a publication, broadcast or sound or visual recording in so far as the use is compatible with fair
practice and acknowledgement is given to the work and the author."
As far as the above provision is concerned, there is no published work which is used for teaching
purposes. Secondly there was no acknowledgement of the author. Specifically the Defendant's
case is that the Plaintiff does not own the copyright. In the premises section 15 (1) (c) considered
above is inapplicable to the Defendant‘s defence.
Regarding the provisions of subsection (d) of section 15 (1) of the Act, it provides that: "the
work is communicated to the public for teaching purposes for schools, colleges, universities or
other educational institution for professional training or public education in so far as the use is
compatible with fair practice and acknowledgement is given to the work and the author;". The
Defendant‘s jingle was not communicated for teaching purposes for schools, colleges,
universities or other educational institutions for professional training or public education. The
above quoted provision is therefore inapplicable to the Defendant‘s defence of fair use.
Regarding section 15 (1) (e) of the Act it is provided that: "the work is reproduced, broadcast or
communicated to the public with acknowledgement of the work, in any article printed in a
newspaper, periodical or work broadcast on current economic, social, political or religious topic
unless the article or work expressly prohibits its reproduction, broadcast or communication to the
public;". There was no acknowledgement of the Plaintiff and therefore the above considered
provision does not avail the Defendant the defence of fair use.
Section 15 (1) (f) of the Copyright and Neighbouring Rights Act provides that: "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 on current
events;" the above provision clearly applies to the communication of works where it is being
performed that is where it can be seen or heard and were the same is communicated to the public
for purposes of reporting on current events. It applies where the work is reported as part of a
current event or incidentally as part of a current event. The Defendant's case is that the
advertisement jingle is a deliberate rendering of the Plaintiff‘s song as part of the jingle and does
not amount to reporting on current events. The fact that it is in relation to a campaign on
conserving Namanve forest reserve does not amount to reporting on current events as far as the
work is concerned in and the context of the provision. In fact the provision deals with the
conveying of the work to the public where it is captured by photograph or audiovisual recording
or broadcast. In such cases it would be an authorised performance which is captured by means of
photograph or audiovisual recording or broadcast to the extent justifiable for the purpose when
reporting on current events. The advertisement jingle did not capture an authorised use of the
Plaintiffs work but deliberately used the work for conveying a different message in a campaign
for conservation of Namanve forest. Consequently section 15 (1) (f) of the Copyright and
Neighbouring Rights, 2006 is not available as a defence of fair use to the Defendant in the
circumstances of the Plaintiff‘s case.