Introduction 

In our last episode, we delved into possible defences to copyright claims covering, inter alia, the doctrine of fair dealing, incidental inclusion and public domain defence. In case you missed that, you can read it here. In this episode we discuss the possible consequences that a copyright infringement claim may have on an entity or an individual. We also provide practical guidelines for avoiding or minimising such claims.

Copyright infringement claims can be so damaging for an entity or an individual. Such claims can result in payment of hefty copyright damages, disruption of an entity’s day to day activities and even criminal sanctions. Some of such consequences are discussed below.

1. Monetary Damages for Copyright Infringement

Several entities that have faced copyright infringement claims have been slapped with huge monetary damages. Christ is the Answer Ministries (CITAM) is the latest entity to be slapped with huge monetary damages for copyright infringement after being found to have infringed on a vernacular artist’s song. The church was ordered to pay Kshs 1,500,000 in damages. Huge monetary damages would, most probably, impose unnecessary and punitive financial obligations on an entity. This may lead to disruption of that entity’s financial planning.

2. Copyright Injunctions and Court Orders

Injunction orders, provided for by section 35D of the Copyright Act, are usually issued to stop the infringing act from continuing. This may be highly detrimental as the orders effectively stop any action that the affected entity may be undertaking. 

The Act allows the court to grant any of the following injunction orders:

1. An order requiring a person enabling or facilitating the infringement of copyright, or whose service is used by another person to infringe copyright, to cease such enabling or facilitating activity or disable that person’s access to its service for the infringing purpose
2. An order requiring a person hosting or making available an online location, service or facility situated in or outside Kenya which is used to infringe copyright or which enables or facilitates the infringement of copyright, to disable access to such online location, service or facility as replaced, amended or moved from time to time;
3. An order requiring an internet service provider to prevent or impede the use of its service to access an online location, service or facility situated in or outside Kenya that is used to infringe copyright as replaced, amended or moved from time to time.

3. Destruction Order & Takedown Notice

 A destruction order is a court order for the destruction or other reasonable disposal of all infringing copies of a work.

A takedown notice is an order written to an internet service provider requesting that an infringing copy be removed from the service provider’s website. This may result in loss of a work that the affected party had worked for very long time.

4. Anton Piller Orders 

These orders, provided for by section 37 of the Act, allows a court to grant orders it considers necessary for preservation of a copyright work. These may include permitting a copyright owner to enter the infringer’s premises to seize and keep records, data, documents, and materials relating to their copyrighted works. This may not only disrupt normal operations but also risk leaking of sensitive information of the affected organisation subject to the order.

This order may be granted ex-parte. This implies that a party may have no say as whether such orders will be granted against them. The only recourse that would be available, in this case, is appeal which may take some time given the slow nature of our judicial system. By the time the appeal is determined, even if it succeeds, an irreparable damage would have already been done.

It is worth noting that anton piller orders will only be issued if the applying party satisfies the court or the copyright tribunal that;

• He has a cause of action against another person which he intends to pursue;
• The other person has, in his possession, documents infringing copies or other things of whatsoever nature which constitute evidence of great importance in substantiation of that cause of action; and
• There is the real and well-founded apprehension that the documents, infringing copies or other things may be hidden, destroyed or rendered inaccessible before discovery can be made in the usual way

5. Criminal Sanctions for Copyright Infringement

Section 38(7) of the Act sanctions copyright infringement with a fine not exceeding five hundred thousand shillings, or an imprisonment for a term not exceeding four years, or both. 

For infringements by body co-operates, the Act sanctions every person who at the time the offence was committed was in charge of or was responsible to the body corporate for the conduct of its business and affairs. Such persons may be subjected to criminal prosecutions. The impact of hefty fines and imprisonment on an individual or an entity cannot be overstated.

In order to avoid the above legal risks, one may consider doing the following:

• Verify copyright status: Check whether a work is in the public domain or protected by copyright before using it. The following works are considered to be in the public domain: works whose terms of protection have expired; works in respect of which authors have renounced their rights; and foreign works which do not enjoy protection in Kenya. Learn more about public domain works in Kenya
• Use licensed or open-source material: Opt for content available under Creative Commons or other licensing agreements. License to use copyrighted work has to be in writing and signed by the copyright owner or his or her assignee(s).
• Cite sources and seek permission: When in doubt, credit the creator and/or request permission to use their work. The essence of this is to recognize the copyright author/owner. When duly recognised, the act bars the author/owner from pursuing copyright claims against any such person that duly recognizes them.
• Transform instead of copying: Create significantly different content to create new meaning rather than duplicating or closely copying existing material. This will only act as protection if the copied work is incidental, so insignificant to warrant copyright protection.
• Understand fair use limitations: If claiming fair use, ensure that your use aligns with legal guidelines and does not harm the original creator’s market. The author/the owner must also be recognised even in cases of fair use of the copyrighted work.

Conclusion 

Copyright infringement claims always have very detrimental consequences as we have discussed above. A copyright claim may lead to hefty damages, disruptions of operations among others already discussed above. It is therefore necessary that one takes appropriate measures to minimise the possibilities of being slapped with such claims. Licensing, verification of copyright status, recognising the author are some of the due diligence measures that one may undertake.

Having extensively discussed copyright infringement in a couple of our previous episodes, in our next episode we discuss the concept of creative common license. This is a license issued by a copyright owner allowing the public free use of his or her work. 

Stay tuned.