Post on 23-Jan-2023
1
THE HISTORY OF COPYRIGHT IN TANZANIA:
FROM TANGANYIKA TO TANZANIA-WHERE,
WHEN AND HOW.
Prepared by Asherry Magalla
Copyright © 2015 Asherry Magalla. All rights reserved.
No part of this publication may be reproduced or
transmitted in any form or by any means, electronic or
mechanical, including photocopying, recording, or any
information storage and retrieval system, without
permission in writing from the publisher. Details on how
to seek permission, further information about the
Publisher’s permissions and other arrangements can be
obtained through his email, magallajr@gmail.com
This paper and the individual contributions contained in
it are protected under copyright by the Publisher (other
than as may be noted herein). LL.B Degree Holder at the University of Iringa (Formerly known as
Tumaini University Iringa University College) 2009-2012, Masters
Holder in Information, Communication and Technology Law at the
University of Iringa 2012-2013. Member of Non-Governmental
Organization NOLESA (The Noble Legal and Social Organization
(Association)). Articles and Legal Papers Author at academicians
website www.academia.edu, and
http://www.researchgate.net,
http://www.researchgate.net/ Consultant on legal issues of ICT.
Contact details, email, magallajr@gmail.com
2
1.1 Introduction.
In order to understand the concept of anything, one
cannot ignore the history of it. Because some readers
find that history helps them in understanding the
present and may provides plans for the future.
This paper entails the origin of copyright worldwide and
in Tanzania and also gave the position of copyright
protection in Tanzania in regarding to the development
of science and technology, particularly on the New
Cyber Crime Act of 2015, on how it deals with digital
copyright infringement.
3
1.2 What is Copyright? Where does it originate?
Copyright is a property right which subsists (exists) in the
various works, for example literary works, artistic works,
musical works, sound recordings, films and broadcasts.1
It is a legal concept, that enacted by most of the
governments, giving the creator of an original work
exclusive right to it, usually for a limited time.2
When asking people about the nature and origin of
copyright protection, many will verify Statute of Anne
as its foundation.3 This is simply because, the Statute
1 David I. Bainbridge (2009). Intellectual Property, Seventh Edition,
Pearson Longman, Ashford Colour Press Ltd, Gosport, Pp.5 and 31.
2 World Intellectual Property Organisation. "Understanding
Copyright and Related Rights". WIPO. pp. 6–7. Retrieved January
26, 2013.
3 The Statute of Anne also known as the Statute of Anne, called
after Queen Anne was a result of Anglo-Scottish Union established
by the two parliaments of England and Scottish. This new
parliament changed the laws in both countries and an important
4
was made by two Parliaments of England and Scotland
when an Anglo-Scottish Union was established, and
therefore it was a global event. Second, it is the Statute
of Anne which encourages the economic right of the
authors on their purchase of their works, for instance,
the Act set out a procedure for keeping the price of
books reasonably.4
Also the Act puts authors in a stronger position when it
came to bargaining with publishers. Some authors, such
as Pope himself, understood the new law and used the
rights the Act gave them to ensure they got a share in
the rewards of their writing. Unknown or less astute
early piece of legislation was the Copyright Act of 1709. See
Macqueen, Hector L, Charlotte W, Graeme T L, (2007).
Contemporary Intellectual Property: Law and Policy. Oxford
University Press Pp.34.
4 Julien Hofman (2009). Introducing Copyright: A Plain Language
Guide to Copyright in the 21st Century, Vancouver:
Commonwealth of Learning, Pp.4.
5
authors, no doubt, would have had to settle for less
favourable terms.5
In ancient times the idea of economic rights of the
authors was not particularly well established. Even
though, scholars and teachers of Ancient Cities such as
Rome and Greek were the first to be concerned about
being recognized as the authors of their works, but they
did not have any economic rights because the
teachers’ emphasis on moral rights,6 that is why many
people believe the Statute of Anne to be the nature,
origin and foundation of copyright because to them
copyright is the economic rights even though the Act
recognized also moral rights.
5 Julien Hofman (2009). Introducing Copyright: A Plain Language
Guide to Copyright in the 21st Century, Vancouver:
Commonwealth of Learning, Pp.7
6 David I. Bainbridge (2009). Intellectual Property, Seventh Edition,
Pearson Longman, Ashford Colour Press Ltd, Gosport, Pp.33.
