By Jude-Ken Ojinnaka
A Federal High Court sitting in Lagos has ordered Coca-cola Nigeria Plc to pay a sum of N3 million to Abdulmumineen Onilemarun as compensation for using his work without his authority or consent.
Justice Daniel Osiagor made the order in the judgement he delivered on the suit filed against both Coca-cola Plc and its bottlers, the Nigeria Bottling Company, accused of copyright infringement on Abdulmumineen Onilemarun’s published work
Coca-Cola and Nigeria Bottling Company (NBC), were dragged to court by Onikemarun over the use of his calendar work on fasting time for Muslims for religious purposes without his authority or consent.
Onilemarun through his counsel, Abdullahi Ibrahim had accused Coca-cola Plc of infringing on his work, by using the calendar work in the Ramadan timing for dawn meal and breaking of fasting in Kwara State, 2014 and 2015, without his consent, licence and assignment.
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In view of the infringement, he had therefore prayed the court to grant him the following reliefs;
“An award of damages of N10 million against the defendants for infringement of copyright by way of unlawfully reproducing, publishing and distributing of his copyright work in the Ramadan Timing for Dawn Meal & Breaking of Fasting for Kwara State, 2014, without his consent, licence and assignment.
“An award of damages of N10 million against the defendants for breach of confidence of secret information and his secret idea for making accurate Ramadan timetable by using the said information and idea in producing Coca Cola Ilorin Ramadan Timing June/July 2015 in the course of their trade as well as for infringement of copyright by way of unlawfully reproducing and publishing of substantial similarity of the plaintiff’s particular method in the copyrighted work of the Ramadan Timing for Dawn Meal and Breaking of Fasting for Kwara State, 2015, without his consent, licence and assignment.
“An order of accounts of profits made by the defendants, in Kwara State, between 29th June 2014 and 28th July 2014 as well as between 17th June 2015 and 16th July 2015.
“An order sharing to him 40 per cent of total profits made by the defendants in Kwara State, between 29th June 2014 and 28th July 2014 as well as between 17th June 2015 and 16th July 2015. And an award of costs of this action against the defendants.”
In response to the suit, Coca-cola Plc and its bottlers, NBC Limited, through their counsel, Peter Agboola, urged the court to dismiss the plaintiff’s (author) suit against them for lacking in merit.
During the trial of the suit, the defendants argued that the said author’s work did not include any literary for which copyright would attach.
They argued that for a work to be eligible for copyright, such work must be original, in that sufficient effort must have been expended on making the work have an original character.
Based on the foregoing, they told the court that, there was no evidence before the court of the original work published by the claimant which they allegedly violated.
They further told the court that they were granted a license by the plaintiff and that the claimant consented to the exploitation of the work and voluntarily assumed the risk.
In conclusion, they submitted that there was no agreement or contemplation of any agreement for compensation because the calendars were not used for any economic purpose but for the educational purpose of the Muslim community during the time of Ramadan.
Delivering judgment in the suit, Justice Osiagor after carefully examining all the submissions made by the parties, all the exhibits tendered and citing plethoras of authorities, raised only one issue for determination; “Whether the plaintiff’s claim of copyright has been proved to deserve protection and be entitled to the reliefs sought?”
In determining the above, the judge held that; “the plaintiff’s suit is founded on his literary work, “Ramadan Timing for dawn meal for breaking of fasting for Kwara State”. Copyright Act by Section 51 recognizes literary works to include: Novels, stories and poetical works, Letters, reports and memoranda, Lectures, addresses and sermons, and Written tables or compilations.
“From the above definition, a compilation of the “Ramadan Timing for dawn meal for breaking of fasting for Kwara State” is a literary work and I so hold.
“Defendant’s argument that the copyright certificate of the Plaintiff does not protect any literary work as non was submitted to the Nigerian Copyright Commission, tiled “Ramadan Timing for dawn meal for breaking of fasting for Kwara State” is very misconceived as Copyright does not inure in Plaintiff’s favour only upon registration.
