This blogger has come across a recent ruling by the High Court in Nonny Gathoni Njenga & anor v. Catherine Masitsa & 2 ors Civil Case No. 490 of 2013. In this case, the plaintiffs (Nonny Gathoni and Jane Odewale) applied to the High Court for orders of temporary injunction restraining the Defendants (Catherine Masitsa, Standard Group Ltd and Bauhaus Ltd) from infringing in any way on the plaintiff’s rights under copyright in the literary work registered as “Weddings with Nonny Gathoni” and later televised as “The Baileys Wedding Show with Noni Gathoni”. In particular, the plaintiff sought to have the court restrain the defendants from reproducing, adapting, communicating to the public or broadcasting the whole work or a substantial part thereof either in its original form or in any form recognisably derived from the original literary work.
A copy of the ruling is available here.
According to the learned High Court Judge Ogolla J the main issue for determination is whether the Defendants have infringed on the Plaintiffs’ literary work (as registered at KECOBO and evidenced by a Certificate of Registration issued by KECOBO and presented in court). The learned judge rightly singles out the core contention of the plaintiffs which is that although both parties had their own wedding show, the defendants changed the previous running order of their show by allegedly copying the running order expressed by the plaintiffs in the literary work “Weddings with Noni Gathoni”. The court ultimately finds in favour of the plaintiffs and allowed the orders sought for temporary injunction.
This blogger respectfully submits that the court erred in making this ruling. The point of departure from the court’s ruling is on the issue of whether the plaintiffs can be said to have established that their literary work was infringed by the defendants merely by showing that there was a degree of similarity in the running orders of the two weddings shows.
In the ruling, the court seems to suggest that the infringement of the plaintiff’s copyright work had been established for the following reasons:
1. The plaintiffs produced side by side comparison clips of the plaintiffs’ and defendants’ wedding shows to demonstrate the apparent similarities in the set format or running order. Some may recall that in an earlier ruling in the same case reported here as Nonny Gathoni Njenga & Another v. Catherine Masitsa & Another  eKLR, the plaintiffs sought to produce three (3) DVDs “taken not from one show but a series of shows over a period of time”. In reply, the defendants questioned the admissibility of the DVDs arguing that they were secured illegally and that they “constituted an infringement of property rights.”
The court then ruled in favour of the defendants stating thus:
“In light of the above analysis and having already stated above that the DVDs attached by the Plaintiffs are not accompanied by a Certificate as required under the evidence Act, it therefore follows that the said DVDs are inadmissible as evidence.
However, in the interest of justice, it is my view that the Plaintiffs are at liberty to produce such certificate for the admissibility of the said evidence. When that is done, the Court will be able to examine the evidence and evaluate the probative value of the said DVDs as well as the authenticity. The Respondent has alleged that the DVDs were obtained illegally, however that cannot be ascertained at this stage until the Certificate is filed and the Court is able to determine the source of the DVDs.”
2. The plaintiffs and the defendants had a common denominator: David Kiprono. According to evidence provided by the plaintiffs, Kiprono of JayDay Magic Studios Production Company was retained by the plaintiffs to provide certain services including the production of the pilot for the Weddings with Nonny Gathoni show. Thereafter Kiprono is alleged to have approached the Defendants and pitched to them the Plaintiffs’ concept for a wedding show. In their submissions, the Defendants did not deny knowledge of Kiprono but instead produced a letter by Kiprono addressed to Kenya Copyright Board (KECOBO) disputing the registration by the plaintiffs of the literary work in question.
Respectfully, this blogger submits that at best this ruling is unprecedented as it has now extended copyright protection to television formats and at worst this ruling may have a chilling effect on creative expression in the audiovisual sector. In particular, this blogger contends that the test for infringement within copyright law relates to works within a similar category and not works in different categories as is the case in the present matter.