War of minds: Who owns an idea? Question law struggles to answer

Shashi Dhar managing director Bank of Baroda

What you need to know:

  • Ms Damalie Tibugwisa, the managing director of TARA Advocates, tells Deogratius Wamala that the fine print of the copyright law should not be treated lightly.

It is plausible that the same idea can be used to write thousands of songs and stories. THE SAME IDEA. There is a joke that says there are only two possible plots: either a man embarks on a journey or a stranger arrives. And there are examples of it. The “stranger arrives” cliché has already been found in two well-known movies: High Noon (1952) and A Fistful of Dollars (1964).

High Noon is a classic Western film whose story unfolds Marshal Kane, a newly married and about to retire cop. He learns that a criminal he once put behind bars, Frank Miller, has been released and is arriving on the noon train to exact revenge. Despite initially planning to leave town with his new bride, Kane decides to stay and face Miller. He struggles to find support from the townspeople, who refuse to help him, leading to a tense and solitary showdown.

This same trope manifests in A Fistful of Dollars. This story follows a mysterious drifter who arrives in the small Mexican border town of San Miguel. The town is embroiled in a bitter feud between two rival families—the Rojos and the Baxters.

The stranger, leveraging his sharpshooting skills and cunning, plays both sides against each other to his advantage. Through a series of manipulations and confrontations, he ultimately brings the two families to their knees, restoring a semblance of peace to the town.

Copyright infringement

From these two examples we clearly see the “stranger arrives” narrative where an outsider’s presence disrupts the status quo, leading to significant conflict and resolution. Cases like these show just why copyright infringement claims are commonplace. They all bring up a crucial query: how close is too close when it comes to theme, plot, or character overlap?

In April, the same scenario but bundled in a business deal was disclosed in a Ugandan court. A woman named Akech Gloria expressed interest in marketing the goods for Brookside Ltd, a company that produces fresh dairy products in Uganda. She brought her concept—of using women conversations to promote Brookside’s products—to the marketing team of the company for a broadcast project.

Unfortunately, she didn’t go through. But in a twist of events, she realised that her very idea was being implemented by someone else that the milk manufacturer has pinpointed. She then took the matter to the company and, eventually, the court in an attempt to get justice for copyright infringement that she believed to have compromised her creative expression.

Ms Akech, claimed that Brookside Ltd and Vincent Omoth, its marketing manager, shared her marketing concept, documented proposal, and demonstration videos with AtI and Kati Limited without her permission. In addition, she says, they unfairly benefited from her work without compensating her.

Brookside and its marketing team, however, reneged that Ms Akech’s proposal and budget did not align with their marketing strategy and target audience. They also claimed to have informed Ms Akech, deterring them to have a signed agreement making her their brand ambassador.

More than a mere idea

Brookside’s lawyers tried to convince the court that the copyright law does not protect mere proposals or ideas unless they are original and reduced to material form. But the judge found that Ms Akech’s claims raised a valid cause of action as her works were reduced to material form and were used without her consent.

This prompted Justice Kahigi Asiimwe to determine that Ms Akech’s documented proposal and demonstration videos were original and protected by copyright law and that Brookside had infringed upon her copyright by using her works without permission. She considered the effort, time, and money that Ms Akech expended to gather women, a venue, and shoot demonstration videos and ultimately awarded her Shs50 million in general damages.

I had to engage Ms Damalie Tibugwisa, the managing director of TARA Advocates for comprehensive knowledge on this subject. We ultimately meet on a cool Thursday morning. She grins calmly as we shake hands. She is having a book right beside her that, to some degree, I believe it’s what she’s been trying to read these past days. It is a ‘self-help’ genre, but I had assumed it was fiction since that is what I am used to.

I had thought that I’d boil an ocean with her but she is easy-going. She begins by explaining to me that copyright is one of the branches of intellectual property (IP).

“IP is basically the right that the government put up in law to protect intellectual creations or creations of the mind that different people have come up with,” she says.

The fine print

The Copyright and Neighbouring Rights Act stipulates that anyone who produces an original work and expresses it in a material form will have their work protected. This could include any work that is a product of one’s imagination and is not a copy of others’ work. It is not meant for an idea, she says, emphasising that the materialisation of that idea is what could rescue those who find themselves in a situation where their work is utilised by others without their permission.

“The objective is that ‘I used some skill, time and effort in coming up with that product.’ This now determines who derives the right to use it from me. The first right is for the author; then others will have some neighbouring rights,” she adds.

Ms Tibugwisa seems to adorn gold and tan colours. She’s covered with tan or peach-coloured cotton clothing and a watch of the same colours. It occasionally glitters when light hits it as she moves her hand because we are speaking near a window. It’s beautiful to observe. I do, however, occasionally pretend not to notice it and instead concentrate on the vased flowers she placed in the two corners of her office.

“If you want to claim copyright protection before registering your idea with the Uganda Registration Services Bureau (URSB), there should be evidence that this idea is yours and you have actually expressed it in some material form because how do we know that you didn’t listen to someone for you to get that idea? So those are some of the reasons why the law has said concepts alone are not protectable,” she says.

I set my mind to go through this conversation hook, line, and sinker, and I discover that depending on how multiple proposals are crafted, most of the time when someone is coming up with a worthwhile pitch to a company for consideration, their proposals are dropped the moment they bring up the subject of budget.

Lauding inventiveness

Initially, the copyright law, through Section 6, would not allow any idea of any sort to claim copyright, and this is thought to have persuaded Brookside to infringe copyright on Ms Akech’s concept. But unexpectedly, the judge in that case stated that someone should not be disqualified merely for proposing something or showing contempt; instead, they should be commended for their inventiveness, which, according to Ms Tibugwisa, uncovered an intriguing scenario.

I ask her what should be done, for example, if someone develops a brilliant idea while on campus and wants to patent it before it becomes a reality, or even about these projects that students consistently turn in to their professors. Copyright vests immediately upon expression, whether or not registration is required, she responds.

Self-help books obsession

Interestingly, she has mentioned ‘Shakespeare’ twice in short an hour that we have spent talking and that’s how I discover that she is a bibliophile. She smiles when I ask her about this because I cannot help but be curious.  “I love reading.. but mostly Robert Greene’s work,” she says. We now get bundled up in a twist of a conversation that’s filling her with serotonin. She pens her admiration for this author’s work in red ink on a white paper with her left arm.

Greene’s writings are primarily found in the “self-help” section of libraries.

“He writes things with ease and he doesn’t repeat what he has written…like, there is no resemblance and his words are beautifully crafted. Imagine someone writing complex things with ease,” she says.

“Wow, that’s interesting. What are some of the books you love,” I ask. She blinks with a smirk and names the Alchemist and Atomic Habits.