Facts

The Plaintiffs developed a product known as “M-TEEN MOBILE WALLET USSD CODE,” a mobile wallet system intended to enable parents to monitor and control the spending of teenagers and young adults through USSD technology. The product included features such as parental controls, spending limits, beneficiary management, and spending tracking. The Plaintiffs registered the work with the Kenya Copyright Board (KECOBO) as a literary work under the Copyright Act.

Between March and June 2021, the 1st Plaintiff shared the product concept and detailed operational flows with senior officials of Safaricom PLC. Shortly thereafter, Safaricom launched a similar product known as “Manage Child Account” or “M-PESA Go” under USSD code *334#. The Plaintiffs alleged that Safaricom copied their product and used it without authorization.

Safaricom denied infringement and argued that the concept of parental control wallets was common in the financial technology industry and therefore not capable of copyright protection. It further claimed that it had independently begun developing the functionality in 2020 with assistance from Huawei before the Plaintiffs approached the company.

Issues for Determination

The Court considered the following issues for determination

(i) Whether the Plaintiffs’ work qualified for copyright protection under the Copyright Act.

(ii) Whether Safaricom copied the Plaintiffs’ protected work.

(iii) Whether copyright protected the Plaintiffs’ detailed USSD structures and operational flows, or merely the general idea behind the product.

(iv) What remedies were appropriate upon a finding of infringement.

Analysis of the Issue

The major intellectual property issue in this case concerned the distinction between an idea and the expression of an idea in copyright law. This is a fundamental principle of copyright. Copyright does not protect ideas, concepts, systems, or methods. Instead, it protects the original manner in which those ideas are expressed.

Safaricom argued that parental control functionalities are common within banking and mobile-money systems and therefore cannot be monopolized through copyright. The Court agreed that the general concept of a parent-controlled youth wallet is not protectable. However, the Court emphasised that the Plaintiffs were not claiming ownership over the idea itself. Rather, they claimed ownership over the specific expression of that idea through detailed USSD menu structures, operational flows, transaction controls, reporting mechanisms and system responses.

The Court therefore distinguished between an unprotectable idea, and a protectable expression of that idea. This distinction was central to the decision. It held that the Plaintiffs’ detailed documentation and menu architecture constituted literary expression protected under the Copyright Act. In any case, the plaintiff had registered their copyright at the Kenya Copyright Board.

The Court further explained that originality in copyright law does not mean novelty. A work is original if it originates from the author’s own effort, skill, and labour and is not copied from another source. Therefore, even though parental control systems already existed generally in the industry, the Plaintiffs’ unique arrangement and presentation of the functionality remained protectable.

On infringement, the Court stated that copyright infringement may be proved through:

(i) access to the copyrighted work, and

(ii) substantial similarity between the two works.

The Court found that Safaricom had access to the Plaintiffs’ work because the Plaintiffs had shared their detailed proposal with Safaricom officials. The Court also found substantial similarities between the Plaintiffs’ product and Safaricom’s “Manage Child Account” functionality, particularly in the structure and operational logic of the USSD system.

Although Safaricom claimed independent creation through Huawei, the Court found gaps and inconsistencies in the Defendants’ evidence and concluded that the Plaintiffs had proved infringement on a balance of probabilities.

The Court awarded the Plaintiffs Kshs. 1.4 billion in damages together with ongoing royalties amounting to 0.5% of Safaricom’s future M-PESA revenue connected to the product.

Key Take Aways from the Case

1. Copyright protects the expression of an idea, not the idea itself.

2. Detailed technological structures, USSD flows, and operational arrangements may qualify as copyrightable literary works.

3. Originality in copyright law means independent creation and not necessarily novelty.

4. Copyright infringement can be proved through evidence of access and substantial similarity.

5. Companies receiving unsolicited proposals should maintain clear documentation to demonstrate independent creation.

6. Kenyan courts are willing to protect innovators where evidence shows unauthorized commercial use of protected expression.