BRIEF SUMMARY OF INTELLECTUAL PROPERTY LAW.
PREPARED BY NANYUMBA NICHOLAS LLB 4 JANUARY.
GENERAL INTRODUCTION:
a) Principles of Copyright law.
1. Moral principles.
- Section 10, Copyright and Neighbouring Rights Act.
- Author has moral rights in their work.
- These rights are not assignable except for purposes of enforcement.
- They cannot be extinguished even where economic rights are wholly
assigned.
- Angella Katatumba v Anti-corruption Coalition CS No. 307 of 2011.
- Under section 10 of the Copyright and Neighbouring Rights Act, moral rights
include the right to seek relief in respect of any distortion, alteration or
modification of the work. At the hearing the song was played and I also taken the
opportunity to listen to it again when considering this judgment….However the
song was played throughout the jingle. Its volume was up at the beginning and
end of the advertisement jingle and its thematic content was effectively used for
appropriateness to the Defendant’s message. Lastly in the middle the volume was
turned down to allow the Defendant’s verbal message to be heard while the
Plaintiff’s song played in the background. In the premises the Plaintiffs moral
rights were infringed and the Plaintiff would be entitled to relief under section 10
(2) of the Copyright and Neighbouring Rights Act. Relief includes relief by way of
compensation for injury to her style or intended use. The displeasure of Hon
Maria Mutagamba who talked to the Plaintiff proves the Plaintiffs point and the
fact that an author has the moral right to determine whether the work reflects
her view and to withdraw it if not is also relevant. Where the work is distorted by
another person’s action the copyright owner is entitled to seek relief for the tort
of infringement of her moral rights. The tort of infringement of property rights
attracts damages. Per Madra a J.
2. Natural Law Justifications.
- Sections 46 and 48.
- Based on natural law principles.
- A person is entitled to enjoy the works of their hands.
- People ought to respect the works of other people.
- John Locke – The labour of a person’s body and the work of his hands are
properly theirs. And whatever a person removes out of the state that that nature
has provided and has mixed their labour with it to something that is their own
then it is his property.
- Donaldson v Beckett (1774) – copyright protection is not perpetual.
Court rejected the notion of a natural copyright separate and apart
from statute.
- Plateau Publishing House v Adophy (1986) 4 NWLR 205. – The court
in awarding an account for profit takes from the wrongdoer all the profit he has
made from his piracy and gives them to the person who has been wronged. Per
Uwais JSC.
3. Economic Principles.
- Section 9.
- Classic Art Works Ltd v Vincent Lukenge and Children of Grace HCCS
No. 207/2010. – … the copyright owner may assign his or her economic
rights in a copyright to another person. … Licence another person to use the
economic rights…. Transfer to another person or bequeath the economic rights in
a copyright in whole or on part.
The rights can only be assigned or transferred in writing.
- The owner of economic rights can sue and infringer. – Classic Art
works case.
- Assignment, transfer does not imply the assignment, license or
transfer of moral rights. (Supra case.)
4. Copyright and Human rights.
- Universal Declaration of Human Rights.
- Article 17 – everyone has a right to own property alone as well as in
association with others.
- Article 19 – right to freedom of expression e.g; freedom 2 hold
opinions without interference and seek, receive and impart
information and ideas through any media and regardless of frontiers.
- Article 26 – right to education.
- Article 27 (1) and (2) - Right to participate in cultural life. (2) –
Everyone has the right to the protection of the moral and material
interests resulting from any scientific, literacy or artistic production
of which he is the author.
- Uganda Constitution
- Article 26 – Protection from deprivation of Property.
- Also Osotraco v Attorney General.
- The Trustees of Kenya Budget Hotel association et al v The Music
Copyright Society of Kenya Ltd. – Whether the acts of the
defendants amounted to an infringement of the constitutional right
to privacy and property.
-
It is now settled that an applicant who brings a constitutional reference must set
out with precision what right has been violated and in what manner the said right
has been violated. In considering an application based on the bill of rights where
other parties rights are also concerned, the court must ensure that the applicant
raises real and not theoretical questions in which he has a real interest per W.
Ouko J – applicants failed to lead evidence to the fact that they had
been denied entry to their premises and that property was arbitrarily
seized.
5. International Conventions on Copyright Protection
- The Berne Convention
- This protects the rights of authors of literary and artistic works, giving
owners of rights in one Convention country the same as those in
another.
- The Rome Convention
- This affords national protection to performers, record producers and
broadcasting organisations.
- The Universal Copyright Convention 1952
- This adopted the © symbol and is required for copyright protection in
a country that only follows the UCC.
- TRIPS agreement.
- Articles 9 – 14, 41 – 61
SUBSTANTIVE ELEMENTS OF COPYRIGHT PROTECTION:
(a) Basic Principles:
- Types of works eligible to protection.
- Section 5
- Original literary, dramatic, musical or artistic works;
- Sound recordings, films or broadcasts; and
- The typographical arrangement of published editions.
(b) A Work (Literary works) :
- Section 4 (3)
- No statutory definition.
- Case law suggests that some minimum amount of effort must have
ee e pe ded i the author’s reatio .
- Copyright protection has been refused to works which are very trivial
or very small (in terms of effort applied in creation)
- Sinanide v La Maison Kosmeo (1928) 44 TLR 574 - the advertising slogan
‘Beauty is a social necessity, not a luxury’ was held to be too slight a work to
found allegations of infringement by use of the rival slogan ‘A youthful
appearance is a social necessity’
- Al Hajji Nasser Ntege Sebagala v Mtn Uganda Ltd and Another. High
Court Civil Suit No 283 of 2012.
