Law Times

Page 12 OctOber 5, 2015 • Law times www.lawtimesnews.com Lawyer appeals ruling in copyright dispute with Wal-Mart BY GLENN KAUTH Law Times 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 ad- viser 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 & Distribution LLC, a company identified on walmart.com as the publisher of the book. Miguna claimed he didn't consent to any publication, pro- duction or release of the book by the defendants, Ontario Supe- rior Court Justice Graeme Mew noted in his decision last month granting summary judgment in the case. Miguna alleged the proper publisher was Gilgamesh Af- rica Ltd., a company granted the right to publish the book through an agreement between Miguna and Gilgamesh Pub- lishing Ltd. Consortium, how- ever, said it was merely a dis- tributor of the book and it had a distribution agreement with Gilgamesh Publishing Ltd. In fact, it said it never actually sup- plied 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 deliv- ered on its contractual obliga- tions to him and never mar- keted, distributed or sold the book. Alleging the publishing agreement "was a fraud from the beginning," Miguna said he had terminated the contract in Janu- ary 2013. In considering the defen- dants' motion for summary judgment last 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 requir- ing a trial and there was no rea- sonable basis to believe further discovery would address the de- ficiencies in the case. He granted the defendants' motion to dis- miss the action and suggested Miguna should pay their costs on a partial indemnity scale. Miguna, however, has since filed a notice of appeal seeking to set aside Mew's decision in its entirety. Among other things, he argues Mew committed sev- eral 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 appre- ciate all the material evidence before him," wrote Miguna 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." In his notice of appeal, Mi- guna reiterated his concerns about the Gilgamesh entities. "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 were 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 con- tract with Gilgamesh Africa Ltd. This proves that as of March 2013 when Gilgamesh Publish- ing Ltd. and Consortium were purporting to enter into a dis- tribution 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 con- ceded in any event)." LT FOCUS REACH ONE OF THE LARGEST LEGAL AND BUSINESS MARKETS IN CANADA! 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Visit www.carswell.com or call 1-800-387-5164 for a 30-day, no risk evaluation Untitled-2 1 2015-09-17 9:36 AM A the project followed a request from the judiciary with judges involved throughout the process. "It's going to take some goodwill on the part of all involved. We are hearing that judges believe the best practices are practical and have the support of the judiciary." But Gover says it may be necessary for the courts to apply costs sanc- tions against litigants who blatantly fail to comply. "Best practices will come to be seen as an expectation on the part of the judiciary concern- ing the manner in which counsel advances its clients' cases. I think any significant departure could well attract costs." There's also an expectation that the best practices will be a living document. To that end, The Advocates' Society, in conjunction with the judiciary, will be meeting with lawyers across the country in the coming weeks and months. "We recognize it isn't a one-and-done proposition," says Gover. "The best practices have to continue to evolve so that it remains a statement of the way forward." Gover is confident the suggestions will become the norm. "There may be some short-term pain for real long-term gain, but I think good counsel will embrace it. I foresee that as part of their marketing, law- yers will say they've signed an undertaking to adhere to best practices. Whole law firms will be saying they have committed to it." LT Cost sanctions touted for non-compliance Continued from page 11

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