Defendant. This is because the Plaintiff without a title to the copyright cannot sue. In the
premises there was no infringement by the Defendant of the Plaintiff‘s rights to the song "let's go
Green".
In rejoinder on the first issue the Plaintiff‘s Counsel submitted that as far as the facts are
concerned the Plaintiff's Counsel maintains that the Defendant made a false argument that the
use of the portion of the Plaintiff‘s song was justified in public interest of serving Namanve
Forest at the material time. He contends that there is no law allowing a person or organisation to
help itself or himself/herself to intellectual property in the public interest. The clauses/law that
has ever allowed invasion of private property in the public interest is where property is
compulsorily acquired by government. Under that arrangement the law requires the government
to give adequate and prior compensation (See Art 26 of the Constitution). When it comes to
other persons in matters of copyright, the only permissible exception is "fair use" and not public
interest.
Whether the Defendant infringed the Plaintiff‘s copyright? The Plaintiff‘s Counsel submitted in
rejoinder that the Defendant only pleaded in its written statement of defence that unsubstantial
portion of the Plaintiffs work was used. Secondly in the joint scheduling memorandum filed in
court on 21 October 2013 the agreed facts included the fact that the Plaintiff is the composer,
producer and copyright holder of "let's go Green". Secondly the Plaintiff reduced the said
production into a recorded form and has a business in it by way of audiovisual material. The
Plaintiff also regularly performs the said product in public as well as advancing her
environmental conservation agenda. Counsel further emphasised part "C" of the joint scheduling
memorandum on the agreed disputed facts by the Plaintiff in which it is stated that unsubstantial
portion of the Plaintiffs work was used (agreed fact in dispute). Secondly that it was used for
teaching and educational purposes and therefore amounted to "fair use". Consequently the thrust
of the Plaintiff's pleadings was the existence of a copyright which was admitted and secondly
that the Defendant's contention that there was no infringement was based on the specific facts
pleaded or at least asserted at the scheduling conference namely that only unsubstantial portion
of the Plaintiff‘s work was used. Secondly that it was for teaching and educational purposes and
amounted to "fair use". It was in the direction of the pleadings that the evidence of DW1 was
directed. For that reason no issue was framed as to whether the Plaintiff was the copyright holder
and the only question for trial was whether her copyright was infringed. All of a sudden the
Defendant has come up with a competently different defence and issue.
The departure from the pleadings to the extent of asserting that the song in question was a
commissioned work and secondly was composed together with another person and offends the
law. Specifically it offends Order 6 rule 7 of the Civil Procedure Rules. Secondly general denials
are not permissible and denial must be specific as required by Order 6 rule 8 of the Civil
Procedure Rules. Where a party makes a general denial, he cannot be allowed to adduce specific
evidence nor can he take a position that is at odds with the thrust of his denial. The effect of the
Defendant's submissions in choosing at this stage of final submissions to reply on argument is