Principles of Copyright Law

Dr. Anthony C.K. Kakooza

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Major topics to be covered:
1. What is Copyright Law?
2. What is the impact of Copyright law on creativity
3. The theories of Copyright
4. Ways in which the system can be improved

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What is Copyright law? The Foundations of
Copyright Law
• Historical Overview (origins of copyright):
1556: Royal Charter established the Stationers’ Company in England
with exclusive control on all printing in the United Kingdom. Why?
Printing technology was resulting in production of multiple copies, so
author needed payment & recognition (as incentives).
1709: Statute of Anne: “An Act for the encouragement of learning and
for securing the property to copies of Books to the rightful owners
thereof” [that the rights of authors in their works be recognized]
19th Century: (a) Paris Convention for the Protection of Industrial
Property (20th March 1883); (b) Berne Convention for the Protection of
Literary & Artistic works (9th September 1886)
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Goals of Copyright law
1. Promote scientific, literary and artistic creativity
2. Recognize and protect property rights of creators, producers and
performers
3. Limit the extent and duration of such rights to prevent overly broad
or perpetual monopolies in creative works
4. Provide means to enforce the rights and to deter theft of the rights

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Three aspects of Copyright:
a) The Concept of Originality
In order for one to be entitled to copyright protection, the works must
be original, i.e distinct requirements:
- Independent creation (sec. 4(3) CRNA)
- Modest amount of creativity
See: University of London Press Ltd v. University Tutorial Press Ltd
[1916]2 Cn. 601 – on the concept of originality.

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University of London Press Ltd v. University Tutorial Press Ltd
[1916]2 Cn. 601 – on whether exam papers were original works
‘Original work’ in this sense, doesn’t have to be the expression of
original or inventive thought. There should be expression of thought in
literary work in print or writing. The required originality relates to the
expression of the thought. The Copyright Act requires that the work
should originate from the author.
If an author, for purposes of copyright, must not draw on the stock of
knowledge which is common to himself and others who are students of
the same branch of learning, only those historians who discovered
fresh historical facts could acquire copyright for their works.
- Peterson, J

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Can Bobi Wine claim copyright to “Tuliyambala engule” as
“original”?
When the battle is over
(Composed by: Isaac Watts, 1721)
Statute of Anne, 1710 era, no
copyright protection for music

1977: When Luganda (translated)

version became prominent
(orphaned work??)

Sec. 5(2) CNRA – Protects derivative

works as original works 7
Characteristics that are NOT required for
copyright protection:
1. Novelty: To get copyright protection, work does not have to be new.
Creating a piece of work genuinely without the realization that someone
else has created a similar piece of work, can still earn you copyright
protection.
2. Intent to be original: It is not necessary that the author tries to create
something of his own; it is only necessary that the author does so.
3. The work in question does not have to be artistic: A horrible piece of
art, or not art at all, is still copyrightable. (sec. 4(1) CRNA)
4. Whether the work is commercial or not. (sec. 4(1) CRNA)
5. Whether the work is lawful or not (as opposed to trademark law which
does not protect immoral works).

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Three aspects of Copyright: - Continued
b) The distinction between facts, ideas and expression
- Sec. 6, CRNA: “Ideas, concepts, procedures, methods or other things
of a similar nature shall not be protected by copyright . . .”
- Byte Legion technologies v. MTN (Ug.) Ltd:
Suit for breach of confidence and unjust enrichment over a proposed
SMS-based brokerage Service. Defendant contends that what the
plaintiff had was simply an idea or proposal which did not confer a right
which could be breached. Court agreed, stating that – plaintiff cannot
seek protection for an idea.

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 Bill Diodato Photography v. Kate Spade

Original Photograph Accused Photograph

 Are maps factual and therefore not copyrightable? Sec. 5(1)(h)
• Not all components of maps enjoy copyright protection. e.g., location of
geographical features such as roads and rivers; national boundaries; names
of cities and towns, are all exempted and considered factual.
• What aspect of Maps enjoy copyright protection?
- Original Selection, arrangement or presentation of individually unprotected
elements;
- Entirely conventional maps receive no protection whatsoever.
- See: Nairobi Map Services Ltd v. Celtel Kenya Ltd & Ors, C.S. No. 873 of 2009.
Court held that Plaintiff had not proved any loss arising from use of its
map. Suit dismissed.

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Three aspects of Copyright: - Continued
c) Multi-lateral treaties touching on Copyright law – freedom of
expression and their relation to the domestic law on copyright: Points of
consideration:
- Each country in the world, creates, interprets and enforces its own
copyright laws;
- Enforcement of such laws reaches no further than those countries’
borders, i.e., copyright law has no extra-territorial application;
- Each country only adopts its own copyright laws based on international
treaties and those laws only apply to acts in that country

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Convergence of National Copyright laws across the globe: Its
influence on international law – The trends
a) Elimination of discrimination against foreign copyright
authors/owners;
b) Mitigation of variations across countries exemplified by the
reduction in the divergence among countries concerning meaning
of originality
c) Steady increase in scope, strength and duration of copyright
protection in all countries

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Three aspects of Copyright: - Continued
c) Multi-lateral treaties touching on Copyright law – freedom of
expression and their relation to the domestic law on copyright
Copyright and Human Rights: The Universal Declaration of Human Rights:
- Art. 17: Right to property (similar to our Art. 26(1)&(2) 1995
Constitution)
- Art. 19: Right to freedom of opinion and expression (Art. 29 of
Constitution)
- Art. 26: Right to Education (Art. 30 of Constitution and Sec. 15 CNRA)
- Art. 27(1): Free participation in cultural life of community.
- Art. 27(2): Right to protection of moral and material interests resulting
from scientific, literary or artistic production of which he is the author.

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Multi-lateral treaties touching on Copyright law- continued:
• Berne Convention of 1886:
- Grants automatic protection in all Member States from moment of
creation.
- No subject to formalities and no provision for an International
Copyright office.
- No enforcement provisions.
- Provides for Moral rights and fair use – this is the reason the U.S.A
was reluctant to join until 1988.