6
However, the concept of copyright as a principle
existed earlier before that. Ordinary and ancient
people, often without realising it, have always
produced work that copyright protects. In the past this
work took the form of personal or business letters,
school or college essays and artwork or photographs.7
Dating back almost to the beginnings of civilization
there have been those eager to profit from the work of
others (ne alieni collision Fructus laborum et vigiliarum
serum).8 In ancient times, the idea that the author of a
work of literature had economic rights to control the
7 Julien Hofman (2009). Introducing Copyright: A Plain Language
Guide to Copyright in the 21st Century, Vancouver:
Commonwealth of Learning, Pp. xi.
8 This Latin maxim refers to those who reap the fruits of his labours.
That means you cannot be benefits for the work created by
another person who used his labour, skills and efforts which
resulted to the end product of the works (which is his judgment).
Therefore the Latin maxim protected the fruits of author’s works.
7
dissemination and copying was not particularly well
established, and yet those who falsely claimed a work
were considered contemptible.9
1.3 Copyright Protection in Tanzania before
Colonialism.
There is no written evidence that during the ancient
societies in Tanzania there was copyright protection.
This is simply because most of the African events and
rules were not put into physical records compared with
the Europeans, Americans and Asians, where by their
events were recorded in a fixed form so as they act as
the evidence as to the existence of an ancient, such as
copyright laws.
9 David I. Bainbridge (2009). Intellectual Property, Seventh Edition,
Pearson Longman, Ashford Colour Press Ltd, Gosport, Pp.33.
8
We have to remember that even when Carl Peters
when signing series of treaties with local chiefs in
Tanganyika, the chiefs had to sign with their thumb. This
proves that these chiefs had no paper means for
recording their events or codifying rules.
For example the Gogo Tribe from Dodoma, their
traditional songs such as „chimandi‟ and others were
owned by chiefs but protected by the clan leader or a
farm leader through which such a song was created.
Therefore, it was considered to go against the ancestral
spirits if one leader of the clan or farm organization or
any member of either two, to take another group song
unless otherwise permitted by the group leader. These
activities were not documented.
While the European perception of literature generally
refers to written letters, the African concept includes
9
oral literature (oriterature “ureter”, in the term coined
by Ugandan scholar Pio Zirimu).10 In Africa could also
imply an artistic control or use of words for the sake art
alone.11
Even though, there are some evidences to prove the
existence of Ancient African Arts and Literary Works
presence in crave like in Isimila and kondoa, rocks oral
literature such as Swahili literature being Utendi WA
Tambuka or “The Story of Tambuka”, Epic of Sundiata in
Mali and Epic of Dinga from old Ghana Empire12 and
some in the papers and the role of Egypt, Timbuktu and
Ethiopia in mathematical calculation, reading and
10 George, Joseph, (1996). “African literature,” in Gordon and
Gordon, Understanding Contemporary Africa ch. 12, Pp. 303.
11 Ibid
12 “African literature – MSN Encarta”. Archived from the original on
2013 – 01 – 12.
10
writing knowledge13 , in which they were protected by
chiefs of the particular tribe still there is no prove to the
existence of copyright protection of those inventions
and creations.
This would not have been happening if Tanzanian
Societies had records in fixed form to prove various
activities for copyright protection occurred before the
coming of the colonialists, but it is just a hearsay that
we have.
1.4 Copyright Protection in Tanzania
(Tanganyika by then) During Colonial Era
Copyright protection in most of the Africa Societies
began as soon as the existence of Colonialism in Africa
which brought European Civilization in Africa including
13 Matthias Schulz Anwen Roberts (2008). “The Rush to save
Timbuktu‟s Crumbling Manuscripts” Pp. 34.
11
formal education in which African literature and artistic
works were protected by the Colonial Masters.
However, due to the exploitative nature of the
Colonialism, Africans were not well benefits from their
labour, efforts and judgment of their literary and artistic
works as they were subjected to their Colonial
Masters.14
In order to understand the concept of copyright
protection in Tanzania (Tanganyika by then), it is for the
best to look at the nature of the legal systems during
the Colonial Era which resulted to the current copyright
protection law, and before looking to the nature of the
Colonial Legal System, the aims of Colonialists are vital.
14 Herbert Isaac Ernest Dhlomo of South Africa published the first
English – language African play, The Girl Killed to Save:
Nogqawuse the Liberator in 1935, Pp.17.
