Court of Appeal
17 Jun 2021
Ghana
CORAM: CECILIA H. SOWAH JA. (PRESIDING), ANTHONY OPPONG JA, ANGELINA MENSAH- HOMIAH JA
JUDGMENT
ANTHONY OPPONG JA:
The Respondent is a Ghanaian music composer, music producer, writer, publisher and performer of no mean repute. He delved into the music industry from 1982. He has 15 albums to his credit. In 2004, he released an album titled ‘ADJALA’. That album contains the successful song ‘DA DA DI DA’. The Respondent registered and/or declared the album and the song with the erstwhile Copyright Society of Ghana (COSGA) under the then Copyright Law, 1985 (PNDCL 110).
On or about 2013, to his dismay and chagrin, Respondent discovered that the Appellant had been commercially using part of his work from the song ‘DA DA DI DA’ to promote or advertise its product JOY DADI BITTERS, without seeking nor obtaining the permission or license from Respondent, the right holder/owner.
The advertisement used to be aired on some radio stations at least four times a day. It used to be usually aired on the stations’ morning show programs which had wide coverage and in some instances were broadcast by several affiliate radio stations across Ghana. It was also available on the internet which connotes worldwide coverage.
It was the case of Respondent that appellant’s failure to obtain permission or license from him before using part of his work for advertising its product constituted contumacious breach of his copyright. Respondent therefore sued appellant for infringing on his copyright and for damages for that matter. It must be mentioned that before respondent sued appellant, the respondent gave appellant an opportunity to see the respondent for the latter to issue him the requisite license but appellant spurned that amicable gesture.
The appellant denied using the respondent’s work commercially to advertise its product. It claimed that its advertisement contained syllables or tonic solfas derived from the name of its product, ‘JOY BITTERS’.
After the trial, the High Court, Koforidua delivered judgment on 29th January 2020 in favour of the Respondent. The learned trial High Court judge made an order of perpetual injunction restraining the appellant whether by its directors, officers, agents, servants or assigns whatsoever from using without the respondent’s license the work entitled, ‘DA DA DI DA’ or otherwise infringing the Respondent’s copyright in the said work. The Court below also awarded in favour of respondent general damages of GHC200,000.00.
The appellant registered its dissatisfaction of the said judgment by filing notice of appeal on 12th March, 2020 found at page 276 of the record of appeal. The appeal attacked the entire judgment on the omnibus ground that the judgment was against the weight of the evidence.
The Respondent was also dissatisfied with the quantum of damages awarded and so in accordance with Rule 15(1) of the Court of Appeal Rules, C.I.19, he filed notice of intention to seek an order for the damages awarded to be varied by enhancing it.
An appellant who seeks to have a judgment reversed or set aside on the ground that the judgment is against the weight of the evidence bears the burden to clearly demonstrate any lapses in the judgment appealed against. At page 691 of the case DJIN v. MUSAH BAAKO (2007-2008) 1 SCGLR 686, this is how the Supreme Court put it:
“It has been held in several decided cases that where an (as in the instant case) appellant complains that a judgment is against the weight of evidence, he is implying that there were certain pieces of evidence on the record which, if applied in his favour, could have changed the decision in his favour, or certain pieces of evidence have been wrongly applied against him. The onus is on such an appellant to clearly and properly demonstrate to the appellate court the lapses in the judgment being appealed against.”
The duty to demonstrate the lapses of the judgment by the appellant springs from the fundamental presumption that the judgment of the trial court is correct. It will therefore take displacement of that presumption by the appellant before he can secure success for the appeal grounded on the argument that the judgment is against the weight of the evidence.
Of course, before arriving at its decision, the learned trial judge evaluated and analyzed the evidence on record and the law. That the respondent’s song, Exhibit N was copyright protected is unarguable. The trial court had the opportunity to listen to both Exhibit N and the appellant’s advert, Exhibit Q. Her view was that the tune in Exhibit Q reproduced sections of the tune in Exhibit N. The learned trial judge had this to say at pages 14 and 15 of her judgment found at pages 264 and 265 of the record of appeal:
“I listened carefully to the songs in Exhibits N and Q. For both Exhibits, there are only two basic words – “Da” and “Di”. It is my firm view that the tune in Exhibit Q, the advertisement, is the same as the tune in Exhibit N, plaintiff’s work or song. However, the words or lyrics, “Da” and “Di” in Exhibit N has been re-arranged in Exhibit Q, whether intentionally or unintentionally. It is also my view that in order to determine whether a song of one person has been reproduced by another person, it is the tune which is the most important consideration.
