In Incognito Productions Limited & another v Nation Media Group  eKLR, the Plaintiffs sought an interim interdict against the Defendant restraining the unauthorised use of its intellectual property.
The parties had a business relationship dating back to 2005 in relation to a music television show broadcast in Kenya, namely The Beat. However, the show’s poor performance led to the parties discussing a revamp of the show which ultimately resulted in the launch of LIT360 earlier this year.
The objective of LIT360 is to cultivate local musical talent.
The Plaintiffs claimed that the Defendant had misappropriated their concept which underlies LIT360. The basis of this claim lay in business proposals shared between the parties in 2017. Specifically, the Plaintiffs claimed to have shared with the Defendant expressions of LIT360 in the form of literary and audio-visual works, which are protectable by copyright in Kenya.
The Court rejected the Plaintiffs’ application for interim relief but made several comments relevant to the determination of the main suit. Specifically, the Court noted that the trial court would need to determine whether:
- LIT360 was an improvement of The Beat and therefore created with proprietary information already in the Defendant’s possession or whether, as the Plaintiffs suggests, LIT360 is a separate and distinct work which infringes its copyright;
- the Plaintiffs are seeking copyright protection in an idea. LIT360 seemingly originated from business proposals which eventually culminated in a pilot show, which was delivered in a tangible form to the Defendant. It is trite that there can be no copyright in ideas;
- the Plaintiffs’ concept is original, as required by the Copyright Act in Kenya. The Defendant claimed that the Plaintiffs’ concept is similar to two other shows aired in the USA. The Plaintiffs argued that the shows in question were broadcast via YouTube while their concept envisaged a show simulcast via television and radio. It is unclear whether this difference in delivery will affect the determination of originality.
The Court held that there was insufficient evidence to support a claim of copyright infringement. The court also refused to award an interim interdict on the ground that the Defendant, who had also invested in LIT360, and its sponsors and affiliates would suffer loss.
The final decision in this case is highly anticipated, as the court will seemingly be required to develop the law regarding originality in the context of copyright law. In addition, this case will reveal the extent to which a concept or expression of an idea needs be reduced to material form to be eligible for copyright protection.