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Berne Convention Members (January 2016)

Source: http://en.wikipedia.org/wiki/File:Berne_Convention_signatories.svg
Multi-lateral treaties touching on Copyright law- continued:

• The Trade Related Aspects of Intellectual Property Rights Agreement

(TRIPS):
- Is an annex to the World Trade Organization agreement.
- It incorporates all the Berne principles/provisions, except for moral
rights provisions.
- Provides the 3 step test also provided for in Berne: (s. 15 CNRA)
a) Special cases;
b) Do not conflict with normal exploitation of the work;
c) Do not unreasonably prejudice the legitimate interests of the
author.
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World Trade Organization Members (January 2016)

Source: https://www.wto.org/english/thewto_e/countries_e/org6_map_e.htm
Multi-lateral treaties touching on Copyright law- continued:

• The Kampala Protocol on Voluntary Registration of Copyright and related

Rights, 2021:
Its objectives:
a) establish, manage, facilitate and coordinate a system for voluntary
registration and notification of copyright and related rights;
b) Uphold common principles regarding voluntary registration and
notification of copyright and related rights;
c) Provide copyright holders means of presumption to authorship or
ownership of rights; and
d) To ensure that creative industries contribute to the socio-economic
development of countries.

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Theories of Copyright Law – John Fisher

The theories relate to arguments concerning when and why copyright

should be created and the scope or limit as to when those rights should
be.
a) Fairness theory - influenced by common law tradition
b) Personality or personhood theory – prevalent in codified legal
systems (civil law tradition) and Latin America
c) Welfare theory and the tradition of utilitarianism – this influences
law scholars and law makers in almost all jurisdictions in the world
d) Cultural theory – the influence or relevance of cultural norms over
copyright protection

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The role of theory (why they matter)
• When expanding or revising copyright law, law makers present
arguments concerning how much protection creative works ought to
get. As such, law makers refer to such theories to address these
issues;
• In understanding how copyright has evolved, one therefore needs to
know the content of the theories law makers attend to.
• Theories also help us to know what the law should look like. One
should not only argue about what the law is but also what it should
be.

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1. Fairness Theory of Copyright law
• Copyright should be crafted to give authors what they deserve, i.e.,
the rights or rewards that they are morally entitled to either because
they worked hard or have contributed to the culture.
• It proposes that a person who works hard deserves to be
compensated and the law should be designed to ensure that he
receives that compensation.
• Each person deserves a share of the fruits of a collective project
proportionate to the magnitude of his or her contribution to the
venture.
• That a person who works hard deserves to control the fruits of her
(intellectual) labour; she is entitled to appropriate compensation; a
property right in her creations; the right to do with them as she
wishes.
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Support for the fairness theory from John Locke’s theory of
property rights (Chpt. 5 of 2nd Treatise of Government):

“…every Man has Property in

his own person. This no Body
has any right to but himself.
The Labour of his Body, and
the Work of his Hands . . . are
properly his.” John Locke, Two
Treatises on Government (1690)

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Application of Locke’s theory to Copyright law:
• Public domain provides a plausible analogue to Locke’s “commons”;
• Labor is ordinarily the largest input (in producing property);
• Provisos offer ways to balance creator’s rights with user’s interests, i.e.,
well aligned with copyright exceptions and limitations.
• But how do you decide how large a property rights award is appropriate?
Locke’s theory points to compensation but does not give much guidance
as to what proportionality means.
• Locke’s commons can be related to facts & ideas upon which copyright is
applied as labour. But an author’s ideas, if original, do not apply to the
commons but exist in private material – and yet cannot be owned under
copyright. So Lockean theory generally not applicable under copyright.

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2. Personality theory:
• Laws should be crafted to give
people the rights, powers or
protection they need in order to
fully realize and enjoy
personhood.
• “An Artist’s personal intent
concerning the person and
character of his work of art
deserves weight so long as it is
reasonable” Judge O’Brian of
Ontario Court of Justice in
Michael Snow’s case.

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Explaining Personality theory (social & economic theory) – associated
with Kant and Hegel:

• Certain kinds of bonds with objects are crucial to human flourishing

and consequently, the law should respect those bonds by creating
and enforcing private property rights.
• Private property rights are crucial to the satisfaction of some
fundamental human needs on the basis of which policy makers
should strive to create and allocate entitlements to resources in a
manner that best enables people to fulfill those needs.
• The artist defines herself in and through her work; a way in which she
establishes and maintains her identity.
• This is associated with the moral rights principle - protection of an
individual’s inherent dignity.
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 Personhood theory of IP & Moral rights connection (s. 10)
• Appreciation of the creators’ personhood interests provides support for
‘moral rights’. This encompasses the following:
1. Right of attribution: right to be given credit for things you have created;
2. Right of integrity: right to prevent destruction or mutilation of one’s
creations;
3. Right of disclosure: right to decide if and when to make one’s works public;
4. Right of withdrawal: right to demand that works that one has come to
regret can be returned (s. 10(2))
5. Right against excessive criticism: enables an author to recover against a
critique who abuses him or her;
6. Droit de suite: right to collect a fee when one’s works are re-sold.

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Difficulties with the Personality theory:

• Should an artist who invests herself in a work of visual art be able to

prevent imitations: (Sylvia Katende vs Bank of Uganda)
• May an author alienate her right to control the copying of her work?
• Should a celebrity’s persona be protected against commercial
exploitation by others? (Winnie Asege v. Opportunity Bank)
• If applied with copyright duration, then this theory makes protection
overly lengthy.
• This theory fails to respect the contribution of an employee to a piece
of creativity.

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 3. Welfare theory:
• Focuses on welfare of society at large;
• Its proposition is that unless authors can recoup the cost of their creations (cost
of expression), they will not bother producing those creations in the first
instance & the way the law enables them to recoup their costs is through
suppressing competition in creation & distribution of their works (e.g.,
Collecting Societies/CMOs)
• This creates a monopoly which attracts profits and stimulates further creativity.
• The law should create a system of incentives that will induce potential authors
to generate works from which we will all benefit and make the fruits of those
efforts widely available.
• The law should combine a stimuli for creativity and mechanisms for distributing
creative works to consumers
• The Utilitarian theory underlies the welfare theory.