“It is trite that, Registration of copyright is not a precondition to the protection of the copyright. See Zain Nigeria. TY XTRA Productions Ltd & Anor (2021) LPELRS3534 (CA).
“Moreso, section 1(2)(a) of the Copyright Act. 2004 requires a party to prove that he has expended efforts into the work for him to be entitled to a legal right as the exclusive owner of the work, Paragraphs 26 and 27 of the statement of claim state as follows: “Paragraph 26: the Plaintiff avers that, by mere looking at both timetables, he discovered that, the sahur times (dawn meal times) of defendants’ timetable titled “Ramadan 2014” have holistic similarities with the Plaintiff’s timetable titled, “Ramadan Timing for dawn meal for breaking of fasting for Kwara State etc 2014.
“In response, the defendants pleaded in paragraphs 15 and 16 of the statement of defence as follows: “paragraph 15th the 2nd Defendant denies paragraphs 25, 26 and 27 of the Statement of claim and puts the Plaintiff to the strictest proof of the allegations therein. Specifically, the 2nd defendant denies giving any representation to the Plaintiff to expect any reply, recompense, or payment of any form of money or royalty or any wage, sum, salary, compensation, or any indication of any approval, consent or any form of acknowledgement in cash or in-kind for the production of the 2014 Ramadan Calendar.
“Paragraph 16: the second defendant avers, further to the above, and in denial of the relevant paragraphs of the statement of claims, that the comments to the first draft of the Ramadan Calendar sent to the plaintiff and the ones eventually published were so minimal and no labour, or sufficient efforts were expended by the plaintiff in making comments on the draft submitted by the second defendant. There was no originality in the work as what the plaintiff did was to merely compare the ones available on the internet which was to be published by the second defendant with his lunar dates as speculated by the Muslim clerics. It was in fact copied from the internet over which the plaintiff had no originality.
“From the above averments, it will appear that the very collaborative particulars of the plaintiff’s work copied by the defendant were not effectively controverted in the statement of defence were very evasive and argumentative. In Zenith Bank Plc v. Omenaka & Anor. (2016) LPELR-40327(CA) it was held that the law is well settled that specific allegation of facts contained in an affidavit must be specifically denied as general or bare or banal traverse or denial leaves such allegations of facts as deemed admitted and thus requiring no further proof…”
“Plaintiffs suit is founded on damages for Infringement of copyright, to wit: “infringement of a copyright by way of unlawful reproducing way and unlawful publishing of substantial similarity of his particular method in the copyrighted work of the Ramadan Timing for Dawn Meal & breaking of fasting for Kwara State, 2014 without his consent, license & assignment.”
“There is no singular doubt that the plaintiff’s Exhibit and the defendants produced are replicas of each other. The question the defendants have not been able to proffer an answer to is, “if the plaintiff’s timetable is accessible on websites as claimed?” Why engage the plaintiff to preview and forward the prayer calendar for 2014? Why did the defendants not continue the publication of their old Ramadan timetables allegedly faulted by Plaintiff?
“Section 6(1)(a)(i) of the Copyright Act. 2004 confers copyright in a work to have the exclusive right of doing the following: a. In the case of a literary or musical work, to do, authorize the doing of the following acts: reproduce the work in any material form; publish the work; Thus, the evidential burden is on the defendant to establish that they had the consent or authority of the plaintiff to publish his correct version of the Ramadan Timetable as only the plaintiff has the exclusive right to control the doing in Nigeria of the above acts, no other person can use his work without licence or authorization. I, therefore, find in the plaintiff’s favour and resolve the sole issue in the affirmative.
“The plaintiff is entitled to damages which will fully compensate him for his loss. See the Hebridean Coast (1960) 2 ALL E.R 85. The court awards the sum of N3 million as general damages in favour of the Plaintiff for infringement of his copyright “
