HomeInsightsHigh Court dismisses claim for literary copyright infringement and breach of confidence

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The claimant, Miss Ogunkoya, was an historian. She became interested in the extended Smith family of Sierra Leone and decided to write a book about the lives of five sisters born between about 1860 and 1871. She carried out extensive research over a lengthy period. In the course of her research, she made contact with Mrs Christine Harding, the defendant’s mother, who was an indirect descendant of the Smith family.

In order to fund her research, Miss Ogunkoya sold copies of the first three chapters she had written to various people connected to the Smith family, including Mrs Harding.

In August 2016, the defendant, Mr Charles Harding, published a book that traced his ancestors from the 1700s to the present day.

Representing herself, Miss Ogunkoya issued proceedings against Mr Harding alleging plagiarism. Mr Harding treated the claim as a claim for copyright infringement and breach of confidence, both of which he denied.

Miss Recorder Amanda Michaels, sitting as an IPEC judge, found that Mr Harding had had access to Miss Ogunkoya’s work via his mother, but that there had been no infringement of copyright by Mr Harding.

Miss Ogunkoya pleaded ten examples of plagiarism, but Recorder Michaels found no evidence that Mr Harding had made use of material derived either directly or indirectly from Miss Ogunkoya’s work. Further, she said, no inference could be drawn from the similarities of incident or source identified by Miss Ogunkoya. In most of the examples, Mr Harding had identified and produced copies of credible, independent and publicly accessible sources of his information, together with evidence of a lengthy interest in his family history.

Further, where there was similarity of language, it was generally not significant. The sole exception was in the language used in one of the ten examples, but this was more likely to be a coincidence, Recorder Michaels said.

In any event, if she were wrong about the copying, Recorder Michaels said that it did not amount to copying a substantial part of either the work or of Miss Ogunkoya’s expression of her intellectual creation.

Recorder Michaels also found that there was no duty of confidence imposed by Miss Ogunkoya on Mrs Harding by any alleged agreement when she gave Mrs Harding the three chapters. In fact, there was nothing in the circumstances in which the three chapters were supplied to Mrs Harding (and Mr Harding) that would (or should) have indicated to her that Miss Ogunkoya considered the work to have been given in confidence.

Recorder Michaels therefore rejected Miss Ogunkoya’s allegation that by publishing his book, Mr Harding acted in breach of her confidence (if any) in the three chapters. Even if she were wrong on this point, Mr Harding had not breached any confidence since he had merely used Miss Ogunkoya’s work in order to identify sources for his own book.

Accordingly, Miss Ogunkoya’s claim was dismissed. (Adenike Ogunkoya v Charles Harding [2017] EWHC 470 (IPEC) (10 March 2017) — to read the judgment in full, click here).

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