A COMMENTARY ON INTELLECTUAL

PROPERTY RIGHTS:

THE UGANDAN SYSTEM

BY: Ahimbisibwe Innocent Benjamin

(Research & Entertainment Lawyer)

[email protected]

©2022
Copyright has been defined as a set of exclusive rights granted to the author or creator of an original work,
including the right to copy, distribute and adopt the work.1 Copyright law bears the effect that an author
of original work receives exclusive ascertainable period of time to exploit and benefit from the
work including its publication, distribution and reproduction.2

Historical background. Internationally, it is believed that the issue of intellectual; property

arose from the 1710 Anne statute or is occasionally related to the practices developed in the
sixteenth century to regulate the book trade. After the 1710 Anne Statute comes the Berne
convention which set out standard principles of copyright protection. Later on, the universal
copyright convention and the 1994 Geneva Agreement on Tariffs and Trade, the 1995 World
Trade Organization and sought standards to harmonize the regulation, administration and
enforcement of intellectual property generally and have had a great impact on the copyright
law in Uganda for instance sec 1 part (ii) of the TRIPS agreement provides the rights which
are similar to those in the Uganda Copyright Laws making the Ugandan copyright act a
reflection of these international principles on copyright and neighboring rights.

Uganda received these copyright laws through the reception clause in the 1920 Order in
Council. These laws gained domestication after the reception clause by the 1902 O.I.C wherein
Uganda got the Copyright Act of 1956 that became the copyright act of 1964 but its content
remained without any modifications and this survived until the new act of 2006.3 Not only
was the old act was modeled on English law but also outdated and incapable of
accommodating the technological changes over time and relatively the standardization and
effective harmonization of a legislative policy framework relating to copyright protection in
Uganda. Article 189 of the 1995 Uganda constitution together with the sixth schedule imparts
a duty on government to respect copyrights, patents and trademarks and all forms of
intellectual property. Owing to one’s constitutional right to property within article 26, the law
of intellectual property comes in play to implement and advocate respectively.

1
Prof. George William Kakoma v. A.G per Bamwine PJ.HCCS No. 197 of 2008
2
Colton, C. Principles of Intellectual Property Law (London, Cavendish , 1999) p. 167
3
According to Kawooya, Kakungulu & Akubu, ( Uganda in Armstrong) ‘the role of copyright “copyright in Uganda
remained was initially designed to protect British authors and publishers within the Ugandan protectorate.
The Common features of intellectual property rights are Territoriality4 Anti-
competitiveness,5 Tradeability, Divisibility6 independence and Volatility.

Distinction between moral rights and economic rights.

Moral rights are bent towards protecting the integrity of the author while economic rights seek
to protect his financial interests of the owner or author of the protected work.

Unlike economic works which subsist only so long as the work is still protected, moral rights
are enjoyed in perpetuity even after the demise if the author, his successor can enforce them
and the author’s integrity remains protected even long after the copyright has fallen in the
public domain.

As stipulated in section 10(3) moral rights are not assignable i.e. are inalienable. Finally, moral
rights belong to only the author whereas economic rights belong to the owner of the work
who may take the form of an assignee, licensee, or transferee of the protected work.7

Categories of rights under the CNRA.

Economic rights. These generally include reproducing, distributing or selling copies of the
work, publicly performing or displaying the work, broadcasting the work or preparing
derivative works based on the work. Examples of derivative works include making a sound
recording or motion picture of a literary work, or translating or adapting a work.

Section 9 CNRA states that the owner of a protected work shall have, in relation to that work,
the exclusive right to do or authorize other persons to;

(a) To publish, produce or reproduce the work. An example of this is visible in Chaplin v. Leslie
Frewin (Publishers) Ltd [1966] 1 Ch. 71 court held that the owner had sufficiently

4
Intellectual property rights, being creatures of statute, are confined to the territory where they are created
though they have importance that transcends national boundaries.
5
Peter J Groves, LLB, MA, PhD-Sourcebook on Intellectual Property pg. 16
6
Intellectual property rights are capable of being sliced up in many different ways for example one may be
authorized to reproduce, another to issue copies, The other to record, make performances etc.
7
D.J. Bakibinga & R. M. Kakungulu _ Intellectual Property Law in East Africa pg. 30
 assigned the exclusive right of producing, publishing and selling the works to the
publisher.
(b) To distribute or make available to the public the original or copies of the work through sale or other
means of transfer of ownership. In the case of John Murray (publishers)Ltd v. George
William Ssekindu & Anor HCCS 1018 [1997] the plaintiffs obtained damages
against the defendant who was selling counterfeit copies of the plaintiff’s books
without the plaintiff’s permission thus causing a decline in the latter’s sales.
(c) To perform the work in public
(d) To broadcast the work.
(e) To communicate the work to the public by wire or wireless means… making the work
available to the public.
(f) To make a derivative work. In Byrne v. Statist Co. [1914] 1 KB 622 court held that a
translation of another person’s work is a derivative work and thereby considered
original. However, a slight change in the original person’s work by for instance the size
alone, does not introduce a new work as visible in L Batlin & Son Inc. v. Synder.
(g) To commercially rent or sell the original or copies of the work. In Classic Art Works Ltd v
Vincent Lukenge and Children of Grace8 it was held that “the copyright owner may
assign his or her economic rights in a copyright to another person, licence another person to use the
economic rights, transfer to another person or bequeath the economic rights in a copyright in whole or
on part.9”
(h) To do in relation to that work any act known or to be known in the future
(i) To reproduce transcription in braille which is accessible to blind people.

