NKUMBA UNIVERSITY

SCHOOL OF LAW AND INSTITUTE OF CRIMINAL JUSTICE

INDEX NO: 2016/AUG/LLB/B220472/DAY

COURSE UNIT: INTELLECTUAL PROPERTY LAW

LECTURER: COUNSEL BAGUMA ALEX

QUESTION:

Critically analyse the categories of rights protected under the copyright and
neighbouring rights act

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 Copyright law exists to prevent others from taking unfair advantage of a
person’s creative efforts[ CITATION Bai10 \l 2057 ]. Where a person has the copyright to
some work, the owner of that copyright subsisting in the work has the exclusive right
to do certain acts in relation to the work, such as making a copy, broadcasting or
selling copies to the public[ CITATION Bai10 \l 2057 ]. CITATION Cop06 \l 2057

According to section 2 of the Copyright and Neighbouring Rights Act, 2006,

Neighbouring Rights are rights that in certain respects resemble Copyright, and they
include rights of performing artists in their performances, rights of producers and
music publishers and rights of producers and music publishers and rights of
broadcasting companies in their programs as provided under part IV of the Copyright
and Neighbouring Rights Act, 2006.

Section 5 of the Act provides for the works eligible for copyright protection.
The main categories include literary, scientific and artistic works. The works however,
as per the act have to be original and reduced to material form in whatever method
irrespective of quality of the work or the purpose for which it is
created. CITATION Cop06 \l 2057 The purpose

Articles, books, pamphlets, lectures, addresses, sermons and other works of a

similar nature are the first category provided for under the Copyright and
Neighbouring Rights Act, 2006 under section 5(1)(a). What these works have in
common is that they are interpreted in the section 2 of the act to be literary works. The
section defines literary works to be written and painted works or any works of
literature, and they are protected in the event that they also fulfil the conditions set out
in section 4 of the Copyright and Neighbouring Rights Act, 2006. It is thus trite law
that for a work to be considered literary, it also ought to be original, and the leading
case in regards to originality is the case of University of London Press v University
Tutorial Press (1916), CITATION Cop06 \l 2057 wherein the presiding judge opined, inter alia
that the word ‘original’ does not in this connection mean that the work must be the
expression of original or inventive thought, as copyright acts are not concerned with
CITATION Cop06 \l 2057
[ CITATION Bai10 \p 31 \l 2057 ]
CITATION Cop06 \l 2057
[ CITATION Cop06 \l 2057 ] Section 4
CITATION Cop06 \l 2057
[1916] 2 Ch 601

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the originality of ideas, but with the expression of thought[ CITATION Col99 \l
2057 ] CITATION Cop06 \l 2057 . It is in this regard that protection can also be given for authors’

effort as much as their creativity, hence works like sermons and, lectures and
addresses being protected.

The second category the act copyright protects is that of dramatic, dramatic-
musical and musical works as seen in section 5(1)(b). Within our act, they have not
been defined in the interpretation section, however, these are distinguished from
literary works by their capability of being performed, being works of action and in the
case of musical works being performed with music[ CITATION Bak16 \l
2057 ] CITATION Cop06 \l 2057 . They are still similar to literary works in that they ought to

satisfy the condition of originality both as explained by both case law and section 4 of
the Copyright and Neighbouring Rights Act, 2006, this in fact seems to be a global
requirement as seen from other jurisdictions seeing as Bainbridge asserts that there is
an important qualification to the requirement that a literary, dramatic, musical or
artistic work must be original[ CITATION Bai10 \l 2057 ]. Since a key requirement for their
protection is performance, section 2 defines performance as the presentation of a work
by actions such as dancing, acting, playing, reciting, singing, delivering, declaiming or
projecting to listeners or spectators. In Tate v Fullbrook CITATION Cop06 \l 2057 it was
however shown that in addition to being performed, the work must still be reduced to
a recorded form in order to be protected. Court held that a visual skit for a music hall
sketch involving the use of a firework therein was not the subject matter of copyright
because it had not been reduced to writing. Musical works, when considered
separately as a sub category in Uganda, are protected because of the need to consider
the lyrics and songs as original independent work. They slightly differ from the other
dramatic works in that they do not have to be works of action per se, as the dramatical
works in the context of Uganda are required to be[ CITATION Bak16 \l 2057 ]. Case law has
provided for the requirements necessary for a musical work to be considered for
protection. In the case of Wood v Boosey and another CITATION Cop06 \l 2057 , it was held that

CITATION Cop06 \l 2057

[ CITATION Col99 \p 170 \l 2057 ]
CITATION Cop06 \l 2057
[ CITATION Bak16 \p 8,10 \l 2057 ]
CITATION Cop06 \l 2057
[1921] 1 Ch 503
CITATION Cop06 \l 2057
(1868) LR 3 QB 223

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the work has to be an independent musical composition. This therefore means that
musical compositions that are rearranged from an incomplete old work of music out of
copyright may themselves be worthy of copyright protection even if few or no new
notes are added. This can be seen to be true owing to the judgement given in the
landmark case of Sawkins v Hyperion Records Ltd CITATION Cop06 \l 2057 where it was
shown inter alia that effort, skill and time involved in making such works fulfil the
requirement of originality and thus warrant protection.

