"… the physical person who created or creates work protected under
section 5 and includes the person or authority commissioning work or
employing a person making work in the course of employment."
The persons who created and did the video shooting or who employed the person
who carried out the work of shooting the photos and video is/are the authors or
author of the works. The exact relationship between an author and a person
having neighbouring rights has to be clear and not hazy. A photographer who
films activity in a market might not require permission of everybody in the market
to publish or use the works. Neighbouring rights depend on and arise from
original works of an author. Secondly when considering the economic rights of an
author under section 9 of the Copyright and Neighbouring Rights Act, they include
the right to publish and produce or reproduce the work and to distribute or make
available to the public the original copies of the work through the sale or other
means of transfer of ownership. The rights include the right to perform the work
in public or of broadcasting the work and communicating the work to the public
by wire or wireless means or through any other means of making the work
available to the public; to commercially rent or sell the original or copies of the
work.
It has not been proved to the satisfaction of court other than the fact that it is the
Defendant who commissioned or instructed the carrying out of the works as to
who the author of the works is. In the premises it cannot be concluded that the
Plaintiff has any neighbouring rights associated with the original works
presumably owned by the Defendant. The Plaintiff does not qualify to have
neighbouring rights as protected by the Copyright and Neighbouring Rights Act
2006.
I will consider the evidence to conclude the issue and in so doing will exclude the
issue of neighbouring rights as framed in the second issue. The Plaintiff’s
neighbouring rights were not infringed because it cannot be concluded that the
Plaintiff had any neighbouring rights to the works especially the advertisements
that were telecast on television and publications in print media.
Decision of Hon. Mr. Justice Christopher Madrama
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