Apuda Ignatius Loyola Vs Fountain Publishers: Ugandan Courts embolden Authors in the Copyright Fight

?Justice Jane Alividza, a Judge of the High Court of Uganda this week handed down a major copyright decision that will impact the author-publishing industry immensely going forward; Apuda Ignatius Loyola Vs Simon Peter Ongodia, the Administrator of the Estate of late Austin Ejiet and Fountain Publishers Civil Suit No. 532 of 2015.

The Plaintiff brought a suit against the Defendants for copyright infringement of his works in “Fountain-Ateso Dictionary” of substantial parts of the work.

Besides Court holding that the Defendants are liable for copyright infringement, finding that indeed the Defendants reproduced and authorized the reproduction of substantial parts of the Plaintiff’s works, I find the decision perhaps ground-breaking to some extent on the following aspects:

What amounts to creating works in the course of employment?

The Defendants had raised a Preliminary Objection that the Plaintiff had no Locus Standi to bring the suit because they had created the said works when they were employed by “The Crusader” and “The Monitor” newspapers and therefore fell within the ambit of Section 8 (1) (a) of Uganda’s Copyright and Neighbouring Rights Act, 2006. This provision vests works produced during the course of employment by an employee and within the stipulated schedule of work of the employee in the employer in the absence of a contract to the contrary.

The Plaintiff admitted to typing out the manuscript on the work computers of “The Crusader” and that he would do so whenever the workload was less. Court based on that “whenever the workload was less” and also the fact that the Plaintiff’s employers then were not in the business of compiling dictionaries or for that matter “Ateso-English” dictionaries to determine that the Plaintiff did not create the works within the stipulated schedule of work as an employee and therefore the copyright in the impugned works vested in him.

This could be a possible ground of appeal for the Court of Appeal of Uganda to interpret what amounts to “works within the stipulated schedule of work” or whether a lesser workload during working hours amounts to work outside the stipulated schedule of works.

Importantly this decision gives us a good interpretation of Section 8 (1) (a) of the Copyright and Neighbouring Rights Act read together with Section 8 (3) of the same following on the heels of Sylvia Nabiteeko Katende V Bank of Uganda Civil Suit No. 443 of 2010 which gave us a fair exposition of Section 8 (1) (b) (It is important to note, however, that the Plaintiff appealed the decision of the High Court in this matter).

Substantiality in Copyright Infringement

One of the principles developed over time to determine copyright infringement over the years is the “Substantiality Test”-copyright infringement can either be of whole or substantial aspects of works.

The Court cited precedents where Courts have pronounced themselves that what amounts to “substantiality” in copyright infringement is more of a matter of quality rather than quantity- “it depends upon its importance to the Plaintiff’s work”.

A qualitative assessment of infringed works however small as a whole should take the day.

An Account for Profits

The Court set the record straight concerning the grant of this remedy. It stated that this remedy is a discretionary equitable remedy that can only be granted as an alternative to damages. So, where Court awards damages, this remedy should not be granted as an additional remedy.

Takeaway for Publishers

Court punished Fountain Publishers with UGX 30,000,000 (Uganda Shillings Thirty Million) in damages. This was because despite receiving both verbal and written complaints from the Plaintiff and his lawyers about the impugned works, something to which Fountain Publishers admitted to at cross-examination, they still adamantly went ahead and published the works.

Publishers have to pay heed to these complaints going forward, investigate and do their due diligence in order to avoid such liability and financial exposure.

This decision is without a doubt a major shot in the arm for writers and authors in Uganda. With the Court’s grant of UGX 50,000,000 (Uganda Shillings Fifty Million) at an interest rate of 8% (eight percent) per annum from the time the cause of action arose in 2009, the fight against piracy and copyright infringement has been greatly emboldened.

On a lighter note, I assisted on this case at some point and I am happy that the client obtained a favourable result.

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