1

THE HISTORY OF COPYRIGHT IN TANZANIA:

FROM TANGANYIKA TO TANZANIA-WHERE,

WHEN AND HOW.

Prepared by Asherry Magalla

Copyright © 2015 Asherry Magalla. All rights reserved.

No part of this publication may be reproduced or

transmitted in any form or by any means, electronic or

mechanical, including photocopying, recording, or any

information storage and retrieval system, without

permission in writing from the publisher. Details on how

to seek permission, further information about the

Publisher’s permissions and other arrangements can be

obtained through his email, magallajr@gmail.com

This paper and the individual contributions contained in

it are protected under copyright by the Publisher (other

than as may be noted herein). LL.B Degree Holder at the University of Iringa (Formerly known as

Tumaini University Iringa University College) 2009-2012, Masters

Holder in Information, Communication and Technology Law at the

University of Iringa 2012-2013. Member of Non-Governmental

Organization NOLESA (The Noble Legal and Social Organization

(Association)). Articles and Legal Papers Author at academicians

website www.academia.edu, and

http://www.researchgate.net,

http://www.researchgate.net/ Consultant on legal issues of ICT.

Contact details, email, magallajr@gmail.com

2

1.1 Introduction.

In order to understand the concept of anything, one

cannot ignore the history of it. Because some readers

find that history helps them in understanding the

present and may provides plans for the future.

This paper entails the origin of copyright worldwide and

in Tanzania and also gave the position of copyright

protection in Tanzania in regarding to the development

of science and technology, particularly on the New

Cyber Crime Act of 2015, on how it deals with digital

copyright infringement.

3

1.2 What is Copyright? Where does it originate?

Copyright is a property right which subsists (exists) in the

various works, for example literary works, artistic works,

musical works, sound recordings, films and broadcasts.1

It is a legal concept, that enacted by most of the

governments, giving the creator of an original work

exclusive right to it, usually for a limited time.2

When asking people about the nature and origin of

copyright protection, many will verify Statute of Anne

as its foundation.3 This is simply because, the Statute

1 David I. Bainbridge (2009). Intellectual Property, Seventh Edition,

Pearson Longman, Ashford Colour Press Ltd, Gosport, Pp.5 and 31.

2 World Intellectual Property Organisation. "Understanding

Copyright and Related Rights". WIPO. pp. 6–7. Retrieved January

26, 2013.

3 The Statute of Anne also known as the Statute of Anne, called

after Queen Anne was a result of Anglo-Scottish Union established

by the two parliaments of England and Scottish. This new

parliament changed the laws in both countries and an important

4

was made by two Parliaments of England and Scotland

when an Anglo-Scottish Union was established, and

therefore it was a global event. Second, it is the Statute

of Anne which encourages the economic right of the

authors on their purchase of their works, for instance,

the Act set out a procedure for keeping the price of

books reasonably.4

Also the Act puts authors in a stronger position when it

came to bargaining with publishers. Some authors, such

as Pope himself, understood the new law and used the

rights the Act gave them to ensure they got a share in

the rewards of their writing. Unknown or less astute

early piece of legislation was the Copyright Act of 1709. See

Macqueen, Hector L, Charlotte W, Graeme T L, (2007).

Contemporary Intellectual Property: Law and Policy. Oxford

University Press Pp.34.

4 Julien Hofman (2009). Introducing Copyright: A Plain Language

Guide to Copyright in the 21st Century, Vancouver:

Commonwealth of Learning, Pp.4.

5

authors, no doubt, would have had to settle for less

favourable terms.5

In ancient times the idea of economic rights of the

authors was not particularly well established. Even

though, scholars and teachers of Ancient Cities such as

Rome and Greek were the first to be concerned about

being recognized as the authors of their works, but they

did not have any economic rights because the

teachers’ emphasis on moral rights,6 that is why many

people believe the Statute of Anne to be the nature,

origin and foundation of copyright because to them

copyright is the economic rights even though the Act

recognized also moral rights.

