Red Terror Martyrs’ Families and Friends Association -v.- Elias Asegahegn

Federal Supreme Court Cassation File No. 78856 (December 25, 2012) Volume 14

Holding of the Court:
Publishing and disseminating a three dimensional design on paper without the permission and consent of the owner constitute an act of copyright infringement.
Article 34(4) of Copyright and Neighboring Rights Protection Proclamation No. 410/2004
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Cassation File No. 78856 Tahsas 15, 2005 E.C (December 25, 2012)

Federal Supreme Court Cassation Division
Justices: Teshager G/Selassie, Almaw Wolie, Ali Mohammed,
Adane Negussie, Mustefa Ahmed
Petitioner: ‘Red Terror Martyrs’ Families and Friends Association Respondent: Elias Asegahegn
After examining the case, the court has rendered the following judgment.

Judgment

The case started at the Federal High Court where the current respondent (plaintiff at the High Court) sued the current petitioner as the first defendant and Ethiopian Postal Services Enterprise as the second defendant. In a statement of claim submitted on Yekatit 16, 2002 E.C. (February 24, 2010), the current respondent stated that the first defendant issued a bid announcement to gather designs for the construction of a monument to commemorate victims of the Red Terror, and that after receiving his design in 1990 EC (1998), the first defendant disseminated the design as its own on mass media without announcing the selection of the design.

The suit further stated that the second defendant (Ethiopian Postal Services Enterprise) published and sold 60,000 stamps containing the design for three Birr each, i.e, a total Birr 180,000. The plaintiff (current respondent) claimed in the lower court a compensation of Birr 100,000 for the design, consequential damages of Birr 280,000 and moral damages of Birr 150,000. As preliminary objection, the defendants argued that the suit is barred by period of limitation which was rejected by the Court on Tahsas 12 2003 EC. (December 21, 2010). They also presented alternative defenses on the issue. The first defendant claimed to have been founded in 1995 E.C. (2003) and denied receiving the design that the plaintiff allegedly submitted in 1990 EC (1998). The first defendant also argued that the evidence submitted in support of the statement of claim is not valid and the design on the stamps and that of the plaintiff are different. It also argued that in the absence of contractual or non-contractual relationship with the plaintiff, the respondent’s claim is not acceptable.

On the other hand, the second defendant contended that, the stamps were published following a request from the first defendant and an authorization from the Ministry of Transport and Communication without any knowledge about the bid announcement on its part. It also argued that the design on the stamp and the one claimed by the plaintiff are different and the compensation demanded by the plaintiff is exaggerated.

In its judgment, the court observed that Addis Ababa Human Rights Association for the Prosecution of the Oppression and Massacre Committed by the Dergue issued the bid announcement to which the plaintiff submitted his design. It is also noted from a letter written on Hamle 07, 2000 E.C. (July 14, 2008) that the current petitioner received the design and continued negotiations with the respondent regarding the design. Based on the claims and evidence presented by the parties, the Federal High Court found that first, second and third place winners were to be awarded monetary prize after which the ownership of the designs shall be vested in the Association. The court also confirmed that while the originality of the plaintiff’s design is not contested, the fact that the first defendant sent three designs to be published, including that of the plaintiff’s, is established. The court disregarded expert testimonies which regarded the design on the stamp and the one submitted by the plaintiff as different, i.e. as two and three dimensional, respectively.

Therefore, the court held the first defendant liable of copyright infringement for altering the plaintiff’s design from three dimensional to two dimensional and sending it to the second defendant to be published on stamps. On the other hand, the court found the second defendant not liable because it did not select the plaintiff’s design to be published on the stamps and had no obligation to ensure whether the first defendant had ownership of the design. Therefore, the court ordered the first defendant to pay the minimum amount (Birr 100,000) for moral damages stated under Article 34(4) of the Copyright and Neighboring Rights Protection Proclamation No. 410/2004. The court took into consideration the amount of the prize for the winning design (Birr 12,900.00) and the fact that the plaintiff could not have generated profit if the design was sold to others as the purpose of the design was to commemorate the Martyrs of the Red Terror. Aggrieved by this decision, the first defendant lodged an appeal to the Federal Supreme Court which rejected the appeal in accordance with Article 337 of the Civil Procedure Code.

