Law Society Publishes Article Plagiarised by Law Professor: Copyright Issues in Wachira Maina v. PLO Lumumba Dispute

cover of the law society of kenya journal volume 11 2015 number 1 lawafrica

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.

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Government Invites Public Views on Liability of Online Intermediaries for Copyright Infringement

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In recent media reports here and here, Kenya Copyright Board (KECOBO) reveals that it has proposed draft legal provisions to deal with the liability of internet/online intermediaries. KECOBO Chief Legal Counsel (CLC) has been kind enough to share with this blogger a copy of the proposed draft legal provisions available here. KECOBO CLC has also indicated to this blogger that there are plans underway to hold a public forum in the coming months to discuss the draft provisions and receive comments from the public.

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Intellectual Property and Public Events: Rights of Organisers, Participants and Third Parties

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I am hesitant to believe the Defendants’ argument on the issue of intellectual property rights to the event since the traditional common law view that has prevailed is that it is difficult to attach ‘any precise meaning to the phrase “property in a spectacle”. A spectacle in this case refers to an event. A “spectacle” cannot, therefore, be “owned” in any ordinary sense of that word. – Mabeya J. in AMCIL v Joseph Mathenge Mugo & ABMCIL HCCC 242 of 2013 at paragraph 29.

In the recent case of Africa Management Communication International Limited v. Joseph Mathenge Mugo & Access Business Management Conferencing International Ltd. HCCC 242 of 2013 (hereafter the HR Symposium case), Justice Mabeya held that there are no intellectual property (IP) rights in a spectacle or event dubbed “Human Resource Symposium”. In holding that there is no IP in a spectacle, Justice Mabeya cited the Australian case of Victoria Park Racing and Recreation Grounds Co. Ltd v. Taylor (1937) (hereafter the Taylor case) where Latham CJ stated that: “The law of copyright does not operate to give any person an exclusive right to state or to describe particular facts. A person cannot by first announcing that a man fell off a bus or that a particular horse won a race prevent other people from stating those facts.”

Read the rest of this article here.

Intellectual Property and Outdoor Advertising in Kenya

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Businesses often spend much time and money to create a successful advertising campaign. It is important to protect your intellectual property (IP) assets, so that others do not unfairly copy or free-ride upon your innovative creations.” – Lien Verbauwhede, WIPO.

Like in many parts of the world, the advertising sector in Kenya is the new battle-ground upon which businesses compete to creatively and uniquely pass on relevant information to customers so as to facilitate and positively influence their buying decisions. It is generally agreed that for an advertisement to be effective, it must first get noticed, and then be remembered long enough to persuasively communicate the unique selling proposition of a product or service, so as to make potential customers into actual ones. Outdoor advertising, in particular, is considered a cost effective way of giving messages the maximum exposure. Outdoor advertising includes billboards, outdoor signs, printed messaging, street banners, posters, brochures etc.

This blogger has noted an increase in the number of creative new outdoor advertisements by both medium-sized and large companies leading to a surge in the number of billboards along streets, highways in urban areas. Billboards are so far the preferred medium for outdoor advertising. there are several types of intellectual property rights that are involved in billboard advertising. For instance, most of the creative content on the billboard (writing, pictures, art, graphics, lay-out) may be protected by copyright along with any advertising slogans which may also be protected by trademark law.
In addition, industrial design law may be crucial for protection of billboards. Industrial designs cover the three dimensional form of billboards provided that such form gives a special appearance to a product of industry and can serve as a pattern for a product of industry. In the case of ENG Kenya Ltd v Magnate Ventures Ltd (2009), both the plaintiff and defendant carried on business in the outdoor advertising sector and the plaintiff alleged that the defendant had infringed on the plaintiff’s design for ‘suburban signs’. The court held that the registration of the plaintiffs’ design at the Kenya Industrial Property Institute (KIPI) was proof enough that the design was unique and capable of registration. The plaintiff could therefore claim exclusive right to the design. The court further stated that the defendant copied the plaintiffs’ design in bad faith.

For printing and branding companies, it is important to be very conscious of IP issues in their various advertising solutions. In this regard, the case of Alternative Media Ltd v Safaricom Ltd (2004) is instructive. The plaintiff, who is in the business of advertising graphic designing and media communication solutions, sued the defendant claiming copyright infringement on the plaintiff’s design that it had submitted to the defendant as a proposal to be used on the 250 airtime scratch cards. The court held that the defendant had indeed infringed on the plaintiff’s rights under copyright law because the design they used on their airtime scratch cards was substantially the same as the one submitted by the plaintiff to them as a proposal.

Another exciting area of outdoor advertising is transit advertising. This blogger has previously highlighted the Triple P Media project which involves advertising fused with high-quality custom-made audio and audio-visual content playing in public service vehicles (PSVs) countrywide, in addition to other public places like supermarkets, malls, banking halls, bars, clubs, restaurants etc. There is also the promising innovation by FlashCast Ventures, who have developed a method of scrolling advertisements via LCD displays installed in PSVs. These LCD screens are fitted with global positioning system devices hence messages are programmed to be location specific. This means it is possible to preset a commercial on a supermarket to run when the bus is within its proximity and broadcast special offers, promotions, and goods available. Although geo-local transit advertising may not meet the threshold of absolute novelty required for patent protection in Kenya, there may be other aspects of FlashCast that may be patentable or eligible for industrial design and utility model protection.

 

Election Campaigns and Copyright Infringement

It’s election year again for both Kenya and the United States. And with election year comes campaign posters, slogans, colours and logos. Today IPKenya’s attention was drawn to an interesting case of appropriation involving the photograph of a well-known freelance photographer that was used in a gubernatorial candidate’s campaign poster.

Evans Kidero, a rising public figure, is running for Governor in this year’s elections. On his official facebook page, the following poster is at the centre of the controversy:

Mutua Matheka, better known on twitter as “@truthslinger“, is passionate about photography and has taken amazing shots of people, places and things all over Kenya. Take a look at one of his photos of the Nairobi sky-line:

It is immediately apparent that the skyline in Kidero’s poster is identical to that in Matheka’s picture. Initially it was “@Mwirigi” that spotted the infringement and alerted Matheka (“@truthslinger”) about it:

This Matheka – Kidero story reminded me of the copyright dispute over Obama’s “hope” poster in the last US elections. But the major difference is that unlike the AP, Matheka is in a much stronger position to claim copyright infringement of his work. In other words, Fairey’s poster would pass the subjective and objective tests for copyright infringement, while the Kidero’s poster obviously wouldn’t as the Matheka’s photograph was used without any modification or transformation, other than some cropping.

Although Fairey’s poster was based on an AP photograph, he substantially transformed it from a work of photo-journalism into a mixed-media stenciled collage depicting Mr. Obama on a red, white and blue field. Therefore Fairey argued that his work was protected by the exceptions and limitation of copyright (‘fair use’) and it is indeed an original and creative work. Kidero and his campaign team cannot make such an argument in respect of their poster therefore they are likely to be accused of copyright infringement.

Fortunately for Kidero, Kenyans are not as litigious as they ought to be especially in protection of their IP rights. When Matheka was asked via twitter whether he intends to sue Kidero, he replied:

“I should be meeting him (Kidero) sometime next week. In the meantime, he has apologised and pulled down the poster.”

IPKenya hopes that politicians and their campaign teams will learn to be careful and ethical in how they go about branding their candidates because after all, the public is always watching!