Uganda Performing Rights Society v. Mega Standard Supermarket Miscellaneous Application No. 1042 of 2015: A Landmark Case in Copyright Infringement and Issuance of an Anton Pillar Order.

The case of Uganda Performing Rights Society v. Mega Standard Supermarket stands as a pivotal moment in copyright law, exemplified by the issuance of an Anton Pillar order. Presided over by Justice B. Kainamura on May 6th, 2016, this case underscores the evolving landscape of intellectual property rights and the judiciary's role in upholding them. Overview An ex parte application was filed by the Applicant under the provisions of S.45(2) of the Copyright and Neighboring Rights Act 2006, along with relevant sections of the Judicature Act and the Civil Procedure Act, seeking an Anton Pillar Order against the Respondent. Lubowa Aloysius a Copyright Inspector with the Applicant deponed that on 1st January 2014 he visited the Respondent’s premises located at Burton Street Kampala and recorded the music playing within the shopping mall which music recording contained musical works which were being unlawfully performed by the Respondent that were under the applicants repertoire and that a further visit to the respondents premises on 19th January 2016 yielded the same results. This music was found to contain copyrighted musical works under the applicant's repertoire, thus rendering the respondent's actions unlawful and in violation of copyright law. Primary Issue: The central question revolved around whether the applicant fulfilled all conditions for the grant of the Anton Pillar order. Holding: The learned Justice held that For this application to succeed it must pass the test established in the classic case of Anton Pillar K-G Vs Manufacturing Processes Ltd & Others [1976] ALL ER 779 where Lord Denning stated:-

“…………………… it seems to me that such an order can be made by a judge experte but should only be made where it is essential that the plaintiff should have inspection so that justice can be done between the parties and when, if the defendant forewarned there is a grave danger that vital evidence will be destroyed, that papers will be burnt or lost or hidden or taken beyond the jurisdiction, and so the ends of justice be defeated and when the inspection would do no real harm to the defendant’s case”

In the same case, the three essential pre-conditions for the grant of an Anton Pillar order were stated to be:-

1.  There must be an extremely strong prima facie case.

2. The damage, potential or actual must be very serious to the plaintiff

3. There must be clear evidence that the defendant has in its possession incriminating documents or things and that there is a real possibility that it may destroy such material before any application inter-parties can be made.

Section 45 (1) and (2) of the Copyright and Neighboring Rights Act, 19 of 2006 is the basis of an Anthony Pillar order in Uganda and provides;

S.45 (1) Any person whose rights under the Act are in imminent danger of being infringed or are being infringed may institute civil proceedings in the Commercial Court for an injunction to prevent the infringement or to prohibit the continuation of the infringement.

(2) Upon an ex-parte application by a right owner the court may in chambers make an order for the inspection of or removal from the infringing person’s premises of the copyright infringing materials which constitute evidence of infringement by that person. The learned Justice further added that I find that the applicant has satisfied all essential pre-conditions for grant of an Anton Pillar order which is accordingly granted in the following terms.

1.  The respondent is ordered to permit the applicant in the company of ONLY its advocates to enter its premises at Burton street Kampala.

2. The purpose of that entry is to inspect all the computers or other gargets used for the public performance of various music works in the applicant’s repertoire in Uganda and clone the said music works on flash disks or any other medium which should be put into the custody of this court for purposes of the inter-party hearing.

3. Costs of this application shall be in the main cause.

For avoidance of doubt, I wish to emphasise that the above order is not a search warrant and as such does confer on any one a right of forceable entry into the premises. The applicant must therefore get the respondent’s permission to enter the premises. It remains open for the respondent to refuse and if he so wishes to apply urgently for variation or discharge of the order. Should the respondent refuse and choose not to apply for verification or discharge of this order then it will expose the respondent to the risk of proceedings for contempt of court. Rationale: The judgment's rationale is rooted in the established criteria for granting an Anton Pillar order, as delineated in the landmark case of Anton Pillar KG v. Manufacturing Processes Ltd & Others [1976] ALL ER 779. The order was deemed necessary when vital evidence might be destroyed, concealed, or removed, thereby impeding the administration of justice, while ensuring minimal harm to the defendant's case.

Applicability to Uganda's Legal System: This decision set precedent in affirming the protective measures under Section 45(1) and (2) of the Copyright and Neighboring Rights Act 2006, safeguarding individuals' copyright interests. It also enhances the consistency and reliability of Uganda's legal framework by enabling the inspection and seizure of relevant materials connected to the case. Prepared By: Kabasa Miriam Kevin LLB 3, Uganda Christian University (UCU)