Patience Kanyenga v Harare Institute of Technology & 3 Ors

### Preamble
1
HH 115-21
HC 4249/16
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PATIENCE KANYENGA

versus

HARARE INSTITUTE OF TECHNOLOGY

and

MERCY MUSAIDA MANYUCHI

and

LILIAN TICHAGWA

and

AFRICAN REGIONAL INTELLECTUAL PROPERTY ORGANISATION

HIGH COURT OF ZIMBABWE

DUBE J

HARARE, 7 June, 17 July 2019, July 2020 & 17 March 2021

Civil Trial

P Kachidza with G Nyamai, for the plaintiff

S Hwacha, for the 1st defendant,

R Zhuwarara, for the 2nd defendant

DUBE J

Introduction

[1] The parties squabble over copyright. The plaintiff pursued only the claims against the first defendant, the Harare Institute of Technology, [HIT], a tertiary institution established in terms of Zimbabwean law and the second defendant, a chemical engineering lecturer at HIT, (the defendants). The plaintiff a graduate and former student of HIT obtained a chemical and process systems engineering degree in 2015 form HIT. In fulfilment of the degree, she submitted a project titled, “Design of a Plant Producing 24TPD Fuel Briquettes from Cornstover”, and [the project]. The second and third defendant also a lecturer, supervised her project.

[2] The plaintiff averred that the project was for production of fuel briquettes using the slow pyrolysis and briquetting technology. She claims to be the “sole inventor of the slow pyrolysis and briquetting technology,” a unique and innovative method or process of producing fuel briquettes from cornstover and other agricultural waste, which has unique scientific qualities and produces a calorific (heating) value which cannot be matched or replicated through any other method. She claims to be the author of the project, sponsored herself and that the project was a result of her individual labour and skill and that the second and third defendants were mere supervisors.

[3] She claims that the defendants ‘wrongfully and unlawfully held out the second defendant to be the inventor or co – inventor of the slow pyrolysis and briquetting technology disclosed in the original work for the production of fuel briquettes from all agricultural waste. The defendants adapted her original work, manufactured and sold fuel briquettes using the slow pyrolysis and briquetting technology disclosed in the original work without her authority.

[4] The plaintiff claims to be the author and proprietor of copyright in the original work and that valid copyright subsists in the text of her project. She sued for infringement of copyright over text in the project on the basis that the defendants “infringed her copyright /moral rights, to be recognised and acknowledged as the sole inventor of  slow pyrolysis and briquetting technology” by  reproducing  and publishing “substantial parts” of her literal work which they published without her permission.

[5] She seeks to be declared the sole proprietor of the intellectual property rights in the project and an interdict against the defendants barring them from infringing her intellectual rights. She claims damages of US $1000 000 for infringement of copyright in the project, US$50 000 for infringement of her moral right to be recognised and acknowledged as the sole author of the slow pyrolysis and briquetting technology and US$150 000 for infringement of the plaintiff’s pyrolysis and briquetting technology for the production of fuel briquettes from all agricultural waste. Alternatively, she claims payment of 12% of the defendant’s net sale of each infringing fuel briquette manufactured by the defendants using her method or an order that defendants render a full account of the business for the manufacture and sale of the infringing fuel briquettes.

[6]   According to the defendants, the production of fuel briquettes from agricultural waste by the method of slow pyrolysis or other technology is common and not her invention.  No copyright subsists in the plaintiff’s project as she did not invent the original slow pyrolysis and briquetting technology and has no entitlement to copyright protection. They averred that any copyright in the project is owned equally by HIT as the plaintiff was an under graduate student at the time she did the project. The project was conceptualised, initiated, supervised, approved, marked, and housed by the first and second defendants. She received collaborative material and financial intellectual input from the defendants.  Any copyright and commercial rights subsisting in the project is the collaborative property of the plaintiff and the defendants in terms of the copyright clause in the project and intellectual property policy of HIT which binds the plaintiff, all students and staff of HIT.

[7] They  denied  wrongfully and unlawfully holding out the second defendant to be the inventor or co-inventor of the slow pyrolysis and briquetting technology, copying and reproducing the plaintiff’s work using the slow pyrolysis and briquetting technology without her authority and adapting the plaintiff’s original work by commercially manufacturing and selling briquettes using her technology.

