THE HISTORY OF COPYRIGHT IN TANZANIA: FROM TANGANYIKA TO TANZANIA-WHERE, WHEN AND HOW.
PROTECTION OF INTELLECTUAL PROPERTY RIGHTS IN TANZANIA: CASE STUDY COPYRIGHT LAW
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i TUMAINI UNIVERSITY IRINGA UNIVERSITY COLLEGE FACULTY OF LAW PROTECTION OF INTELLECTUAL PROPERTY RIGHTS IN TANZANIA: CASE STUDY COPYRIGHT LAW BY MUSIBA, EPHRAIM 1 and MWAIKUGILE, GWAMAKA 2 SUPERVISOR: MR. BARNABAS PASCAL NYALUSI 3 A RESEARCH THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE AWARD OF THE DEGREE OF BACHELOR OF LAWS OF TUMAINI UNIVERSITY 1 Llb graduate and now work at TTC 2 LLB and lawyer in making 3 Lecturer at TUICO and advocate of the high court of Tanzania
Transcript of PROTECTION OF INTELLECTUAL PROPERTY RIGHTS IN TANZANIA: CASE STUDY COPYRIGHT LAW
i
TUMAINI UNIVERSITY
IRINGA UNIVERSITY COLLEGE
FACULTY OF LAW
PROTECTION OF INTELLECTUAL PROPERTY RIGHTS IN
TANZANIA : CASE STUDY COPYRIGHT LAW
BY
MUSIBA, EPHRAIM 1 and MWAIKUGILE, GWAMAKA 2
SUPERVISOR: MR. BARNABAS PASCAL NYALUSI 3
A RESEARCH THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE
REQUIREMENTS FOR THE AWARD OF THE DEGREE OF BACHELOR OF LAWS OF
TUMAINI UNIVERSITY
1 Llb graduate and now work at TTC 2 LLB and lawyer in making 3 Lecturer at TUICO and advocate of the high court of Tanzania
ii
TUMAINI UNIVERSITY
IRINGA UNIVERSITY COLLEGE
PROTECTION OF INTELLECTUAL PROPERTY RIGHTS IN TANZANIA: CASE
STUDY COPYRIGHT LAW
BY
MUSIBA, EPHRAIM and MWAIKUGILE, GWAMAKA
SUPERVISOR: MR. BARNABAS PASCAL NYALUSI
A RESEARCH THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE
REQUIREMENTS FOR THE AWARD OF THE DEGREE OF BACHELOR OF LAWS OF
TUMAINI UNIVERSITY
iii
JULY 2010
i
DECLARATION
We Musiba, Ephraim and Mwaikugile, Gwamaka do sign herein under to declare thereby that
this dissertation is a product of our own work and that it has not been presented to any other
university for neither similar nor other degree awards.
We further confirm we understand the College rule against Academic Dishonesty and Plagiarism
and state that the work covered by this declaration is our own and does not contain any
unacknowledged work from other sources.
1. NAME: MUSIBA, EPHRAIM SIGNATURE………………....
THIS………………….DAY OF JULY 2010
2. NAME: MWAIKUGILE, GWAMAKA SIGNATURE………………...
THIS………………….DAY OF JULY 2010
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CERTIFICATION
The undersigned do hereby sign to certify to have read and recommends that this dissertation be
accepted by the Tumaini University Iringa College of Tanzania, being a partial fulfilment of the
requirement for the award of a degree of Bachelor of Laws (LL.B).
Signed this……….Day of JULY, 2010
_________________________
BARNABAS PASCAL NYALUSI
(SUPERVISOR)
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COPYRIGHT
This work is copyright protected under the Copyrights and Neighbouring Rights Act No 7 of
1999 [R.E 2002], Laws of Tanzania and international instruments for the protection of
intellectual property rights.
And as such therefore, no part of this research paper may be reproduced, copied, adopted,
abridged or stored in any retrieval system or transmitted in any form by any means; electronic,
photocopying, recording or otherwise, save for the application of ‘fair use doctrine,’ without
prior written permission of the authors or of the Dean, Faculty of Law, Tumaini University,
Iringa University College.
© Tumaini University 2010
© Ephraim Musiba and Gwamaka Mwaikugile
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DEDICATION
I Ephraim Musiba would like to dedicate this work to my father Mr. Elvis Musiba, my late
mother Victoria Musiba (May her soul rest in peace) and my brothers and sisters. You are my
mentors, plus you have always supported and encouraged me throughout my life. Thank you
very much. God bless you all.
I Gwamaka Mwaikugile would like to dedicate this work to my father Judge N.M Mwaikugile,
my lovely mother May J. Mwaikugile and my brothers and sisters. You are my mentors, plus you
have always supported and encouraged me throughout my life. Thank you very much for your
support. God bless you all.
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ACKNOWLEDGEMENT
Despite the fact that this thesis comes from our personal efforts, it will be unfair not to mention
some other people who have contributed to the outcomes of this work. Although, it is not
possible to mention by names all of them, we would like to express our special gratitude to the
following persons;
Firstly, we wish to express our profound gratitude and sincere thanks to the Almighty God for
giving us the health, the strength and the will to accomplish this research. It is through him that
all things were possible. “I can do all this through him who gives me strength”- Philippians 4:13.
We would like to extend our heartfelt appreciation to our families. They have supported us
throughout the whole time that we have been at the college, both morally and financially. It is
because of these exceptional people that our life at the college was a comfortable one.
We also wish to convey our special appreciation to our supervisor, Mr. Barnabas Nyalusi for his
indispensable supervision, assistance and close guidance throughout the time of our research. He
encouraged us, gave us critical comments and corrections from time to time, efforts which have,
to a greater extent shaped this research paper. As well, we would like to thank all the lecturers of
Tumaini University, Iringa University College in the Faculty of Law for working determinedly in
impacting us with proper knowledge in the legal profession.
We would furthermore like to thank the staff of COSOTA in Dar es Salaam, especially Mr.
Yustus A. Mkinga who offered us special assistance and provided us with substantial amount of
information which was exceptionally constructive for the completion of this research.
Lastly, we would like to thank all our friends at the college for sharing this journey with us and
always being there for us through the good times and the bad. We are fortunate and blessed to
have you people as our friends.
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ABSTRACT
Intellectual property law is that area of law concerned with legal rights associated with creative
effort or commercial reputation and goodwill. It is a broad area of study that covers different
from of rights like copyright, trademarks, patents and designs4. Due to the increase of copyright
infringement as a major problem facing intellectual property in Tanzania, the researchers have
found it necessary to conduct a critical analysis on intellectual property law relating to the
protection of copyright in Tanzania.
Chapter one of gives an introductory aspect of the study, paving way to the background of the
research, statement of the problem, objectives and the significance of this study. It also
prescribes the hypothesis, methodology used to carry out the study and the scope within which
the research paper has based. Chapter two of this research contains a lengthy discussion on the
concept of copyright law.
In chapter three the research establishes, through data collected, the extent to which copyright
laws are observed and protected in Tanzania. This chapter thus is a presentation of the research
findings and a detailed analysis on the various tools assigned with the duty of protecting
copyright law.
Finally, this study at chapter four comes up with conclusive remarks, summing up on what has
been discussed in the preceding chapters. The chapter finally poses some recommendations as to
what has to be done by the judiciary, the government, the Copyright Society of Tanzania and the
public at large so as to make sure that copyright laws are protected.
4 Bainbridge, D. (2009) Intellectual Property, 7th edition, Pitman Publishing Imprint, pp.3
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LIST OF LEGAL INSTRUMENTS
A) STATUTES:
The Copyright and Neighbouring Rights Act, Cap.218 of 1999 [R.E. 2002]
The Copyright and Neighbouring Rights (Registration of members and their work) Regulation,
2005
The U.K Copyright, Design and Patent Act, Cap 48 of 1988
B) INTERNATIONAL CONVENTIONS:
The Berne Convention for the Protection of Literary and Artistic Works, 1967
The Rome Convention for the Protection of Performers, Producers of Phonograms and
Broadcasting Organizations 1961
World Intellectual Property Organization (WIPO) Convention 1886
WIPO Copyright Treaty Adopted By the Diplomatic Conference on December 20, 1996
LIST OF CASES
Anton Piller K.G. v Manufacturing Processes Ltd [1976] RPC 719
British Leyland Motor Corp Ltd v. Armstrong Patents Co. Ltd [1986] 2 WLR 400
COSOTA v. Billicanas Club R.M C.C 147 of 2007
COSOTA v. Golden Rose Hotel R.M.C.C 23/ 2007
COSOTA v. Kili New Pub R.M CC 15 of 2007
COSOTA v. New AICC Club R.M C.C 22/ 2007
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COSOTA v. Protea Aishi Machame R.M C.C 14 of 2007
Cramp v. Smython [1944] AC 329
Cyprotex Discovery v. University of Sheffield [2004] RPC 68
Designer‟s Guild v. Russell Williams 2001 FSR 113, 116
Exxon Corporation v. Exxon Insurance Consultants International Co. [1981] 3 ALL ER 241
G. Basset v. Societe des Auteurs, compositeurs et Editeurs de Musiue (SACEM), [1987] 3
C.M.L.R.173.
Heritage Hotel v. COSOTA and A.G, Commercial Case no 4 of 2009 (High Court Commercial
Division Dar es Salaam)
Hyde Park Residence Limited v. Yelland [2000] 3 WLR 215
Isaiah Mwakilasa and 6 others (All t/a Ze Comedy Production) v. E.A.T.V, BRELA and
COSOTA, High Court of Tanzania Commercial case no.49 of 2008 (Unreported Judgment
24/06/2009)
Metro- Goldwin-Mayer Studios Inc. v. Grokster Limited [2005] 545 USA 913
MCA Records Inc v. Charly Records Ltd [2002] EMLR 1 (CA)
Nova Games v. Manzooma Production Limited [2007] RPC 589
Norowzian v. Arks Limited (no 2) [2000] FSR 363 Appeal case
Penguin Books v. India Book Distributors AIR 1985 Delhi 29
Phonographic Performance Ltd. v. Maitra Court of Appeal, January 3, 1998 (Unreported).
