is an author also depends on the facts and circumstances without losing sight of the definition.
What must be highlighted is that section 4 (1) of the Copyright and Neighbouring Rights Act,
protects the works of an author as listed under section 5 of the said Act. In other words an author
is associated with "works" and the creation of such works or work. It is the Plaintiff's case that
the Plaintiff used his skill and experience in delivering the "talk". There is factual controversy as
to whether the ringtones comprise of a "speech" or "speeches".
Strangely the Plaintiff's Counsel wants to bind the Defendant on the pleadings on the ground that
they conceded to the fact that the ringtones comprise of "speeches" and he accordingly objected
to the submission that the speeches were elicited by interviews from journalists. The written
statement of defence of the Defendant in paragraph 5 (b) refers to "speeches" in the following
averment namely: "The said speeches were publicly broadcast in Uganda as current news of
public and political events". A careful analysis of the pleadings shows that the Defendant was
responding to the averments in the plaint. Paragraphs 4 (a) of the original plaint refers to the
Plaintiff's speeches/addresses as contained in the ringtones. Secondly this is contained in
paragraph 4 (b) of the amended plaint. In paragraph 3 the Plaintiff makes a reference to the said
speeches/addresses. Similarly in paragraph 4 (a) to 4 (i) of the amended plaint, several references
are made by the Plaintiff to the said speeches/addresses of the Plaintiff.
The conclusion is that the Defendant was responding to the pleadings of the Plaintiff on the
subject matter pleaded which is the speeches/addresses of the Plaintiff captured in the ringtones,
the subject matter of the suit. In the premises the Defendant is not bound by the pleading that the
ringtones are speeches of the Plaintiff and the nature or characterisation of the ringtone whether
as speeches, talks or any other characterisation can be established from evidence. The pleadings
did not amount to an admission of fact. Even if they made a reference to the word "speeches",
under section 57 of the Evidence Act, an admitted fact may be proved otherwise than by what is
contained in an admission. In this case evidence was adduced in exhibit TPD1 which is a video
recording of the event where the speeches were recorded from. The evidence demonstrates
whether what transpired arose from a question and answer session or a speech and will help the
court in the characterisation of the ringtones.
I have attentively listened to and watched the video exhibit TPD1 and it proves that the Plaintiff
came out of one of the entrances to the Parliament building and was immediately surrounded by
several persons all pointing recording equipment at the Plaintiff. Several questions where posed
to the Plaintiff and he answered them variously both in English and in Luganda. The questions
were posed by different people without any apparent order and the Plaintiff was not even seated.
The Plaintiff did not deliver a speech but was responding to questions put to him by several
persons whose identities are not disclosed by the video recording or specifically identified by
TPW1. Out of the several questions asked, the Plaintiff answers were recorded as well as the
questions and answers eventually ended up with the Third Party. It is my conclusion that
whoever asked the questions need not be established for purposes of characterising the works.
Decision of Hon. Mr. Justice Christopher Madrama
Izama *^*~?+:
19