptions for non-infringing use of digital contents on the internet need to be
considered during policy design.

vi. Subsidies to Consume the Legal Offer

This is to get internet user to consume only legal contents online instead of providing
deterrents to subscribers’ infringing behavior.189 Most typically this occurs through
information provision and signposting of the legal offer. Some countries (France, Italy,
Korea, Netherland, UK) provide lists and directories of ‘clean sites’ to increase consumers'
awareness of the legal offer in their countries.190 But there has been also a financial subsidy
for internet users who access protected materials through a legal way. This is to encourage
the use of legally offered contents. For instance, France has been experimented with ‘Youth
Music Card’ scheme, where the government would match the amount spent by young people
to buy online music provided lawfully by the right holders. 191 However, the scheme proved
overly complex in its implementation and as a result closed in 2012.

vii. Follow the Money Approaches

187
DMCA, supra note 103, section 1201(a & b) and the Directive 2000/31/EC of the European Parliament and
of the Council of 22 May 2001, supra note 164, Art 6.
188
The copyright Act No.12 of 2001, Laws of Kenya, an Act of Parliament to make provision for copyright in
literary, musical and artistic works, audio-visual works, sound recordings, broadcasts and for connected
purposes, 31st Dec, (2001), section 35 (3(a-d)} and the South African ECTA, supra note 164, section 85 and 86.
189
IP office, International Comparison of Approaches to Online Copyright Infringement: Final Report, (2015).
190
Id, at 49.
191
Id.
 42

Online advertising is a major source of revenue for the operators of copyright-infringing

websites. In online environment, the pattern of online advertising is a highly complex and
governed by algorithms, therefore, a real-time bidding, ad impressions, performance display
ad allocation and an array of other perplexing factors can be appeared on infringing
operators.192 In this complex environment, misplacement of a legitimate brand advertisement
on the infringing operators (like ISPs websites or mobile applications) is a problematic issue
and encourage infringement. This is because, the intermediaries that provide access to
infringing contents, uses the sale of advertising space as one of their revenue sources. Thus,
since the system of selling online advertising is complex and hard to control, legitimate brand
owners may find their advertising appearing on pirate websites, tarnishing their products or
services and also inadvertently lending an air of legitimacy to such sites. The presence of
legitimate advertisement services on the infringing sites can also potentially confuse the
consumers and lead them to mistakenly believe that such operators are legitimate and provide
access only to the legal contents.193

Follow money approach is thereforefound to be the effective remedy in reducing the amount
of premium advertising on infringing sites.194 It aims at disrupting the revenue flow of
commercial-scale copyright-infringing website by letting the advertising industry to cease
transactions with such websites.195By removing a revenue stream, the thinking goes, there is a
much lower economic incentive for the IP infringing operators. 196 It also involve the block of
pirate website by a public agency or by ISPs not to be accessed in the whole territory of that
particular country. The approach was forwarded by WIPO to create a memorandum of
understanding where the signatories put in place a mechanism to minimize the placing of
online advertising oninfringing websites by establishing an online platform so as to
coordinate and share information about the infringing sites with the advertising sectors.197

192
For example, according to the report of European Union Intellectual Property Office (EUIPO), mainstream
advertising made up 46% of all advertising found on infringing sites. See, EUIPO, Digital Advertising on
Suspected Infringing Websites, (2016), available at;
https://euipo.europa.eu/ohimportal/documents/11370/80606/Digital+Advertising+on+Suspected+Infringing+We
bsites
193
WIPO, Arrangements to Address Online IP Infringements, the document prepared by WIPO Advisory
Committee on Enforcement, 13th Session Geneva, (September 3 to 5, 2018), at 16.
194
The European Association of Communication Agency, the "Follow the Money" Approach in Intellectual
Property Rights Enforcement, (2018).
195
Id.
196
IAB (Internet Advertising Bureau) Europe, available at: https://iabeurope.eu/follow-the-money/
 43

3. REVIEW OF INTERNATIONAL APPROACH AND THE

EXPERIENCE OF OTHER COUNTRIES
3.1. Introduction
This unity focus on international legal standard and experience of other jurisdictions
concerning the protection and enforcement of copyright on the internet through ISPs. The
study in chapter particularly seeks to have some insight whether there is internationally
accepted regulatory principle concerning ISP’s liability for online copyright infringement at
as well as in other countries, and what is the form this liability looks like and how it apply.
This will be made by examining a leading standard implemented under international
copyright treaties (if any) and by analyzing experience of other countries selected by
researcher for comparative study under this unit. Doing so would have a great importance to
identify useful provisions and best practices and held to adopt less draconian, more balanced
and fair legal approach which regulate liability ISPs to control online piracy in Ethiopia. The
unit divided into two section; the first section, using the existent international treaties as a
lens, evaluates the current stance of international laws on ISP’s legal duty to control online
infringement while the second section focus on the experiences of countries.

3.2. International Approach

International copyright standards are governed by multilateral treaties. Among international
copyright treaties the most important are; the Berne Convention for Protection of Literary and
Artistic Works (herein after Berne Convention)198, The Agreement on Trade Related Aspects
of Intellectual Property Rights (herein after ‘TRIPS’ agreement) which associate copyright

197
WIPO, The Building Respect for Intellectual Property Database Project, the document prepared by WIPO
Advisory Committee on Enforcement, 14th Session, Geneva, September 2 to 4, (2019), available at:
https://www.wipo.int/meetings/en/doc_details.jsp?doc_id=439052……. accessed on 2/6/2020.
198
Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, as revised at Paris on July
24, 1971 and amended in 1979, available at: https://www.wipo.int/treaties/en/ip/berne/
 44

protection with international trade 199 and the WIPO Internet Treaties which aimed to address
copyright issues in digital network environment. The Berne Convention is considered as the
most significant international copyright treaty which has established the basic standards of
copyright protection contributing significantly to a substantial harmonization of copyright
laws of contracting parties.200 The convention is fulcrum and spindled on the utilitarianism
view that defines modern international copyright law in that, ‘ a proprietary incentives are a
critical requirement for knowledge creation and promotion’.201The conventiondeals with
copyrighted works; such as literary and artistic works and derivative works;the requirements
for protection; eligibility criteria; the exclusive rights of the authors against their works; and
possible limitations and exceptions against these rights. 202 The term of protection,
infringement of copyright and remedies are also among the issues covered under this
convention.203
In response to treaty making in international IP system, the WIPO grew out of a need to have
the administrator of these treaties and considered as specialized organization which facilitate
the objectives of IP system the throughout the world.204WTO is also an international
organization which regulates a broad terrain of international relations. 205It administers a
"broad package" of international trade agreements. However, onlyTRIPS agreement
addresses the field of IP among the broad packages of treaties administered under WTO.
TRIPS is considered as the most important instrument in the realm of international IP. It
harmonizes IP protection system among member nations, expands protected subject matters
to computer programs and databases, increases the minimum protection standards in previous
conventions and treaties by providing right of rental to authors of computer programs and
199
The Agreement on Trade Related Aspects of Intellectual Property Rights (‘TRIPS’), Annex 1C of the
Marrakesh Agreement Establishing the World Trade Organization, 1869 U.N.T.S 299; 33 ILM 1197 (1994).
200
Hanley, Jennifer L., ISP Liability and Safe Harbor Provisions: Implications of Evolving International Law for the
Approach Set Out in Viacom v. YouTube, Journal of International Business and Law: Vol. 11: Iss. 1, 9, (2012).
201
Berne Convention, Art. 20.
202
Id, Art. 2.
203
Id, Art. 2 - 17.
204
The Convention that established WIPO was signed at Stockholm on July 14, 1967, entered into force in 1970
and amended in 1979. The WIPO’s stated purpose is to develop a balanced and accessible international IP
system which rewards creativity, stimulates innovation and contributes to the economic development while
safeguarding the public interest. The organization serve as the forum for negotiating further extensions to the
global governance regime for IP: plays active role in providing models for national laws to modernize the
existing legal infrastructure and, also provides assistance to developing countries in creating IP systems. As of
2019, WIPO has 192 members. See at: https://www.wipo.int/treaties/en/text.jsp?file_id=28385
205
The WTO officially commenced on 1 January 1995, under the Marrakesh Agreement, replacing the General
Agreement on Tariffs and Trade (GATT), which commenced in 1948. As of 2019, WTO has 164-member
States and 23 with observer status, see: https://www.wto.org/english/thewto_e/whatis_e/tif_e/org6_e.htm
 45

producers of sound recordings and films, and established mandatory dispute settlement
procedures to permit the effective enforcement of the rights. The agreement leaves wide
discretion for member States to enact enforcement legislations but, provides a minimum
standard that all members must implement for effective action against infringement.206

Nevertheless, the expansion of digital network technology over the past three decades
brought a huge market for online copyright piracy and thus, impaired a long-settled canon of
the classic copyright protections system under these conventions in a very fundamental
way.207 This is not a problem that can be isolated in a single country; its reach has no
boundaries. With the ease and speed of internet, the copyright holders may very likely be in
one country while violator and the ISPs are yet located in different countries. 208
Consequently, ISP’s liability issue raised with significant international implication. 209
However, as it adopted before advancement of cyber technology, neither the Berne
Convention nor the TRIPs agreement contain any provision specifically tailored to deal with
online copyright infringement, and the responsibility of ISPs in protection and enforcement
of copyright on their network. Hence, under both treaties, the ‘ISP’s limited liability rule’
does not devised as a piracy controlling mechanism.

In the 1990s, it became clear that the growth in a new digital network technology require
corresponding change in international copyright protection system. Different arguments have
been advanced to make copyright legal regimes interoperable with the development of global
digital network if creative activities and digital network are to develop synergistically and
concurrently for the benefit of all.210 After extensive discussion, in 1996, the WIPO adopted
the two treaties popularly known as ‘Internet Treaties’, these are; the WCT and the WPPT.211
206
TRIPS agreement, Art. 41-61.
207
Ruth L. Okediji, The Regulation of Creativity Under the WIPO Internet Treaties, 77 Fordham L. Rev. 2379
(2009), at: http://ir.lawnet.fordham.edu/flr/vol77/iss5/12. See also Jennifer Newton, supra note 128, at 134.
208
Michael B. Rutner, The ASCAP Licensing Model and the Internet: A Potential Solution to High-Tech
Copyright Infringement, Boston College of Law Review, Vol.39, iss.4, 1061-1085, (1998), at 1068 and 1069,
available at: http://lawdigitalcommons.bc.edu/bclr/vol39/iss4/6.
209
Aakanksha Kumar, Internet Intermediary (ISP) Liability for Contributory Copyright Infringement in USA
and India: Lack of Uniformity as a Trade Barrier, Journal of IP Rights Vol 19, (2014), at 272-281
210
Id.
211
The WCT deals with protection for authors of literary and artistic works, such as writings and computer
programs; original databases; musical; audiovisual; fine art and photographs works; This treaty, provides to the
authors right of distribution, rental and communication of their works to public in digital environment, (Art 6,7,
8, of the treaty). Plus, during promulgation of this treaty the diplomatic conference responsible for the adoption
of the treaty specified that the right of reproduction provided under article 9 of Berne Convention extend to the
 46

The purpose of these treaties is to update and supplement the major existing WIPO
copyrights and related rights treaties in light with the evolving digital technology.
Accordingly, the treaties set down international norms aimed to regulate digital copyright and
to address the challenges posed by today's digital network technologies, such as the
unauthorized access and dissemination of protected materials in online environment. Both
treaties require state parties to provide adequate and effective legal remedies to control an
infringement of any right covered under the treaties or the Berne Convention.212
When negotiating these treaties however, likely because of the difficulty and necessity of
gaining consensus among parties, some issues raised by the emergence of the digital network
could not gained the needed consensus. Addressing the legal duty that ISPs may have in order
to control online copyright infringement’ is among the issue of legal concern that received
myopic consideration during negotiation and thus, not adopted into law in the finalized
treaties. These treaties, particularly the WCT, protect ISPs from liability to make damage for
online infringing acts of their subscribers. Pursuant to the agreed statement No. 7 of WCT,
the mere provision offacilities for enabling or making a communication does not in itself
amount to communication. Many scholars interpret this statement as a ‘safe harbour’ meant
to limit the strict liability that service providers may incur for the infringing act of third party
in online environment. Except this stipulation, which basically focus on service provider’s
freedom to operate, there is no any other provision or agreed statement under these treaties
and other supplementary documents, which specifically deal with ISP’s liability to take part
in online copyright protection strategy. By the time, this issue was left to member States to
determine in their national legislation.As a result, recently different countries have undergone
major paradigm shifts in their domestic statutes and adopting a legal frame which impose
liability on ISPs to control unlawful activities on the internet. However, the wide range of
discretionary power and the high level of flexibility involved in thetreaties allowed variations
in legal approach of member States thereby affecting WIPO’s objective to harmonize IP law
among the State parties.

digital environment, hence this treaty confer the reproduction right to the author. Whereas the WPPT deals with
the neighboring rights - protection of performers and producers of phonograms particularly in the digital
environment. It provides the rights of reproduction, rental, distribution and the right of making available both to
performers and producers of phonograms, (Art.7-14 the treaty). Both treaties incorporate copyrights limitations
and exceptions against all the rights covered under these treaties which apply in digital network environment
(Art.10 WCT of and its agreed statement No. 8 and Art art16 of WPPT and the agreed statement No. 8.), for a
detailed information about the subjects and contents of these treaties, see the WIPO home page available at:
https://www.wipo.int
212
WCT, Art. 12 and WPPT, Art. 44.
 47

Generally,it ca be concluded that, there is no commonly accepted international norm

demanding the imposition of legal duty (liability) on ISPs to control online copyright
infringement.213 The absence of generally recognized international standard on this issue
causing problems for ISPs who provide service across international borders, as well as for the
right holders to claim the protection and enforcement of their rights in other Jurisdictions. At
national level, States have substantial freedom to enact their own domestic norms that
regulate this concern. This high level of freedom resulted to the emergency of new
legislations different jurisdictions to regulate ISP’s liability in online environment. This being
said, the discussion in the following section will analyze experiences of two countries
selected for the purpose of this study and pinpoint the regulatory approach that they have
adopted to regulate the liability of ISPs for online copyright infringement.

3.3. The Experience of other Countries

For the States, it is not new phenomenon and even becoming a common trend, especially for
the developing countries, to look for the international or the trends of other nations before
attempting the adoption of new legal frame work or making reform to the existing one. The
developed countries, mainly those with rich legal jurisprudences, have shaped the
development pattern of international legal systems and continuously influencing the domestic
laws of developing counties. Whenever they faced with factorial domestic demand with
imperative regulatory response, the developing countries approach to and examine the trend
of others. This would indeed accelerate the reform process and help to transplant the
advanced legislation which fit with the domestic socio-economic and technological reality of
the recipient country.Legal transplantation is a double-edged sword for recipient nation; on
the one hand it is the opportunity that the recipient country could explore development in its
own way through experimenting and improvements without spending much time and
resources. On the other hand however, transplantation which made without appropriate
localization may import any disadvantages of the foreign systems that may render it
incompatible to the domestic socio-economic situations of the recipient countries. 214
Therefore, critical scrutiny through the international trend and the experience of others’
jurisdiction would help to better understand the gap exist in Ethiopian copyright legal
framework; provide useful guidance for the improvement of copyright law concerning the
213
Jie Wang, supra note 50, at 19.
214
Berkowitz, Daniel, The Transplant Effect, The American Journal of Comparative Law, vol. 51, no. 1, 2003,
at 163, available at: www.jstor.org/stable/364914
 48

role and responsibility of ISPs in protection and enforcement of copyright on the internet in
the country. Having this in mind, the researcher purposefully selected two countries as the
subject of study in this unit. These are; the United State of America (USA) and South Africa.
There are some justifications particularly associated with the selection of these two specific
countries in this research;
As concerned the US, it is the most developed country and a leading exporter of cultural and
creative products, as well as front-runners in the development and adoption of new
technologies. It is the hub for the entertainment industry that supplies digital contents to users
worldwide. The economic advantage enabled the country to create a robust copyright legal
framework to the support its creative industries globally. As the leading digital copyright
consumer and exporter country, the US copyright law is considered as strongest and effective
legal regime in the world, it encompasses a very convenient and relevant provisions for
protection copyright in digital environment. 215Furthermore, the trend of US shows that,
lawmaking around copyright legislation has always been made after intensive debates so as to
compromise the interest of different stakeholders.216 The US DMCA is the best example of
such kind of copyright legal frame work. This Act is the fruit of intensive lobbying by a wide
range of interested groups which include copyright owners, service providers and internet
users. Before its enactment, on the one hand, content owners have been arguing for the
adoption of strong copyright law so that they could effectively protect and enforce their right
on the internet. On the flipside, an equally vehement lobby was been made by ISPs and
another subsidiary. They continually sought the adoption of regulatory regime with wider
liability exceptions in case of online copyright infringement. 217 Hence, the DMCA is framed
as a compromise between the feuding interests of different groups. Therefore, the researcher
fiercely believes that having some insight about the US experience help to analysis whether
the existent Ethiopian copyright law effectively protect copyright in digital age and guide us
to adopt modern legal framework in response to the digital revolution that is taking place in
Ethiopia.
However, the differences in the development status between US and Ethiopia is a point of
caution and need to be questioned systematically in order to encourage the expedition of US

215
According to the 2019 international property right index, UA and Finland are leading the world in terms of
protection of IP rights. See: https://www.propertyrightsalliance.org/news/2019
216
Herman, Bill D. and Gandy, Oscar, A Legislative History and Content Analysis of the DMCA Exemption
Proceedings, Cardozo Arts & Entertainment Law Journal, Vol. 24, 121-190, (2006), available at:
https://ssrn.com/abstract=844544.
217
Id. See also: Rockman H., The Digital Millennium Copyright Act of 1998 (DMCA) - An Overview, (2004).
 49

experiences in line with the domestic context of Ethiopia. The US is among the top-level
developed countries in terms of technology, socio-economic and cultural contexts if
compared with Ethiopia.218 The legislative provisions and policies of US developed countries
like a US, lean more towards stronger IP laws to safeguard the dominant positions of their
knowledge-based industries if compared with the developing countries. Moreover, it has been
argued that it is more beneficial for developing countries to adopt moderate levels of
protection for IP to promote technology transfer, research and development in domestic
cultural industry.219 Therefore, given such asymmetrical interests and differences in domestic
policy of the developed and developing countries, to use the USA experience as stand point
for Ethiopia, we need to employ a high level of caution so as to encourage the transplanting
of laws or the fusion of experiences that align with the specific interests and domestic
conditions of Ethiopia.

Coming to South Africa, the researcher strongly believe that experience of South Africa is
also an ideal and a specifically suitable for this research to concentrate on as a subject of
comparative study with the Ethiopian context. The two countries are on a symmetric pattern
in the context of socio-economicand technological development. Both countries are the
developing countries and, more or less, have a comparable trend in terms of internet
penetration and the proliferation of creative industries but, undeniably, with some sort
differences. Before adoption of its current law, South Africa has experienced online copyright
piracy same as what currently Ethiopia is grappling with.As an effort to fight piracy, South
Africa howeverundergone some legislative reformthrough adoption of a law termed as
Electronic Communications and Transactions Act (herein after ECTA.220This Act adopted
with the intention to facilitate Electronics Communications and Transactions in the Republic
and provide legal certainty for ISPs concerning their role and responsibility in online
transaction.221 Therefore, before quest for legal transplantation, it is better for Ethiopia to
overview the trend of South Africa in order to take the advantages of consulting a legal frame
work that has been tested through actual application.

218
According to the 2019 IMF’s database, the U.S has retained its position of being the world's largest economy
with Nominal GDP: $20.49 trillion. See: IMF's World Economic Outlook Database, April 2019
219
Jean-Frédéric Morin, Edward R. Gold, An Integrated Model of Legal Transplantation: The Diffusion of
Intellectual Property Law in Developing Countries, International Studies Quarterly, Volume 58, Issue 4, 781–
792, (2014), at 781, available at: https://doi.org/10.1111/isqu.12176
220
Electronic Communications and Transactions Act (ECTA), supra note 164.
221
See the preamble of the Act.
 50

In nutshell, going through the experiences and legal frame work of other countries helps
Ethiopia to evaluate strength and weakness of legal framework that has been applied in these
jurisdictions and enable to implement contextually adequate protection for its creative
industries in digital space. Plus, the market liberalization in international commerce and
convergences in international legal frame work with the effect of emergent factors such as
globalization and internationalization justify the synthesis of experience of other countries.
This being said, the discussion in this section divided into two parts; the first part briefly
explains the experience that US passed through before adopting DMCA and then analyzes the
currently operating DMCA concerning ISP’s liability for online copyright infringement,
whereas the second part deals with the South African experience and highlights the ECTA –
internet regulatory regime of South Africa – concerning the role and liability of ISPs for
copyright protection in digital age.

3.3.1. The US Experience

3.3.1.1. ISP’s Liability Regulatory Environment Before the Adoption of DMCA

Copyright law of US was originated from British ‘Statute of Anne’ Prior to the framing of the
Constitution. Following the American Revolution, most of the States in UA enacted their
own copyright laws generally patterned after the English act. However, the need for federal
copyright legislation was soon recognized, and when the US Constitution was drafted, the
principle of copyright incorporated into it. The Constitution explicitly grants congress the
power to create copyright law under the clause known as ‘copyright clause’. 222 Based on this
constitutional stipulation, the congress has enacted copyright law and amended it at different
times. The earliest and noteworthy US Copyright Act dates back to 1909 223, which was later
superseded by the 1976 federal copyright Act.224 The 1976 Act, which took effect on January
1, 1978, was a comprehensive revision of the US copyright law designed to remedy the
omissions and the weaknesses of the 1909 Copyright Act and codified in title 17 of the
United States Code. This Act covers among the other, the scope and the subject matter of
copyright works;the rights exclusively reserved for the authors; exceptions and limitations
imposed on these rights such as fair use, the term of protection; copyright notice and

222
United States Constitution, Article I, Section 8, and Clause 8 of the constitution, available at:
http://fairuse.stanford.edu/law/us-constitution/.
223
The US Copyright Act of 1909, Pub. L. 60-349, 35 Stat. 1075 (Mar. 4, 1909; repealed Jan. 1, (1978)
224
Copyright Act of 1976, Pub. L. No. 94-553, 90 Stat. 2541, October 19, 1976.
 51

registration; infringement and the remedies.225 As concerned infringement, the Act adopted
strict liability and therefore, any person who violates any one of exclusive rights of the owner
would be subjected to the actionable offense and directly held liable regardless of the
intention of theinfringement.226 The introduction of internet technology in US however, posed
the challenge of online copyright infringement and made it tricky for the holders to attempt to
enforce their right against the pirates.227 The difficulty to pursue legal action against primary
infringer led copyright holders to seek remedies from the ISPs.228 In 1990s, when the issue of
ISPs came up before the courts, there was no a clear law meant to regulate such case, hence
Copyright Act was the only available legal source to apply. 229 Therefore, in an effort to deal
with the issue, few courts relied on direct liability principle adopted under the Act, while
most of them primarily hinged to secondary liability.230
I. Direct liability
In the experience of US, ISPs have been sued to assume direct liability for the infringing
behavior of their subscribers. The courts applied the strict liability adopted under Copyright
Act 1978 and held ISPs directly liable for infringing behavior of their subscriber. The first
known case under which ISP forced to assumedirect liability for the infringing act of third
party was a Playboy Enterprises Inc v Frena case.231 Nonetheless, this ruling was discredited
in several subsequent cases due to the extreme and unreasonable liability it creates.232

225
Copyright Act of 1976.s106 (as codified and amended at 17 USC section 101-1010 (1998).
226
Id.
227
Jo Dale Carothers, Protection of Intellectual Property on the World Wide Web: Is the Digital Millennium
Copyright Act Sufficient? (1999), at 937- 942.
228
Emerald Smith, Lord of the Files: International Secondary Liability for ISPs, 68 WASH. & LEE L. REV.
(2011),1555-1587 available at: http://law2.wlu.edu/deptimages/law%20review/68-3n.23Smith.pdf
229
Wei W, The liability of Internet Service Providers for copyright infringement and defamation actions in the
United Kingdom and China: A comparative study, European IP Review, 28 (10) (2006), at 528.
230
Davis P. Connie, supra note 43.
231
This was the first case which considered the issue of ISP’s direct liability for online infringing conduct of
their subscribers. In this case, the defendant George Frena (ISP) owned and operated a Bulletin Board System
(BBS) which available for Frena’s subscribers to look, upload or download materials stored on Frena’s
computer up on the payment of browsing fee. One of the Frena’s subscribers uploaded copyrighted photograph
which belonged to ‘Playboy enterprise Inc’ - the plaintiff. Playboy sued Frena on the ground that Frena violated
its exclusive copyright by displaying and distributing the photographs posted by subscribers on the services.
Relaying on strict liability standard, the court found Frena’s (ISP) liability under ‘direct liability theory’ stating
that ‘the defendant committed direct copyright infringement simply by providing a means (basic internet
service) which enabled the subscribers to upload copyrighted work of others’ unlawfully’. The court found
Frena’s liability under direct liability theory. See: Playboy Enters., Inc. v. Frena, 839 F. Supp. 1552 (M.D. Fla.
1993). available at: https://law.justia.com/cases/federal/district-courts/FSupp/839/1552/1444305/
232
A. Yen, Internet Service Provider Liability for Subscriber Copyright Infringement, Enterprise Liability and
the First Amendment, Georgetown Law Journal, Vol. 88, No. 1833, 8-45, (2003), at 8.
 52

II. Secondary Liability

The US Copyright Act 1976 does not explicitly recognize the possibility of secondary
liability of ISPs for online copyright infringement. Nonetheless, the courts ruled the issue
under contributory liability and vicarious liability which are the long-standing common law
doctrines of secondary liability rule.233
Vicarious Liability: ISPs have been sued as vicarious infringer for the infringing act of their
subscriber in UA however, the courts were not inclined to hold them liable. Only two courts
have considered the vicarious liability of ISPs; the first case was the Religious Technology
Center church (RTC) v. Netcom case.234In this case, the individual called ‘Dennis Erlich’
(primary infringer), placed copyrighted document belong to RTC Church (a plaintiff) on the
internet. In doing so, he used a local Bulletin Board System (BBS) which get internet access
from the company called ‘Netcom’ (ISP). The Church requested BBS and Netcom to
terminate Erlich’s internet access and to remove the infringing document from their servers,
but they did not accept. Then, the Church sued BBS and Netcom claiming that they were
directly, vicariously and contributory liable for copyright infringement. On the claim of direct
liability, the court did not find the Netcom’s and the BBS’s liability, reasoning that they did
not take any action to cause the copy of Church’s document. On the claim of vicarious
liability, the court considered a cumulative fulfillment of two elements, these are: the
Netcom’s ability to supervise Erlich’s infringing activity and its financial gain. Regarding the
first element, the court found that the defendant actually had the ability to control the user’s
activity. Concerning the second element however, the court ruled against the plaintiff stating
that Netcom did not gained direct financial benefit from Erlich’s posting of the alleged
infringing material.
The other case in which the US court discussed the issue of ISP’s vicarious liability was the
Marobie-FL, Inc. v. National Association of Fire Equipment Distributors (NAFED) case. 235
In this case, primary defendant - ‘NAFED’- posted the copyrighted image owned by plaintiff
(Marobie Inc) on to its webpage using internet network provided by the company called
‘Northwest Nexus Inc’ (ISP). The defendant made the image available to be freely accessed
and downloaded by others internet users. The plaintiff sued Northwest Nexus Inc for direct,
vicarious and contributory infringement. In this case, the court of Northern District of Illinois

233
Daniel Seng, Comparative Analysis of the National Approaches to the Liability of Internet Intermediaries,
National University of Singapore, (2011).
234
Religious Technology Center v. Netcom case, supra note 126.
235
Marobie-FL, Inc. v. National Association of Fire Equipment Distributors, 983 F. Supp. 1167 (N.D. Ill. 1997).
 53

reached the same conclusion as the aforementioned Netcom case, but on different facts. The
court stated that ‘the relationship between Northwest and its subscriber - NAFED is close
enough to justify vicarious liability, but the fact that the Northwest not gained financial
benefit directly related to the infringing act of NAFED made finding of vicarious liability
impossible. From these two cases, it can be understood that the US courts hesitated to impose
vicarious liability upon ISPs because of the facts that ISPs can hardly control their
subscribers and do not profit financially from the unlawful act of their subscribers directly.
Contributory Liability: Contributory liability is the most likely approach under which ISPs
have been sued in US experience for the infringing act of their subscribers in case of online
piracy. The courts considered whether the mere fact of providing internet services and other
technological equipment, which the subscribers used to infringe copyright, establish the
elements of ‘knowledge’ and ‘contribution” against ISPs and hold them liable as contributory
infringer because, contributory liability arises only when the alleged defendant intentionally
induces, causes or materially contributes for the infringing conduct of primary actor. Among
many cases, the ‘Sega Enterprises v. MAPHIA case’236 is the well-known one in which
intermediary was sued as contributory infringer and held liable for the infringement
committed by its subscribers. In this case, the defendant -MAPHIA (bulletin board operator)
enabled the users to freely access to the copyrighted video game program owned by ‘Sega
Enterprises’ (the plaintiff), and directed them to download and upload the game. The court
found MAPHIA’s contributory liability stating that ‘MAPHIA had knowledge the fact that its
users copied the videogame and contributed intentionally by providing facilities (free access),
actively soliciting and encouraging the users to download and upload and, moreover, by
giving direction to them how to upload or download the game’.237

To sum-up, in U.S.A before the enactment of DMCA, the copyright holders, Judiciary and, of
course, service providers faced notable difficulty concerning how to upheld the challenges of
digital environment. To solve the dilemma of ISP’s liability for online copyright
infringement the courts applied Copyright Act and the common law principle of secondary
liability. However, the contour of these regulatory regimes was not clear to regulate this issue
and led to legal contradictory solutions. Due to range of interpretations that it allowed, some
courts leaned to strict liability unjustifiably imposing the whole burden on ISPs, while others

236
Sega Enterprises Ltd. v. Maphia, 857 F. Supp. 679 (N.D. Cal. 1994).
237
Id, para 683 and 686. See also: Taragade Dangngam, Internet Service Provider liability for third-party
copyright infringement A comparative study between US and EU approaches, (2009).
 54

held them to be not liable at all. Even in a relatively few addressed, the courts were not
established ISP’s liability beyond controversy and often reached different conclusions.
Consequently, in order to protect copyright in digital and to resolve the dilemma of ISP’s
liability for online copyright infringement the US congress adopted DMCA in 1998. Having
this as a background, the following discussion will focus on the liability that DMCA impose
on ISPs to control infringement and the enforcement mechanism adopted under this Act.

3.3.1.2. DMCA: Online Copyright Infringement Liability Limitation Act (section

512)

In America, before the enactment of DMCA, as noted above, there was no regulation
particularly dealing with the role and liability of ISPs for protection and enforcement
copyright internet. In order to update copyright law for the digital age, the U S congress
amended section of 117 of Copyright Act 1976, and adopted DMCA. This Act was signed
into law in October 1998 and comprise five parts.238 The relevant part of DMCA to be
focused here is ‘Online Copyright Infringement Liability Limitation Act’ added under section
512 of DMCA. This Act which is also known as ‘ISP’s Limited Liability Act’ clarify the legal
duty that ISPs need to undertake in order to control online copyright infringement. It also
aimed to bring the U.S. copyright law into compliance with the WCT which requires member
states to strike a balance between copyright protection and online technological progress. 239
The Act provide the right and obligation of the parties in online environment with a greater
certainty and encourages the holders and ISPs to work together in fighting online piracy. 240
The following paragraphs deal with some important provisions adopted under this Act in
order to facilitate online copyright protection.

a) Safe Harbour Privilege Under DMCA

To shelter ISPs from un reasonable liability, this Act provides a privilege known as ‘safe
harbour provision’ to protect ISP’s freedom to operate. 241 Accordingly, ISPs have neither
general obligation to monitor the materials uploaded on their platforms nor assume the

238
The five Acts included in DMCA are: WIPO Copyright and Performances and Phonograms Treaties
Implementation Act of 1998; Online Copyright Infringement Liability Limitation Act; Computer Maintenance
Competition Assurance Act; Six miscellaneous provisions and Vessel Hull Design Protection Act.
239
See the preamble of WCT and sections 101 &102 of DMCA.
240
Graeme B. Dinwoodie, supra note 20.
241
Giovanna Fessenden, Peer-to-Peer Technology: Analysis of Contributory Infringement and Fair Use, The
Journal of Law and Technology, Volume 42, No. 3, (2002), at 391, available at:
https://www.hbsr.com/files/idea__fressenden__peertopeer_technology.pdf
 55

liability to make damage or criminal offense for the infringing of act third partiesoccurred on
its network system.242 Nonetheless, the liability limitation privilege under the safe harbor
provision is not automatically apply to all service provides. To qualify for this privilege, there
are certain threshold requirements that ISPs must comply with;
First;the concerned ISP must fall with the definition of ‘ISP’ provided under the Act; section
512 (k) of the Act defineISP as “an entity offering transmission, routing, or providing
connections for digital online communication, between or among points specified by a user,
of material of the user’s choosing, without modification to the content of the material as sent
or received or, more widely, a provider of online services or network access, or the operator
of facilities thereof”.243 Therefore ISP, in order to benefit from safe harbour privileges, must
fall with this definitions as provided under the Act.244
Second, section 512 of DMCA create safe harbor only for four categories of internet
activities recognized under the Act, and laydown specific conditions correspondent to each
category of the activity which the respective ISP must fulfill. 245As such, ISPs which provide
any of the following internet services and comply with the specific condition stated therein,
would automatically benefit from safe harbor;
i. Transitory Digital Network Communications (transmissions conduit): the first category
of safe harbors is transitory network communications. S-512 (a) of DMCA provides safe
harbor for “conduit” which offers internet access service to the public to transmit
information on the internet. ISPs which act only as data conduit for transmitting digital
information from one point on a network to another at someone else’s request will not be
held liable for copyright infringement. However, the DMCA establishes some conditions
that ISPs have to meet in order to benefit from this safe harbor: 1) the transmission of the
material is initiated by a third party not by ISP; 2) the whole process of transmission is
carried out automatically without selection and modification of the material by the ISP; 3)
the ISP did not select the recipients.246
ii. System Caching:the second safe harbor is conferred to service provider who offer system
caching.247 System caching refers to the process by which ISPs temporarily ‘store material

242
DMCA, section 512 (a-d).
243
DMCA, section 512(k)(1)(a).
244
Giovanna Fessenden supra note 241.
245
Salil K. Mehra and Marketa Trimble, Secondary Liability of Internet Service Providersin the United States:
General Principles and Fragmentation, Global Studies in Comparative Law 25,(2017), at 93.
246
DMCA, section 512 {a (1-5)}.
247
Section 512(b)(1)(A)-(C).
 56

on its system’ in order to reduce network congestion and to increase internet

performance.248 ISPs will be immunized where they temporarily and automatically retain
copies of material for a limited time, which has been made available by the users and,
then transmit it at the use’s direction. The exempting conditions to be met by ISP offering
a caching service are generally those specified under the first safe harbor. Besides, ISP
need to complies with industry standards such as refreshing, reloading and updating the
material.249 The caching ISP also need to follow takedown notice procedure.250
iii. Information residing on systems or networks at direction of users:the third safe harbor
is designed for the so-called ‘host’, which offers internet storage space for its users to
upload their materials.251 Unlike system caching, which provide temporary storage,
anhosting ISP stores the content originated by the user for a longer period of time. S-
512(c) of DMCA provide liability limitation to protect an ‘innocent’ and uninformed ISP
which host and offer storage even for the infringing information originated by third party.
The conditions listed under this sub-section seems originated from the common law
theory of secondary liability. Therefore, in order to take this advantage;firstly, the ISPs do
not have actual knowledge of the apparent infringement; secondly, they do not receive a
financial benefit directly attributable to the hosting of such infringing content; thirdly,
they need to abide by notice-and-takedown procedure.252
iv. Information location tools: the fourth safe harbor is related to information location tools
such as online directories, index, reference, pointer, or hypertext link, which may refer or
link a user to sites that contain infringing materials. The exempting conditions to be met
by this type of ISP are similar with those offering hosting service as discussed above.253

Third, in addition to the above requirements, there are also other conditions which ISPs must
fulfill in order to be eligible for taking the advantages of safe harbor provisions. S-512(i)(2)
of DMCA specifies two conditions which apply generally and equally to the above discussed

248
Aakanksha Kumar, supra note 209, at 276.
249
This means if the person who is making material available online changes the content of the material the
copy of the material stored in caching also needs to be refreshed, reloaded or updated through an automatic
technical process, Moreover, ISP must limit the access to the stored material only for users who act in
accordance with the conditions set by the content provider, such as the condition based on payment of a fee or
provision of a password or other information. Section 512(b) (2)(D).
250
Id, section 512 (b){E}).
251
Id, section 512 (c).
252
Id, section 512 (c) (1) (A) -(C).
253
Aakanksha Kumar, supra 209.
 57

all categories of ISPs regardless of the types of activity that they perform: 254 a) the service
providers must adopt and reasonably implement a policy against repeated infringers, and
inform users of their policy.This policy must ‘provide for the termination of the users who
repeat the infringement. b) the service provider must accommodate and not interfere with
standard technical measures used by copyright holders to identify or protect their works.

b) Notice and Take Down Procedure Under DMCA

The notice-and-takedown scheme is one of the most effective protection mechanisms
designed under DMCA to ensure the formalization and refinement of a desired cooperation
between ISPs and the holders to control online infringement in America. It is the so heavily
reliant on to control huge amount infringement without involving time-consuming trials. 255 In
order to qualify for the safe harbor, the concerned ISPs must expeditiously remove claimed
infringing materials or disable access to those materials upon receiving notifications from the
copyright owner or the owner's authorized agent. 256 S-512(c) of DMCA provides that in order
to enjoy the limitations of liability, ISPs must designate an agent to receive notificationby
making substantial information available on their websites, including a location accessible to
the public and by providing to the Copyright Office the name, address, phone and electronic
mail of the agent, as well as other contact information which the register of Copyrights may
deem appropriate.
The Act lay down some detailed provisions concerning the ‘contents’ and ‘procedure’ for the
operation of notice-and-takedown scheme. As concerned the content of the notice, the Act
prescribes that a competent notification should contain substantially: (i) contact information
and signature of the complaining party as well as specification of the copyrighted work
claimed to have been infringed; (ii) information reasonably sufficient to permit the ISPs to
locate the claimed infringing material or the link; (iii) a statement that the complaining party
has a good faith belief that the use of the material in the manner complained of is not allowed
and; (iv) a statement that the information is accurate and the complaining party is the right
holder or authorized to act.257 Drawing reference from the above elements, it can be
concluded that the Act provides strict requirements concerning the content and format of
notification. The notice which fails to substantially comply with these elements is not

254
DMCA, section 512(i) (A).
255
Tatiana L. Romero, supra note 168, at 209.
256
DMCA, section 512(b)(2)(E), (c)(1)(C), (d)(3).
257
Id, section 512 (c)(3)(A),
 58

considered as competent notification and cannot be regarded as evidence to decide whether

the concerned ISP has actual knowledge of the apparent infringement. Therefore, the right
holder who wants to benefit from this system is expected to prepare concrete notification and
deliver it with full caution.

Limitation on liability for taking down:In USA, before the enactment of DMCA, ISPs had
been in dilemma concerning notice and take down issue because, on the one hand, since
notification from the right holder trigger ISPs’ tactual knowledge of apparent infringement,
they had to act promptly upon receiving the notification. And if ISPs failed to do so, they
would face liability for infringement. On the other hand, they were at risk that they may
likely to be sued by person whose material has been taken down wrongly when the claimed
infringing material turned out to be not infringing at all. However, the DMCA attempted to
solve this problem in two ways:
First: it provides protection for ISP who has wrongly removed or replaced the alleged
infringing material so long as they faithfully performed their duty following competent notice
and, promptly notify the alleged infringer (internet user) that his material claimed as
infringing and thus, has been removed from online or that his access disabled. 258 The internet
user whose material wrongly removed can send counter notification to the ISP. 259 Counter
notification scheme aimed to protect internet users’ right from being improperly eroded by
false complaints. Upon receiving the counter notification, ISP shall promptly forward the
copy it to the person who first sent the take down notice and inform him that the removed
material will be restored in 10-14 business days unless court action taken against the alleged
infringer.260 The contents of counter notification are similar to those in notification. 261Second:
In order to prevent the abuse, the act provides for a cause of action and damages against the
person who intentionally acts in bad faith bot in take down notification and counter
notification procedure.262

c) Subpoena (Identities Disclosure) Procedure Under DMCA

Internet is characterized with anonymity and thus, internet users can easily hide their
identities. Without knowing the identity of infringer in suspect, copyright holders cannot
258
Id, section 512 {g (1 and 2)}.
259
Id.
260
Id, section 512 (g) (2 (B &C).
261
Id, section 512 {g (3)}.
262
Id, section 512(f).
 59

launch lawsuit. In order to enable the right holder to sue the alleged primary infringer on the
internet, DMCA grants copyright holders the right to require ISPs to disclose the identity of
alleged infringerunder certain circumstances.263 Therefore, the right holder who wants to
acquire the identity of infringer needs to request the clerk of concerned US District Courts to
allow and issue subpoena order against the concerned ISPs. 264The subpoena procedure
governed by the US Federal Rules of Civil Procedure. 265 The provision specifies the contents
of the request, the basis for granting it, and the actions required of the ISP who received it.
Accordingly, competentrequest for subpoena should include a copy of proposed subpoena,
and the sworn declaration which indicate that the purpose of obtaining the identity of an
alleged infringer is only for protecting rights under this title. A proposed subpoena shall
authorize/order the concerned ISP to disclose sufficient information about the infringer to the
right holders orthe authorized agent.266

d) Injunction Relief Under DMCA

When copyright infringement is apparent, a claim for (temporary or permanent) injunction
relief is normally arises to halt the infringement at issue. Under DMCA, ISPs who met the
relevant eligibility requirements of safe harbor are not liable for monetary relief, however
they may be subjected to injunctive relief for their subscriber’s infringing act committed on
through their network.267 That is, if their activities fall within the safe harbors, the only
penalty that they may face is a narrow injunction relief issued by the court.
The conditions and modalities relating to such injunctions are provided under S-512 (j) of the

Act. This provision limits the forms of injunctive relief and lists the factors that courts must
consider when deciding whether to issue an injunction order against service provider. 268S-512
(j) (1) illustrate the form of injunction which court may grant. The injunctive relief under this
section limited to: (1) disabling access to infringing material; (2) terminating the infringer's
account(s); and (3) providing such other relief as may be necessary to address infringement at
a particular online location; provided that the relief is ‘the least burdensome for the service
provider’. S-512 (j) (2) specifies four factors that Court must take into account in issuing an
263
Id, section 512 (h).
264
Id, Section 512 (h)(1).
265
Id, section 512 {h (6)}. See also Rule 45 of Civil Procedure for the United States District Courts,1938, (as
amended to December 1, 2019), available at: https://www.federalrulesofcivilprocedure.org/
266
Id, sections 512 (h) (2)– (5).
267
Id, section 512 (j).
268
Id, section 512 ((j) (1 & 2)}.
 60

injunction against a service provider. These considerations are, mostly, related with the
appropriateness and proportionality of the injunctive relief. Hence, the court should consider
first;whether an injunction would ‘significantly’ burden the operation of ISP’s network
system. Secondly; the magnitude of the harm likely to be suffered by the copyright if step is
not taken to prevent or restrain the infringement. Thirdly; whether implementing the
injunction is technically feasible, effective and not interfere with access to non-infringing
material at other online location. And lastly; whether there are other comparatively effective
means which are less burdensome to prevent the alleged infringement.
It should be noted here that injunctive relief against ISPs is available only after a notice to the
concerned service provider because, ISP must have an opportunity to appear before the court
except when the injunction concerns the ‘preservation of evidence’ or would have ‘no
material adverse effect on the operation’ of the ISPs’ network. 269 Generally, in order to
benefit from the DMCA liability immunity, the concerned service provider must also comply
with the injunction order enacted by the court.

e) Graduated Response (Voluntary Measure Scheme) in USA

For the purpose of controlling online copyright infringement, DMCA does not contain any
provision which explicitly deals with graduated response scheme. Instead, with some degree
of administrative guidance from government agency, some stakeholders have chosen to work
together to develop voluntary protocols and best practices to avoid litigation and improve
online enforcement. A group of copyright holders and service providers have formed a
consortium known as the ‘Center for Copyright Information (CCI)’.270 Together they have
established voluntarily scheme called as the ‘Copyright Alert System (CAS)’ in 2013. This
system of voluntary graduated response, which also known as the ‘six strikes’ system,
primarily designed to educate consumers about the importance of copyright protection and to
offer information about online copyright infringement. All participating members of the
association have signed a formal ‘Memorandum of Understanding (MoU) which provides
details about the CAS and outlines the role and responsibility of the members and the
procedures to be followed.
Although the scheme is primarily aimed at education for the prevention of infringement,
technical punitive measures such as degrading connection or cutting off internet access may
also apply in case of repeated infringement. The CAS also contain an arrangement which
269
Id, section 512 (j) (3).
270
Rebecca Giblin, Evaluating Graduated Response Columbia journal of law & the arts, (2014) at 147.
 61

helps the right holders to build their case to take court action against the individual who
persist with repeated infringing activity after receiving graduated response warning letters.271
Under the CAS, ISPs must place in their terms of service that copyright infringement
constitutes a violation of the agreement, create and enforce a copyright alert program. 272 The
rights holder will typically identify the infringement on the networks, collect evidences on the
IP address of the suspected infringer and provide these details to the ISP together with details
of the date, time and time zone of the alleged online infringement.273 ISP then sends
notification letters to the alleged infringer about his infringing conduct, educational
information regarding copyright law and the legal sources. The infringer may receive up to
six notification letters, each increasing in the strength of its content. After multiple letters,
ISP has the discretion to temporarily affect the subscriber’s internet connection like for
example, degrading his connection or cutting off internet access at all. 274 In doing so, ISPs
must keep a record of repeated infringer so that they can provide this information to
copyright owners if they receive a subpoena order. Generally, even though the DMCA do not
explicitly incorporate a voluntary cooperation scheme, copyright industry players have
developed best practices, voluntary codes, and explicit guidelines and industry standards for
dealing with conduct by third parties using the services of the ISPs that allegedly amounts to
a violation of law.

3.3.2. The South African Experience

The South African IP system traces its lineage back to the colonial and neo- colonial
experience.275 The first statute granting IP protection in the country was the British Patents,
Designs, Trade Marks and Copyright Act of 1916. 276 The current South African Copyright
Act was adopted in 1978 and came into force on 1 January 1979.277 This act is deemed to be
the first independent domestic copyright law the country. It has been amended several times

271
Id.
272
Policy, Creativity, and Innovation in the Digital Economy, The US Department of Commerce, the Internet
Policy Task Force (2013) at 46, 71, available at:
https://www.uspto.gov/sites/default/files/news/publications/copyrightgreenpaper.pdf
273
Id.
274
Schwabach Aaron,Internet and the Law: Technology, Society, and Compromises, 2ndEdition: Santa Barbara,
California: ABC-CLIO, LLC, (2014).
275
Jia. Wang, Conceptualizing Copyright Exceptions in China and South Africa; A Developing View from the
Developing Countries, China-EU Law series 2198-2708, Vol. 6, 1-256, (2018), at 201.
276
Id.
277
The South African Copyright Act 1978 (No 98 of 1978) (‘the 1978 Act’).
 62

with the most recent ‘Copyright Amendment Act 9’ made in 2002. South Africa is the
member of WTO and also the signatory of Berne Convention and WIPO Internet Treaties.278
Among the developing countries relatively South Africa has high technological capability
and a high internet usage rate.279 The development of internet technology commenced in in
1990s during the apartheid era. After the end of Apartheid system, a great deal of
privatization has occurred in telecommunications sector allowing for new entrants in the
industry, as a result South Africa quickly became accustomed to using the internet. The
numbers of private companies involved in internet services provision are rapidly growing and
recently there are about 150 Internet Service Providers that are commercially available
throughout the country and more than 4400 South African Web sites are indexed in an
international search engine called Yahoo.280 In the country, the major mobile- phone
companies such as Vodacom, MTN, Cell-C, and Virgin Mobile are all private enterprises
with Telkom being the major company partially owned government. 281 According to the 2019
Internet World Stats’ report, South Africa is among the top thirty countries in the world and
top three in Africa when ranked by the rate of internet penetration and by the number of
internet users.282The development of internet technology in south Africa offered admirable
opportunity for the rights holders to facilitate creative activity and distribute the digital
format of their works by sale and license through online market channels. 283 The positive
implication of internet connectivity is also evident in the expansion of e-commerce in the
country, the improvement of electronic facilities in different sectors including financial
services, education, health and agriculture.284However, in defiance of this worthwhile
impression, South Africa has also experienced the obstructive repercussions of internet
technology which afflict online copyright theft across ISP’s platform. 285 The rampantly flared
up piracy cast a light on ISPs as a convenient party to contend the battle.

278
Herman Blignaut, Spoor & Fisher, Copyright litigation in South Africa: overview, (2018), available at:
www.practicallaw.com/ copyright litigation-guide.
279
Jia. Wang, supra note 275.
280
Id.
281
Nicolo Zingales, The State of Internet Freedoms in South Africa, An Investigation into The Policies and
Practices Defining Internet Freedom in South Africa, (2014), available at: http://www.opennetafrica.org
282
Internet World Stats, World Internet Usage and Population Statistics, (2019), available at:
www.internetworldstats.com
283
Moses W. Mathini, Enforceability of Digital Copyright on the Darknet, (2017), available at:
https://open.uct.ac.za/bitstream/handle/11427/28031/thesis_law_2018_mathini_moses_wanjukia.pdf
284
Id.
285
Jia. Wang, supra note 275.
 63

In South Africa, copyright holders seeking protection against infringement and enforcement
of their rights mainly rely on the Copyright Act 1978. There are two types of infringements
under the act: direct and indirect infringement. 286 Direct infringement occurs whereby any
person, other than the copyright owner and without the license of the copyright owner, does
or causes any other person to do, any act, which the copyright owner has the exclusive right
to do or to authorize.287 Section 23(2) of the act deals with indirect copyright infringement
and sate that ‘a person other than a copyright owner who causes another to carry out an
unauthorized act with a copyrighted work is liable for contributing to copyright infringement
as secondary infringer.288 What is notable here is that the south African copyright act is
peculiar concerning indirect liability; like that of direct liability, the liability for secondary
infringement is also strict; to be found liable under secondary infringement (particularly for
contributory liability) a person does not have to know that he is infringing or assisting
copyright infringement.289

As concerned copyright protection and the liability of ISPs, the South African Copyright Act
does not expressly address this issue of copyright infringement in cyberspace and the liability
ISPs to control online infringement. When enacted, and throughout much of the 1980s and
1990s, the current South Africa’s copyright regime was commonly thought to compare
favorably with copyright legislations enacted in Europe and other developed countries.While
these jurisdictions have continually updated their copyright laws to keep pace with global
trends and technological developments happened in the past two decades, the 1978 copyright
Act of south Africa received relatively limited attention from the legislature. This has resulted
in South African copyright law becoming progressively outmoded. Therefore, the reality is
that since the Act was written before the commencement of internet network in the country, it
is not adequate to address the challenges by digital network technology. 290 The rigid standard
of liability that was adopted before the decades in this act cannot regulate the liability of ISPs
in a recently evolving online environment. Doing so is manifestly unreasonable, unduly
inhibits modern communication technologies and access to information and also may affect
the likelihood of success of the right holders in a claim for online copyright infringement.
286
Copyright Act 1978, supra note 277, section 23.
287
Id, section 23(1).
288
Id, section 23(2) (a-c) (3) and (4).
289
Jia. Wang, supra note 275, at 229 and 230.
290
Marcus Riby-Smith, South African copyright law—the good, the bad and the Copyright Amendment Bill,
Journal of Intellectual Property Law & Practice, 2017, Vol. 12, No. 3, 2196-225, (2017), at 216
 64

Until the adoption of Electronic Communications and Transactions Act (ECTA), the role of
ISPs in controlling infringing activity that take place on their platform, the scope and the
condition under which ISPs may held liable for the infringing act of their subscribers has
never been truly addressed in south Africa. To curtail these drawbacks and to devise
appropriate strategy in line with the contemporary South African technological and social
reality, it was in 2002 that the country has begun to consider options and put together plans
for regulating internet contents with the adoption of ETCA.