12
Cecil Rhodes outlined the main purposes/aims of the
colonial economy, which was pioneered by early
imperial companies, as follows:15
“We must find new lands from which we can
easily obtain raw materials and at the same
time exploit the cheap slave labour that is
available from the natives of the colonies. The
colonies would also provide a dumping
ground for surplus Goods produced in our
factories.”16
The above statement by Cecile Rhodes clearly shows
the purpose of the colonialists in Africa especially in
Tanzania, in which it automatically indicate negative
impacts towards the African economy, such exploiting
15 As quoted in “ Development as Enclosure: The Establishment of a
Global Economy: The Ecologist 22 No.4 (1992) pp. 31-47)
16 Rogate R. Mshana (2001). The Economic Impacts of German
Colonial Rule and the Question of Reparation. Pp.33.
13
African labour, raw materials and at the same time
market for the dumping manufactured surplus goods.
To achieve such aims implies that even the legal
systems have to be in exploitative nature so that the
above aims can be smoothly interpreted.
1.4.1 Copyright Protection under the German
Rule: AD 1890-1919.
During the Germany colonial rule the administration of
justice was basically racial; there were two systems, one
for natives and another for non-natives. The
adjudication at this time was made by the governor
and other administrative officers. The law applicable in
matters relating to Native was actually vague.17
The Germans left behind a Three-tier Court System; one
for Europeans, a second under the Local
17 Available at http://www.judiciary.go.tz, extracted 3rd April 2013.
14
Authorities and the Military Commanders for the
Natives in effectively occupied areas and lastly, the
Traditional Judicial Institutions in areas without effective
German Control. The German Colonial Administration
successfully attempted to impose upon the Natives a
Pan-Territorial Legal System for the first time in the area
though the system was strange to them, discriminatory
and brutally applied by law enforcers.18 Through
looking at this nature of the legal system, copyright
protection was there but with racial bias.
Due to inadequacy of the company in 1891, the
German administration was forced to be under the
direct rule.19This means they did not allow the use of
traditional laws other than foreign laws except in the
18 Ibid.
19 See the History of Tanzania at
http://www.historyworld.net/wrldhis/plaintexthistories.asp?
Extracted on 4th September, 2013.
15
Traditional Judicial Institutions the areas in which
German Control had less interest.
The act of placing different Court System in
accordance with race, between Native Africans, Arabs
or Indians and Europeans established racial
discrimination because the German administration
considered the Africans “insufficiently advanced to
come under German law”.20
Copyright activities during German Reign were not vital
as the result of the nature of the Colonial Economy
(which mostly supports industrial economy activities)
concentrating on hut, house, pay as you earn and poll
tax in 1897, and land policies. Therefore, even though
the German Law was applied to the Europeans and
Local Authorities, copyright was not given priority.
20 Anthony Allott (1976). Development of the East African Legal
System During the Colonial Period, in HISTORY OF EAST AFRICA 348
(D.A. Low ed.,) Pp.397.
16
And as the fact that customary laws at that time were
not codified in a fixed form such as written documents,
then there is no evidence as to whether the Traditional
Judicial Institutions established by the German solved
cases relating to copyright.
It is also believed that, many of these records (taxes,
land policies and even different cases) were hidden
and sometimes destroyed during the First World War in
1918 and some although surprising few have been lost
subsequently.21
1.4.2 Copyright Protection under the British Rule:
AD 1919-1962.
After the end of the war the treaty of Versailles, in 1919,
grants Britain a League of Nations mandate to govern
the former German East Africa which now acquires a
21 Iliffe, J, A. (1969). Tanganyika Under German Rule 1905, 1912,
1969, CUP London, Pp.33.
17
new name, Tanganyika. During the British Colonial Era,
the British introduced two separate structures of judicial
hierarchies and this was done through the Tanganyika
Order in Council.22
British policy from the 1920s onwards was to encourage
indigenous African administration along traditional
lines, through local councils and courts. A legislative
council is also established in Dar Es Salaam, but African
members were not elected to this until after World War
II. By then local political development is an obligation
under the terms of UN trusteeship, in which Britain
places Tanganyika in 1947.23
22 Tanganyika Order in Council of 1920.
23
http://www.historyworld.net/wrldhis/PlainTextHistories.asp?historyid
=ad23-extracted on 29th June 2013
18
Britain further enacted the Courts Ordinance to
“regulate the administration of justice in the territory.”
The Courts Ordinance maintained the previous system
of separate adjudication for foreigners and the
indigenous population although appeals from the
native courts could be sent to the colonial High Court.24
Despite several amendments to the law, the
administration of justice during British rule never did
away with the racial discrimination.25
24 Kenneth McK. Norrie (1989). Administration of Justice in Tanzania
and Zanzibar: A Comparison of Two Judicial Systems in One
Country, 38 I NT’L & COMP. L.Q Pp.398.
