Infringing any form of copyright under the Copyright Law is ‘abuse of’, ‘alteration’, ‘misuse’, ‘unauthorised copying’ etc, of an existing original work of an author.
Because original works are authored and therefore the property of the author, they cannot be used or misappropriated by a third party without proper authorisation from the author or the assignee of the copyright.
To secure one’s copyright, the author must contract with the third party and clearly state the terms within which the use of her work will be handled.
Contracts consist of written agreements. They are the best form of apportioning rights in the economy. In most copyright agreements, two forms of rights will suffice: the ‘reproduction’ rights and the ‘performing’ rights.
The reproduction rights
The reproduction rights are those given to a third party to make as many copies of the work as agreed upon in a contract with the author, assignee or original publisher.
Reproduction rights follow moral rights. An author with moral rights will give another party authority to print copies, distribute them and may also consent to sharing profits.
The performing rights
The performing rights are artistic. They are rights a third party receives to execute or act upon the author’s works for public or personal benefit.
For instance, a film/script writer with moral rights to her story will allow a producer or director and film crew to shoot/cover the artistic impression of her works. The result is a film in its physical/visual nature. All third parties therein will have contributed something towards the making of the film. Therefore, they will have related rights/‘neighbouring rights’ to the final production.
In a film production, musicians/composers, actors & actresses, editors, etc have their artistic input and therefore deserve recognition. That is why there are ‘credits’ for production despite the size.
NB: All these will have hinged on the film writer’s script! Infringing any part of the production will result into legal action against the infringer.
Four things must be proved to show infringement of copyright:
- The rights are different from the original work.
Moral rights are accorded to authors, not their works. They are evidence that a certain piece of work has been created by a physical author.
It dictates that the author must be identified and quoted as the creator of the work, especially literary dramatic, musical and artistic works.
Once there is an author, there is work that can be identified with the author. That piece of work is given protection under the Copyright Law. This means that all copyright protection follows moral rights which the author proves to establish infringement.
- The defendant has misappropriated the work
Misappropriation can be in form of ‘nearness’ to another’s set of works; subconscious copying, indirect copying or any form of alteration of an original work.
The plaintiff is under strict procedures to prove that there are remarkable similarities between her previous work and the present work. In most cases, it can be inferred in the outcome of both works.
It is not an excuse that the defendant did not know that the plaintiff’s work existed but the plaintiff must show that a significant amount of work was hers prior to the defendant’s work.
Courts tend to consider the degree of awareness of previous work. An author may have stumbled upon another’s previous work but later on composes or writes similar texts to that work which he believes, innocently, are his.
The human brain is peculiar. It stores information and dissects it in stages unique to the brain that receives it. A person may have listened to a song years before he writes lyrics similar to that past song. His brain may create similar lyrics as his own. In this case, court will evaluate the extent of similarity. Unless the new author has reproduced word for another, it is possible that the new author has limited similarities which are trivial to allude infringement and entitled to a copyright of his own.
- The misappropriation is substantial enough to cause loss to the copyright owner
The plaintiff must prove that the defendant directly or indirectly borrowed texts from her work which she owns and has copyright rights over.
‘The earlier in time’ phrase operates herein. An earlier work will take precedence over the latter work because courts will assume the latter author may have had some direct or indirect influence by the earlier works.
Imagine an author of a novel sells 20,000 copies of his book worldwide.
Another author, innocently or knowingly, authors a similar novel with striking resemblance to the previous author and sells over 500,000 copies worldwide. He makes more profits than the previous author. The measure of ‘similarity’ is for court to determine. Where court allows the ‘similarity’ argument to stand, the previous author may receive rights to claim damages from the latter author. The law will assume that the latter author used substantial works of the previous author to make his work and garner sales.
- The degree at which the infringement may influence/infringe the rights of others.
Sometimes latter publications do not harm the authority of a previous author in the same field.
It could be an idea of a video that an international artist made that is copied by a local or regional artist. True, Juliana Kanyomozi may make a video similar to that of Beyonce but she may not, according to statistics, out-compete Beyonce in selling the concept!
The comparison is for experts, opinion polls and court to consider. Otherwise, it does not stop a plaintiff from applying for an injunction to have the defendant’s works removed from public consumption on grounds of infringement.
A case in point is Uganda’s Ronnie Kavuma’s song ‘Mujune’ which court ruled to be similar to Jean Paul Samputu’s ‘Nimuze tubyine’, a Rwandan musician/artist/singer/songwriter. Had it not been for the striking resemblance and the case, Jean Paul may not have performed his Kinyarwanda song in Uganda where the language is not widely known. Court found that although both songs were popular, Jean Paul’s song was made and released earlier, making it easy to conclude that Ronnie Kavuma had infringed on the Rwandan artist’s copyright. That was in 2001. The laws have evolved and become more operational.
Fair use is an anti-dote excuse or defence to infringement claims. How and what your use the protected work for determines the extent of infringement. Fair use requires that the person using works for which copyright can be inferred must be doing so for the benefit of the public or personal development but not claiming authorship.
It is fair use when a drama class of 25 students makes 25 class/school copies of a written play ‘I will marry when I want’. The reproduction is strictly for academic purposes.
It is fair use if non-commercial research projects/institutions make and use copies of texts relevant to their research process. It will be infringement when they claim to have authored the texts during their research or if they use more than the required texts for their research projects.
It is fair use when reporting current events, say, in an author’s world when releasing reviews of the original work and one quotes a text from the work itself; or in the entertainment world where film productions will release trailers.
Anil writes an unsolicited original poetic manuscript and sends it to a publishing house to be published and distributed. He has moral (original author) rights over his work. He may contract a third party to distribute the work.
If a pirate from Nasser Road or Ring Road reproduces/prints this work, it is an infringement. Anil or his assignee or attorney has the right to sue for damages and also pray to court to order the infringer to destroy all infringing works. He may also claim for the profits from all the sales made from the time the infringer began selling to the time the last copy leaves the shelf. Some courts have gone ahead and awarded copyright owners future earnings in anticipation of more infringing scenarios.
Copyright protection is not complicated. What you need to know is that a mere idea is not protected unless stored in a physical form. You can record, paint, write, and perform etc, in a visual manner.
Safe to say visions of mediums and seers and prophets are not protected unless they are stored in any of the above forms for record and proof of existence/authorship.
BY ATUHAIRWE AGRACE
This article appears in our digital law newsletter, The Deuteronomy Vol 5, Issue 2 of May 12th, 2017
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