modification of the work. Moral rights include the right to withdraw the work from circulation if
it no longer reflects the author's convictions or intellectual concepts. Moral rights cannot be
assigned to any person except for purposes of its enforcement.
The analysis of the defence by the Plaintiff's Counsel is that a negligible portion of the Plaintiffs
work was used and secondly what was used was "fair use". The Defendants Counsel dwelt a lot
on the question of title to the works and did not adequately address the question of the negligible
use of the Plaintiff‘s works in the Defendant's jingle or advertisement in the campaign against the
giveaway of Namanve forest. This is specifically on the first issue as to whether the Defendant
infringed the Plaintiff‘s copyright. The Defendant's defence on the first issue is that the Plaintiff
has not title to the copyright and cannot sue and that she did not satisfy the court as to her the
title to the Copyright.
As far as the first issue is concerned the Defendant‘s Counsel prefaced the Defendant‘s defence
with general remarks that the Defendant is an advocacy group and found it necessary within the
mandate to communicate to the public the intended giveaway of the forest at the material time. In
one of the campaigns they came up with a jingle that incorporated a portion of the song "let's go
green". The Defendant's use of the song was of a non-commercial nature and was justified in the
public interest for saving Namanve forest at the material time. Secondly there was no
reproduction or imitation of the audio and portion of the song that was used was within
permissions of the Copyright and Neighbouring Rights Act 2006. Thirdly no loss was suffered
by the Plaintiff as a result of the Defendant's use of the portions of the audio "let's go green" and
the jingle was made for a non-commercial cause and in the public interest. The rest of the
submissions do not address the first issue because it dealt with the question of legal ownership of
the works.
In the premises I agree with the Plaintiff's Counsel that the Defendant‘s Counsel did not address
the issue of whether the portion used by the Defendant is "unsubstantial". Whereas the first issue
is intertwined with the second issue as to whether there was "fair use" by the Defendant, some
findings on the first issue need to be attempted. I cannot conclude on the basis of the submissions
of Counsel that the Defendant infringed the Plaintiff‘s Copyright without first making a finding
on the second issue which is whether the Defendant's actions which are admitted fell within the
fair use exception? As far as the first issue as to whether the Defendant infringed the copyright of
the Plaintiff, the Plaintiff's Counsel submitted that the actions of the Defendant violated all the
provisions of section 46 (1) and (2) of the Copyright and Neighbouring Rights Act, 2006.
Section 46 of the Copyright and Neighbouring Rights Act specifically deals with the sub topic of
infringements of Copyright. It provides that infringement of Copyright or neighbouring rights
occurs where, without a valid transfer, licence, assignment or other authorisation under the Act a
person deals with any work or performance contrary to the permitted free use and in particular
where that person does or causes or permits another person to: