Copyright Infringement
Timsoft Kurai Kimani v Safaricom Limited, Bensoft Interactive Limited; M-Tech Communications Limited. Music Copyright Society of Kenya and Sub Sahara Limited (Third parties) [2023] KEHC 20085 (KLR) Civil case 445 of 2015.
Facts
Timsimon Kuria Kimani, a Kenyan musical artist known as "Mr. Bamboo", composed and recorded three songs: "Mama Africa," "Yes Indeed," and "Move On." He alleged that these works were used by Safaricom Limited, Bensoft Interactive Limited, and MTECH Communications Limited without his permission through Skiza Tunes, a music platform. Kimani claimed that these companies had commercially benefited from his works without his consent, infringing his copyright.
Issue
1. Whether the actions of Safaricom Limited, Bensoft Interactive Limited, and MTECH Communications Limited to reproduce, publish, broadcast, distribute, exhibit, and sell musical works copyrighted by Kimani without a subsisting agreement constituted an infringement of Kimani's copyright.
2. Whether these companies were entitled to indemnity for copyright infringement on the assumption they had received authorisation from the copyright holders.
Rule
Under Section 35 of the Copyright Act copyright or related rights are infringed when a person engages in or causes others to engage in actions that are exclusively reserved for the rights holder. This includes any form of reproduction, distribution, public performance, or communication to the public of the copyrighted material without obtaining prior permission from the copyright owner.
Analysis
The central issue in this case revolved around the IP rights associated with musical works, specifically the responsibilities and liabilities of copyright distribution channels when dealing with copyrighted material. The defendants, including Safaricom, acted as intermediaries distributing the musical works "Mama Africa," "Yes Indeed," and "Move On" through various digital platforms. Their assumption that obtaining content from Music Copyright Society of Kenya (MCSK) and Sub Sahara Limited, who represented themselves as rights holders, absolved them from further due diligence forms the crux of the IP conflict.
The court highlighted the responsibility of distribution companies to conduct thorough due diligence before using or licensing any musical works. This duty includes verifying the authenticity of copyright claims by checking directly with the copyright holders or examining signed contracts that clearly transfer rights from the artist to the third parties. In this case, no such verification was carried out, leading to the infringement of Kimani's copyrights. This situation underscores an often-overlooked aspect of IP management — the necessity for robust verification processes to prevent infringement and protect the rights of original creators.
The defendants relied on indemnity clauses within their contracts with MCSK and Sub Sahara Limited to shield themselves from liability. However, the court decisively found that such clauses do not excuse the lack of direct authorisation from the copyright holder. This finding is significant as it places the burden of copyright verification squarely on the shoulders of those who profit from the distribution of creative works. It sets a precedent that relying solely on third-party assurances without direct verification is insufficient and risky in managing IP rights.
The ruling sends a strong message about the responsibilities of digital and physical distributors of copyrighted content. It emphasises that entities cannot merely rely on intermediary assurances but must engage directly with copyright holders to ensure compliance with IP laws. This approach is crucial in an era where digital distribution can lead to widespread unauthorised dissemination of creative works, significantly impacting artists' ability to derive economic benefits from their creations.
Conclusion
The court ruled in favor of Kimani, stating that the defendants had infringed his copyright by using his songs without proper authorisation. It ordered the defendants to pay Kimani Kshs. 4,500,000 in damages, and they were allowed to seek indemnity from the third parties involved.
Judgement available here.