the court should also consider what constitutes the ringtones. The Defendants Counsel further
submitted that it is the tunes that were offered to the Defendant subscribers and not the Plaintiff's
interviews per se. The ringtones were made by the third-party and derived from an audiovisual
recording also made by the third-party. Although the audiovisual recording was of the interview
between the Plaintiff and the press, that cannot in any way give the Plaintiff copyright in the
eventual recording and the ringtones derived from the recording.
The Defendant‟s Counsel further submitted that even if the Plaintiff had a copyright in the
interview, the third-party would still have a copyright of the ringtones and the audiovisual
recording as derivative work within the meaning of section 5 (2) of the Copyright and
Neighbouring Rights Act and would be protected from liability. The ringtones were offered to
the Defendant subscribers under contract from the third-party who is the copyright holder and
consequently there was no infringement as alleged. In those circumstances the Defendants
Counsel prays that the second issue should be answered in the negative.
In rejoinder the Plaintiff's Counsel submitted that in the end the Defendant appears to have made
its defence on derivatives a deduction from the earlier clamour of news of the day, which it is not
and of general publication which it too is not. He submitted that the Defendant's position is a
stubborn position devoid of merit under section 9 (1) of the Copyright and Neighbouring Rights
Act to the effect that the author of primary work such as his speeches is the one who can permit
the creation of derivative works. In the absence of such consent, the derivatives infringed the
Plaintiff‟s rights and the law. By basing their defences on derivatives for the caller tunes, and the
fact that caller tunes are premised on the alteration of a pre-existing copyright work, the
Defendants in essence made the judicial admission of a pre-existing copyright which is in the
Plaintiff‟s speeches and which copyright evidently belongs to the Plaintiff. In the premises the
Defendant has put forth no lawful statutory defence against the Plaintiffs claim.
Resolution of issues number 1 and 2.
I have carefully considered the above written submissions as well as the authorities and the
evidence on record. As far as the basic facts are concerned, there are certain basic facts which are
not in dispute.
I will start with the submission of the Plaintiff with regard to the caller tunes or ringtones, the
subject matter of the dispute as to copyright. Paragraph 3 (a) of the amended plaint restricts the
Plaintiffs claim against the Defendant for the use or sale of the Plaintiffs speeches/addresses to
the ringtones/caller tunes coded as numbers 504529, 504530, 504528, and 504531. The Plaintiff
seeks declarations that the use/sale of the Plaintiff‟s speeches/address as the ringtones/caller
tunes constitutes an infringement of his copyright. Other remedies sought are consequential to
the basic remedy based on the averred infringement of copyright. So the first basic facts agreed
are that the caller tunes comprised mainly of the Plaintiff‟s oral voice recording which were
recorded in the form of audio recordings. The caller tunes were stored electronically and were
Decision of Hon. Mr. Justice Christopher Madrama
Izama *^*~?+:
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