However, for one to exercise their right of copyright, the work in dispute should not be trivial
as the famous maxim states “deminimus non curat lex.” In Sinanide v La MaisonKosmeo10 the
advertising slogan ‘Beauty is a social necessity, not a luxury’ was held to be too slight a work
to found allegations of infringement by use of the rival slogan ‘A youthful appearance is a

8
HCCS No. 207/2010
9
Also noted that “The rights can only be assigned or transferred in writing.”
10
(1928) 44 TLR 574 -
social necessity.’ A similar stance was taken in Al Hajji Nasser NtegeSebagala v Mtn
Uganda Ltd and Another11.

Moral rights.

Section 2 CNRA defines moral rights to mean “the right to claim authorship or performance as is
provided in sections 10 and 23. Moral rights have an international recognition visible in article 27
of the Universal Declaration of Human Rights (UDHR) which states that “Everyone has the
right to the protection of the moral and material interests resulting from any scientific, literary or artistic
production of which he is the author.” Article 6 of the Berne Convention, (though not specifically
binding on Uganda) whilst it does not say so in so many words, makes it clear that an assignment
of copyright does not carry with it any assignment of moral rights. Section 10 CNRA provides
for the moral rights of the author thus;

10(1) the author of any work protected by copyrights shall have a moral right_

(a) To claim authorship of that work, except where the work is included incidentally or accidentally in
reporting current events by means of media or other means.
(b) To have the authors name or pseudonym mentioned or acknowledged each time the work is used or
whenever any of the acts under section 9 is done in relation to that work, except where it is not
practicable to do so. And
(c) To object to and seek relief in connection with any distortion, mutilation, alteration of the work.

This was the position in the case of Angella Katatumba v Anti-corruption Coalition12,
where the learned judge affirmed the right to seek relief in respect of any distortion, alteration or
modification of the work. The learned Judge upon considering evidence of the song, held that
the plaintiff’s moral rights were infringed upon and therefore was entitled to relief under
section 10 (2) of the Copyright and Neighboring Rights Act. However, court in Francis Day
and Hunter, Limited & Twentieth Century Fox Corp. Ltd.& Ors [1940] A.C 113 held

11
High Court Civil Suit No 283 of 2012
12
CS No. 307 of 2011
that in order for a claim for infringement of copyright to succeed, it must be shown that
there was a substantial taking of part of the plaintiff’s work.

(2) the author of a work has a right to withdraw the work from circulation if it no longer reflects the
authors convictions or intellectual concept. And if the author doses do, shall indemnify any authorized
user of that work who might in any material way, be affected by the withdrawal.
(3) the moral right under sub-section (1) is not assignable to any person , except for purposes of its
enforcement.

The rights of paternity, integrity and privacy continue to subsist as long as the copyright in the
work subsists: The right against false attribution continues until 20 years after the death of the
person falsely attributed as author or director.

The remedies of copyright infringement include injunctions, damages such as exemplary,

punitive, general and special damages as discussed in Stella Atal v. Ann Kiruta T/A 97
Africa Arts & Craft HCCS No. 0967/2004.

Criticism. Moral rights have been criticized for making the author appear like the sole
fountain of knowledge imparting their personality on all resulting work. In particular, it has
been criticized for the fact that it fails to acknowledge the collaborative and inter-textual nature
of the creative process. the alien nature of moral rights which are imposed even beyond the
domestic jurisdiction of the author’s continent and these tend to antagonize with a country’s
domestic laws.

On the other side, the copyright laws have proved ineffective due to some reasons such as the
ignorance of some people about these laws. Some people are not aware of their rights and
because of this, they are unable to exercise them. The lack of proper follow up and
implementation, also contributes to the inefficacy of copyright laws. There’s shallowness in
the Ugandan jurisprudence pertaining to the few judicial decisions on copyright rights.

Under the neighboring rights, there remains a challenge on the unauthorized copying or
broadcasting of live performances and unauthorized reproduction of recordings or of radio
and television broadcasts.
BIBLIOGRAPHY
 1995 constitution of the republic of Uganda (as variously amended)

Copyright and Neighbouring Rights Act 2006

cases

 L Batlin & Son Inc. v. Synder.

 Classic Art Works Ltd v Vincent Lukenge and Children of Grace
 Stella Atal v. Ann Kiruta T/A 97 Africa Arts & Craft HCCS No. 0967/2004.
 Francis Day and Hunter, Limited & Twentieth Century Fox Corp. Ltd.& Ors
[1940] A.C 113
 Angella Katatumba v Anti-corruption Coalition,

Books

Bakibinga -