3.3.2.1. The Liability of ISPs Under ECTA - 2002

After long deliberations South Africa finally joined the ranks of countries legislating on e-
commerce by enacting the Electronic Communications and Transactions Act 25 of 2002,
hereinafter referred to as the ‘ECTA’. The Act was promulgated on 2 August 2002 and came
into force on 30 August 2002. The aims of the ECT Act, as provided for in section 2 are, inter
alia: to enable and facilitate electronic transactions in public interests by creating legal
certainty and confidence around transactions and communications conducted electronically
and ensuring functional equivalence between electronic and paper-based transactions. It is
also intended to provide supervision for internet service providers concerning their role and
responsibility in digital environment and to ensure that electronic transactions in the Republic
conform to the highest international standards.291

The ECTA contains XIV chapters. The most relevant part for the purpose of this study is
Chapter XI of the Act which entitled as “Limitation of Liability of Service Providers”. This
chapter include ten sections (section 70-79) and enacted acknowledging that with the
development of digital technology in South Africa, data piracy including online copyright
infringement, became the alerting problem and thus need immediate regulatory response from
the government. On the other hand, as internet technology enhanced more pervasively in the
country, clarifying the role of ISPs and protecting them from unreasonable liability in digital
environment has uncovered as a bigger issue of legal concern.292 Hence, chapter 11 of the
ECTA is aimed to balance the interest of the right holder to protect and enforce their right on
the internet and to ensure ISP’s freedom to operate.
291
ECTA, supra note 220, section 2.
292
Id, the Preamble ofchapter 11.
 65

Section 70 of the ECTA start with the definition of ISP and define it as “any person providing
information system services”. plus, for the purpose of clarity of the context, the meaning of
ISP further supplemented by the definition of the term “information system” provided under
Section 1 of the Act which state that: information system services includes; ‘the provisions
of connections, the operation of facilities for information systems, the transmission or routing
of data messages between or among points specified by the user and the processing and
storage of data, at the individual request of the recipient of the service’. 293 Therefore, by
virtue of the above definitions, all person (natural or legal person) who render internet-
oriented services or information system services can be considered as ISP.

As discussed under unit two of this study, for the purpose of copyright protection, one of the
argumentative issues in ‘digital network environment’ is whether ISPs need to monitor all the
transactions conducted through their network or not. The legal uncertainty concerning this
issue has been around for the last two decades and solved only in limited jurisdictions so far.
South Africa is an example of such jurisdiction which came up with the legal clarification on
the issue through enactment of ECTA. In terms of Section 78 of the ECTA, intermediaries
are under no general obligation to monitor the data that they transmit or store and have no
duty actively to seek facts or circumstances that indicate unlawful activity. 294Like that of the
US DMCA, the South African ECT Act also created “safe harbor” for four categories of
internet activities. The Act state that ‘liability limitation’ (safe harbor) cover only the ISPs
who offer one or more of the following four categories of internet services and observe the
specific conditions correspondent to each category:
The first safe harbor is available for ISP who involve in ‘mere conduit activity’: section
73(1) states that an ISP is not liable for providing access to or for operating facilities for
information systems or transmitting, routing or storage of data messages via an information
system under its control, as long as the service provider: does not initiate the transmission;
not select the addressee; performs the functions in an automatic and technical manner without
selection of the data; and not modify the data contained in the transmission. In South Africa
the activities of most mobile and social network service providers may be considered to be
those of being a “mere conduit” under the ECTA. Furthermore, as mentioned under Section
293
Id, section 70.
294
Section 78(1) of the ECTA states that ‘an ISP providing the services contemplated in Chapter XI of this Act
is not generally obliged to monitor the data it transmits or stores or actively seek facts or circumstances
indicating an unlawful activity’. They are exempted from liability when transmitting, caching and storing,
hosting, or referring to copyright infringing content that they were not aware of.
 66

73(3) of Act, if it is apparent that the infringing activity is going on the network of the ISP,
the court may order ISP to “terminate or prevent unlawful activity in terms of any other
law”.295 In such a case ISP which serves as a mere conduit must adhere to such a court’s
ruling in order to benefit from safe harbor of the act.

The second safe harbor provision is available for ‘hosting ISPs’: hosting ISPs benefit from
liability immunity provided that they do not have actual knowledge that the data message or
an activity relating to the data message is infringing the rights of copyright holder; or is not
aware of facts or circumstances from which the infringing activity or the infringing nature of
the data message is apparent and adhere to any other court order to act against any infringing
material they hosting.296 In addition to this, to qualify for this safe harbor, ISP must appoint a
readily available agent to receive take down notifications and upon receipt of a notifications,
should acts expeditiously to remove or to disable access to the data”.297
The third liability limitation is related to ‘Linking or information location tools’: ECTA
provides protection to ISP for referring or linking users to an online location which may
contains infringing material. However, in order to benefit from this safe harbor service
provider must not have actual knowledge or is not aware of facts or circumstances from
which infringing activity is apparent; does not receive a financial benefit; and upon receipt of
a takedown notice immediately removes such infringing content.298
The last safe harbor related to ‘system caching’: this is available for ISP who offer storage,
the situations where the Internet Service Provider transmits data provided by a recipient and
stores data on a temporary basis provided that the purpose of storing the data is to make the
onward transmission more efficient upon request. Section 74 of ECT Act exempt ISP from
liability if ISP: does not modify data; complies with conditions on access to the data;
complies with rules regarding the updating of the data, specified in a manner widely
recognized and used by industry; does not interfere with the lawful use of technology, widely
recognized and used by industry to obtain information on the use of the data; removes or
disables access to the data it has stored upon receiving a takedown notice, and adhere to the
order of competent court to ‘terminate or prevent unlawful activity in terms of any other
law.299
295
Id, section 73(3).
296
Id, section 75(1)(a)-(c).
297
Id, section 75(2).
298
Id, Section 76 (a)-(d).
299
Id, section 74 (2).
 67

In addition to the above requirements which are specific and apply to each category of ISP,
there are also two basic conditions which all ISPs must fulfill in order to benefit from the
above discussed ECT Act safe harbor privileges in South Africa. Therefore, an ISPs who
wants to be eligible for a safe harbor protection must fulfill the following requirements; a) the
concerned service provider must be a member of ‘ISPs’ Association (ISPA)’ of South
Africa.300 ISP which is not member of ISPA cannot claim the limited liability of the ECTA. 301
b) The ISP must implement the official ‘code of conduct’ of ISPA and IRB, and be held
accountable to the code. Under section 71 of the ECTA, adherence to the standards of code of
conduct enacted by IRB is other criteria to claim liability exception. It should be noted here
that these two conditions apply to all categories of ISPs regardless of the types of services
that they provide. Similar to the US DMCA,302 the ECTA has a ‘saving clause’. This is to
mean that the Act does not limit the operation of any other laws that expressly authorizes,
prohibits or regulates the use of data messages.303The stipulation provided in the act indeed
enforces ISPs to take precaution in fighting unlawful activities including copyright
infringement which occur on their network in the provision of services. However, at the same
time, in order to ensure ISP’s freedom to operate the act limit the scope of these obligations
and state that ‘these obligations must not interfere with ISP’s right to ‘limitation of liability’
based on the common law or the Constitution’.304

Notice and Take Down Under ECTA

The South African ECTA requires ISPs to comply with the taking down procedure stipulated
in the act in order to benefit from liability limitation. Section 75 of the act state that; ‘an ISP
is not liable for hosting, provided that upon receipt of a take-down notification they act
expeditiously to remove or to disable access to the data’.
As concerned the content and procedure of takedown notification the Act state that a
competent notification must be in writing and must be addressed by the complainant to the

300
The ISPA is an independent body and voluntary association formed in 1996 to deal with the interests of ISPs
in South Africa and recognized as an industry representative body (IRB) by the south African Minister of
Communications in May 2009. Currently the ISPA has more 175 members. See Internet Service Providers
Association (ISPA), available at: http://ispa.org.za/
301
Id.
302
DMCA, section1201(c) and 512.
303
Section 79 of ECTA makes clear that liability limitations provided for by Chapter 11 this Act do not affect
any obligations founded on an agreement, licensing and regulatory obligations, and any court or legal
obligations placed on ISP to remove, block or deny access to data messages.
304
Id, section 79 (d).
 68

service provide or its designated agents which includes: the full names and address of the
complainant; the written or electronic signature of the complainant; identification of the right
that has allegedly been infringed; identification of the material or activity that is claimed to
be the subject of unlawful activity; remedial action required to be taken by the service
provider in respect of the complainant; telephonic and electronic contact details, if any, of the
complainant, a statement that the complainant is acting in good faith and a statement by the
complaint that the information in take-down notification is to his or her knowledge true and
correct.305 ECT Act provides protection for ISP who acts in good faith based on fraudulent
take down notification. As long as they respond to valid take-down requests, ISPs are not
liable for removing the alleged infringing content wrongly even without examining whether
the materials complained about in notices are infringing or not. 306 Instead, the complainant
who intentionally lodges wrongful notification would assume liability for any damage
incurred as a result of wrong notification. Section of the Act provides that any person who
lodges a notification of unlawful activity with a service provider knowing that it materially
misrepresents the facts is liable for damages for wrongful take-down307

However, unlike the US DMCA, the South African ECT Act has no counter notification
scheme. Under the ECTA, content can be removed ‘on the basis of a mere allegation’ from
the content owner without any notification to the third party either before or after removal.
The third party (internet users) whose material claimed to be infringing wrongly removed is
not provided with the self-defence opportunity through counter notification and thus, has no
avenues to contest take down notice other than proceeding courts action. Therefore, it can be
argued that the ECTA ‘notice and take-down scheme’ may be too effective in providing relief
to victims of internet abuse, but negatively affects third party’s rights to due process and
failed to provide an adequate balance between the rights of all concerned parties. However,
this issue was brought under thespotlight with proposed amendments to the ECTA 2002. The
ECTA Amendment Bill of 2017 introduced new section entitled ‘Right to remedy on receipt
of a take-down notice’.308 This section aims to rectify the previous limitation and allows ‘the
right of reply’ in accordance with the principles of administrative justice i.e., the right to be
heard. Unfortunately, unlike the US DMCA, the ECTA does not contain others schemes,

305
Id, section 77(1) (a‐h).
306
Id, section 77(3).
307
Id, section 77 (2).
308
See the ECTA Amendment Bill of 2017, section 77(A).
 69

such as subpoena procedure and injunctive relief. which particularly relevant to online
copyright protection and enforcement.
Generally, Sections 70-79 of the ECTA deals with ISP’s limited liability rule. Among other,
it provides safe harbour for ISPs and clarify their liability to control infringement.
Accordingly, ISPs are under no general obligation to monitor the data they transmit or store,
or actively to seek facts or circumstances that indicate unlawful activity. This privilege,
applies only to service providers who provide caching, storing, hosting or linking services;
became a member of an industry representative body and implement the code of conduct of
IRB. Furthermore, they must designate an agent to receive notifications and immediately
remove the alleged infringing content. However, unlike the DMCA, the ECTA has no
detailed provisions on some issues; for instance, it has no counter notification scheme; this in
turn may negatively affect the right of internet user to contest the notification. Again, the
ECTA not contain others schemes relevant for online copyright protection and enforcement,
such as subpoena procedure and injunctive relief. Similar to DMCA, the ECTA does not limit
the operation of any laws which not contravene with ISP’s right to limitation of liability.
 70

4. ONLINE COPYRIGHT INFRINGEMENT AND ISP’s LIMITED

LIABILITY RULE UNDER THE ETHIOPIAN COPYRIGHT LAW

4.1. Introduction
This chapter deal with the issue of ISP’s liability to control online copyright infringement
under the Ethiopian copyright law. Accordingly, the chapter stated with the general overview
of the Ethiopian copyright regulatory regime and discussed the impacts that online copyright
piracy is having on copyright society as well as on the overall development of copyright
industry of the country. It goes ahead to highlight who should be held liable for online
copyright infringement in Ethiopia as a general and, then made a deep scrutiny through the
governing Ethiopian copyright law to examine whether ISPs are to react against infringement
that take place on the internet in Ethiopia. The last part committed to discuss the importance
of copyright protection in digital environment, and specifically press the need to make
regulatory setup under the Ethiopian copyright to control online piracy in the country.

4.2. General Overview of the Ethiopian Copyright legal regime

The evolution of copyright protection system is a recent phenomenon in the world history if
compared to other developments.309 In Ethiopia too, the concept of copyright and the
protection system were not introduced for a long period in the country. 310 This is because, the
importance of protection of IP rights and the resulting economic benefits were not accorded
the proper concern in country.311 The origin of copyright protection system in Ethiopia dates
back to the enactment of a penal law and civil law of the 1957 and 1960 respectively. These
were the first organized and codified copyright regulatory statutes of country. Chapter XI of

309
Daniel Mitiku, Fair practice under the Ethiopian copyright law: the case of Education, (2010), at 9.
310
Sileshi Bedasie, The Legal Framework for the Protection of Geographical Indications in Ethiopia: A Critical
Review,Journal of African Law, Vol. 58, No. 2, (2014), at 210, at: https://doi.org/10.1017/S0021855314000126.
311
Id.
 71

the 1960 Ethiopian Civil Code, stipulates some basic legal frame work which deal with
copyright issue. In this chapter, the code provides 28 provisions under the title of ‘literary and
artistic ownership’. The 1957 penal code was also used to protect copyright and incorporated
a penalty of simple imprisonment and fine punishment in case of copyright
infringement.312The two codes were, nonetheless, not comprehensive to sufficiently address
all the issues related to copyright in light with technological advancement and thus, failed
provide effective protection and remedies to the authors of copyrighted works.

In 1995, Ethiopia has adopted new constitution termed as ‘Federal Democratic Republic of
Ethiopian (FDRE) Constitution’.313 The constitution contains different policies, principles
and guidelines. Cultural policy objective is one of the many policies and strategies officially
promulgated in this constitution. Accordingly, it recognizes the importance of IP and obliges
the government to protect and support the development of creative works in the country
stating that ‘government shall have the duty, to the extent its resources permit, to support the
development of the arts, science and technology’.314 However, the cultural policy
incorporated in the constitution is expressed in a very general language and not address the
details of every aspects of copyright issues. Hence, it cannot be considered as a compendious
system of law for the purpose of copyright protection. At international, though Ethiopia is the
member of WIPO since 1998,315the country yet not signed any of IP treaties administered by
WIPO including copyright conventions such as Berne Convention, Paris Convention and
WIPO Internet Treaties. It is also a very recent time that the country started the WTO
accession process, and the negotiation is still ongoing.316Generally, until 2004, when the
Copyright and Neighboring Right Proclamation passed into law, the Ethiopian copyright
protection system was not effective.
312
Penal Code of Ethiopia, the penal code proclamation No. 158/57, (1957), Art. 675-679.
313
Federal Democratic Republic of Ethiopian (FDRE) Constitution, Proclamation No. 1/1995, Federal Negarit
Gazetta, 1st Year No.1, (1995), Art 1.
314
Id, Art 91(3), 51 (19) and 77 (6).
315
The Convention Establishing the WIPO Accession Proclamation No. 90/1997, Federal Negarit Gazetta, 4 th
Year, No.2, 23rd October, (1997), Art 2.
316
Several scholars and consulting firms state that the country that accede to the WTO is likely required to
undergo severe liberalization measure and to adopt strong domestic copyright rules or to make it compatible
with the norms of the TRIPS Agreement that prescribes the minimum standards that national legislations should
meet in order to join the club successfully. Hence, the recently started accession process thought to have a
greater impact on the copyright policy that Ethiopia is perusing currently. See, Biruk Haile, Scrutiny of the
Ethiopian System of Copyright Limitations in the Light of International Legal Hybrid resulting from (the
Impending) WTO Membership: Three-Step Test in Focus, Journal of Ethiopian Law, (2012), at 159;
Fikremarkos Merso (ed.), Ethiopian Yearbook of International Law, (2016), at 95.
 72

With the development of technology, adopting new laws found to be necessary to provide
effective protection for creative industry which accommodate the new development.
Accordingly, in 2004 the Ethiopian government enacted new copyright law termed as
‘Copyright and Neighboring Rights Protection Proclamation No. 410/2014.’317 This law
considered as the country's first comprehensive and modern copyright legal framework which
kicked the start of new chapter for the advancement of copyright industry in Ethiopia. The
general objective of the proclamation, as stated in the preamble, is to provide effective
protection for literary and artistic works and neighboring rights in light with the increased
importance of these creativities. Hence, the adoption of this proclamation regarded as an
important move in the government’s toolbox to enhance cultural and technological
development and to promote industry lead socio-economic progress in the country.

