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State v Ali [2012] FJMC 52; Criminal Case126.2009 (11 April 2012)

IN THE MAGISTRATE’S COURT
SIGATOKA
WESTERN DIVISION
REPUBLIC OF FIJI ISLANDS

Criminal Case No. 126 of 2009

State

v.

Fariyad Ali

For State: DPP – Ms Nancy Tikoisuva

Accused : Present - Represented by Mr. Sushil Sharma and Mr. Jasveel Singh.

Judgment

Introduction

The Accused is charged with:

Count One : Dealing in Infringing Copy, contrary to Section 121 (d) (1) (i) of the Copyright Act 1999

“Fariyad Ali trading as Coastal Trading on the 14th day of September 2007 at queens Road, Nayawa, Sigatoka in the Western Division in the course of business, offered for sale six (6) infringing copies of the musical works titled ‘eagle wings’ being the copyright of Vere Bulamaibau when Fariyad Ali knew or ought reasonably to have known that the same were infringing copies.”

Count Two : Possession of Object to make infringing Copy, contrary to Section 121 (2) (b) of the Copyright Act 1999.

“Fariyad Ali trading as Coastal Trading on the 29th day of May 2008 at queens Road, Nayawa, Sigatoka in the Western Division possessed one (1) computer Seagate 40GB model which was adapted for making copies of particular work; when Fariyad Ali trading as Coastal Trading knew or ought reasonably to have known that possession of the same was to be used to making infringing copies of CDs and DVDs in the course of business.”

The Law

Division 5 of the Copyright Act deals with offences under the Act. It states that the criminal liability for making or dealing with infringing objects is as follows:

“121.-(1) A person who, other than pursuant to a copyright licence-

(a) makes for sale or hire;

(b) imports into the Fiji Islands otherwise than for that person's private and domestic use;

(c) possesses in the course of a business with a view to committing any act infringing the copyright;

(d) in the course of a business-

(i) offers or exposes for sale or hire;

(ii) exhibits in public; or

(iii) distributes;

(e) in the course of a business or otherwise, sells or lets for hire; or

(f) distributes otherwise than in the course of a business to such an extent as to affect prejudicially the copyright owner,

an object that is, and that the person knows or our ought reasonably to know is, an infringing copy of a copyright work, commits an offence.

(2) A person who-

(a) makes an object specifically designed or adapted for making copies of a particular copyright work; or

(b) has such an object in the person's possession,

when the person knows or ought reasonably to know that the object is to be used to make infringing copies for sale or hire or for use in the course of a business, commits an offence.

(3) Subject to subsection (4), a person who-

(a) causes a literary, dramatic, or musical work to be performed, if the performance infringes copyright in the work; or

(b) causes a sound recording or film to be played in public or shown in public, if the playing or showing infringes copyright in the sound recording or film,

and who knows or ought reasonably to know that copyright in the work or in the sound recording or visual image, as the case may be, would be infringed by the performance, playing or showing respectively, commits an offence.

(4) Nothing in subsection (3) applies in respect of infringement of copyright by the reception of a broadcast or cable programme.

(5) A person who commits an offence under this section is liable on conviction-

(a) in the case of an offence against subsection (1), to a fine of $5,000 for every infringing copy to which the offence relates, but not exceeding $50,000 in respect of the same transaction, and to imprisonment for 12 months;

(b) in the case of an offence against subsection (2) or (3) to a fine of $50,000 and to imprisonment for 12 months,

(c) in the case of a second or subsequent offence against subsection (2) or (3), to a fine of $100,000 and to imprisonment for 2 years.

(6) Sections 116 to 119 (which relate to presumptions) do not apply to proceedings for an offence against this section.

(7) Nothing in subsection (1) applies in relation to a literary work or an artistic work that-

(a) relates to a medicine that has been imported by the State pursuant to section 2 or 2A of the Pharmacy and Poisons Act (Cap 115); and

(b) has been made, copied, published, adapted or distributed in a place outside the Fiji Islands by or with the licence of the owner of the copyright in the work in that place."

Section 126 of the Copyright Act provides that affidavit evidence of subsistence and ownership of copyright be provided:

"(1) At the trial of a cause, being-

(a) an action brought under of this Part; or

(b) a prosecution for an offence against this Act,

proof of-

(i) the subsistence, at a particular time, of copyright in the work or other subject-matter to which the action or prosecution relates; or

(ii) the ownership, at a particular time, of the copyright in that work or other subject-matter,

may, subject to subsection (2), be given by affidavit.

(2) If a party to a cause referred to in subsection (1) desires in good faith that the person who made an affidavit referred to in that subsection that is proposed to be used in the cause be cross-examined with respect to the matters in the affidavit, the affidavit may not be used in the cause unless the person who made it appears as a witness for such cross-examination or the court in which the cause is being tried, in its discretion, permits the affidavit to be used without the person so appearing.

The Copyright Act was amended by the Copyright (Amendment) Decree 2009, (Decree No. 18) as follows:

"Sections 121A and 121B added

2. The Copyright Act 1999 (11 of 1999) (in this Decree referred to as "the Act") is amended by adding—

"Presumption arising from label or mark

121A. For the purposes of any proceedings for an offence against section 121 in relation to a work or other subject matter—

(a) if a copy of the work or other subject matter, or the packaging or container in which the copy is packaged or contained, bears a label or mark stating the year and place of the first publication, or of the making, of the work or other subject matter, then that year and place are presumed to be as stated on the label or mark, unless the contrary is established; and

(b) if a copy of the work or other subject matter, or the packaging or container in which the copy is packaged or contained, bears a label or mark stating that a person was the owner of copyright in the work or other subject matter at a particular time, then the person is presumed to have been the owner of the copyright at the time, unless the contrary is established.

Presumption arising from foreign certificate

121B.—(1) For the purposes of any proceedings for an offence against section 121 in relation to a work or other subject matter—

(a) if a certificate or other document issued in a qualifying country in accordance with a law of that country states the year and place of the first publication, or of the making, of the work or other subject matter, then that year and place are presumed to be as stated in the certificate or document, unless the contrary is established; and

(b) if a certificate or other document issued in a qualifying country in accordance with a law of that country states that a person was the owner of copyright in the work or other subject matter at a particular time, then the person is presumed to have been the owner of the copyright at the time, unless the contrary is established.

(2) For the purposes of this section, a document purporting to be a certificate or document referred to in subsection (1)(a) or (b) is, unless the contrary intention is established, taken to be such a certificate or document.

(3) In this section, "qualifying country" means—

(a) a country that is a party to the International Convention for the Protection of Literary and Artistic Works concluded at Berne on 9 September 1886 as revised from time to time; or

(b) a country that is a member of the World Trade Organization established by the Marrakesh Agreement done at Marrakesh on 15 April 1994 and has a law that provides consistently with the Agreement on Trade-Related Aspects of Intellectual Property Rights set out in Annex 1C to that Agreement for:

(i) the ownership and duration of copyright or a related right in works, sound recordings and cinematograph films; and

(ii) the owner of the copyright or related right to have rights relating to the reproduction of the work, sound recording or cinematograph film"

Section 126(1) (a) amended

3. Section 126(1) (a) of the Act is amended by deleting "of"."

The Witnesses

The Prosecution called 4 witnesses. Pw-1 was Terence O'Neil Joyce, Pw-2 – Clive Hudson, Pw-3 – Vere and Pw-4 – Dc Shameem.

The accused gave sworn evidence.

The Prosecution and the Defence filed written which this Court has carefully considered.

The Court has for ease of reference laid down the complete relevant provisions of the laws. The accused was charged for an offence he committed in 2007 under the Copyright Act 1999. The Copyright Act was amended by the Copyright (Amendment) Decree 2009. The Prosecution has in its written submission erroneously stated that the Copyright Act was amended in 2006.

The onus under the Copyright act prior to its amendment was on the prosecution to show to the Court that the complainant who alleged that his work was being copyrighted proves that that he had licensing rights to the work. In the present case no evidence given in Court to show that the complainant had licensing rights over the alleged work that is being complained as of being copyrighted. The onus was on the prosecution to prove that the accused offered for sale six (6) infringing copies of the musical works titled 'eagle wings' being the copyright of Vere Bulamaibau. No evidence was tendered to show that copyright of "eagle wings' was held by Vere Bulamaibau.

The Court is also not satisfied beyond reasonable doubt that the prosecution has proven count one and two and for this reason the accused is acquitted. 28 days to appeal.

Chaitanya Lakshman
Resident Magistrate
11th April 2012