5 Julien Hofman (2009). Introducing Copyright: A Plain Language

Guide to Copyright in the 21st Century, Vancouver:

Commonwealth of Learning, Pp.7

6 David I. Bainbridge (2009). Intellectual Property, Seventh Edition,

Pearson Longman, Ashford Colour Press Ltd, Gosport, Pp.33.

6

However, the concept of copyright as a principle

existed earlier before that. Ordinary and ancient

people, often without realising it, have always

produced work that copyright protects. In the past this

work took the form of personal or business letters,

school or college essays and artwork or photographs.7

Dating back almost to the beginnings of civilization

there have been those eager to profit from the work of

others (ne alieni collision Fructus laborum et vigiliarum

serum).8 In ancient times, the idea that the author of a

work of literature had economic rights to control the

7 Julien Hofman (2009). Introducing Copyright: A Plain Language

Guide to Copyright in the 21st Century, Vancouver:

Commonwealth of Learning, Pp. xi.

8 This Latin maxim refers to those who reap the fruits of his labours.

That means you cannot be benefits for the work created by

another person who used his labour, skills and efforts which

resulted to the end product of the works (which is his judgment).

Therefore the Latin maxim protected the fruits of author’s works.

7

dissemination and copying was not particularly well

established, and yet those who falsely claimed a work

were considered contemptible.9

1.3 Copyright Protection in Tanzania before

Colonialism.

There is no written evidence that during the ancient

societies in Tanzania there was copyright protection.

This is simply because most of the African events and

rules were not put into physical records compared with

the Europeans, Americans and Asians, where by their

events were recorded in a fixed form so as they act as

the evidence as to the existence of an ancient, such as

copyright laws.

9 David I. Bainbridge (2009). Intellectual Property, Seventh Edition,

Pearson Longman, Ashford Colour Press Ltd, Gosport, Pp.33.

8

We have to remember that even when Carl Peters

when signing series of treaties with local chiefs in

Tanganyika, the chiefs had to sign with their thumb. This

proves that these chiefs had no paper means for

recording their events or codifying rules.

For example the Gogo Tribe from Dodoma, their

traditional songs such as „chimandi‟ and others were

owned by chiefs but protected by the clan leader or a

farm leader through which such a song was created.

Therefore, it was considered to go against the ancestral

spirits if one leader of the clan or farm organization or

any member of either two, to take another group song

unless otherwise permitted by the group leader. These

activities were not documented.

While the European perception of literature generally

refers to written letters, the African concept includes

9

oral literature (oriterature “ureter”, in the term coined

by Ugandan scholar Pio Zirimu).10 In Africa could also

imply an artistic control or use of words for the sake art

alone.11

Even though, there are some evidences to prove the

existence of Ancient African Arts and Literary Works

presence in crave like in Isimila and kondoa, rocks oral

literature such as Swahili literature being Utendi WA

Tambuka or “The Story of Tambuka”, Epic of Sundiata in

Mali and Epic of Dinga from old Ghana Empire12 and

some in the papers and the role of Egypt, Timbuktu and

Ethiopia in mathematical calculation, reading and

10 George, Joseph, (1996). “African literature,” in Gordon and

Gordon, Understanding Contemporary Africa ch. 12, Pp. 303.

11 Ibid

12 “African literature – MSN Encarta”. Archived from the original on

2013 – 01 – 12.

10

writing knowledge13 , in which they were protected by

chiefs of the particular tribe still there is no prove to the

existence of copyright protection of those inventions

and creations.

This would not have been happening if Tanzanian

Societies had records in fixed form to prove various

activities for copyright protection occurred before the

coming of the colonialists, but it is just a hearsay that

we have.

1.4 Copyright Protection in Tanzania

(Tanganyika by then) During Colonial Era

Copyright protection in most of the Africa Societies

began as soon as the existence of Colonialism in Africa

which brought European Civilization in Africa including

13 Matthias Schulz Anwen Roberts (2008). “The Rush to save

Timbuktu‟s Crumbling Manuscripts” Pp. 34.

