Cassation Decisions

Copyright law-Disseminating expression of ideas and using ones own way of expressing ideas- CFN 68369 Vol 13

Samuel Hailu & Horizon Printing Press PLC – v. – Simret Ayalew et. al.

Federal Supreme Court Cassation File No. 68369 (January 13, 2012)

Holding of the Court:

Copyright law protects original expressions of an author, but not ideas or information included in a particular work. Disseminating expression of ideas constitutes copyright infringement while using one’s own way of expressing ideas or information contained in an original work does not. The right includes both economic and moral rights.

Articles 2(6), 7, 9-19, 13(1) of Copyright and Neighbouring Rights Protection Proclamation No. 410/2004

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Cassation File No. 68369 Tir 4, 2004 EC (January 13, 2012) Vol 13

Federal Supreme Court Cassation Division

Justices: Hagos Woldu, Almaw Wolie, Ali Mohammed, Nega Dufesa,

Adane Negussie

Petitioners: 1. Samuel Hailu

  1. Horizon Printing Press PLC

Respondents: Simret Ayalew et.al.

The court has examined the case jointly with Cassation File No.70380 and rendered the following judgment.

Judgment

The case started at the Federal High Court where the current respondents were the plaintiff and the current petitioners the defendants. It relates to the right protected, the right holders, infringement and available remedies under the copyright law. In the lower court, the current respondents argued that their late father Aleka Ayalew Tameru was the copyright owner of various religious works such as literature and sermons which were transmitted in newspapers and magazines as interviews. They claimed that, while rights emanating from such works would be transferred to the original owner’s heirs upon the death of the right holder, the current first petitioner published these works as a book entitled “Religious Teaching”. The book includes expression of condolences prepared for the sixth month commemoration service of Aleka Ayalew including the photograph of the deceased is used without permission. The current second petitioner (second defendant at the lower court) is the printing press which published the book.

In their statement of claim, the current respondents demanded material damages of Birr 60,000 for the sale of 3,000 copies of the book and moral compensation of Birr 100,000 to be paid jointly and severally by the current petitioners. They also requested for the discontinuation of the printing of the book and the destruction of the printed ones. The current petitioners had submitted preliminary objections and defense on the merits of the case. Among the preliminary objections, the current first petitioner argued that, the evidence presented does not prove that Aleka Ayalew Tameru was the owner of the copyright in these works and sole right holder for their distribution. He also argued that the works in question are not personal works of Aleka Ayalew but are rather his position on current religious questions which he expressed as a member of the Ethiopian Orthodox Tewahedo Church.

Alternatively, the current first petitioner argued that as Aleka Ayalew has failed to protect these works and also the right to distribute them, he cannot prevent others from distributing them. He also contended that the works in question are based on the teachings of the Ethiopian Orthodox Tewahedo Church and the deceased cannot be considered as the author. Moreover, he contended that the works are not original and should not be protected by law. The current first petitioner requested the case to be dismissed indicating that he was only attempting to distribute knowledge initiated by the deceased.

On the other hand, the current second petitioner denied its liability since Aleka Ayalew was acknowledged as the source of the work. It also contended that the responsibility to request permission from heirs does not lie with the printing press since it did not initiate the publishing of the works. Thus, it requested the case to be dismissed as no evidence is presented proving that the works included in the book are that of the deceased and it was not aware that the works were the original works of the deceased.

The High Court after examining the arguments of the parties, found the second current petitioner not liable while the first current petitioner was held accountable to pay material and moral damages of Birr 160,000. The court ordered the first defendant (current first petitioner) to refrain from infringing the rights of the copyright owners. It also ordered for the destruction of the printed books.

The current first petitioner dissatisfied by this decision submitted its appeal to the Federal Supreme Court Appellate Bench. The current respondents also submitted their appeal to the Appellate Bench against the decision which found the current second petitioner not liable. The appellate bench dismissed the appeal of the current first petitioner in accordance with Article 337 of the Civil Procedure Code and accepted that of the current respondents. After hearing the arguments of the parties and basing itself on Articles 27, 29 and 2027 of the Civil Code, the appellate bench found the current second petitioner jointly and severally liable with the current first petitioner as it published the works including the photograph of the deceased without the permission of the heirs.

This cassation petition to the Federal Supreme Court Cassation Division is brought against this decision. The first petitioner claimed that the decision of the appellate division of the Federal Supreme Court contains fundamental error of law as it was given without considering his evidence and also because the works of the deceased are not original. He also argued it was inappropriate to consider the work copyrightable where the deceased did not prevent its dissemination. The second petitioner argued that as a printer, there is no legal ground holding it liable for a publication requested by a third party. It also argued that the works of the deceased were not original works. The respondents presented their response in writing.