The proclamation, comprising both substantive and procedural aspects, tried to remedy the
limitations and uncertainty of the previous laws. Relatively, it comprises detailed copyright
protection system and introduced new types of copyrightable subjects, widened the scope of
copyrights, protect the neighboring rights and incorporate different remedies in case of
infringement.318The first part of this law starts with the definitions of the words that sought to
be understood in light with the parlance of the proclamation. For instance, it explain what
constitute a “work” to differentiate and cast a light on the copyrightable subject with the
realm proclamation and define the term as; ‘a production in the literary, scientific and
artistic fields.’319 It define who is considered as an ‘author’ of for the purpose of
protectionas; “the person who has intellectually created a work and includes - a) in case of a
computer program, person who has created the program; b) in the case of photograph, the
person responsible for its composition”.320 The term ‘copyrights’ also defined as; ‘an
economic right subsisting in a work and where appropriate includes moral right of an
author’. In the same way, other terms such as literary work, dramatic work, artistic work,
sound recording, derivative works, reproduction, reprography, broadcasting, fixation,
database and other terms are defined in a context that needed to be understood within the
parameters and coinage of the proclamation.321
317
Copyright Proclamation, supra note 29.
318
Daniel Mitiku, supra note 309, at 66.
319
Copyright Proclamation, supra note 29, Art 2 (30).
320
Id, Art 2 (2).
321
Id, Art 2.
 73

Part two of the proclamation deals with requirements for copyright protection which can be
divided as ‘substantive’ and ‘formal’ requirements.322 The substantive requirement for the
protection of copyright work is ‘originality’ which refers a novelty or literary merit of the
work.323 The formality requirement is ‘fixation’ which means in order to enjoy copyright
protection, a work must be reduced to a tangible medium from which reproductions can be
made.324
As it can be recalled from the previous discussion, the main aim of copyright protection is to
strike a balance between the interest of the creator of the works on the one hand and the
public interest on the other hand. The Ethiopian copyright law is also designed with this
inception. In order to maintain this balance, the proclamation provides the exclusive rights for
the interest of the authors on the one hand and, put some limitations and exceptions on these
rights in favour of public interest on the other hand.325 The proclamation outlaw none
permitted exercise of these rights and, under part six, provides enforcement mechanisms of
civil and criminal nature to enable right holders to protect and enforce their rights against any
unlawful encroachment. The civil remedies include: injunction remedy; border measure
remedies; confiscation of the infringed work; adequate compensation for the incurred
damages.326 The criminal remedies are penalties (imprisonment and fine) and, the seizure,
forfeiture or destruction of the materials used in the commission of the offence.327

In 2014 the Ethiopian government made some amendment to this proclamation (with new
amendment proc No 872/2014) in order to provide effective legal protection for copyright
and neighboring right that is compatible with the ever growing development and to create
condition which enables the right holders to administer their right in an organized and
enhanced manner.328 The new amendment introduced among other things, a ‘corporate
criminal liability’ so that a legal person who violate copyrights would be held criminally
liable and face punishment for their offence.329 However the development of internet

322
Id, Art 6.
323
Id, Art 6 (a).
324
Id, Art 6 (b).
325
Id, Art 7, 8, 9, 10, 11(1), 12 (1), 13, 14 (1 &2), 15, 16, 17, 19 and 32 (a).
326
Id, Art 33, 34 and 35.
327
Id, Art 36.
328
Copyright and Neighboring Right Protection (amendment) Proclamation No 872/2014, Federal Negarit
Gazetta, 21th year, No. 20, (2014), see the preamble.
329
Id, Art 45.
 74

technology posed a new challenge of online copyright infringement affecting the already
established copyright protection system of the country.

4.3. The development of digital network technology and online copyright

infringement in Ethiopia

4.3.1. The Development of ICT System in the country: General Overview

Information communication technology (ICT) is one of the crucial infrastructural backbones

for overall development of any modern-day economy. The development and expansion of
ICT sector in a given country considered as one of the important indicators and bases of
socio-economic progress of that country. 330 The sector serve as a vital intermediate input for
the production of goods and services. The dynamic nature and innovative capacity of this
industry help to spur creativity and productive efficiency of other sectors. Several industries
use services of this sector as a source of competitiveness and profitability. Thus, building
effective ICT sector is essentially important and would contribute a lot to create strong and
vibrant economy. This is why both the developed and developing economies are investing
huge amounts of resources to foster the development of this sector.331

Among the developing nations Ethiopia is considered as one of the countries in the world that
has acquired telecommunication system few years after its invention. The introduction of
telecommunication services dates back to 1894, when telephone technology introduced to the
country.332 The sector used to be administered under the thenMinistry of Posts, Telephone
and Telegraph until it established as an autonomous sector by proclamation No. 131/52 in
1952. From 1952 to 1975, the sector separated from the postal administration and structured
under the then Ministry of Transport and Communications. The sector reorganized as
Ethiopian Telecommunications Service (ETS)and as Ethiopian Telecommunications
Authority (ETA) from from1975 to1981 respectively and from 1981 to 1996 respectively.333
330
Ahmad R. Sharafat William H. Lehr (eds), ICT-Centric Economic Growth, Innovation and Job Creation,
(2017), available at:https://www.itu.int/dms_pub/itu-d/opb/gen/D-GEN-ICT_SDGS.01-2017-PDF-E.pdf
331
Milos Maryskaa, Petr Douceka and Renata Kunstova, The Importance of ICT Sector and ICT University
Education for the Economic Development, Procedia - Social and Behavioral Sciences 55, (2012), at 1060,
available at: www.sciencedirect.com.
332
Brief Historical Review of Telecom Sector in Ethiopia, available at; https://www.ethiotelecom.et/our-history/
333
Gagliardone, Iginio and Golooba Mutebi, The Evolution of the Internet in Ethiopia and Rwanda: Towards a
“Developmental” Model? Stability, International Journal of Security & Development,1-24, (2016), available at:
 75

Despite the fundamental policy changes that took place in the country in the year of 1990s, 334
the telecom sector however, remained under government monopoly and the Ethiopian
Telecommunication Authority was been working on an exclusive basis as an operator and
regulator until the promulgation of proclamation No. 49/1996 (latter amended by
proclamation No. 281/2002), which established a separate federal telecommunication
regulatory entity called Ethiopian Telecommunication Agency (ETA) in 1996.335In the same
year, the government owned operator called the Ethiopian Telecommunication Corporation
(ETC),which is now called as ‘Ethio-Telecom’, was established by Council of Ministers
Regulation No. 10/1996.Ethio-telecom is responsible inter-alia, to operate and provide
domestic and international telecommunication services such as voice, mobile cellular, fixed
line, internet, telex and telegraph services; repair, assemble and manufacture telecom
equipments; andrender telecommunications training services.336 Recently, June 2019,
Ethiopia has adopted new Communication Service Proclamation which repealed the previous
Telecom Proc No. 49/1996, Proc No. 281/2002 (amendment) and Regulation No
47/1996.337This proclamation establishes new regulatory authority called as ‘Ethiopian
Communication Authority (ECA)’ and held accountable to the Prime Minister. 338The powers
and duties of ECA provided under Art 6 of the proclamation.

Though Ethiopia was among the few beneficiaries of other telecommunication services soon
after its invention, the internet service was introduced rather late in 1990s with a very limited
access and geographical coverage.339 From the time onward, the government begun to invest
in the services as one of key enabler for social and economic development of the country. 340
To this end, an aggressive infrastructural buildingsand development strategy being
http://dx.doi.org/10.5334/sta.344.
334
The year 1991 was a turning point when fundamental changes took place in Ethiopia. In this year, the unitary
system of government was over taken and federal system of government established, command economic
system replaced by kind of forward-looking free market economic system. Following this, several socio-
economic policy measures were undertaken to create an inclusive and favorable environment for doing business
in the country. Some of the measures were the privatization of some economic sectors while the others related
with deregulation and denationalization of properties that were under government ownership. See: Lishan
Adam, Risks and Opportunities of Late Telecom Privatization: The Case of Ethio Telecom, RIA Policy Paper
Series No. 7, Vol. 5, (2019), available at:https://researchictafrica.net
335
Minyahel Desta, Liberalization of telecommunication in Ethiopia, challenges and prospects: citizens’ view
and opinion, (2012).
336
Richard Self, Impact of WTO Accession on Ethiopia’s Telecommunication Services Sector, Nathan
Associates Inc Revised Final Report, (2007), at 16.
337
Communication Service Proclamation, supra note 42.
338
Id, Art 3.
339
Kinfe Micheal and Halefom H. Abraha, supra note 32.
 76

undertaken to raise the density and geographical coverage the services to all direction of the
country. To significantly increase the quality of internet services in terms of connectivity or
access, penetration rate and speed, the government isundergoing technological and structural
changes in the sector.341 Despite the instability and the repeated internet shutdown that has
been and still taking place in the country, the government claims that internet penetration
rate, the number users and the usages of the services has shown improvement and steadily
increasing from time to time. For instance, according to the Ethio-telecom business
performance report, as of 2019/20, the number of mobile voice subscribers reached 44.03.
million, data and internet services users reached 22.74 million and fixed line services users
are around 1.01 million, which resulted in 45.4% tele density.342The internet penetration rate
which was 1.3% in 2014 increased now to 17%as of January 2019, with 27% of year-on-year
change in average speed for fixed internet connection in the country. 343The 2018 World Bank
report shows that among the estimated 109.2 million total number of Ethiopian populations,
18.61% are internet users.344

The World Internet Stats data also indicate that as of 2019, out of the estimated
110.1milliontotal number of Ethiopian populations, more than 20 millionof individuals get
internet access.345Similarly, the World Economic Forum report shows that the number of
internet users in Ethiopia are increasing from time to time. According to the data of this
forum, Ethiopia has had only 2.9% internet users in 2016, ranking 135 th346 but recently as of
March 2019, this number increased to 18.6% ranking 127th in the world.347 Internet
subscriptions and usage are mainly from home, different institutions (government or private)
like hotels, schools, offices and internet cafes, and the browsing fee is decreasing and

340
The Ethiopian government has been highly committed and investing more than 10% of the country’s overall
growth domestic product in ICT infrastructural development. See Halefom Hailu, supra note 32. See
also:https://www.itnewsafrica.com/2014/01/country-focus-ethiopia-breaking-new-technology-ground/
341
Gagliardone, I. and Golooba M., supra note 333.
342
Ethio-telecom Report, supra note 33.
343
Research and Market, Ethiopia - Telecoms, Mobile and Broadband - Market Insights, Statistics and
Analysis, available at:http://www.researchandmarkets.com/reports/1222503/
344
World Bank, Internet users for Ethiopia, retrieved from FRED, Federal Reserve Bank of St. Louis, (2020),
available at: https://fred.stlouisfed.org/series/ITNETUSERP2ETH
345
World Internet Usage and Population Statistics, the 2019 mid-year Estimate, (2019), available at:
https://www.internetworldstats.com/stats1.htm
346
World Economic Forum, The Global Competitiveness Report,(2016), at 179, at: https://www.weforum.org/
347
Id, the 2019 report, at 215.
 77

recently costs about 0.20 birr per MB (0.20/MB) which is less than 1$USD for an hour's
browsing.348

The significantly increasing internet access and usage with fairly decreasing browsing cost
simplified millions of everyday tasks in the country; it has enabled the users to easily conduct
their day to day business easily and cheaply, broadcast their activities or advertise their
products and services on the entire world, or to access variety of information resources on the
internet platform. Nevertheless, similar to the situation of other jurisdictions, the development
of internet and digital technology casted negative implications on copyright holders thereby
affecting the development of copyright industry of the country as a general. This ubiquity
came with an astounding incident of online copyright infringement which will be discussed
here in after.

4.3.2. Online Copyright Infringement and its Effects in Ethiopia

The development of internet is considered as the most significant technological trend and
catalyst that driving the revolution of digital activities of todays’ world. 349 The current era of
civilization is characterized by a shift of global economy and society formerly driven by
industrialization to the one driven by digitalization which is attributable by access and use of
information that is primarily available in a digital format. Digitalization is defined as the
ability of a person or system to convert or record of information or a representation of the
reality into a digital format.350 The use of various communication technologies and diffusion
of personal computers, with the exponential capability and high space for storing information
over internet network are having a profound implication on nearly every aspects of socio-
economic interaction of human life. Like in some other sectors of economy, the evolution
digital network technology has had significant impacts on copyright industry. The major
impact that this technology has had on copyright work is digital copyright infringement on
the internet whereby the essential elements that make up works copyrightable contents can be
converted into digital form and disseminated easily on the internet to enable millions of users
to access the contents for free.351

348
See:https://newbusinessethiopia.com/technology/ethio-telecom-cut-internet-tariff-65-percent/
349
Liebetrau P, Mitchell J., Managing Digital Collections: A Collaborative Initiative on the South African
Framework, (2010), available at:https://wiki.lib.sun.ac.za/images/5/51/Managing_Digital_Collections.pdf
350
Id.
351
James M. Njengo, Analyzing the Legal Protection of Music Copyright in Kenya, (2014), at 50.
 78

The subversion copyright system on the internet is a worldwide prevalent phenomenon. The
scenario is not different within the context of Ethiopian copyright and the governing legal
framework. The introduction of internet to Ethiopia found to be both promising and
potentially harmful for the development copyright system in the country. On the one hand it
provides an opportunity for the development of cultural industry and also considered as a new
promise for content creators in terms of facilitating intellectual creativity as well as widening
markets for the distribution and exploitation of their works.352On the other hand, however the
unanticipated effects of internet are also considerably high and nightmare for them. The same
technology has sounded online infringement threat to the right holder with a loss of control
over their own property rights due to the explosion of unauthorized dissemination of works
on the internet. This unfavorable situation is currently affecting nearly every sectors of
copyright industry in the Ethiopia.353Before the advent of digital network technology,
copyrighted works were made available and distributed in a basic form of traditional
expression. One characteristic of the traditional form of expression is that the copyrighted
content is fixed in the carriage or appear in a physical object in which the content is
appears.354 Since the physical material in which the protected content embodied cannot not be
readily changed, it was practically difficult for the infringer to easily copy, disseminate,
manipulate or separate the material from the expression of the content itself. 355Thus, the right
holders were able to maintain tight controls over the distribution of their works to the public
and used to make benefit by selling out the copy of such physical objects in a very limited
and controllable ways.356Nevertheless, the attributes of contemporaneous digital network
system introduced new market place where the pirates can easily and anonymously exploit or
disseminate protected contents for free without any prior permission.357

352
Asherry Magalla, Asherry Magalla, supra note 15.
353
The interview made with copyright stakeholders from different segments indicate that, even though the
effects of piracy are considerably very high in some cases such as the music and film industries, almost all
copyrightable works are being venerable to online infringement in Ethiopia.
354
Yemane Gesesew, supra note 52.
355
Assessment of Copyright Infringement of Music Works, Fiscal Performance Report of EIPO, (2014),
(unpublished). See also: National Research Council, The Digital Dilemma: Intellectual Property in the
Information Age, The National Academies Press, Ohio State Law Journal, Vol. 62, 951-971, (2001), available
at: https://doi.org/10.17226/960
356
Tibebe Solomon, supra note 51.
357
Id. See also: Alemayehu G. Mariam, Copyright and copyright crime, (2012), available at:
https://ecadforum.com/2012/01/22/copyrights-and-copycrimes-alemayehu-g-mariam/
 79

The statistical data collected from different sources and the interview made with the
concerned stakeholders from different copyright segments indicate that Ethiopia is now the
hub for overwhelming copyright infringement. For instance, the study conducted by EIPO on
the level of copyright infringement at a national wide shows that the level of copyright
infringement is rampant, and around 64.7% of copyrighted works subjected to copyright
infringement in country358 Similarly, assessment made by the same office in 2014 indicate
that 80.33% musical works and 49.05% films were pirated for the year of 2014 in the
country.359This statistical data represents the infringement committed through different forms
which include the sale or distribution of physical objects in which protected contents are
embodied such as books, CDs, VCRs, DVD players; online infringements which include
broadcasting the works through different channels such as Tv sets, radios, and distribution
over the internet.360Mr. Bineyam Alemayehu, the president of the Ethiopian Film Maker
Association, mentioned that copyright infringement is taking place at high level and causing a
significant degree of loss in the country. Though no concrete research which shows the exact
figure infringement has been conducted so far, more than 70% of copyrightable works are
estimated to appear unlawfully on the internet yearly in the country.361In terms of economy
also, the loss emanating from online piracy is estimated to be millions of dollars annually.362
Speaking the effects of online piracy, Mr. Tedros Mosisa, stated that the widely spreading
online copyright infringement in Ethiopia is not only decimating the rights of individual
authors or the revenue that government acquire from the sector, but also undermine the
industry’s ability to successfully promote intellectual creativity. 363Most of the times, the
illegal copies of the work posted on the internet even before the author officially release it or
present for public shows, the authors come to know the appearance of their work on the
internet only after it disseminated through different social media platforms with great degree
of coverage, without knowing who did it and from where it happened. This makes impossible

358
Assessment on the Infringement of Audio-visual Works conducted by EIPO, (unpublished),(2012), at 12-14.
359
Fiscal Performance Report of EIPO, supra note 355. Plus, it is found that more than 95% of music and 98%
of movies on the market are the illegal copies see: Kiya Tsegaye, Copyright Law in Ethiopia: Shining Law Zero
Effect, available at:http://addisstandard.com/copyright-protection-in-ethiopia-shining-law-zero-effect/
360
Id.
361
Interview with Mr. Bineyam Alemayehu, Addis Ababa, (2020).
362
Id.
363
Interview with Mr. Tedros Mosisa, the vice president of the Ethiopian Copyright and neighbouring right
collective management society, Addis Ababa, (2020).
 80

to control of piracy and obtain remuneration of from direct sale of their creative efforts,
causing a big loss both to copyright industry of the country.364

The president of Ethiopian Musician Association, Dr. Dawit Yifru also explained that in a
recent time, cyberspace can be considered as the main scene of infringement in Ethiopia.
Within a few seconds of browsing, anyone who has internet access can get thousands copies
of most recently produced works unlawfully uploaded on different sites to the extent it seems
pirates are gratifying themselves on variety and selection to exploit protected contents for
free. Dr. Dawit explained that this has a very detrimental economic effects on the copyright
holders because, once the works are posted on the internet, the legal retailers are hardly
interested to acquire license or buy the distribution right against such work. Moreover, he
noted that there would be no reason why the consumers pay for the legitimate right holders
following lawful procedure while it is so easy for them to get the product on the internet for
free only with the mere click of button. Thisis so great disincentive for the authors and
consequently many of them are now either ambivalent to invest in the industry for the future
time or on the brink to cease the business at all.365

To sum up, it is evident from the foregoing discussion that the expansion of internet services
in Ethiopia posed new challenge of online piracy due to which the right holders and
copyright industry of the country are experiencingsignificant amount loss. The previously
used efficient management and controlled distribution of the work isdramatically disrupted
now as never has been before in Ethiopia.The interviews made with different stakeholder and
the statistical data collected from different offices paint a formidable picture of online piracy
in country that ought to take advantage of copyrights industry as key contributor to the
economy. Given, the importance and urgent need of controlling such extensive and influx of
online piracy in the country, the issues who should bear liability for online copyright piracy
and if there is controlling mechanism under the Ethiopian copyright law are thus, the waiting
legal concerns. The following sections will try to find out the answers for these issues.