25 Magalla, A and Robert E. (2012), Independence of Judiciary
and Administration of Justice in Tanzania: A Critical Assessment of
Its Interpretation and Practical Application by the Courts in
Tanzania. A Research Thesis Submitted in Partial Fulfillment of
Academic Requirement for the Award of Bachelor of Laws (LL.B),
at Tumaini University Iringa University College. Available at
http://www.academia.edu/3123220/The_Independence_of_Judici
ary_in_Tanzania, at page 5-6. Retrieved on 23rd April 2013.
19
Codification of copyright law came only with the
Copyright Act of 1911. This Act, also known as the
Imperial Copyright Act, applied in colonial territories
and was the model for most of the early copyright
legislation in Commonwealth countries.26
1.5 Copyright Protection after Colonial
Domination: From 1961 up to now.
After attaining the independence from the British
Colonial Master, the Copyright Ordinance Chapter 218
by Act No. 61 of the 1966 was enacted. It is from this
Act which resulted to the enactment of the new
Copyright Legislation in 1999 which it is still in operation
currently.
26 Julien Hofman (2009). Introducing Copyright: A Plain Language
Guide to Copyright in the 21st Century, Vancouver:
Commonwealth of Learning, p.5.
20
The Act adheres to the rules and principles of some
conventions such as the Berne convention27 and the
TRIPS Agreement of the World Trade Organization.28For
example protection of computer programs and
software29 which is one of the requirement of the
above Agreements.
Intellectual Property like other laws during colonial time
was imported through a reception clause30 as
27The Berne Convention for the Protection of Literary and Artistic
Works of 9 September 1886 as last revised at Paris on 24 July 1971
and amended in 1979. Available at www.wipo.org. Retrieved on
6th September 2013
28Agreement on Trade Related Aspects of Intellectual Property
Rights, April 15 1994, Annex IC of Marrakesh Agreement
Establishing the World Trade Organisation, 1869 U.N.T.S. 299, 33
I.L.M. 81 (1994).
29 See Sections 4 and 5 (2) (a) of [Cap. 218, R.E.2002] of 1999.
30 Leonila Kishebuka,WIPO Training of Trainers Program on Effective
Intellectual Property Asset Management by Small and Medium-
Sized Enterprises (Smes) August 22 To26,2011, Blue Pearl Dar Es
Salaam, available at, http://
21
Tanzania31 was under the British trustee and inherited or
copied many British legal practices including laws
through the reception clause.32
The development of science and technology not only
in Tanzania but worldwide have brought some
challenges in all aspects of human life. The digital
revolution has brought fundamental change to
communications and fuelled dramatic developments
in the new digital economy.
In addition, some countries, particularly developing
countries have not implemented the full range of
www.brela-tz.org/NATIONAL%20ADMINISTRATION%20FRAMEWO.
Extracted on 8th July 2013.
31 Tanganyika by then.
32 Section 2 subsection (ii) of the Judicature and Application of
Laws Act, CAP.358 of 1920.
22
limitations and exception available to them under
international law in terms of copyright protection.33
It has been said in Tanzania, that these technologies
began widely to be used by the years of 1993 when
Telecom services was liberated. This revolution
flourished after 20 years of prohibition of the
importation of the computer with the earliest Internet
Service Provider being Raha.Com compared with
nowadays Tigo, Airtel, Zantel, Simbanet and TTCL.34
The expansion of technology, especially information
and communication technology became the most
33 Gaelle Krikorian and Amy Kapczynski (2010). Access to
Knowledge in the Age of Intellectual Property, Zone Books: New
York, Pp. 518.
34 Twaakyondo, Hashimu M. Key Issues in Information
Communication Technology Policy Review Process: The Case of
Tanzania. Journal of Computing and ICT Research, Vol.5, Issue 2,
pp 46-58. http://www.ijcir.org/volume5-number2/article5.pdf-
retrieved on 19th June 2013.
23
important instrument in promoting the existence of
literary and artistic works by nearly 20th Century,
because these two things are dependently each other.
When the information and communication technology
is high, more information on copyrights and copyright
infringements will be spread throughout the world.
When information is spread, it means even the right of
artistic and literary works will be also promoted hence
the need for ICT legislation to protect such rights,
therefore the development of such piece of legislation
will improve ICT law.35
Even though currently in Tanzania we have the
Electronic and Postal Communication36, which was
35 Twaakyondo, Hashimu M. Key Issues in Information
Communication Technology Policy Review Process: The Case of
Tanzania. Journal of Computing and ICT Research, Vol.5, Issue 2,
pp 46-58. http://www.ijcir.org/volume5-number2/article5.pdf-
retrieved on 19th June 2013.
