Copyright law does not protect artistic work in film

Airtel Shop on Koinange Street.

Did you know that copyright in any works does not include the right to control inclusion of an artistic work in a film or broadcast?

Airtel Kenya used the argument based on the Copyright Act to win a case in which it had been sued for using the Kenya Administrative Map to show its areas of network coverage.

The company is said to have used the map belonging to Nairobi Map Services Limited to stick a pin location in an advertisement aired on television in August 2009.

Court of Appeal ruled that the message on the advert had already been passed to viewers using other illustrations other than the map that acted as secondary to the message.

Incidental

Justice Philip Waki, Daniel Musinga and Gatembu Kairu concurred with High Court Judge Justice Eric Ogola’s decision that inclusion of the map in the advert was incidental.

In the case, Nairobi Map Services Limited had sued Airtel Kenya Limited, ZK Advertising Limited and The Sound and Picture Works Limited for general damages at the rate of $300 per day or its equivalent in Kenya shilling from August 29, 2009 up to a five-year period, punitive damages and costs.

The company filed the case on grounds that the three had infringed on its copyright, an application that saw The Sound and Picture Works Limited argue that copyright to the map did not include the right to control the incidental inclusion of the map in the 30 seconds long advert.

Appeal

The court heard that emphasis was on the information relayed and transferred to the whiteboard; and Airtel’s Network had already been demonstrated by an engineer in the advert.

The High Court dismissed the case and the company lodged an appeal, saying the court was wrong in saying that reading a map is exempted by copyright.

“The critical issue, as already stated, is whether the Judge erred in holding that there was no infringement of copyright because the use of the appellant’s map in the impugned advertisement was “incidental” and therefore protected under Section 26(1)(c) of the Copyright Act,” reads part of the judgment delivered on June 7.