The extract of the verse in the song that was used in the Defendant's jingle was not substantial
and therefore not actionable. The jingle substantially contains messages from the Defendants to
the public in prose to engage their leaders in preventing the unlawful giveaway of Namanve
Forest. They substantiality test must be applied to the lyrical content and length of time of the
jingle in comparison with the song "Let's Go Green". To that extent the Defendant's jingle is in
creative, transformative and entitled the corporate protection in its own right. No loss or harm
was intended or occasioned by the unsubstantial use of portions of the song in the Defendant's
jingle. The actions of the Defendant fall within the elements of fair use doctrine as set out under
the Copyright and Neighbouring Rights Act. The use of the song was done to communicate to
the public de-gazetting of Namanve Forest. The Defendant‘s rights are anchored on article 39 of
the Constitution which gives every citizen a right to a clean and healthy environment. In the
testimony of DW1 the Defendant considered the fair use statement on YouTube. The statement
refers users to fair use provisions under local laws.
The applicable law in the case is section 15 (1) (f) and section 15 (2) of the Copyright and
Neighbouring Rights Act. The provision under section 15 (1) (f) provides that the fair use of the
protected work and cannot be an infringement of the right of the author and shall not require the
consent of the owner of the copyright were under (F) any work that can be seen or heard is
reproduced or communicated to the public by means of photograph, audiovisual work or
broadcast to the extent justified for the purpose when reporting current events. The Defendant‘s
Counsel submitted that there was fair use of elements of the song in as far as the jingle was
communicated through the broadcast to the extent justified for the purpose of reporting on
current events relating to the impending destruction of Namanve Forest. The print media
including the Monitor newspaper widely featured news about the intended giveaway of Namanve
Forest. The Defendant adduced in evidence exhibit D1 to D4 showing that on various dates the
news was reported. During the period the jingle dubbed "save Namanve campaign" was
broadcast on some radios with the intention of reporting the Namanve Forest giveaway. The
threatened destruction of the forest was a current event at that time.
In the case of Ashdown versus Telegraph group (2001) EWCA Civ 142, substantial passages
of the appellant‘s dairies were published by the respondents without authorisation. At that time
the appellant had not yet published them. The appellants sued for breach of confidence and
Copyright and succeeded against the respondents. On appeal, in balancing the purpose of the
Human Rights Act and the copyright, the court noted that there is no question but that restriction
of the right of freedom of expression can be justified where necessary in order to protect
copyright. The protection afforded to copyright is however subject to exceptions. Both the right
to freedom of expression and copyright are qualified. They held that section 30 (2) of the UK
Copyright Act which provides that fair dealing with the work for purposes of reporting current
events does not infringe any copyright in the work was applicable. A defence to a claim for
breach of copyright can be mounted on the basis of public interest which is not a statutory
defence but one arising from common law. The rights to freedom of expression trumped the