earlier work for the latter work to satisfy copyright law requirement of originality (see Feist
Publications, Inc versus Rural Telephone Service Company 499 US 340 (1991)).
The Plaintiff's Counsel further maintains that section 10 (c) of the Copyright and Neighbouring
Rights Act preserves the moral right of the author of the works including literary works to object
to and seek relief in connection with any distortion, mutilation, alteration or modification of the
work. In other words the author of the primary work must have consented to the derivative work
to be created. In the absence of the Plaintiffs consent, the Defendant or the third-party do not
have a defence and the ringtones remain the copyright of the Plaintiff.
As to the defence that the Plaintiff's speeches were already in the public domain, the Plaintiff's
Counsel submitted that in the case of The Estate of Martin Luther King Jr. Inc (supra), the
speech "I have a dream" had gone into the public domain and it was submitted that the copyright
did not vest in the estate. The court found that a general obligation only occurs where tangible
copies of the work are distributed to the general public in such manner as allows the public to
exercise dominion and control of any work or where the work is exhibited or displayed in such
manner as to permit unlimited copying by the general public. However in that case it was held
that the speech was a limited publication. Furthermore Counsel submitted that there must be
dedication of the work to the public which must be so expressly manifest but in the
circumstances of this case there was no such dedication.
The defence of fair use for purposes of current information of the Plaintiff's political speeches.
The Plaintiff's Counsel relies on section 15 (1) (h) of the Copyright and Neighbouring Rights Act
for the submission that even if all the ringtones were political speeches, the ringtones which were
run for over two years do not pass the test of being either news or current information. They
were anything but current news. Even if they were, they did not meet the mandatory requirement
attached of "fair use" under section 15 (2) (a) of the Copyright and Neighbouring Rights Act
which provides that fair use is inconsistent with commercial use. Furthermore the Plaintiff's
Counsel submitted that the Defendant was selling the ringtones for a fee. The ringtones also
failed the test of amount and substantiality of the portion used in relation to the protected work
and the nature of the protected work. The ringtones manifested they were constituted singularly
of the Plaintiff's speeches and nothing more. For that reason the test of fair use is absent from the
Defendant or the third-party. In the absence of a valid defence pleaded and proved by the
Defendant/third-party, the Plaintiff's Counsel submitted that the second issue should be resolved
in the affirmative.
In reply the Defendants Counsel reiterated submissions on issue one that the Plaintiff's interview
is not eligible for copyright and cannot as a consequence thereof be infringed. To constitute
infringement of the copyright within the meaning of section 46 of the Copyright and
Neighbouring Rights Act, the Plaintiff must demonstrate that the Defendant has duplicated or
reproduced the copyright material for commercial purposes or for sale. In considering this matter
Decision of Hon. Mr. Justice Christopher Madrama
Izama *^*~?+:
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