Recently, the High Court in Uganda delivered an important judgment in the case of Angella Katatumba v. Anti-Corruption Coalition of Uganda Civil Suit No. 307 of 2011. A copy of this judgment is available here. In this case, Katatumba approached the Court for general, aggravated, exemplary, punitive damages against Anti-Corruption Coalition of Uganda (ACCU), a non-governmental organisation, for copyright infringement of her song: “Let’s Go Green” (featured above). The IP-savvy Hon. Mr. Justice C. Madrama presided over this matter and found in favour of Katatumba and awarded the singer an award of general damages in the sum of Twenty Five Million Uganda shillings (Ushs 25,000,000/=), aggravated damages of Thirty Million Uganda shillings (Ushs 30,000,000/=), an award of interest at 8% per annum from the date of judgment till payment in full and the costs of the suit.
This blogger believes that this judgment in Uganda is significant for Kenya and other common law copyright jurisdictions as it addresses several important aspects of civil actions for copyright infringement, including copyright ownership, evidentiary matters and fair use/fair dealing defences.
In any copyright infringement case, there are three vital elements that must be established, namely access, substantiality and copyrightability. In case of access, both parties agreed in the pre-trial conference that the song in question “Let’s Go Green” had been released in the market as both audio and audiovisual material marketed in hardcopy as well as soft versions on YouTube as well as other soft media.
With regard to substantiality, it was agreed by the parties at the pre-trial stage that in or around May/April 2011, in a campaign against the destruction of Namanve Forest, ACCU caused to be made on various FM stations in Uganda advertisements in which a portion of the song in question “Let’s Go Green” was used. Substantiality is an important doctrine in copyright infringement. In such cases, the question to be asked is whether the part infringed forms a substantial part of the copyrighted work. Whether the part taken is substantial largely depends on its quality as well as quantity. On this ground, ACCU’s counsel argued that there was no reproduction or imitation of the song in audio format and that the portion of the song that was used was within fair use permissions of the Uganda Copyright and Neighbouring Rights Act 2006 therefore the portion used by ACCU was “negligible” and “unsubstantial”. However, the court disagreed and held as follows:-
“I have duly listened to the exhibited CD containing both the song “let’s go green” and the advertisement jingle. It is quite clear that the structure of the song is the same. It starts with the “let’s go green” song and an appeal for people to take action on the environment (…) Finally it is indicated in the advertisement jingle that the message was brought by the Anti Corruption Coalition Uganda (the Defendant). It ends with the Plaintiff’s song “let’s go green”. While the verbal messages are being given, the music keeps on playing in the background the whole time. What happened is that the volume was only tuned down to make the message audible and then increased again to end with the song “let’s go green”. The Plaintiff’s song “let’s go green” was used for the entire advertisement.”
The final limb of the infringement test, copyrightability, was the most interesting in this case due to a fatal error made by ACCU’s counsel and this blogger’s friend, Paul Asiimwe of SIPI Law. Authorship is at the heart of copyright since it is the author that expends sufficient on making the work to give it an original character and reduces the work to material form. In the present case, the fatal error made by ACCU was to agree at the pre-trial stage that Katatumba was the composer; producer and copyright holder of the musical production/recording entitled “Let’s Go Green”. Therefore the agreed issues for trial were simply: 1) Whether the Defendant infringed the Plaintiff’s copyright? 2) Whether the Defendant’s actions fall within the fair use exception? and; 3) Whether the Plaintiff is entitled to the remedies sought?
This fatal error on the part of ACCU becomes clear when ACCU counsel makes seemingly persuasive submissions that the song in question could either be a work of joint authorship or a commissioned work. In the course of ACCU’s submissions, it is clear that the song in question is actually a collaboration between two authors namely Jocelyn Keko (alias “Keko”) and Angella Katatumba. Therefore had this issue been raised at the pre-trial stage by ACCU, the court would have been forced to determine whether Katatumba has adduced sufficient proof that Keko had assigned all her rights in the song to Katatumba. In the absence of this proof of assignment, ACCU would have been able to argue convincingly that Katatumba lacks locus standi to sue for infringement as she is not the sole author/owner of the work in question.
Secondly, in the course of the trial, it was revealed that the British Council in 2010 commissioned the song in question and that Katatumba was paid Uganda shillings 7,800,000/=. Katatumba stated this both in her examination in chief which is in writing as well as during cross-examination. No details of the “commissioning” was elicited during cross-examination. In the re-examination she testified that she was paid by the British Council and made it clear that they were “just endorsing and they did not purchase rights”. Again, had this issue of commissioned work been pursued by ACCU at the pre-trial stage, it would have become an issue for determination by the court in making its judgment.
In this case, it appears that ACCU chose to base its entire defence on the principle of fair dealing. The principle of fair dealing in copyright is specified, rule-based and statutory in nature. In Kenya, the fair dealing provisions are in sections 26-29 of the Copyright Act, which covers, inter alia, instances where the work is used for private, academic purposes; criticism or review, reporting current events etc. In Uganda, the fair dealing provisions are in section 15 (1) of the Copyright and Neighbouring Rights Act. Of particular interest is the treatment by Madrama J. of “public interest” as a possible defence against copyright infringement. The learned judge rightly observes as follows:
“(…) what should be published should amount to criticism of the work and not a use of the work for another collateral interest such as propagating a campaign for conserving forests as in the Defendant’s case. This is because the Plaintiff’s work is not in issue and it is not the purpose of the Defendant to inform the public about the Plaintiff’s work. Illustrations of public interest cases include publication involving the disclosure of criminal conduct or misconduct generally of the copyright owner. It involves review or criticism of the work and how much of the work can be used fairly depends on the circumstances of each case.”
Generally speaking, the public interest exception allows copyright protection to be denied on the grounds that a particular work undermines the public interest. Therefore where this exception is raised in cases of infringement, the court will not grant any remedies to the copyright owner. For instance, some have argued that in the locus classicus Feist v. Rural Telephone, the white pages were not copyrightable partly because the public interest demanded that it be published and made available by the state agency.