Copyright Infringement
Nairobi Map Services Limited v Airtel Networking Kenya Limited & 2 Others [2019] Civil Appeal No. 125 of 2016
Facts
In Nairobi, on the evening of 29th August 2009, James Mwaura Wamuhiu, chief cartographer at Nairobi Map Services Limited (Appellant), observed a commercial on the NTV channel. This commercial, promoting Airtel Networking Kenya Limited (1st Respondent), displayed the “Kenya Administrative Map”, a copyrighted work of the Appellant. The map was used as a backdrop to demonstrate the 1st Respondent's mobile network coverage across Kenya by placing pins on various locations. Believing this constituted a copyright infringement, the Appellant approached the Respondents without success, leading to a lawsuit initiated in the High Court, seeking damages and costs.
Issue
Whether the use of the map in the commercial was "incidental" and therefore not an infringement under Section 26(1)(c) of the Copyright Act?
Rule
Copyright Act, Section 26(1)(c): This section allows for the "incidental inclusion" of an artistic work in a film or broadcast, potentially exempting it from claims of copyright infringement if the inclusion is not deliberate and pivotal to the broadcast's objective. ‘Incidental Inclusion’ is inclusion that is casual, inessential, subordinate, or merely background to the primary objective of the work in which it appears.
Analysis
The Appellant's principal argument contended that the map's inclusion in the advertisement was deliberate and integral to demonstrating network coverage, rather than incidental or subordinate. However, the High Court, and later the Court of Appeal, assessed the usage of the map within the broader commercial context. The courts observed that the advertisement had already illustrated network coverage through alternative means and had utilised other maps. Consequently, the use of the Appellant's map was determined to be non-essential to the advertisement's effectiveness or message, thus meeting the criteria for "incidental inclusion."
Counsel for the Respondents maintained that there was no infringement, arguing that the map's use did not constitute a reproduction or unauthorised communication of the copyrighted work. This position was bolstered by a lack of evidence to suggest that the map had been digitised or copied by the Respondents.
Ultimately, the Court of Appeal affirmed the High Court's judgment, concluding that the map's role in the advertisement was merely incidental. The map's presence was secondary to the primary objective of the advertisement, which was to portray network coverage, a goal achieved through other visual elements and techniques used in the commercial.
This case underscores the nuanced interpretation of "incidental inclusion" within copyright law, highlighting the balance courts must strike between protecting intellectual property rights and allowing for reasonable usage in broader contexts like advertising. The courts' decision leaned heavily on the contextual analysis of the map's usage, emphasizing that the incidental or subordinate inclusion hinges not merely on the presence of a copyrighted element but on its significance and necessity to the overall objective of the work.
Conclusion
The appeal was dismissed, affirming that no infringement of copyright occurred under the stipulated provisions of the Copyright Act. The decision reinforces the legal threshold for "incidental inclusion", where the use of copyrighted material does not necessarily equate to infringement if it does not fundamentally drive the work's primary objective.
Judgement to be found here