A couple of weeks ago, a storm was brewing among some Christian leaders with regards to whether a particular musician-cum-politician was within his right to create a derivative version of a popular gospel song by turning it into what was deemed a political song.
My views on this debate focus more on what copyright law stipulates on a matter such as this. Music can be composed out of different ways.
It is this very reason as to why the creators of music are justified to claim the rewards of their labour as amounting to copyright and thus well-deserving of the royalties that come out of such creation. This is clearly stipulated in section 4 of the Copyright and Neighbouring Rights Act (CNRA), which gives the right of protection of copyright work to the author.
The question then is: who is an author? Are the persons crying foul over the creation of Tuliyambala Engule the authors of the song? Is Bobi Wine (and not Hon Robert Kyagulanyi as some people would want to remind us) the author?
Under the CNRA, an ‘author’ means the physical person who created or creates works of copyright. So, in this case, the author can include any of the persons that own the bundle of rights that make up the final piece of Bobi Wine’s Tuliyambala Engule.
These are the persons that sang the song, the writer(s) of the lyrics, the producer (Sir Dan Magic Production) or any other person that contributed to its full realization. All that we have seen and listened to is the complete works by Bobi Wine, Nubian Li, King Saha, Irene Namatovu, Dr Hilderman, Pr Wilson Bugembe and Irene Ntale - but we do not know what went into its finalization that can lead us to its authorship.
The one thing that is for sure under the CNRA is that these musicians own a stake to the performance rights of Tuliyambala Engule. By the way, a distinction has to be made between Bobi Wine’s Tuliyambala Engule and the gospel version under the same title. Under copyright law, there is no copyright in titles because they are deemed not creative enough to warrant special protection.
But going back to the issue of authorship presents an interesting situation: Pastor Martin Ssempa came out screaming – “How dare he transform ‘our’ gospel song into a ‘political song’?”
I do not know what constitutes a political song; so, I will not even go there. My focus, as a copyright lawyer, is on the trespass factor in the sense that, legally, the owner of a piece of property is the one with the right to cry foul if someone else oversteps that piece of property.
Of course copyright is property, going by the understanding that it is an intangible piece of work formed out of man’s creativity or skillman-ship. As such, the storm that has been blowing in the past few weeks was of some pastors arguing that Bobi Wine and his friends had no right to transform a gospel song to satisfy their political ambitions.
I reiterate that the purpose of this article is not to justify any assumed political ambitions or not but to focus on who has rights to what. The Bobi Wine version of Tuliyambala Engule is not owned by the likes of Pastor Martin Ssempa and neither does Pastor Ssempa own the original version of the same song.
So, under copyright law, he has no right to stop Bobi Wine from coming up with the version of the song that was created. Pastor Simeon Kayiwa of Namirembe Christian Fellowship states that he first encountered the Luganda version of the song in 1977.
However, it is not certain as to who first came up with that version or when it was actually composed. The copyright legislation in Uganda during that time was the Copyright Act, Cp. 215 of 1964.
The third schedule to that legislation provided that the duration of copyright protection for an author was 50 years after the end of the year in which the author dies. This principle has been carried over into the new law which repealed the 1964 legislation.
The point that matters, however, is that we do not know the original composer of the Luganda version of the song so as to calculate whether it has also fallen into the public domain. It is, therefore, deemed as either already in the public domain or what we call an “orphaned work.”
Anyone can, therefore, come up with their own derivative versions and gain copyright protection for those versions. Indeed, other musicians such as Pr. Titus Ssekawe, have also gone on to perform Tuliyambala Engule.
The source of legal authority is currently in Uganda’s copyright law of 2006: Section 5(2) of this legislation is to the effect that derivative works such as transformations of pre-existing works which by selection and arrangement of their contents constitute original works, are protectable under the Act as original works.
Technically, what Bobi Wine has done is to create a derivative version which is worth protecting as his own copyright.
The writer is a lecturer and legal practitioner in copyright law.