[8] The second defendant averred that she produced sample and non –commercial pilot briquettes from a different method of compacting and binding charcoal fines or saw dust and not from the plaintiff’s method or process.  The defendants do not require the plaintiff’s authority to produce these sample and pilot briquettes even if they use the slow pyrolysis and briquetting technology from agricultural waste. First defendant denies that it is vicariously liable for the conduct of the second defendant.

[9] The defendants refuted that the plaintiff suffered any moral, material or financial prejudice entitling her to any damages or any other relief and stated that both the plaintiff and second defendant initially erroneously believed that there had been an invention.

[10]    At the trial, the parties refined the issues previously agreed to and requested the court to determine the following issues;

“A) Whether or not copyright subsists in the project done by the plaintiff. If so, who is the owner of the intellectual property rights in the project and whether the said rights have been infringed.

b) Whether or not first and second defendants are manufacturing and selling fuel briquettes produced using the method prescribed in the plaintiff’s project or at all and whether the first and second defendant derived any monetary or economic benefit from their conduct in relation to plaintiff’s project.

c) Whether or not the first and second defendants are liable jointly and severally, for payment of any damages to the plaintiff and the quantum thereof if any.’’

[11] At the close of the plaintiff’s case, the defendants moved for absolution from the instance and submitted as follows: Based on the plaintiff’s case as pleaded, the acts allegedly committed by the defendants are not eligible for copyright protection. The plaintiff cannot claim copyright based on an invention as copyright law does not protect an idea, procedure, facts and figures, process or method of operation. She did not invent the slow pyrolysis and briquetting technology and is not the sole author thereof. The idea of fuel briquettes is common and not original. The manufacture of fuel briquettes from cornstover is not her original idea, invention or innovation.

[12] Even assuming that she is the owner of the copyright, the plaintiff has no exclusive right to the project for the reason that HIT equally owns copyright over the capstone design project in view of intellectual property policy and the copyright clause delegating and authorising HIT to use or authorise third parties to use and copy the project. She assigned rights in the project in terms of the copyright clause to the defendants and therefore there is no infringement to talk about.  She failed to prove any infringement of her moral rights as she was cited as the author in the articles presented in other countries. The fact that the defendants co-own the project is why absolution should be granted.

[13] There is no evidence of any factory or plant where the defendants are allegedly manufacturing briquettes commercially, any receipts or proof that the defendants sold any briquettes commercially or at all or using a method prescribed by the plaintiff.  Having failed to establish that copyright subsists in her project, infringement of her copyright or led any evidence on financial prejudice or damages normally awarded for copyright infringement, her claim must fail. Personal psychological trauma and emotional damages are unknown in intellectual property infringement and a debasement order is available only where a litigant establishes a basis for claiming an account. She failed to show that HIT profited from the manufacture of the briquettes and is vicariously liable for the conduct of the second defendant.

[14] The plaintiff‘s response was as follows. Although briquettes are not a new product, the innovation lies in the process she developed to create the briquettes. She contended that the innovation in the process was recognised by the departmental staff in the project leading to them awarding her a distinction. Her idea was reduced to material form and is subject to copyright protection. Also reduced to material form are the prototypes produced which were created by figures and calculations attributed to the plaintiff.

[15]There is a clear distinction between the capstone design project and the innovative process for manufacturing fuel briquettes. In particular, the process is subject to copyright protection. Copyright subsists in the text of the capstone design project. Her project is a literal and academic treatise which is original, was reduced to material form and is worthy of copyright protection. The defendants held out the second defendant to be the inventor or co-inventor of the slow pyrolysis process and technology disclosed in her work. She is the author of the project and did not assign her rights. In addition, the defendants reproduced and published substantial parts of her work without her consent thereby infringing her moral right to be recognized and acknowledged as the sole inventor of the slow pyrolysis and briquetting technology.  She maintained that HIT is vicariously liable for the conduct of the second defendant and that she led sufficient evidence on the damages claimed.

The law on absolution from the instance

[16] The test for absolution from the instance is whether there is evidence at the close of the plaintiff’s case, upon which a court applying its mind reasonably to it, might make a mistake and grant judgment for the plaintiff. The plaintiff must adduce evidence sufficient to establish all the essential elements of his claim. He must establish a prima facie case. See United Air Charters Pvt Ltd v Jaarman 1994 (2) ZLR 341, where it was stated that a plaintiff will successfully withstand an application for absolution from the instance if, at the close of his case, there is evidence upon which a court directing its mind reasonably to such evidence, could or might, not should or ought to, find for him.