36 Act No.3 of 2009.
24
enacted with the aim of keeping part and parcel with
electronic development especially in the matter of
information and communication technology in
Tanzania, still it does not curter or give a Legal
Framework sufficient to governing the matters relating
to information technology in Tanzania.
Still the current ICT situation requires urgent steps to
enable the Tanzanians to participate meaningfully in
the knowledge of the economy, recognizing that
Tanzania has low levels of human capital
development, local content creation; ICT
infrastructures and access, which together lead to high
cost of participation37.
Information is the lifeblood of a community information
service and the information file is at its heart. Unless the
37The Tanzanian National Information and Communications
Technologies Policy of 2003, the Policy Context page 2.
25
heart is sound and continually pumping a supply of
regularly renewed and fresh information into the
system, it will not function at its best. Therefore, it is
important to give extra care and attention to planning
the resources needed to set up a sound information
base and a workable system for keeping it up to
date.38
One among the extra care and attention to secure
information is technology and not only law but
sufficient and efficient laws.
1.6 The Rise of International Agreements for
Copyright Protection
As the result of the industrial revolution and the rapid
developments made in the fields of science,
38 Ralph Forrestal (2009). Teacher‟s Handbook of Information
Technology, First Edition, Global Media: New Delhi. Pp 123.
26
technology, and culture, new kinds of property apart
from the traditional came into existence. The concept
has undergone a sea change especially after the
Second World War.
They received a great attention due to their unique
features and possibility of their violation easily. It is
because of their unique characteristics, international
and big corporation saw the necessity of protecting
them.39 To control market power, measures that seek to
counteract abuses of market power by heaviest
companies were inevitable. Otherwise, liberalization
might simply end in laissez faire.40 Intellectual property is
the umbrella phrase now used, but only since about
39 G.B. Reddy (2000). Intellectual Property Rights and the Law, 1st
Edition, Gogia Law Publications, Navya Printers Pp.2.
40 Christopher Arup (2008). The World Trade Organization
Knowledge Agreements, Second Edition, Cambridge University
Press, Pp. 14.
27
the 1970s. Before that it meant only copyright and the
like’s rights to cover all the various rights that may be
invoked to prevent imitations of various sorts.41
The Paris Convention for the Protection of Industrial
Property, signed in Paris France, on March 20, 1883, was
one of the first intellectual property treaties. It
established a Union for the protection of industrial
property. The Convention is still in force as of 2013.
The Berne Convention42 first established recognition of
copyrights among sovereign nations, rather than
merely bilaterally. Under the Berne Convention,
copyrights for creative works do not have to be
asserted or declared, as they are automatically in force
41 Jacob R, Alexander D and Lindsay L (2004). A Guide Book to
intellectual property, 5th Edition, London Sweet & Maxwell, Pp.3.
42 S. Ricketson (1987). The Berne Convention for the Protection of
Literary and Artistic Works:1886-1986 (London: Centre for
Commercial Law Studies, Queen Mary). Pp.56.
28
at creation: an author need not "register" or "apply for"
a copyright in countries adhering to the Berne
Convention. As the work is "fixed", author is
automatically entitled to all copyrights in the work, and
to any derivative works unless and until the author
explicitly disclaims them, or until the copyright expires.43
While the Berne Convention 1886 seems to be based
more on the protection of authors rights44 or literacy
and artistic works. The 1961 Rome Convention goes
further to protect neighbouring rights or entrepreneur
43 "Berne Convention for the Protection of Literary and Artistic
Works Article 5". World Intellectual Property Organization. Retrieved
January 26, 2013.
44 Droit de’ auteur which includes works created by authors such
as literary works that is to say books, music, art and firms (droit
voisins) including phonogram producers, performers and
broadcasters. However both Convention share same national
treatment.
29
works.45 Initially the Berne Convention did not seem to
reflect the impact of digital technology until it was
modernized via other Conventions.
The impact of digital technology on copyrighted works
has been considered via Article 20 of the Berne
Convention,46 the WIPO Copyright Treaty of 199647
appears to cope with digital technology as grant
45 Examples of these types of works include sound recordings,
cable programs, broadcasts and the typographical format of
published editions.
46 Berne Convention for the Protection of Literary and Artistic
Works, 1886-1986.