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Utilitarian theory as foundation of Welfare theory:
• This balances out the “power of exclusive rights to stimulate the
creation of inventions and works of art and the tendency of such
rights to curtail widespread public enjoyment of those creations., e.g.,
creative commons, folklore (T.C.Es).
• The key idea to utilitarianism is that government and law should be
organized so as to create the greatest happiness for the greatest
number of people. This is through creating a balance of incentives
and punishment.
• Characteristics of Utilitarianism:
1. Forward looking (prospective);
2. Collective rather than individual (welfare of society as a whole);

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Challenges with the Welfare/Utilitarian theory:
• High Cost of creation – e.g., R&D industry/innovation
• High uncertainty - if you are unsure of success as an investor, you
may give up at the onset; artists are considered as gamblers
• Low marginal cost of production – digital recordings can very easily
and cheaply be reproduced
• Ease of reverse engineering –the easier it is to figure out how a
product was created, the easier and cheaper it will be to replicate it
without permission
• Positive externalities from the public good – benefits conferred not
only on consumers but on third parties as well, e.g., internet
protocols
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4. Cultural Theory:
• This also looks to the wellbeing of society at large but defines the well
being differently;
• Here, the law should be crafted so as to foster a just and attractive
culture
• The law seeks to identify and cultivate conditions that would support
widespread human flourishing.
• Unlike the welfare theory, it is not founded on the principle of
consumer sovereignty, i.e., measuring people’s well being currently by
what they desire or loath.
• It is concerned with distributive justice, i.e., that all persons are given
a fair distribution of material resources.

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What sustains the Cultural theory?
• Human nature – conditions or functioning necessary for the full
realization of personhood, e.g life, health, autonomy, engagement,
self-expression, competence, connection and privacy
• Good life
• Distributive Justice – universal basic capabilities, sufficiency,
democratic equality
• Culture – diversity (which fosters human flourishing), Art, Education
and Democracy

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Application of the Cultural theory:

• Educational materials • Supplementary government

• The idea/fact/expression funding
distinction • Alternative compensation
• Fair use system for recorded
entertainment
• Moral rights
• Traditional Knowledge & folklore
• Libraries
• Trademarks
• Formalities
• Developing drugs
• Compulsory licensing
• Differential pricing

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Subject matter of copyright law

• Literary works
• Dramatic works
• Music
• Audio-visual works
• Fictional characters
• Visual and Architectural works

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Re-collection:

• Copyright protection subsists in original works of authorship fixed in

any tangible medium of expression, now known or later developed,
from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or devise.
• In no case does copyright protection for an original work of
authorship extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery, regardless of the form in
which it is described, explained, illustrated, or embodied in such
work.
• Works eligible for copyright protection (sec. 5(1)) – this list is non-
exhaustive

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Literary works as works of copyright
• Includes novels, short stories, blogs, poems, magazine or newspaper
articles, catalogues, advertisements, pamphlets, etc (s. 5(1)(a)
• They now also generally include computer software, although sec.
5(1)(e) mentions computer programmes and electronic data banks.
• Coretec Systems & Solutions Ltd v. Jackson Mutuku Kiio & 2 Ors
[2017] eKLR: Plaintiff sought a permanent injunction to restrain the
defendants from using confidential information of the plaintiffs for
purposes of enhancing their trade/business for two years as per their
agreements. They thereafter sought a permanent injunction to
restrain the defendants from infringing their registered copyright in
literary works.

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Literary works as works of copyright - continued
• Classic Art Works Ltd vs. Vincent Lukenge HCCS 206 of 2010:
This case addresses a number of issues:
- When does a right in copyright works get exhausted?
- The First Sale Doctrine: This prevents the copyright owner from
controlling the future transfer of a particular copy once its material
ownership has been transferred. However, the mere sale of the work
of copyright without a specific transfer by the copyright holder, of its
exclusive right to prepare derivative works, does not transfer that
derivative right to the second party.

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Dramatic works, dramatic-musical & musical works
• Sec. 5(1)(b)
• A key example of a dramatic works is a Play.
• You cannot reproduce the script of a play without the permission of
the owner of the copyright in it, nor may you publicly perform the
play without the owner’s permission.
• Can also include choreographic works and pantomimes (s. 5(1(d).

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What constitutes choreography so as to earn copyright
protection? Any copyright protection here?

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What constitutes choreography so as to earn copyright
protection?
• U.S Copyright office: “Choreography is the composition and
arrangement of dance movements and patterns usually intended to
be accompanied by music. As distinct from choreography, pantomime
is the art of imitating or acting out situations, characters, or other
events. To be protected by copyright, pantomimes and choreography
need not tell a story or be presented before an audience”
• Note: Choreography has to be captured into a stable medium
(fixed/material form – sec. 4) in order to earn copyright protection.
• Choreographers tend to fail to write down their dance moves, but can
get protection if they video tape them.

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Are these worthy of copyright protection as fixed forms of
creativity?

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What does “fixation” mean? Sec. 2 CNRA
• “fixation” means the embodiment of images or sound or
both images and sound in a material form sufficiently stable
or permanent, to permit them to be perceived, reproduced
or otherwise communicated through a device during a
period of more than transitory duration.
• The formality of fixation is ineffective if people are unaware
of it.

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 Copyright in Music:
• There are two different types of copyright that involve music:
a) Copyrights in musical compositions (sec. 5(1)(b)
b) Copyrights in musical sound recordings (sec. 5(1)(c)
• Obsessions Co. Ltd vs. Warid Telecom (U) Ltd & Dmark Co. Ltd
Plaintiff sued Warid for infringement of several pieces of their artistic work
as caller tunes.
Plaintiff was adduced as owner of the copyright in question (3 albums)
Note: - Sec. 46(1) provides for infringement over ‘any work’.
- In any IP infringement, it is always important to connect all aspects of the
work owned by the Plaintiff, to what was infringed by the defendant.
- Defendant conceded to having used Plaintiff’s work but ownership & value
of the songs was believed by Court “on the balance of probabilities”.
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Motion pictures & other audio-visual works (sec. 5(1)(c)
• “audio visual fixation” means work consisting of a series of related
images which impart the impression motion, with or without
accompanying sounds, susceptible of being made visible and where
accompanied by sound, susceptible of being audible such as cinema,
television or video films (sec. 2, CNRA)
• In a typical film, the only existing copyright is in the film itself.
• In most countries, this copyright is owned by the Producer of the
movie himself;
• The producer can be a company which creates the film, headed by a
motion picture studio which finances & distributes it; the Producer
can be a branch of the subsidiary itself.

