In a ruling dated 15th June, 2012 in the case of Njeri Wangari & Another v. Oxford University Press (E.A) Ltd.  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.
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.