BISHOP STUART UNIVERSITY

FACULTY OF LAW

NAME: TINDIMWEBWA BENSON KIBINGO

REG NO: 20/BSU/LLB/1454
LECTURER: PROF. G.P TUMWINE MUKUBWA
COURSEUNIT: INTERLLECTUAL PROPERTY
TUITORIAL ASSISTANT: COUNSEL COLLINS NUWAGABA
YEAR FOUR
SEMESTER: ONE
DATE OF SUBMISSION: 27TH NOVEMBER, 2023

Question

Discuss the Authorship and Ownership of copyright in Uganda

AUTHORSHIP

The Copyright and neighboring Act of 2006, (hereafter, the Act) defines “author” to mean the
physical person who created or creates work protected under section 5 and includes a person or
authority commissioning work or employing a person making work in the course of
employment1.

Read together, the above sections lead to a conclusion that not every creator is to be taken to be
an author in the strict meaning of the Act. For a creator to fall within the ambit of the Act, his/her
creation should be one that is listed under S.5 of the Act. It is only that kind of creator that S.4 of
the Act refers to as the Author entitled to copyright protection.

Copyright work is considered to be original when the author has exercised the right kind of
labour, skill, or effort otherwise known as intellectual creation in producing the work as it was
discussed in the case of Ladbroke (football) ltd V William Hill (football2.
Imperative to note at this point is the fact that Companies can’t be authors since the definition of
an author in S. 2 of the Act refers to physical persons.

In Asia Pacific Publishing 3Ltd v Pioneers & Leaders (Publishers) Ltd, in its claim for
copyright infringement, Pioneers & Leaders alleged it is the owner of the copyright in the horse
racing table guides but instead relied on its claim of being the sole author of the said work. The
Court of Appeal made a distinction between authorship and ownership. Authorship refers to the
concept of creating, while ownership pertains to the concept of possessing proprietary rights.
The Court pointed out that an author need not be the owner and the owner need not be the
author.

Court held that as much as companies can own copyright, they can’t be authors.

The Court further held that if corporate bodies would be allowed to be considered as authors for
the purpose of copyright, it could result to copyright protection in perpetuity which is against
public policy.

1
Section 2
2
Ladbroke V William Hill (1964) ALLER 465 at 469.
3
[2011] SGCA 37
 Unknown Authors

Under Section 13, the duration of copyright protection. It states that “The economic rights of an
author in relation to a work are protected during the life of the author and fifty years after the
death of the author”4.

It is imperative to note that for this section to apply to the different scenarios as envisaged under
the Act, the author must be clearly known.

This principle was best illustrated in the case of Art Works Ltd v Vincent Lukenge and
Children of Grace5where court noted that;

“…the copyright owner may assign his or her economic rights in a copyright to another
person. … License another person to use the economic rights…. Transfer to another person
or bequeath the economic rights in a copyright in whole or on part. - The rights can only be
assigned or transferred in writing.”

The identification of the author is important because it helps in determining, first, the ownership
of the copyright and also in measuring the duration of the copyright. So, it is important to know
who the author is so as to apply the law of copyright protection which only applies during the
lifetime of the author and 50 years after the death of the author.

If during the lifespan of the work's copyright it becomes unclear who the author is, or if the
author is dead and his or her successor is unclear as to who the original author was, how may a
third party proceed to use the copyright?

The copyright of a work is vested in its author. S. 44(1) of the Act 6 provides that if another
person wishes to use the work of such author, that person would be required to obtain the
relevant rights or license from the said author.

If during the lifespan of the copyright of a work, it becomes unclear who the author is, or if the
author is dead but the successor is unclear, how may a third party proceed to use such a
copyright.
4
The Copyright and Neibouring Rights Act, 2006
5
HCCS No. 207/2010
6
The Copyright and Neibouring Rights Act, 2006
The Berne Convention provides7 that in the case of anonymous or pseudonymous works, the
term of protection shall expire fifty years after the work has been lawfully made available to the
public. If the author of an anonymous or pseudonymous work discloses his identity during the
above-mentioned period, the term of protection applicable shall be the life of the author and fifty
years after his death. The countries of the Union shall not be required to protect anonymous or
pseudonymous works in respect of which it is reasonable to presume that their author has been
dead for fifty years.

