Copyright Case a tricky one for Al Haji Sebaggala

In 2012, Al Haji Nasser Ntege Sebaggala took MTN Uganda to court over the infringement of his copyright when the Telecom company availed a ringtone with excerpts of his speech to its customers for use commercially. MTN Uganda got this ringtone from one of its registered content providers SMS Media.

Sebaggala’s demands were that;

• MTN gives him all the money earned in relation to the ringtones.

• MTN pays him a monthly interest on the amount earned above, with a further interest on the damages and costs of the suit.

Now back to basics;

Copyright is a form of protection provided to the authors of “original works of authorship” and they could include literary, dramatic, musical, artistic among others.

Copyright in a work commences the minute it is put in a tangible form and this could include among others, in writing, visual or audio recording.

The Copyright and Neighbouring Rights Act, 2006 of Uganda in Section 4 (1) states: The author of any work specified in section 5 shall have a right of protection of the work, where work is original and is reduced to material form in whatever method irrespective of quality of the work or the purpose for which it is created.

Section 5 of the Act then goes ahead to define the works and in 5(2)(a) it includes Derivative works such as translations, adaptations and other transformations of pre-existing works …

What do we learn from the aforementioned facts so far?

1. Copyright is only possible on works that are available in tangible formation

2. Any one identified as the author of the works in tangible form has a right of protection.

3. Transformations of pre-existing works is also protected as an original work.

Did Al Haji Sebaggala have a written speech in the first case prior to talking to the press? Were they off the cuff marks? If he had a written or pre-recorded speech and can prove it, then he has a clean bill as far as owning the copyright on the statements he made is concerned.

Did SMS Media record Sebaggala’s speech? If they did, then they have a right to that recording and the law protects them fully. In the Copyright Act, Section 28 (1) A producer of a sound recording or audio-visual fixation shall have a right to authorise the reproduction of that sound recording or audio-visual fixation. So, by SMS Media availing MTN Uganda with the ringtone, they were acting within their rights as producers.

Does MTN Uganda have the rights to commercially gain from the work? Section 28 (2) A producer of sound recording or audio-visual fixation shall have the right to authorise the distribution or making available to the public of the original or copies of the fixation through sale or other transfer of ownership. Section (4) is even more relevant to this case “A producer of sound recording or audio visual fixation shall have the right to authorise making available to the public of the fixation, by wire or wireless means, in such a way that members of the public may access the fixation from a place and at a time individually chosen by them.” So, Yes they do if SMS Media granted them the rights.

For court to find MTN Uganda guilty of copyright infringement, it must establish that:

• The infringing work is “substantially similar” to the copyrighted work.

• The alleged infringer had access to the copyrighted work — meaning they actually saw it or heard it.

The case is still sub judice as of today but it will be interesting to see how it finally ends considering that its a tussle between a renowned public figure and Africa’s largest Telecommunications company.

@wirejames