11

formal education in which African literature and artistic

works were protected by the Colonial Masters.

However, due to the exploitative nature of the

Colonialism, Africans were not well benefits from their

labour, efforts and judgment of their literary and artistic

works as they were subjected to their Colonial

Masters.14

In order to understand the concept of copyright

protection in Tanzania (Tanganyika by then), it is for the

best to look at the nature of the legal systems during

the Colonial Era which resulted to the current copyright

protection law, and before looking to the nature of the

Colonial Legal System, the aims of Colonialists are vital.

14 Herbert Isaac Ernest Dhlomo of South Africa published the first

English – language African play, The Girl Killed to Save:

Nogqawuse the Liberator in 1935, Pp.17.

12

Cecil Rhodes outlined the main purposes/aims of the

colonial economy, which was pioneered by early

imperial companies, as follows:15

“We must find new lands from which we can

easily obtain raw materials and at the same

time exploit the cheap slave labour that is

available from the natives of the colonies. The

colonies would also provide a dumping

ground for surplus Goods produced in our

factories.”16

The above statement by Cecile Rhodes clearly shows

the purpose of the colonialists in Africa especially in

Tanzania, in which it automatically indicate negative

impacts towards the African economy, such exploiting

15 As quoted in “ Development as Enclosure: The Establishment of a

Global Economy: The Ecologist 22 No.4 (1992) pp. 31-47)

16 Rogate R. Mshana (2001). The Economic Impacts of German

Colonial Rule and the Question of Reparation. Pp.33.

13

African labour, raw materials and at the same time

market for the dumping manufactured surplus goods.

To achieve such aims implies that even the legal

systems have to be in exploitative nature so that the

above aims can be smoothly interpreted.

1.4.1 Copyright Protection under the German

Rule: AD 1890-1919.

During the Germany colonial rule the administration of

justice was basically racial; there were two systems, one

for natives and another for non-natives. The

adjudication at this time was made by the governor

and other administrative officers. The law applicable in

matters relating to Native was actually vague.17

The Germans left behind a Three-tier Court System; one

for Europeans, a second under the Local

17 Available at http://www.judiciary.go.tz, extracted 3rd April 2013.

14

Authorities and the Military Commanders for the

Natives in effectively occupied areas and lastly, the

Traditional Judicial Institutions in areas without effective

German Control. The German Colonial Administration

successfully attempted to impose upon the Natives a

Pan-Territorial Legal System for the first time in the area

though the system was strange to them, discriminatory

and brutally applied by law enforcers.18 Through

looking at this nature of the legal system, copyright

protection was there but with racial bias.

Due to inadequacy of the company in 1891, the

German administration was forced to be under the

direct rule.19This means they did not allow the use of

traditional laws other than foreign laws except in the

18 Ibid.

19 See the History of Tanzania at

http://www.historyworld.net/wrldhis/plaintexthistories.asp?

Extracted on 4th September, 2013.

15

Traditional Judicial Institutions the areas in which

German Control had less interest.

The act of placing different Court System in

accordance with race, between Native Africans, Arabs

or Indians and Europeans established racial

discrimination because the German administration

considered the Africans “insufficiently advanced to

come under German law”.20

Copyright activities during German Reign were not vital

as the result of the nature of the Colonial Economy

(which mostly supports industrial economy activities)

concentrating on hut, house, pay as you earn and poll

tax in 1897, and land policies. Therefore, even though

the German Law was applied to the Europeans and

Local Authorities, copyright was not given priority.

20 Anthony Allott (1976). Development of the East African Legal

System During the Colonial Period, in HISTORY OF EAST AFRICA 348

(D.A. Low ed.,) Pp.397.

16

And as the fact that customary laws at that time were

not codified in a fixed form such as written documents,

then there is no evidence as to whether the Traditional

Judicial Institutions established by the German solved

cases relating to copyright.

