Jamaican dancehall artiste Konshens has scored a major victory against telecommunications giant Airtel Uganda and two other defendants whom he sued for copyright infringement after they unlawfully used his songs as downloadable “caller tunes.”
The lawsuit was first filed in 2015 by Konshens against Airtel Uganda Limited, OnMobile Global, and MTech Limited, all based in Uganda, where he claimed damages in the amount of USD$360,000.
The lawsuit claims that eight of the artist’s hit songs, including “Gal A Bubble,” “So Mi Tan,” and others, were used as caller tunes by Airtel, which collected 600 Uganda dollars (JMD 25 or 16 cents USD) per download.
Pleadings filed by Konshens’ attorney said the artiste had never entered into any agreement with the defendants to use or make money from his songs, and they have refused to account for the profits of use of his song or pay him royalties.
According to his witness statement, Airtel recorded his songs without consent and placed them in their data bank systems, where Airtel customers were able to purchase them as “caller tunes.”
However, Airtel did not deny using the songs or that they never paid the artiste. Rather, the telecoms giant claimed that it had a Caller Ring Back Tone services agreement with OnMobile Global to supply the catalog of music to be used and that it was assured that OnMobile had the relevant permissions to use the music.
OnMobile also claimed that it was indemnified as it had sourced the songs through an agreement with MTech Limited. The third defendant denied that it had supplied Konshen’s songs to the second defendant, noting that a catalog was supplied per their agreement, but none of Konshen’s music was present.
In arguing for damages, Konshens said that his songs were commercially viable as he revealed that one of his hit songs, “Bruk Off Yuh Back,” was licensed for US$45,000, and that shows the value of the infringed songs being chart-topping hits were of or around the same value.
However, presiding judge Patricia Mutesi assessed general damages at US$22,500 given that unlike “Bruk Off Yuh Back,” which was licensed throughout the world and in all formats, the eight infringed works were only used in Uganda for caller tunes.
“The first defendant gave the second defendant access to its mobile network system for the purpose of enabling it to distribute the suit songs to Airtel subscribers,” Judge Mutesi said, according to MusicinAfrica. “It published on its website an advertisement inviting its customers to subscribe for the songs as caller tunes, with instructions on how to purchase and download them. It is clear that the first defendant’s actions enabled and facilitated the second defendant to distribute or sell the suit works through its Airtel network and to its subscribers. The first defendant also financially benefited from the said distribution.”
Additionally, Airtel will have to pay UGX 20 million or US$5,391 (or JMD836,000) for exemplary damages, while OnMobile will have to pay UGX 30 million or US$8,121 (JM$1.2 million).
The companies will also have to pay 15% interest per annum on the US$180,000 from the time the lawsuit was filed in 2015 to now. Konshens is looking at a payout of close to US$243,000 in interest for a total of US$423,000.
The judge also awarded interest on the exemplary damages to be calculated from the time of judgment until final payment.
