Finding a Balance in Software Copyright Litigation: Microsoft Cases in Nigeria and Kenya

 

Recently, IPKenya came across the Nigerian Court of Appeal’s decision in the case of Microsoft Corporation v. Franike Associates Ltd. Excerpts from this case are available here.

The Court of Appeal in this case was asked to overturn a Federal High Court decision which dismissed Microsoft’s copyright infringement claim on the following basis:

“the application of the said foreign copyright in Nigeria is subject to a reciprocal extension of protection in accordance with section 33 of the Copyright Act. And in the absence of which this court will not in my view exercise the requisite jurisdiction over the matter. This is premised on the fact that the exclusive jurisdiction of this court pursuant to section 251(1) (f) of the 1999 Constitution is only limited to the listed Federal Enactments and does not extend beyond copyright etc. other than those listed therein. In the instant case, the copyright sought to be protected was established pursuant to a law other than the Federal Enactments listed in Section 251(1) (f) of the 1999 Constitution. There is also nothing before the court to show that there is any reciprocal extension of protection of the copyright in question…”

The Court of Appeal actually upheld this ruling of the High Court; a ruling which clearly flies in the face of well-established international copyright principles, most notably the principle of national treatment.

Under this principle, foreign works are to be granted the same protection as local works by extension of the provisions of the Copyright Act. However in most Anglophone African countries this extension of protection is restricted to copyright protected works from countries that are party to international conventions to which the country in question is a party.

Fortunately, the Nigerian Copyright Commission has recently published a public notice where it rejects this decision of the Court of Appeal and properly states the true position of Nigerian copyright laws vis-a-vis US works:

“For the avoidance of doubt, the Commission hereby reaffirms that in addition to works authored by Nigerians and first published in Nigeria, section 5 of the Copyright Act (Cap. C28, Laws of the Federation of Nigeria, 2004) extends the provisions of the Nigerian Copyright Act to works from over 165 countries (the USA inclusive) that are members of the Berne Convention or other treaties or international agreements to which Nigeria is party.”

With the law firmly on its side, Microsoft will certainly seek to appeal this ruling. IPKenya however feels that the Court would do well to go beyond the present software copyright dispute and address the glowing elephant in the room: piracy. Software piracy on the African continent persists largely because consumers generally feel that genuine software prices are too high and thus prohibitive for most consumers. Software giants like Microsoft Corporation are often accused of not setting prices that reflect the purchasing power and average incomes of their clients in Africa but rather exploit their monopoly position to engage in price discrimination. In this regard, the IP system could be perceived as a tool of oppression that Microsoft and others use to get colossal sums in damages from courts.

Therefore, while the courts have an obligation to uphold the law and recognise the intellectual property rights of multinationals like Microsoft, there is a need to protect software infringers from being unnecessarily punished with hefty fines in the name of damages. In Kenya, the courts have taken it upon themselves on several occasions to step in and prevent Microsoft from using the court process to seek orders that may not be reasonable and/or fair to the opposing parties. (See: Microsoft Corp v. Microskills HCCC 833 of 1999 and Microsoft Corp v. Technoskills HCCC 323 of 1999). The rationale for this need for balance is enunciated in the case of Microsoft Corp. v. Mitsumi Computer Garage & Mitsuminet (Kenya) Ltd where Justice Ringera (as he was) stated:

“In the armoury of the law, there are many veritable weapons to fight injustice. One of the weapons at the court’s disposal is its inherent power to prevent abuse of its process.”

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