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Copyright in motion pictures/films – continued…
• To create the film, the producer needs assistance of various artists –
screen writers, actors, directors, etc
• It is not definite for them to share in the film copyright. Contractual
arrangements are therefore necessary to acquire all the rights.
• In some jurisdictions (e.g., U.S.A) all copyright is owned by the
producer who hires the various artists.
• A typical splitting or utilization of copyright in films is illustrated
below:

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 Director Composer
Movies Actors “Location”
owners
Screenwriters
Record
Novelist Company

“Work for Hire” agreements

Music
Publisher

Producer
Distribution agreement

Studio

Advertiser
Theatres
Merchandise
PayTV, Airlines manufacturer
Sales
Record
TV Networks company
Cable
Video Stores
company
Fictional Characters
• A character enjoys copyright protection independent of the work he
or she appears, i.e., a person – without permission - cannot write a
sequel to a fictional narrative that includes one or more of the
characters who appeared in the original.
• In order to qualify for this protection, a character must be important:
a) The character must constitute the story being told (Sam Spade test,
in the U.S.);
b) Where the character is well delineated (well-defined).

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• Sylvester Stallone wrote the script for • MGM considered using Anderson’s scripts
each of the first 3 ROCKY movies; he then but eventually decided not to.
played the role of the title character – When MGM & Stallone produced their own
ROCKY BALBOA. In each of the 3 movies,
ROCKY is an under appreciated sullen but version of ROCKY 4 in which he is depicted as
heroic boxer. In 1982, Stallone and MGM fighting a Russian, Anderson sued claiming
wanted to produce ROCKY 4. Timothy that copyright in his script was infringed by
Anderson wrote the script, with Rocky as
the Central figure, this time fighting a the MGM movie.
Russian boxer. Court rejected his claim based on the two
tests. Court: “The Rocky character had
become identified with the story”.
This position becomes complicated when more than one actor plays
the part of a character, thereby blurring the character’s characteristics

Where the character changes over time or is associated with several

actors, does the character forfeit copyright protection? NO
Only exception is a Scenes a Faire Doctrine (scene that must be
made/obligatory) that has become standard. 51
Visual and architectural works (sec. 5(1)(f), (g), (h)
• These include pictorial, graphical and sculptural works (paintings,
posters, statutes, etc)
• The general principle is that copyright protection is available to useful
articles only if the aesthetic and functional features of the article at
issue are separable.
• If an article does not qualify as a “useful” article, then the more
lenient rules of copyright law apply.
• A useful article is one with an intrinsic utilitarian function, that is not
merely to portray the appearance of the article or to convey
information.

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Rodin’s “Thinker” v. Silver Turkish Table lamp v. Sylvia Katende Sculpture

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• You can only get copyright
protection for your article if the
aesthetic and functional
dimensions are separable, i.e.,
(a) either physically separable (e.g.,
the stylized Jaguar shape is
copyrightable), or
(b) Conceptually separable (1. Is
form dictated by function? 2.
Which aspect of the article is
primary? 3. Separate concept, 4.
Stand on its own as work of art?
Intent of the creator)

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 Conceptual Separability
1. Is form dictated by function? If so, conceptual
separability does not exist, e.g mannequins, hence
no copyright
2. Which aspect of the article is primary?
Ornamental aspect of belt buckles is primary &
utilitarian function is subsidiary, hence copyright is
given.
3. Separate concept (temporal displacement test) –
whether the object stimulates in the mind of the
beholder a concept that is separate from the concept
evoked by its utilitarian function – if so, there is
conceptual separability)
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Conceptual Separability
4. Stand on its
own as work of
art? – if so, it
enjoys copyright
protection. If not,
no protection,
e.g., Casino
uniforms

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 5. Intent of the creator: (See: Brandir v. Cascade CA2, 1987)

• Facts: David Larvin was playing around with wires;

Twisted one wire into a bicycle and another into a
ribbon shape. A friend pointed out that the ribbon
shape could serve as a useful rack for bicycles.
Eventual product they worked on became popular
until it was infringed by Cascade.
Court: ” If design elements reflect a merger of aesthetic and functional
considerations, the artistic aspects of a work cannot be said to be
conceptually separable from the utilitarian elements. Conversely, where
design elements can be identified as reflecting the designer’s artistic
judgment exercised independently of functional influences, conceptual
separability exists”.
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U.S Supreme Court settles the matter on Conceptual Separability: Star
Athletica, 2017
On issue whether the design and function of
the uniforms were separable: We hold that
an artistic feature of the design of a useful
article is eligible for copyright protection if
the feature (1) can be perceived as a two or
three dimensional work of art separate
from the useful article and (2) would qualify
as a protectable pictorial, graphic, or
sculptural work either on its own or in some
other medium if imagined separately from
the useful article.”
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Architecture (sec. 5(1)(f) and (h), CNRA

• “An architectural work is the design of a building as embodied in any

tangible medium of expression , including a building, architectural
plans, or drawings. The work includes the overall form as well as the
arrangement and composition of spaces and elements in the design,
but does not include individual standard features.” – Sec. 101 U.S
Architectural Works Copyright Protection Act

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The principle of authorship: Who qualifies as an author?
• Sec. 2, CNRA: Defines who an author is: - A “physical person who
created or creates work protected under sec. 5”
• It is important to differentiate the author from the owner of a
particular embodiment of it. Who owns copyright to a letter? See:
HRH The Duchess of Sussex vs. Associated Newspapers Ltd [2021]
EWHC 273 – Privacy interests of the writer of the letter are shielded.
• Copyrights are sticky – they stay attached to the author unless they
are transferred in some way. e.g., works for higher or by independent
contractors – Painters, website designers, photographers, etc.

