GERARD NARTEY v. MULTIMEDIA GROUP LTD

1.0 General Overview

This appeal emanates from the decision of the High Court dated 29/07/2024. It examines the extent to which commercial media companies in Ghana can resort to the use of the professional images of photographers on social media platforms citing 'permitted use' as a defence under the Copyright Act, 2005 (Act 690).

My Lords, given the facts presented in this appeal and the question for our determination, I respectfully commence my opinion with the statement from a book written by Lionel Bentley and Brad Sherman, Intellectual Property Law. (5th edn, Oxford University Press 2018) 246-249:

Where fair dealing is invoked by profit-seeking entities, courts scrutinise the claim with particular care, mindful of the risk of uncompensated commercial exploitation.

The statement above found expression in the UK case of Ashdown v. Telegraph Group Ltd [2001] 4 AII ER 666 where the Court of Appeal reiterated that public interest and context matter, but still applied fair dealing (permissible use in Ghanaian context) strictly.

2.0 Facts:

2.1 Plaintiff/Appellant's Case( the "Appellant")

The Appellant, a Ghanaian professional photographer travelled to the Central Region of Ghana to witness the Bakatue festival in Elmina on 9/07/2022 and took several photographs including photographs of individuals with the intent to sell them to prospective clients in the future. On 10/07/2022, he posted sixteen (16) of the images on his social media accounts, including Twitter and Facebook after editing and watermarking them with his name to engage the public and attract interested clients. On the same day, the Defendant/Respondent ( the “Respondent”), a media company registered under the laws of Ghana and the owner of ‘MyJoyOnline’ published the sixteen (16) images the Appellant posted on his social media accounts in an article titled “Check photos from Elmina’s Bakatue Festival” without the prior permission of the Appellant. Upon discovering the unauthorised use of the images, the Appellant notified the Respondent of the infringement and in response, the Respondent removed all traces of the infringing images from the internet. The Appellant turned to the Court for remedy and on 19/10/2022, he instituted an action against the Respondent in the Commercial Division of the High Court, Accra. The Appellant averred that the Respondent’s action constituted an admission of wrongdoing, and an infringement of sections 41 and 42 of the Copyr