New Vision in Uganda has reported that ex-Kampala Mayor Al Haji Nasser Ntege Sebaggala is suing leading telecommunications company MTN Uganda for copyright infringment by using his speech recordings as ringtones. It is reported that MTN has acknowledged that the recording is indeed Sebaggala’s voice but contends that he did not make the recording nor did he acquire any copyright for the speeches.
– all the proceeds collected by MTN in relation to the ringtones. In this connection he is reportedly demanding an audit to ascertain the money collected by MTN.
– a 20% monthly interest on the ascertained audited figure above, together with a 20% monthly interest on damages and costs of the suit, from the date of judgement until full payment.
– Ssebaggala is not the author or the physical person who created work of the sounding recording or ringtones, and as such is not entitled to protection under the copyright law.
– The ringtones were procured and uploaded by SMS Media Limited, which signed a service provision agreement with MTN.
– Sebaggala’s speeches were publicly broadcast as current news of public interest and political events.
A ringtone is defined as a sound file that is played by a cellular or a mobile phone. Copyright law would therefore recognise SMS Media Limited as the copyright owner of the ringtone.
However under copyright law, the act of Sebaggala reading his speeches is considered a performance and the law recognises performers’ rights as one of the types of related rights under copyright.
Therefore if Sebaggala’s case were being heard in Kenya, the court would consider Section 30 of the Copyright Act (as recently amended) which lays down the exclusive rights of a performer such as Sebaggala:
Subject to section 30 of this Act, a performer shall have the exclusive right to carry out any of the following acts:
(f) distribution of a fixation of his performance or copies thereof, to the public.
(g) the making available to the public of his fixed performance, by wire or wireless means in such a way that members of the public may access them from a place or a time individually chosen by them. [Emphasis added]
Furthermore, Section 30A of the Copyright Act creates a right of equitable remuneration for performers therefore Sebaggala would be entitled to compensation:
30A (2) If a fixation of a performance is published for commercial purposes or a reproduction of a fixation of a performance is used for broadcasting or other communication to the public, or is publicly
performed, a single equitable remuneration for the performer shall be paid by the user to the collective management organization.
(3)The right of equitable remuneration under this section shall subsist from the date of publication of the sound recording or fixed performance until the end of the fiftieth calendar year following the year of publication, provided the sound recording or fixed performance is still protected under section 28 and 30.
(4) For the purposes of this section, sound recordings and fixations of performances that have been made available by wire or wireless means in such a way that members of the public may access them from a place and a time individually chosen by them shall be considered as if they have been published for commercial purposes. [Emphasis added]
Therefore under the Copyright Act of Kenya, Sebbagala would have a strong case for copyright infringement of his neighbouring rights as a performer. Uganda’s Copyright Act of 2006 also provides under section 22 that a performer has the right to authorise the following acts:
– the direct or indirect reproduction of a fixation of his or her performance in manner or form;
– the distribution or making available to the public of the original or copies of the fixation of his or her performance through sale or other transfer of ownership.
However unlike in Kenya, the Uganda Copyright Act does not provide a right to equitable remuneration for performers.
Another ground upon which Sebaggala can seek relief is image rights. The ringtones were made from the sound of his voice, which is a part of his likeness therefore any attempt to appropriate any aspect of a person’s likeness would be actionable as unjust enrichment. IPKenya will be keenly following this case and is confident that the IP-friendly Judge Madrama will take this opportunity to provide useful jurisprudence in this rather obscure area of law.