Copyright Infringement
Royal Media Services Limited v John Katana Harrison [2019] eKLR
Facts
The Appeal challenged a judgement by Hon C. Obulutsa in CMCC No.6161 of 2009, delivered on November 29 2013. The Respondent, John Katana Harrison, (previously the plaintiff) was awarded Kshs 3,000,000 as general damages for the infringement of his copyright in the musical works known as ‘kazi ni kazi’. The Respondent had sued the Appellant, alleging infringement of his copyright by reproducing and publishing it on Radio Citizen and public media without authorization. The Appellant denied the infringement and raised the defence of fair dealing and public interest, stating that the song was used for educational purposes and not for commercial gain.
An injunction was granted against the appellant, from reproducing or using the musical works without the Respondent’s consent. The Respondent was further awarded costs of the suit and interest.
The Appellant advanced five grounds of appeal, challenging various aspects of the judgement, including the award of damages, the finding of copyright infringement, and the consideration of the Appellant’s defence of fair dealing.
Issue
- Whether the trial magistrate erred in finding the Appellant had infringed on the Respondent’s copyright?
- Whether the damages awarded to the Respondent were manifestly excessive?
Rule
Whether the trial magistrate erred in finding the Appellant had infringed on the Respondent’s copyright?
Makube v Nyamoro (1983) - A Court of Appeal will not automatically interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the judge is shown demonstrably to have acted on the wrong legal principles in reaching the findings he did.
Kiruga v Kiruga & Another (1988) - An Appeal court cannot properly substitute its own factual finding for that of trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong.
CCH Canadian Ltd v Law Society of Upper Canada (2004) - Copyright shall be termed as being dealt with fairly depending on the satisfaction of the following criteria
I. The purpose of the dealing
II. the character of the dealing
III. the amount of the dealing
IV. alternatives to the dealing
V. the nature of the work
VI. the effect of the dealing of the work
Analysis
Whether the trial magistrate erred in finding the Appellant had infringed on the Respondent’s copyright?
The Court reasoned that the trial magistrate found that the Respondent was the original composer and producer of the song ‘kazi ni kazi’ and the fact was not disputed. Therefore, by law, the Respondent was the owner of the song’s copyright. The defence of fair dealing, raised by the Appellant, was not expressly recognized in the Copyright Act as a defence to copyright infringement.
The song ‘kazi ni kazi’ was used as a signature tune for a program rather than for educational purposes as claimed by the Appellant. The Court found that fair dealing was not established.
Conclusion
The Appellate Court dismissed the Appellant's appeal for lacking merit. The Court upheld the trial magistrate’s finding that the Appellant had infringed on the Respondent’s Copyright. Additionally, the Appellate court upheld the award of Kshs. 3,000,000 and costs were awarded to the Respondent.
Judgement available here.