If the work involved is truly anonymous, there may be considerable difficulties regarding the
ownership and enforcement of the copyright, although in such circumstances Article 15(3)8
contains a presumption that the publisher of the work as first published was the owner of the
copyright at that time. If the identity of the author becomes known before it would have expired,
then the normal rule applies.

Joint/Co-authorship

Joint authorship of a copyrightable work is when two or more persons contribute enough to the
work to be the author of that work. In the case of joint authorship, the authors share the copyright
in the work with each other.

The Act provides for the Co-author’s rights. It states that, “Where work is created by more than
one person and no particular part of the work is identified to have been made by each person,
such that the work is indistinguishable, all the authors shall be co-owners of the economic rights
and the moral rights relating to that work and the co-owners shall have equal rights in that
work.”9

Derivative work is a copyrightable creation that is based on a preexisting product; a translation,

musical arrangement, fictionalization, motion-picture version, abridgment, or any other recast or
adapted form of an original work. - Only the holder of the copyright on the original form can
produce or permit someone else to produce a derivative work.

In Uganda, this was best illustrated in the case of Mr. Muhambutsa Ndebesa and Dr Katono
Muzarwa Deo Vs Yoweri Kaguta Museveni about “You want another rap” and “Mpenkoni”
7
Article 7(3)
8
The Berne Convention
9
Section 11
Ingredients of Joint Authorship

Under section 14 of the Act10, an owner of a copyright can transfer of license the same but
authorship is permanent and cannot be transferred.

Authorship can only be attributed to the person or persons originating the work. This is in
parimatiria with Section 10(3) of the Act11 which is to the effect that the authorship right cannot
be transferred or assigned except for enforcement purposes. This is because it is a matter of fact
which is permanent whereas ownership is a matter of law.

The right to own a copyright in terms of copyright protection id primarily conferred on the
author.

This means that the author is the primary owner of the copyright. He/ She is therefore the person
entitled to own and exercise exclusive rights to exploit the copyright.

Section 8(2)12 states that where a person creates work under the direction or control of
Government or prescribed international body, unless agreed otherwise, the copy right in respect
of that work shall vest in the Government or organization

Section 9 of the Act13 provides for the Economic rights of author;

The owner of a protected work shall have, in relation to that work, the exclusive right to do or
authorise other persons to do the following— (a) to publish, produce or reproduce the work; (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; (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 or through any
known means or means to be known in the future, including making the work available to the
public through the internet or in such a way that members of the public may access the work
from a place and at a time individually chosen by them; (f) where the work is a pre-existing
work, to make a derivative work; (g) to commercially rent or sell the original or copies of the
work; (h) to do, in relation to that work any act known or to be known in the future; (i) to
reproduce transcription into braille which is accessible to blind persons.
10
Refer to footnote 5
11
ibid
12
ibid
13
ibid
The rights bestowed upon the owner of the protected work are exclusive in nature in the sense
that they are only exercisable by the owner or any person authorized by him or her.

Therefore, copyright gives monopoly right to the owner of the protected work. The economic
rights include, the right to perform, produce or reproduce the protected work, creation of
derivative works and any other modes of exploitation of the work.

Copyright law creates moral rights of the author distinct from economic rights of the author or
owner of the protected work.

These are contained in Section 10 of the Act14;

(1) The author of any work protected by copyright 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
author’s 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’s not
practicable to do so; and (c) to object to, and seek relief in connection with any distortion,
mutilation, alteration or modification of the work.

(2) The author of a work has a right to withdraw the work from circulation if it no longer
reflects the author’s convictions or intellectual concepts; and if the author does so, shall
indemnify any authorised user of that work who might, in any material way, be affected by the
withdrawal.

(3) The moral right under subsection (1) is not assignable to any person, except for purposes of
its enforcement.