As I have stated above, after carefully listening to the two Exhibits, it is my firm view that the tune in Exhibit Q is the same as the tune in Exhibit N. From the evidence, it is my view that the defendant, through PW1, reproduced, duplicated, extracted and imitated, as provided in section 42(1)(a) of the Act, portions of the Plaintiff’s work, Exhibit N, into its advertisement, Exhibit Q. I therefore find and hold that the song used in the defendant’s advertisement, Exhibit Q, is a reproduction of part of the plaintiff’s song or work, Exhibit N”
In the case of IN RE OKINE(DECD) (2003-2004) SCGLR 582 the Supreme Court held that:
“an appellate court must not disturb the findings of fact made by a trial court, even if the appellate would have come to a different conclusion, unless the findings of fact made by the trial judge were wholly unsupportable by the evidence. Therefore, where the evidence was conflicting, the decision of the trial court as to which version of the facts to accept was to be preferred, and the appellate court might substitute its own view only in the most glaring of cases. That was primarily because the trial judge had the advantage of listening to the entire record and watching the reactions and demeanor of the parties and their witnesses”
On the facts of this case, the trial judge who delivered the judgment did not have only the advantage of hearing the parties and their witnesses but also personally listened to Exhibits N and Q.
I therefore tend to uphold the learned trial judge’s conclusion on the facts and on the law that the appellant had reproduced and imitated parts of the respondent’s work and had therefore infringed the Respondent’s copyright in the song.
The point has already been made that for an appellant who alleges that a judgment is against the weight of evidence, he must show the lapses in the judgment by, for instance, showing any evidence on the record that if properly evaluated and applied in his favour could have changed the decision of the court or any evidence which has been misapplied against him.
In this regard, the appellant even though admits that the tune/melody in the Respondent’s song (Exhibit N) and the tune/melody in the Appellant’s advertisement (Exhibit Q) were the same, he contended that because the lyrics were different, the appellant could not be said to have violated the copyright of Respondent; the appellant had not reproduced respondent’s song. I see no merit in that contention of appellant. I do not think it accords with propriety for a person to copy the tune of another’s song and then set it to slightly different lyrics and claim that there has not been any violation of that other person’s work.
Learned lawyer for Respondent referred the court to paragraph 912 of Halsbury’s Laws of England, 4th Edition, Vol 9 where it is stated, relying on, FRANCIS DAY AND HUNTER LTD. v. BRON (1963) 2 ALL ER 16, that in order to constitute reproduction, there must be sufficient objective similarity between the two works and a casual connection between the two works. He continued: the test for determining whether a work is a copy or reproduction of another is whether it comes so near the original as to suggest that original to the mind of every person seeing or hearing (whichever the case may be) it. Counsel cited the case of WEST v. FRANCIS (1822) 5 B and ALD 737.
Based on what I have read on the record, I have every reason to believe that the striking nearness of the sound in the two works, that is the respondents work, Exhibit N, and the advertisement of appellant, Exhibit Q suggested to the trial judge who heard the two that Exhibit Q was so near the original as to suggest to her that she was hearing Exhibit N which was the original. I would therefore venture to say that the test in the WEST case was satisfied in this case, that is, the appellant has reproduced respondent’s original work or song.
Contrary to the contention that the judgment of the trial judge was against the weight of evidence, the said judgment seems to me to be unassailable as it is fully supported by the evidence on record.
The record showed that Respondent composed and produced an album in 2004 called ‘ADJALA’ which contained the hit song ‘DA DA DI DA’ and that he declared the work with COSGA. Exhibit K and L found at pages 122 and 124 of the record of appeal respectively are copies of the work declarations forms for ‘ADJALA’ album and ‘DA DA DI DA’ respectively.
Respondent also tendered into evidence Exhibit Y, a copy of the notation, lyrical progression, arrangement of the words, and melodic pattern of Exhibit N. Furthermore, he tendered Exhibit Z, a copy of the notation, lyrical progression, arrangement of the works, the melodic pattern of Exhibit Q. All these showed to the satisfaction of the trial court and to me that the structure, substance and form of the two works were the same, meaning that the appellant reproduced and used part of the Respondent’s work for its advertisement for commercial purposes.
Clearly, the fundamental finding by the trial court that the appellant reproduced the respondent’s work deserves support as the preponderate evidence before the trial court shows that the lyrical progression, notation, melody etc. in Exhibit Q is nothing short of reproduction of Exhibit N. This finding is amply supported by Exhibits Y and Z.
There was an issue as to the relevancy or otherwise of the copyright holder earnings from his work as basis for claim for damages where there is an infringement of the copyright. I must say right from the onset that it is not relevant in a copyright claim to show how much money a right owner had earned from his work. The fact that a right owner had not made money from a particular work does not mean anyone can violate his copyright in that work.
In fact, whether or not the Respondent was ever paid any royalties any time his song or the songs on his album were played cannot be a determining factor to consider as far as the infringement of his copyright was concerned. Similarly, whether or not the Respondent made sales from the song or the album cannot be a factor to consider in determining the violation of his copyright.
