advertisement. In the premises the Plaintiff is not entitled to any of the claims
and no right of his was infringed or violated.
Whether the Plaintiff is a cause of action against the Defendant?
The Plaintiff's Counsel submitted that the Plaintiff has a cause of action against
the Defendant. The cause of action means a bundle of facts which give rise to a
right of action. In Halsbury's laws of England fourth edition volume 37, it is
defined as the factual situation the existence of which entitles one person to
obtain from the court a remedy against the other. Consequently the facts clearly
show that the Plaintiff is entitled to obtain the relief from the court. The claim of
the Plaintiff originates from the Copyright and Neighbouring Rights Act 2006. The
facts of the case are not denied but have been admitted by the Defendant. These
are the facts that the Plaintiff is an Employee of the Defendant and his image was
used in the advertisements.
Under section 45 (1) of the Copyright and Neighbouring Rights Act 2006, a person
whose rights are in imminent danger of being infringed or are being infringed may
institute civil proceedings in the commercial court to prohibit the continuation of
the infringement. The section is self explanatory and permits an aggrieved person
to bring an action in the commercial court. Section 21 of the Copyright and
Neighbouring Rights Act provides that neighbouring rights are attached to the
auxiliary role played by performers for the fulfilment of literary works and artistic
works, the provision of destiny and permanence in works etc. The Plaintiff
contends that his images were used without his authorisation or consent. The
Plaintiff's Counsel submits that the Plaintiff can be categorised as a performer.
And that this was not denied. What is only disputed is the authorisation and his
rights as a performer as to whether it is protected by the law. Counsel submitted
that there was no authority to take photos or pictures of the Plaintiff and there
was no authority to publicise, fix them or broadcast them in infringement of the
provisions of the Copyright and Neighbouring Rights Act 2006. On the basis of the
facts the Plaintiff is entitled to a remedy in damages as provided for under section
45. With regard to whether the Plaintiff has a cause of action Counsel relied on
the case of Auto Garage versus Motokov [1971] EA 514 that the three essential
Decision of Hon. Mr. Justice Christopher Madrama
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