The submission is fallacious because it is a departure from the pleadings and offends Order 6
rule 7 of the Civil Procedure Rules. Secondly the provisions of the law were misapplied. There
was no reporting of current events by the Defendant. Consequently the case of Ashdown (supra)
is irrelevant. The case dealt with freedom of expression. It does not hold that freedom of
expression gives one the right to use another person's work without their consent or even without
acknowledging the source.
The Defendants Counsel omitted to comment about the assertion that only a negligible portion of
the song was used. The Plaintiff's Counsel therefore reiterated submissions that there was a
substantial use of the Plaintiff‘s song.
Whether the Defendant is entitled to the remedies sought?
The Plaintiff seeks declarations that the Defendant infringed copyright and the Plaintiff's
Counsel contends that this is the natural outcome of deciding issues number 1 and 2 in favour of
the Plaintiff.
Secondly general damages are at the discretion of the court and regard should be had to the
circumstances of each case.
The Plaintiff testified that she suffered humiliation and embarrassment as a result of being set on
a collision course with government offices and agencies including the Minister responsible for
the environment. She was cast in a bad light by the advertisement. She testified that her song lost
value when it was reduced to a mere advertising jingle in the eyes of the public. She testified that
there was no way she would appear in public to perform an advertising jingle for pay. It would
look awkward and childish. For over a year she stopped performing the song. Although the
Plaintiff explained the usual frequency of her performances and her earnings there from, she
does not perform one song on such shows. It would be impossible to quantify her losses arising
from the Defendant's actions in exact terms and that is why the losses are claimed as general
damages.
In Prof Kakoma versus Attorney General (supra) the court found that the claim for 5.2 billion
Uganda shillings was excessive. The court considered two other factors namely that the Plaintiff
was already paid the sum of Uganda shillings 2000/= in 1962 (which was a substantial sum
then). Secondly the copyright in the national anthem the subject matter of this suit was jointly
held by the Plaintiff and the government and so he had no exclusive right. Consequently the
court awarded the Plaintiff a sum of Uganda shillings 50,000,000/=.
In the instant case the Plaintiff has exclusive rights to the Copyright. Secondly she has not
received a penny from the Defendant. Thirdly she produced this song purely for business reasons
unlike Prof Kakoma who did not set up to record a song for gain. Consequently damages
recoverable in the instant case ought to be substantially higher than those awarded in the