[17] Similar sentiments were echoed in Supreme Service Station (1969) (Pvt) Ltd v Fox & Goodridge (Pvt) Ltd 1971 (1) ZLR 1 at 5D where the court remarked as follows;

“The test, therefore, boils down to this: Is there sufficient evidence on which a court might make a reasonable mistake and give judgment for the plaintiff? What is a reasonable mistake in any case must always be a question of fact, and cannot be defined with any greater exactitude than by saying that it is the sort of mistake a reasonable court might make - a definition which helps not at all.” See also Quintessence Co-ordinators (Pty) Ltd v Government of the Republic of Transkei 1993 (3) SA 184 (Tk), Claude Neon Lights (SA) Ltd v Daniel 1976 (4) SA 403 (A).”

See Claude Neon Lights (SA) v Daniel 1976 (4) SA 403.

[18]The defendants’ challenge targeted the plaintiff’s cause of action and relief sought. After considering the submissions of the parties, the court dismissed the application and reserved reasons for its ruling.

[19] A person claiming copyright over a work must show that a work is original and is one in which copyright can subsist and copyright must subsist in the work. In addition to proving subsistence of copyright in a work, a party must prove authorship and ownership of it, the infringing act and lead evidence in support of the relief sought.

Subsistence of copyright

[20] The legislative framework on which this case falls to be decided is found in the Copyright Neighbouring Rights Act [Chapter 26:05], (the Copyright Act). Copyright is a right to work as provided for in terms of the Copyright Act. The purpose of copyright law is to protect the author from unauthorised reproduction of his work without his consent. Copyright is transmissible automatically by operation of the law or by assignment and there is no legal requirement for registration of a copyright. Because a copyright is not registrable, a person seeking enforcement of a copyright has the onus to prove its subsistence and his ownership of it.

[21] A litigant seeking to prove ownership and enforcement of copyright must establish that the work is one in which copyright can subsist, that copyright subsists in the work and that he is the author and owns the copyright in the work. He must prove the infringing act and lack of consent as well as justify the relief sought.

[22] Section 9 (1) of the Copyright Act defines copyright as follows;

“9 (1) Copyright is a real right which subsists in a work by virtue of this Act and which entitles its owner exclusively to do in Zimbabwe and to authorise others to do in Zimbabwe the things which this Act designates in relation to that work.”

Copyright is defined in a book titled Intellectual Property by John and Kerick (Jonathan Ball Publishers, Johannesburg SA p 73 ET seq as follows,

“Broadly speaking copyright is the right given to the creator or author of literary works, artistic work and musical works such as original s, stories, poems, treatise, essays, manuals, paintings, sculptures, drawings, films and such works) not to have that work copied or reproduced without authorisation of the author.”

[23] Section 9 (1) of the Copyright Act defines copyright in relation to a work. The definition section of the Copyright Act defines “work” as follows;

“work” means any literary, musical, artistic or audio-visual work, sound recording, broadcast, programme carrying signal or published edition’’

Whether copyright subsists in a work and qualifies for copyright in terms of the Copyright Act depends on whether the work is eligible for copyright. In terms of s 10 (1) of the Copyright Act, a work is eligible for copyright if it is original. For copyright to subsist in a work, the work relied on must be original and fall within the following categories specified  in terms of s10 of the Copyright Act .The categories are , literary works, musical works, artistic works, audio-visual works, sound recordings, broadcasts, programme-carrying signals and  published editions.

[24] The work must be expressed in a tangible form in terms of s 10 (2) of the Copyright Act which provides as follows;

“A work, other than a broadcast or programme –carrying signal , shall not be eligible for copyright unless it has been reduced to writing , recorded or reduced to material form.”

Copyright protects original works that are fixed in some medium. It does not protect facts or figures, ideas, discoveries, concepts systems or methods of operation. The ideas expressed by a work must be original for copyright to subsist in it. In copyright infringement cases, the work allegedly copied or produced must be eligible for copyright in terms of the Copyright Act.

