"reproduce, fix, duplicate, extract, imitate or import into Uganda otherwise than for his or
her own private use;
distribute in Uganda by way of sale, hire, rental or like manner; or
Exhibit to the public for commercial purposes by way of broadcast, public performance
or otherwise.
Secondly, infringement occurs where the piece of work is used in a manner prejudicial to the
honour or reputation of the author. Under section 47 (1) a person who without authorisation or a
licence from the rights owner or his agent publishers, distributes or reproduces the work or
performs the work in public broadcasts the works or imports any work and uses it in a manner
which, were it work made in Uganda, would constitute an infringement of copyright commits an
offence.
A careful analysis of sections 46 and 47 shows that a licence, assignment or other authorisation
under the Copyright and Neighbouring Rights Act would not constitute infringement. Any
permission by the Copyright and Neighbouring Rights Act would be permitted use and therefore
"fair use" as prescribed by statute. Consequently where it is proved that there was fair use; there
would be no infringement of copyright. In the premises issue number one cannot be concluded
without first considering issue number two which is whether the Defendant's action was "fair
use" of the Plaintiffs Copyright in the song "let's go green". In fact it may be a waste of time not
to first consider the second issue. If it is fair use, there is no need to consider the first issue. If it
is not fair use, then it would follow that the first issue can be considered fully. The conclusion on
the first issue is therefore stayed until after resolution of the second issue as to whether the
Defendant's actions fell within the fair use exception.
Whether the Defendant's actions fall within the fair use exception?
On this issue the Plaintiff's Counsel has conceded that if the use of the Plaintiff‘s work amounted
to fair use, then the Defendant is excused. The submission of the Plaintiff is that use by the
Defendant does not fall within the 11 situations stipulated under section 15 (1) of the Copyright
and Neighbouring Rights Act. I have duly considered the submissions of the Plaintiff's Counsel
set out above. In the reply thereto the Defendants Counsel submitted that there was no
reproduction, imitation or duplication of the Plaintiff's song. The song is not an exact copy of
"let's go green" composition. Secondly the song featured two different artists. Thirdly the
substantiality test must be applied to the lyrical content and length of time of the jingle. The
Defendant's jingle is not an exact replica of the Plaintiff's song in content and style, structure and
time. No loss or harm was intended or occasioned by the unsubstantial use of the Plaintiff's song.
Consequently it fell within the elements of fair use doctrine under the Copyright and
Neighbouring Rights Act 2006. Furthermore the song was used to communicate a public interest
message on the conservation of the Namanve forest reserve. The Defendant‘s Counsel relied on
article 39 of the Constitution which gives every citizen the right to a clean and healthy
environment.