In an Era of Half-Truths, Who Will Speak for the Judges? – Assessing Damages in Copyright Infringement Claims by Sixtus Iwuoha
Prologue
In many countries of the common law, the general deference formerly paid to judges, has been eroded. Attacks on judges have now become commonplace. Many are now made by politicians who see mileage in that course. But beyond politicians, the attacks have been made by the media, public commentators, academics, disgruntled litigants and members of the legal profession, the last omitting to dress up their words in the respect for the judicial office which were formerly obtained.
This commentary is inspired by the recent judgment of the Federal High Court (Lagos Division) delivered on January 16, 2020 in Suit No. FHC/L/CS/1486/2017 – Onyeka Onwenu (MFR) & Anor v. Iroking Limited and incidental blog and social media posts authored by the 1st Plaintiff in respect thereof.
Summary and analysis
At the core of the suit was the allegation of copyright infringement against the Defendant, a digital streaming company who executed a non-exclusive agreement with the Plaintiffs to distribute and monetize the 1st Plaintiff’s body of musical works across several online streaming channels.
With guns blazing, the Plaintiffs sought damages in the sum of NGN200 million (circa USD556,000) in addition to sundry costs totaling NGN2.5 million. The Defendant denied the allegations of infringement and after a plenary trial, the court awarded the sum of NGN500,000 as damages in favour of the Plaintiffs. To the best of my knowledge, neither party has appealed the judgment which effectively determined their respective rights.
In a publication posted on a lifestyle, entertainment and fashion website and a popular photo and video-sharing networking application on February 4, 2020, the 1st Plaintiff recalled her pyrrhic victory and instructively observed that “although the amount of damages awarded to the plaintiffs was only 500k, an indication that Nigerian Judges still lack adequate understanding of intellectual property rights, this is a victory for the Music Industry which should prompt every copyright owner to look into who is selling your music without your permission.”
This unmasked jab at Nigerian Judges is not only without basis but ill-informed on many fronts. Whilst it is debatable that the impetus for the above remark came, in large part, from what has become the order of the day with disgruntled litigants, it has to be conceded that the blatant generalization lacks the heft of statistics. Furthermore, at what point does hard ball become abusive? If football was played without rules but with massive stakes and rewards, how would the gatekeepers’ reprimand those playing the man (i.e. the judges) instead of playing the ball?
Having read the 18-page judgment and trial transcripts, I cannot agree more with the sum awarded as damages. In fact, one could even argue that the court was generous in its assessment of damages. The reasons for this conclusion are primarily three-fold.
Firstly, the Plaintiffs’ suit suffered severe procedural howlers yet to be appreciated by the 1st Plaintiff. For example, following the Defendant’s rebuttal of the allegations of facts in its Statement of Defence and Witness Statement on Oath, the Plaintiffs merely filed a Reply to the defence without accompanying an additional Witness Statement(s) on Oath. The necessary implication of the omission being that the denials and new facts raised in the Defendant’s Witness Statement on Oath remained unchallenged and deemed admitted.
Secondly, the Plaintiffs sought to tender certain computer-generated pieces of documentary evidence which in their opinion/belief will enhance their chances of success but guess what? They failed to comply with the mandatory provisions of Section 84 of the Evidence Act. The Defendant’s objection in this regard was upheld and the documents were marked rejected.
Thirdly, apart from stating the sum claimed as damages for the alleged infringement, the Plaintiffs neither showed how they arrived at the sum nor prove their entitlement to the sum during the evidentiary hearing. Reliance was merely placed on the blanket and abstract provisions of Sections 16 (1) & (4) and 13 (1) of the Copyright Act. The same applied to the sundry costs claimed in the Writ and Statement of Claim. The Plaintiffs regrettably failed to realize that judges do not act like the oracle at Ife, which is often engaged in crystal gazing and thereafter would proclaim a new Oba in succession to a deceased Oba. Judges cannot perform miracles in the handling of civil claims and least of all, manufacture evidence for the purpose of assisting a plaintiff to win his case.
It was common ground between the parties that the duration of the agreement to distribute and monetize the 1st Plaintiff’s musical works will be for a period of 24 months (i.e. March 1, 2013 – February 28, 2015). During this period, the 1st Plaintiff’s musical works generated a meagre sum of USD969 which was paid over and accepted by the Plaintiffs. In addition, the Defendant conceded that the musical works inadvertently remained on only one online channel after the expiration of the agreement. The works were subsequently removed/taken down a year later (in March 2016) when the Defendant’s attention was drawn to same by the Plaintiffs. Hence, the period of infringement was for one year – no more, no less.
With no marker/yardstick to enable it measure the proper and adequate damages, the judge had no option but to rely on the Defendant’s computation. In this regard, the Plaintiffs’ admission that the 1st Plaintiff’s works generated a total sum of USD969 in 24 months was the final nail in the coffin and the smoking gun that the sum claimed as damages was not only bogus but exaggerated. It was on this basis that the judge rightly awarded nominal damages of circa USD1300 for the one-year period of infringement. One may argue that the sum generated in 24 months could have been halved in order to ascertain the correct sum for the period of infringement.
Against this backdrop, the reasoning becomes clear that most Nigerian Judges do not only have an adequate understanding of intellectual property rights, they also know how to apply the salient principles when assessing damages either for breach of contract or infringement of trademark or copyright. Afterall, the same court (although differently constituted) awarded damages of USD16.3 million against Multichoice Nigeria Limited for copyright infringement in 2018. Also, the sum of NGN500 million was awarded against the Government of Cross River State in favour of Copyright Society of Nigeria in 2018 and the sum of NGN10million was awarded against Wema Bank Plc in favour of an American-based Nigerian model, Nneoma Anosike over infringement of her intellectual property. Certainly, this area of law is not a difficult needle to thread for most Nigerian judges.
Epilogue
When copyright infringement occurs, the right owner often feels aggrieved. This may result in a knee jerk reaction of taking steps against the infringer without properly considering what he/she intends to achieve from the exercise.
While one primary aim of infringement proceedings is to have a conclusive judgment from the court of the infringer’s wrongdoing and to prevent further infringement (i.e. an injunction), there is in most cases an equal aim of extracting monetary based remedies. Accordingly, a copyright owner should ideally consider and list down his/her aims in pursuing the matter from the outset, as this would affect the strategy adopted.
In particular, if the infringer has ceased the infringement (e.g. after a cease and desist letter is issued) and all that is left is the pursuit of potential monetary based remedies, the owner should seriously consider from the outset what the likely monetary benefit he/she may be able to achieve out of court proceedings will be. This will help better avoid a situation where an owner goes all guns blazing to pursue the infringement, only to find that while he/she has a judgment (on liability), the monetary benefits (remedies) are insignificant (and were not worth pursuing). For instance, if the monetary benefits (remedies) that could possibly be obtained are not significant (e.g. if the extent of use by the infringer was nominal and there was no real impact on the owner), the owner must carefully consider whether it is worth pursuing litigation since the monetary benefits may not actually outweigh the costs (and time) incurred in dealing with the same.
Sixtus Iwuoha
February 13, 2020
