Headnote

Three issues were raised during trial and they were whether the defendant infringed the plaintiff’s copyright; whether the defendant’s actions fall within the fair use exception; whether the plaintiff is entitled to the remedies sought?

The court held that s15(1)(f) of the Copyright and Neighbouring Rights Act 2006 was not available as a defense of fair use to the defendant in the circumstances of the plaintiff’s case. This was because there is no judicial precedent to the effect that the use of copyrighted work could be permitted for a campaign in the public interest without consent of the owner of the copyright. The court went on to state that defendant just incorporated the plaintiff's song ‘let's go green’ as part of its advertisement jingle and thereby infringed the copyright of the plaintiff under s 46(1) of the Copyright and Neighbouring Rights Act.

The court concluded that copyright is intellectual property and may have economic rights attached to it under s 9 of the Copyright and Neighbouring Rights Act as well as moral rights under s 10 of the Act.

In the result, the plaintiff’s suit succeeded with costs.

The plaintiff commenced this action against the defendant NGO, for general and aggravated/exemplary/punitive damages for copyright infringement and for interest and costs. As per allegations, plaintiff carries on the business of an artist, composer, singer and performer since about the year 2005. She has marketed the hardcopy as well as soft versions on the soft media. In or about April and May 2011, a substantial portion of the lyrics and content of her production were incorporated into and released as part of an advertisement by the defendant without the plaintiff's knowledge or consent. The plaintiff claims business loss and professional injury for which she claims general damages.

In reply, the defendant denies the plaintiff's claims by contending that a very unsubstantial portion of the plaintiff’s work was used.

Held:

1. In the light of section 46 of the Copyright and Neighbouring Rights Act 2006, it has been established that there was no permitted free use and that the defendant’s use does not fall within the fair use exception. There was no valid transfer, licence, assignment or authorisation of the defendant by the plaintiff.
2. The defendant infringed the plaintiff’s copyright as defendant’s counsel did not address the issue of whether the portion used by the defendant is unsubstantial.

The plaintiff is entitled to aggravated damages along with interest, but not entitled to exemplary damages.