Republic v. Space satellite Television C.C 519 Resident Magistrates court at Musoma Registry
Republic v. Khalfan Abdallah and another C.C 550 of 2004
Robin Ray v. Classic FM (plc) [1998] F.S.R 622
Sinaride v. La maison Kosmeo [1928] 139 LT 365
University of London v. University Tutorial Press Limited [1916] 2 Cap 601
ABBREVIATIONS
AC - Appeal Cases
AD - After Death
AIR - All Indian Reports
All ER - All England Law Reports
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BRELA - Business Registration and Licensing Agency
CA - Court of Appeal
CAP - Chapter of the laws of Tanzania
C.E.O - Chief Executive officer
COSOTA - Copyright Society of Tanzania
E.A.T.V - East Africa Television
IPR - Intellectual Property Rights
I.E - That is
LTD - Limited
L.L.B - stands for Le Legum Baccalaureus in Latin (Bachelor of Laws)
R.M.C.C - Resident Magistrates‟ Court Case
TRA - Tanzania Revenue Authority
TRIPS - Trade Related Aspects of Intellectual Property Rights
Tshs - Tanzanian Shillings
UK - United Kingdom
USA - United States of America
v. - Versus (against)
WIPO - World Intellectual Property Organization
WLR - Weekly Law Reports
TABLE OF CONTENTS
DECLARATION................................................................................................................. ..........і
CERTIFICATION............................................................................................................... .........ii
COPYRIGHT....................................................................................................................... ........iii
x
DEDICATION..............................................................................................................................iv
ACKNOWLEDGEMENT............................................................................................................v
ABSTRACT..................................................................................................................................vi
LIST OF LEGAL INSTRUMENTS..........................................................................................vii
LIST OF CASES.........................................................................................................................vii
ABBREVIATIONS.......................................................................................................................viii
CHAPTER ONE: INTRODUCTION ......................................................................................... 1
1.0. Background to the Problem .................................................................................................. 1
1.1. Statement of the Problem ...................................................................................................... 4
1.2. Significance of the Research ................................................................................................. 5
1.3. Objectives of the Research .................................................................................................... 6
1.4. Hypothesis ............................................................................................................................... 7
1.5. Literature Review .................................................................................................................. 7
1.6. Scope of the Research .......................................................................................................... 10
1.7. Research Methodology ........................................................................................................ 10
1.8 Conclusion ............................................................................................................................. 11
CHAPTER TWO: COPYRIGHT LAW ................................................................................... 12
2.0. What is Copyright Law ....................................................................................................... 12
2.1. Rights Obtained Under Copyright Law ............................................................................ 15
xi
2.1.1 Economic and Moral Rights ............................................................................................ 15
2.1.2. Related Rights ................................................................................................................. 17
2.1.3. Public Domain ................................................................................................................ 18
2.1.4. Licences and Transfer of Rights ..................................................................................... 19
2.2. The Tanzanian Copyright Law .......................................................................................... 20
2.3. Subject Matter Protected Under Copyright Law (Acts and Regulations) ..................... 24
2.4. Copyright Infringement ...................................................................................................... 28
2.5. Defences To Copyright Infringement................................................................................. 31
2.6. Conclusion ............................................................................................................................ 33
CHAPTER THREE: PROTECTION AND ENFORCEMENT OF COPYRIGHT LAW IN TANZANIA ................................................................................................................................. 34
3.0 Introduction ........................................................................................................................... 34
3.1. Role of the Government....................................................................................................... 34
3.1.1. The Establishment of Copyright Society of Tanzania as an Administrative body ......... 34
3.1.2. The use of Enforcement Agencies .................................................................................. 38
3.1.3. The Signing of Conventions ........................................................................................... 40
3.2. Role of the Court .................................................................................................................. 43
3.3 Conclusion ............................................................................................................................. 46
CHAPTER FOUR: RECOMMENDATIONS AND CONCLUSION .................................... 47
4.0. Recommendations ................................................................................................................ 47
4.0.1. Recommendation to the Court ........................................................................................ 47
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4.0.2. Recommendation to the Government ............................................................................. 49
4.0.3. Recommendation to the Copyright Society of Tanzania ................................................ 50
4.0.4. Recommendation to the Public at Large ......................................................................... 51
4.1. Conclusion ............................................................................................................................ 52
BIBLIOGRAPHY........................................................................................................................55
1
CHAPTER ONE
INTRODUCTION
1.0. Background to the Problem
Copyright is a legal concept enacted by governments, giving the creator of an original
work of authorship, exclusive rights to control its distribution for a certain time period,
after which the work enters the public domain. It is an intellectual property form
applicable to any expressible form of an idea or information that is substantive or
discrete5. It is a property right that exists in particular types of works for instance films,
artistic works, musical works, sound recordings and literary works6.
The history of copyright law can be traced back as early as 567 AD. It was at this time
where the first case of copyright was heard. Though, it was during the 15th Century that
it immensely developed since there was the introduction of printing which had a great
impact on civilization as a whole. Around the 16th Century printing started to be
exercised freely in England and England became the printing centre in Europe7.
Moreover, in 1529 printing started to be controlled and it was established that for people
to be able to print then they had to be registered to a particular company known as the
Stationers‟ Company. The stationers were a group of entrepreneurs who took the
commercial risks involved in exploiting the works of the authors; they were responsible
for getting hold of the works from their authors as well as the sale and the printing of
these works. Moreover, they wanted to have exclusive rights in the publication of these
works so as to be able to protect them against copiers8. The people who became members
of the Company were given the right and privilege to print their books to eternity and this 5 Mkenda, E. (2009) “How To Obtain and Enforce Copyright Protection in Tanzania” Excel Magazine, pp. 78 6 Bainbridge, D. (2009) Intellectual Property, 7th edition, Pitman Publishing Imprint, pp. 5 7 Ibid, pp. 33-34 8 Torremans, P. (2008) Intellectual Property Law, 5th edition, Oxford University Press, pp. 8
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right is what came to be known as copyright (the right to make copies). The Stationers‟
Company was empowered with the authority of controlling printing, fine imposition,
giving out awards and seizing infringing copies.
In 1709 there was the enactment of the first real copyright statute in England and it was
known as The Statute of Anne 1709. The act gave the sole right and liberty of printing
books to authors and their assignees, it as well provided that new authors of books were
given 14 years sole right of printing. At the end of that period, if the author was still alive
then he was granted an extra 14 years. Infringers were fined one penny for every page of
the infringing book, in the money obtained one third went to the author and the rest went
to the crown9.
For a person to be able to bring an action for infringement then he was ought to register
the title of his book before publication in the register book at the Stationers‟ Company.
The Act was also the first clear acknowledgement of the legal right of authorship. The
Statute of Anne was copied by the US Congress in 1790, that‟s why there is a similarity
between the copyright laws of UK and US10.
Later as civilization expanded, then the scope of copyright was progressively increased to
include a variety of other works such as lithographs in 1734, engravings and prints in
1734-1735, sculptures in 1798, dramatic works in 1833 and musical works in
1882(musical works were protected earlier though the form of protection was
unsatisfactory). Meanwhile, even on an international level copyright started becoming
significant and hence this led to the institution of conventions like the Berne Convention
for the Protection of Literary and Artistic Works. The aim of this convention was to
promote greater consistency in copyright law and protecting copyright owners in all
contracting states11.
9 Torremans, P. (2008) Intellectual Property Law, 5th edition, Oxford University Press, pp. 8 10 Bainbridge, D. (2009) Intellectual Property, 7th edition, Pitman Publishing Imprint, pp. 35 11 Ibid
3
The Berne convention was noteworthy since it successfully put together the deeply
different nature of the UK copyright law with that of the French tradition of droit d‟auter
(authors‟ rights). Major changes to the UK copyright law were introduced by the
Copyright Act of 1911. This Act created the foundation of copyright law throughout the
British Empire and led to the resemblance in copyright law between the UK and other
common law countries like South Africa, Australia and Tanzania.
At last, in order to cater to the technological advancements, then the UK parliament had
to pass a new act that would go hand in hand with the advancements. So this is when the
Copyright, Designs and Patents Act of 1988 came to existence. This Act takes into
account the moral rights which are undeniable rights that belong to the author irrespective
of the copyright ownership. This is equivalent to the droit moral of the Berne
Convention; that is a right to claim authorship of a work and the right to object to any
distortion, mutilation or other modification of a work which could be prejudicial to the
honour and reputation of the author12.
As for Tanzania, the protection of copyright laws came with the colonial administration,
thus it was introduced in 1924 through the Copyright Ordinance Cap.218 of the copyright
legislation of the U.K. However, post independent Tanganyika, which is Tanzania today,
did not make any significant changes in the contents of the intellectual property legal
system. Although, it is notable that the Copyright Ordinance Cap.218 was repealed by
Copyright Act no 61 of 196613.
Moreover in 1999, so as to cater for the technological advancements, the Tanzanian
parliament enacted a new legislation dealing with copyright protection known as the
Copyright and Neighbouring Rights Act, Cap 218, which is the current legislation in
force and for the purpose of this research it will be referred to as “The Act”. The main
objective of the Act is, to promote the creation of literary and artistic works, to safeguard
12 Article 6 of the Berne Convention. 13Wipo Workshop On Intellectual Property For Business For Small And Medium-Sized Enterprises(Smes) Organized By The World Intellectual Property Organization (Wipo)In Cooperation With The Tanzania Chamber Of Commerce Industry And Agriculture (TCCIA) Dar-Es-Salaam, May 10 And 11, 2005
4
expressions of traditional culture and to further productive activities in the field of
communicating to the public authors‟ works, expression of folklore, other cultural
productions and events of general interests14. As well, it is during this period where we
also see the establishment of administrative instruments that assist in ensuring the
implementation of copyright laws like the Copyright Society of Tanzania.
Additionally, since copyright infringement has become a severe problem worldwide, then
even Tanzania has felt obligated to be a part of some international conventions on
copyright protection. For instance, Tanzania has been a member of the Berne Convention
for the Protection of Literary and Artistic Works of 1886 and World Intellectual Property
Organization (WIPO) Convention of 1967 since July 1994, and December 1983
respectively.
These are some of the few steps taken by Tanzania to ensure copyright protection, though
with all these efforts copyright infringement still exists. Therefore, there has been a great
need for this research to be conducted so as to suggest possible solutions to this problem
and see generally what can be done in the country so as to make sure copyright protection
is observed at its strict sense.
1.1. Statement of the Problem
Tanzania has employed a number of efforts to ensure that copyright is protected to a
certain extent. The efforts talked about include; the enactment of different copyright laws
and regulatory rules as well as the establishment of collective management organization,
for instance the Copyright Society of Tanzania (COSOTA.)
Nevertheless, in practice it has been observed that there are a lot of setbacks in the whole
copyright protection system. For instance there are many loopholes and weaknesses that
can be spotted out in the laws created hence making the enforcement and compliance
ineffective. As well, the established administrative bodies are facing a large number of
problems for example the lack of sufficient personnel and funds. Not only that but also,
14 The Act, Section 2
5
the copyright owners, that is the artists and authors do lack awareness on their rights and
the law as a whole hence making it easy for people to infringe their rights.
Consequently, the Tanzanian government and the copyright owners as well are losing
millions of shilling because of the inconsistency in the system. This is a great impediment
since the creative industry contributes a great deal to the development of the country plus
that of the owners of those particular works. Various sources have put out that, if these
rights are observed and protected to the maximum then they will contribute to the growth
of a country‟s economy and development as a whole.
1.2. Significance of the Research
To the researchers
This research paper has broadened the knowledge and the understanding of the
researchers especially on the subject of copyright protection.
To other researchers
The research findings obtained from this research will provide a stable ground (by way of
data) to the other researchers who will be conducting their studies in the related area.
To academicians
The research will serve as a challenge to the academicians that will spur more studies in
this area of the study.
To the government and law makers
The findings from this study will enable the government and the law makers to review
their policies and laws regarding copyright protection by working out on the areas where
there are weaknesses.
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To the public as a whole
It will be beneficial for the public to be conscious of what laws are applicable so as to
protect copyrights of different authors and artists. Hence, once they are made aware it
will be easy for them to act in conformity with the law and support protection of
copyright.
1.3. Objectives of the Research
To open up the eyes of every person be it an ordinary person or those persons in
the copyright field itself to play their part in making sure that the laws perform
according to the purpose, since there is an acute lack of awareness on issues
relating to the copyright protection.
To study the role of the law in the protection of copyright in Tanzania. In the
midst of doing that, the researchers managed to point out the strengths and
weaknesses of the various policies employed in protection of copyright in
Tanzania.
To put forward any particular steps applied by the Tanzanian government in
ensuring the enforcement and protection of copyright laws and pointing out the
challenges that the government has faced in the process.
To ascertain the relationship between legislature and judiciary as far as copyright
laws are concerned and show how both bodies play a role in fostering the
protection of the copyright laws.
To establish the fact that if the copyright laws are well enforced and protected
then they can be used as a progressive tool if and only if, they are carefully
integrated into the national economic, social and cultural policies of development.
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To criticize or review the laws that are enforced for the purpose of copyright
protection in Tanzania.
Lastly, to make an analysis on the Copyright Society of Tanzania, which is a
registered collective administrative society concerned with overseeing copyright
related issues.
1.4. Hypothesis
The legislations created to guide copyright protection in Tanzania seem to be
weak and poorly enacted since they fail to solve the problem of copyright
infringement. This is also due to the fact there are so many loopholes in the
legislation. The legislation referred to here is The Copyright and Neighbouring
Rights Act.
The institutional framework established acts as a hindrance to the effective
implementation of copyright laws, for instance the problem of inefficiency at the
institutional level. For example, COSOTA.
1.5. Literature Review
To begin with the book of Bainbridge, David15 the author tries to explain what copyright
is generally, then he goes further to talk about the various types of work that are eligible
for copyright protection, the rights of owners of the work and how far the law plays its
role ensuring copyright is protected.
As well in the book of Intellectual Property Law16 by Paul Torremans, the author
examines the methods and reasoning behind key statutory and case decisions, provides
readers real life examples of copyright law and recent developments relating to copyright
protection and other intellectual property rights.
15 Bainbridge I.D(2009) Intellectual Property, 7th edition Ashford Colour Press, Gosport 16 Torremans, P. (2008) Intellectual Property Law, 5th edition Oxford University Press
8
Also in the pamphlet by Alex Perullo17, the author has pointed out the key points on
copyright law, the author stressed on how the law protects the copyright owner, the
sanctions imposed on a person who infringes the right of a copyright owner and how
copyright protection works in Tanzania.
In the book of William Cornish 18, the author provides a number of different cases and
materials related with the protection of copyright laws and on how the law provides
severe civil and criminal penalties for those who use copyrighted materials without any
legal authorization of the copyright owners.
