Miguna appeals ruling in copyright dispute with Wal-Mart

A Toronto lawyer who lost his copyright claim against Wal-Mart Stores Inc. over his political memoir about the former prime minister of Kenya is taking his case to the Ontario Court of Appeal.

Miguna Miguna, a lawyer who spent four years as a key adviser to former prime minister Raila Odinga, before the pair fell out, took the retail giant to task after learning it was offering his book, Peeling Back the Mask: A Quest for Justice in Kenya, for sale on walmart.com. He also sued Consortium Book Sales and Distribution LLC, a company identified on walmart.com as the publisher of the book.

Miguna claimed he didn’t consent to any publication, production, or release of the book by the defendants, Ontario Superior Court Justice Graeme Mew noted in his decision this month granting summary judgment in the case.

Miguna alleged the proper publisher was Gilgamesh Africa Ltd., a company granted the right to publish the book through an agreement between Miguna and Gilgamesh Publishing Ltd. Consortium, however, said it was merely a distributor of the book and it had a distribution agreement with Gilgamesh Publishing Ltd. In fact, it said it never actually supplied a single copy of the book to anyone despite its appearance on walmart.com.

But as Mew noted, Miguna claimed his relationship with Gilgamesh Africa had fallen apart. He alleged it never delivered on its contractual obligations to him and never marketed, distributed, or sold the book. Alleging the publishing agreement “was a fraud from the beginning,” Miguna said he had terminated the contract in January 2013.

In considering the defendants’ motion for summary judgment this month, Mew found Miguna’s dispute with the Gilgamesh entities wasn’t the issue before him.

“There is no evidence in the record that the defendants dealt with any copy of the book that was not produced by Gilgamesh Africa or under its authority, or that does not bear the imprints ‘Gilgamesh Africa 2012’ (there is a reference in the record to the existence of pirated copies of the book in Kenya, but there is no suggestion that there is any link between that and the actions of the defendants in this case),” he wrote in Miguna v. Walmart Canada.

As a result, Mew found there were no genuine issues requiring a trial and there was no reasonable basis to believe further discovery would address the deficiencies in the case. He granted the defendants’ motion to dismiss the action and suggested Miguna should pay their costs on a partial indemnity scale.

Last week, however, Miguna filed a notice of appeal seeking to set aside Mew’s decision in its entirety. Among other things, he argues Mew committed several errors of law by failing to correctly apply the Copyright Act and case law as well as the appropriate test for summary judgment.

“He failed to take a hard look at the evidence and fully appreciate all the material evidence before him,” Miguna says in his notice of appeal.

“In the end, Justice Mew’s Reasons for Judgment is primarily a regurgitation of the respondents’ arguments; not a reasoned decision supported by material facts and relevant, credible and reliable evidence before the court.”

“The appellant had produced a true copy of the Assignment of Contract to Gilgamesh Africa Ltd. dated July 12, 2012. After the Contract Assignment, there was no residual rights that vested on Gilgamesh Publishing Ltd., hence the latter could not have assigned distribution rights to Consortium as alleged by the respondents in their pleadings and evidence. Moreover, on January 6, 2013, the appellant terminated the publishing contract with Gilgamesh Africa Ltd. This proves that as of March 2013 when Gilgamesh Publishing Ltd. and Consortium were purporting to enter into a distribution agreement, they could not have done so validly even if Gilgamesh Africa Ltd. had given them authorization (a claim that the respondents had not made and the appellant has not conceded in any event).”

Update 1:55 pm: Comments from Ilan Ishai removed due to lack of permission from client.

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