second basis of the Plaintiffs claim in the alternative is rooted in the doctrine of unjust
enrichment of the Defendant.
The ring tones in controversy are coded as 504529, 504530, 504528 and 504531 and it is
conceded by the Defendant and the third-party that the ringtones comprised of the Plaintiff‟s
speeches even though somewhat distorted. The witnesses of the Defendant and the third-party
testified in cross examination that the contents of the ring tones are the same.
The Plaintiff‟s Counsel relies on section 4 (1) of the Copyright and Neighbouring Rights Act,
2006 for the provision that the author of any work specified in section 5 thereof has a right of
protection of the work where the work is original and is reduced into a material form in whatever
method irrespective of the quality of the work or the purpose for which it is created. Section 5 (1)
(a) lists various works eligible for copyright which include literary works, addresses, sermons
and other works of a similar nature. It is the Plaintiffs claim in the pleadings that the ring tones
were deducted from various speeches he delivered in the recent past. The Defendant alluded to
the various speeches in paragraph 5 of the written statement of defence while the third-party
pleaded the same in the amended written statement of defence in paragraph 6 and 11 thereof.
Speeches are literary works and in the very least they are works in the language of the Act of a
"similar nature" to either or all of literary works, addresses or sermons. The Defendants and the
third-party in the pleadings does not dispute the right of free speech to enjoy copyright but only
claimed that the copyright belongs to the person who reduced it into a tangible form. However
the Plaintiff's Counsel disagrees with the argument and claims that it offends section 4 (1) of the
Copyright and Neighbouring Rights Act, 2006. Legislature did not when it drafted section 4
intend that the person who reduces the work into tangible form should have the copyright. The
copyright in the speeches in controversy accrued to the Plaintiff as soon as they were recorded or
otherwise reduced into tangible form as the copyright accrues to the author of the work.
The Plaintiff's Counsel relies on the case of the estate of Martin Luther King Jr. Inc versus
CBS Inc No. 98 – 9079 of the United States Court of Appeal, 11 Circuit, and November 5,
1999. In that case the speech of Dr King who had delivered his speech commonly known as "I
have a dream" to a multitude of people was the subject of the copyright dispute. The Court of
Appeal held that the estate of the deceased was vested with the copyright. Counsel submitted that
the ring tones under section 4 of the Copyright and Neighbouring Rights Act, vests with the
author. He further submitted that the author is the person who creates or the one who gives life or
the composer and without whom the work would not have existed. The author is not the person
who records or the modifier or otherwise the one who reduces the work into tangible form. Had
it been otherwise, Legislature would have provided clearly that the copyright vests with the
person who reduces the work into tangible form as opposed to the author as currently provided
under the Copyright and Neighbouring Rights Act 2006.
Decision of Hon. Mr. Justice Christopher Madrama
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