IP Case Law library

Facts

Multichoice Kenya Limited filed an amended Notice of Motion on 28th November 2019, seeking temporary and permanent injunctive relief under Section 35D(2) of the Copyright (Amendment) Act 2019. The application sought to prevent the respondents from using their services to infringe the applicant's copyright. The basis for the application was that despite being served with a takedown notice as per Section 35B of the Act, the respondents failed to comply. The respondents opposed the application, arguing that no basis was laid for calling expert witnesses, and that oral evidence is not typically allowed in applications initiated by Notice of Motion. The court had to determine whether oral evidence could be presented in such an application.

Issues

1. Whether the court has the authority to issue temporary and permanent injunctions under Section 35D(2) of the Copyright (Amendment) Act 2019.
2. Whether a party can present oral evidence/witnesses in an application initiated by way of Notice of Motion.

Rule

Issue 1

Section 35D(2) of the Copyright (Amendment) Act 2019 - provides for injunctive relief to prevent or impede the use of services to infringe copyright, allowing the court to grant temporary or permanent injunctions based on the evidence presented.

Section 35B of the Copyright (Amendment) Act 2019 - mandates service providers to take down infringing content upon receiving a takedown notice.

Issue 2

Olkiomba Limited & 5 Others v The County Council of Narok [2002] eKLR - established that Kenyan courts have the discretion to call for oral evidence, even in applications supported by affidavits, allowing for a flexible approach to evidence presentation.

Republic v The Ministry of Roads & Another, Mombasa Misc. Civ. Application No. 42 of 2011 - held that the court has discretion to allow cross-examination of witnesses in applications to ascertain the truthfulness and accuracy of facts in issue, provided such discretion is exercised judicially.

Analysis

Issue 1: Authority to Issue Injunctions
The court analysed Section 35D(2) of the Copyright (Amendment) Act 2019, which empowers it to issue injunctions to prevent copyright infringement. The applicant's motion for temporary and permanent injunctions was based on the respondents' failure to comply with a takedown notice under Section 35B. The court noted that the respondents did not acknowledge or act on the notice, continuing to host infringing content. The statutory framework clearly supports the issuance of injunctions to protect copyright holders from ongoing infringement, thus providing the legal basis for the applicant's request.

Issue 2: Presentation of Oral Evidence
The court examined the practice of allowing oral evidence in applications initiated by Notice of Motion. Referencing Olkiomba Limited & 5 Others v The County Council of Narok and Republic v The Ministry of Roads, the court affirmed that there are no strict rules against presenting oral evidence in such applications. The court highlighted that the Kenyan legal framework provides broad discretion to call for oral evidence, cross-examine witnesses, and ensure the veracity of affidavits. The court determined that the applicant's request to present expert witnesses was justified given the novelty of the case and the lack of demonstrated prejudice to the respondents.

The High Court balanced the necessity to uphold copyright laws with the need for a fair and evidence-based procedure. The decision to allow oral evidence in the proceedings, although traditionally uncommon in applications initiated by Notice of Motion, reflects a progressive approach towards adjudication in the digital age, where the complexity of copyright infringement often necessitates expert testimony to elucidate technical issues. The court's insistence on adherence to the requirements of the Copyright (Amendment) Act, particularly concerning the takedown notice, illustrates a firm stance on copyright enforcement that aligns with global standards.

Conclusion

The court concluded that it has the authority to issue the requested injunctions under Section 35D(2) of the Copyright (Amendment) Act 2019, given the respondents' non-compliance with the takedown notice and ongoing copyright infringement. Additionally, the court ruled that oral evidence could be presented in an application initiated by Notice of Motion, as there are no hard and fast rules precluding such evidence. The applicant was granted leave to call expert witnesses, with corresponding leave granted to the respondents to present their own expert evidence if necessary.

Judgement to be found here.