capable of being reproduced. The caller tunes were marketed to the subscribers of the Defendant.
The Defendant obtained the caller tunes from the third-party.
Both parties through their Counsel endorsed a joint scheduling memorandum which was filed on
court record on 31 January 2014. At the scheduling conference the following issues were agreed
after some slight amendment to the issues agreed to in the joint scheduling memorandum
namely:
1. Whether the Plaintiff has copyright in the caller tunes, which are the subject of the suit?
2. Whether or not the Defendant and/or third-party infringed the Plaintiff‟s copyright?
3. Whether the Plaintiff‟s speeches are protected works under the Copyright and
Neighbouring Rights Act? (Not agreed to).
4. What remedies are available to the parties?
At the course of the hearing it has become apparent that the first two issues and the third issue
are intertwined. The first issue is specific to whether the Plaintiff has copyright in the caller
tunes, the subject matter of the suit. I do not see much prejudice in the fact that the issues were
framed differently by both Counsels. In the main submissions, the Plaintiff's Counsel framed the
issue number one as: Whether or not the Plaintiff has any rights in the subject, tunes/ringtones?
On the other hand the Defendant‟s Counsel framed the issue as: Whether the Plaintiff has any
copyright in the caller tunes, which are the subject of the suit?
There is no substantial difference between the two framing of the issue and none of the parties
are prejudiced as the subject matter discussed addresses the same controversy. The issue as
framed in the court after an amendment to the agreed issues in the presence of both Counsel is as
follows:
1. Whether the Plaintiff has copyright in the caller tunes, which are the subject of the
suit?
To be more specific the subject matter of this suit according to the Plaintiff's plaint has been
further narrowed down in the submissions of the Plaintiff‟s Counsel to the caller tunes specified
in paragraph 3 (a) of the amended plaint and not to other caller tunes also having the Plaintiff's
voice. Secondly, paragraph 3 (a) avers the cause of action of infringement of copyright. Thirdly
the Plaintiff's Counsel submitted on the right of copyright based on authorship of the works
which is the subject matter of the suit. Further submissions were made on an alternative cause of
action based on unjust enrichment.
I further agree with the approach of the Plaintiff's Counsel in the sense that the controversy about
whether the Plaintiff has copyright in the caller tunes is substantially a matter of interpretation
and not evidence though some evidence may be relevant as to how the caller tunes where
generated by the Third Party. However for purposes of considering the first central issue, it is an
Decision of Hon. Mr. Justice Christopher Madrama
Izama *^*~?+:
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