In the book of Law of intellectual property19 the author of this book explains the
fundamental principles governing the copyright protection and law in general. As much
as the author based his book on Indian laws but he also managed to conduct a proper
research on other jurisdictions and cases relevant to the copyright laws.
In Mercantile Law20, this book generally covers on commercial law, but as it is known
that intellectual property falls within this ambit. Therefore the author tried to stress on the
different cases on copyright and how the judicial and statutory provision pave their way
in making sure that the laws are well protected and observed in accordance with the
jurisprudence of the copyright law.
According to Dean, O21, the protection of copyright law is very essential since it
facilitates the development of the copyright owners for they get to enjoy the fruits of their
works. Moreover the country also benefits through the collection of revenue from the sale
of the materials. Although the handbook is based in South Africa but it also reflects the
situation in Tanzanian since the government loses a large sum of revenue due to the
weaknesses available in our legal system.
17 The music business in Tanzania copyright law, contracts and collective management organisation 18 Cornish W: (2006) Cases and Materials on Intellectual Property, 5th edition, London Sweet & Maxwell 19 Taraporevala V. J (2005) Law of intellectual property Taraporevala, Mumbai India 20 Schmittoff C & sarre A.G (1984) Mercantile Law 14th edition Charlesworth‟s, Stevens & sons limited, London 21 Dean. O Handbook of South African Copyright Law. Rev. Service 11. Juta, Cape Town, p. 4-138
9
According to the Berne Convention for the Protection of Literary and Artistic Works
the parties under the convention agreed that the copyrights for creative works are
automatically in force at creation, without being stated. This means that an author doesn‟t
need to register for copyright in countries that are adhering to the convention. As soon as
the work is fixed, that is, written or recorded on some physical medium, the author of that
work is then automatically entitled to all the copyrights in the work unless and until the
author explicitly disclaims them or until the copyright expires. And foreign authors were
treated equally with the domestic authors in any country that signed in the convention.
This system of equal treatment has internationalized copyright among signatories.
According to the World Intellectual Property Organization (WIPO) Convention, the
parties agreed to; promote the protection of intellectual property throughout the world
through cooperation among states and where appropriate in collaboration with any other
international organization. Moreover, they also agreed to ensure administrative
cooperation among the unions.
According to the Rome Convention for the Protection of Performers, Producers of
Phonograms and Broadcasting Organizations, copyright protection was taken to the
next level as it was extended from the author of the work to the creator and owners of the
particular work. The main aim for the drawing up of this convention is due to the fact that
technology was changing and advancing to the likes of introduction of tape recorders that
made the reproduction of sounds and images easier and cheaper than ever. Initially, the
copyright law agreements like the Berne Convention of 1886 had been written so as to
protect the circulation of printed materials. Therefore, it was only fair for the Rome
Convention to be instituted so as to cover this new sphere. This new sphere comprises of
performers who are protected against acts that they have not consented to, for instance
broadcasting of their live performances. It also comprises of producers of phonograms
who enjoy the right to authorize or prohibit the direct or indirect reproduction of their
phonograms. Lastly, there is the broadcasting organization that enjoys the right to
authorize or prohibit certain acts like the rebroadcasting of their broadcasts.
10
1.6. Scope of the Research
This research is based on the protection of intellectual property rights in Tanzania,
specifically on the protection of copyright laws. Hence, the research‟s investigation/study
has passed through a number of different copyright laws from various jurisdictions
especially in U.K, South Africa and India in brief, so as to learn how our fellows have
paid attention to this matter. But the focus strikes particularly into the courts of Tanzania
as a state and the laws protecting copyright like, The Act. The most useful reference will
be the High Court of Dar es salaam (commercial division), other tribunals and different
organizations dealing with copyright protection in Tanzania, such as COSOTA and the
Ministry of Industry and Trade.
This research study was conducted in Tanzania, and the region specifically which was
visited is Dar-es-Salaam. While in the region, the researchers made a detailed study
essentially on copyright laws and its role in copyright protection.
1.7. Research Methodology
Primary Data was acquired through personal interviews with the relevant authorities of
relevant institutions, in Dar-es-Salaam. The institutions include government ministries
and related institutions like COSOTA so as to get first hand information concerning the
research.
Documentary review: this method demanded the assembling of data from libraries
found in Tanzania mainland where relevant sources were found. This source contains
reasonably considerable amount of literature concealed in textbooks, research papers,
which provided a wealth of data. This included the library of Tumaini University, Iringa
University College and several other libraries found in Iringa and Dar es Salaam regions
which happened to contain the necessary materials to support our study
Secondary Data was acquired through reading several intellectual property law books,
journals, case laws, and all other materials relevant to the law protecting copyright.
11
Electronic data base search where various national and international websites were
used so as to search for relevant information and materials like articles that are related to
this research topic.
1.8 Conclusion
This chapter has been mainly an introductory one. It contains background of the problem,
statement of the problem, objective of the study, significance and methods which have
been used to collect data of the study. In the next chapter the researchers will discuss
Copyright law in detail.
12
CHAPTER TWO
COPYRIGHT LAW
2.0. What is Copyright Law
Ideas are unique, and creative work takes tremendous time and effort. These creative
works need to be protected from plagiarism because if they are not, then creativity will
disappear. Therefore copyright laws had to be created so as to ensure that people‟s
creativity is protected22.
Copyright law is a branch of law which deals with the rights of intellectual creators. It is
basically concerned with particular forms of creativity, associated primarily with mass
communication as well with virtually all forms and methods of public communication. It
does not only cover printed publications but also such matters as sound and television
broadcasting, films for public exhibition in cinemas and even computerized systems for
the storage and retrieval of information23. It plays the role of protecting the creative and
labourious expression of thoughts, and its eventual manifestation in intangible
commodities
Copyright subsists in original literary, artistic, dramatic and musical works. However, for
copyright to subsist in any of these works, then they must qualify to be works. In order to
establish what a work is, a person needs to look at things like the labour, judgement and
skill which was used in creating it24. It was explained by Lord Templeman in the case of
British Leyland Motor Corp. Ltd v. Armstrong Patents Co. Ltd 25, where he stated
that, nevertheless it is clear that some measure of skill or judgement must have been
expended in the production of the work before it can attract copyright protection. For
22 International Journal of Law and Information Technology 1 March 2006 by Lior Zemer 23 WIPO Intellectual Property Handbook: Policy, Law and Use, Fields of Intellectual Property Protection publication no 489 24 Bainbridge I.D(2009) Intellectual Property, 7th edition Ashford Colour Press, Gosport pp 44 25 [1986] 2 WLR 400
13
instance books, paintings or drawings exist only once they are embodied in a physical
object.
The general principle in copyright law is that copyright protects expression of ideas and
not just mere ideas going to it or with functionally or end product that results26.
According to Article 2 of the WIPO convention, copyright protection extends to
expressions and not to ideas, procedures, and methods of operation or mathematical
concepts as such27. The author needs to devote a minimum amount of skill and labour in
his or her work for it to be an expression of idea.
Likewise copyright law also recognises the rights of an author and that is why it protects
the owner of property rights against those who copy or otherwise take and use the form in
which the original work was expressed by the author28. However, the author will only be
protected based on whether his work actually is an original creation, rather than based on
whether it is unique. For instance, if two authors own copyright on two substantially
identical works, if it is determined that the duplication was coincidental, and neither was
copied from the other then there will be no infringement. Additionally, copyright law
provides the author with an exclusive property right for a limited time, over the copyright
works he produces. The time limit differs in different jurisdictions.
Copyright law is a territorial concept and each nation has its own laws29. For instance, in
America it may not be possible to place restrictions on the resale of books. But sale
within the United States obviously cannot abrogate the effect of the laws of that particular
place where they are imported. Thus, the importer cannot disregard the laws of other
countries30. Same concept applies to The Act31, in the sense that it always protects the
interest of the rights of copyright derived from United Republic of Tanzania.
26 Cyprotex Discovery v University of Sheffield (2004) RPC 68 pp. 78 27 WIPO Copyright Treaty Adopted By The Diplomatic Conference On December 20, 1996 28 Understanding Copyright And Related Matters World Intellectual Property Organisation Publication No 909 29 Survey of the Law of Cyberspace: Intellectual Property Cases 2006 By Kristine F. Dorrain and John E. Ottaviani 30 Penguin Books V. India Book Distributors AIR 1985 Delhi 29, 33
14
The Act protects not only copyright but „neighboring rights‟ as well. Neighboring rights
are secondary rights of copyright that the performers are entitled to. Performers are
defined under The Act to include singers, musicians, and dancers, producers of sound
recording (for example cassette recordings and compact discs) in their recordings,
broadcasting entities in their radio and television programs32.
Also under The Act, if a person infringes another person‟s right, then the owner of the
copyright can institute a civil litigation in the courts of United Republic of Tanzania for
either injunction or damages. However, sometimes copyright infringement can be
considered as a criminal offence and these criminal sanctions are generally aimed at
serious counterfeiting activities33. Additionally, in some instances the copyright
administrative bodies can institute infringement suits on behalf of the copyright holders
but under the condition that they be registered under the body. For instance COSOTA can
sue on behalf of a music artist or an actor for copyright infringement.
Copyright does not continue indefinitely and this is why the law provides for a period of
time, duration, during which the rights of the copyright owner exist. In Tanzania the
owner of a copyrighted material has the right over his work for his life time and fifty
years after his death34. The purpose of this provision in the law is to enable the author‟s
successors to have economic benefits after the author‟s death and it also safeguards the
investments made in the production and dissemination of the work35.
In general, copyright law reflects “a sound balance” between the values of “supporting
creative pursuits through copyright protection” and of “promoting innovation in new
31 Copyright and Neighbouring Rights Act Cap.218 of 1999 32 The Act, Section 4 33 Ibid, Section 36 & 42 respectively 34 Ibid, Section 14 (1) 35WIPO Intellectual Property Handbook: Policy, Law and Use Fields of Intellectual Property Protection publication no 489 pp 50 or WIPO on understanding copyright and related matters publication no 909, pp 14
15
communication technologies by limiting the incidence of liability for copyright
infringement36.
2.1. Rights Obtained Under Copyright Law
2.1.1 Economic Rights and Moral Rights
Copyright law is said to mainly protect two types of rights, which are pecuniary rights
and non pecuniary rights. Pecuniary rights are the rights of the owner to get remuneration
for use of the copyrighted work; these are also known as economic rights. As for the
latter, they are such rights of attribute and integrity that keep the work from public
domain; they are also known as moral rights37.
Economic rights are the rights which allow the owner or author of the work to derive
financial rewards from the use of his work. Economic rights under The Act38 gives
authors exclusive right to reproduce, distribute, perform in public, record, rent, translate,
broadcast or have an adaption made of their work. In actual fact, this means that an
author has the exclusive right to decide how his or her work will be used. These rights are
very imperative since they protect the authors‟ financial interests hence ensuring that they
benefit from their creativity without the fear of someone else taking and misusing their
works.
The copyright law is designed to achieve this objective by granting property right to
authors that provide them with financial incentives to produce and distribute creative
works. The user‟s right philosophy assumes that authors will only invest sufficient
resources in creating and publishing new works if they will have ownership rights that
will enable them to control and profit from their works. Moreover, if the researchers talk
about the economic rights, unavoidably, they have to talk about the economic system. At
36 Metro- Goldwin-Mayer Studios Inc. V. Grokster Limited (2005) 545 USA 913, 928 37 Perullo, A (2005) Copyright law, contracts and collective management organization,(2nd printing),
Colour Print (T) Ltd. pp. 11 38The Act, Section 9
16
present, the free market economic system disfavors monopoly unless there is a limited
justification for them39.
Thus, due to the current economic system not favouring monopoly, then authors
sometimes find themselves selling their economic rights to their works to other
individuals or companies. These individuals or companies then market the author‟s work
and make payments to the author based on how the work is used; these payments are
what are known as royalties. As well, it should be noted that economic rights can be
inherited according to the general rules of the law of succession40.
Moral rights under copyright law are the rights protecting an author‟s reputation and
guaranteeing that he is at all times credited for his work. By protecting an author‟s moral
rights, it assures him that no one can use his work, be it the lyrics of the song, the music,
or anything else, without giving him credit and that his work cannot be defamed or
distorted in any way.