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Sometimes the identity of the author is not
obvious
TRIPS Articles 9.2 (on Copyright) and 28 (on
Patents) do not mention who an owner of IP
should be.
Remember David Slater’s photographic
expedition to Indonesia (July 2011); the spat
with Wikipedia (2014); People for the Ethical
Treatment of Animals (suing on behalf of
“Naruto”)(Sept. 2015). Trial Judge dismisses suit:
“animals do not have standing in Court of Law”
(Jan. 2016); PETA appeals to Federal Court of
Appeal - case settled out of court.
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 Joint authorship:
• Occasionally, more than one person can contribute to a work to be called
an author and to share in the copyright. This is Joint Authorship.
• What are the legal effects of joint or co-authorship? (Sec. 11 CNRA)
• Each author is the owner of the whole work and not just the part he
contributed – unless an arrangement is made to buy out one’s rights to the
contribution made (see: Angella Katatumba v. ACCU)
• Each of the authors is free to use the work or to license others to use it. If
one of the author’s authorizes a license of the work and collects license
fees, he should give the other author an equal share (even if contributions
are unequal in amount). Failure to do so, he can be sued for “Account for
profits”.
• But Sec. 11 talks of the work being “indistinguishable” in terms of
contribution.
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Joint authorship – continued:
• When a joint author dies, his share passes to his heirs and not to the
other author (see: Sijali Salum Zuwa & 4 Ors vs. Pamela Akinyi Atieno
[2016] Eklr – ownership in the Les Wanyika Band). In this respect, joint
authorship under IP works like a tenancy in common in real property law
and not like a joint tenancy.
• A person claiming to be a joint author, has to show both of two things:
a) That each of the people (including himself) that he asserts share a
copyright made an independent copyrightable contribution to the
final work at issue.
b) Must show that all the contributors intended that their various
contributions be merged into a unitary whole (inseparable).
• Joint authorship, by fragmenting ownership of copyright, can create
messy and hard to predict patterns of legal rights. Realistically, it is better
to keep such copyright in one person.
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 Commissioned works or Works for Hire:
8. Employed authors and works for Government or international bodies.
(1) Where a person creates a work—
(a) in the course of employment by another person;
b) on commission by another person or body;
then in the absence of a contract to the contrary, the copyright in respect of that work
shall vest in the employer or the person or body that commissioned the work.
(2) Where a person creates work under the direction or control of the Government or a
prescribed international body, unless agreed otherwise, the copyright in respect of that
work shall vest in the Government or international body.
(3) Vesting of copyright referred to in (1) and (2) above shall apply only to work created
within the stipulated schedule of work of an employee.
(4) The moral right in a work made under this section shall always remain with the
actual author of the work.
64
 The Work for Hire Doctrine: Effects of classification -

• The employer for whom the work for hire has been prepared, is
considered the author for copyright purposes;
• Moral rights do not apply in works for hire;
• Duration of protection for works for hire (corporate ownership) is 50 yrs
(s. 13)
• Copyright Work can fall under sec. 8 if it is prepared by an employee
within the scope of his employment;
• The employer – not the employee – owns the copyright from its
inception;

65
 Community for Creative Non-Violence v. Reid 490 US 730 (1989) – Justice
Marshall’s factors in determining whether a hired party is an employee under the
general common law of agency, the court considers the following factors:

• Hiring party’s right to • Method of

control payment
• Skill required • Right to hire
• Source of the tools assistants
• Location of the labor • Business of the
hiring party
• Duration of the
relationship • Employee
benefits
• Right to assign additional
projects • Tax treatment
• Control over hours of
work
66
CCNV Factors
• Hiring party’s right to control CCNV controls

• Skill required Reid is sculptor

• Source of the tools Reid has own tools

• Location of the labor Reid uses own workshop

2 months
• Duration of the relationship
no right to assign more work
• Right to assign additional projects
no control
• Control over hours of work
flat sum
• Method of payment
Reid had total discretion
• Right to hire assistants
CCNV is not in sculpture
• Business of the hiring party business
• Employee benefits no payroll or SS taxes
• Tax treatment
Red = favors “employee”; blue = favors “employer”
Commissioned work – continued . . –
Sylvia Katende v. Bank of Uganda, HCCS No. 443 of 2010
• Plaintiff participated in a contest organized by KCC, won and was duly
paid. Sued defendant over eight years later claiming sculpture was
made without her knowledge and consent

• Court found that the Plaintiff was commissioned by KCC to do a

design for a sculpture. Meaning that the model design was made to
the order of KCC. The work the Plaintiff produced was a drawing of
the sculpture and not the sculpture.
• Court further observed that the design and the sculpture are two
different works of art, albeit one is based on the other. A drawing is
one form of artistic expression just as a sculpture is another form of
artistic expression. The sculpture can be described as a derivative
work of art, derived from the drawing.
More to commissioned works -

Mary Theresa Kakoma v. Attorney Sikuku Agaitano v. Uganda Baati,

General, Civil Appeal No. 50 of 2011 HCCS No. 298 of 2012
• If any copyright subsisted to George Court: “The persons who created
Kakoma in the national anthem, and did the video shooting or who
Court determined that it would employed the person who carried
have gone into the public domain in out the work of shooting the
2012; but Court also determined photos and video is/are the
that the composition of the song
was done under the “direction authors or author of the works.” -
and/or control of the Government Per Justice Chris Madrama.
of Uganda at the time. Its copyright
was accordingly vested in the
Government of Uganda.”
69
The Mechanics of Copyright:

i.e., the way in which the machinery of copyright works in practice.

1. What must an author do to secure copyright protection?
2. Pre-conditions for bringing a copyright infringement suit
3. Duration of Copyright
4. Transfer of rights associated with copyright inclusive of CMOs
5. Using the copyright system to shield authors against exploitation

70
Formalities in Copyright Protection and what amounts to
publication: Case study – Copyright in speeches
• Aug. 28th, 1963 – Southern Leadership
Christian Conference organized a march in
Washington DC in support of the Civil
Rights Movement with about 200k people.
• The march culminated with a speech by Dr.
Martin Luther King Jr., the Founder and
President of the Leadership Conference.
• “I Have a Dream . . . “
• Over 200k people heard the speech live
and millions saw it on TV.
71
• A month later, it occurred to MLK that he ought to enjoy a copyright
in the speech and that other people need to pay him if they are to
sell copies of his speech.
• On Sept. 30th 1963, MLK filed for copyright registration; received a
certificate of registration on Oct. 2nd 1963.
• He initiated an infringement suit against an unauthorized seller and
prevailed.
• Dr. King’s estate has continued to prevail in enforcing copyright in
his speeches and letters against infringers.
• So, should political speeches be subject to copyright protection?