Ideally, Section 10 deals with;

a. The right of attribution or partenty; which refers to the right of the author to be made known
or identified by the public to be the creator or originator of the work
b. Integrity, which refers to the right of the author to prevent any alteration, distortion, or
modification of the work

14
The Copyrights and Neibouring Rights Act, 2006
Sectioin13 of the Act15, deals with the duration of copyright protection. The section is
particularly important because it helps one to understand authorship and infringements thereto.

(1) The economic rights of an author in relation to a work are protected during the life of
the author and fifty years after the death of the author. (2) The economic rights of the
author where the work is of joint authorship, are protected during the life of the last
surviving author and fifty years after the death of the last surviving author. (3) Where the
economic rights in a work are owned by a corporation or other body, the term of
protection shall be fifty years from the date of the first publication of the work.

Therefore, copyright exists to prevent author from taking unfair advantage of persons with
creative efforts. The rationale is that People become more creative and innovative as the days go
by16.

Copyright is a property right and as such, the owner may deal with it in many various ways

Where there is assignment or transfer as under section 14, the author loses all the rights to the
assignee or transferee who then becomes the new owner of the copyright.

Under section 44 of the Act17, the users of work to apply for licence

(1) Any person who wishes to use or perform another person’s work or who causes
work to be performed in public for gain shall apply to the owner or the owner’s agent for
a licence to do so.
(2) The owner or agent may grant a licence and shall in respect of any grant, charge such
royalties as the owner or owner’s agent may determine to be appropriate.

Section 46(2)18 provides for the use of a piece of work in a manner prejudicial to the honour or
reputation of the author shall be deemed an infringement of the right of the owner of the right

15
The Copyrights and Neibouring Rights Act, 2006

16
University of London Press Ltd Vs University Tutorial Ltd, Chancery, 16
17
The Copyrights and Neibouring Rights Act, 2006

18
Ibid
OWNERSHIP

The definition of ownership is not specifically given both in the international or local statute on
Intellectual property.

The Black’s Law Dictionary, defines ownership as “the bundle of rights allowing one to use,
manage, and enjoy property, including the right to convey it to others19.”

But, it can be said that an owner is one who either authors or buys an intellectual property right
from its author. The object of ownership can be intangible such as intellectual property rights
over musical, literary or scientific creations of the mind.

To claim ownership, application of independent intellectual effort or skill is necessary by the

author. If a person merely reduces the work into a material form in a purely mechanical way,
then this person would not be the author, but merely an agent or amanuensis of the author.

Section 43 (1) of the Act20 provides that the owner of a copyright or a neighbouring right may
register the right with the Registrar for the purpose of— (a) keeping evidence of ownership of
the right; (b) identification of works and authors; (c) maintenance of record of the rights;

(2) Any holder of an assignment, licence or transfer of a copyright or neighbouring right may
register the assignment, licence or transfer with the Registrar for the purpose of— (a) Keeping
evidence of the assignment, licence or transfer of the copyright; (b) maintenance of record of the
rights; (c) publication of the assignment, licence or transfer.

Exceptions to the general rule

1. Whether the work has been made in the course of employment?

Under Section.8 (3) of the Act 21, states that vesting of copyright shall apply only to work
created within the stipulated schedule of work of an employee. This means that the copyright
to the work will only vest in the employer if it has been created while the employee is
performing duties within his job description or other natural duties, for example a sales

19
(8th ed. 2004) at page 3503
20
Refer to footnote 16
21
The Copyrights and Neibouring Rights Act, 2006
 manager, who, during his normal working hours, writes a report for the board of directors of
the company he works for, in this instance copyright to such work is owned by the company.

In Stephenson V MacDonald22, an employee of the plaintiffs, an accountant, wrote a book that

consisted of the text of public lectures given by him while still an employee of the company, a
section that included manuals for the plaintiffs’ clients and sections composed after he had
moved to another employer. He died before the book was published and the plaintiffs were
seeking an injunction to stop the publication of the book claiming copyright infringement

It was held that the copyright in the section that contained the manuals belonged to the plaintiffs
because the employee had prepared and written the manuals for the use of a particular client of
the company, and this was part of his work as a servant of the company under a contract of
service. However, the employee owned the copyright in the section that contained the public
lectures because giving lectures was not part of his duties under the contract of service.