In light of the objectives of the Copyright and Neighbouring Rights Protection Proclamation No. 410/2004, this court has observed that a work is considered copyrightable where it is original or different by its nature. A work is considered original or different by its nature if it is the result of a creative effort of the individual. The court observed that copyright law protects only expressions of an author not ideas or information included in a particular work. The court noted from the reading of the law that disseminating expression of ideas constitutes copyright infringement while using one’s own way of expressing ideas or information contained in an original work does not.

In accordance with the copyright law, authors are the first owners of copyright. Under Proclamation No. 410/2004, copyright includes both economic and moral rights, and the infringement of one of the economic rights under Article 7 of this Proclamation results in moral damages. The economic rights which are stipulated under Article 7 of Proclamation No. 410/2004 allow the author or owner, subject to the provisions of Articles 9 to 19 of this Proclamation, to have the exclusive right to carry out or authorize the acts stipulated in relation to the work.

From the arguments of the first current petitioner, this court observed in accordance with Articles 83 and 235 of the Civil Procedure Code, that the statement inserted in the book that income generated from its sale goes to the family of the deceased shows the admission of the petitioners that the deceased, Aleka Ayalew, is the owner of the work. Since the petitioners did not clearly deny the deceased as the author of the works, this court has rejected the arguments of the current first petitioner that he was prevented from presenting his evidence.

The court has further examined whether it is proper to publish the opinion of the deceased that was made while he was serving the Ethiopian Orthodox Church. The court observed from the judgment of the lower courts that while the ideas expressed by the deceased emanate from the teachings of the Ethiopian Orthodox Church, the expression of these ideas by the deceased makes them the original works of the deceased.

The fact that the first petitioner published and disseminated the entire expression of the deceased as a book is not contested, and this constitutes infringement of rights under Article 7 of Proclamation No. 410/2004. The argument raised by the petitioners based on Article 13 of the Proclamation does not satisfy the definition of communication of the work to the public; nor is it reproduction as envisaged under Articles 2(6) and 2(25). In other words, dissemination and reproduction of works without permission of a copyright owner and on the pretext that such act is not prohibited by the right owner does not fall under Article 13(1).

Under Article 2(6) of Proclamation No. 410/2004, communication of the work means the transmission by wire or without wire images or sounds or both of a work, a performance, a sound recording or a broadcast, while reproduction as stipulated under Article 2(26) means the making of facsimile copies of the original or a copy of a work by means other than printing such as photocopying, whether or not they are reduced or enlarged in scale.

The court noted the limitations imposed on the author or owner under Article 13(1) of Proclamation No. 410/2004 which does not allow the owner to forbid:

‘the reproduction in a newspaper or periodical, the broadcasting or other communication to the public of an article published in a newspaper or periodical on current economic, political, social or religious or similar topics unless the … reproduction or broadcasting or the communication to the public is expressly reserved on the copies by the author or owner of copyright or in connection with broadcasting or other communication to the public of the work.’

These do not require the permission of the copyright owner. It can be observed that the act of publishing the works of the deceased as a book would not have been necessary had the intention of the petitioners been to disseminate the teachings of the deceased. This court has also observed that the translation of the term ‘periodical’ to Amharic under Article 13(1) is not equivalent to ‘book’. Therefore, the court has rejected the arguments raised by the petitioners based on Article 13(1) and found that the petitioners have infringed the original works of the deceased stipulated under Article 7(1)(a),(f) & (i) of the Proclamation as the work was circulated in the market and read by the public without permission from the right holder(s).

Such infringement results in moral damage with a compensation of not less than Birr 100,000 in accordance with Article 34(4) of Proclamation No. 40/2004. Therefore, the first petitioner is held liable to pay a compensation of Birr 100,000 for moral damage. The court has further noted Articles 27, 29 and 2027 of the Civil Code cited by the Appellate Bench of the Federal Supreme Court in holding the second petitioner liable, and found the second petitioner liable as it failed to check whether the first petitioner had the authority to publish the photograph of the deceased in the book which was circulated in the market. The following decree is thus rendered.

Decree

1.With regard to the first petitioner, this court has, in accordance with Article 348(1) of the Civil Procedure Code, affirmed the decisions rendered by the Federal High Court under File No. 88615 on Tikimt 16, 2003 E.C. (October 26, 2010) and the Federal Supreme Court under File No. 62371 on Yekatit 4, 2003 E.C (February 11, 2011).

2.Regarding the second petitioner, the decision rendered by the Federal Supreme Court Appellate Bench under File No. 63119 on Miazia 12, 2003 E.C. (April 20, 2011) is hereby affirmed in accordance with Article 348(1) of the Civil Procedure Code.

3.The decision that renders the petitioners liable to pay the respondents a total of Birr 160,000 as material and moral compensation, to refrain from publishing the works of Aleka Ayalew Tameru, and to destroy the books published is appropriate.

Signatures of five justices

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