I have additionally considered the definition of "performance" which means
presentation of the work by actions such as dancing, acting, playing, reciting,
singing, delivering, declaiming or projecting to listeners or spectators". The
Plaintiff's Counsel suggested that the Plaintiff is a performer. The evidence
demonstrates that the Plaintiff was going about his business when he was filmed
and photographed. He was not required to pose for the photograph or for the
filming though they had been given new uniforms for the occasion. He was filmed
and photographed in the ordinary course of his performance as a worker. If the
Plaintiff is an actor then his action must fall within the definition of "performer"
under section 2 of the Copyright and Neighbouring Rights Act.
A 'performer' is defined to include an:
"actor or actress, singer, musician, dancer or other person who act, sing,
deliver, declaim, play in, interpret, or otherwise perform literary or artistic
works or expressions of folklore."
From the definition under the Copyright and Neighbouring Rights Act the Plaintiff
is not an actor because he was filmed and photographed in the ordinary course of
his work as an Employee of the Defendant.
Section 8 of the Copyright and Neighbouring Rights Act provides that where a
person creates a work in the course of employment by another person or on
commission by another person or body, in the absence of a contract to the
contrary, the copyright in respect of that work shall vest in the Employer or the
person or body that commissioned the work. Had the Plaintiff claimed to be an
author, the copyright in the works would have been with the Employer. I also
conclude that the Plaintiff is not a performer whose action was deliberate so as to
be a necessary ingredient of the works complained about and which ought to be
paid in terms of performance fees and I will give the reasons for my conclusion in
due course.
After considering all the above provisions I have come to the conclusion that the
Plaintiff did not have the rights of an author under the Act. The term "author" as
defined by section 2 of the Copyright and Neighbouring Rights Act means:
Decision of Hon. Mr. Justice Christopher Madrama
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