Wakilii

Garfield a.k.a Konshens v Airtel Uganda Limited & 2 Others (Civil Suit 545 of 2015)

High Court · [2023] UGCOMMC 173 · 2023 Judgment for Plaintiff AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
First instance civil suit for copyright infringement and unjust enrichment
Decision
Judgment entered for the Plaintiff against the 1st and 2nd Defendants jointly and severally for copyright infringement and unjust enrichment. Suit dismissed against the 3rd Defendant and Third Party.

Observed later treatment

Cited — treatment unverified cited in 1 (treatment unverified) Sequitur — Uganda’s citator · Derived from citing cases in the Wakilii corpus — not an assertion that this case is good law.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

No adverse treatment recorded Cited 1 time with no adverse treatment recorded; not yet tested on the merits. Derived from citing cases in the Wakilii corpus — a deterministic signal, not legal advice.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The High Court held that the 1st and 2nd Defendants jointly and severally infringed the Plaintiff's copyright by distributing his songs as caller tunes without consent and unjustly enriched themselves by retaining the proceeds. The 3rd Defendant and Third Party were found not liable. The Plaintiff was awarded USD 180,000 in general damages plus exemplary damages of UGX 20,000,000 against the 1st Defendant and UGX 30,000,000 against the 2nd Defendant, with interest and costs.

Outcome

Judgment entered for the Plaintiff against the 1st and 2nd Defendants jointly and severally for copyright infringement and unjust enrichment. Suit dismissed against the 3rd Defendant and Third Party.

Facts

The Plaintiff, a Jamaican singer, is the author and composer of eight songs. The 1st Defendant (Airtel Uganda) is a telecommunications provider that entered into a Caller Ring Back Tone (CRBT) Services Agreement with the 2nd Defendant (OnMobile Global), a software and content provider. The 2nd Defendant in turn entered into Content Provider Agreements with the 3rd Defendant (MTech) and a Third Party (Solunet). The Plaintiff discovered in June 2014 that his songs were being offered as caller tunes to Airtel subscribers at UGX 600 per download under a program called 'Hello Tunes'. The Plaintiff never assigned, licensed, or authorized any of the Defendants to use or distribute his songs. The 1st and 2nd Defendants received revenue from the sale of the caller tunes but did not remit any proceeds to the Plaintiff. The 2nd Defendant claimed the songs were provided by the 3rd Defendant and Third Party, but the 3rd Defendant denied uploading the songs and provided evidence that the Plaintiff's songs were not part of their content catalogue.

Issues

  1. Whether the Plaintiff has a cause of action against the Defendants for infringement of his copyright in the suit artistic works.
  2. Whether the Defendants infringed the Plaintiff's copyright in the suit artistic works.
  3. Whether the 1st and 2nd Defendants' distribution of the suit songs without remitting any of the proceeds to the Plaintiff amounted to unjust enrichment.
  4. Whether the 1st Defendant is entitled to indemnity from the 2nd Defendant.
  5. Whether the 2nd Defendant is entitled to indemnity from the 3rd Defendant.
  6. Whether the 2nd Defendant is entitled to indemnity from the Third Party.
  7. What are the available remedies.

Orders

  • It is declared that by using and distributing the Plaintiff's suit songs as caller tunes without his consent, the 1st and 2nd Defendants are jointly and severally liable for infringement of the Plaintiff's copyright in the said songs.
  • It is declared that the 1st and 2nd Defendants' distribution of the Plaintiff's songs without remitting the proceeds thereof to the Plaintiff amounted to unjust enrichment.
  • The Plaintiff is awarded general damages of USD 180,000 (United States Dollars One Hundred Eighty Thousand) as compensation for infringement of his copyright in the suit songs.
  • Interest is awarded on general damages at the rate of 15% per annum from the date of filing suit until payment in full.
  • The 1st Defendant shall pay the Plaintiff the sum of UGX 20,000,000 (Uganda Shillings Twenty million) as exemplary damages for copyright infringement.
  • The 2nd Defendant shall pay the Plaintiff the sum of UGX 30,000,000 (Uganda Shillings Thirty million) as exemplary damages for copyright infringement.
  • Interest is awarded on exemplary damages at the rate of 10% per annum from the date of judgment till payment in full.
  • The Plaintiff and 3rd Defendant are awarded costs of the suit.