In accordance with the U.K Copyright, Designs and Patent Act of 1988, there are four
moral rights that an author is entitled to. Firstly, is the right to be identified as the author
or director of the work, that is paternity right. Secondly, is the right of the author or
director of the work to object to any derogatory treatment of that particular work, that is
integrity right. Thirdly, the right to everyone not to have a work falsely attributed to him
and lastly the commissioner‟s right of privacy in respect of a photography or film made
for private and domestic purpose. Nonetheless, it is only the paternity and integrity rights
that are considered to be full moral rights, since the other two are hybrid in nature
because they do not confer special right on creator of the work41.
In India, moral rights refer to the rights of the author to claim authorship of the work and
to restrain or claim damages in respect of any distortion, mutilation, modification or other
acts in relation to the said work which is done before the expiration of the term of
39 Moser, David J. (2002) Music Copyright for the New Millennium, ProMusic Press, pp 5. 40 The Act, Section 15(7) 41 Torremans, P. (2008) Intellectual Property Law, 5th edition Oxford University Press London, pp.219
17
copyright. For the author to be able to restrain or claim damages for the said acts, they
have to be prejudicial to his honour or reputation42.
What's more, Article 6 of the Berne Convention43 provides that, the member countries
should grant to the authors; the right to claim authorship of the work, the right to object to
any distortion, mutilation or other modification of, or other derogatory action in relation
to, the work which would be prejudicial to the author‟s honor or reputation. These rights,
which are generally known as the moral rights of authors, are required to be independent
of the usual economic rights and to remain with the author even after he has transferred
his economic rights.
Under The Act, moral rights tend to protect the reputation of the author of the work.
According to the act, an author has a right to claim authorship of his work and also object
to any derogatory treatment of his work. Moral rights differ from economic rights
because moral rights remain with the author even after his work is sold and that moral
rights are not transferable thus they subsist during the lifetime of the author.
Finally, section 1444 provides that the economic rights shall be protected during the life of
the author and for fifty years after his death while moral rights seize to exist after the
author‟s death that is they die with the author.
2.1.2. Related Rights
Protection of those who assist intellectual creators to communicate their message and to
disseminate their works to the public at large is attempted by means of related rights45.
When we talk of related rights we actually refer to three kinds of rights; the rights of
performing artists in their performances, the rights of producers of phonograms in their
42A hand book of copyright law, by Government of India, Minister of Human Resource Development Department of secondary Education and Higher education, New Delhi 1999. 43 Berne Convention for the Protection of Literary and Artistic Works of 1886 44 Copyright and Neighbouring Rights Act, Cap. 218 of 1999 45 WIPO Intellectual Property Handbook: Policy, Law and Use Fields of Intellectual Property Protection pp. 46
18
phonograms, and the rights of broadcasting organizations in their radio and television
programs. Related rights are sometimes referred to as neighbouring rights.
Similarly, The Act has provided for three types of related rights. First, is the right of
performers, they have the exclusive right to authorize broadcast or recording of any of his
or her performances46. Second, its related to sound recordings, in this the owner of the
right has exclusive right to sell, copy, rent or broadcast a sound recording to the producer
of the sound recording, not to musicians or other author of the sounds though47. Lastly is
the right given to the radio and television broadcasting organisation, they have the
exclusive right to authorize rebroadcasting of its broadcasts, the fixation of its broadcast
as well as the reproduction of a fixation of its broadcast48. With this, any artist who
agrees to appear on radio or television, then anything he says or does can be used by the
broadcasting organisation for up to fifty years following the year in which broadcast took
place49.
2.1.3. Public Domain
Public domain contains materials that are no longer protected by copyright law. For
instance a musician‟s composition falls under public domain fifty years after the owner of
the right dies or after the duration expires. Once a work falls under public domain, then it
can be performed, recorded, or used by anyone without persecution as long as the
author‟s moral right is not violated50. The Act has no provisions on public domain.
46The Act, Section 31 (1) (a) 47 Ibid, section 32(1) 48 Ibid, section 34(1) 49Perullo, A (2005) Copyright law, contracts and collective management organization,(2nd printing), Colour Print (T) Ltd. pp 16 50 Ibid at pp 16
19
2.1.4. Licences and Transfer of Rights
Under copyright law, it is the author or owner of a particular work who has the authority
to grant other people with the licence to carry out specific acts with his work. These
specific acts however are limited to only the economic rights of the author, therefore the
licencing should be of economic rights. For instance to reproduce the work, distribute,
rent, translate, broadcast and perform in public just to name a few.
There are two types of licences that are granted by the copyright owner, these are
exclusive licence and non exclusive licence51. Exclusive license is the licence granted to a
licencee that allows him to perform the act concerned or authorized by the owner or
author freely without the interference of any other person even the owner or author
himself52. Thus in this situation the licencee has power over the authorized acts as if he
were the owner of the work. For an exclusive licence to be considered valid then it should
be a subject of a written contract signed by the contracting parties and the licencing
contract should expressly show or provide that the contract concerns the granting of
exclusive license53.
After the contract is completed then the licencee will now posses the capacity to sue for
an infringement of the exclusive right in his own name. In the case of Penguin Books V.
India book distributors 54; the plaintiff was an exclusive licencee for India in respect of
certain titles. The defendant, without the consent of the plaintiff, imported into India
parallel American editions of the same title from an American licencee of those titles for
U.S.A. This was considered as an infringement of the plaintiff‟s copyright. However, the
defendant used the defence that in a suit filed against the plaintiff in the U.S.A there was
a consent decree which debarred the plaintiff from filing this infringement action. But the
court in Delhi held that the clause of the consent decree, upon which the defendant relied
51 The Act, Section 17(1) 52 Ibid, section 17 (3) 53 Torremans, P. (2008) Intellectual Property Law, 5th edition Oxford University Press London 54 AIR 1985 Delhi 29
20
upon, could not have extra territorial effect. Hence the American books cannot be sold
into India so as to defeat the rights of the exclusive licencee.
As for a non exclusive licence, this is the opposite of exclusive license for in this one; the
licensee is granted the power or authority to do the act concerned but together or in
collaboration with the owner or author of the work. Therefore here both the author or
owner and the licencee can use the work. However, the licencee may not have the power
of suing for infringement of the exclusive right in his own name. The licence granted
lasts for fifteen years after the licensing contract was concluded or sometimes it may
depend on the nature of the contract itself, therefore if the contract expires then the
licence expires as well55.
As for the issue of transfer of rights; the owner of copyright is the one who can give out
consent for the user of his work to transfer his rights to somebody else, this is per section
18 of The Act.
2.2. The Tanzanian Copyright Law
In accordance with the law, copyright exists for the purpose of preventing other people
from taking unfair advantage of a person‟s creative efforts. The creator of any work has
the right over his/her work either to authorize or refuse others from using it56.
In 1999, the legislature of United Republic of Tanzania enacted a law on copyright
known as the Copyright and Neighbouring Rights Act57. The Act was assented to by the
president on June 1999 and it officially became operational from 31st December of the
same year. The objectives of the Act are, to protect the moral and economical interests of
authors (creators) relating to their works, to provide protection for expression of folklore,
to protect interests of performing artists, producers of cassettes and broadcasting
55The Act, section 17(1) 56 www.cosota.co.tz 57The Act
21
organizations and lastly to provide for civil remedies and criminal sanctions against
infringers and pirates
The Act is considered to be quite current as it covers a wide range of copyright related
issues. For instance, it provides for the protection of expressions of folklore and the
protection of neighbouring rights, as well it complies with various intellectual property
conventions and treaties like the Berne Convention for the Protection of Literary and
Artistic Works of 1886 and the TRIPS Agreement of the World Trade Organization
(1994).
In a general outlook, this law is comprised of 53 sections fitted in seven (7) parts. Part
one of the Act is on preliminary provisions, which provides for the objectives of the law,
its application and definitions of some terms used. Part two of the Act discusses
copyright law in general, part three is on the protection of expressions of folklore against
illicit exploitation. Part four covers the protection of performers, producers of sound
recordings and broadcasting organizations. Part five provides for general sanctions on
copyright infringers and part six is on measures, remedies and sanctions against abuses in
respect of technical means of protection and right management information. Lastly, part
seven is on transitional provisions
The Act in executing its objectives, that is to protect and enforce copyright, it provides
for a number of things; firstly it provides for the establishment of a collective
administrative body, known as COSOTA whose function shall be to promote and protect
the interests of authors, performers, translators, producers of sound recordings,
broadcasters, publishers, and, in particular, to collect and distribute any royalties or other
remuneration accorded to them in respect of their rights58.
The Act goes further to provide that, if a person infringes another persons copyright then
he will be liable for civil and criminal sanctions or penalties. The weight of the sanction
varies depending on the circumstance, amount of the infringement and losses incurred by
58 The Act, Section 46 & 47
22
the copyright owner. These sanctions against infringers of copyrighted material include
the following; for first time offenders who have infringed copyright on a commercial
basis are subjected to a fine not more than five million shillings or imprisonment term not
more than three years, as for subsequent offenders they are subjected to a fine not
exceeding ten million shillings and imprisonment term of not more than five years59.
Furthermore, if a person is found guilty for willfully or negligently contravening section
26 of the Act, he she o will be liable for a fine not exceeding three million shillings or
imprisonment for a term not exceeding one year. Section 26 provides that, a person is
allowed to use copyrighted material without authorization in circumstances where it is for
educational purposes, research purposes and where it is utilized by way of illustration but
with fair practice. Additionally, if a person gives authorization on behalf of performers
without being appointed as the performers representative is guilty of a criminal offence
and will be liable for a fine not exceeding five million shillings or to imprisonment for a
term not exceeding three years.
The Act carries on providing for various remedies incase an owner‟s right has been
infringed. The remedies for infringement of copyright or for violation of related rights
consist of civil redress, for instance an injunction to prevent the infringement or to
prohibit the continuation of the infringement action, payment of any damages suffered in
consequence of the infringement, including any profits benefited from the infringing
person that are attributable to the infringement. If the infringement is found to have been
prejudicial to the reputation of the person whose rights were infringed, the court may, at
its discretion, award exemplary damages60 or may declare that the infringed object to be
seized as per section 36(2) of the Act.
Sometimes, in lieu of damages the court may order that the injured party recover the
profits derived by the infringer from the acts of infringement together with a detailed
59The Act, Section 42 (1) (a) & (b) 60Ibid, Section 36(1) a & b
23
accounting reflecting such profits61. Likewise, section 38(1) gives the injured part the
right to claim for the destruction of any unlawfully manufactured or unlawfully
distributed copies or copies which are intended for unlawful distribution. The right to
delivery is also provided under section 39, where the injured party may require that the
copies and equipment be delivered to him, in whole or in part, for an equitable price but
under the condition that it should not exceed the production cost.
In some cases where a person infringes a person‟s copyright unintentionally or non
negligently then the Act provides that the person will be required to simply indemnify in
money to the injured party if execution of the aforesaid demands would produce for him
a serious and disproportionate injury and if it may be assumed that the injured party could
accept redness in cash. The damages payable as aforesaid shall be such an amount as
would have constituted an equitable remuneration had the right been granted by
contract62.
The Act has as well empowered the court with the jurisdiction to award any damage
claim arising out of civil and criminal actions. For instance the court may order
injunction to prohibit the committing, or continuation of committing, of infringement of
any right protected, and to order the impounding of copies of works or sound recording
made or imported without the authorization of the owner protected under this Act63.
The Act has gone an extra mile to provide for the application of the Civil Procedure Code
1966 and Criminal Procedure Act 1987 as a way of making sure the rights of the
copyright owner are protected in accordance with the law. The aforementioned laws are
applied for purposes of search and seizure, if it is believed with reasonable grounds that a
person is carrying illegal copyrighted material64. Therefore if a person is suspected of
infringing copyright then it is allowed to conduct search in that area as it was seen in the
61 The Act, Section 37(1) 62 Ibid, Section 41 63 Ibid, Section 43 (1) 64 Ibid, Section 43 (3)
24
case of Anton Piller K.G. v Manufacturing Processes Ltd.65, where the court permitted
the inspection of premises on which it is believed some activity is being carried on which
infringes the copyright of the plaintiff.
On the other hand, after conducting a critical analysis of the Act it can be further
examined that the law is inefficient and insufficient since is silent on a number of issues
as well there are loopholes in the law. The Act does not cater for the new advancements
of science and technology; hence it is not easy to fully eradicate the problem of piracy
and copyright infringement. For instance, the law is silent on matters of copyright
infringement through the internet while this is currently the prevalent problem facing
copyright protection not only in Tanzania but also worldwide.
