Cassation Case No. 230224: Moral Damages for Copyright Infringement

Case No.: 230224

Date: April 26, 2015 E.C. (Ethiopian Calendar)

Judges:

• Itimet Assefa
• Dejene Ayansa
• Birqinesh Essubalew
• Habtamu Irqiyihun
• Birhanu Mengistu

Applicants:

1. Ato (Mr.) Milkiyas Laelago Shemsu (appeared)
2. Ato (Mr.) Binyam Gebreyes Zemariam
3. W/ro (Mrs.) Eldana Tesfahunegn Beyene

Respondents:

1. Ethiopian School Readiness Initiative (did not appear)
2. Dr. Fantahun Admas (appeared)

Having examined the file, the following judgment is hereby rendered:

The matter concerns the method for determining moral damages due to a rights holder following a copyright-related violation of moral rights. The dispute originated in the Federal High Court, where the Applicants and the 4th Plaintiff in the lower court, Ato Fitsum Gidey (hereinafter, to refer to all four plaintiffs, they may be cited as “Plaintiffs”), filed a lawsuit against the Respondents alleging that, while pursuing their Master’s degrees at Addis Ababa University, they were assigned to represent the university based on their knowledge and experience, and actively participated in the review and preparation of teacher’s guides for pre-primary education in three age categories: 3-4, 4-5, and 5-6. They revised and prepared three books, which were published by the 1st Respondent and subsequently distributed to schools and relevant teachers for use. The law states that any creator of an original work has the right to have his or her authorship recognized and to have his or her moral rights protected under the Copyright and Neighboring Rights Protection Proclamation. However, the Applicants’ names were not mentioned on the cover of each book. Furthermore, the 2nd Respondent, without participating in the work or being delegated by Addis Ababa University, improperly used his position as head of the department to have his name included as the author of the books and to have them published and distributed, thereby gaining undeserved recognition for work he did not perform. Since the Applicants’ names were not included in the books on which they worked diligently, they suffered moral damage. Therefore, the Respondents should be ordered to pay each Applicant Birr 100,000.00 (One Hundred Thousand Birr) per book, totaling Birr 300,000 (Three Hundred Thousand Birr) for the moral damage caused to each of us for all three books, and a total of Birr 1,200,000.00 (One Million Two Hundred Thousand Birr) to be paid by the Respondents jointly and severally. The Applicants also requested that the Respondents be ordered to refrain from infringing on the Applicants’ copyright in any manner henceforth, and that the books previously published and those to be published in the future be collected and destroyed, and that our right to claim costs and damages be reserved.

In its response, the 1st Respondent argued that the Applicants are not the authors of the books they mentioned. They did not participate in the revision and preparation of the books. The books were prepared and published by the 1st Respondent beforehand, and they were already in circulation. However, to correct the shortcomings in the students’ practice material, high-level examiners from Addis Ababa University, Kotebe Metropolitan University, and the Ministry of Education were assigned and, on the order of the 1st Respondent, provided modifications through professional comments. Even if the Applicants did participate in the preparation of the books in their capacity as authors, the work is a collective work, and since the Applicants worked on it at the initiative and coordination of the 1st Respondent and other participants, it was worked with the understanding that it would be known only by the coordinator’s name, and since all individuals who contributed to the work are not mentioned, not mentioning the Applicants is not a violation of rights. To that extent, it was agreed with the Addis Ababa University Early Childhood Care Education Center to list that they are second-year Master’s students. Even if the Applicants participated in the work as authors, since they worked with nine people, the economic and moral rights of the 13 authors are joint and not repeatedly payable to each. Since the four plaintiffs have not prepared and presented different writings, they can only jointly claim Birr 92,307.00 (Ninety-Two Thousand Three Hundred and Seven Birr) in moral damages for the three books, and their request that each be paid Birr 100,000.00 (One Hundred Thousand Birr) in compensation should be dismissed.

