IP Case Law library

Facts

The Plaintiff, the Music Copyright Society of Kenya sought an injunction restraining the defendants, Klub House from playing or broadcasting any music either recorded or by a live band. The plaintiffs argued the injunction on grounds that Klub House has continually and unlawfully played through live bands and recorded music which was  copyrighted works of its members. Contrary to the licensing agreement that permits establishments to play copyrighted music.

The defendant through its director stated that the MCSK was not the sole licensing body of copyrights of all musical works in Kenya. The director claimed that Klub House had paid Multichoice Africa Ltd and Kenya Broadcasting corporation copyright fees and television sets respectively. The director stated that they had acquired the requisite fees and granting of the injunction would amount to double taxation.

Issue 

I.Whether Klub House has committed copyright infringement?

II.Whether MCSK is entitled to prayers sought?

Rule 

I.Whether Klub House has committed copyright infringement?

The author of a copyrighted audio work is one who writes, compiles, or composes but copyright can be transferred by assignment. Section 8 and 16 of the Copyright Act.

1. Whether MCSK is entitled to prayers sought?

Halsbury's pp 444-5. The general principles upon which injunctions are granted for the protection of copyright do not differ from those upon which they are granted for the protection of other property. The nature of copyright property, however, makes an injunction a peculiarly suitable and indeed normal remedy.

An interlocutory injunction will not however, be granted where the plaintiff can properly be protected by the defendant being ordered to keep an account of the defendant might suffer irreparable injury from an injunction restraining him from publishing pending that; nor will an interlocutory injunction be granted if the plaintiff has been guilty of undue delay in coming to Court or if his conduct has amounted to acquiescence in the infringement, or there is any substantial doubt at the plaintiff’s right to succeed.”

Analysis 

The court reasoned that the plaintiff did not establish a prima facie case with a probability of success. Klub house would be greatly interfered with if the orders are granted because performances and music are the primary business of the defendant. The damages if any may be accounted for by an order of account. 

The crux of the issue was whether Klub House committed copyright infringement by playing music either recorded or by a live band without proper licensing from MCSK. The defendant's argument that they had paid relevant fees to other entities like Multichoice Africa Ltd and Kenya Broadcasting Corporation raises the question of the extent of MCSK's rights and whether these payments covered all necessary copyright aspects for the public performance of music. The defendant's contention implies a misunderstanding or potential overlap in licensing responsibilities and rights, suggesting that a more detailed examination of the specific rights granted by each entity was needed.

The court's decision to not grant an interlocutory injunction was based on its determination that the plaintiff (MCSK) did not establish a prima facie case with a probability of success. This conclusion appears to stem from the recognition that an injunction would severely affect Klub House's primary business operations, and that any potential damages could be compensated financially, rather than necessitating immediate cessation of the music performances. This approach is consistent with general legal principles that favor the least disruptive remedy that can effectively address the harm.

The court's emphasis on the potential business impact on Klub House if an injunction were granted reflects a pragmatic approach to balancing the interests of copyright enforcement against the operational realities of businesses. However, this might set a challenging precedent where businesses can continue operations that may infringe upon copyrights, provided they can compensate financially later. This could potentially undermine the deterrent effect of copyright law.

The ruling did not clearly address the scope of MCSK's licensing authority versus that of other entities from which Klub House had obtained licenses. A clearer delineation of these scopes in the judgment could help other businesses understand their obligations under copyright law, especially in complex scenarios involving multiple licensors.

While the court adhered to established standards by considering the impact of the injunction and the possibility of compensation through an account of profits, it could be argued that MCSK’s failure to establish a prima facie case was not sufficiently substantiated in the judgment. More detailed reasoning on this point would enhance the transparency of the decision.

Conclusion

The application for interlocutory injunction failed.

Ruling available here.