- The court may also apply the maxim de minimis non curat lex.
- Exxon v Exxon Insurance Consultants Ltd (1982) CH 119 - The plaintiffs
incurred considerable cost in having the name EXXON invented for their
business. This was held not to constitute an ‘original literary work’ (although it
was, if each element of the phrase be taken separately, original and literary)
because it conveyed no information, provided no instruction and gave no
pleasure.
- The concept of a literary work in the copyright context is a wide one
and has been held to include compilations.
- Article 2(5) Berne Convention - requires the exercise of skill in the
selection of materials in a compilation.
- Copyright protection may subsist in telephone directories; lists of
broadcasts and transmissions.
- BBC v Wireless Gazette Publishing Co. [1926] 1 CH 433 – it was
decided that the BBC had copyright in the listings of radio
programmes published i the Radio Ti es. The BBC’s compilation was
the product of considerable time, labour, expense and skill and being a
compilation of a number of simple facts, was entitled to copyright protection not
withstanding that there was no copyright in the simple facts. Per Ast ur J.
- Effort and labour is involved even though the subject matter is
mundane.
- University of London v London Tutorial Press (1916) 2 Ch. 601 - If
time expanded is to be the test, the rapidity of an author like Lord Byron in
producing a short poem might be an impediment in the way of acquiring
copyright, and, the completer his mastery of his subject, the smaller would be the
prospect of the author’s success in maintaining his claim to copyright… I suppose
that most elementary books on mathematics may be said to be of a common type,
but that fact would not give impunity to a predatory infringer. … [A]fter all, there
remains the rough practical test that what is worth copying is prima facie worth
protecting. per Peterson J.
- Titles are not copyrightable.
- Francis Day and Hunter v Twentieth Century Fox (1940)- no copyright
was awarded for the title of the song ‘The man who broke the bank at Monte
Carlo’
- Names are also not copyrightable.
- Wombles v Wombles Skips (1975) – the name WOMBLES was denied
copyright.
- (Dramatic works)
- A dramatic work must be capable of being performed.
- Green v Broadcasting Corp of New Zealand (1989) PC 18. - The
-
plaintiff had developed the program ‘Opportunity Knocks’ on British television.
He claimed copyright in the general structure or format of a similar television
programme in New Zealand. By ‘dramatic format’ the appellant meant the
characteristic features of the show which were repeated in each performance.
These were the title, the use of various catch phrases, the use of a device called a
‘clapometer’ to monitor audience reaction and the use of sponsors to introduce
competitors. HELD: Not a dramatic work. “It is stretching the original use of the
word ‘format’ a long way to use it metaphorically to describe the features of a
television series such as a talent, quiz or game show which is presented in a
particular way, with repeated but unconnected use of set phrases and with the aid
of particular accessories. Alternative terms suggested in the course of argument
were ‘structure’ or ‘package’. This difficulty in finding an appropriate term to
describe the nature of the ‘work’ in which the copyright subsists reflects the
difficulty of the concept that a number of allegedly distinctive features of a
television series can be isolated from the changing material presented in each
separate performance (the acts of the performers in the talent show, the question
and answers in the quiz show etc.) and identified as an ‘original dramatic work’.
No case was cited to their Lordships in which copyright of the kind claimed had
been established. The protection which copyright gives creates a monopoly and
‘there must be certainty in the subject matter of such monopoly in order to avoid
injustice to the rest of the world:’ Tate v Fulbrook [1908] 1 KB 821, per Farwell
J. . . The subject matter of the copyright claimed for the ‘dramatic format’ of
‘Opportunity Knocks’ is conspicuously lacking in certainty. Moreover, it seems to
their Lordships that a dramatic work must have sufficient unity to be capable of
performance and that the features claimed as constituting the ‘format’ of a
television show, being unrelated to each other except as accessories to be used
in the presentation of some other dramatic or musical performance, lack that
essential characteristic. ” Per Lord Bridge.
Norowzian v Arks Ltd (No 2) (2000) EWCA Civ 3014 - "In my judgment a
film can be a dramatic work for the purposes of the 1988 Act. The definition of
that expression being at large, it must be given its natural and ordinary meaning.
We were referred to several dictionary and textbook definitions. My own,
substantially a distilled synthesis of those which have gone before, would be this:
a dramatic work is a work of action, with or without words or music, which is
capable of being performed before an audience. A film will often, though not
always, be a work of action and it is capable of being performed before an
audience. It can therefore fall within the expression "dramatic work" in section
1(1) (a) and I disagree with the judge's reasons for excluding it." Per Lord
Justice Nourse.
- (Musical works)
- Musical works are judged by the effect on the ear.
- Sawkins v Hyperion [2005] RPC (32) 808 – the essence of music is
combining sounds for listening to. Music is not the same as mere noise. The sound
is intended to produce effects of some kind on the listener’s emotions and
intellect…. The fact that in musical copyright the sounds are more important than
the notes in the text is recognized, for example in the approach of infringement.
The test of substantial reproduction is not a note-by-note textual comparison of
the scores. It involves listening to and comparing the sounds of the copyright work
and the infringing work.
- Also refer to Wood v Boosey [1868] LR 3QB 223 ExchC.
- Angella Katatumba v The ACCU- substantial use.
-