47 WIPO Copyright Treaty of 1996 is a special agreement enacted
by a consensus of over 100 member states of European Union in
Geneva Switzerland on December. It supplements the Berne
Convention for the Protection of Literary and Artistic and Rome
Convention. At that time the two Conventions were not modified
for more than 25 years. WIPO Copyright Treaty is also known as
Internet Treaty as it was created to address changes in digital
technology and communications, particularly the distribution of
digitally protected works over the internet. See further at
http://www.techopedia.comdefinition/26952/WIPOCopyrighttreat
y-extracted on 5th September 2013.
30
exclusive rights to others, performers and producers in
making their copies available to the public by wire or
wireless means.48 Thus the phrase “by wireless” suggests
the protection of IP rights in line with computer
technology. Wireless is a term used to describe
telecommunications in which electromagnetic waves
(rather than some form of wire) carry the signal over
part or the entire communication path. Some
monitoring devices, such as intrusion alarms, employ
acoustic waves at frequencies above the range of
human hearing; these are also sometimes classified as
wireless. 49
48 Article 10 of the WIPO Performances and Phonograms Treaty
1996.
49Margaret Rouse (2006). Wireless Definition, available at
http://searchmobilecomputing.techtarget.com/definition/wireless-
retrieved on 22nd February, 2013.
31
The first wireless transmitters went on the air in the early
20th century using radiotelegraphy (Morse code).
Later, as modulation made it possible to transmit voices
and music via wireless, the medium came to be called
"radio." With the advent of television, fax, data
communication, and the effective use of a larger
portion of the spectrum, the term "wireless" has been
resurrected.50
Universal Copyright Convention – ratified by the U.S. in
1954 and again in 1971, this treaty was developed by
UNESCO as an alternative to the Berne Convention.51
Therefore the chronological historical development of
copyright protection falls under the following
legislations.52
50 Ibid, Margaret Rouse (2006). Wireless Definition.
51 Universal Copyright Convention, 1954-1971.
32
Licensing Press Act 1662,53 Statute of Anne 171054, The
Paris Convention for the Protection of Industrial Property
of 1883, International Copyright Act 1886 and the Berne
Convention, Copyright Act 1911,55 Universal Copyright
Convention,56 Copyright Act 195657; the Rome
52 History of copyright – http://www.ipo.gov.uk/type/copy/c-
about.htm...reviewed 30 January 2013
53 The issue of piracy brought bout an act to establish a register of
licensed books, along with the requirement to deposit a copy of
the book to be licensed.
54 Introduced the principle of a fixed term of protection. Before the
enactment of the Statute of Anne, there was no fixed term of
copyright protection. The statute fixed 21 years on the old works
and 14 years for the new works at the time when the work was
created and published. After the expiration of the work the author
had privilege to renew another 14 years from the date the work
was expired. See William, F. P (1994) Copyright Law and Practice,
Pp11-12. Available at http://digital –law-
online.info/patry/patry2.html-extracted on 6th September 2013.
55 This Act brought provisions on copyright into one Act for the first
time by revising and repealing earlier Acts.
56 One of the principal international conventions protecting
copyright was adopted in Geneva in 1952.
33
Convention of 1961,58 Copyright Designs and Patent
Act 198859 and lastly World Intellectual Property
Organization Copyright Treaty of 1996 was
established,60 in which in Africa, The African Regional
Intellectual Property Organization (ARIPO), formerly
African Regional Industrial Property Organization was
formed.61
Tanzania is a member state of some of the above
mention conventions and through the Copyright and
57 This Act acknowledged further amendments to the Berne
Convention and the United Kingdom’s accessions to the Universal
Copyright Convention.
58 Which protects neighboring rights or entrepreneur works.
59 This is the UK’s current Copyright Act has been amended by EC
Directives and other legislation since it came into force.
60 With the aim to cope with the advancement of science and
technology.
61 ARIPO or The African Regional Intellectual Property Organization
was established in Lusaka, Zambia, on December 9, 1979 (Lusaka
Agreement) and its headquarters located at Zimbabwe.
34
Neighbouring Rights Act, [Cap.218, R.E 2002] it complies
with their principles for example World Intellectual
Property Organization Convention, 1967 (effective for
Tanzania as from 30 December 1983);62 Paris
Convention (International Union) (effective for Tanzania
as from 16 June 1963);63 Berne convention;64
Agreement on the Creation of the African Regional
Industrial Property Organization (ARIPO) 1979 (effective
62 The World Intellectual Property Organization Copyright Treaty of
1996.