[25] Regrettably, the Copyright Act omits to neither define the concept of originality nor lay out the test to be applied to determine originality of a work. The role of defining the concept of originality of works was left to the courts. In Kalamazoo Division (Pty) Ltd v Gay and Ors 1978 (2) SA 184 at 190 the court defined originality as follows;

“It is a basic principle that a literary work…must be original in character to be the subject of copyright. Originality in this regard refers to original skill or labour and execution, not to original thought or expression of thought. What is required is not that the expression of thought must be in an original or original form, but the work must emanate from the author himself and not be copied from another work. The question that then arises is what degree of labour or skill will suffice to create copyright in an original work. It is clear that it must be shown that some labour, skill, or judgement has been brought to bear on the work before copyright can be claimed successfully for such work. The amount of such labour, skill or judgement is a question of fact and degree in every case.” See also,  Kilvington Bros ltd v Goldberg (1957) 8 D.L.R (2D) 768; Klep Valves Pty Ltd v Saunders Valve Co Ltd [1987] (2) SA 1(A).

[26] In the American case of Feist Publications Inc. v Rural Telephone Service Co 499 U.S 340 (1991) at 345, the court held that “in order to be original a work must not only have been the product of independent creation, but it must also exhibit a “modicum of creativity.” This doctrine stipulates that originality subsists in a work where a sufficient amount of intellectual creativity and judgment has gone into the creation of that work. The standard of creativity need not be high but a minimum level of creativity should be there for copyright protection.

[27] United Kingdom courts follow the ‘sweat of the brow test’ which involves an enquiry into whether the work has been copied .There must be a degree of skill, judgment or labour in creating the work. It is a less onerous test as it entitles protection of a work that may not be original as long as there is effort and expense.

[28] Michael F Flint in A Users Guide to copyright [1979], describes the concept of originality as follows,

“the manner and way in which the work is reduced to a material form and not to the originality of the idea upon which the work is based. The work must arise from the skill and effort of the author.”

[29] In CCH Canadian Ltd v Law Society of Upper Canada 2004 SCC 13; 2004 [1] SCR 33, the court said the following of these approaches;

“… the correct position falls between these two extremes. For a work to be ‘’original ‘’within the meaning of the Copyright Act, it must be more than a mere copy of another work. At the same time, it need not be creative, in the sense of being novel or unique. What is required to attract copyright protection in the expression of an idea is an exercise of skill and judgment. By skill, I mean the use of one’s knowledge, developed aptitude or practised ability in producing work. By judgment, I mean the use of one’s capacity for discernment or ability to form an opinion or evaluation by comparing different possible options in producing work. The exercise of skill and judgment will necessarily involve intellectual effort.”

[30] Originality is a requirement in our law. Copyright protects an author’s intellectual original and independent creation.  For a work to be original, it must not be copied and must originate from the author‘s own skill and labour which must not be trivial, see Rapid Phase Entertainment 18 Waylite Diary CC v First National Bank Ltd 1995 (1) SA 645A. There must be more than minimal “original skill or labour.’’ Work is original even if it infringes copyright of an earlier work provided that it embraces elements that are original or noticeably different.

[31] One need not look at originality of thought but the “…. product of the author’s exercise of skill and judgment”, see Klep Valves (Pty) Ltd v Saunders Valve Co [1987] (2) SA 1 (A). Copyright protects the expression of ideas in a work as a whole but not the ideas themselves. See Article 9.2 of the Trips Convention which provides as follows;

“Copyright protection shall extend to expressions and not ideas, procedures, methods of operation or mathematical concepts as such.”

This position is echoed in s 10 (5) of our Copyright Act, which provides as follows;

“ideas, procedures, systems, methods of operation, concepts, principles, discoveries, facts or figures, even if they are explained, illustrated or embodied in a work,  …. shall not be eligible for copyright.’’

[32] This approach finds expression in the dichotomy between “idea’’ and “expression,” a principle used to distinguish between elements protected and unprotected by copyright law.    In Baigent v The Radom House Group Ltd [2007] EWCA Civ 247, it was held that copyright only protects the form in which an idea is expressed in a work, see also Designer’s Guild v Russell Williama Textiles Ltd [2000]1 WLR 2416 (HL) [UK]. Copyright protects descriptions, explanations or illustrations of an idea or system and the expression of the idea if it is put in a tangible or material form and all the requirements of copyright are met. Emphasis in copyright protection is on perception and creativity. The expression must be that of the author and must not be copied from another person and need not be novel or original.

