song that was used was negligible that its use did not constitute copyright infringement. The
question therefore was what amounted to copyright infringement.
Counsel submitted that the applicable law is the Copyright and Neighbouring Rights Act 2006
and the song falls within the ambit of section 3 thereof. The suit song is a work eligible for
copyright under section 5 (1) (c) of the Copyright and Neighbouring Rights Act 2006. As a
copyright holder, the Plaintiff had economic rights spelt out under section 9 of the Act and in
particular the exclusive right to do or authorised other persons to publish, produce or reproduce
the work; to broadcast the work; to communicate the work to the public by wire or wireless
means and to make a derivative work out of it. Counsel relied on the Judgment of Honourable
Justice Yorokamu Bamwine in the case of Prof George W Kakoma versus Attorney General
HCCS No 127 of 2008.
The Plaintiff also has moral rights spelt out under section 10 of the Copyright and Neighbouring
Rights Act and in particular the right to have her name mentioned or acknowledged each time the
work is used. Any act of the Defendant that undermined the "exclusive rights" under section 9
and the moral rights under section 10 would amount to infringement of the copyright owner‘s
rights. Section 46 of the Act defines what amounts to copyright infringement. Counsel submitted
that the Defendant is guilty of all the stipulations in section 46 (1) and (2) of the Copyright and
Neighbouring Rights Act. The Defendant reproduced, duplicated and extracted a portion of the
Plaintiffs work for its own use in its campaign in the advertisement. It exhibited to the public the
said portion of the work of the Plaintiff. While it did not amount to direct commercial purposes,
DW1 admitted that the donations the Defendant receives and uses in its work depended inter alia
on the success of its campaigns such as the one which forms the basis of this suit. The
Defendant's contention was that its use of the portion of the song did not amount to infringement
of the copyright owners rights. This is because only a small part of the song was used. Secondly
it was used in good faith. Thirdly the Plaintiff suffered no harm as a result of the Defendant‘s use
of the production and finally it fell within the meaning of "fair use" which was an exception.
The question of whether the portion of the Plaintiff‘s production that was used was negligible is
one of fact. Authorities on the matter demonstrate that the Defendant state of mind is immaterial.
In the textbook: ‗the Modern Law of Copyright and Designs’, Hugh Laddie, Peter Prescott
and Mary Victoria at page 81 discuss innocent intent. They write that guilty knowledge is not
an essential ingredient of the wrong of primary infringement of the copyright. For instance a
printer who executes a job for a customer infringes copyright if it turns out to be a pirated work.
The consequences are mitigated to a limited extent if he did not know and did not suspect that
the Plaintiffs work was the subject of a copyright but he must prove this.
In the instant case the Defendant does not assert that it did not know that the work was the
subject of the Plaintiffs copyright. On the contrary the Defendant‘s witness admitted that they
knew that the song was a production of the Plaintiff. They only thought that it was okay to use it.
It was a plea of ignorance of law or ignorance of the legal consequences of helping themselves to