IP Case Law library

Facts

J. W. Seagon, an insurance broker in Kenya, developed a unique insurance policy called the Safari Plan Policy for the hospitality industry in 2014. They employed Mr. Jeremy Clayton to create this policy, which went through several stages of development with input from various parties, including Unigraph Design and THB Group. The final policy was completed in February 2015, and J. W. Seagon entered into an agreement with ICEA Lion for the policy.

J. W. Seagon claims that their Safari Plan Policy was the basis for a unique insurance product, boasting features like worldwide coverage, all-risk protection, and high liability limits. They allege that a competing product called Safari Shield, launched by the Defendants, is essentially a copy of their Safari Plan Policy.

In the lawsuit filed in December 2016, J. W. Seagon sought a permanent injunction against the Defendants from using, selling, or distributing the Safari Shield Insurance Policy, delivery and destruction of infringing copies, general damages for copyright infringement, interest, and costs of the legal proceedings.

Brian K. Rop, a Group Business Manager at Liaison Group (I.B) Limited, and Liaison, an insurance broker in Kenya, formed a joint venture with Satib Insurance Brokers PTY Limited, a South African broker specialising in tourism. They developed the Satib Safari Shield Policy, bundling tourism insurance products, and engaged Jubilee Insurance Company Limited to underwrite the policy. They argued that Lion of Kenya Insurance Company had introduced a similar policy called "Simba Safari Cover" in 2010, challenging J. W. Seagon's claims of originality, and denied copying J. W. Seagon's policy, stating insurance policies aren't typically copyrightable, with industry expressions being standard.

Jubilee Insurance Company, a defendant, stated it has its own "Tour Operators Liability Policy", dismissing the need to copy J. W. Seagon's policy. They argued the doctrine of merger, stating that when an idea and its expression have limited ways of being expressed, it's not copyrightable, and that this applies to insurance policies. Jubilee also argued that insurance policies are contracts, citing Cannon Assurance (K) Limited v Mohansons Food Distributors Limited, and that the Copyright Act doesn't mention insurance policies in its list of literary works, but excludes written law and judicial decisions, so contracts are more akin to excluded legal documents than included literary works.

Issues

1. Whether the Safari Plan insurance policy has copyright?
2. Whether the Defendants infringed on the copyright?

Rule

Article 2(6) of the Berne Convention - 'The expression "literary and artistic works" shall include every production in the literary, scientific and artistic domain, whatever may be the mode or form of its expression, such as books, pamphlets and other writings; lectures, addresses, sermons and other works of the same nature; dramatic or dramatico-musical works; choreographic works and entertainments in dumb show; musical compositions with or without words; cinematographic works to which are assimilated works expressed by a process analogous to cinematography; works of drawing, painting, architecture, sculpture, engraving and lithography; photographic works to which are assimilated works expressed by a process analogous to photography; works of applied art; illustrations, maps, plans, sketches and three-dimensional works relative to geography, topography, architecture or science.' (The list is not closed or exhaustive.)

Black's Law Dictionary's definition of the merger doctrine - the merger doctrine implies that if an idea can only be expressed in a limited number of ways, the expression and the idea are considered merged, and copyright protection cannot be extended to the expression. This prevents the monopolisation of ideas and ensures that fundamental concepts remain accessible for public use.

American Family Life Assurance Company of Columbus - certain parts of insurance policies cannot be copyrighted because of the doctrine of merger, including definitions, limitations and exclusions.

Section 22(3) of the Copyright Act 2001 - a literary, musical or artistic work shall not be eligible for copyright unless sufficient effort has been expended on making the work to give it an original character, and the work has been written down, recorded or otherwise reduced to material form.

Press Limited v University of London Tutorial Press - Copyright Acts are not concerned with the originality of ideas but with the expression of thought and, in the case of literary work, with the expression of thought in print or writing. The originality required relates to the expression of thought, but the Act does not require that the expression be original or novel in form, only that the work must not be copied from another work and should originate from the author.

Feist Publications Inc v Rural Telephone Service - original, as the term is used in copyright, means only that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. The requisite level of creativity is extremely low, even a slight amount will suffice. Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous and not the result of copying.

Analysis

The court's decision was heavily influenced by the merger doctrine, which posits that an expression cannot be copyrighted if it is the only way, or one of the few ways, an idea can be expressed. This is particularly pertinent in industries like insurance, where the language used must often adhere to regulatory standards and practical realities, limiting the scope for originality. The court also leaned on Section 22(3) of the Copyright Act 2001, which emphasizes that a work must possess an "original character" and be sufficiently documented or recorded to qualify for copyright protection.

In examining the Safari Plan Policy, the court found that it did not exhibit the necessary level of creativity or originality, as it was largely a compilation of existing insurance practices and terminologies commonly used within the industry. This aligns with the reasoning in Feist Publications Inc v Rural Telephone Service, which sets a very low bar for creativity but requires that the work not be directly copied from existing materials. The court concluded that the policy, while perhaps unique in its compilation and specific application to the hospitality industry, did not meet the threshold of originality required for copyright protection.

The court's application of the merger doctrine and its stringent requirement for originality could be seen as overly restrictive, especially in technical fields like insurance where innovation often lies in the novel application of standard practices rather than in the creation of entirely new expressions or terminologies, potentially discouraging professionals from developing specialized products.

Conclusion

The Plaintiff failed to make out its case; the suit was dismissed with costs to the Defendants.

Judgement to be found here.