In an ongoing copyright dispute over a music application in Kenya – Evans Gikunda vs Patrick Quarcoo & Two Others – the Plaintiff is seeking an interdict for infringement of his intellectual property, damages and an order directing the Defendants to disclose their profits acquired from subscriptions to a music streaming application (SONGA) created by the Plaintiff.
The Plaintiff claims to have created the music app between 2012 and 2016. In 2013, he was employed at the 2nd Defendant (Radio Africa) and, at that time, was approached by the CEO of the 1st Defendant to partner with him to market the app.
The Plaintiff subsequently left the employ of the 2nd Defendant in 2016 and later learnt that the 1st and 2nd Defendants had sold the app to the 3rd Defendant (Safaricom- a leading mobile network operator in Kenya). The Plaintiff then approached the High Court in Kenya for the relief set out above.
Songa | The app at the centre of the copyright dispute
Ownership of the copyright subsisting in the SONGA app is crucial to the determination of this dispute. This means that the Court will need to consider, inter alia, exceptions in the Kenyan Copyright Act to the general rule that the author is the owner of the copyright subsisting in a work.
In addition, the Plaintiff will need to establish that:
- he created his app (which was previously known under several different names) outside of the course of his employment with the 2nd Defendant;
- the app marketed and used by Safaricom constitutes a reproduction or adaptation of his app; and
- damages will not constitute sufficient compensation for any loss suffered, hence the request for an interdict.
This ‘David vs Goliath’ saga is expected to be a hotly contested dispute!
by Kim Rampersadh | Senior Associate