Wakilii

Kakoma and Another v Attorney General (Civil Appeal 50 of 2011)

Court of Appeal · [2019] UGCA 2099 · 2019 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Civil appeal from a High Court decision in a copyright infringement suit
Decision
Appeal dismissed; High Court award of Shs. 50,000,000 set aside; copyright held to have vested in Government and to have entered the public domain in 2012.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that the National Anthem, composed by Professor Kakoma in 1962, was created under the direction and control of the Government, which ran the open competition, shortlisted entries, amended the winning work, and could have rejected it. Applying section 8(2) of the Copyright and Neighbouring Rights Act 2006 (given retrospective effect), the copyright vested in the Government of Uganda, not the composer. The Shs. 2000 prize was a reward, not consideration for assignment. Under section 13, Government copyright subsisted for fifty years, expiring in 2012, after which the composition entered the public domain and may be used freely. The trial court's award of Shs. 50,000,000 had no legal basis and was set aside. The appeal was dismissed with no order as to costs.

Outcome

Appeal dismissed; High Court award of Shs. 50,000,000 set aside; copyright held to have vested in Government and to have entered the public domain in 2012.

Facts

In early 1962, an open competition was advertised for a song to be adopted as Uganda's National Anthem, with no conditions attached. Professor George W. Kakoma and 49 others submitted entries. A shortlist of four songs was forwarded to Cabinet, which constituted a committee. The committee initially found the shortlisted songs unsatisfactory and commissioned Mr. Moon, the Police Director of Music, whose composition proved even less satisfactory. The committee then voted to adopt Professor Kakoma's composition, with amendments, as the National Anthem. It was performed at the Independence Day celebrations on 9 October 1962 and thereafter. Professor Kakoma received a prize of Shs. 2000 for winning. Later the Government reportedly asked him to surrender copyright, and he allegedly demanded 5000 British pounds, but neither letter was in evidence. He later went into exile and pursued claims unsuccessfully until instituting High Court Civil Suit No. 197 of 2008. His administrator appealed the trial court's decision, which had awarded Shs. 50,000,000 conditional on assignment of his residual interest.

Issues

  1. Who owns the copyright in the song adopted as the Uganda National Anthem composed in 1962.
  2. Whether the song was composed under the direction or control of Government so as to vest copyright in Government.
  3. Whether the copyright subsisted or had entered the public domain.
  4. Whether the trial court's award of Shs. 50,000,000 to the appellant had a legal basis.

Orders

  • The composition of the song adopted as the National Anthem by Professor Kakoma in 1962 was done under the direction and/or control of the Government, and its copyright vested in the Government of Uganda.
  • Any payments made to Professor Kakoma, including Shs. 2000, in relation to the composition were a reward to the composer.
  • The award of Shs. 50,000,000 granted to the appellant in Civil Suit No. 197 of 2008 had no legal basis and is set aside.
  • The copyright vested in the Government enjoyed legal protection for fifty years, which expired in 2012, after which the composition entered the public domain and can be used freely.
  • The appeal is dismissed with no order as to costs.

Rules and key headnotes

Copyright — Works Created Under Government Direction or Control — Vesting of Copyright in Government
Where a work is created under the direction or control of Government, the copyright in that work vests in the Government under section 8(2) of the Copyright and Neighbouring Rights Act 2006, unless otherwise agreed.
Copyright — Meaning of Direction or Control — Government-Run Competition
A composer works under the direction or control of Government where Government initiates and manages the entire creative process, including advertising the competition, shortlisting entries, amending the work, and retaining the option to reject it and commission another; copyright in the resulting work thereby vests in Government.
Copyright Statutes — Retrospective Application — Section 3 of the Copyright and Neighbouring Rights Act 2006
The Copyright and Neighbouring Rights Act 2006 has retrospective effect by virtue of section 3, applying to works created before its commencement that have not yet fallen into the public domain.
Copyright — Duration and Public Domain — Government-Owned Copyright
Copyright in a work owned by a corporation or other body, including Government, subsists for fifty years from first publication under section 13(3) of the Copyright and Neighbouring Rights Act 2006, after which the work enters the public domain and may be freely used without infringement.
First Appellate Court — Duty to Re-evaluate Evidence
A first appellate court has a duty to review the evidence and reconsider the materials before the trial judge, and to reach its own conclusion while making allowance for its not having seen or heard the witnesses.

Legislation cited (8)

Cases cited (4)

  • Kifamunte Henry v Uganda (Criminal Appeal No. 10 of 1997)
  • Angella Katatumba v Anti-Corruption Coalition of Uganda (Civil Suit No. 307 of 2011)
  • Warner vs Gestetner Ltd [1988] EIPR D-89
  • Ironside vs Attorney General [1988] RPC 197

Full judgment

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

Kakoma and Another v Attorney General (Civil Appeal 50 of 2011) [2019] UGCA 2099 (15 July 2019)
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.