4.4. Liability for Online Copyright Infringement in Ethiopia

Who is liable for online copyright piracy under the existent Ethiopian copyright law?

364
Id.
365
Interview with Dr. Dawit Yifru, the president of Ethiopian Musician Association, Addis Ababa, (2020).
 81

As discussed above, apparently copyright in Ethiopia is protected under the copyright and
neighboring right protection proclamation and its amendment. The proclamation provides an
exclusive right to the author of copyrighted work and envisages enforcement mechanisms so
that the owner of copyright can bring legal action against the person who unlawfully infringe
these rights.366 However, the proclamation does not define what constitute ‘copyright
infringement’. In the legal instruments, the definition of terms or the existence of
interpretative clause is very important to understand the context of the provisions of a given
law and to determine the subject it aimed to regulate along with its scope of application. For
instance, had there been any definition for the term ‘copyright infringement’ under the
Ethiopian copyright law, it would have helped to understand: what constitute copyright
infringement; to differentiate the kinds of participations or conducts which constitute
‘primary infringement; those which constitute ‘secondary infringement; and made it
easier to determine the liability. Unfortunately, though not clear whether the legislator has
omitted intentionally or due to lack of foresight, the proclamation simply envisages the term
‘infringement’ in a very general language under the enforcement provisions without defining
it in the preliminary part. In this regard, it can be said that the proclamation is devoid of
clarity and creates ambiguity to differentiate the types of acts or omissions which trigger
primary liability and those which carry secondary liability.

Nonetheless, the meaning of the term ‘copyright infringement’ can be construed impliedly
from the reading of article 7 and 8 of the proclamation. Article 7 of this law provides
exclusive economic rights to the author to carry out or authorize another the reproduction and
translation of the work; adaptation, arrangement or other transformation; distribution to the
public; importation; and public display, performance, broadcasting, and other communication
of the works to public. Article 8 of the proclamation provide the moral right of author which
include the right to claim authorship of his work, the right to remain anonymous or to use
pseudonym, the right to object any distortion, mutilation or other alteration of his work; and
the right to decide up on making the work public. These are the rights which only the owner
of the work is entitled to exercise exclusively or enable others to exercise it on behalf of him.
Thus, th accontario reading of these two provisions give the meaning that exercising one of
these rights without prior authorization constitute copyright infringement and thus carry
actionable offense under the proclamation. The interpretation of the enforcement provisions
of the proclamation also robust more the meaning of the context and elucidate it in that any
366
Copyright Proclamation, supra note 29, Art 7, 8, 35, 36 and 37.
 82

person who violates any of exclusive rights of the owner provided under the proclamation
would be held liable for copyright infringement.

This being the case, still one may question whether this way of interpretation can extended to
includes or capable to categorize‘the acts making of copyrightable works available on the
internet’as copyright infringement. Under the proclamation among others, the
communication, public performance and reproduction of the work provided as exclusive
rights of the authors. Under article 2 (6) of the proclamation the term ‘communication of the
work to the public’ defined to include both wire and wireless communication which means
sharing or dissemination of copyright-protected works on the net automatically involve
communication of the work to the public. The term ‘public performance’ also defined under
article 2 (24) to include public performances that are made using any communication media.
Similarly, the term ‘reproduction’ broadly defined under article 2 (25) of the proclamation as;
“the making one or more copies of work or sound recording in any manner or form,
including any permanent or temporary storage of work or sound recording in
electronic form is reproduction of copyrighted work”
Pursuant to this provision, all forms of copying, recording, or storing of copyrighted work in
any form (analog or digital format) or in any mediums and by any means fall within the
definition of reproduction.
Juxtaposing the connotations provided under the above provisions to the situation of online
environment, all unlawful acts of uploading, downloading, sharing of protected work on the
is amount copyright infringement, in breach of owner's exclusive rights stipulated under
article 7 of the proclamation and thus, give rise to liability. In such instance, as discussed
elsewhere in the preceding units, there is no doubt that the internet user who directly take part
in any of these acts on the internet commit online copyright infringement and primarily
assume liability. In the same way ISPsalso deemed committed online copyright infringement
and assume liability if they, without prior authorization upload, download, disseminate or
otherwise make available copyrighted works on the internet. Because, it is unfair to let them
go free while they are unlawfully and deliberately interfering with the exclusive rights of the
owner.367 Therefore, in such cases copyright holders may institute legal action both against
internet users and ISPs, and seek remedies provided under enforcement provisions copyright
law. However, as it can be recalled from the discussion made in the previous units, without

367
Ian J. Lloyd, Information Technology Law, Oxford University Press, (2011).
 83

the help of ISPs controlling infringement or/and enforcement their rights against the primary
infringer is the ever-difficult tasks for the right holders in case of online environment.

Having this being said as a background, the following part deal with the issue of ISP’s
liability to control online copyright infringement under Ethiopian copyright law (if any)
which is the main focus of this study. In doing so, the researcher will make critical scrutiny
through the Ethiopian copyright law to examine whether there is any provision which impose
liability on ISPs to control or to act against copyright infringement that take place on the
internet.

4.5. The Liability of ISPs to Control Online Copyright Infringement in

Ethiopia: the rule of limited liability under the existent copyright law
ISPs are seldom directly commit copyright infringement on the internetbecause, they do not
make available the infringing contents by themselves, rather serve (only) as intermediaryand
provide a network services and other operating system necessary for the functioning of the
internet. For this reason, the latest and generally accepted position is that unless they commit
direct infringement or indirectly participate with the intention to facilitate primary
infringement, ISPs should not be enforced to assume liability and pay damage only for the
mere fact of providing internet services when it is user’s fault to choose the use of services
for the infringing purpose.368Due to the unique nature of internet technology, howbeit the use
of direct regulation against primary infringer proven ineffective to control online copyright
infringement. In attempt to solve this problem, online copyright protection liability has been
imposed on ISPs under the guise of ISP’s secondary liability rule.369

Coming to Ethiopia, as discussed above, online copyright infringement, which is the major
challenge currently copyright holders are facing in country, is compounded by the fact of the
special characteristics of cyberspace that rendered the application of traditional concepts of
copyright protection system ineffective. As communications and technological services
continue to converge in the country, online copyright infringement also continues to escalate
expeditiously and become a pressing issue to address urgently. The increasing use of internet
services for unlawful purposes places ISPs in a significant position to police the uses of its
platform and to control unlawful activities that take place through their network system.

368
Jerry J. Hua, supra note 60.
369
Priyambada M. and Angsuman D., supra note 110, at 325 and 127.
 84

Particularly, the rapidly increasing copyright piracy in the country justifies the need to
impose a legal obligation on ISP to protect and enforce copyright in digital environment.

However, the Ethiopian copyright law is totally silent about online copyright infringement
and the controlling mechanisms in digital network environment. Under the existent copyright
proclamation, there is no any provision neither defining who are ISPs nor attributing any
responsibility to them to control infringement in cyber space. 370 In spite of its conspicuous
role and the indispensable apparatus that they hold in controlling online piracy, ISPs have no
any legal obligation to act against copyright infringement that occur on the internet as well as
to cooperate with the right holders to enforce their right against the delinquent internet users.

As discussed above under unit two, the trend of imposing copyright protection liability on
ISPs is fueled by the fact that they are not only offering the internet infrastructures which
enable thesubscribers to commit piracy, but alsoat a best position to sanction such
misconducts. It is with this apprehension that the limited liability rule’ has adopted recently
many countries like US, Australia, Canada, Brazil, New Zealand, South Korea, Kenya, South
Africa, Nigeria and EU member countries as a new scheme to control online infringement.
The Asian countries like India, Japan, China and Singapore have also adopted ISP’s
secondary liability rule to deal with copyright piracy. For instance, the Singapore Copyright
amendment Act, under limited liability rule, impose obligation on ISPs to remove the
infringing content or disable access to such content up on receiving complain from the right
holder, and if failed to do so, ISPs assume the liability to cover the damage incurred due it’s
failure.371 In the Europe also, the EU e-commerce Directive provide basic legal frame work
for protection and enforcement of IP rights on the internet in member countries. The
directive contains general provisions that cover ISP’s copyright protection duty and the
conditions of liability.372
Similarly, in African countries like South Africa, Nigeria and Kenyathis approach is adopted
to compel ISPs to take part in controlling online copyright infringement. The Kenyan
Copyright Amendment Act 2019 is the very recent law containing the provisions specifically

370
Kinfe M. Yilma and Halefom H. Abraha, supra note 56, at 161.
371
Singapore Copyright (Amendment) Act 1999 (Cap. 63, Rev. Ed. (1999), section 193 (A-F), available
at:https://sso.agc.gov.sg/Acts-Supp/38-1999/Published/19990903?DocDate=19990903
372
EU Directive 2000/31/EC supra note 164, Art 11-15. For more detail, see: Jan B. Nordemann, Liability of
Online Service Providers for Copyrighted Content – Regulatory Action Needed? (2018).
 85

designed to deal with the liability of service providers in online environment.373 Section 2 of
this Act define internet Service Provider as “a person providing information system services
or access software that provides or enables computer access by multiple users to a computer
server including connections for, the transmission or routing of data”. Like the DMCA, this
Act provide for a notice and take-down procedure which requires ISPs to disable access to
the infringing content within 48 hours after receiving notification failure to do so would
render service providers both to civil liability to pay damage as well as criminal offence. 374 It
also contains provisions dealing with safe harbour, subpoena procedure and injunction order
against ISPs.375

Unlike the legal regimes of these comparable jurisdictions, the mechanism of controlling
online infringement through ISPs is totally the missing avenue under thegoverning Ethiopian
copyrightproclamation. This proclamation adopted before two decades when internet
coverage was almost none in the country. Since the issue of online copyright infringement
was been not the alerting problem in the country by that time, presumably, the legislature
would not have foreseen necessity of imposing liability on ISPs as important regulatory
scheme to control online copyright online piracy. This may, persuasively, considered as a
tolerable ground for the improvident flaw of this proclamation to incline ISPs as a source of
digital copyright protection scheme, however it is so mysterious why the Ethiopian
government did not make any attempt to regulate the issue even under the subsequent
copyright amendment proclamation. In 2014, ten years after its enactment, the copyright
proclamation has been amended by new amendment proclamation No; 872/2014 with the
view to provide effective legal protection for copyright that is compatible with the ever
growing development and to create enabling condition for the right holder to administer their
right in an organized and enhanced manner. 376 New issues such as corporate criminal liability
for copyright infringement, copyright collective management society, intellectual property
tribunal and the royal payment system were introduced under the amended
proclamation.377Nevertheless, regrettably the newly adopted proclamation not addressed the

373
Copyright (Amendment) Act, No.20 of 2019, an Act of parliament to amend the Copyright Act of 2001,
Kenya Gazette Supplement No.160 (Act No.20), 18th September, 2019, available at
:http://kenyalaw.org/kl/fileadmin/pdfdownloads/AmendmentActs/2019/CopyrightAmendmentAct2019.PDF
374
Id, section 35B (1), (6) and (7).
375
Id, section 35C {(1(a & b)}.
376
Copyright (amendment) Proclamation, supra note 328, preamble, para. 1.
377
Id, Art. 45.
 86

issue of controlling piracy, which is the main limitation of the previous law, failing the
objective which inspired the amendment. This is so unfortunate that the legislator has
neglected to deal with the issue that ought to be given prior consideration nor we do have any
other special enactment adopted to regulates the roles and responsibilities of ISPs to control
copyright infringement in digital era.

Recently some legislative initiative such as the Mass Media Proclamation, 378Communication
Service Proclamation379 and Computer Crime Proclamations380are made to regulate some
aspects of the digital environment. However, the only law which explicitly attempted to
address about Service Provider’s Liability is the computer crime proclamation. This
proclamation adopted in 2016 to control and prosecute computer crimes and facilitate the
collection of electronic evidences. It defines service provider as ‘a person who provides
technical data processing or communication service or alternative infrastructures to users by
means of computer system’.381Article 16 of this law impose criminal liability on service
providers ‘if they involve directly in the dissemination of computer data’s or failed to remove
or disable access to such data after they came to know the same or after notified by
competent administrative organ’.

Even though this proclamation embodies the stipulations about service provider’s liability
nonetheless, the liability scheme adopted under this particular provision does not represent
the connotation of “ISPs’ liability rule” which aimed to facilitate online copyright protection.
According to article 16 sub (1) of this proclamation, service providers assume criminal
liability if they involved directly in the dissemination of computer data. Under this provision,
the main purpose of imposing liability on service providers, is to deter them from involving
in the criminal activity directly and intentionally i.e, it is a fault-based liability. However, in
case of online piracy, the very purpose of imposing liability on ISPs is not because of their
fault in infringement, but to encourage them to take a more active role in controlling online
copyright infringement.382 Therefore, since the essence of article 16 (1) of this proclamation

378
Freedom of the Mass Media and Access to Information Proclamation No. 590/2008, Federal Negarit Gazetta,
4th Year No. 64. Addis Ababa, 4th December, (2008).
379
Communication Service Proclamation, supra note 42.
380
Computer Crime Proclamation supra note 54.
381
Id, Art. 2 (13).
382
Because, in case of online piracy, even though copyright infringement occurs through their network system,
ISPs are hardly involved directly in the infringing activities.
 87

is completely different from the objective that motivated the imposition of ‘online copyright
protection and enforcement duty (secondary liability)’ on ISPs, it cannot be construed as a
legal source meant to control copyright piracy in Ethiopia.

