It is crucial to note that the Copyright Act protects the expression of ideas and not the ideas themselves. This notion is underpinned by the need for the public to benefit from already existing creative ideas and utilizing them in creating their own ideas.
Cases involving copyright infringement have been on an extreme rise especially with the evolution of the internet and increased social media usage. The greatest concerns have involved activities such as music piracy and unauthorised use of music, creative videos and photographs for commercial gains.
Understanding the legal safeguards against copyright infringement is valuable for both the owners of creative works, influencers and commercial enterprises. There are various reported cases where influencers and commercial entities were ordered to compensate artists for using their music audios without prior permission. It is therefore essential that a copyright holder understands the remedies available against copyright infringement while all other individuals acknowledge the risks associated to unauthorised use of creative work.
Definition of Copyright Infringement
Section 2 of the Copyright Act defines infringement as an action that violates the rights covered under the Act. Section 35 expounds the definition by pointing out that infringement involves the utilization of creative work without the copyright holder’s license or express authority. The scope of infringement extends to the manipulation of technological measures implemented to protect creative work for commercial gain.
The Manner of Instituting a Suit Based on Copyright Infringement
The provisions of the Civil Procedure Act and the Civil Procedure Rules, 2010 apply to suits emanating from infringement of copyrights. A copyright holder may thus file the suit in the Magistrates Court or the High subject to the pecuniary nature of the reliefs sought. The suit is mainly instituted through a plaint and may be accompanied by a notice of motion application where the plaintiff seeks interim measure to prevent further infringement.
The Courts apply three-fold criteria in order to determine whether a suit for infringement is merited. The criteria are as follows:
- Establishing the similarities between the plaintiff’s and defendant’s work;
- Identifying whether there is substantive evidence to establish that the defendant had access to the plaintiff’s work; and
- Establishing whether the plaintiff’s work is copyrightable.
Remedies Against Copyright Infringement
The remedies against copyright infringement are set out under section 35 (4) of the Copyright Act. Prior to seeking any of the remedies, the copyright owner must issue a notice of the intention to pursue legal redress to any exclusive licensees or sublicensees. The objective of the notice is to afford the exclusive licensee and/or sublicensee a chance to intervene the proceedings and recover damages for the loss occasioned by the infringement.
The remedies include:
(a) Filing a Civil Action for Damages, Injuction or Accounts
The Copyright holder may institute a civil action to seek compensation for the loss suffered as a consequence of the action that infringes on their rights. The court may also grant an injunction to restrain the respondent from the further infringement of the copyright. The copyright holder may also seek for the court to allow them take an account of the commercial benefits that the defendant has gained from infringing their copyright.
The amount of damages available as a remedy against copyright infringement are subject to the circumstances of a specific case. Section 35(4) of the Copyright Act allows the Courts to conduct an enquiry for the purpose of establishing the amount of damages that the copyright holder is entitled to. Section 35 (6) of the Copyright Act further allows courts to award exemplary damages where they are satisfied that the loss suffered owing to the infringement is not solely limited to financial loss.
(b) Anton Piller Orders
The Copyright holder may seek a court order allowing them to enter the Defendant/infringing party’s premises for the purpose of seizing and collecting materials related to the copyrighted work. The conditions for grant of Anton Piller Orders were first illustrated in Anton Piller KG v Manufacturing Processes Ltd.
They are:
(i) the Plaintiff case must be merited on the face of it;
(ii) the damage, potential or actual, must be very serious for the Plaintiff; and
(iii) there must be clear evidence that the Defendants have in their possession incriminating documents or things, and that there is real possibility that they may destroy such material before any application inter parties can be made.
A copyright holder’s application for Anton Piller orders should be made under section 3A of the Civil Procedure Act and Order 40 rule 10 of the Civil Procedure Rules 2010.
(c) Delivery of Infringing Copies or Items
Section 35 (4) (b) allows a copyright holder to seek orders directing the Defendant to deliver any items in the Defendant’s possession which to the court’s satisfaction, infringe upon the Plaintiff’s copyright. The Courts may grant an order for delivery of infringing copies on two instances. These are:
(i) preventing a likelihood of copyright infringement where it has been established that the Defendant is in possession of articles intended to be used in copyright infringement; or
(ii) preventing any further copyright infringement where the infringement has already occurred.
(d) Award of Reasonable Royalties
Section 35 (4) (c) allows a copyright holder to seek orders for the calculation of reasonable royalties that would have been obtained from licensing the infringed work. The courts have the discretion of ordering that an enquiry be conducted to aid in the calculation of the royalties that the Defendant would pay as a licensee.
EXCEPTIONS TO INFRINGEMENT
The Second Schedule to the Copyright Act lays out various limitations to rights accruing to a copyright holder. Any conduct that falls within the purview of actions specified under the schedule does not amount to infringement. Some of the exceptions are:
(a) The concept of incidental inclusion
Clause 1 (f) of the schedule stipulates that the exclusive rights under section 26 do not extend to
‘the reproduction and distribution of copies or the inclusion in an audiovisual work or broadcast, of an artistic work situated in a place where it can be viewed by the public’.
The Courts have expounded on the concept of incidental inclusion in determining what amounts to copyright infringement in instances where copyrighted work is utilized in an advertisement. The Court of Appeal elaborated this test in Nairobi Map Services Limited v Airtel Networking Kenya Limited & 2 others [2019] eKLR. The Appellate Court held as follows:
“Copyright in a work is not infringed by its incidental inclusion in an artistic work. In other words, secondary or subordinate use to the primary objective is not copyright infringement.”
(b) An action that amounts to fair dealing
Fair dealing relates to actions such as reproduction of portions of works for academic, research, review or criticism purposes. The defence of fair dealing applies to advance was analysed by the Supreme Court in Communications Commission of Kenya & 5 Others V Royal Media Services Ltd & 3 Others, [2014] eKLR. The apex court held that what amounted to fair dealing was to be considered on a case-to-case basis. The Supreme Court cited the decision of the Supreme Court of Canada in CCH Canadian Ltd. v. Law Society of Upper Canada where it was held that the various criteria for determining fairness included:
- The purpose of the dealing;
- The character of the dealing;
- The amount of the dealing;
- Alternatives to the dealing;
- The nature of the work; and
- The effect of the dealing on the work
The Supreme Court reiterated the essence of fair dealing as explained by the United States Court of Appeal in Russell Brammer V Violent Hues Productions, LLC. The Court held that the defence served the purpose of advancing the progress of science and useful arts. The Court stated that the defence did not serve to protect lazy appropriators from an action of infringement. However, the defence was only available to facilitate a class of uses that would not be available if the users had to negotiate with the copyright owners. In affirmative the court stated that,
“The ultimate test of fair use is whether the progress of human thought would be better served by allowing the use than by preventing it.”
(c) The doing of an action by way of parody, pastiche or caricature
The imitation of another person’s creative work or utilization of exaggerated pictures in developing your own creative work does not amount to infringement. Parody is common in comedy and the music industry while pastiche involves imitating previous art work in creative a new art.
