Section 2 of the Copyright and Neighbouring Rights Act defines audiovisual fixation separately
to mean:
"works consisting of a series of related images, which impart the impression motion, with
or without the accompanying sounds, susceptible of being made visible and where
accompanied by sound, susceptible of being audible such as cinema, television or video
films."
The caller tunes in question are therefore sound recordings of the Plaintiff's voice. There is no
controversy about the fact that the Plaintiff is the one who produced the voice comprising of
words which were captured by the Third Party‟s agents and stored in a tangible form which
forms the subject matter of the suit. However the words were recorded and kept in a tangible
form capable of being reproduced and sold to subscribers of the Defendant by the Third Party.
There is no doubt in my mind that the Plaintiff never intended the recordings to be made in the
manner and used in the way that the caller tunes have been used. There is also no doubt in my
mind that the Plaintiff did not collaborate with the third-party or the Defendant for the
production and sale of his voice or talk. Furthermore the evidence establishes that the Plaintiff
did not consent to and he was not asked for any participation or agreement for the use of his
voice in the caller tunes. The sound recording in the sense of putting it in a tangible form was
admittedly made by the third-party who claims ownership and as well as authorship.
The Plaintiff in his written testimony testified that he had prepared for the interaction with the
media. Secondly his testimony is that his speeches or literary works are of original composition
and he does not imitate or copy from anyone. Thirdly he testified in writing that the Defendant
repeatedly and without any prior authority from him, licence or consent or permission copied or
otherwise reproduced the speeches for sale to the public as caller tunes and ringtones for their
selfish and illegal economic benefit. Furthermore he protested the violation of his property rights
occasioned by the publication for sale of the speeches by the Defendant but this was disregarded
by the Defendant and Third Party. The Plaintiff testified as PW1 and was cross examined. He
admitted that as a public figure he had been recorded very many times by newspapers, radio
stations and TVs and he has not sued any of those stations. He further testified by agreeing under
cross-examination that when he gave the interviews and statements in the suit, he knew he would
be recorded. He further agreed that the recorded words were spoken in response to questions of
members of the press and that the questions were put to him on an impromptu basis. He agreed
that he did not allow the Defendant to edit the speeches or to sell the speeches. In re-examination
the Plaintiff testified that he gave speeches in Parliament in front of people. They wanted to
know his fate in the committee and he tried to answer their questions. He tried to give the
information to the journalists but to his surprise he heard them in ringtones whereupon he went
to his lawyers and complained. He did not sue the radio and TV stations because they had not
tried to duplicate his speech.
Decision of Hon. Mr. Justice Christopher Madrama
Izama *^*~?+:
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