Copyright Infringement
Rhoda Ondeng Wilhelmsen V Dr. Sarah A. Chuchu[2013]Eklr
Facts
In 2012, Rhoda Ondeng Wilhelmsen (the Applicant) filed a Notice of Motion seeking a temporary injunction to restrain Dr. Sarah A. Chuchu (the Respondent) from infringing or claiming ownership of a musical production titled "Ondieki the Fisherman", which the Applicant had registered as a copyright work with the Kenya Copyright Board. The Applicant claimed the production was inspired by a school project initially organised by Mr. Frank Chandler, a teacher at Limuru Girls High School, and was being staged for charitable purposes to support the school. The Respondent, also a former student of the school, asserted that the production was based on an essay she authored in 1973 while at the school. She alleged that the Applicant’s work was an unauthorised adaptation of her literary work and that the portrayal of the character Ondieki had been distorted in a way that harmed her reputation. The Respondent denied ever claiming copyright over the musical production but objected to the use and adaptation of her essay without consent.
Issue
The key issue was whether the Applicant had established a prima facie case for the grant of a temporary injunction by demonstrating that the Respondent had infringed her copyright in the musical production "Ondieki the Fisherman".
Rule
Under the Copyright Act 2001 (Kenya), Section 22 provides that original literary and musical works are eligible for copyright protection. Section 26 grants copyright holders exclusive economic and moral rights over their works, including the right to reproduce, adapt, distribute, and communicate the work to the public. Section 33(1) outlines what constitutes copyright infringement. Furthermore, Article 5(2) of the Berne Convention, which Kenya has ratified, affirms that copyright arises automatically without registration, provided the work is original and fixed in a tangible form.
Application
The court found that the Respondent was the original author of the literary work "Ondieki the Fisherman", and thus held copyright in the essay. Although the essay had been adapted—first by a teacher, and later developed into a musical production by the Applicant—the Respondent’s prior authorship was not in dispute. The Applicant was shown to have registered the adapted musical production with the Kenya Copyright Board and therefore held a separate copyright over that derivative work. However, the court observed that there was no evidence that the Respondent had authorised the adaptation of her work, indicating a possible infringement of her economic and moral rights. Nonetheless, the Respondent had not engaged in any actions that would amount to copyright infringement of the Applicant’s musical production. Her protests, including a legal demand letter and objections to the performance, were found to be within her rights as the original author and did not constitute infringement under Section 33(1). The court noted that the Applicant had failed to show that the Respondent had committed any act that would fall within the exclusive control of the copyright holder under Section 26.
Conclusion
The court dismissed the Applicant’s motion for a temporary injunction, holding that although both parties held valid and distinct copyrights—the Respondent in the original essay and the Applicant in the derivative musical production—the Applicant had not demonstrated any infringing act by the Respondent. Consequently, there was no prima facie case with a probability of success, and no basis for injunctive relief.
Ruling available here.