63 The Paris Convention for the Protection of Industrial Property of
20 March 1883 as last revised at Stockholm on July 14 1967 and
amended in 1979. Available at www.wipo.org-Retrieved on 8th
September 2013.
64 The Berne Convention for the Protection of Literary and Artistic
Works of 9 September 1886 as last revised at Paris on 24 July 1971
and amended in 1979. Available at www.wipo.org. Retrieved on
6th September 2013.
35
for Tanzania as from 12 October 1983);65 and the TRIPS
Agreement of the World Trade Organization (effective
for Tanzania as from 1 January 1995).66
For instance, one among the aims of this law is:
a. To protect the moral and economical
interests of authors (creators) relating to
their work.
b. To provide protection for expression of
folklore.
c. To protect the interests of performing
artists, producers of cassettes and
broadcasting organizations.
65 Agreement on the Creation of the African Regional Industrial
Property Organization (ARIPO) Created in Lusaka, Zambia, on
December 9, 1979 (Lusaka Agreement).
66 Agreement on Trade Related Aspects of Intellectual Property
Rights, April 15 1994, Annex IC of Marrakesh Agreement
Establishing the World Trade Organisation, 1869 U.N.T.S. 299, 33
I.L.M. 81 (1994).
36
d. To provide for civil remedies and
criminal sanctions against infringers and
pirates.
e. To provide for Public Rights to access
the author's work without conflicting
author’s rights.
These aims are also encompasses in the above two
conventions.
However, the country has not signed and ratified the
Convention relating to the distribution of program
carrying signals transmitted by the satellite of 1974.67This
brings challenges especially on the copyrighted
materials which are transmitted through satellites.
67 See Brussels Convention Relating to the Distribution of
Programme-Carrying Signals Transmitted by Satellite at
http://www.wipo.int/treaties/en/text.jsp?file_id=283796-retrieved
on 21st July 2013.
37
1. 7 The First Recorded Copyright Case.
The first record of a copyright case was the case of
Finnian v. Columba.68 Finnian possessed a new Psalter
known as a book of Psalms; Columbia copied it,
intending to keep his copy of the work. St. Finnian
disputed his right to have such copy, which at the end
led to a Battle of Cul Dreimhne in 561 AD, and many
people died. Columba was punished for it.69 The copy
was reclaimed, so the tradition relates, under the
decision of King Dermott,70 in the Halls of Tara: "To every
68 567 A.D
69 Bowker(1912). R.R, Copyright: Its History and its Law, Houghton
Mifflin, Pp.9.
70 Dermot MacMurrough was the King of Leinster during the twelfth
century and is most remembered as the man who invited the
English into Ireland. Dermot MacMurrough was a deeply ambitious
man who refused to accept his exile. He made his way to the
Court of Henry II of England and offered to become a vassal to
the King in return for military aid in retaking his kingdom. The king
did not directly provide assistance but allowed MacMurrough to
38
cow her calf, to every book its copy.71" The authenticity
of the tradition is questioned by other writers, but the
phrase gives the pith of the common law doctrine of
literary property and indicates that in those early
centuries there was a sense of copyright.
In Tanzania even though, we have the Copyright and
Neighbouring Rights Act, [Cap.218, R.E 2002], there are
few numbers of copyright cases or no cases at all
because they are unreported and mostly not easily
accessible. It is from their remoteness that made
Tanzanian copyright cases seemed none and
unavailable.
petition the Anglo-Norman lords. See http://www.ireland-
information.com/articles/dermotmacmurrough-strongbow.htm-
retrieved on 5th January 2013.
71Graham D, and Uma S (2013). Global Intellectual property Law,
Edward Elgar Publishing, Pp.64.
39
1.8 Conclusion.
It can be rightly argued that careful looking at the era
and all the changes which have taken place within the
development of copyright in Tanzania , some other
countries such like the United States, United Kingdom,
Australia, South Africa, India and others have grossly
responded for the same so as to ensure the copyright
protection in regard to the computer programs and
music industry, Tanzania on the other hand is still in an
infancy stage and the same calls for the viable reforms
in the respective laws so as to go hand to hand with
the modern requirements and science and
technology.
Article 24 of the Constitution of the United Republic of
Tanzania72 provides on the right to own property that
72 The Constitution of the United Republic of Tanzania of 1977, as
amended from time time.
40
every person entitled to own property and has a right
to the protection of his property held in accordance
with the law. Also in the case of Attorney General v.
