images in its advertisements. The facts of the use of the Plaintiffs 'images' are not
disputed by the Defendant. However in the submissions the Plaintiff's Counsel
relied on the Copyright and Neighbouring Rights Act for the submission that the
Plaintiff’s neighbouring rights were infringed. The question is whether the Plaintiff
according to the evidence or facts proved in the suit had any neighbouring rights.
The term "neighbouring rights" is defined by section 2 of the Copyright and
Neighbouring Rights Act to include rights of performing artists in their
performances, rights of producers and music publishers and rights of
broadcasting companies in the programs and others as is provided under Part IV
of the Copyright and Neighbouring Rights Act. The first concern is that the Plaintiff
did not specifically allege breach of his neighbouring rights in the plaint. That
notwithstanding in the ruling on the preliminary objection on the ground of want
of cause of action, I decided that failure to quote the law was not fatal so long as
the facts disclosed a cause of action under the law. In the joint scheduling
memorandum the Plaintiff’s Counsel asserts that the Defendant's actions amount
to infringement of the Plaintiff’s constitutional, image and neighbouring rights. It
is therefore proper to establish whether the Plaintiff had any neighbouring rights
in the circumstances even before considering the question of whether his consent
was necessary.
Reference to neighbouring rights assumes that the Plaintiff is not the author of
the works which is the subject to copyright ownership independently of the
Plaintiff’s right. Under section 21 of the Copyright and Neighbouring Rights Act
and particularly subsection 1 thereof, neighbouring rights are rights attached to
the auxiliary role played by performers, producers of sound recording and
audiovisual and broadcasting companies. In other words neighbouring rights as
the term suggests is auxiliary to the original works. Performance may be of a play
to which copyright may belong to another author. The auxiliary role should be for
the fulfilment of literary or artistic works; the provision of destiny and
permanence in works; and the diminishing of distance in the publication of works.
Finally section 21 (1) ends with the words: "respectively, which auxiliary role is
dependent on the work of the author and without which the role cannot begin."
Decision of Hon. Mr. Justice Christopher Madrama
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