requires acknowledgement. Section 15 (1) (f) is also irrelevant because it deals with situations
where work is referred to in the course of "reporting on current events". Section 15 (1) (g) is
totally irrelevant as it refers to situations where a copyrighted work is coincidentally captured in
the background of a production, performance of broadcast, and not where it is deliberately
integrated into the Defendant's production itself. The rest of section 15 (1) does not relate to the
Defendant‘s scenario.
The Plaintiff's Counsel submitted that firstly the question of "fair use" is subject to the law of
jurisdiction and secondly within the Copyright and Neighbouring Rights Act 2006, the
Defendant does not fall within the ambit of "fair use". Section 15 (2) which repeats the four
factors or criteria for determining fair use and none of them benefits the Defendant in the instant
case.
The Plaintiff's Counsel contends that where the use of the song may not have been commercial,
strictly speaking, it was not for "educational" purposes so that section 15 (2) (a) does not help the
Defendant. This is because section 15 (1) limits "educational purposes" to a formal institutional
education, not merely to "haranguing" the public on the media. Secondly regard has to be had to
the amount and substantially equal proportion used which relates back to issue number one.
Once it is proved that a substantial portion of the Plaintiff‘s work was used, qualitatively and
quantitatively, the question of fair use does not arise. From the wording of section 15 (2),
substantial use is inconsistent with fair use especially where there is no acknowledgement of the
author.
Counsel further submitted that it would be debilitating and a drastic consequence would arise if
the court found that it is all right for a non-governmental organisation to help itself to general
portions of artists' musical works because they are doing a good job. In the premises the
Plaintiff‘s Counsel prays that the court makes a finding that the Defendants used did not fall
within the fair use exception.
In reply the Defendants Counsel submitted that there was no reproduction, imitation or
duplication of the Plaintiff‘s song. The Defendant's jingle is not an exact copy of the "let's go
Green" song as alleged. Secondly the song featured two different artists. It commences with a rap
by one artist whom PW1 identified as Keko and later the Plaintiff. The entire song is 4 min and
30 seconds and was confirmed by PW1. The Defendant's jingle commences with an extract of
lyrical verse of the let's go Green song, then female and male verbal voice reciting a stanza
calling on the public to engage their members of Parliament to prevent the forest give away and
ends with the lyrical verse. On the other hand PW1 testified that the entire Namanve jingle is 1
min and nine seconds. Counsel further contended that from the evidence of PW1 the song in
question and the Defendant's jingle are significantly and noticeably different in content, style,
structure and time and is not an exact copy of the song.