[33] No copyright can be claimed over an idea, process or method of operation.  Copyright does not protect the idea from where a work derives, method or system, ideas for doing things, scientific or technical methods, discoveries or business operations. In Galago Publishers (Pty) Ltd v Peter Stiff Erasmus 1989 (1) SA 276 431(A), the court emphasized the point that there is no copyright in ideas.  A litigant claiming copyright over a work need not show an original or unique idea. An idea cannot be subject matter of copyright of a particular person and is open to any other person to develop it in his own name and give expression to it by treating it differently.  See RG Anand v Mis Delux Films1978 AIR 1613 [India].

[34] Copyright subsists in a work from the time when the work is created. Only original works of authorship that have been reduced into a tangible form are protected by copyright. There cannot be copyright infringement in a work that is not original. No other person may copy or distribute the work without the authority of the author or the owner of copyright. It must be noted that where work that is not original is reproduced or adapted, no case of infringement arises.

Invention of a process

[35] The plaintiff testified that she invented a process of making charcoal briquettes using the slow pyrolysis and briquetting technology and came up with a briquette made from agricultural waste which included cornstover. The plaintiff accepted that charcoal briquettes are not a new product and that no copyright subsists in the idea of charcoal or fuel briquettes.  She does not claim that she came up with a briquette made for agricultural waste and cornstover.

[36] Information about the pyrolysis, briquetting technology and charcoal briquettes is in the public domain. The manufacture of cornstover briquettes using the slow pyrolysis and briquetting technology is not the plaintiff’s original idea, expression or invention. The plaintiff was later to concede that she did not invent the slow pyrolysis process and briquetting technology or charcoal briquettes contrary to her claim in the summons. An invention is not work in which copyright can subsist and cannot be protected by way of copyright The Copyright Act does not protect scientific inventions which ought to be registered under the Patents Act, [Chapter 26; 03] and hence copyright must be distinguished from rights conferred under patent, trademark and design law. The plaintiff’s claim for protection of an invention fails.

[37]Moreover, the Copyright law does not protect processes. The plaintiff cannot have an entitlement to claim copyright over a system, method, idea, figures and process involving the slow pyrolysis and briquetting technology. Processes are protected by way of patent law. The plaintiff may want to pursue her application for patent registration with the African Regional Intellectual Property Organisation.

Whether the defendants are manufacturing and selling fuel briquettes produced using the method prescribed in the plaintiff’s project

[38]   Having conceded that she is not the inventor of the slow pyrolysis and briquetting technology, the plaintiff’s claim based on  the invention and an  entitlement to protect the slow pyrolysis process and briquetting technology by way of copyright fell away as she cannot lay a claim to it .There is no question of the defendants, wrongfully and unlawfully holding out the second defendant to be the inventor of the slow pyrolysis and briquetting technology and adapting, manufacturing and selling fuel briquettes commercially ,using the slow pyrolysis and briquetting technology she invented.

The innovative process

[39]   The plaintiff submitted that she did not claim that the slow pyrolysis and briquetting technology is her idea but that the  process she developed for the manufacture of cornstover briquettes was what was innovative and is worthy of protection. She told the court that the process has certain unique scientific qualities, producing a producing calorific (heating) value which cannot be matched or replicated through any other method in the world. The process also involved the removal of volatile gases and increasing the calorific value of her raw materials before compacting or briquetting and also incorporation of wet scrubbing unit to treat those volatile gases before emitting into the atmosphere. She used the process of shredding cornstover, drying, carbonization/pyrolysis (or burning) and binding of briquettes.

[40] The plaintiff told the court that the defendants infringed her copyright by reproducing parts of her written project and published them and got recognition for her work without her consent. She did not collaborate with the second defendant or her husband, a person she does not know. She produced a number of articles allegedly reproduced and published by the second defendant.

[41] Having considered the shortcomings in the plaintiff’s case stemming from an attempt to claim copyright over an invention of the slow pyrolysis and briquetting technology, a process, the court considered that the plaintiff‘s case is also based on infringement of copyright in the actual text of the project wherein she recorded a description of the process used to make her briquette which she claimed is a work deserving of copyright protection. No doubt the project was reduced into a literal form and hence met the requirement that a literal work be in a tangible form. What exercised the court’s mind is whether the description of the supposed innovative process in her treatise, may be capable of copyright protection.

