I will consider the provisions of section 15 of the Copyright and Neighbouring Rights Act as
well as case law on what amounts to substantial use. Every statute has to be interpreted on the
basis of its own language and unless there is doubt as to the meaning of a specific provision, it
should be interpreted as it is. Contextual interpretation only comes in where the meaning in a
particular section cannot be discerned from the wording used. However in this particular case no
one has pointed out any controversy in the meaning of section 15 of the Copyright and
Neighbouring Rights Act. I would therefore deal with the extensive subsections on the question
of fair use of works protected by Copyright.
Section 15 (1) of the Act provides that fair use of the protected work in its original language or in
a translation shall not be an infringement of the right of the author and shall not require the
consent of the owner of the copyright in several situations which are listed under the subsection
and which will be considered in turn.
In subsection (a) it is fair use where "the production, translation, adaptation, arrangement or
other transformation of the work is for private personal use only;" in this case it has not been
suggested that the use of the Plaintiffs work was for private personal use only since it was used
in an advertisement for a public campaign section 15 (1) (a) of the Copyright and Neighbouring
Rights Act does not apply to the Plaintiff‘s case or the Defendant‘s defence.
Subsection (b) of section 15 of the Act provides that "a quotation from the published work is
used in another work, including a quotation from a newspaper or periodical in the form of press
summary, where – (i) the quotation is compatible with fair practice; and (ii) the extent of the
quotation does not exceed what is justified for the purpose of the work in which the quotation is
used, and (iii) acknowledgement is given to the work from which the quotation is made."
In this particular case it cannot be concluded that there was any quotation from the published
work. Under section 2 of the Copyright and Neighbouring Rights Act, 2006, the word
"publication" means the lawful reproduction of all work or of an audiovisual or audiovisual
sound recording, fixation or of sound recording for availability to the public; and includes public
performances and making available of the work on the Internet. Whereas the music was part of
an advertisement which may be defined as the publication, the word "published" means that the
work is made available to the public in a reasonable quantity for sale, rental, public lending or
for other transfer of ownership or possession of the copies. I do not agree that there was a
quotation of the published work by playing the Plaintiff's song in the background of the
advertisement jingle. The Plaintiff song was played in the background and comes out clearly at
the beginning and at the end of the advertisement jingle. There was no quotation and therefore
the provisions of section 15 (1) (b) of the Copyright and Neighbouring Rights Act does not apply
to the Defendants defence of fair use.
As far as subsection (c) of section 15 (1) of the Act is concerned it provides that: "a published
work is used for teaching purposes to the extent justified for the purpose by way of illustration in