Lohay Akonaay and Joseph Lohay73.The court quoted
an article by Nyerere in his book,74he stated inter alia
that;
“When I use my energy and talent to clear a piece of
ground for my use it is clear that I am trying to transform
this basic gift from God so that it can satisfy a human
need. It is true, however, that this land is not mine, but
the efforts made by me in clearing the land enable me
to lay claim of ownership over the cleared piece of
ground. But it is not really the land itself that belongs to
me but only the cleared ground, which will remain
73 [1995] TLR 80 (CA).
74 Mwalimu Julius K. Nyerere (1966). Freedom and Unity, Oxford
University Press.London.
41
mine as long as I continue to work on it. By clearing that
ground I have actually added to its value and have
enabled it to be used to satisfy a human need.
Whoever then takes this piece of ground must pay me
for adding value to it through clearing it by my own
labour”.
In light to intellectual property especially copyright, the
quotation above also implies to the protection of
intellectual property, especially copyright as long as a
person used talent, effort/energy, labour in adding
something value to such property. It also implies the
essence of public use over the work of another owner
in creating a new work. This is shown in this phrase, It is
true, however, that this land is not mine, but the efforts
made by me in clearing the land enable me to lay
claim of ownership over the cleared piece of ground.
42
The last sentence of the quotation implies the
economic right of the owner of the work.
Currently, the President of the United Republic of
Tanzania, Honorable Dr. Jakaya Mrisho Kikwete has
signed the new law THE CYBERCRIMES ACT, 2015, in
February 20.
This Act to a certain extent has tried to solve some
problems relating to protection of intellectual property
rights in digital environment.
For instance Section 3 of the Act75 has defined what
intellectual property rights mean state that;
"intellectual property rights"
means the rights accrued or
related to copyright, patent,
75 The Cybercrimes Act, 2015
43
trade mark and any other
related matters;
Also the same section has tried to explain
the meaning of property as;
"Property" means property of
any kind, whether movable or
immovable, tangible or
intangible, and includes-
(a) Any currency either as a
legal tender in the United
Republic of
Tanzania or not;
(b) Information, including an
electronically produced
program or data or copy
thereof, human or computer-
readable data; or
44
(c) Any right or interest in
property.
Furthermore section 24 of the Act state
that;
(1) A person shall not use a
computer system to violate
intellectual property rights
protected under any written
law.
(2) A person who contravenes
subsection (1) commits an
offence and in case the
infringement is on -
(a) non-commercial basis, is
liable to a fine of not less than
five million shillings or to
45
imprisonment for a term of not
less than three years or both;
or
(b) Commercial basis is liable
to a fine of not less than
twenty million shillings or to
imprisonment for a term of not
less than five years or to both.
In this Act digital copyright infringement may be
claimed, but I still have some questions, what about
those international and regional treaties which the
country is not the member, for example the country has
not signed and ratified the Convention relating to the
distribution of program carrying signals transmitted by
46
the satellite of 1974.76This brings challenges especially
on the copyrighted materials which are transmitted
through satellites. If the Treaty is not signed or ratified
can the local legislation enable to solve the problem
which can be solve by such Treaty?
Also the Act does not discuss the concept of fair use
that means if it started to be operated (as the fact that
the Act it is not yet put into practice despite of the fact
that it has been already signed by the president) only
one right will be claimed digitally (private rights) and
leaving the other rights (public rights) hanging, thus
twisting the balance between the protection of both
public and private rights.
Despite of having this CYBERCRIMES ACT, 2015, still we
need to improve our other written laws such as
76 See Brussels Convention Relating to the Distribution of
Programme-Carrying Signals Transmitted by Satellite at
http://www.wipo.int/treaties/en/text.jsp?file_id=283796-retrieved
on 21st July 2013.
47
Copyright and Neighbouring Rights Act, [Cap.218 R.E.
2002] so as to support these changes which have been
brought by this Act so as to strike a balance between
the protection of private rights and public right in
intellectual property rights particularly in copyright.
Therefore, one of the most logical requirements of ICT
regulation is that, ICT legislation should be sustainable
enough to cope with technological developments
over a sufficiently long period of time. If a law is too
technology-specific, it is not likely to cover future
technological developments, and it will therefore have
to be adapted sooner rather than later.77
77 Koops (2006). „Should ICT Regulation Be Technology-Neutral?‟ in Bert-
Jaap Koops at el (eds) Starting points for ICT Regulation. Deconstructing
Prevalent Policy One –Liners, IT & Law Series, Vol.9, Hague: T.M.C. Asser
Press. Pp. 77-108.
48
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56
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