[42] In doubt over what remained of the plaintiff’s claim after discounting the claim over the invention of the slow pyrolysis and briquetting technology and what a reasonable court might do, the court leaned in favour of the matter proceeding. The court was fortified in its approach by the proposition expressed in Standard Chartered Finance Zimbabwe Ltd v Georgias & Anor 1998 (2) ZLR 547 (HC), that where the court is in any doubt regarding what a reasonable court might do, the court is enjoined to lean in favour of the case continuing. The court also considered that this was a novel case in this jurisdiction and its conclusion and pronouncements following a full trial had the potential to contribute and benefit the body of jurisprudence in intellectual property law.

Ownership/Assignment of rights

[43]The question of ownership of copyright in the literal work remained live. The plaintiff testified that the copyright clause in the project does not give HIT any rights over her project. The copyright clause which reads as follows,

“Copyright All rights reserved. No part of this design and innovation project may be reproduced, stored in any retrieval system or transmitted in any form or by any means electronic, mechanical, photocopying, recording or otherwise for scholarly purpose, without the prior written permission of the author or the Harare Institute of Technology on behalf of the author’’

[44]    The import of this clause is that where anyone wants to make use of the student’s work, the written permission of the plaintiff or HIT acting on behalf of the plaintiff must be sought. HIT gives permission, “on behalf of the author” and not on its own behalf. The clause recognises the plaintiff as the sole holder of copyright in the project. The clause does not amount to assignment of plaintiff’s copyrights in the project.

[45] The plaintiff maintained that she is the sole author and owner of copyright in the literal work in the project, did the project on own , was sponsored by her husband and is entitled to copyright protection of the project. She said that there was no collaboration as the second and third defendants were mere supervisors who guided her, corrected grammatical errors and did not co-author the project.

[46] She told the court that HIT had no intellectual property policy when she did her project and that she was handed a supposed copy of the IP policy only when she started to complain about the second defendant’s conduct. She called two witnesses to corroborate her evidence. Dr Mutsiwa, an expert in intellectual property law and practising intellectual property lawyer, testified that he was commissioned by the fourth respondent, ARIPO, to develop a model intellectual property policy for universities in Africa and an implementation and evaluation framework in 2016. He interviewed Dean Perkins Muredzi of HIT and established that the HIT had no approved intellectual property policy. The policy was said to be at draft stage and awaiting approval by the university Senate.

[47] Plaxedes Chapeyama, a former student of HIT who did the capstone design project as part of her degree programme was at the time employed as a teaching assistant .She   testified that HIT did not have an intellectual property policy at the time. If it was there, it was not brought to her attention. An article marked as exhibit 10 was produced to show that HIT had no IP Policy at the time. It was up to the defendants to rebut the evidence that the plaintiff is not the sole author and owner of copyright in the project; assigned her rights and that HIT had an intellectual property policy.

Was there evidence led on vicarious liability of first defendant?

[48] Evidence was led to show that the second defendant  employed by HIT as lecturer ,was engaged in the affairs of her employers during the time of the alleged infringements and was commercially exploiting the plaintiff’s work with the approval of the HIT rendering it vicariously liable for the first defendants’ conduct. Evidence was led to show that the second defendant did her publications whilst in the course of her employment as a lecturer of HIT and to advance the interests of HIT which sanctioned and had full knowledge of all developments. The plaintiff contended that the fact that HIT disciplined the second defendant for the forged tests results shows that she was in the scope of her employment when she allegedly doctored the lab test certificate. The plaintiff led evidence in support of the claim against the first defendant and did not have to show that HIT was personally liable.

Evidence on relief sought

[49] The court considered that if the plaintiff is successful in her claim over her literal work, she would be entitled to a declaratory order, damages and an interdict. General and compensatory damages for infringement of intellectual rights are aimed at reimbursing one for the wrongs done and losses suffered. Another category is of punitive damages which are meant to deter the wrongdoer and other would be offenders from engaging in unlawful conduct in intellectual property infringements with impunity

[50] In some jurisdictions, ‘’aggravated damages which are also compensatory, are awarded only in cases where defendants’ conduct has been particularly high handed or oppressive, thereby increasing the plaintiff’s humiliation and anxiety’’, See Lubrizol Corp v Imperial Oil Ltd 1996 Can LII 4042 [Canada].