72
Estate of Martin Luther King, Jr., Inc. v. CBS, Inc. 194 F.3d 1211
(11th Cir. 1999)
• In 1994, CBS produced a documentary on 20th Century US History.
• One segment in one episode of that series focused on the march on
Washington in which CBS showed roughly 60% of MLK’s speech.
• CBS did not ask for permission and did not pay the customary license
fee.
• The MLK estate sued. CBS’ defense was to the effect that MLK and his
estate lacked copyright protection because MLK because MLK had
published the speech in August 1963 without a statutorily required
notice. No notice was given by MLK when he delivered the speech on
the Mall. So the issue in Court was ‘Whether making the speech in
the crowd constituted a publication’. Trial Court said YES but CA said
NO.
73
Court of Appeal: What amounts to publication?
A General publication occurs only in 2 situations:
• When tangible copies of a work are distributed to the general public
in such a manner as to allow the public to exercise dominion and
control over those copies, and
• When the work is exhibited and displayed in such a way that it invites
unrestricted copying by the general public, e.g., public display of a
sculpture without any restriction on the freedom of yours to
photograph it.
• CBS had not established whether MLK had done any of these things,
so Court ruled that CBS needed to obtain a license from his estate
before using the speech.

74
 Gould Estate vs. Stoddart Publishing Co. ltd, 39 OR 555
• Issue: Whether plaintiff enjoyed copyright in oral conversations which the
publishing company reduced into writing and published after death of Gould.
• Held: Conversation was not literary work because it was not expressed in a
material form.
• 2ndly, a person’s oral statements in his speech, interview or conversation,
are not recognized in that form as literary creations and do not attract
copyright protection.
• The claim that every utterance made by the plaintiff is a valuable property
right, if upheld, would have the courts inundated with claims from celebrities
and public figures who would argue that their expressions should be
afforded extraordinary protection of copyright. That result was never
contemplated in the common law development of the copyright law.
75
Juxtapose with Al Hajji Nasser Ntege Sebagala:
Al Hajji Nasser Ntege Ssebagala v. MTN (U) Ltd & Anor. H.C.C.S. No.
283 of 2012
• Was this a political speech
and does it matter?
• Was it Ssebagala who
engaged in or controlled
fixation of his speech?
• Did Ssebagala seek copyright
registration for his speech?
• Were the Defendants
supposed to obtain a license
from him before using his
speech?

76
Definition of publication under the CNRA: Sec. 2

• “publication” means the lawful reproduction of a

work or of an audio-visual or audio visual sound
recording, fixation or of sound recording for
availability to the public; and includes public
performances and making available of a work on
the internet;

77
Is registration of copyright a prerequisite to institution of an
infringement suit in Uganda?
• No - Obsessions Co. Ltd v. Warid Telecom (Uganda) Ltd & Anor H.C.CS
No. 373 of 2010
• Sec. 43 CNRA:
43. Registration of rights
(1) The owner of a copyright or a neighbouring right may register the
right with the Registrar for the purpose of—
(a) keeping evidence of ownership of the right;
(b) identification of works and authors; (avoiding orphaned works)
(c) maintenance of record of the rights.
• So, generally copyright registration is voluntary.
78
 Duration of Copyright protection in Uganda: Sec. 13
• S.13(1) Economic rights of an author: life plus 50 years after death
• S. 13(2)Economic rights in joint authorship: life plus 50 years after death of
last surviving author
• S. 13(3) Economic rights for corporation: 50 yrs from date of 1st publication
• S. 13(4) Economic rights in Anonymous/Pseudonym works: 50 yrs from date
of publication or until author is known – then s. 13(1) applies.
• S. 13(5) Economic rights in audio-visual, sound recordings, broadcasts: 50
years from making work available to public with author’s consent.
• S. 13(6) Economic rights in computer program: 50 yrs from making work
available to public.
• S. 13(7) Economic rights in photographic work – same as s. 13(6)
• What about moral rights? S. 13(8)
• S. 26: Performers also have 50 years protection 79
 Transfer of rights associated with copyright inclusive of CMOs
• S. 14: Assignment of licence or transfer of a copyright
• S. 14(3) – Assignment or transfer of economic right should be in writing
• S. 14(4) – Licence may be oral, written or inferred from conduct or
circumstances.
• But: S. 35: Any contract relating to exploitation of author’s rights or
performer’s rights shall be in writing . . .
• S. 36(2)(c): Publishing contracts should be executed within 18 months

80
Transmissibility and right of action:
UPRS vs MTN (U) Ltd (C.S. 287 of 2010)
• The inside story of the UB40 case.
• Copyright is transmissible by assignment or by
operation of law (apart from moral rights).
• The right of action (except for moral rights)
belongs to the ‘owner’ who may be an
assignee.
• Exclusive licensees may also have an
independent right of action without affecting
the rights of the copyright owner (e.g., UB40
case & script to movie)
81
Examples of copyright transfer
- Artists can give a movie company “right
to use” a song or drawing with clearly
specified restrictions, e.g., adverts or
promos.

- Collecting societies (e.g., UPRS or

URRO) are under contract (deed of
assignment) to widen the market reach
and enforce only those copyrights
assigned to them, e.g., UPRS versus MTN
(UB40 case)
Roles and Rights of CMOs: Part VII CNRA
• A CMO is a Society that collects revenue in respect of the exploitation
of an intellectual property right and distributes that revenue amongst
the right owners. (Bainbridge, 2010)
• A Collecting Society normally operates by owning and enforcing the
relevant copyrights.
• Only one Collecting Society can be registered in respect to a bundle of
rights and category of works that functions “to the satisfaction of its
members.”
• Uganda Reproduction Rights Organization (URRO); Uganda Performing
Rights Society (UPRS) and – supposedly – Uganda Federation of Movie
Industry (UFMI).