More importantly, under article16 (2 & 3) of this proclamation, service providers are required
to remove illegal computer content data on their computer systems or make report to
competent authority after they came to know the existence of the same. Now, if this
connotation is to be construed as imposing copyright protection and enforcement duty on
ISPs, there are some fundamental issues remain unanswered under this provision, these are;
who has the responsibility to check the existence of infringement on the internet? Service
providers or copyright holders? According to this provision, the phrase “…after they came to
know…….” seems imposing the responsibility on service providers to check and take down
or report every infringing activity occurred on their network. If this is the case, then how
could service providers know the existence of such infringement unless informed by the right
holder? Is it not imposing general monitoring obligation on service provider to check millions
of the contents daily appear on its network or supervise all the activities of their subscribers
which is practically very difficult for ISPs especially in the country like Ethiopia which has
very limited resource and technical capability to do so? How the reporting of the contents
would be carried out? And what penalty would follow when service providers disregard their
duty to report?
Plus, it is not clear whether the individual copyright holders can approach to service
providers and request the removal of their works that unlawfully uploaded, blockage of the
infringing website or the disclosure of identity information for the purpose of court action.
Because, this provision simply state that a service provider shall be criminally liable if it has
failed to take appropriate measure to remove or to disable access to the content data upon
obtaining notice from ‘competent administrative authorities’ without addressing whether
right holder (without the need of involvement of government body which may prolong the
process unnecessarily) can send take down notice. There there is also a perceptible gap in this
provision concerning the contents of the notice, the required formality and the procedure to
be followed.383 Therefore, even though the computer crime proclamation can be considered a
necessary move to regulate some aspects of online environment, it is not adequate to protect
copyright in digital network environment and cannot be construed as a legal ground imposing
liability on ISPs to facilitate online copyright protection in Ethiopia.
383
Computer Crime Proclamation supra note 54, Art. 16 (3).
 88

For more insightful understanding on this concern, the researcher asked Mrs. Frehiwot
Tamiru, and one legal officer of Ethio-telecom, concerning whether Ethio-teleom -the only
ISP company in the country, has a responsibility to act against copyright infringement that
occur through its network, according to the idea of these officials, there is no clear legal
stipulation which specifically impose online copyright protection liability on the
company.384The researcher also tried to find if there has been any occasion when copyright
holders have requested the company to take measure against the infringement of their rights
on the net or to disclose the identity of the alleged infringer and the evidences with intention
to lodge court action against the perpetrator. however,it is found so far, there has been neither
court order nor a request from the right holder asking for take down of online contents,
blockage of website or disclose identity information based on copyright infringement
allegation.385

The absence of online copyright protection system create confusion and left the Ethiopian
copyright communities without any direction concerning how to control the dissemination of
their work on the internet and enforce their right against the pirates in digital network.
According to the interview made with Mr. Yassin Omer, the copyright and community
knowledge study registration team leader at EIPO, the existent Ethiopian copyright system
reflect a fundamental flaw to conciliate the changes brought by the evolving digital network
technology.386 In an increasingly anonymized digital age, it makes highly important to
consider ISPs as indispensable party to fight copyright piracy in online environment.
According to his idea the regulatory regime which requires ISPs to expose the identity of
infringer or block the infringing webpage would help to control online infringement by
creating deterrent effect on primary infringers. It discourages especially those big media such
as TV channels and YouTube channels with huge number of followers and which are causing
infringement on commercial level, not to engage in the infringing businesses in fear of the
blockage of their sites. Because, loss of channel or website with thousands or millions of
followers would inflict a devastating impact on them. However, Mr.Yassin said that under
384
Interview with Mrs. Frehiwot Tamiru, chief executive officer of Ethio-teleom, and one of the legal officers
of Ethio-telecom, Addis Ababa, (2020).
385
Interview with Mrs. Mekdes Mintesnot, Regulator of digital information and security issues at Ethio-telecom
Addis Ababa, (2020) and Interview with Mrs. Workenesh Shewutte, the presiding judge on copyright bench at
the Ethiopian Federal High Court of Lideta branch, Addis Ababa, (2020).
386
Interview made with Mr. Yassin Omer, the copyright and community knowledge study registration team
leader at EIPO, Addis Ababa, (2020).
 89

Ethiopian copyright law we find statutory requirements neither mandating ISPs to make
substantial efforts to prevent infringement nor imposing penalties to make damage for failing
to actagainst the infringing conduct of their subscribers. Therefore, it is impractical for the
right holders to enlist intermediary's aid even to remove the clearly perceptible violating
contents or to get the identity of illicit actor uncovered in order to institute court action. He
then went on to elaborate on the importance of adopting adequate digital copyright protection
system stating that it is ineluctably becoming relatively more desirable to adopt ISP’s liability
rule so as to facilitate copyright protection in online environment. If not, he has a fear that,
professional authors will likely go out of the business and further degrading to the industry
will be happen in the country in a very near future time.387

In a view of the same, Dr. Dawit Yifru stated that the absence legal remedy which deal with
digital copyright protection is one of the main obstacles to control online piracy in
Ethiopia.388Dr. Dawit mentioned that it is impossible to reverse technological change and the
pitfalls that it produces. Rather than trying to resist this change, it seems appropriate to
respond to it by strengthening the copyright protection mechanism. Therefore, accepting the
inevitability of alternative solution, we need to look for more nuanced systemin in order to
subdue the flaw in our copyright legal regime which now regarded as mainly punitive and
increasingly contested as being ineffective for online copyright protection. For this end, Dr.
Dawit said that, the formulation of policy which involve ISPs in copyright protection
strategy produce much more long-term effect than going only against anonymous individual
infringers to overcome piracy in the country. Lastly Dr. Dawit mentioned that the association
is undertaking some progressive moves in facilitating the collection and distribution of
royalty payments that the artists could generate better income from their efforts. The
association has a plan to set up a musical library (music streaming platforms) which provide a
service for consumers both in online and off-line environment, this may help to enhance the
sharing and consumption of music in a lawful and manageable way. As an initiative of
fighting copyright piracy, the association is working in collaboration with EIPO and, actively
taking part in the awareness creation programme prepared by the office at different time. In
addition to this, it also working to establish ad hock committee which follow up infringement
and help the right holder to bring their case before the court of law. However, Dr. Dawit said
that without having a regulatory support from the government, the efforts made by copyright
387
Id.
388
Interview with Dr. Dawit Yifru, supra note 365.
 90

society alone, does not able to control piracy and protect the right holders against the
losses.389

Drawing attention to the complexities involved in online copyright infringement Mr. Tedros
Mosisa, stated that it is an offence that is strange to law, but one of the biggest threats
currently nagging creative industry in the country.390Among other thing he identifies a poor
regulatory framework, the complex government bureaucracy, imbalance of bargaining power
and absence of enabling environment to work with government entities - to name the main
one; ethio-teleom, Ethiopian airline, broadcasting agency- as the main bottle neck for the
actualisation of the aim for which Ethiopian copyright right collective management society
established in country. Ethio-telecon, being the government entity, not willing even to obtain
licence and pay royalty for the use of other’s works (including music and songs for the ring
tones or other purposes) as part of the value-addition services that they offer for their
customers. As concerned the legal backup Mr. Tedros stated that copyright law of the country
is outdated to curb piracy and thus need to be updated in order to meet the challenges of the
digital era. Plus, appreciating the cross-boundary nature of piracy, he also emphasised that
domestication of international treaty may help the move to combat piracy on international
level. Lastly, Mr. Tedros mentioned that their office has been and still lobbying for
government action to protect copyright against infringement in cyberspace however, hitherto,
no satisfactory headway made by the government to curb the problem. He urges all
concerned stake holders to continue the campaign in laud voice seeking for regulatory
response from the government.Similarly, Mrs. Yezina Worku, who is currently working as a
manager of Ethiopian Writers’ Association, also suggested that retooling copyright system is
so important to instil effective regulatory compliance and to make sure there is harmony in
the provisions of law with regard to digital copyright protection.391

There appears also no any case lodged before the court against ISP seeking court order as
well as for a judgement. In order to know if there is any reported judicial decision concerning
ISP’s duty to control online infringement, the researcher observed federal high court, Lideta
branch, and made interview with the selected judges familiar with this issue. One of the
Judges, Mrs. Workenesh Shewutte stated that online copyright protection and enforcement

389
Id.
390
Interview with Mr. Tedros Mosisa, supra note 363.
391
Interview with Mrs. Yezina Worku, manager of Ethiopian writers’ association, Addis Ababa, (2020).
 91

through ISPs is not known in Ethiopia. 392 As far as her experience concerned Mrs. Workenesh
mentioned that all the copyright issues she has been entertaining related only with offline
infringement, and thus, never experienced any case brought to the court (i.e., the IP bench she
was been working on) requesting the court to order ISPs to take measure against online
piracy or suing them for the liability to make damage. The other judges Mr. Muhammed
Jibril and Mr. Kibret Ahmed also shared the same view and added that the Ethiopian
copyright framework is,(legally and institutionally) not comprehensive enough to regulate
copyright in line with the need of technological change undergoing in the country.393

Beside the absence of regulatory regime, the problem also lay with the right holders and
other concerned stakeholders in the campaign of fighting online infringement. In Ethiopia
most of copyright holders perceive online piracy as a kind of risk which cannot be controlled
at all and thus,not reactive even against the infringement which they clearly know the source.
For example, they are not making any effort to take action against the identifiable primary
infringers such as Broadcasting media outlet like TV sets and Radios which broadcast
protected works without permission; Business entities such as airline, hotels, restaurants and
banks which use the work on commercial purpose without paying royalty or ever securing
permission; Private or government institutions like Schools, Universities; as well as the
individuals who disseminate protected contents through different social media such as
Facebook page, YouTube channel, WhatsApp, Telegramand other similar intermediary
platforms, despite the fact that they could easily identity the identity and address of the
infringers.394 Therefore, it should not be a surprise why they are not actively lobbying for help
of third-party – ISPs- while they failed to react against the clearly known sources of
infringement for which there is, at least, a regulatory baseto lodge legal action.

Lack of enough knowledge in ICT is the other challenge in the fight against piracy. It is
always common that the pirates hack and distribute copyrighted work on net to the entire
world within a few clicks on their computer; some even monetizing it for benefit. Checking
392
Interview with Mrs. Workenesh Shewutte, supra note 385.
393
Interview with Mr. Kibret Ahmed (the presiding judge) and Mr. Muhammed Jibril, judges at the
EthiopianFederal High Court of Lideta branch, Addis Ababa, (2020).
394
According to Mr. Yassin, the acts like public performance, play, imitation, or the use of protected works of
others by media outlets, hotels, cafes, business centers and other places including airports, amusement parks,
clubs, factories are very common practice in this country and thus, not considered as copyright infringement
even by these users who are (expected to be) the potential consumers of the works, what more worse is that right
holders are so clumsy and reluctant to react; there has been no any move coming from them to take legal action
against such clear violation of their rights. An interview made with Mr. Yassin Omer, supra note 386.
 92

and controlling this method of piracy need some basic level of consciousness in ICT. In the
technologically advanced countries, in addition to the legal protection provided by
government, the right holders are applying a technological self-help measure such as DRM to
control unlawful access to their works.395 However, in the context of Ethiopia, the level of
technological advancement would not allow the right holders to protect their works through
such measure396 Let alone blocking unlawful access to their works or detecting piracy on the
webs, most of the right holdersare computer illiterate and have no the required level of
cognizance even how to browse the internet. Hence, they need the help of ISPs to monitor the
dissemination of their work as well as to trace identity information about primary infringer.397

The other factor exacerbating the problem of online copyright infringement is the lack of
awareness. In Ethiopia, the awareness about piracy among the concerned stakeholders is far
below the expected level.398 Most of copyright holders, especially the authors of audiovisual
works, publish their works on the internet without looking for more beneficial alternatives
like, for example, selling distribution right or licensing it to the retailors who may manage the
work more effectively and reap better remuneration from it. 399From the side of consumers
also, many of them do not understand that intellectual properties are an asset much like any
other tangible properties and subjected to ownership. Particularly, in online environmentthere
is a misleading notion that everything available on the internet has no owners and can be
exploited freely. Accordioning to Mr. Adisu, majority of internet users are not cognizant of
the fact that the contents available on the web, in one way or another, have the owner and
protected by copyright law while some of them consider the browsing fee that they spend to
access internet as a payment or price of the material that they use or download from the
web.Plus, a disturbing attitude also exists in the minds of the public,judiciary and law
enforcement organs, that infringement is a low level of mischief with little real consequence
which in fact proven otherwise currently from its effects.This goes shows that there is a great
need to shed light on and embark on aggressive enlightenment to acquaint the community
about the infringement and its effects so that they would better understand the reasons why

395
Finck, M., Moscon, V., Copyright Law on Blockchains: Between New Forms of Rights Administration and
Digital Rights Management, 2.0. IIC 50, 77–108 (2019), at: https://doi.org/10.1007/s40319-018-00776-8.
396
Interview with Mr. Adisu Siyum, Copyright & Expression of Folklore Team Leader at EIPO, A.A (2020).
397
Id.
398
Id.
399
Id, due to lack of experience, they post their works on web even without getting registered for copyright
protection policy of the common search engines like Google, Yahoos, Bing, Yandex.ru, Baidu … etc., which
may help them to increase the chance of protecting their right on the net.
 93

they should not tolerate piracy and not patronize a pirated works, as well as appreciate it as
unlawful act carrying harsh penalties.400

The absence of unity and cooperation among the right holders, and of course all concerned
stakeholders, is also the other problem impeding the prospect of deterring infringement.
Fighting copyright infringement requires collective effort from different stakeholders,
including the right holders, policymakers, law enforcement body, media, business and
community partners across the country. However, in Ethiopia the relationship among these
segments is characterized by loose and hostile alliance; dispersed collaboration. For unknown
reason copyright societies are not willing to work to gather. The authors come together only
when some grave case of infringement took place to undertake rally on the street protesting
against government for infringement took place elsewhere by someone else.

When researcher asked if there is any effort that the EIPO isundertaking to fight piracy, Mr.
Yassein mentioned that the office has conducted two round studies on the level of copyright
infringement at a national level; the first operation was made in 2012, to assess the level of
infringement against Audio-visual Works and the second was conducted in 2014, to assess
the level of infringement against Musicboth in online and off-line environments. The third-
round operation which planned to be made in 2016/17was interrupted due the ongoing unrest
in the country by the time, however he said the office has a plan to undertake operation in
detail and on a broadest sense in the coming year particularly, focussing on online
infringement, so as to scrutinize and recommend the appropriate policy measure to combat
copyright piracy in the country. Plus, the office is also working on awareness creation by
preparing different workshop and panel discussion for stakeholders at national level and by
giving intensive and successive training for the right holders concerning how they could
safely facilitate the license or sale of righst against their works.401

400
As the writer observed from the interactions made with different stakeholders, not only the laymen who do
not aware of why copyright is cared for after all orwhy they should asked to pay for something they access on
the net using their own electronic tools up on their efforts, but also most of the officials who are leading
different copyright segments are not well aware of about online copyright infringement and the effects that it
causing. Therefore, apart from educating the public, the awareness creation campaigns should also focus on the
right holders, government officials, and representatives of copyright societies so that all concerned parties would
have basic information about the issue and consciously react against copyright infringements.
401
An interview made with Mr. Yassin Omer, supra note 384.
 94

In a nutshell, from the discussion made so far in this unit, it can be concluded that as the
internet and its packages become the blessing part of our daily lives, however there are also
certain downsides of this technology. Online copyright infringement is a typical example of
the pitfall reverberation of digital network technology currently threatening Ethiopian
copyright industry.The key reasons that renderedonline copyright piracy so problematic are
related to the nature of the internet itself;it makes committing the infringement so easy while
making the controllingprocess extremely difficult, inconvenient, costlytask. This in turn
resulted to the need to use ISPs in the efforts of combating piracy as they are proven to be the
best and indispensable party to do so. Despite the importance and desirability of such
strategy, howeverunder the existent Ethiopian copyright legal regime,there is no any
stipulation neither regulating copyright in cyberspace nor attributing online copyright
protection liability to ISPs. Nor do we have any other special enactment particularly designed
to regulates the role and responsibility that SPs should undertake in order to control copyright
infringement in digital era.The absence of regulatory compliance which oblige ISPs to assist
the efforts copyright protection on the internet can be considered as the main obstacle to
scramble the aspiration of fighting piracy in Ethiopia.

4.6. The Pressing Need for Regulatory Response

Copyright infringement on the internet is the common alerting problem both for developed
and developing countries. However, its impact appears to be worse in developing countries
where the protection system is so inadequate. This paper brought to the fore the fact that,the
shared challenge of piracy is now fast gaining grounds in Ethiopia also. Hailed for quick and
convenient access to the protected resources, the internet poses serious damages for the
authors to market the fruits of their mind. If people can so easily get access to protected
materials on the internet for free then,the question is ‘who will pay for the authors?’

Ethiopia has no needed legal framework to deal with this exasperate theme of piracy recently
expediating at alerting rate in the country. Of course, this should not come as a surprise
because, the proclamation was adopted in complete oblivion of the phenomenon called the
internet because, the drafters of the time may not prudent enough to forecast the piracy which
is the ramification of the aftermath technological changes and thus, not made comprehensive
law which approach to ISPs for copyright protection on the internet.The findings in this
research is indicative of the fact that due to the absence of regulatory regime, the right
 95

holders are facing serious challenge to tackle the problem of piracy through ISPs. Even
though they have factual ground as to the occurrence of infringement, they cannot enlist the
intermediary's aid even to remove the clearly perceptible violating contents or get the identity
of illicit actor uncovered for court action.Without effective protection of their right and
ability to earn a living from their work, authors will not have the incentive to join the
industry, in the first place. Moreover, they would not be able to develop original works with
powerful content that help to further the creative capacity of the industry as well as the
satisfaction of the people who use the works legally. If quality and readability of the creative
activity suffered, the ability to get and distinguish a credible quality information from that of
unreliable and untrustworthy wouldbecome a very difficult task soon. This would, inevitably,
pose a serious danger to the development of creative industry and affect thecontribution that
it offer for the development of the country.Moreover, the Ethiopian government has decided
to liberalize telecomsector and allow private ownership both for domestic and foreign
investors.402 The liberalization process, as can be understood from the trend of other
countries, signifies a policy breakthrough and invite number of powerful private companies
to enter and compete in the industry. It allows free riders in telecom services provision and
make internet services more accessible. In the absence of effective policy to regulate online
environment, this new policy may exerbate the problem of online piracy more to the
uncontrollable level.
Therefore, if the promised objective of copyright protection is to be reached for the interests
of all parties, and if the economic advantages of creative industry is to be exploited,
especially in a resource-poor nation like Ethiopia, curbing the upsurge challenge of online
piracy is particularly important. To address it, perhaps the most important and immediate
measure is to take legislative action. As it has been discussed elsewhere in the previous units,
ISP’s secondary liability rule, though not completely put to an end, is considered as the best
scheme to react against this new culture of copyright theft. Hence, this is a wakeup call time
for Ethiopian government to move behind piecemeal policy and adopt a legislation which
enable the right holders to enlist ISP’s aid to control the dissemination of their works and
enforce their rights in cyberspace.Having the urgent need of legal reform as a primary
consideration, the issues of copyright infringement should also brought into public attention,
and relevant bodies such as ISPs, Police and Judiciary and copyright society should be
equipped with intensive training and resource to lead the fight against piracy. The holders
must stop seeing the government as the sole body to control piracy, it is time for all
402
Communications Service Proclamation, supra note 42, Art 54.
 96

stakeholders to partner with government and cooperate with each other in combating piracy.
We all must be ready to control infringement which is preventing the copyright sector from
contributing its quota to the economic development and to take the cause of creativity in
Ethiopia to the next level.

