By Brian Manyire,Frederick Mpanga Thursday, August 16, 2018

Is fair use a suitable defence in claims of infringement of copyright in Uganda? Further, how and when are subjective criteria applied in determining what amounts to fair use?

The decision of the Commercial High Court in Uganda in the case of Angella Katatumba v the Anti-corruption Coalition of Uganda provides context.

Brief facts of the case

The plaintiff is a Ugandan artist, composer, singer and performer, and the owner of copyright in a musical production entitled “Let’s Go Green”. The plaintiff sold this work in hard copy, as well as on YouTube and other digital media.

The defendant, a non-governmental organisation, waged a campaign against the destruction of the Namanve Forest, a natural forest and celebrated tourist attraction in Uganda. During this campaign, the defendant commissioned an advertisement incorporating the lyrics and content of the plaintiff’s work. The advertisement was aired on various FM radio stations in Uganda without the plaintiff’s consent.

The plaintiff sued the defendant for infringement of copyright. The defendant relied on the defence of fair use. The controversy which the Court had to deal with was whether the defendant’s actions were within the fair use exception and if not, whether the defendant infringed the plaintiff’s copyright.

Fair use under the law

The Copyright and Neighbouring Rights Act, 2006 contains extensive provisions on the defence of fair use. However, the instances where a work is deemed to constitute fair use are limited and qualified. The Act requires that the event(s) constituting unauthorised use should be compatible with fair practice, and that the user, in this case the defendant, acknowledges the author of the original work.

Section 15 (1) of the Act provides that the fair use of a protected work in its original language or in translation shall not be an infringement of the right of the author and shall not require the consent of the owner in 11 different scenarios as follows.

  1. Strictly for private use: the production, translation, adaptation, arrangement or other transformation of the work is permissible if it is for private personal use only.
  2. Use of quotations: a quotation from a published work may be used in another work, including a quotation from a newspaper or periodical in the form of a press summary, where –
    • the quotation is compatible with fair practice;
    • the extent of the quotation does not exceed what is justified for the purpose concerned; and
    • acknowledgement is given to the work from which the quotation is made.
  3. Teaching purposes: a published work may be used for teaching purposes to the extent justified for the purpose, by way of illustration in a publication, broadcast or sound or visual recording as long as the use is compatible with fair practice and acknowledgement is given to the work and the author.
  4. Educational purposes: the work may be communicated to the public for teaching purposes for schools, colleges, universities or other educational institutions or for professional training or public education, provided the use is compatible with fair practice and acknowledgement is given to the work and the author.
  5. Written reporting on current events: the work may be reproduced, broadcast or communicated to the public, with acknowledgement of the work, in any article printed in a newspaper, periodical or work broadcast on current economic, social, political or religious topic unless the article or work expressly prohibits its reproduction, broadcast or communication to the public.
  6. Visual or broadcast reporting on current events: any work that can be seen or heard may legitimately be reproduced or communicated to the public by means of photograph, audio-visual work or broadcast to the extent justified for the purpose when reporting on current events.
  7. Public locations: any work of art or architecture in a photograph or an audio-visual or television broadcast may be reproduced and communicated to the public, where the work is permanently located in a public place; or is included by way of background; or is otherwise incidental to the main object represented in the photograph or audio-visual work or television broadcast.
  8. Public speeches and lectures: for the purposes of current information, a reproduction in the press, broadcast or communication to the public may be made in –
    • a political speech or a speech delivered during any judicial proceeding; or
    • an address, lecture, sermon or other work of a similar nature delivered in public.
  9. Judicial proceedings: work may be reproduced for the purpose of a judicial proceeding.
  10. Use by public libraries and various institutes: subject to conditions prescribed by the Minister, a reproduction of a literary, artistic or scientific work by a public library, a non-commercial documentation centre, a scientific institution or an educational institute is permissible if the reproduction and the copies made –
    • do not conflict with the normal exploitation of the work reproduced; or
    • do not unreasonably affect the right of the author in the work.
  11. Persons with disabilities: any work may be transcribed into braille or sign language for the education of persons with disabilities.

Acknowledging the author

Some of the scenarios mentioned above make the acknowledgement of the author of the work a vital requirement for the purpose of proving and relying on the defence of fair use.

In the matter under review, the defendant did not acknowledge the plaintiff in the advertisement. It would appear that the omission referred to was in and of itself sufficient to deprive the defendant of the defence of fair use.

Section 15 (2) of the Act sets out the factors that are to be considered in determining whether the use made of a work in any particular case is a fair use. These factors are:

  • the purpose and character of the use, including if this is of a commercial nature or for non-profit educational purposes;
  • the nature of the protected work;
  • the amount and substantiality of the portion used in relation to the protected work as a whole; and
  • the effect of the use upon the potential market for value of the protected work.

Judicial consideration of fair use

The Honourable Mr Justice Christopher Madrama Izama found that the use of work which is the subject of copyright protection comes within the parameters set out in Section 15(1) of the Copyright and Neighbouring Rights Act, and where the use did not do so, the provisions of Section 15 (2) were not applicable.

Therefore, the issue as to whether the defendant used a substantial portion of the work would not be a matter for consideration by the Court unless the copying of the work or infringement complained of came within the parameters set out under Section 15(1) – that is, if the work was for purposes of criticism, commentary, news reporting, teaching, scholarship or research. 

The Honourable Judge relied on the English decision of Hubbard & Anor v Vosper & Anor [1972] 1 All ER 1023 where Lord Denning considered the definition of ‘fair dealing’ in the context of a defence to copyright infringement through publication of work, and on David Bainbridge’s Intellectual Property 6th Edition. The Judge took the following position:

“‘Fair dealing’ is considered in the context of criticism and newspaper reporting or news reporting. However, the Defendant was neither making a criticism of the Plaintiff’s song nor making a reporting of the Plaintiff’s work in any context but was rather using it to foster a campaign albeit in the area of environmental protection.

“One of the first principles to determine whether a Defendant could fall within the fair dealing exception requires a two stage test. The first task was to ascertain whether the publication was for a purpose within the fair dealing permitted acts. In Uganda, this is under Section 15(1) of the Act. The second question to be asked is subsidiary to the first task. Where it does not fall within the permitted acts prescribed by the statute, there is no need to establish whether the dealing was fair i.e. to apply the principles under Section 15(2) of the Act.”

The Court found that the action of the defendant in using the work as a jingle in the advertisement did not fall within the fair use exceptions. The parameters under Section 15(1) were not applicable and therefore the defendant’s argument that the copying was not substantial was irrelevant.

This case has brought clarity to the interplay between Section 15(1) and 15(2) of the Copyright and Neighbouring Rights Act, and the scope of the defence of fair use.  Fair use is a limited defence that does not afford protection to use which seeks to create a derivative work without the consent and acknowledgment of the author of the original work. Fair use covers only instances to do with criticism, commentary, news reporting, teaching, scholarship, research or where the work is for private personal use.

It is also worth noting that the fact that the use complained of is non-commercial does not by itself make the use of the work ‘fair use’.

In the case under review, the Court was of the view that any unauthorised use that conferred a benefit – even though non-monetary – was not within the parameters allowed and was an act of copyright infringement.