The performer links the work to the consumer through the performance or
auxiliary role. The work of the performer is dependent on the work of the author.
This demonstrates that the auxiliary is the intermediary between the original
works and the consumer of the works. Neighbouring rights under section 21 (2) of
the Copyright and Neighbouring Rights Act are rights attached to the auxiliary role
of the performer or a producer or broadcasting company and do not in any way
affects the copyright in the literary, scientific or artistic work from which it arises.
The Plaintiff is not an author of any literary, scientific or artistic work. The
photographs and the organisation of the advertisement is the work of the
Defendant who commissioned or paid some other persons to film and
photograph. The Defendant employed professionals to create the work which
ended as the advertisements in issue. The assumption is that the Defendant is the
author of the works or the Commissioner of the works. Neighbouring rights are
dependent on the original works created by an author which works enjoy
copyright. Under section 4 of the Copyright and Neighbouring rights Act authors
specified in section 5 enjoy copyright where the work is original and is reduced to
material form in whatever method irrespective of the quality of the work or the
purpose for which it is created. Under this section the work is original if it is the
product of the independent efforts of the author. A list of the works affected
under section 5 demonstrates that they include dramatic, dramatic – musical and
musical works; audiovisual works and sound recording, including cinematographic
works and other work of a similar nature. They include works of drawing,
painting, photography, typography, mosaic, architecture, sculpture, engraving,
lithography and tapestry.
The works could be classified under section 5 (1) (f) and (c) of the Copyright and
Neighbouring Rights Act to include photographic, audiovisual works and sound
recording. The Plaintiff complains about the use of these photos in a magazine of
the Defendant as well as the use in newspapers for purposes of advertisement of
the Defendant's products. Secondly the Plaintiff complains about the telecast of
audiovisual recording of his person while working. The point to be made is that
the facts disclose that the Plaintiff is not the author of the works.
Decision of Hon. Mr. Justice Christopher Madrama
13