This week, constitutional lawyer Wachira Maina took to his facebook page to express his outrage that his work had been plagiarised by a senior lawyer and professor of law, PLO Lumumba. He begins his lengthy post on social media as follows:
“I am aghast. Prof. Lumumba has gone ahead and blatantly plagiarised my April 20th 2013 article on the Presidential Election and re-published it with the grandiloquent title “From Jurisprudence To Poliprudence: The Kenyan Presidential Election Petition, 2013” in the current issue of the Law Society of Kenya Journal.”
In the comments section, Maina discloses that he has already retained legal representation and that his counsel has written to Lumumba over the issue. For intellectual property (IP) enthusiasts, this blogger reckons that if this dispute ends up before the courts, there will be a number of interesting copyright law questions to be addressed.
The first issue to be addressed by the court is the proper test for copyright infringement. In the case of Nevin Jiwani v Going Out Magazine & another  eKLR, a two-pronged test was used. Firstly the court asked whether the plaintiff had satisfied the court that the works in question are the result of exercise of sufficient labour and skill on the plaintiff’s part which has given them some original character. If the first question is answered in the affirmative, the second limb of the test is whether the defendant has reproduced the plaintiff’s work.
On the first limb, the court in the Jiwani case stated that the question to be asked is whether sufficient labour and skill has gone into the works by way of design and formatting as to confer on them some original character. As regards the second limb, the court asks whether the defendant’s work is not a product of an independent mind working and arriving at the same work as the plaintiff. In the Jiwani case, the court found that it was a case of plain copying and reproduction of the plaintiff’s work including the errors therein. In addition, the court stated that the defendant’s genius is not apparent and the impression that the defendant is a mere ‘copy cat’ is strong in my mind.
Closer to home, readers of this case will recall the case of Anne Nang’unda Kukali v Mary A. Ogola & Another  eKLR where one Masters of Arts (M.A) degree candidate in one university copied another M.A student’s thesis from another university and submitted it as her own work for examination towards the award of a M.A degree. In this case, the court does not set out any test for copyright infringement but merely conducts a side-by-side comparison of the two works and notes that the Respondent reproduced almost word by word the original work of the Applicant save a few words, phrases and references. Similarly, while examining other parts of the infringing work, the court found that the same material content has been reproduced in the Respondent’s work under the same sub-heading with only a few changes in some words and rephrasing of sentences.
This brings us to the present case of plagiarism and copyright infringement by Prof. PLO Lumumba. This blogger has had an opportunity to examine the newspaper article by Wachira Maina and Lumumba’s subsequent article in the Law Society of Kenya Journal (as pictured above). From the available information, it appears beyond dispute that Lumumba’s article amounts to both plagiarism and copyright infringement vis-a-vis Maina’s article.
There are two ways of measuring the extent of copying and plagiarism by Lumumba. The first way is to say that Lumumba’s article has 26 pages in total and 11 of the total pages contain huge tracts of text lifted verbatim from Maina’s article (between pages 13 – 24 of Lumumba’s article). As a result, one might say that 42% of Lumumba’s article is an identical copy of Maina’s article. The second way, and perhaps the more convincing way is to say that Maina’s article contains 5,804 words in total and Lumumba’s article has copied verbatim 3,334 of the total words in Maina’s work. As a result, it clear that 57% of the words in Maina’s article were copied chinese-style by Lumumba in his LSK journal article.
It is highly unlikely that this matter will be contested in court given the glaring evidence of plagiarism and copying without any attribution or acknowledgment of source. However, in the event this dispute ends up in court, it would be interesting to see how the court considers the question of substantiality in the infringement: what amount of copying amounts to substantial copying for purposes of infringement claims?