[51] Personal psychological trauma and emotional damages are ordinarily claimable under delict where a plaintiff has suffered very upsetting and stressful pain.  A claimant in a case of copyright infringement has no entitlement to claim damages for personal psychological trauma and emotional damages directly and may be able to do so in cases involving flagrant infringement of copyright, high handedness or overbearing conduct on the part of a defendant. The plaintiff has no entitlement to direct damages for insults traded at her by second defendant and emotional stress.

[52] Damages in intellectual property infringement cases are not easily ascertainable.The plaintiff did not share with the defendants the extent to which the defendants benefitted financially from the forgery and passing off of her work or damages suffered. Nevertheless , she was candid with the court and testified that she has no idea of the extent of the damages suffered .A request for debasement of a defendant’s accounts is merited in a case where an author or owner has managed to prove subsistence of copyright and infringement of moral rights but has not been able to give the measure of the financial prejudice suffered. The plaintiff was entitled to ask for an interdict and elect that the defendants reveal the accounts of profits realised establishing the starting point for quantification of damages. See Siddell v Vickers (1892) 9 RPC 152 [UK].

The Merits.

[53] It will not be necessary, for the purposes of this judgment, to summarize the evidence of Mary Samupindi Maxwell Rutizira who testified on behalf of the first defendant. The second defendant testified that the process the plaintiff used is in the public domain. Further, that there is no innovation in the process used by plaintiff to produce her briquette and that even if it is, the innovative process has no entitlement to copyright protection and there is no infringement to talk about. She denied manufacturing briquettes using the plaintiff’s method. She testified that her briquettes were not copied from those of the plaintiff, were different and made from charcoal fines.

[54] The defendants argued that the concept and process used by the plaintiff is not innovative and is an ongoing study derived from texts and articles prepared by other scholars and lacks originality. Further, that there is nothing new about the production of briquettes from cornstover and the processes used.

[55] The use of starch to bind charcoal fines as a binder is not innovative as it is found in literature, p 35, Ext 13. There is a lot of academic work on the subject, see p 22 -23 of exhibit (Ext) 13 and p150 of plaintiff’s bundle. Some of the papers are from students of the first defendant. On pages 17 to 169, Ext 13 are a series of research papers published internationally on briquettes made from agricultural waste from pages 17 to 169 of exhibit 13. An article on P 30 titled ‘’ Size reduction of cornstover 0.6-0.2 mm ‘’, discusses the production of briquettes from cornstover or corn residue. This is an article written as early as 2012, well before the plaintiff developed her project. The article explains the process of burning cornstover at a temperature of 300 degrees Celsius, the size of particles after burning (0.2 – 0.6mm) and moisture content to be achieved. The process and values achieved are the same as those of the plaintiff appearing on para 5.1 on p179 of the plaintiff’s bundle. The second defendant testified that the diagram of this process is taught to all students. On p17 and 19 is a summary of a few selected papers on this subject. The plaintiff did not dispute the existence of these articles done before her project, but simply contended that none were authored by the second defendant. The invention, concept, ideas, process and innovation in a process the plaintiff sought to protect are in the public domain.

[56] Whilst the second defendant appeared to be referring to notes in a notebook during part of her evidence and tended to rumble on and on, her evidence on originality of the literal work was straight forward and supported by documentary evidence. This part of her evidence was not seriously disputed. The plaintiff on the other hand gave clear evidence of her case but was let down by poor pleadings and appreciation of the requirements of the law on copyright law.

[57] Literal works are not confined to literary works in the ordinary sense but include any work that has been expressed in writing.  A plaintiff who seeks to protect a literal work must show that his work was produced from his labour, judgment, skill and capital. The focus is not on the materials on which the labour, judgment and skill and capital was applied. It must be shown that the labour, judgment, skill and capital culminated in the product obtaining some distinctive characteristics which the raw material did not have.

[58]Copyright protects only original literal works. In addition to being original, the work must be, creative, expressed in written form, not copied and original in the sense of original skill or labour and execution, See Fisher & Paychex Financial Services Ltd v Karum Group LLC [2012] NZHC 3314.  It must always be remembered that to be original, a work must be creative to have copyright protection. The focus is on the expression of ideas. The point is that there is no creativity in work that is in the public domain.

