Section 15 (1) (g) deals with any work of art or architecture in a photograph or an audiovisual or
television broadcast which is reproduced and communicated to the public where the work is
permanently located in a public place or is included by way of background or is otherwise
incidental to the main object presented in the photograph or audiovisual work or television
works. The Plaintiff‘s work is not permanently located in a public place. The question is whether
it is included by way of background or is otherwise incidental to the main object presented in the
audiovisual work or television works. The submission of the Defendant‘s Counsel is that the
work or a portion of the work was not similar to that of the Plaintiff. Secondly a small portion of
the work was used at the beginning and end of the jingle. Thirdly the work was recreated and
was no longer original. I do not agree that the Plaintiff's work was used as the background in the
context of this case as that is contradicted by the Defendant‘s own submissions. When is a work
included by way of "background"? Or is incidental to the main object? It is my finding that the
advertisement jingle was part and parcel of the advertisement because it deals with
environmental issues and was not included by way of the background or otherwise incidental to
the main object. It was part of the campaign and was used by the Defendant to achieve that effect
of bringing consciousness about environmental issues regarding Namanve forest reserve. In the
premises I find that section 15 (1) (g) of the Copyright and Neighbouring Rights Act does not
avail the Defendant the defence of fair use.
The subsequent provisions namely (h) deal with a political speech or speech delivered during any
judicial proceedings or an address, lecture, sermon or other work of a similar nature delivered in
public and is inapplicable. I have additionally considered section 15 (2) of the Copyright and
Neighbouring Rights Act which deals with the principles in determining whether the use made of
the work in any particular case is a fair use. Fourthly the use made of any particular work has to
fall within the parameters set and section 15 (1). Where it does not fall under subsection 1 of
section 15, it is doubtful whether the provisions of subsection 2 can be used. Subsection 2 of
section 15 provides that in determining whether the use made of the work any particular case is a
fair use certain factors are to be considered. These include (a) the purpose and character of the
use, including whether the use is of a commercial nature or is for a non-profit educational
purposes. It would appear from the evidence that the Defendant's case is that it was using the
work for a non-profit educational purpose. Definitely there was education of the public in the
advertisement jingle under consideration about giveaway of the forest reserve of Namanve.
Secondly it was for a non-profit purpose because the Defendant is an NGO and is a non-profit
making organisation. However the provision cannot be considered in isolation of subsection 1 of
section 15 of the Copyright and Neighbouring Rights Act which give the particular instances of
fair use. Specifically subsection 1 provides that it shall not be an infringement of the right of the
author and shall not require the consent of the owner of the copyright in the instances that are set
out under subsection 1. Subsection 2 only applies to considerations to be made in considering
whether any case falling under subsection 1 of section 15 is "fair use". These include whether it
was for a commercial purpose or is for non-profit educational purposes; and in (b) the nature of
the protected work; (c) the amount and substantiality of the portion used in the relation to the