Furthermore, in Kakooma v Attorney general23

The plaintiff sued the defendant for infringement of copyright of the Uganda National
Anthem which he had composed and written, for a permanent injunction restraining further
infringement and costs. The court held that since he had willfully participated in the
competition to write the anthem which competition was prepared by government, he was an
employee of the government and therefore the latter had ownership of the copyright.

However, if an employee performs duties even if at the request of his employer and those duties
are not within the employee’s job description or fall outside the employee’s ordinary duties, the
employee will be the owner of the copyright in the work.

An employee was permanently employed on the editorial staff of a newspaper. The employer
requested the employee to translate and summarize a speech. This was additional work which the
employee did in his own time and independently of his usual editorial duties.

22
[1952] 1 TLR 101
23
(Civil Suit 2008/197)2010
 It was held that the employee owned the copyright in the translated summary of the speech
because it was not created under the contract of service between the parties but under a
separate contract for services24.

It is worth noting, that there are also instances where the employee’s formal job description no
longer completely and accurately describes his present duties in which case the actual type of
work carried out by the employee will be relevant. The basic test in this situation is whether the
skill, effort and judgment expended by the employee in creating the work are part of the
employee’s normal duties (express or implied) or within any special duties assigned to him by
the employer. If the answer is “no” then the employee will be the first owner of the copyright,
even if he has used the employer’s facilities or assistance.

2. Work made by an employee in the course of his employment

Under Section 8 (1) of the Act25, the general rule in relation to intellectual property created by an
employee in the course of their employment is that, in the absence of a contract to the contrary,
the employer owns the copyright to that work.

Employee

First and foremost, in order for the intellectual property to vest in the employer, the creator
must be an employee. Since the Act doesn’t define an employee, reference can be made to
the Employment Act of 2006 that defines an employee, “as any person who has entered into
a contract of service or an apprenticeship contract26.

To determine if someone is employed under a contract of service, the courts look at various
factors such as the level of control exercised by employer over the employee’s work, salary, sick
pay, holiday provisions and the level of integration of the employee into the employer’s business.
If those factors are found to exist a person will be termed as an employee and the copyright of
work created by them will belong to the employer.

24
In Bryne V Statist Company, [1914] K.B 622

25
The Copyright and Neighbouring Rights Act, 2006
26
Section 2
In Beloff V Pressdram 1973 1 ALL ER 241, the plaintiff sued the defendants for copyright
infringement of a memorandum she had written for the editor of the observer newspaper. The
plaintiff could sustain the action only if she was the owner of the copyright in the memorandum.
She would only be the owner if she was not an employee of the observer newspaper.

It was held that she was an employee because on the evidence, she received a salary for her job
and holidays, there were PAYE and pension scheme deductions, she had an office and used the
company resources for her work, she was employed as part of the business of the company and
her work was an integral part of the business. She wasn’t entitled to the copyright in the
memorandum so her claim failed.

3. Commissioned worked

S.8 (1) (b) of the Act27 deals with employed authors and works for Government and international
bodies. Where a person creates a work on commission by another person, in the absence to the
contrary, the copyright in respect of that work shall vest in that person or body that
commissioned the work. This was enunciated in the case of Prof. George Kakoma V Attorney
General hccs No. 197 of 2008It is trite that where, however, there is an implied term in the
contract of service, then construction shall be limited to its provisions. This was given force in
the case of Noah V Shuba28

Noah was a doctor who worked for a Public Health Lab Scheme. He wrote a book. Noah
sent the book along with a copyright notice to Shuba. Shuba later delivered a lecture which
he later sent to a magazine for publication along with two extracts from Noah's book and a
short passage which was attributed to Dr Noah but not written by him. It gave the impression
that Noah endorsed Shuba's views. Noah claimed damages for copyright infringement. Held
that there was implied term in Dr Noah’s contract of service excluding the statutory rule
relating to the copyright ownership of an employer. This is because it was a long standing
practice of the employer that employees should retain copyright in works written in course
of employment and they had acquiesced in their employees’ practice of assigning copyright
in articles written for scientific journals.
27
The Copyright and Neighbouring Rights Act, 2006
28
[1991] FSR 14
Section 35 of the Act29 provides that, any contract relating to the exploitation of the author’s
rights or the performer’s rights shall be in writing and signed or marked by the parties to the
contract.