[59] Innovation has to do with something new and a solution to a problem which has the effect of improving a product, service or process. By relying on innovation in the process of making her briquette, the plaintiff was not focussed on the actual briquette. She was essentially saying that she invented a new method of producing fuel briquettes from cornstover and other agricultural material which argument has already been discounted.

[60]  Originality does not require an innovative or inventive thought.  The plaintiff missed the point in focusing on a process and an invention. In The Enforcement of Intellectual Property Rights: A Casebook, LTC Harms 3 ed -2012 at p 183, the author states as follows;

“….a literal work which describes a system or invention does not entitle the author to claim protection for his system or invention as such. The same is true of an inventive concept expressed in an artistic work. However striking or original it may be, others are (in the absence of patent protection) free to express it in works of their own. The other proposition is that certain ideas expressed by a copyright work may not be protected because, although they’re ideas of a literary, dramatic or artistic nature, they are not original, or so commonplace as not to form a substantial part of the work.”

[61] An innovative process has no entitlement to copyright protection. Copyright does not protect innovation in a process but creativity and expression in a work. A claim for exclusive property in a treatise in which an innovative process is exhibited and explained does not qualify for protection under copyright law. The plaintiff’s treatise invention, innovation in a  process, the process itself, method of operation, idea, procedure, system, discovery, principle or  concept irrespective of how it was explained, illustrated or embodied in a work has no entitlement to copyright protection albeit expressed in a literal form. Whatever innovation to the slow pyrolysis and briquetting technology the plaintiff may have come up with as part of the process of making the briquette, remains part of a process and ought to have been registered as a patent.

[62] While the plaintiff’s project was expressed in writing, it has not been shown to be original and is not copyrightable. The way the plaintiff made the briquettes was done like others do. She has not shown that she expended original skill, judgment and labour in execution deserving of copyright protection.  There cannot be copyright infringement in a work that is not creative and original. Where a work that is not copyrightable is reproduced or adapted, no case of infringement arises. Without patent protection, it is open to other persons copy the plaintiff’s work.

[63] Moreover, the plaintiff’s argument that she conceived the idea of the project does not advance her case as there is no copyright in ideas. Subsistence of copyright does not derive from the fact that the plaintiff is the one who formulated an idea for the project .The lack of an IP policy does not assist her if she cannot show that the literal work is original and copyright subsists in the work.

[64]  The fact that when the proposal was put to the departmental staff , they  adjudged the project as innovative,  allowed her to proceed with it , received numerous prices  and that the university awarded her a distinction for her  work  does not entitle her  to  copyright protection as copyright has nothing to do with protecting an invention and the novelty of an idea. She needed to prove subsistence of copyright in the project. Subsistence of copyright, a legal issue, is not assessed on the basis of the approach and opinion of the departmental staff of HIT but the legal requirements for subsistence of copyright in terms of the Copyright Act.

[65] Having conceded that there was no invention, the claim for infringement of moral rights based on the pleading that the defendants ‘’infringed her copyright/moral rights, to be recognised and acknowledged as the sole inventor of the slow pyrolysis and briquetting technology’’ by copying and reproducing “substantial parts” of her literal work which they published without her permission also fails. The plaintiff’s claim was premised on a wrong footing. The plaintiff cannot be recognised as the author and inventor of the slow pyrolysis and briquetting technology.

[66] The plaintiff was let down by an inelegantly drafted declaration and a poor appreciation of the law on copyright. In the final analysis, the plaintiff’s case fails and falls on the pleadings filed, see Nzara and 3 Ors v Kashumba N.O SC 18/18; Medlog Zimbabwe (Pvt) Ltd v Cost Benefit Holdings (Pvt) Ltd SC 24/28.

[67] The enquiry ends here. Consequently, I come to the conclusion that the plaintiff failed to prove subsistence of copyright in the project. The plaintiff has failed to show an entitlement to copyright protection.  Costs follow the event.

Accordingly, I make the following order;

The plaintiff’s claim is dismissed with costs.

Honey and Blankenberg, plaintiff’s legal practitioners

Dube, Manikai and Hwacha, 1st defendant’s legal practitioners

B Matanga IP Attorneys, 2nd defendant’s legal practitioners