2.3. Subject Matter Protected Under Copyright Law (Acts and Regulations)
When we talk of subject matter protected under copyright law we are actually referring to
who and what is protected under copyright.
Generally under copyright law, for a person‟s work to be protected then that person has to
be the author and/or owner of the work. The author of the work is the person who
created the work, for instance the author of a literature work is the writer of that work.
However, when we say an author it does not necessarily have to be the person who
carries out the physical act of creating the work. According to Lightman J, in the case of
Robin Ray v Classic FM (plc)66; he was of the view that the author of a work does not
have to exercise penmanship but something similar to penmanship is required. Someone
acting as a mere scribe producing the copyright expression accurately in accordance with
instructions but without making any creativity contribution whatsoever, can never be an
author or co-author of the work.
Under the Act, an author means a natural person who creates the work as per section 4 of
the Act. The authors of original literary and artistic works have right to copyright
65 [1976] RPC 719 66 [1998] F.S.R 622
25
protection67. In this context the author is taken to be a person by whom arrangements
necessary for creation of the work are undertaken.
As for the owner of the work, the general principle is that the author is the first owner of
the copyright but contracts of employment undermine this principle. The first owner of
the copyright in literary, dramatic, musical or artistic work created by employee in the
course of the employment will be the employer68.
In some cases there tend to be two or more joint owners of copyright in a work if it is the
work of joint authorship. Works of joint authorship means works created by the
collaboration of two or more authors, in which the individual contributions are
indistinguishable from each other69. These owners will own the copyright in the work as
tenants in common and will each have their own individual rights in the work that can
assign individually. As a result even joint owners are protected under copyright.
The general purpose of copyright is to protect expression of ideas, but these works should
be original for them to be eligible for protection. There are many varieties of original
works protected by The Act, such as musical works including lyrics and music, literary
works like books, pamphlets and lectures, dramatic works including films and artistic
works including drawings, photography and maps. The Act however does not protect
laws and court decisions, daily news, ideas, concepts, method of operations.
Artistic work is wide in scope and is basically concerned with visual image. These are
works protected irrespective of artistic quality, which are followed by the intermediate
group of works of architecture and craftsmanship70. Examples of artistic works protected
under copyright law are paintings, drawings, photographs, maps. According to Jacob J in
67 The Act, Section 5 (1) 68 Ibid, Section 15 (4) 69 Ibid, Section 4 70Taraporevala V. J (2005) Law of intellectual property Taraporevala, Mumbai pp187
26
Nova Games V. Manzooma Production Limited71 argued that all the things falling
within artistic work have one category that is they are all static (non-moving).
Dramatic work is the work of action with or without words or music which is capable of
being performed before an audience72, or can be defined as a work created in order to be
communicated in motion, that is through a sequence of actions, movements, irrespective
of the technique by which this movement is retrieved or expressed73. Section 5 (2) (c) of
the Act defines what a dramatic work is.
Literary works are works other than dramatic or musical works which are written, spoken
or sung and includes tables or compilations other than database, computer programs,
preparatory design material for computer programs and databases74. Berne Convention
for the Protection of Literary and Artistic work provides that the expression work shall
include every production in literary or scientific domain, whatever may be the mode or
form of its expression. A literary work is a composite expression intending to offer
information, instructions or pleasure in form of literary enjoyment. It was further defined
in the case of University of London V University Tutorial Press Limited75; in this case
Peterson J held that literary work covers works which are expressed in print or writing
irrespective of the question whether the quality or style is high. Also the judge was of the
view that, it is not easy to define literary work. Under The Act literary works includes
books, pamphlets and other writings, including computer programs; lectures and
addresses76. Many literary works go through many drafts before eventually being
published.
A Musical work is a work consisting of music, exclusive of any words intended to be
sung, spoken or performed with music77. In the accordance with laws of Tanzania
71 [2007] RPC 589,pp 16 72 Norowzian V. Arks Limited (no 2) [2000] FSR 363 Appeal case 73P. Kamina, „Authorship of films and implementation of the term Directive: Dramatic tale of two copyrights‟ [1994] 8 EIPR, pp 320 74 Section 3(1) of the U.K Copyright, Design and Patent Act, 1988 cap 48 75 [1916] 2 Cap 601 pp 608 76 The Act, Section 5 (2) a and b 77 Bainbridge I.D (2009) Intellectual Property, 7th edition Ashford Colour Press, Gosport pp 56
27
musical work may be in form of vocal and instrumental, with or without including
accompanying words78. Music works must be in combination of melody and harmonies79
and intended to be performed by the production of a combination of sounds to be
appreciated by ear80.
The Act protects works by authors who are nationals of Tanzania or who have habitual
residence in Tanzania, this includes even people who have moved to Tanzania from
another country but now claim Tanzania as a home. Works first published in Tanzania
may also qualify for copyright protection irrespective of the nationality or residence of
their authors81. Works first published abroad but thereafter published in Tanzania may
also qualify for copyright protection but under certain conditions.
In copyright law the central part of the work should be original. All works created by an
author must be original in order to be entitled to copyright protection. Originality means
that an author must create a work independently82. In copyright law originality is quite
complex, because it is very difficult to determine the originality of the work. For instance
literary, dramatic, musical and artist works should be original in order to seek the
protection of the copyright law83. But it must be understood that originality does not
mean one may not invent his own work from inspiration from elsewhere as nothing is
new under the sun84, however there must have been a minimum investment by the author
of skill, judgment and labour and must not have been slavishly copied or derived from
pre existing work85.
78 The Act, Section 5 (2) d 79 Taraporevala V. J (2005) Law of intellectual property Taraporevala, Mumbai India pp 150 80 Ibid pp 185 81 Ibid. Section 3 (1) a & b 82 Perullo, A (2005) Copyright Law, Contracts and Collective Management Organization (2nd printing) Colour Print (T) Ltd, pp 12 83 Ibid, Section 5(1) 84 Lord Hoffman in Designer‟s Guild V. Russell Williams 2001 FSR 113, 116 85 Schmittoff C & Sarre A.G (1984) Mercantile Law 14th edition Charlesworth‟s, Stevens & sons limited, London. pp 672
28
2.4. Copyright Infringement
In issues concerning copyright, the owner is given a property right, when we speak of
property right we mean things like exclusive right to perform certain acts in relation to
the work. Anyone who performs an act that has been reserved exclusively for the
copyright owner will infringe copyright of the work if he or she has not, in advance,
obtained the permission of the copyright owner to perform the act86.
Copyright infringement (or copyright violation) is the unauthorized use of material that is
covered by copyright law, in a manner that violates one of the copyright owner's
exclusive rights, such as the right to reproduce or perform the copyrighted work, or to
make derivative works. In copyright law the rights of the owner of copyright are
infringed when one of the acts requiring authorization of the owner is done by someone
else without the owner‟s consent. The unauthorized copying of copyrighted materials for
commercial purposes and the unauthorized commercial dealing in copied materials is
known as “piracy”87.
For there to be infringement of copyright, there must be a sufficient objective similarity
between the copyrighted work and the alleged infringing work such that the former‟
substantial part of it has been reproduced, performed in public or broadcasted. The
copyrighted work must be the source from which the infringing work is derived since
there must be a casual connection between the copyrighted work and the infringement.
Substantiality isn‟t necessarily measured in terms of quantity taken, for a short extract
may be a very important part of the work and it is often said that whether a substantial
part has been copied depends more on the quality rather than the quantity88.
In the case of Spelling-Goldberg Productions Inc. v. BPC Publishing Ltd89, the
claimant made a „Starsky & Hutch‟ film and the defendant copied and published a
86 Torremans, P. (2008) Intellectual Property Law, 5th edition Oxford University Press London 87 WIPO Intellectual Property Handbook: Policy, Law and Use Fields of Intellectual Property Protection pp 51 88 Schmitthoff, C. et al (1984) Mercantile Law, 14th edition, Stevens & Sons Ltd London 89 [1981] RPC 283
29
photograph of one of the frames of the film. It was held that; making a copy of a single
frame of a film was an infringement of copyright in the film because a single frame was a
part of the film.
There are two major known types of copyright infringement and they are; primary
infringement and secondary infringement.
Primary infringement refers to acts like copying and issuing to the public the copies of a
work, renting to the public the copied works, performance of the copied work, an
adaptation made of the copied work etc. These acts are known as restricted acts since it is
only the owner of copyright who is allowed to do them or someone with the owner‟s
consent. Normally infringing acts are carried out by one party or by several parties each
of which carries out separate infringing acts. However there are cases where the alleged
infringers really act together in carrying out a single infringing act, as it was seen in the
case of MCA Records Inc v. Charly Records Ltd90, where it was held that in
infringement cases where the alleged infringers are sued jointly as joint tortfeasors then it
is required to provide proof of an intended and shared common design for such
infringement91.
In cases of infringement, the burden of proof lies on the copyright owner. The one who
alleges infringement of his or her copyright bears the burden of proving that the similarity
between his or her work and the alleged infringement is explained by this casual
connection. Part of the evidence required is that the plaintiff‟s work was created before
the alleged infringement, which rules out the possibility that it borrowed subject matter
form the alleged infringement. Most cases, in practice all the claimant has to do is
demonstrate strong similarities between the earlier work and the allegedly infringing
work, which are of evidential value, but not conclusive, these are then coupled with
evidence that the defendant had the opportunity to know the plaintiff‟s work. If the
defendant doesn‟t provide another convincing explanation for the similarities, most
90 [2002] EMLR 1 (CA) 91 Torremans, P. (2008) Intellectual Property Law, 5th edition Oxford University Press London
30
judges will accept that the plaintiff has discharged the burden of proof and will find
copying proved92.
Under copyright law, third parties who have not contracted with the author are prevented
from copying or profiting from the author‟s original work. Clearly, sellers of novel
devices or literary works can contract with buyers to prevent these buyers from
reproducing, or even re-selling, the item93.
In the case of Cramp v Smython94, the claimant asserted that a series of initial table in
the defendants “Survey Lightweight Diary 1942” were copied from “Lite blue Diary
1933”. The Court of Appeal held that the collection of some tables composed on
claimant‟s Lite blue Diary 1933 is a copyright work and hence there was infringement.
So the respondent was liable to pay damage.
In an infringement action, the copyright owner has a variety of reliefs, including
injunctive reliefs. This was observed in the case of Phonographic Performance Ltd. v.
Maitra 95, where there was infringement and the plaintiff was asking for injunction. The
question was that, what is the appropriate period for the injunction to be effected? The
Court of Appeal said that the appropriate form of injunction should be one with
immediate effect and of unlimited duration. The reason is that a plaintiff whose copyright
has been infringed is entitled to an injunction as a matter of course.
Copyright is also infringed by a person who dishonestly receives a programme like
broadcast distributed by cable with the intention of avoiding payment. For instance in the
case of Republic V Space satellite Television96, in this case the defendant was found
guilty of retransmitting Multi Choice channels and going live showing new released
92 Torremans, P. (2008) Intellectual Property Law, 5th edition Oxford University Press London 93N.Stephan Kinsella intellectual property, Journal of Libertarian Studies Volume 15, no. 2 (Spring 2001): 1–53 Ludwig von Mises Institute. 94 [1944] AC 329 95Court of Appeal, January 3, 1998 (Unreported). Entertainment Law Review vol. 9 1998. London Sweet & Maxwell, 1998 at N-68 96 C.C 519 Resident Magistrates court at Musoma Registry
31
movies without the permission of authors, and was found liable of paying Tanzanian
shillings 200,000.
Section 44 (1) (iv) of the Act, provides for acts assimilating to infringement and they
include; the distribution, import for distribution, broadcasting, communication to the
public or making available to the public, without authority, of works, performances,
sound recordings or broadcasts97.
2.5. Defences to Copyright Infringement
The legal doctrine of de minimis non curat lex, "the law does not care about trivial
things," provides a de minimis copying defense against infringement. When a plaintiff
establishes only a trivial use of the copyrighted work by the defendant, there is no
infringement. In Exxon Corporation v. Exxon Insurance Consultants International
Company98 it was held that the word Exxon could not be an original literary work
without recourse to de minimis principle. Also in the case of Sinanide v. La Maison
Kosmeo99 it was held that to quote a bit sentence of a literary work was too small a
matter on which to base a copyright infringement action.