The petitioner has further lodged a petition to the Cassation Division of the Federal Supreme Court. The petition raises the following:

-The rejection of the preliminary objection is not appropriate as the action brought by the respondent in the lower court was barred by period of limitation stated under Article 1845 of the Civil Code.
-The decision of the courts that held the petitioner liable for copyright infringement is not acceptable since it has been proved by expert witnesses that the design published on the stamps has no relation with the design that the current respondent claims to have copyright on.
The respondent (plaintiff at the Federal High Court) on the other hand argued that the period of limitation should be calculated in accordance with Article 2143(1) of the Civil Code applicable to non-contractual obligations rather than Article 1845 applicable to contracts. In support of this, the respondent argued that because the claim was based on a legal right and the action was brought on Yekatit 16, 2002 E.C. (February 23, 2010), the period of limitation which is 2 years has not lapsed from the date of the copyright infringement on Nehassie 20, 2000 E.C. (August 26, 2008). The respondent also contested the claim that the design on the stamps was two dimensional while his design was three dimensional by stating that any movable or immovable object becomes two dimensional when it is put on paper or photographed.
This court has examined the case in the light of the following issues: – Whether the suit instituted by the current respondent is barred by period of limitation;
– If the suit is not barred by period of limitation, whether the petitioner is liable.
With regard to the first issue, the court observed that despite the absence of clear written agreement, there is a contractual relationship between the parties following the bid announcement by the petitioner and the submission of the design by the respondent to the former. In accordance with Article 1681(1) of the Civil Code, acceptance “may be made orally or in writing or by signs normally in use or by a conduct such that, in the circumstances of the case, there is no doubt as to the party’s agreement”.

This court thus rejected the argument concerning the absence of contractual relationship and it examined the issue of period of limitation in accordance with Article 1845 of the Civil Code. Pursuant to this provision, unless otherwise provided by law, actions for the performance of a contract, actions based on the non-performance of a contract and actions for the invalidation of a contract shall be barred if not brought within ten years. In the case under consideration, the period between the respondent’s submission of the design to the petitioner’s previous association and the date on which action was brought, is over ten years. The court observed that, an important point that should be addressed here would be determining the beginning point in the calculation of the period of limitation.

In light of the letter written by the Ministry of Transport and Communication on Tahsas 02, 2000 E.C. (December 12, 2007) which granted permission for the publication of the stamps for commemoration day, the respondent can be assumed to have known about the publication of the stamps containing his design only after the commemoration day, Ginbot 19, 2000 E.C. (May 27, 2008). According to a decision rendered by the Federal Supreme Cassation Division in a similar issue under File No. 67376 on Hamle 30, 2004 E.C. (August 6, 2012), the respondent can demand his right under the contract only after he came to know that the petitioner has failed to fulfil his obligation under the contract. The period of limitation does not thus lapse, and this court has rejected the petitioner’s preliminary objection.

Concerning the second issue, this court has examined the reasoning in the Federal High Court’s decision which stated that although the petitioner claimed the design on the stamps to be two dimensional and the respondent’s design three dimensional, the design published on the stamps was found to be the original work of the current respondent. This court has accepted the decisions of the lower courts which had jurisdiction to examine and render decisions on the facts of the case. As stipulated under Article 80(3)(a) of the FDRE Constitution and Article 10 of Proclamation No. 25/1996, the Cassation Division can only revise cases which contain fundamental error of law. After examining the facts and evidence with the issues of the case, this court has found that the decisions rendered by the Federal High court and Federal Supreme Court Appellate Bench do not contain fundamental error of law. The following decree is thus rendered.

Decree

1.The decisions rendered by Federal High Court under File No. 90008 on Megabit 27, 2003 E.C (April 5, 2011) and the Federal Supreme Court Appellate Bench under File No. 72497 on Tahsas, 16, 2004 E.C (December 26, 2011) are hereby affirmed in accordance with Article 348(1) of the Civil Procedure Code.
2.The decision which holds the petitioner liable to pay Birr 100,000 (one hundred thousand) for having failed to pay the respondent for his design in accordance with the contract is found consistent with Article 34(4) of the Copyright and Neighboring Rights Protection Proclamation.

Signature of five justices

By Abrham Yohannes

Abrham Yohannes Hailu Licensed Lawyer & Consultant

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