Delivery up
The plaintiff prayed for all copies of unauthorized materials which are in the defendant’s
possession to be delivered up. Counsel referred me to BULLEN & LEAKE& JACOBS at
page 1004 where it is stated that the remedy of delivery up is available where a person;
a) Has an infringing copy of the work in his possession ,custody or control in the course of
business, or
b) Has in his possession, custody, or control an article specifically designed or adapted for
making copies of a particular copyright work knowing or having reason to believe that it
has been or is able to be used to make infringing copies.
Counsel for the plaintiff further submitted that much as there were offending works that
were obtained from the defendants business at the time of executing the Anton pillar order,
the defendant blocked the search of her residence.
Section 13(2) (c) of the Copyright Act specifically provides for this remedy as follows
“An injunction requiring the delivery up to court and the destruction
or other disposal, as the court may direct, of copies of the work in
question or other articles which may otherwise be used for the
purposes of infringement.”
Based on my findings I order that exhibits seized with the Anton pillar order of this court
from the business premises of the defendants and yet do not have her copyright shall be
returned to the defendant while the exhibits and impounded artistic works with the infringing
mask (pot, the calabashes and the lamp shed) and the Masai collection which has the wall
hanging be destroyed by fire under the supervision of court bailiff. The court bailiff should
file a certificate of destruction with the registrar on carrying out this order.
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