of the recording of the Plaintiff's voice in the sense that it carried out the fixation of the Plaintiff's
voice in a material form and was able to reproduce it and sell it to the Defendant. Before doing
that, it compiled the Plaintiffs answers to different people and to different questions and merged
the answers together with the audible background sounds of reactions from members of the
public who were present. On the other hand the Plaintiff never arranged the recording and never
consented to the use of his voice in the manner in which it was utilised by the third-party and the
Defendant as ringtones for sale to the subscribers of the Defendant. In the premises he could not
have been the author of the works to which he never consented or willingly participated.
Before taking leave of the matter I have considered the question of moral rights accruing to an
author.
Moral rights mean the right to claim authorship or performance as provided in sections 10 and 23
of the Copyright and Neighbouring Rights Act, 2006. The further definition of moral rights is
found under section 10 of the Copyright and Neighbouring Rights Act but to the extent of the
definition of an author, section 10 is inapplicable to the Plaintiff's situation. This is evident from
the wording of section 10 (1) of the Copyright and Neighbouring Rights Act which provides that
the author of any work protected by copyright shall have a moral right. By application of the
definition of the word "author" as used in the enactment, the Plaintiff is not the author of the
works and therefore the provisions of section 10 of the Copyright and Neighbouring Rights Act,
2006 are inapplicable to the Plaintiff.
With regard to the provisions of section 23 of the Copyright and Neighbouring Rights Act, the
provision falls under neighbouring rights. Section 21 (1) defines neighbouring rights as rights
attached to the auxiliary role played by performers, producers of sound recording and
audiovisual and broadcasting companies. A performer has a right to be identified as the
performer and to have his or her name mentioned each time the performance of the broadcast of
communication of the fixation is used according to section 3 of the Copyright and Neighbouring
Rights Act.
Was the Plaintiff a performer? The expression "performer" is defined under section 2 of the
Copyright and Neighbouring Rights Act inclusively to include an actor or actress, singer,
musician, dancer or other persons, who act, sing, deliver, declaim, play in, interpret, or otherwise
perform literary or artistic works or expression of folklore. Furthermore the expression
"performance" means the presentation of the work by actions such as dancing, acting, playing,
reciting, singing, delivering, declaiming or projecting to listeners or spectators.
Was there presentation of the work through delivery? In the case of Sikuku Agaitano vs.
Uganda Baati HCCS No. 0298 of 2012, I had occasion to consider the meaning of the
expression "performer". The Plaintiff's photos appeared in a promotional magazine of the
Defendant. However the evidence was that the Plaintiff was notified that there would be a
filming of them while at work. At page 12 of the decision I held that the reference to
Decision of Hon. Mr. Justice Christopher Madrama
Izama *^*~?+:
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