4. By a person in a fiduciary relationship to another

By a person in a fiduciary relationship to another is said to hold the copyright in that
work on trust for the other. In Vitof Ltd v Altoft30 Court found that a director of a
company who had written source codes for the company’s labeling machine did so on
trust of the company because as a director, he owed it fiduciary duties.

Joint Ownership

Joint ownership is envisaged under Section 11of the Act. Where work is created by more than
one person and no particular part of the work is identified to have been made by each person,
such that the work is indistinguishable, all the authors shall be co-owners of the economic rights
and the moral rights relating to that work and the co-owners shall have equal rights in that work.

Joint designs and joint ownership

David Bainbridge, highlights that Joint first owners are possible where there is a joint design,
being one created by two or more designers acting in collaboration where the contribution of
each is not distinct from the others31.

A joint owner’s contribution need not be in respect of recording the design, but in relation to the
design itself and not sufficient if, it only relates to the manufacture of articles made to the
design.

In Phillip Parker Vs Stephen Tidball 32, in which one of the defendants was responsible for
stitching together leather cases, it was contended that his contribution and suggestions related to
construction of the cases and not the design of the same. He was not a joint owner consequently

29
Refer to footnote 26
30
[2006] EWHC 1678 (Ch)
31
Intellectual property law
32
1997 FSR 680
In referring to the Copyright Designs and Patents Act33, David Bainbridge highlights that the
design is thus divisible and can be regarded as a combination of separate designs, which can be
owned by different people.

The inference is to the effect that if only one individual meets the qualification requirements of
joint ownership, there shall be a joint design.

Examples of such qualification requirements include:

Efforts of an individual in relation to the design itself.

Furthermore, in Powell v Head34 it was also held that registered owners of a copyright take as
tenants in common and not as joint tenants.

Taking the demonstration of S.8 of the Act - Employed authors and works for Government or
international bodies, a person can be an author but not owner of copyright. This can best be
expressed in productions during the course of employment where the employer owns what the
employee creates.

It is imperative to note that there are distinctions that can be made between the economic rights
of the owners and authors and the moral rights of the author.

1. Moral rights seek to protect the integrity of the author while economic rights of the
author seek to protect the finances of the both the author and the owner of the copyright
2. Moral rights of the author are in perpetuity (forever), even after death, the successors in
title are able to enforce them and protect the integrity of the author after they have fallen
into the public domain and on the other hand, economic rights of the owner and author
cannot be protected once the work ceases to be protected or falls into the public domain.

Once the duration of the copyright has expired, the economic rights of the owner cannot
be protected. This therefore means that they are temporary.

3. Moral rights are nontransferable since they belong to only to the author and authorship of
a protected work is permanent and cannot therefore be altered. Whereas economic rights
belong to the owner who may, assign, license or transfer ownership of these rights

33
1988 Sec 259(1),
34
(1879) 12 Ch D 686
 4. Moral rights belong only to the author while economic rights belong to the owner and
also to the assignees or transferees of the protected work.
5. Authorship refers to the concept of creating, while ownership pertains to the concept of
possessing proprietary rights
6. Whereas Ownership is transferable, authorship is non-transferrable
7. Authors have the moral rights as enshrined in Section.10 of the Act while owners have
the economic rights under Section .9 of the Act.

In a nutshell, therefore, both Authorship and Ownership are very important aspects in Intellectual
property especially dealing with copyright protections and infringements and therefore should be
looked at in strict adherence to the law.
REFERENCES

1. The Copyright and Neighbouring Rights Act, 2006

2. The Employment Act, 2006
3. Copyright Designs and Patents
4. The Berne Convention
5. The Copyright Regulations
6. Case law
7. Text book