83
 Who can be a member of a CMO?
• A potential member of a CMO must
register copyright with URSB & obtain
certificate of ownership of works before
assigning such works to the CMO (Sec.
43)(3)
• CMO only has authorization over specific
works assigned to it by virtue of sec. 43
(UPRS vs MTN Civil Suit 287 of 2010- The
UB40 Case)
• CMO Accounts have to be audited at least
once a year (Sec. 69) (Julius Bwanika &
Others vs. URSB and UFMI)
Does the film Industry currently have a collecting society?
Julius Bwanika & Others vs. URSB and UFMI, Misc. Cause No. 83 of 2018
– Justice Musa Ssekaana:
“The 1st respondent (URSB) should consider separating societies like in
some jurisdictions by having a Society for Authors, performers and
Producers because the nature of interests from the rights holders is
normally different and, as such, requiring the separation of Copyright
holders and related rights holders. This is buttressed by the fact that it is
only authors, producers and performers who are entitled to equitable
remuneration as provided under Section 31 of the Copyright and
Neighbouring Rights Act of 2006. The solution in this case would be that
URSB which is the one that issues Collecting Society licenses, calls on
fresh applicants with knowledge and experience in copyright
management to take on the roles of a Collecting Society for the Film
Industry.”
Legal rights enjoyed by Copyright owner

a) Rights to reproduce and modify

b) Rights to Distribute, perform and display
c) Exceptions and limitations of these rights

86
Rights to reproduce and modify - Sec. 9 – Economic Rights CNRA

• The Heart of copyright is the exclusive right to copy.

• The term “reproduction” has 3 independent dimensions, of which a
plaintiff in an infringement suit must satisfy all three:
a) The way in which the defendant generated the allegedly infringing
things. Only if he did so by copying, is the defendant liable.
b) The character of the alleged infringing thing. Only if they constitute
“copies” is the defendant liable.
c) The nature and amount that the defendant took from the plaintiff.
Only if it arises to the level of “improper appropriation” is the
defendant liable.

87
How does a Plaintiff proof copying by the defendant? COPYING
a) Direct evidence of copying: Evidence of the defendant’s conscious
intentional use of the plaintiff’s work during the course of his own
creative processes.
b) Access: That the defendant had access to Plaintiff’s work and that
the work of the two parties is sufficiently similar to raise an
inference of copying. Once access is shown, the plaintiff needs to
demonstrate sufficient similarity between the two works to make
plagiarism more likely than independent creation. The character
and amount of similarity that is necessary for this purpose is
“probative similarity”, i.e., the way the defendant created his work
was wrong, not that the amount taken was too much.

88
c) Sufficient/striking similarity between unusual aspects of the two
works can also suffice but the inference of copying that arises in these
circumstances can be overcome if the defendant demonstrates that he
did not have access to the plaintiff’s work or that both pltfs and defts
work could have been copied from the public domain (i.e., plaintiff’s
work is not original – sec. 4).
d) Common errors: Demonstration that the same errors can be found in
both the plaintiff’s work and the defendant’s work. Some are
inadvertent while others are deliberate by creators.

89
Rights to reproduce and modify

Any infringement here

of works by
Evaline Mudondo?

90
Reminiscent of Steinberg v. Columbia Pictures Industries (1987)

91
Owner’s rights in
Copyright: Angella Katatumba vs. Anti Corruption
Coalition Uganda (Civil Suit 307 of 2011)
Lessons learned:
• The right to enforce copyright belongs to
the owner of the copyright and not
necessarily to the author.
• Intention to infringe is not essential
vs
under the Copyright and Neighbouring
Rights Act.
• Innocent infringement is still
infringement, i.e. it is a strict liability
offence.
• How much of plaintiff’s song was copied?

92
SCOPE OF COPYING:
• Independent creation under copyright law is a good excuse/defense.
Infringement only arises if a “copy” is made.
• The clearest type of copying is mechanical reproduction, e.g., making
a photocopy of my poem or ripping a CD of my song, you have copied
both my song (lyrics) and the sound recording.
• Copying is also constituted when having the copyright work in mind
when making a substantially similar embodiment, e.g., when you read
and memorize my poem and then write it down, you have copied it.
• Copying encompasses translation of the plaintiff’s work into a
different medium.

93
How does a Plaintiff prove copying by the defendant? What
defendant created is a copy
Sec. 2CNRA:
A Copy means “ a production of a work in a written, recorded or
fixation form or in any other material form, but an object shall not be
taken to be a copy of an architectural work unless the object is a
building or a model.”
• The requirements for a copy are therefore:
a) tangible,
b) Fixed,
c) Intelligible.
The defendant’s work must therefore also be fixed (just like the
plaintiff’s) in order to violate copyright.

94
 Improper appropriation:
• Parties struggle over whether the amount copied by the defendant rises to what
may constitute infringement.
• Burden is on the plaintiff over proving infringement but also on proving that the
defendant went so far as to constitute improper appropriation.
• 3 ways for Plaintiff to show this:
a) Comprehensive copying – involves copying brief elements such as a stanza of a
song or an image.
b) Fragmented literal similarity: Where defendant copies a small piece.
Plaintiff must how here:
- The portion copied consists of protected “expression” not facts or ideas
- The portion copied must be a ‘substantial” part of the plaintiff’s work.
The De minimis principle
This depends on the quality of what is copied, not the quantity (See Angella
Katatumba v. ACCA).
95
b) Fragmented literal similarity (continued) –In Davis v. The Gap, Inc. 246
F.3d 152 (2d Cir. 2001) – discussing De minimis – Law doesn’t penalize taking
trivial amount of work (U.S Perception)
“The de minimis doctrine is rarely discussed in copyright opinions because
suits are rarely brought over trivial instances of copying. Nonetheless, it is an
important aspect of the law of copyright. Trivial copying is a significant part of
modern life. Most honest citizens in the modern world frequently engage,
without hesitation, in trivial copying that, but for the de minimis doctrine,
would technically constitute a violation of law. We do not hesitate to make a
photocopy of a letter from a friend to show to another friend, or of a favorite
cartoon to post on the refrigerator. . . when we do such things, it is not that
we are breaking the law but unlikely to be sued given the high cost of
litigation. Because of the de minimis doctrine, in trivial instances of copying,
we are in fact not breaking the law. If a copyright owner were to sue the
makers of trivial copies, judgment would be for the defendants. The case
would be dismissed because trivial copying is not an infringement.”
96
 Exceptions to de minimis
• Bridgeport Music, Inc. v. Dimension Films, 383 F. 3d 390, 398 (6th Cir.
2004) – Court stated that de minims does not extend to sound recordings.
• Angella Katatumba v. ACCA. Court: the use of a small but vital part of the
work amounts to infringement (Pltf’s song came out for a total of 10 secs
out of the I min and 10 seconds of the ad – total length of the song is 1 min
and 30 seconds).
• Hawks & Sons Ltd v. Paramount Field Services Ltd [1934]CH 593 – the use
of only over 30 seconds out of a 4 min recording was found to amount to
infringement.
• Fair use defense under sec. 15 CNRA takes up the best defense.