Similarly, section 5(1)(c) protects audio-visual works and sound recording,

including cinematographic works and other work of a similar nature, which are
somewhat related in their nature to dramatic and musical works. In Green v
Broadcasting Corporation of New Zealand CITATION Cop06 \l 2057

Computer programmes and electronic data banks and other accompanying

materials are equally protected under copyright law under section 5(1)(e). Here, the
protection is to computer programmes, which are defined as set of instructions
expressed in any language, code or notation, intended to cause the device having an
information processing capacity to indicate, perform or achieve a particular function,
task or result. In regards to computer programs the question is therefore complicated
in that their nature seems to push them in a category as literary works as opposed to
having their own category.

Section 5(1)(f) protects artistic works in including works of drawing, painting,

photography, typography, mosaic, architecture, sculpture, engraving, lithography and
tapestry. The artistic work category is a diverse one and as seen above includes
several different types of works. It is a category that causes special problems because
it overlaps with design law and the relationship between copyright and design law is
not at all clear-cut[ CITATION Bai10 \l 2057 ]. In particular, looking at originality of such

CITATION Cop06 \l 2057

[2005] RPC 808.
CITATION Cop06 \l 2057
[1989] RPC 700

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works brings about interesting findings, as a drawing of an existing object may not be
original because the design of the object was not created by the act of drawing. This
position was explored in the case of Duriron Company Inc v Hugh Jennings & Co
Ltd CITATION Cop06 \l 2057 wherein it was seen by the trial judge that inaccurate drawings did
not necessarily create the design of the object that was drawn. Professor Bainbridge
however opines that this test is perhaps ill placed as it limits the application to facts
that are not widely practical.

In the Ugandan context, artistic works are protected because they require great
intellectual creativity and thus warrant protection[ CITATION Bak16 \l
2057 ]. CITATION Cop06 \l 2057

Another important category protected is that of derivative work which by

selection and arrangement of its content, constitute original work, as provided for by
section 5(1)(i). According to Catherine Colson, “no standard of originality is expressly
applied to the derivative works: sound recordings, films, broadcasts or cable
programmes, and the typographical arrangement of published works.” CITATION Cop06 \l 2057
Within that context therefore, copyright for derivative works normally serves to
provide protection for the entrepreneur, rather than for an author’s act of
creativity[ CITATION Col99 \l 2057 ]. Within the Ugandan context, derivative works are
defined in the interpretation section to mean work resulting from adaptation,
translation or other transformation of an original work but which constitutes an
independent creation in itself. CITATION Col99 \p 185 \l 2057
The most prominent example in this regard is in the matter of an objection by
Mr. Mwambusya Ndebesa and Dr. Katono Nzarwa Deo v Yoweri Kaguta Museveni.
Therein, the applicant came up with a rendition of a popular traditional folksong
which was modernised with beats, instruments and flow to which the objectors
resisted. The question before the registrar was whether or not the applicant was liable
for, inter alia, copyright protection. Therein it was decided that the near complete
rendition of the traditional mpe nkoni song into you want another rap by the applicant
CITATION Cop06 \l 2057
[1984] FSR 1.
CITATION Cop06 \l 2057
[ CITATION Bak16 \p 12 \l 2057 ]
CITATION Cop06 \l 2057
[ CITATION Col99 \p 185 \l 2057 ]
CITATION Col99 \p 185 \l 2057
[ CITATION Cop06 \l 2057 ] section 2

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amounted to original work worthy of copyright protection. This however did not
detract the mpe nkoni song from the traditional Ankole people.

Bibliography
Bainbridge, D. I. (2010). Intellectual Property. Essex: Pearson Education Limited.

Bakibinga, D. J., & Kankungulu, R. M. (2016). Intellectual Property Law in East Africa. Kampala: Law
Africa.

Colston, C. (1999). Principles of Intellectual Property Law. London: Cavendish Publishing Limited.

Copyright and Neighbouring Rights Act. (2006).