Principal magistrate H. M Nganga on Thursday awarded popular musician Nonini formally Hubert Nakitare, Ksh4 million for a copyright infringement case against an influencer and a company manufacturing television sets.
The judgement delivered in commercial court is a landmark ruling for content creators in the country as Kenya picks up pace on monetising creative content.
The judge, while delivering the judgement virtually through Microsoft teams video link, declared that the defendants were liable for illegal publishing and directed that profits made from the infringement be recovered. He further ordered them to beat additional interest costs.
The case revolves around a video posted on social media featuring a snippet of Nonini's hit song, 'we kamu.' The video was also reposted on Facebook by the second respondent, a commercial company that had solicited the influencer's services as a content creator.
A screenshot and snippet of the video played in court was drawn from the corporate client's social media platforms and not the influencer's.
According to the judge, the song, 'We Kamu' played throughout the skit as the sound track and was distributed by both defendants.
The influencer captioned the post in credit of the corporate products. The corporate is listed as a second respondent.
Nonini was aggrieved arguing that he had not authorised the use of his song for the commercial engagement post and had suffered loss and harm.
In his defence, the influencer had stated that he made the video without any music in the background at the time of the creation. He told the court during cross examination that he submitted the video with its natural audio and was not synched to the music. He, however, did not have a copy of the original video he submitted in evidence.
He admitted that the content in the video fit with the music used, but said that the company looked for the song to fit the visual content.
He further asserted that he could not control what the client who asked him to make the video posts, adding that he was not their agent.
The judge was satisfied that Nonini was the owner of the music copyright that was published in a video without seeking his licence.
"In the circumstances, I will award the Plaintiff the sum of Ksh. 4,000,000 as general damages for infringement of his copyright." read the judgement in part.
Nonini was however denied the prayer for aggravated and punitive damages as the judge felt that the critical threshold to validate these charges in Kenyan law had not been met.
In lieu of awarding damages, the court decided to grant compensation based on a reasonable royalty. This amount was calculated to reflect the hypothetical fees a licensee would have incurred for utilizing the work.
This decision aimed to provide a fair assessment of the value of the work in question, simulating the financial arrangement that would have occurred in a licensing scenario.