In his response, the 2nd Respondent stated that he was assigned by Addis Ababa University on 01/06/2009 E.C. through a letter to participate in the preparation of the book along with one other student. The 2nd Respondent entered into a contract on 08/05/2009 E.C. with the 1st Respondent on how to perform the book review work pursuant to the assignment given to him by the 1st Respondent. According to the contract, he participated to a high degree by leading as a coordinator and giving professional corrections and amendments, giving trial activities, evaluating the results, and giving feedback. According to the contract, the right to sue me belongs to the 1st Respondent. Other than being students of the university, the Applicants had no ideational or content contribution that could allow them to be mentioned as authors. There is no legal or logical reason why the Applicants, who are neither instructors nor employees of the university, could be considered authors of an educational book prepared with the participation of the university. I had no responsibility or involvement in determining the list of people who would participate in the authorship of the books. I did not give any opinion to the 1st Respondent on this matter. The books were published and distributed by the 1st Respondent. There is no way that the 2nd Respondent can be held liable for acts committed by the 1st Respondent. Since the books were prepared not only by the Applicants but also by nine other individuals, the work is a joint ownership work, and since there are 13 authors, their moral rights in the work are joint, raising a similar argument with the argument raised by the 1st Respondent regarding the amount of compensation.

The court, after hearing the arguments of both sides and their witnesses in File No. 236631, and establishing 10 different issues, reviewed the submitted evidence and the relevant law and ruled on 28/01/2014 E.C. that although the initiative for the work was the 1st Respondent’s and the Applicants did not deny this, and it was also confirmed by evidence, since the 1st Respondent is a legally constituted non-governmental organization engaged in good deeds, it made the work not to be a collective work according to Article 2/5 of the Copyright and Related Rights Proclamation No. 410/1996 because it was made by natural person at the initiative and leadership and by two or more individuals. In addition, there was no argument or evidence presented that there was an agreement or lesser understanding between the individuals who contributed to the work and the leader or coordinator of the book that the work should be in the name of the leader only. In addition, the contribution made by the Applicants (Plaintiffs) or other individuals who were said to have participated cannot be separated or distinguished. If this is the case, it cannot be considered a collective work, and it is considered to be a work done jointly. Therefore, the 1st Respondent’s argument that the work is a collective work is unacceptable. Regarding the nature of the participation of the Applicants and the 4th Plaintiff in the lower court in the preparation of the books, the 1st Respondent requested Addis Ababa University and other bodies to assign professionals to have the book review work done in a multi-professional manner, and the Applicants entered into a contract with the 1st Respondent to perform the functions stated in the contract in order to review the books and include the alternative activities expected to be performed by children as much as possible. The reason the Applicants entered into a contract to work is to do the full review work and to do this by collecting information and following policies as they grow up. It has been confirmed by the proxies of the Respondents that they completed this work and handed it over in March 2009, so it has reached a conclusion that the work performed by the Applicants (including the 4th Plaintiff in the lower court) on the books that have been proved to have been written is authorship.

Also, if it is confirmed that the plaintiffs are the authors of the work, they have the right to have their authorship right protected according to Article 8(1/a) of the proclamation. It has been decided that the 1st Respondent violated the plaintiffs’ right by publishing and distributing the books without mentioning the plaintiffs’ names as authors on the books, as the omission of the plaintiffs’ names as authors on the books was undeniable and confirmed by evidence. The lawsuit was filed by the Applicants and the 4th Plaintiff in the lower court because their right was violated by not mentioning their names as authors when the books were published, so the violation is related to the publication of the books and since the 1st Respondent published and distributed the books, the violation of the plaintiffs’ rights was committed only by the 1st Respondent and not by the 2nd Respondent. The distribution of the books without mentioning the plaintiffs’ names in the books they worked on as authors made the plaintiffs’ work unknown, so their moral right was violated and they suffered moral damage. Since the work done by the plaintiffs is a joint ownership work according to Article 2/29 and 21/2 of the proclamation, the moral right should be protected jointly for the authors of the work. Therefore, also considering the legal interpretation given by the Federal Supreme Court Cassation Division in Case No. 69428 in relation to Article 2116/3 of the Civil Code, since the plaintiffs are joint moral owners, Br. 100,000.00 moral compensation should be held for all 13 authors and when divided by 13, Br. 7,692.20 will be due to each of them for one book and Br. 23,076.93 (Twenty Three Thousand Seventy Six Birr and Ninety Three cents) for each of them for three books, and Br. 92,306.40 (Ninety Two Thousand Three Hundred Six Birr and Forty cents) in total for all four plaintiffs.