Furthermore, at paragraph 911 of HALSBURY’S LAWS OF ENGLAND, 4TH EDITION at page 586, reference is made to the cases of MANSELL v. VALLEY PRINTING CO. (1908) 2 CH 441 at 445, C.A., per Cozens-Hardy MR and FRANCIS DAY AND HUNTER LTD. v. BRON (1963) (supra) and the point was made that in copyright cases “the fact that the defendant acted innocently is no defence, for copyright is a proprietary right, and, if it is invaded, the element of motive or intention on the part of the defendant is wholly irrelevant”
It therefore bears emphasis that once a case of infringement of copyright is established, the right owner is entitled to damages per se, without proof of damages. That is not to say that if the right owner has suffered any particular special damage, he cannot sue for special damages in which case the law, both substantive and procedural, would require him to particularize and prove same specifically. The emphasis is that proof of damages in the case of infringement of copyright is not a requirement.
At any rate, section 47(1)(c) of Act 690 provides that:
“A person whose rights under the Act are in imminent danger of being infringed or are being infringed upon may initiate civil proceedings in the High Court for the recovery of damages for the infringement”
In Halsbury’s Laws of England (4th Edition), Vol 9, p 612, paragraph 947, it was explained that in an action for infringement of copyright, it not necessary to give proof of actual damage; the damages are at large. However, three factors the court may consider in awarding damages in infringement of copyright were mentioned; namely, the court may take into consideration what the right owner would have made if he had charged for the license fee; the court may award such additional damages as it may consider appropriate when it is satisfied that effective relief would not otherwise be available to the right owner having regard to the flagrance of the infringement and lastly the court may consider any benefit shown to have accrued to the one violating the copyright.
With this introduction on award of damages, I would proceed to deal with the issue of the quantum of damages as awarded by the trial court. Whilst the appellant argued that the GHC200,000.00 awarded as general damages in favour of Respondent is excessive, the Respondent filed the requisite notice under the law asking for variation of the GHC200,000.00 damages by increasing it.
It is refreshing to observe that the three factors to consider in awarding damages as stated above have, by and large, been codified in the High Court (Civil Procedure ) Rules, 2004 (C.I. 47). Order 63 Rules 8 and 10 thereof provide:
8.1) Where in an action for actual or threatened infringement of an intellectual property right the infringement is proved, the Court may order the party responsible for the infringement to pay to the right holder damages which are adequate to compensate for the injury, the right holder has suffered
2) The Court may in addition to awarding damages under sub rule (1), order a person whom it has found to have infringed the property right of a right holder, to pay the costs of the right holder
10. The Court may in an action for actual or threatened infringement of an intellectual property right, having regard to the circumstances and in particular to
(a) The flagrancy of the infringement, and
(b) The benefit accruing to the defendant by reason of the infringement award additional damages as the case may require.
It appears clear that in awarding damages in this case the authorities are clear that the court should have had regard to the injury caused to the right holder, the license fee he would have charged or entitled to, the flagrancy of the infringement and the benefit accruing to the violator of the copyright.
As stated above, both the appellant and respondent are urging this court to interfere with the award of damages made by the trial court. In that case they are required to show that the trial court applied some wrong principles in making the award or failed to take some relevant matters into consideration. Short of satisfying this requirement, they must also demonstrate that the award is either so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages. See the case of BAIDEN v. SOLOMON (1963) 1 GLR 488 at 496.
The Apex Court in KARAM v. ASHKAR (1963) 1 GLR 138 at 139-140 put it thus:
“An appeal Court will only interfere with the trial court’s assessment of damages if satisfied that the judge has acted on a wrong principle of law or has misapprehended the facts or has, for those other reasons, made a wholly erroneous estimate of the damage suffered.”
Reading the judgment of the trial court from pages 17 to 21 found at pages 267 to 271 of the record of appeal, this court will refrain from interfering with the award of damages by the trial court as this court is satisfied that the trial court did not act on any wrong principle of law or misapprehended the facts in the least as to have led the trial court to make an erroneous award that can be said to be too low or too high.
In other words, this court supports the quantum of the general damages the trial court awarded as same commensurate with the wrong or the infringement. This court is of the view that GHC200,000.00 awarded is adequate and fair having regard to all the circumstances of the case. Therefore the plea of appellant to reduce it will be turned down so also the plea by respondent to increase it will also be turned down. In effect, the appeal fails and the plea as contained in the notice of intention to contend that the decision of the court below be varied is declined.
SGD
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JUSTICE ANTHONY OPPONG
(JUSTICE OF THE COURT OF APPEAL)
SOWAH, J.A.
I agree
SGD
…………………………
JUSTICE CECILIA H. SOWAH
(JUSTICE OF THE COURT OF APPEAL)
MENSAH-HOMIAH, J.A.
I also agree
SGD
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JUSTICE ANGELINA MENSAH-HOMIAH
(JUSTICE OF THE COURT OF APPEAL)
Appearances
GOLDA DENYO ESQ FOR DEFENDANT/APPELLANT FRANCIS POLLEY ESQ FOR PLAINTIFF/RESPONDENT
