Copyright Infringement
Music Copyright Society of Kenya v Tom Odhiambo Ogowl [2014] CIVIL APPEAL NO. 17 OF 2014
Facts
The case was an appeal against the judgement of malicious prosecution made by Homa Bay Senior Residents Magistrates Court.
The Respondent’s case against the Appellant (MCSK) was that on 17th January 2011, MCSK impounded his electronic equipment for operating a business without a licence to publicly display copyrighted musical works. Subsequently, the respondent was charged with copyright infringement under Sections 38(2) as read with Section 38(7) and 38(8) of the Copyright Act.
The learned magistrate made a finding that the prosecution had not established a prima facie case and the respondent had no case to answer. The respondent was acquitted under Section 210 of the Criminal Procedure Code. The Learned magistrate reasoned there was no case to answer because the agents of MCSK charged the accused but no artistic author was identified whose copyright was infringed.
Issue
Whether the learned magistrate erred in law and fact by mankind a finding of malicious prosecution?
Rule
Kagane and Others v Attorney General and Another [1969]
The elements to proved for malicious prosecution are
- The plaintiff must show that prosecution was instituted by the defendant, or by someone for whose acts he is responsible
- That the prosecution terminated in the plaintiff’s favour
- That the prosecution was instituted without reasonable cause
- That the prosecution was actuated by malice
Analysis
Malicious Prosecution Elements
Institution of Prosecution by the Defendant:
The court correctly identified that the MCSK had instituted the prosecution against the Respondent. This element was straightforward and uncontested, establishing the first criterion for malicious prosecution.
Termination of the Prosecution in the Plaintiff’s Favour:
The prosecution against the Respondent ended in his favour when the magistrate found that there was no case to answer. This also clearly meets one of the necessary conditions for a claim of malicious prosecution.
Institution of Prosecution Without Reasonable Cause:
This element is pivotal. The High Court found that there was reasonable cause for the prosecution. The respondent operated a business that publicly displayed copyrighted material without a license, which is a clear violation under Section 38(2) of the Copyright Act. The Court’s determination that MCSK had reasonable grounds to believe that an infringement was occurring is crucial and appears legally sound, given the facts presented.
Prosecution Actuated by Malice:
The court also addressed the issue of malice, concluding that the acquittal of the respondent did not automatically imply that MCSK acted with malice in initiating the prosecution. This aligns with legal precedents which state that malice must be explicitly demonstrated beyond just the absence of a conviction. The court noted that the MCSK’s actions were within the scope of its statutory duties to enforce copyright laws, rather than being driven by improper motives.
The High Court’s analysis and conclusions appear to be well-grounded in both fact and law. The decision to overturn the judgment for malicious prosecution seems justified based on the evidence that MCSK had a reasonable and probable cause to initiate legal actions against the Respondent for copyright infringement. This case highlights the complexities involved in enforcing copyright laws, especially in scenarios involving public performances or displays of copyrighted works.
The court’s decision underscores a significant point: entities like MCSK, when acting within their legal remit to enforce copyrights, are entitled to initiate prosecutions if they reasonably believe an infringement has occurred. However, this also serves as a reminder that such entities must ensure their actions are not only legally justified but also transparent and consistent with due process to avoid allegations of overreach or malicious intent.
In summary, the court’s ruling appears sound and is an important affirmation of the rights of copyright holders and their representatives, provided they act within the bounds of the law and with reasonable cause. This case also illustrates the delicate balance between protecting intellectual property rights and ensuring that enforcement actions are conducted fairly and without malice.
Conclusion.
The Respondent failed to establish his claim and appeal is allowed.
Judgement available here.