In addition, the court has issued a judgment that the 1st Respondent should refrain from committing the act of infringing rights by publishing and distributing the book cover which are the basis for the dispute without mentioning the plaintiffs as authors, and that the violation of rights that it is doing in this way should be removed and the books published and distributed on the book cover without mentioning the plaintiffs as authors should be collected and discarded.

Dissatisfied with the decision, the Applicants filed an appeal to the Federal Supreme Court Appellate Division in File No. 217094, but the Division dismissed the appeal on 11/08/2014 E.C. pursuant to Article 337 of the Civil Procedure Code.

The Applicants filed a cassation petition written on 24/10/2014 E.C. claiming that a fundamental error of law was committed in the decision given as described above, and the content of their petition is briefly as follows: The lower court has confirmed that the Applicants and one other individual are the authors of the work. While it is stipulated in Article 2(16 and 30) of Proclamation No. 410/1996 that if other people are added to us, they will get another protection as a new work, while this has passed, even though the work we Applicants have done gets protection by itself, it is a mistake that the lower court ruled that there are 13 authors of the work. According to Article 21/2 of the proclamation, since the authors of the work are the Applicants, the 4th Plaintiff in the lower court, and including another W/rt (Ms.) Samarawit Muluneh, the five of us being jointly the owners of the economic rights of the original work, the individuls who are added will have their own separate rights, but 13 people cannot be jointly the authors of the work. It is a mistake that a decision has been given that mixed up moral and economic rights. Since moral right is a right that a person has whether he does the work individually or in a group, it is a mistake that the lower court mixed up the matter with the moral damage mentioned in Article 2116 of the Civil Code. The amount of moral compensation that should be paid to us should be Br. 100,000.00 for each author for one book according to Article 34/1 of the proclamation, but the amount of compensation has been reduced outside of the law. Since the 2nd Respondent was the consultant of the 1st Respondent and was implementing the contract and caused the act which is the basis for the compensation claim by making sure that the Applicants’ names are not disclosed as the authors of the work, it is a mistake that it was not decided that he is responsible with the 1st Respondent, so the total amount of moral damage compensation that should be paid to them should be Br. 1,200,000.00.

After examining the petition, the Cassation Screening Bench ordered that whether the amount of moral compensation should be determined by the number of rights holders who participated in one work should be examined with the respondents present in light of what is stipulated in Article 34/4 of Proclamation No. 410/1996, and the respondents argued by writing and submitting their responses separately on 22/03/2015 E.C. The content is briefly as follows: The 1st Respondent, believing that the mentioned books should be revised, made 8 high-level scholars selected from Addis Ababa University, Kotebe Metropolitan University, the Ministry of Education, and the 1st Respondent do the revision work, and the Applicants, who were students at Addis Ababa University, were made to gain practical experience by observing the revision work done by the scholars. Therefore, it was the high-level scholars who did the revision work of the books as authors, not the student Applicants. Although the lower court has given an erroneous decision that considers the Applicants, the 4th Plaintiff in the lower court, and the students named W/ro Samarawit to have participated in the authorship along with 8 other scholars with a total of 13, it has not reached a conclusion that the work was done by only 5 people as stated by the Applicants in their appeal. The conclusion that the lower court reached is that the 13 people participated as authors and that the work is the joint work of all 13. Since the conclusion reached by the lower court at the factual level cannot be examined by the Cassation Division, the Applicants’ appeal should be dismissed. The revision work of the books is the joint ownership work of the 13 people. The economic and moral rights that the 13 people have jointly on their work are joint rights payable to the 13 people, not repeatedly expected for each as if they had done one work separately, so the decision given by the lower court is based on what is stipulated under Proclamation No. 410/1996.

Also, in the response that the 2nd Respondent submitted specifically, since the lower court has examined the evidence by holding the issue of who caused the moral damage that the Applicants claim to have occurred and gave a decision that the 2nd Respondent is not responsible for the moral damage that is said to have occurred to the Applicants, in addition to the fact that there is no act that I have committed that caused the Applicants’ moral right to be violated, and since the issue established by the Cassation Review Division does not concern the 2nd Respondent and there is no mistake committed in the decision given by the lower court from the 2nd Respondent’s perspective. The Applicants also argued by submitting a reply.

What is stated above in a brief way concerns the content of the arguments of both sides and the decision given by the lower courts, and we have also examined whether a fundamental error of law that can be corrected at this division level has been committed in the decision given by the lower courts in relation to the relevant law as follows.

As it has been examined, it is a fact that the lower court has investigated after examining and weighing the arguments and evidence of both sides and has confirmed that the Applicants, the 4th Plaintiff in the lower court, Ato Fitsum Gidey, another W/rt Samarawit Muluneh and 8 other people (scholars) whose names were not mentioned, for a total of 13 people, participated in joint authorship on the revision and preparation (revision work) of three books that were prepared to assist teachers of pre-primary education in three age groups, namely 3-4, 4-5 and 5-6 age groups, and that the work is not a collective work. In addition, the lower court has concluded that the 1st Respondent violated the moral right of the authors by publishing and distributing the book revision (revision) work, confirmed the above, without mentioning the names of the Applicants and the 4th Plaintiff in the lower court as authors. On this basis, the lower court has factually confirmed that the 2nd Respondent did not participate in the violation of rights.

As stated under Article 80(3/a) of the Constitution of the FDRE, the power given to the Federal Supreme Court Cassation Division is to examine and correct any final decision in which any fundamental error of law has been committed, as specified in detail by law. The meaning of the fundamental error of law is not clearly defined in this constitutional provision. Before the Federal Courts Proclamation No. 1234/2013 provided an indicative definition under Article 2/4, the Federal Supreme Court Cassation Division had been giving legal interpretations indicating the reasons that constitute a fundamental error of law in various records. Accordingly, the power to decide on any contentious fact by examining and weighing the evidence presented to them is given by law only to the courts that adjudicate the matter in the first instance and to the courts that adjudicate the matter as an appellate court depending on the circumstances of the matter; unless it is clearly confirmed that these courts have given a final decision by contradicting the application of the principles of production, relevancy, admissibility and burden of proof of evidence, which concern the presentation of evidence, relevance, acceptability and the burden of proving a fact, as well as the fundamental principles concerning the assessment of evidence or the standard of proof or weight of evidence; Except where the decision has not been duly considered in the content of one evidence by giving a decision that has not been duly considered or that the point that has been factually confirmed has not been connected with the law, the Cassation Division has no power to confirm the existence or non-existence of a contentious fact by examining and weighing the evidence.

In the case at hand, the issues of whether only 5 people, including the Applicants, the 4th Plaintiff in the lower court and W/rt Samarawit Muluneh, or 13 people in total, including the 8 people (scholars) whose names are not mentioned, participated in the authorship in the preparation of the mentioned book revision, and whether the 2nd Respondent has committed an act that caused the moral rights of the plaintiffs to be violated are issues that are directly related to the facts. Having held these issues as issues, the Federal High Court, which has the power to examine and weigh evidence in law, has examined the arguments and evidence of both sides and has reached the conclusion that 13 people, including the Applicants, contributed to the authorship in the book revision work, and that the work is not a collective work, but a cohesive joint book revision work, and that all 13 people are joint authors/co-authors of the books. In addition, the lower court gave a verdict that the 2nd Respondent is not responsible because the Applicants did not commit the act that the Applicants made the reason for their claim that our moral rights were violated because our names were not disclosed as authors when the books were published and distributed. 2nd Respondent has given better and more appropriate arguments and evidence to the lower court to explain to them about whether the 2nd Respondent has violated the Applicants’ moral rights by acting or not acting, but we have not found any legal reason to make the lower court unfairly give a decision that makes the 2nd Respondent free from responsibility. Therefore, in view of these arguments, we have not accepted the argument made by the Applicants that a fundamental error of law has been committed in the verdict given by the lower court because there is no error committed that can be corrected at this division level from the point of view of the application of the law or the principles of evidence.