The major defences of copyright infringement are:
Temporary reproduction
Due to the development of modern digital technology, such as internet and computer
access makes frequent use of such temporary reproduction of copies and declaring such
activity an infringement is therefore an unduly blunt tool. In Tanzania temporary
reproduction is permitted under certain conditions that: the reproduction is made in the
process of transmission of the work or an act of making a stored work perceptible and the
97 The Act 98 [1981] 3 ALL ER 241 99 [1928] 139 LT 365
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reproduction must be authorized by the owner of copyright or by the operation of the
law100.
Fair Dealing or Free Use
The concept of fair dealing permits the reproduction of literary or musical works (as well
as works in some other categories), for the purposes of research or private study, or for
personal or private use, or for criticism or review or for reporting current events in a
newspaper or similar periodical, or by means of broadcasting, or in a cinematograph
film 101. Section 12 (1) of The Act provides for the free use of copyrighted material
without the consent of the owner of the work on certain activities.
Public Interest
If the act is of using a copyrighted work without the permission of the owner for public
interest, it will not amount to infringement of copyright. This defence is based on the
court‟s inherent jurisdiction to refuse an action for infringement of copyright in cases in
which the enforcement of copyright would offend against the policy of the law. It
remains difficult to determine precisely what is in the public interest in a theoretical way.
What is clear is that the circumstances which the court could invoke its inherent
jurisdiction depend on the work at issue, rather than on the issue of the ownership of the
work. These circumstances include those in which the work was immoral, scandalous, or
contrary to family life or in which the work is injurious to public life, public health and
safety or the administration of justice. Also included are circumstances in which the work
would encourage others to act in way that would cause such injuries102.If this defence of
public interest is raised, the court should weigh up the competing interests103.
100 The Act, Section 13 (1) and (2) 101 Dean. O. Handbook of South African Copyright Law. Rev. Service 11. Juta, Cape Town, pp. 4-138 102 Hyde Park Residence Limited V. Yelland [ 2000] 3 WLR 215 103 Bainbridge I.D (2009) Intellectual Property, 7th edition Ashford Colour Press, Gosport. pp. 200
33
Educational Use
Education is treated as special case by copyright law and can be used as exceptions to
infringement. Copyright will not be infringed if a literary, dramatic, artistic or musical
works or a substantial part of any of them is copied in the course of instructions. For
instance when a student writes down a substantial part of a legal article in his or her essay
in support of his or her own point of view copyright in the article as a literary work will
not be infringed. Section 26 (a)104 provides for the utilization of an author work without
authorisation for purpose of education does not amount to infringement.
2.6. Conclusion
This chapter has given a general insight on copyright law. The chapter has covered on the
meaning of copyright, the general principles of copyright law and various rights obtained
under copyright law. As well, it has provided for an analysis of the Tanzanian copyright
law, subject matter protected under copyright law as well as copyright infringement and
defences to copyright infringement. It is important to understand these significant
concepts before proceeding to the third chapter where the researchers will take a detailed
look at the mechanisms employed in the enforcement and protection of copyright laws in
Tanzania.
104 The Act
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CHAPTER THREE
PROTECTION AND ENFORCEMENT OF COPYRIGHT LAW IN TANZANIA
3.0. Introduction
As briefed in the previous chapter, this chapter covers an analysis on the protection and
enforcement of copyright law in Tanzania. As well, it includes the findings as to whether
the enforcement and protection mechanism applied are effective or not, this is by looking
on the role played by the government, the administrative body that is COSOTA and
enforcement agencies, just to name a few. Therefore, this chapter presents a decisive
analysis and findings of the aforementioned enforcement and protection mechanisms.
3.1. Role of the Government
Generally, the government as an executive body has an assortment of responsibilities;
however its major responsibility is to ensure the proper enforcement of law. Similarly, in
the case of copyright laws, the government has made a number of efforts in ensuring that
copyright is protected and properly enforced in Tanzania. For instance, it has established
a collective administrative society known as the Copyright Society of Tanzania
(COSOTA) whose key function is to enforce rights which it administers. The
government as well provides financial assistance to enforcement agencies so as they can
be properly equipped with enforcement tools. On top of that it has signed various
international conventions and treaties on copyright protection like The Berne Convention
for the Protection of Literary and Artistic Works of 1886, where Tanzania has been a
signatory since 1994.
3.1.1. The Establishment of Copyright Society of Tanzania (COSOTA) as Administrative Body
The establishment of a collective administrative body for the purpose of administering of
copyright is very imperative. This is due to the fact that, it is practically impossible for an
individual copyright holder to control the mass use of his work himself. As well, due to
35
technological development progress, there is a need for authors and copyright holders to
combine forces and this is the fundamental philosophy behind collective administrative
societies.
An important role of the collective society is to ensure the enforcement of rights which it
administers. The society as a body has facilities, in terms of finance, expertise and
personnel, which are far beyond those which a single right owner may have.
Furthermore, the society has enabled right owners to benefit from the exercise of rights
and the regulation of use of their material in circumstances in which individuals could
never hope to locate and license all or even the majority of the uses being made. As well
the society performs a function which is in the public interest, since it facilitates the
application of the provisions of the law.
In 1999, the government of Tanzania established a collective administrative body known
as the Copyright Society of Tanzania which started operating officially at the end of
2000. The society is established under section 46 of The Act, as a corporate body having
perpetual succession and a common seal, capable of suing and be sued and of purchasing
or otherwise acquiring, holding and alienating movable or immovable property, and
subject to the provisions of the said Act, capable of doing or performing all such acts or
things as bodies corporate may by law do or perform105.
COSOTA has three main departments, the documentation department, the licensing
department and copyright inspection department. The function of the documentation
department is to print out various documents related to copyright issues, for instance,
printing out fliers that are distributed to the public for the purpose of creating awareness
on copyright related issues. The licencing department is responsible for licencing authors‟
works on their behalf, for instance the licencing of public performance or usage of a
work. As for the copyright inspection department, it works as an enforcement agency and
105 Perullo, A (2005) Copyright law, contracts and collective management organization,(2nd printing),
Colour Print (T) Ltd, pp. 31
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it is made up of copyright inspectors whose duty is to ensure that copyright infringement
is controlled, for instance through seizing and destroying pirated copies106.
The functions of COSOTA are provided for under Section 48 of the Act, and they
include; promotion and protection of authors, performers, publishers, translator of works,
and broadcasters. The collection and distribution of royalties in respect of uses of the
works of its members. The printing, publicizing and circulating of information and the
rights of its members. Searching to identify and publicize rights of owners, and defend
them.
It is under the same section that COSOTA is empowered legally to determine the
minimum rates of royalties to be levied on uses of works and performances of its
members. The overall aim of COSOTA is to ensure that the owners of the rights receive
adequate remuneration from their efforts/work done.
In addition, the society functions as a tool for creating awareness to both the copyright
owners and the public at large on matters concerning copyright. The mode of creating
awareness is through the media, production of pamphlets and books as well as the
different seminars, meetings and workshops it arranges and hosts107. The society also
generally functions as a representative body of its members in making submissions to
governments, and generally in bringing before the public the arguments in support of the
recognition of the rights of its members.
Moreover, COSOTA as a recognized statutory public body helps to resolve different
dispute relating to royalty rates for all types of the societies activities. In the case of
COSOTA V Golden Rose Hotel108, the resident magistrate court in Arusha withdrew the
case on the ground that the matter be resolved outside the court. The defendant was
106 According to the interview conducted by the researchers and the Chief Executive Officer of COSOTA Mr. Yustus Mkinga on 15th March 2010. 107 Ibid. 108 R.M.C.C 23/ 2007
37
ordered to pay COSOTA Tshs. 2,100,000. COSOTA‟s important function is to the
general representation of its members in different civil suits against copyright infringers.
However, for COSOTA to effectively perform its functions, a sufficient number of the
Tanzanian authors and performers have to join the society and assign their rights to it, as
per Section 16 of the Act. By this, they will be refusing to be drawn into individual
exploitative contracts hence they will profit more from their works and the main setback
they will have to deal with now will be piracy only. COSOTA therefore endeavours to
encourage all the Tanzanian creators and performers to contact the society and register
for membership109 so that it can best perform its role. The registration of the works shall
be free of charge110.
Taking into consideration the excellent strategies and objectives COSOTA has outlined
together with the slight success it has achieved, it is however facing a number of setbacks
entirely restraining it from fulfilling its purposes. Firstly, there is the poor allocation of
resources; this is in the sense that they have limited number of personnel as well as few
offices which is an immense setback since they fall short of manpower hence
ineffectiveness in executing their duties. For example, COSOTA has only 18 permanent
employees, which is quite unreasonable given that it is the only body administering
copyright all over the country. Plus they have only one regional office throughout the
country, which is located in Dar es Salaam hence monitoring the protection and
enforcement of copyright under such circumstances, becomes difficult111.
Additionally, they lack the suitable support and cooperation from copyright holders. This
surely is a serious predicament as most of the performers, authors and artists in Tanzania
are not registered to this society and this is basically due to lack of awareness,
109 Rule 3 of The Copyright and Neighbouring Rights (registration of members and their work) Regulation, 2005 110 Rule 6, Ibid 111 Interview with COSOTA C.E.O ON 15th March 2010
38
consequently making it difficult for their individual rights to be protected since COSOTA
only protects the rights of the people registered to it.
A further setback facing COSOTA is the lack of funds. The copyright society is not
properly funded by the government and this is because in Tanzania intellectual property
industry is not taken seriously and given priority yet. Hence operating under such
circumstances causes for the society to be inefficient in executing its goals. For instance,
COSOTA tries to stand on its own and survive through licensing and similar related
activities112.
3.1.2. The use of Enforcement Agencies
By enforcement agencies we actually refer to various executive organs which assist the
government in the enforcement and protection of copyright laws. For instance the police
force and regulative authorities like customs authority, ports authority, revenue authority
and aviation authority.
The police force as an enforcement agency is obligated with the apprehension of
copyright infringers and the pirated materials as well as prosecuting those infringers. For
the purpose of discharging their duties effectively and efficiently they normally work in
collaboration with the copyright society and at times even with the civilians. For instance,
the Tanzanian police headquarters has a department working on copyright related issues,
but also in every regional police office COSOTA has a copyright contact person who
helps to arrest infringers and seize the said pirated materials. In the case of Republic V.
Khalfan Abdallah and Another113, COSOTA and the police force together managed to
seize a private manufacturing industry at Buguruni found making pirated cassettes and
CDs. They managed to move the pirated CDs and cassettes in 3 Lorries of 10 tons. The
defendants were sentenced to pay a fine of Tshs. 200,000 but no order for destruction was
granted.
112 Interview conducted on 15th March 2010 at the COSOTA Headquarters in Dar Es Salaam 113 R.M. C.C 550 of 2004
39
As for the regulative authorities generally their role is to make sure that the laws
applicable in the protection and enforcement of copyright are properly adhered to, this is
through conducting inspection on exported and imported goods so as to make certain that
they are no illegal goods being imported or exported. For instance, Thes Act provides for
the application of the provisions of Tanzania Revenue Authority Act114, dealing with
suspension of the release of suspected illegal goods. This is therefore very imperative
since if Tanzania Revenue Authority regulates the supply of pirated copies then the
copyright owners can profit more from their work and at the same time the government
will benefit as it will generate more revenue from the works of these copyright holders.
The Tanzania Revenue Authority (Customs Department) does have some statistics on the
number of seizures of counterfeit goods, but due to the tight time-frame for the study,
proper follow-up could not be undertaken115.
Another enforcement measure that is to be employed is the regulation and inspection of
goods at the boarder by the customs authority which is located in every boarder of the
country. This particular measure allows the right owner to request the customs authorities
to defer the release into circulation of goods that are suspected to be pirated with the
intention of giving the copyright holder reasonable time to commence judicial
proceedings against the suspected infringer, without the risk that the alleged infringing
goods will disappear into circulation after customs clearance116.
Finally, the aviation authority and the ports authority do assure the protection of
copyrighted material, this is through conducting different inspections on goods imported
and exported in their premises as well as arresting and seizing pirated materials, which
pose as a great threat and challenge to the development of cultural industries in
developing countries like Tanzania. For this reason, through employing these agencies
the rights of the copyright owners can be protected117.
