“Sue, Baby, Sue!”: Miguna’s Peeling Back the Mask and the Digital Copyright Infringement Debate

This wouldn’t be the first, second or third time that this blogger has written on the collision between politics and intellectual property. This time, we focus on a controversial new book called “Peeling Back the Mask: A Quest for Justice in Kenya” penned by Mr. Miguna Miguna, a former close aide to Prime Minister Raila Odinga. As many may be aware, on August 4 2011, Miguna was unceremoniously suspended as the PM’s senior Advisor on Coalition, Legal and Constitutional Affairs. Four months later, Miguna was offered reinstatement but categorically turned down the PM’s offer.

A week ago, Miguna Miguna launched “Peeling Back the Mask” which his publishers, Gilgamesh Africa Publishing Ltd. based in London have previewed on their site:

“In his explosive new memoirs, Peeling Back the Mask, Miguna Miguna exposes Mr Odinga’s lacklustre leadership – questioning his progressive credentials and claim that he is an agent of change. The book presents a true insider’s account of the intrigues, discussions and power plays that have occurred in Kenya’s “corridors of power” in recent years. The book depicts a troubled and cowardly leadership undeserving of the praise and attention of recent years. It is a must read for everyone interested in social justice and good governance in Africa.”

In just over since six days since the book’s release, Miguna and his family’s life has been threaten severally, angry protesters in Kisumu County have burnt an effigy of Miguna, the Director of Public Prosecutions has ordered the Commissioner of Police to investigate some of the damaging claims made by Miguna, not to mention the mounting pile of pending libel suits against Miguna by those adversely mentioned in the book.

This blogger has been keenly following this ‘Miguna Storm’ as it moves from criminal law to constitutional law to defamation law to contract law and now it has entered the realm of intellectual property law. Today, local media reports indicate that Miguna intends to sue Nation Media Group for copyright infringement of his book, which leaked online 3 days ago and has been hosted on various sites including blogger Robert Alai’s BidiiAfrika.

The question on everyone’s mind must be: Would a copyright infringement suit against NMG be successful?

In an interview today with local media, Dr. Marisella Ouma, Executive Director of KECOBO, addresses Miguna’s protest over copyright infringement of his book and clears up important aspects of copyright law in Kenya. In the same vein, IPKenya would like to quickly throw in his two cents on this debate.

Why is Miguna suing NMG?

A basic understanding of copyright law tells us that Miguna and Gilgamesh Ltd. are the copyright owners of the book as author and publisher, respectively. Therefore Miguna and Gilgamesh Ltd. can sue any person or entity that does anything which is reserved as part of the exclusive rights of a copyright owner including: “reproduction in any material form of the original work or its translation or adaptation, the distribution to the public of the work by way of sale, rental, lease, hire, loan, importation or similar arrangement, and the communication to the public and the broadcasting of the whole work or a substantial part thereof, either in its original form or in any form recognizably derived from the original” (see section 26 of the Kenya Copyright Act, 2001)

Therefore obtaining a .pdf copy of a book and uploading it online aka ‘leaking it’ would amount to ‘reproduction’ and/or ‘distribution’ as envisaged in the Copyright Act (needless to say, our Act continues to play catch-up with technological developments). Also, this would mean that even IPKenya and others, who received a .pdf copy of this book via email and subsequently forwarded that email to others, could be guilty of copyright infringement. However, law school teaches us that the plaintiff in any case always sues the deepest pockets! So, I guess we’re all safe, except NMG of course. Without doubt, no pockets are deeper than NMG’s and the existence of an underlying agreement between Miguna and NMG makes NMG the most likely culprit of the book’s leak.

How does Miguna go about proving copyright infringement on the part of NMG?

There are two types of copyright infringement: primary or direct infringement and secondary or indirect infringement. Primary or direct infringement is where the infringer commits any of the acts specifically designated in section 26 of the Act as acts, the doing of which, or the authorisation of which, in relation to the particular work is the sole prerogative of the copyright owner.
An infringement of copyright is indirect or secondary where the infringer, although not actually committing any of the acts designated in section 26, still knowingly does something to further the commission of any of these acts.

Therefore to commit direct/primary infringement, the infringer does not need to know that he/she/it is infringing copyright. Thus, knowledge or ‘mens rea’ (‘guilty mind’) is not a requirement for primary/direct infringement but it is however a requirement for secondary/indirect infringement.

A three-pronged methodology helps in proving infringement: a) Similarity, b) Causal connection between original work and infringing copy; c) Copyrightability of infringed work:

a) Similarity between original work and infringing copy: the question to be asked here is whether there’s objective similarity between the electronic copy of the book given to NMG by Miguna strictly for serialisation purposes and the .pdf copy that is doing the rounds on the internet?

b) Causal connection between original work and infringing copy: the first question to be asked here is whether Miguna can prove that NMG had access to his book? The answer is clearly, yes. NMG and Miguna entered into a serialisation agreement whereby NMG received a copy of the book from Miguna for purposes of publishing a series of articles on the book prior to its launch. the second question is whether Miguna can prove that NMG either directly or indirectly are the source of the book leaking on the internet?

c) Copyrightability of the original work: the question to be asked here is whether Miguna’s work is itself copyrightable? Again the answer is clearly, yes. Under copyright law, the book is considered as literary work (irrespective of its quality) and is protected as such.

What is Miguna’s likelihood of success in a copyright infringement suit against NMG?

As explained above, the onus of proof is squarely on Miguna to show that NMG were responsible for the book finding its way online without the publisher’s or his permission. An onerous burden indeed!
If Miguna is successful in his copyright infringement suit, he may be handsomely rewarded in terms of damages. Earlier, Robert Alai tweeted that over 42,000 copies of Miguna’s book have been illegally downloaded from his site alone resulting in over 138.6 million shillings in losses from book sales (the book is retailing at about 3,300 shillings in bookshops).
Presently, this number of downloads must be well over 100,000.

This blogger is not sure whether to believe that Miguna is on holiday (as he claims) or he’s gone into exile (as is widely believed) but the book is clearly staying put and will be the subject of copyright for as long as his enemies or natural causes allow (plus fifty years, of course).