On the other hand, we have examined as follows whether there is any error committed regarding the method in which the compensation was determined and the amount of the compensation for the fact that the work of revising the books was done by 13 people, including the plaintiffs, in joint authorship and that the moral rights were found to have been violated and that the 1st Respondent should pay compensation to the plaintiffs. Any work that is protected by copyright and related rights can be known as being done in one person authorship or by the right holders of joint authors. As stated in the definition given under Article 2/2 of the Copyright and Related Rights Protection Proclamation No. 410/1996, any individual who has created a work of mental output is known as the author of the work. On the other hand, if a creative work in which two or more people have contributed to the authorship is not a collective work, the work is called a joint work and the creators of the work are called co-authors. It is possible to understand this by reading the definition, joint reading and spirit regulated under Article 2(2, 5, 29 and 30) of Proclamation No. 410/1996 in combination and the literature written in the field. In its broad sense, a collective work is a collection (compilation) of many works prepared in such a way that the identity of the authors and the work (writing) can be known separately and distinctly from within the compilation and that it is possible to use only the work of one author from within the compilation. Magazines, journals and encyclopedias are often used as examples of this. It can be understood from what is regulated under Article 2/5, 4/2 and 21/3 of Proclamation No. 410/1996 that a collective work in our country is a work that is done at the initiative and leadership of one natural person by two or more individuals and is made with the understanding that it will be known only in the name of the leader and is a work that is protected by copyright and related rights.

As stated above, when a work is done in joint authorship, even if the contribution made by the people who worked on the work jointly is equal or not in terms of quantity or quality, since the work is one and uniform, the right that the people who jointly created the work have on the work is the same, so they will be equally share the rights that come from the work. A writer named Scott C. Brophy, who has written and published an article in the field (Scott C. Brophy, Joint Authorship under the Copyright Law) has expressed this idea by saying “A joint author shares equally in the ownership of a joint work even if his contributions are not equal qualitatively or quantitatively.”

However, in order to get protection of rights as a joint author, each author must have a copyrightable contributions that can be protected by copyright. What we understand from this is that copyright protection is not for someone who gave an idea, but for someone who expressed the idea in a uniform and tangible manner in his own way (does not protect ideas, but only expression of ideas). (See Articles 5 and 6 of the Proclamation.) Another thing is that in order for a work to be said to have been done in joint authorship, the joint authors must have worked with the intention that their work be a cohesive, mutually supportive, uniform work (…a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole.). A joint work that does not meet this criterion can be considered as a collective work and each author of the work included in the collective work is known as being an author individually and will benefit from the rights that come from copyright.

Joint authors who meet the criteria that make a work to have been done in joint authorship have economic and moral rights that come from copyright and related rights like any author. As regulated under Articles 7 and 8 of the Proclamation, any author of a work or owner of this work that is protected by copyright and related rights will have the economic rights listed under Article 7 of the Proclamation, and as stated under Article 8 of this Proclamation, even if the author of the work is or is not the owner of the economic right, he has the moral rights listed in this article. In the case at hand, since the moral rights of the joint authors are contentious, we have examined the horizon of the moral rights of joint authors by focusing on this right.

The moral right of the author of a work is mostly known by two types of right categories: the right of paternity and the right of integrity. The right of paternity concerns the right of the author of the work to be known as the author and the right to prevent any other person from being known or claiming to be the author of his work (the right of an author to claim authorship of work and a right to prevent all others from claiming authorship of his work.). (See Articles 8(1/a, b and e) of the Proclamation.) Also, the second right category concerns the right to oppose the distortion, cutting or alteration of the work in another way that damages the author’s dignity and reputation. (See Article 8(1/c) of the Proclamation.)

If the individual who is the owner of the moral rights originating from the above-mentioned copyright and related rights is the author of the work, he will be the owner/user of the right individually (enjoy rights as the sole owner of a copyrighted work), and if the creators or authors of the work are two or more people, since the authors will be joint authors, they have an undivided ownership share on the moral rights without considering the amount and quality of the contribution they have made to the work (hold an undivided ownership share). This means that all joint authors will share the value of the moral rights. In connection with this, it should be understood that the expression that the person who should be paid material and moral damage compensation due to copyright infringement under Article 34(1 and 4) is “the owner of the right” to whom economic and moral damage has occurred refers not only to the author of the work, but also refers to joint authors together or as joint owners. Therefore, the amount of moral compensation to be paid for moral damage under Article 34/4 of the proclamation should not be less than Br. 100,000.00 (One Hundred Thousand Birr) and is determined based on the damage incurred is the amount of moral compensation to be paid jointly to the joint authors, not the amount of compensation to be paid to each person for one uniform work done jointly. Each of the authors of a joint work can be paid compensation in proportion to the contribution he has made only when it is confirmed that they have made a clear contractual agreement in advance identifying the amount of their contribution and the value of the contribution they have made in money, percentage or other measures.

When the case at hand is viewed in light of what is stated above, it has been confirmed that all 13 people, including the Applicants, participated jointly in the authorship in the revision of all three books mentioned in the claim by making their own contribution. The moral right that the Applicant and the 4th Plaintiff in the lower court have filed a claim that it has been violated is the right to be known as the author and that the 2nd Respondent, who they say is not the author, should not be mentioned as the author, so this right is a right that the Applicants share with the other people who participated in the authorship. The lower court has confirmed from the arguments and evidence of both sides that this right has been violated by the 1st Respondent. The lower court has concluded that the moral damage caused to the joint authors for each book due to the fact that the books were published and distributed by the 1st Respondent without mentioning the names of the joint authors as authors is estimated at Br. 100,000.00 by weighing the situation. By making this the basis, it has been realized that the decision given by the court by dividing Br. 100,000.00 to all 13 authors and stating that each author should get Br. 7,692.20 in moral damage compensation for one book and that each of them should get Br. 23,076.93 (Twenty Three Thousand Seventy Six Birr and Ninety Three cents) for three books and that all four plaintiffs should get Br. 92,306.40 (Ninety Two Thousand Three Hundred Six Birr and Forty cents) in moral damage compensation is based on the right that the Applicants have as joint authors and that is protected by law.

To sum up, the moral rights that the authors who have jointly created a work that is protected by copyright and related rights have are, in principle, rights that are known as non-divisible joint ownership rights. The amount of compensation to be paid to the joint authors due to the violation of the moral right should be determined by determining the amount of compensation jointly for all joint authors and then dividing it equally to the joint authors according to their number. The compensation can be determined for each joint authors member in proportion to the contribution he has made to the work only when there is a clear agreement made in advance between the joint authors identifying the amount of contribution and the value of the contribution that each joint author has made in money, percentage or other measures. Therefore, since it has been confirmed that the Applicants have done the work in joint authorship in the case at hand; since there is no argument presented by the Applicants regarding the existence of an agreement that the amount of contribution they have made on the revision work of all three books and its value is disclosed and made in advance between the joint authors, not accepting the judgment claim that they have presented for each of the Applicants to be considered as an author individually and for moral damage compensation to be paid to them and determining the amount of moral compensation jointly for all joint authors and separating the share of compensation amount of the Applicants and the 4th Plaintiff in the lower court from the compensation amount and ordering the 1st Respondent to pay them is based on the law and there is no fundamental error of law committed that can be corrected at this division level. Because the appeal that the Applicants have presented opposing this decision is appropriate that it has been dismissed, we have decided the following.

1. The judgment of the Federal High Court in File No. 236631 dated 28/01/2014 E.C. and the order of the Federal Supreme Court Appellate Division in File No. 217094 dated 11/08/2014 E.C. are affirmed pursuant to Article 348/1 of the Civil Procedure Code.

2. We have ordered that the parties shall bear their own costs incurred at this division level.

1.  A copy of the decision shall be forwarded to the lower court. A copy shall also be given to the parties.

2.  The case is closed and shall be returned to the archives.

Unreadable signature of five judges.

F/G