Rules and key headnotes

Copyright — Infringement — Secondary Infringement — Causing or Permitting Unlawful Distribution
Under Section 46(1) of the Copyright and Neighbouring Rights Act 2006, copyright infringement occurs not only when a person directly deals with protected works without authorization, but also when a person causes or permits another to do so. Copyright law recognizes secondary infringement to provide owners with protection against those who aid and abet the primary infringement.
Copyright — Economic Rights — Exclusive Right to Commercially Exploit Works
Under Section 9 of the Copyright and Neighbouring Rights Act 2006, the owner of a protected work has the exclusive right to distribute or make available to the public the original or copies of the work through sale or other means of transfer of ownership, and to commercially rent or sell the original or copies of the work. This exclusive right extends to authorizing others to do so on the owner's behalf.
Indemnity Clauses — Due Diligence Obligation — Copyright Infringement
A party claiming indemnification for copyright infringement under a contractual indemnity clause must have conducted reasonable due diligence to ascertain the indemnifying party's legal right and capacity to deal with the intellectual property content. Courts should not give effect to such clauses where the party claiming indemnification negligently or willfully aided and abetted copyright infringement in order to obtain financial benefits.
Copyright — Infringement — Reproduction and Offering for Sale
Under Section 46(1)(a) of the Copyright and Neighbouring Rights Act 2006, copyright infringement occurs when a person reproduces or creates a derivative work from copyrighted material and offers it for sale to the public without authorization, even if no actual sales are completed. The intention to sell is sufficient to constitute infringement.
Copyright Infringement — Measure of Damages — Reasonable License Fee
Where a plaintiff cannot prove the actual depreciation caused by copyright infringement to the value of the copyright as a chose in action, the correct measure of damages is the amount equivalent to the fair fee or royalty which the plaintiff would have charged for a license to do the acts which the defendant has done. The plaintiff can recover the actual loss suffered which is established on the balance of probabilities.
Exemplary Damages — Copyright Infringement — Punitive and Deterrent Purpose
Exemplary damages are punitive in nature and are awarded in addition to compensatory damages to punish and deter the defendant from repeating wrongful conduct. They are appropriate where the defendant's conduct was calculated to procure financial benefits at the expense of the plaintiff and where the defendant acted arbitrarily, with impunity, or maliciously.
Contractual Warranties — Scope of Application — Content Not Within Agreement
Contractual warranties and indemnity clauses apply only to content that falls within the scope of the agreement. Where content is not specified in the agreement or its annexures, and is not part of the content catalogue agreed to be provided, the warranties and indemnities do not extend to that content.

Legislation cited (8)

Cases cited (11)

  • Auto Garage v Motokov (No. 3) [1971] EA 514
  • Tororo Cement Company Limited v Frokina International Limited (Civil Appeal No. 21 of 2001)
  • Obsessions Company Limited v Warid Telecom & DMark Company Limited (HCCS No. 373 of 2010)
  • Cloth Link (U) Ltd v Africa Traders Investments Fund Ltd & Anor (Civil Suit No. 234 of 2010)
  • Stella Atal v Ann Abels Kiruta T/A '97 Africa Arts & Crafts (HCCS No. 0967 of 2004)
  • Claydon Architectural Metalwork Limited v DJ Higgins and Sons [1997] FSR 475
  • Luzinda Marion Babirye v Ssekamatte & 3 Others (Civil Suit No. 366 of 2017)
  • Shakil Pathan Ismail v DFCU Bank Limited (Civil Suit No. 236 of 2017)
  • Ocan Amos v Oyoo Wilson (Civil Appeal No. 051 of 2016)
  • O'Connor v Hewiston [1979] Crim LR 46 (CA)
  • Archer v Brown [1985] QB 401

Cases citing this judgment (1)

How later Ugandan judgments in the Wakilii corpus have cited this case. Treatment labels come from Sequitur — Uganda’s citator — each backed by a verbatim span from the citing judgment, and are not an assertion that this case is, or is not, good law.

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Garfield a.k.a Konshens v Airtel Uganda Limited & 2 Others (Civil Suit 545 of 2015) [2023] UGCommC 173 (21 August 2023)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.