dealing in the law of copyright. The tribunal of fact must decide. In the present case,
there is material on which the tribunal of fact could find this to be fair dealing.‖
At page 1028 Lord Denning discusses quotations of large portions of the copy right owner‘s
work in the context of criticism and reporting:
―Although a literary work may not be published to the world at large, it may, however, be
circulated to such a wide circle that it is ‗fair dealing‘ to criticise it publicly in a
newspaper, or elsewhere. His happens sometimes when a company sends a circular to the
whole body of shareholders. It may be of such general interest that it is quite legitimate
for a newspaper to make quotations from it, and to criticise them—or review them—
without thereby being guilty of infringing copyright. The newspaper must, of course, be
careful not to fall foul of the law of libel. So also here these bulletins and letters may
have been so widely circulated that it was perfectly ‗fair dealing‘ for Mr Vosper to take
extracts from them and criticise them in his book. It seems to me, therefore, that Mr
Vosper may have a good defence of ‗fair dealing‘ to raise at the trial.‖
It is quite clear from the above two passages that 'fair dealing' is considered in the context of
criticism and newspaper reporting or news reporting. It is consistent with the general principle
that interim injunctions would not be issued to restrain publication or news reporting or freedom
of press of something in the public interest such as a political controversy. The Defendant was
not making a criticism of the Plaintiff's song "let's go green". The Defendant was not making a
reporting of the Plaintiff‘s work in any context but was rather using it to foster a campaign albeit
in the area of environmental protection.
According to David Bainbridge (supra) at page 195 the term "fair dealing" is approximate to the
term "fair use" which is used in the USA legislation. It covers research, or private study,
criticism, review and reporting current events. This conclusion seems to be consistent with
section 15 (1) of the Copyright and Neighbouring Rights Act which gives the parameters of 'fair
use'. According to David Bainbridge (supra) at page 198 quoting from the case of Hyde Park
Residence Ltd versus Yelland one of the first principles to determine whether a Defendant
could fall within the fair dealing exception requires a two-stage test. The first task was to
ascertain whether the publication was for a purpose within the fair dealing permitted acts. In
Uganda this is under section 15 (1) of the Copyright and Neighbouring Rights Act. The second
question to be asked is subsidiary to the first task. Where it does not fall within permitted acts
prescribed by the statute, there is no need to establish whether the dealing was fair i.e. to apply
the principles under section 15 (2) of the Copyright and Neighbouring Rights Act.
In the premises issue number two of whether the Defendant's actions fell within the "fair use"
exceptions is answered in the negative. From the facts and circumstances as well as the pleading
and authorities considered in the submissions, the Defendants use of the Plaintiff‘s song "let's go
green" in the advertisement jingle does not fall within the fair use exception.