114 Act No.11 of 1995 115Law Castles, Advocate, Dar es salaam [email protected] 116 World intellectual property organization publication number 909 ISBN 92-805-1265-4 117 Interview conducted on 15th March 2010 at the COSOTA Headquarters in Dar Es Salaam
40
Nonetheless, with the existence of all these enforcement agencies the problem of
copyright infringement and piracy is still prevalent in Tanzania at a large scale. The main
rationale behind this problem is that these enforcement agencies have failed to execute
effective enforcement mechanisms, and this is due to lack of knowledge and
understanding of the law itself.
3.1.3. The Signing of Conventions
Tanzania is one of the signatories to various international conventions and treaties related
to the protection of intellectual property rights. This has enabled Tanzania to have a
number of IPR related legal instruments domestically as well which have developed to
become strong and effective machineries which ensure adherence to trade related
Intellectual Property rules. The number of intellectual property conventions that
Tanzania is a member to include; the Agreement on Trade-Related Aspects of Intellectual
Property Rights (TRIPS Agreement), the Berne Convention for the Protection of Literary
and Artistic Works, the WIPO Convention and the Rome Convention for the Protection
of Performers, Producers of Phonograms and Broadcasting Organizations.
The Berne Convention for the Protection of Literary and Artistic Works; this is an
international agreement which was espoused in Berne, Switzerland in 1886 about
copyright protection and it was instigated by Victor Hugo as the Association Litteraire et
Artistique Internationale. It was agreed under the convention that, the copyrights for
creative works are automatically in force at creation, without being stated. This means
that an author doesn‟t need to register for copyright in countries that are adhering to the
convention. As soon as the work is fixed, that is, written or recorded on some physical
medium, the author of that work is then automatically entitled to all the copyrights in the
work unless and until the author explicitly disclaims them or until the copyright expires.
And foreign authors were treated equally with the domestic authors in any country that
signed in the convention. This system of equal treatment has internationalized copyright
among signatories. The Berne Convention was revised in Paris in 1896 and in Berlin in
1908. It was concluded in Berne in 1914, revised in Rome in 1928, in Brussels in 1948,
41
in Stockholm in 1967 and in Paris in 1971. Then it was later amended in 1979 in Paris.
Due to the fact that most countries are members of the World Trade Organization, then
the Agreement on Trade-Related Aspects of Intellectual Property Rights requires non
members to accept almost all conditions of the Berne Convention. As of April 2007, there
are 163 countries that are parties to the Berne Convention. As for Tanzanian, it has been a
member since 1994.
The World Intellectual Property Organization (WIPO) Convention; this convention
was signed at Stockholm on 14th July, 1967 and it was amended on 28th September, 1979.
In the agreement the parties came up with the agreement to; promote the protection of
intellectual property throughout the world through cooperation among states and where
appropriate in collaboration with any other international organization. Moreover, they
also agreed to ensure administrative cooperation among the unions. Tanzania has been a
member of WIPO since 1983.
The Rome Convention for the Protection of Performers, Producers of Phonograms
and Broadcasting Organizations; this convention was acknowledged by all WIPO
members on 26th October, 1961. This agreement took copyright protection to the next
level, for it extended for the first time copyright protection from the author of the work to
the creator and owners of the particular work. The main aim for the drawing up of this
convention is due to the fact that technology was changing and advancing to the likes of
introduction of tape recorders that made the reproduction of sounds and images easier
and cheaper than ever. Initially, the copyright law agreements like the Berne Convention
of 1886 had been written so as to protect the circulation of printed materials. Therefore, it
was only fair for the Rome Convention to be instituted so as to cover this new sphere.
This new sphere comprises of performers who are protected against acts that they have
not consented to, for instance broadcasting of their live performances. It also comprises
of producers of phonograms who enjoy the right to authorize or prohibit the direct or
indirect reproduction of their phonograms. Lastly, there is the broadcasting organization
that enjoys the right to authorize or prohibit certain acts like the rebroadcasting of their
broadcasts.
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International Intellectual Property rights are only as strong as the means to enforce them.
One way in which WIPO addresses issues of enforcement and dispute resolution is
through its Arbitration and Mediation Center which has offered efficient specialized
alternative dispute resolution on copyright disputes. The use of mediation and arbitration
provides means for resolving these disputes as fairly and efficiently as possible, without
disrupting underlying business relationships. The use of dispute resolution also has been
used in Tanzania in settling matters related to copyright infringement as in the case of
COSOTA V. Golden Rose Hotel118 where the court order the matter to be solved
outside the court and the agreement was signed by the parties with the defendant being
ordered to pay Tshs. 2,100,000.
Furthermore, the Berne Convention requires member countries to grant to authors the
right to claim authorship of the work, the right to object to any distortion, mutilation or
other modification of, or other derogatory action in relation to, the work which would be
prejudicial to the author‟s honor or reputation. These rights, which are generally known
as the moral rights of authors, are required to be independent of the usual economic rights
and to remain with the author even after he has transferred his economic rights.
These international conventions have additionally led to the introduction of copyright
protection for folklore at the international level. For instance the 1967 Stockholm
Diplomatic Conference for Revision of the Berne Convention for the Protection of
Literary and Artistic Works made such an attempt, thus this led to the beginning of the
protection of folklore in the member states. This is another category which has not yet
been globally accepted as such, it includes traditional knowledge, expressions of folklore
and genetic resources. Folklore is recognized in Tanzania and it is included in The Act.
Moreover, these conventions help to establish a system of equal treatment that
internationalized copyright amongst signatories. The agreements also require member
states to provide strong minimum standards for copyright law.
118 D.M.C.C 55/2007
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Tanzania as a least developed country needs to redefine itself within the global scenario
as explained above, so that the relevant intellectual property institution in design would
be able to assist the government to effectively participate in the process to safeguard its
interests in the various regional and global negotiations119.
3.2. Role of the Court
In Tanzania, matters relating to copyright protection rely on the jurisdiction of the High
Court (Commercial Division), other subordinate courts saved to primary courts and the
Copyright Tribunal so as to be settled. The court when trying copyright cases, it is guided
by the following legislations; The Copyright and Neighbouring Rights Act120, the Civil
Procedure Code121 and the Criminal Procedure Act.122
The procedures at the Commercial Division of the High Court are not necessarily
complicated and the delays are minimal. Also the court has tried to make reasonable
decisions on the merits of the cases, and after the cases are completed copies of the case
are issued in writing and made available to the parties without delay. In most cases,
copies of the decisions are made available to the parties on the day they are delivered.
However, the general registry experiences serious delays due to congestion of cases 123.
The Copyright Tribunal is found under the Industrial Property Tribunal, which is
empowered with resolving disputes in the wide variety of circumstances in which it has
been given jurisdiction. The disputes normally arise between copyright owners and
copyright users and invariably involve as a central issue the financial terms on which a
right which is part of the copyright in a work may be exploited. Normally the tribunal has
to make its determinations on the basis of what is reasonable in the circumstances.
119 Mahingila E. (2007) building intellectual institution in Tanzania by BRELA 120 The Act 121 Cap.33 of 1966 122 Act No.9 of 1987. 123 World IP Contacts Handbook: IP protection meets global standards Audax K Kameja, Blandina Selle Gogadi, August N Mrema and Francis Kamuzora of Mkono & Co 19/3/07 pp 414 www.managingip.com
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Section 43(1) of the Act provides that, “the court having jurisdiction of a civil action
arising under the Copyright Act or Criminal Procedure Act shall have the authority to
grant injunction and to order for the impounding of unauthorized copies”. In fulfilling its
objectives as stated above the court has succeeded to some extent in ensure that copyright
laws in Tanzania are enforced and protected. In an interview conducted by the
researchers with the Chief Executive Officer of COSOTA124, Mr. Yustus Mkinga
explained that up to date there are a number of copyright cases that have been prosecuted
against copyright infringers, for this reason this is an enough proof that the court is surely
performing its duties effectively.
In copyright cases, the court normally provides various remedies or reliefs to the
copyright owner including civil remedies together with criminal sanctions against
copyright infringers. Civil remedies are awarded to the copyright owner so as to
compensate him for the economic injuries suffered because of the infringement. The
remedies are usually in the form of pecuniary damages, and create an effective deterrent
to further infringement such as destruction of infringing goods and materials, injunctions,
and payment of fines125.
As for the criminal sanctions against copyright infringers, the court grants them with the
intention to punish those people who willfully commit acts of piracy on a commercial
scale and for the purpose of preventing further infringement. The punishments in this
case include substantial fines, prison sentences consistent with level of penalties for
crimes of corresponding seriousness, particularly for repetitive offenses. This can be
clearly evidenced in the case of COSOTA V. New AICC Club126, where the court
determined the case in favour of the plaintiff and ordered the execution of the decree that
the defendant had to pay Tshs. 4,484,000.
124 Interview conducted on 15th March 2010 at the COSOTA Headquarters in Dar Es Salaam 125Republic V Space Satellite Television, the defendant was found guilty of retransmitting Multi Choice channels and showing live new released movies without the permission of authors. He was liable to pay Tshs. 200,000.C.C 519 Resident Magistrates court at Musoma Registry 126 R.M C.C 22/ 2007
45
Notwithstanding the normal court proceedings, copyright cases can also be solved outside
the court through the use of alternative dispute resolution as fairly and efficiently as
possible, without disrupting underlying business relationships as a way of enforcing and
the protecting copyright laws. For instance in the case of COSOTA V. Protea Aishi
Machame127, Honourable Herbert the resident Magistrate of Moshi withdrew the case on
the ground that the matter should be settled outside court. After the settlement the
defendant was ordered to pay the plaintiff Tshs. 3,900,000.
Moreover, in the case of Isaiah Mwakilasa and 6 other (All t/a Ze Comedy
Production) V. E.A.T.V, BRELA AND COSOTA 128, Makaramba J ordered that the
matter be settled outside the court through mediation. Upon the mediation the parties
agreed on the following; that characters, names and style previously used by the
plaintiffs, i.e. Wakuvanga, Mpoki, Jotti, Masanja, Seki and Mc. Regan authorized to be
used and retained by the plaintiffs. As for the service mark “Ze Comedy” it was declared
to be the property of East Africa Television Limited (EATV). Also in the case of
COSOTA V. Billicanas Club129, the resident magistrate of Kisutu, Hon. Msuya
withdrew the case on the ground that it be settled out of court and following the
settlement the defendant was liable to pay the plaintiff Tshs. 1,500,000.
Nevertheless, with all that the court has achieved so far, it can still be observed that the
efforts it has employed are not efficient enough as to conquer this problem of piracy and
copyright infringement generally. Such as, the sanctions imposed on these copyright
infringers are unreasonable since the weight of the offence is not equivalent to the penalty
imposed on that person. For example, in an unknown case at Karagwe District Court
where a person was found with 500 pirated cassettes of Saida Karoli he was fined to pay
127 R.M C.C 14 of 2007 128 High Court of Tanzania Commercial case no 49 of 2008 (Unreported judgement 24/06/2009). In this case the applicants lodged a suit against the respondents. The dispute originated from the use of the name “ Ze Comedy” used for a comic performance put up by the applicants and broadcast by the first respondent; by a mutual agreement of the parties in writing. The contractual relationship ended sometime in May 2008. The applicants alleged that it was well known that they were the ones who created the name “Ze Comedy” but the first respondent with the aid of the second respondent fraudulently registered it as its own trademark. Therefore, the applicants were asking for a variety of reliefs ranging from injunctive orders to general and punitive damages. 129 R.M C.C 147 of 2007
46
Tshs 40,000 only and the cassettes were returned to him. As well, another person was
found with 150 pirated cassettes and was fined to pay Tshs 20,000.
As well, the judiciary as a whole tends to give a low priority to copyright infringement
cases. They don‟t treat such cases with urgency and the efficiency as every other case
either be it criminal cases or contract cases. Basically, it is difficult to move copyright
cases along at a reasonable pace, as Magistrates are reluctant to hear such matters and are
therefore likely to grant postponements, consequently increasing costs of litigation,
risking harm to the evidence, and generally leaving pirates to continue with their illegal
activities. This can be spotted in the case of COSOTA V. Texas Inn130 where the case
was set for ruling on 23rd October 2007, but it is yet to be known as to what was the
ruling is131. Moreover, in some infamous instances the court tends to decide infringement
cases in the favour of the copyright infringers under bizarre circumstances132 of which it
is wrong as it violates the rights of the copyright owner.
3.3 Conclusion
As from the findings of this study, it has been observed that the enforcement and
protection mechanisms are not quite efficient and effective as they ought to be and thus
this increases infringement of the rights of copyright holders. In the next chapter of this
study some recommendations are provided as to what is to be done so as to make sure
that copyright law is properly protected and observed.