97
Improper appropriation – continued:
c) Comprehensive Non literal similarity
(Otherwise known as “substantial similarity test”)
• Defendant has not copied verbatim but has instead created a
different but similar work. He is liable only if his work is substantially
similar to that of the plaintiff.
• The amount that the defendant may have added to the plaintiff’s
work is irrelevant. Per Justice Sheldon (CA2 1936): “No Plagiarist can
excuse the wrong by showing how much of his work he did not
pirate.”

98
What happens if what was copied includes facts and
unprotected material within plaintiff’s work?
• Methods for separating protected and unprotected material:
• Formulations: Two works are substantially similar if:
a) They have same aesthetic appeal. In Boisson v. Banian Ltd 273 F. 3d
262 (2d Cir. 2001), “Generally, an allegedly infringing work is considered
substantially similar to a copyrighted work if the ordinary observer,
unless he set out to detect the disparities, would be disposed to
overlook them, and regard their aesthetic appeal as the same.”

99
 Mannion v. Coors Brewing Co. 377 F.
Example: Aesthetic appeal: Supp. 2d 444 (S.D.N.Y. 2006)
• Photo of Basketball star Kevin
Garnett taken by freelance
photographer Jonathan Mannion.
• Court: There can be substantial
similarity between the magazine
photo (top) and the photo prepared
for a bill board advertising beer
(bottom).

100
On the infringing Activity:
1. Direct (Primary) Infringement 2. Indirect (Secondary)
Infringement

101
Proof of copyright infringement requires show of no-consent
(Sec. 46)

1. If disputed, Claimant must establish lack of consent;

2. Consent should be express or implied;
3. Can be presumed from circumstances;
4. Inference must be clear;
5. Must come from the person holding the right.

102
Direct Infringement:
• Relationship between original and the copy: Accused’s work must be
a ‘copy’ or reproduction of the owner’s work with a causal connection
between the two works (recalling sec. 9(a) of the CNRA).
• Creative Technology Ltd vs. Aztech Systems PTE Ltd [1997] FSR 491:
“It must be shown that there is sufficient objective similarity between
the alleged infringing work and the original work or a substantial part
thereof . . . As a reproduction or copy of the latter; and that the original
work was the source from which the alleged infringing work was
derived …” (causal connection)

103
Direct Infringement (Cont’d):
• Objective similarity: Creative Technology Ltd vs. Aztech Systems PTE Ltd
[1997] FSR 491 (U.S. 9th Cir.):
“The burden of proof does remain with the plaintiff in an infringement
claim, to prove copying and access to his work, and, where there is
sufficient resemblance shown between the two works, he will invite the
court to draw an inference of copying. The defendant then has the
opportunity to rebut the inference; to give an alternative explanation of
the similarities where this is possible; and at this point, in our view, the
burden shifts.”
Possible defenses: Plaintiff copied from defendant; both parties copied
from a common source; both arrived at respective results
independently.
104
Direct Infringement (Cont’d):
• “What is worth copying is worth protecting” – not necessarily with the
3 step test (Art. 9 (2) of Berne Convention and Art. 13 of TRIPS -
below):
“Members shall confine limitations or exceptions to exclusive rights to
certain special cases which do not conflict with a normal exploitation of
the work and do not unreasonably prejudice the legitimate interests of
the right holder”
• Partly reproduced in Sec. 15(1)(j) of the CNRA.
• This is the spirit behind fair use under Sec. 15 (1) and (2) of CNRA.
• So, for example, there is no loss of copyright by virtue of reproduction
in digital storage forum.
105
Indirect Infringement:
• This may occur when a third party facilitates an infringement, but does
not directly carry it out.
• Types of indirect infringement:
a) Contributory Infringement – where a third party has the ability to
influence or encourage the infringement
b) Vicarious (liability) Infringement – where a third party has the
control or financial benefit out of the infringement

106
 Civil Remedies
1. (Temporary) Injunction (s. 45(1))

2. Anton Pillar Order (S. 45(2))

3. Damages (S. 45(3))

4. Accounting for profits by defendant

5. Offences by body of persons (S. 49)

6. Delivery up (S. 45(2)

7. Action is against whole work or substantial part (e.g, not titles)

107
Anton Pillar remedy – wrongly applied:
• Uganda Performing Rights Society vs. Mega Standard
Supermarket, Misc. Appln. No. 1042 of 2015
• Application brought under sec. 45(2) of CNRA.
• Based on Anton Pillar K-G v Manufacturing Processes Ltd & Ord
[1976] ALL ER 779 – Lord Denning: Order is made ex parte
granting applicant inspection of respondent’s premises without
forewarning respondent.
• Court granted application but – shockingly – added that Applicant
needs respondent’s permission before inspecting premises.

108
Criminal remedies (sec. 47 CNRA)
1. Payment of a fine not • Uganda v. Ssebugenyi Geofrey KLA-
exceeding 100 currency OO-CR-CO-0459-2019
points (UGX 2M) The accused was found in possession
2. Imprisonment not of book covers without authorization.
exceeding 4 years Prosecution managed to prove the
3. Or both payment of a offence of infringement of copyright
fine and imprisonment contrary to s. 47(1) CNRA without
reasonable doubt – on account of
testimony from URRO’s Charles
Batambuze & others. The accused
was thus convicted.

109
Fair use (and misuse) – General defense to copyright
infringement
• In order to rely on fair use, defendant must show that his actions fall
within either section 15(1) or s. 15(2) of the CNRA.
• Four key factors: (sec. 15(2) of CNRA copied from sec. 107(2) of the
USA Copyright Act). Analyzed on a case by case basis.
a) The Purpose of the use
b) The nature of the copyrighted work
c) The amount and substantiality of the portion taken
d) The effect of the use upon the potential market.

110