In a ruling dated 15th June, 2012 in the case of Njeri Wangari & Another v. Oxford University Press (E.A) Ltd. [2012] eKLR, Judge A. Mabeya dismissed an application for summary judgment in a clear case of copyright infringement filed by an author and her publisher. Read the full ruling here.
The facts of this case were as follows: Njeri Wangari (who some of you may know as “@KenyanPoet” on twitter) is an accomplished author, poet, performer and blogger. Oxford University Press East Africa Ltd. is a leading educational publisher in the Eastern and Central Africa region. It is a branch of the International Division of Oxford University Press.
In May 2010, Oxford published a book titled “Counterpoint and Other Poems” which contained KenyanPoet’s poem titled “Their Eyes” which she had published in an anthology titled: “Mines and Mind Fields: My Spoken Words”, through her publisher, Nsemia Inc. KenyanPoet alleged that the copying of her poem was unauthorised and amounted to copyright infringement therefore she asked the court to award her damages for loss of income together with the loss of income by her publishers. Oxford, on its part, contended that when it published its work in 2010, it was not aware of KenyanPoet’s publication and furthermore it was not aware of the assignment of the latter to Nsemia.
The Court found that Oxford had no defence against the KenyanPoet’s claim of compensation arising from copyright infringement of her poem but held that it could not enter judgment in favour of KenyanPoet. According to the Court, KenyanPoet’s publisher Nsemia had failed to establish that there was assignment of copyright pursuant to section 33 of the Copyright Act. Therefore since the claims of both KenyanPoet and Nsemia were “intertwined”, Nsemia’s lack of locus standi in the copyright suit meant that the entire application for summary judgment had to be dismissed.
Comment
IPKenya spoke to KenyanPoet and she clarified certain issues surrounding the case:
“Oxford University Press (E.A) Ltd got hold of my poem through my blog. This was despite indicating at the bottom of the poem that all copyrights were reserved with the copyright sign. I had also given my names and email address in case anyone wanted to get in touch with me.”
“Oxford University Press (E.A) Ltd claimed that I only signed a contract with my publisher after the poem had been lifted thus my publisher could not claim loss of income. This was not true as I signed a contract with the publisher in 2009 though the book came out in 2010. Oxford’s anthology was published in 2010 as well.”
IPKenya is surprised by this ruling and questions the learned judge’s over-reliance on the apparent lack of an assignment agreement between Nsemia and KenyanPoet to deprive the latter any form of compensation for the unauthorised commercial use of her copyright work. Sadly the net effect of this ruling is that, in a classic case of David versus Goliath, Oxford University Press (Goliath) has gotten away with blatant copyright infringement without paying any compensation for copyright infringement to KenyanPoet (David). It is hoped that the ultimate judgment in this matter will clearly canvass the issues raised above.
IP Kenya 
Seems that the solution is for KenyanPoet to go after Oxford Press on her own. Her publisher can support her case but without being a named party. Clearly KenyanPoet has a claim against Oxford and the problem here seems to be a technicality of the identity of the parties.
Agreed.
KenyanPoet is rightfully acknowledged by the court as the author of the poem but no compensation let alone costs are awarded?
I fear it is the court’s lack of knowledge of copyright principles that led the learned judge to make such a bizarre ruling!
It should have been brought to the court’s attention that KenyanPoet enjoys both economic and moral rights to her copyright work and in the present case both these sets of rights had been infringed upon. On that basis alone, the court would have been able to address its mind to the issue of compensation. This ruling also fails to cognisance of KenyanPoet’s constitutional rights under Articles 11(1), 26 (c), 40 (4), 69(1) (c) and (e) of the Constitution.
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Reliance on the assignment rule to the extent taken by the Judge – is a matter divided opinion, and a formalistic (narrow) interpretation of the law. I wonder what the Court of Appeal would have to say of that. Especially since the learned judge acknowledged the plaintiff as author of the poem in question.
Perhaps we should amend the Copyright Act in future to create a tribunal instead of using the High Court …
Section 48 of the Copyright Act provides for a Copyright Tribunal called the “Competent Authority”. In April this year, the AG appointed a Chairman and four members to sit in this Tribunal. To date, we have not received any word that this Tribunal is in operation.
I’ve discussed the same here: https://ipkenya.wordpress.com/2012/04/09/the-competent-authority-behold-kenyas-new-copyright-tribunal/
Perhaps what we should be considering now is coming up with new Regulations within the Copyright Act that will deal exclusively with the Competent Authority and expanding its current mandate to hear cases relating to copyright ownership disputes.
We are equally baffled by the court’s decision. To claim that Nsemia Inc. Publishers had no loci standi in the matter is incomprehensible to us.
We have a contract signed to publish Mines and Mind Fields, which includes the poem in question. That contract, among others, confers a number of rights with respect to the publication.
We will consult accordingly to ensure we make the right decision in the interest of the author and the publishing business.
http://www.bbc.co.uk/news/world-africa-18694460
Karma, perhaps? 🙂
Sounds to me like someone paid someone else off. No other logical explanation.
Friends,
Having read the ruling closely and talked to our lawyer, here are the facts:
– what the court dismissed was the summary judgement sought given the preponderance of evidence
– a hearing remains open and there will be one later in the year, unless there is settlement prior to the hearing.
Shukrani.
Reblogged this on ProduSoul and commented:
Whooa….
Without doubt the judge erred. As far as I know Copyright is a given. One doesn thave to even register with any authority. The only contention can only come in if 2 people are claiming copyright of the same stuff and so they need to prove who published earlier. This is the only time that registration can come in handy to prove legitimacy. However in an instance where the article was lifted off one’s website which also clearly indicated the copyright information … I am scared but this points to a bigger problem. Are our legal Counsels well equipped to handle Intellectual Property (IP) issues?
I would recommend an appeal in a higher court.
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