Ontario Appeal Filed in ‘Peeling Back The Mask’ Copyright Case: Miguna v. Walmart Canada et al.

In an earlier post (here), we discussed the story of Miguna Miguna, a Kenyan Canadian who penned an explosive political memoir in 2012, “Peeling Back the Mask: A Quest for Justice in Kenya”, based on his experiences as close adviser to former Prime Minister of Kenya, Raila Odinga, before the pair publicly fell out. As many readers may know, Miguna, a qualified lawyer in both Ontario and Kenya, took the retail giant Wal-Mart Stores Inc. to court in Canada after learning it was offering his book for sale on walmart.com. He also sued Consortium Book Sales and Distribution LLC, a company identified on walmart.com as the publisher of the book.

Before the Ontario Superior Court, Miguna claimed he did not consent to any publication, production, or release of the book by the defendants. The defendants filed motions for summary judgment stating that Miguna had not presented sufficient evidence to the court of primary infringement, secondary infringement and infringement of moral rights, as alleged against them. Justice Graeme Mew agreed with the defendants and granted summary judgment with costs against Miguna. A copy of the decision is available here.

According to the court, there were three issues for determination in the copyright action brought by Miguna, namely; (a) whether the defendants directly infringed Miguna’s copyright in Peeling Back The Mask by printing or reproducing copies of it without his consent; (b) whether the defendants indirectly infringed Miguna’s copyright by distributing selling or exposing or offering for sale copies of Peeling Back The Mask which they knew or should have known were printed, produced or reproduced without Miguna’s consent; and (c) whether the defendants have infringed the Miguna’s moral rights.

With regard to the issues (a) and (b), the defendants argued that there is no evidence of copyright infringement of “Peeling Back The Mask”. They pointed to Miguna’s amended statement of claim in which he asserts that “Peeling Back The Mask” was properly published by Gilgamesh Africa Ltd. (“Gilgamesh Africa”). Gilgamesh Africa’s right to publish the book was provided through a publishing agreement between Mr. Miguna and Gilgamesh Publishing Ltd. (hereinafter “Gilgamesh UK”) which was subsequently assigned by Gilgamesh UK to Gilgamesh Africa. The defendants argue that because Gilgamesh Africa had the necessary rights to print, produce and licence rights to the book, any copy of the book printed or reproduced under the authority of Gilgamesh Africa cannot be an infringement copy.

In this connection, the defendants asserted that they had no reason to believe that they were dealing with a product of copyright infringement. The second defendant argued that it was reasonable for it to rely on representations made by Gilgamesh UK that it had the right to grant to Consortium the various marketing, distribution and sales rights provided for under a Distribution Agreement which it had with Gilgamesh UK (and which, in a schedule, listed Miguna’s book). Thus the second defendant asserted that there was no basis for requiring it to test the representations made by Gilgamesh UK.

It is interesting to note the court’s consideration (or lack thereof) of Miguna’s evidence of the Assignment of Contract to Gilgamesh Africa dated July 12, 2012 which seems to suggest that after the Contract Assignment, there may have been no residual rights that vested on Gilgamesh UK, hence the latter may not have been able to assign distribution rights to the second defendant as alleged by the defendants in their pleadings and evidence. Moreover, on January 6, 2013, Miguna alleged that he terminated the publishing contract with Gilgamesh Africa which may be evidence that as of March 2013 when Gilgamesh UK and the second defendant were purporting to enter into a distribution agreement, the validity of such agreement may not entirely unassailable even if Gilgamesh Africa had given them authorization.

According to a recent media report (here), Miguna has this month filed a notice of appeal seeking to set aside Justice Mew’s decision in the Superior Court in its entirety. Among other things, Miguna argues Mew committed several errors of law by failing to correctly apply the Copyright Act and case law as well as the appropriate test for summary judgment.

This blogger will update readers on this developing story.


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