130 RM. C.C 21/2007 131 COSOTA status of cases 6th January 2009 132 In one incomprehensible decision, a convicted defendant appealed his case, and the judge ruled that his conviction be set aside and pirate cassettes returned to him, on the grounds that, the complainant right holders were business rivals, hence the defendant lacked awareness he was infringing anybody‟s copyright and another decision is that where the defendant was found with 150 pirated copies and was fine 20,000 Tshs only and had the cassettes returned to him.
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CHAPTER FOUR
RECOMMENDATIONS AND CONCLUSION
4.0. Recommendations
It is apparently clear from the findings of this research that there are numerous flaws in
the whole process of protecting and enforcing intellectual property rights in Tanzania,
specifically copyright laws. For instance, the laws, regulations and the whole institutional
framework governing copyright are facing various inherent problems hence causing
immense loss to the artists and copyright owners generally since they get less credit than
what they deserve or are ought to get.
As a result, the protection of intellectual property rights is important in enhancing a
countries‟ development, and promoting its business and artistic environments. This is the
reason why the researchers have devised different recommendations and suggestions
towards reaching a solution which will be a proper platform for the protection and
enforcement of copyright laws in Tanzania
4.0.1. Recommendation to the Court
First and foremost, it is the recommendation of this research that, in order to achieve high
standard of efficiency in the protection of copyright laws, then the courts should give
high priority to copyright infringement cases. This can be done through the court
entertaining more copyright cases, encouraging prosecutors to become more active,
increasing the number of convictions as well as making the penalties more deterrent. For
without these considerations then copyright infringement will be excessive in Tanzania.
As well, the researchers recommend the establishment of specialized intellectual property
courts to deal only with commercial crimes. Such courts might be helpful in ensuring
speedier judicial enforcement and harsher remedies being meted out to commercial
pirates. A specialized court with specially-trained judges and prosecutors would ensure
48
that they are familiar with technologies being used by the pirates and their modus
operandi133.
Moreover, there is the need to introduce preliminary remedies which may be obtained
speedily, which will assist in the collection of evidence against a pirate, and which will
prevent the destruction of evidence and the removal of financial resources against which
damages may be claimed. In many common-law jurisdictions a number of developments
have occurred in recent years in response to this need for instance South Africa, England
and India.
For instance, interlocutory injunctions which aims to meet the above mentioned need by
granting speedy and temporary relief during the period before a full trial of an
infringement action takes place, thus preventing irreparable damage from occurring to the
plaintiff‟s rights. This will help to minimize the damage being inflicted by piracy and it
will be swift action in seeking to prevent its continuation because for as long as piracy
continues, he will be deprived of a portion of his potential market, and thus of the
capacity to recover the economic reward for his creativity or investment.
Furthermore, it is very crucial that the costs of litigations in the High Court (Commercial
Division) be reduced because it is quite contrary to the objectives of various international
intellectual property agreements. For instance, Article 41(2) of the TRIPs Agreement
provides that, the procedures concerning enforcement of intellectual property rights
should not be costly. However, this is not the same with Tanzania, since the fees for legal
proceedings at the Commercial Division of the High Court are rather overpriced. For
instance a person is supposed to pay about 3.3% of the value of the subject matter, or pay
Tshs.100, 000 where the claim is for an injunction or for damages where no specific
amount is claimed and Tshs.15, 000 on tendering an exhibit, or for filing any other
document not otherwise provided for in the Commercial Court (Fees) Rules. Moreover,
the court system as well provides an alternative that a person can file a copyright case at
the general High Court registry, but he will have to pay legal fees that range at about
133 Latin word meaning, the way of operating or the way which something work
49
Tshs. 200,000. This is therefore, kind of expensive for a normal copyright owner
especially in a country like Tanzania.
4.0.2. Recommendation to the Government
There is great need for the government to improve investment in cultural industries,
because lack of investment contributes and perpetuates the problem of piracy in
Tanzania. Production and distribution methods are outdated and cannot satisfy the
demand for these products. Genuine products imported from abroad sell at very high
prices and are therefore not affordable to the majority of the population. The pirated
products are attractive to the people because they are offered at affordable prices.
Furthermore, the government should realize that it is through proper enforcement of
copyright laws that the indigenous cultural industries may be stimulated. It is debatable
that given the cultural content of local copyrighted goods, the demand for such goods will
always be there. An example is the Nigerian video/film industry, known as „Nollywood‟
widely regarded as the third largest film industry in the world and it is quite dominant in
the West African sub region.134
As well, the government through the legislation should ensure the passage of
amendments to bring the copyright law into compliance with TRIPS (including by
providing stronger legal deterrents to copyright infringement, criminalizing corporate
end-user piracy, providing for pre-established civil damages.
Moreover, the government should offer the required support to the enforcement agencies
so as they can perform their duties more efficiently. For instance, it should provide
adequate funds to these agencies and also provide proper training and pay well these
enforcement agents (i.e. the police, customs and specialized institutions).
134 The number of censored films in Nigeria for the period 1993- 2003 is as follows: 1994(3), 1995(200), 1996(254), 1997(260), 1998(387, 1999(490), 2000(750), & 2001(1030). See FILM AND VIDEO DIRECTORY IN NIGERIA 2002 by copyright commission of Nigeria at p.116
50
The government should as well make an effort to establish a special investigation unit in
the Ministry of Trade and Industry. This will hopefully ensure better enforcement of the
copyright laws in Tanzania.
Similarly in the publishing industry, the government should attempt to reduce monopoly
because most of publishing and distribution companies are owned by few people and
sometimes operate as monopolies in the market especially in producing educational
books, music, movies. In some cases they offer unfair standard contracts to local authors
with little or no room for collective bargaining and or renegotiating of the contracts. The
result is that local authors are discouraged to work with the publishers and venture in self
publishing which is usually difficult and expensive to sustain. For instance in Tanzania
the music and movie industry has been monopolised by one major distribution company
known as Mamu Stores.
4.0.3. Recommendation to the copyright Society of Tanzania
In order to improve the enforcement mechanism to the protection of copyright, there is a
need to finance COSOTA as the collective society to improve means of protection,
through good finance. But also through licensing and other activities like payments of
royalties from COSOTA members and fees paid in way of expenditure made by leasee
under lease of intangible assets and payments for the use or right to use copyrighted
material such as videotape, sound recordings, cinematography and publishing materials
can be some of the ways that COSOTA can use so as to raise its finances and stand on its
own.
Making up the numbers; the Staffing of IP Offices must raise, the number of staff
involved in IPR administration in developing countries varies enormously. This
requirement could be expected to rise over time with increased volumes of IPR
applications. Example in Kenya, the Intellectual Property Institute has an establishment
of 97 staff, 26 of which are professional posts and 71 are administrative. In Tanzania, the
51
Intellectual Property Division of the Business Registrations and Licensing Agency has 20
staff (11 professional and 9 administrative) and COSOTA has not more than 20 staffs
with few being professional135.
The need of introducing The Copyright Public Information Office helps to give legal
advice. If information or guidance is needed on matters such as disputes over the
ownership of a copyright, suits against possible infringers, the procedure for getting a
work published, or the method of obtaining royalty payments, it may be necessary to
consult an attorney.
.
In addition, there is a need of having frequent training for our copyright officers so as
they can increase their skills in this field. For instance Mr. Yustus A.B. Mkinga, CEO of
COSOTA attended a training in the United States at the U.S. Patent and Trademark
Office's Global Intellectual Property Academy. Mr. Mkinga joined other officials of
copyright offices from various governments around the world who are responsible for
copyright law/policy and/or copyright enforcement matters. This technical course is
specially offered to government officials who have responsibility in their respective
national copyright offices and encounter copyright issues on daily basis. Mr. Mkinga said
of the training, "this opportunity has come at the right time, because we are working on
proposing amendments to the Copyright and Neighbouring Rights Act, meanwhile the
Ministry of Industry, Trade and Marketing, is working on preparation of the National
Intellectual Property Policy, copyright inclusive."136
4.0.4. Recommendation to the Public at Large
Lack of awareness on copyright laws prompts people to believe that infringement is
harmless, that is why achieving public awareness and the appreciation for copyright
135 Integrating Intellectual Property Rights and Development Policy chpt 7 institutional capacity
136 Press Release “U.S.A and Tanzania Partner to Strengthen Copyright Law February|” <http://tanzania.usembassy.gov/pr> 2, 2009
52
protection is very vital. The major trouble seems to be that people consider this whole
idea of copyright as eccentric. This is not true as all societies have long standing practices
that at the minimum protects the moral rights of creators. Tanzania must therefore
creatively enlighten its public as to the benefit of copyright protection. One good way of
doing this is to undertake a study of the contribution of the cultural industry to the Gross
Domestic Product.
Regarding the contribution of the public towards reducing the problem of infringement of
copyright law, the issue of nationalism or loyalty comes to play. This can be grouped into
two forms whereby in one hand, the copyright owner who is protected by the law should
exercise his rights according to the requirement so as to get more profit from his
creativity and to ensure the country resources are used effectively. On the other hand, the
general public should report any misconduct and fraudulent transaction that are done, this
is for the purpose of helping the government in effecting the laws which govern copyright
systems and improve the revenue productivity in the country.
4.2. Conclusion
As explained throughout the research, piracy and IPR infringement is rather out of
control in Tanzania and this is due to the fact that there is ineffective and inefficient
enforcement and protection of the laws. There is a need of taking serious initiatives to
deal with this problem because intellectual property piracy erodes a country‟s economy
and its cultural identity. For instance, Copyright laws encourage the creation of literary
works, computer programs, artistic works, and expressions of national culture as it
ensures that someone else doesn‟t take credit for our ideas. Patent laws encourage the
discovery of new and improved products and processes, while ensuring the freest
possible public access to information regarding those new products and processes.
Trademark laws encourage the development and maintenance of high-quality products
and services can help companies‟ to promote customers loyalties.
53
Copyright protection is above all one of the means of promoting, enriching and
broadcasting the national cultural heritage. A country‟s development depends to a very
great extent on the creativity of its people, and encouragement of individual creativity.
For example, if Tanzania assures good copyright protection and enforcement means then
investors will be attracted to build sustainable film and media based industries, in the
country.
As a result, to succeed in the protection and enforcement of copyright laws then there is a
great need to increase human resource capacity in this area of law, because there are very
few personnel. The reason behind it being that, lawyers and other personnel take
intellectual property to be more imagined than real and that is why people are less
interested in the field and it is not taught in most Sub-Saharan African faculties of law137.
Moreover, there is a need to keep up with the advances in the technological means for
creation and use of both authorized and unauthorized protected material. Digital
technology in particular makes it easy to transmit and make perfect copies of any
information existing in digital form, including copyright protected works.
What's more, there is a need of introducing The Copyright Public Information Office
which helps to give legal advice. If information or guidance is needed on matters such as
disputes over the ownership of a copyright, suits against possible infringers, the
procedure for getting a work published, or the method of obtaining royalty payments, it
may be necessary to consult an attorney.
Lastly, in Tanzania there is attention on the amendment of main Copyright Act so as to
meet the needs of advancement in science and technology along with making
enforcement and protection of copyright law more effective. The President of Tanzania
137 Assessing Tanzania, Samuel Wangwe et al have this to say: „extensive training is required to cause awareness of intellectual property laws, considering that until recently, Intellectual Property Law was not formally taught in the country: but now some aspects of IP have been introduced in the Law Curriculum at the University of Dar es Salaam‟ „Country Case Study 9: Institutional Issues for Developing Countries in IP Policy-Making, Administration and Enforcement : The Case of Tanzania‟p.5
54
Jakaya Kikwete has pledged to end the misery of piracy against artists' work by giving
teeth to the law governing copyrights. The President said the government was ready to
review the copyright law so that it can provide severe punishment to pirates. “We shall
also strengthen law enforcement authorities so that they are powerful enough to deal with
the culprits” he noted. He said he was ready to form a task force that would comprise,
Copyright Society of Tanzania, police, Fair Competition Commission, Tanzania Revenue
Authority, Business Registration and Licensing Agency, Ministry of Industry, Trade and
Marketing and recording and performing artists themselves to dig deep into the problem
The President said the move would greatly improve income for both artists and tax for
the government138.
138 Tanzania Daily News (Dar es Salaam) Tanzania: Government to Review Copyright Law to Curb Piracy by Faraja Mgwabati 14 February 2010
55
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