5. CONCLUSION AND RECOMMENDATION

5.1. Conclusion
The evolution of internet technology can be listed as one of the greatest technological
achievements in the history of human being. As pressed in this paper, the innovation of
internet platform fundamentally changed how people interact and refined in the way that was
been impossible before its creation. The greatest advantage of this technology is its capability
to enable the people to exchange and spread great quantities of digital information within
seconds without geographical limitation. As the internet and its packages become the blessing
part of our daily lives, however there are also certain downsides came up with this
technology.403The phenomenon of online copyright infringement, which is currently
threatening international copyright society, is a typical example of the pitfall reverberation of
digital network technology. As pointed out in this study, the attributes of internet that make it
a promising innovation are the same one that stretched the territorial boundaries of copyright
by allowing the illicit internet users to access, exploits or disseminates, unlawfully and for
free, a copyrighted works of others on the internet using ISP’s platform. 404Consequently,
since the evolution of internet and the digitalization process revamped up, the problem of
online copyright infringement and addressing the ‘liability question’ has been also around
and still a worldwide turmoil issues of legal concern.In attempt to address the liability issue,
it has been discussed in this study that, as a principle, the primary infringers (illicit internet
users) who unlawfully, post, share, download or otherwise made available copyrighted works
other on the internet assume the liability and makes the damages arising out of their
infringing conduct.

403
Jennifer L. Kostyu, supra note 12.
404
Just M., “Internet File-Sharing and the Liability of Intermediaries for Copyright Infringement: A Need for
International Consensus”, (2001) Vol.1 The Journal of Information, Law and Technology. Available at:
http://elj.warwick.ac.uk/jilt/03-1/just.html
 97

However, the inherent nature of online platformmakes very difficult to control piracy and
enforcement of copyright against the pirates under the direct liability principle. It has
recognized that thekey reasons that rendered online copyright piracyand legal action against
the primary infringers so problematic and complex are related to the nature of the internet
itself; it facilitates the occurrence of the infringement in large amount so easily while making
the controlling process extremely difficult task by allowing anonymous privilege for the
perpetrators to hide themselves from the reach legal action for the liability purpose.
Consequently,online copyright protection and enforcement strategy changed from going only
after primary infringers to target ISPs on the account that in the era of volatile digital
environment, misconduct on the internet cannot be controlled most effectively without the
ability to rely on ISPs. Because, ISPs perform distinct functions and inevitably involve
(directly or indirectly) in any online activities; they are the best and indispensable party and
also have a necessary wherewithal to sanction online piracy, therefore they should assume
liability to take part in the efforts of controlling online copyright infringement. 405
Accordingly, it was with this aspiration that a new regulatory scheme of ‘ISP’s limited
(secondary) liability rule has developed and being applied in different jurisdictions like US,
China, Australia, Brazil, Kenya, South Africa, EU member States and other many countries
as a forefront strategy to fight piracy. It should be emphasized here that the change in
copyright protection and enforcement strategy of targeting ISPs is thus, esteemed from the
necessity and conveniences to control online piracy. As indicated in this paper, the main
objective of ISP’s limited liability rule is to control piracy by imposing online copyright
protection duty even on innocent ISPs to compel them to act against the infringement that
take place on the internet, while preserving ISP’s freedom to operate. To this end, this
liability scheme contain a clearly defined set of responsibilities that ISPs are required to
perform in efforts of undertaking their duty and, at the same time, provide safe harbor 406 to
protect ISPs from unreasonable responsibilitylike general monitoring obligation and the
resulting liabilities. The notice and take down scheme, subpoena procedure and injunctive
relief are among the core principles adopted under ISP’s limited liability rule.

405
Jerry J. Hua, supra note 60. See also Mark A. Lemley and R. Anthony, supra note 21.
406
This is a big concession to ensure ISP’s freedom to operate so that they will do their business without
unjustifiable legal threat as well as to promote the well-functioning of internet, see: Seng. D, Comparative
Analysis of National Approaches of the Liability of the Internet Intermediaries, (2010), available
at:https://www.wipo.int/publications/en/details.jsp?id=4144&plang=EN
 98

In the context of Ethiopia also, it has highlighted in this paper that, not an odd to the
aforementioned international copyright society, the increasing usage of internet facilities
posed the threat of online copyright piracy which is the very pressing problem to be
addressed urgently in the country. This study is thus, discussed and analyzed major concern
relating to the need to protect copyright in cyberspace, mainly focusing on the liability of
ISPs to control online copyright infringement under the Ethiopian copyright legal regime.
Accordingly, the close inspection in this study revealed that the issue of digital copyright
piracy and the controlling mechanism not addressed at all in Ethiopia. Particularly, as far as
the liability of ISPs is concerned a deep scrutiny made through this paper found that, despite
the importance and desirability of such scheme to fight piracy in this digital network-oriented
era, however there is no any stipulation attributing online copyright protection liability to
ISPs under the existent Ethiopian copyright law. Nor do we have any other enactment
particularly designed to regulatethe role and responsibility that ISPs should undertake in
order to control copyright infringement on the internet. Hence, there is a perceptible
regulatory gap in the country in this regard.From the interaction made with different
stakeholders during the interview,it has been also highlighted that the static of piracy in the
country would have been less than the current level if ISPs had obliged with legal duty to
assist the efforts of online copyright protection strategy and the absence of such regulatory
compliance thus, can be considered as the main obstacle to scramble the aspiration of fighting
piracy in Ethiopia. The researcher has also a firm view that in the contemporary development
where the scene of infringement fundamentally changed from off-line environment to that of
on-line environment, a myopic focus on the indispensability and the role of ISPs in fighting
piracy would render nearly impossible to achieve the overall objective of copyright
protection.
Beside this, it has been indicated that other factors such as lack of awareness and the wanting
education system about online copyright piracy, absence of synergy and cooperation among
different stakeholders, knowledge gap in the field of ICT, unwillingness, high incompetence
and carelessness reflected among most of the concerned government officials and, of course,
the right holders as well as the overlooked effects of infringement can be identified as
stumbling blocks to control piracy in Ethiopia.Therefore, the researcher strongly believe that
if the promised objective of copyright protection is to be reached for the interests of all
parties, and if the economic advantages of creative industry is to be exploited, especially in a
resource-poor nation like Ethiopia, curbing the upsurge challenge of online piracy is
particularly important. To this end, there has arisen a pressing need to take regulatory action
 99

and, under the following title, this paper suggested the measures it believed may help for this
purpose.

5.2. Recommendation
The analysis made on the liability of ISPs to control online copyright infringement under the
Ethiopian copyright law, focusing on the need to fight piracy through ISPs in the country,
lead the writer to make the forwards the following recommendations:
1. Ethiopian government should adopt a regulatory regime which impose online copyright
protection liability on ISPs so that the right holder would enlist ISP’s aid to control the
unlawful dissemination of their works on the internet and enforce their rights against the
pirates. This can be done either by enacting of new law or by making amendment to the
existing copyright law.
2. The very purpose of imposing liability on ISPs is not because ISP’s fault in infringement,
but to facilitate copyright protection and enforcement on the internet through ISPs, by
conscripting them with more proactive task to react against the infringement that take
place on their platform. Therefore, to achieve this objective the following issues should
be considered and incorporated under legal reform to be made:
a. The legislature should adopt a provision which define and outlaw online copyright
infringement in a clear language. Controlling copyright infringement preceded with a
clear understanding as to what constitute “copyright infringement”. This is
particularly very important in case of online environment to avoid confusion and
enhance the enforcement of regulatory regime. But the existent Ethiopian copyright
law is devoid of clarity concerning what constitute copyright infringement even in
case of off-line environment. Therefore, to clarify the context of the concept, the
researcher suggest that the legislator should adopt a provision which define online
copyright infringement or incorporate an ‘interpretative clause’ to clarify what kind of
act or omission constitute online copyright infringement and the exception thereof in
Ethiopia.
b. The legislature should adopt a provision which define ‘who are considered as ISPs’.
To properly assign legal responsibility, there must be a clarification concerning ‘who
are ISPs’ because, the concept of ‘ISPs’ is quite wide and subsumes within itself
many roles under the domain of network communications. Therefore, clarity of the
concept is the primary step to determine the subject, scope and conditions of the
 100

liability and thus, the starting point for the operation of ISP’s secondary liability rule.
Therefore, the researcher recommend that the legislator should adopt an innovative
provision to clarify who are considered as ISPs in Ethiopia for the purpose of
assigning online copyright protection liability to them.
c. The regulatory response should incorporate the provisions which clearly provide the
legal duty that ISPs need to undertake in order to control the infringement, the scope
and condition of liability:
d. Notice and take down scheme is the most effective mechanism through which ISPs
act against online infringement to undertake its liability and also, an indispensable
part of ISP’s limited liability rule. Hence, the writer highly recommends that, under
the regulatory reform, the legislature should:
 Incorporate “notice and take down’ scheme and adopt a provision which require
ISPs to take immediate action against the alleged infringement up on receiving
notification from the right holders;
 Include detailed provision concerning the ‘contents of notification’ and the
‘procedures’ to be followed’ for the effective implementation of the scheme;
 Insert a provision which provide counter notification or an appeals procedure to
protect the right/interests of internet users who are subjected to the wrong
notification;
 Adopt adequate provision to penalizing ‘bad faith’ take-down notification by the
right holder or counter notification by internet users;
 Mandated ISPs with the legal duty to designate an agent or a platform to receive
notifications;
 Unless they commit direct online infringement or failed to take measures after
obtaining notification, ISPs shall be protected from the ‘liability to make damage
or criminal offense’ for the infringing conduct of their subscribers;
 In this regard, DMCA considered as a detailed statute and provide good base on
notification procedures. The writer suggests that reference to the US experience
may help to construct the well-functioning scheme to control piracy in Ethiopia.
e. Given the anonymous nature of internet technology, it is very difficult for the
copyright holders to trace the identity of primary infringer without the help of ISPs.
Hence, the writer recommends that, within a regulatory reform, the Ethiopian
legislature should adopt provision which require ISPs to disclose identity information
about primary infringer (subpoena procedure), so that the right holder would launch
 101

lawsuit against the alleged infringer. In order to ensure that this scheme would not be
abused, particularly to protect the privacy of internet users, the identity disclosure
procedure should be subjected to the order of the court.
f. Graduated response is basically a private arrangement between the right holders and
ISPs, however to work effectively, it need administrative support or regulatory base
from the government even in the in the jurisdictions where service providers are fully
privatized.The Ethiopian government, like Kenya, France, UK and Ireland experience,
needs to adopt a provision which provide regulatory guide line and promote the
voluntary agreement between copyright industry and ISPs to control online copyright
infringement.
g. Beside the aforementioned controlling mechanisms, the regulatory response should
also include the provision which makes ISPs liable for damages and criminal offense
resulting from non-compliance with their obligations.
3. To protect ISPs from unreasonable liability and to ensure its freedom to operate the
regulatory response should adoptsafe harbour provisionwhich to protect ISPs from:
 The general monitoring obligation and from the ‘liability to make damage or
criminal offense’ for the infringing conduct of their subscribers. This concession is
particularly desirable in Ethiopia which has very limited resource and technical
capability.
4. Finally, I strongly believe that education and awareness creation program has a great
importance to fight online copyright piracy. If properly implemented the awareness
creation campaign may increase internet user’s understanding about piracy and its
implications,as well as the surrounding legal consequences. This would encourage a
responsible use of internet services among the potential consumers and create incentive to
follow the lawful procedure to get access to protected works. It also helps the right
holders to take precocious measure when dealing in online environment. Plus, it
encourages ISPs to develop anti-piracy policy and other technical measures to minimize
the infringement through their network system. Moreover, it helps policymakers,
judiciary, law enforcement body and other concerned government officials to better
understand piracy and the danger why it should not be tolerated. Therefore, targeting all
the stakeholders, the government should emphasize and initiate different awareness
creation programs as a policy guideline in Ethiopia.
 102

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ANNEXE
Key Informative Interview
Introduction

Copyright industry is one of the crucial economic sectors and play a vital role in development
of a given country. The innovative capacity of this sector help to transform and spur socio
economic progress lead by industry. However, creating a conducive legal environment which
promote and protect intellectual creativity is a quid pro quo to exploit the advantages of this
industry. Especially in this digital era, when copyright infringement is taking place rampantly
on the internet, it is slightly possible to reap the benefit achieve the aim of copyright
protection without providing effective protection that is compatible with the ever-growing
technology. Thus, this research tried to explore mechanism of copyright protection in this
digital environment, particularly focusing on ISP’s liability to control online copyright
infringement under the Ethiopian copyright law. It is the esteemed belief the researcher that
the intended objective of this research cannot be achieved only through document analysis
without having some insight on the ground.
Accordingly, to have some practical understanding on this concern, it is inevitably necessary
to approach and conduct interview with the concerned stakeholders and government agencies.
For this purpose, I have devised some interview questions related to the theme of my
research. Thus, I kindly request you to cooperate and help me in providing necessary
information.Presumably you are too busy handling other issues however, your genuine and
diligent information is indispensable for the credibility and successful completion of my
study. Last but not the least, I want to assure you that I protect the confidentiality of the data
you provide me and use it only for the purpose of this research, and the identity of the
respondent, (if claimed to remain anonymous), will not be disclosed to anybody for any
purpose.
I hereby want to extend my thanks to you in advance!

I. Questions commonly forwarded to all copyright society and the concerned

government agencies:
Name: ____________________________
Position: __________________________
1. How do you see online copyright infringement in general and the situation of Ethiopia in
particular?
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2. What do you think the reasons for the highly increasing copyright piracy in Ethiopia?
3. What do you think the effects of copyright piracy on copyright society as well as on
Ethiopian copyright industry as a whole?

II. Interview questions to the Ethiopian MoICT

Name: ____________________________
Position: __________________________
1. What do you think the implication of the increasing use of internet services on copyrights,
particularly in relation to online copyright infringement?
2. As the only ISP company in Ethiopia so far, what do you think the role of Ethio-telecom
in in facilitating online copyright infringement and also in controlling it?
3. Is there any circumstance in which Ethio-telecom assume liability for the infringing acts
of its subscribers?
4. Is there any law that require telecom company to act against online infringement, for
example to remove the infringing contents or block the infringing sites?
5. And also, if there is any occasion when copyright holders approached the company
requesting such measures or disclosure of identity information about the subscriber, they
alleged infringer with intention to lodge court action?
6. How do you see the strategy of using ISP as a primary party to control online
infringement and the effectiveness of ISP’s limited liability rule?

III. Interview questions to the EIPO

Name: ____________________________
Position: __________________________
1. How do you think the effects of online copyright infringement in Ethiopia?
2. Taking into account the fact that Ethiopia has no effective law for digital copyright
protection, what do you think the effects that the recently adopted ‘telecom liberalization’
policy would have on copyright industry? don’t you think it will exerbate the problem of
piracy if the current status quo of regulatory environment is not changed?
3. Despite the highly increasing online infringement in Ethiopia, both government and the right
holders are not making active campaign to fight piracy, what do you think the reason for this?
4. Do you think the current Ethiopian copyright law is effective to control online copyright
infringement and to enable right holders to enforce their right against the pirates?
5. What are the efforts that your office/association has made to curb the challenges of piracy?
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6. And is there any other regulatory scheme you think more effective and appropriate to control
piracy if adopted in Ethiopia?
7. Dou you think ISPs should assume the responsibility totake part in controllingonline
infringement? what do you think the advantage of such strategy to minimize piracy in
Ethiopia?
8. Is there any other regulatory scheme you think more effective and appropriate to control
piracy if adopted in Ethiopia?
9. Any other comment if you have?

IV. Interview questions to Ethiopian Writers, Musicians and Film Producers

Associations
Name: ____________________________
Position: __________________________
1. what makes especially difficult the protection and enforcement of copyright on the internet?
2. what do you think the limitations of Ethiopian copyright concerning the protection and
enforcement copyright on the internet?
3. Is there any effort or campaign that your association has been made so far to fight piracy?
4. What kinds of regulatory measure you think would effectively minimize online infringement
in Ethiopia?
5. What do you think the advantage will be for copyright society if the government adopt the
law which impose copyright protection liability on ISPs?

V. Interview questions to the judges of federal high court, Lideta branch:

Name: ____________________________
Position: __________________________
1. Have you ever experienced any case brought before your bench asking the court to order
ISP to take measure against online infringement?
2. And also, if there is any reported judicial decision made against ISP to assume liability and
pay damage for the infringing act of their subscribers?
3. If you encounter such case in the future, what possible legal constraints do you think will
face to deliver decision?
4. What is your opinion concerning the direction to be followed in order to control online
copyright infringement in Ethiopia?