It is also believed that, many of these records (taxes,

land policies and even different cases) were hidden

and sometimes destroyed during the First World War in

1918 and some although surprising few have been lost

subsequently.21

1.4.2 Copyright Protection under the British Rule:

AD 1919-1962.

After the end of the war the treaty of Versailles, in 1919,

grants Britain a League of Nations mandate to govern

the former German East Africa which now acquires a

21 Iliffe, J, A. (1969). Tanganyika Under German Rule 1905, 1912,

1969, CUP London, Pp.33.

17

new name, Tanganyika. During the British Colonial Era,

the British introduced two separate structures of judicial

hierarchies and this was done through the Tanganyika

Order in Council.22

British policy from the 1920s onwards was to encourage

indigenous African administration along traditional

lines, through local councils and courts. A legislative

council is also established in Dar Es Salaam, but African

members were not elected to this until after World War

II. By then local political development is an obligation

under the terms of UN trusteeship, in which Britain

places Tanganyika in 1947.23

22 Tanganyika Order in Council of 1920.

23

http://www.historyworld.net/wrldhis/PlainTextHistories.asp?historyid

=ad23-extracted on 29th June 2013

18

Britain further enacted the Courts Ordinance to

“regulate the administration of justice in the territory.”

The Courts Ordinance maintained the previous system

of separate adjudication for foreigners and the

indigenous population although appeals from the

native courts could be sent to the colonial High Court.24

Despite several amendments to the law, the

administration of justice during British rule never did

away with the racial discrimination.25

24 Kenneth McK. Norrie (1989). Administration of Justice in Tanzania

and Zanzibar: A Comparison of Two Judicial Systems in One

Country, 38 I NT’L & COMP. L.Q Pp.398.

25 Magalla, A and Robert E. (2012), Independence of Judiciary

and Administration of Justice in Tanzania: A Critical Assessment of

Its Interpretation and Practical Application by the Courts in

Tanzania. A Research Thesis Submitted in Partial Fulfillment of

Academic Requirement for the Award of Bachelor of Laws (LL.B),

at Tumaini University Iringa University College. Available at

http://www.academia.edu/3123220/The_Independence_of_Judici

ary_in_Tanzania, at page 5-6. Retrieved on 23rd April 2013.

19

Codification of copyright law came only with the

Copyright Act of 1911. This Act, also known as the

Imperial Copyright Act, applied in colonial territories

and was the model for most of the early copyright

legislation in Commonwealth countries.26

1.5 Copyright Protection after Colonial

Domination: From 1961 up to now.

After attaining the independence from the British

Colonial Master, the Copyright Ordinance Chapter 218

by Act No. 61 of the 1966 was enacted. It is from this

Act which resulted to the enactment of the new

Copyright Legislation in 1999 which it is still in operation

currently.

26 Julien Hofman (2009). Introducing Copyright: A Plain Language

Guide to Copyright in the 21st Century, Vancouver:

Commonwealth of Learning, p.5.

20

The Act adheres to the rules and principles of some

conventions such as the Berne convention27 and the

TRIPS Agreement of the World Trade Organization.28For

example protection of computer programs and

software29 which is one of the requirement of the

above Agreements.

Intellectual Property like other laws during colonial time

was imported through a reception clause30 as

27The Berne Convention for the Protection of Literary and Artistic

Works of 9 September 1886 as last revised at Paris on 24 July 1971

and amended in 1979. Available at www.wipo.org. Retrieved on

6th September 2013

28Agreement on Trade Related Aspects of Intellectual Property

Rights, April 15 1994, Annex IC of Marrakesh Agreement

Establishing the World Trade Organisation, 1869 U.N.T.S. 299, 33

I.L.M. 81 (1994).

29 See Sections 4 and 5 (2) (a) of [Cap. 218, R.E.2002] of 1999.

30 Leonila Kishebuka,WIPO Training of Trainers Program on Effective

Intellectual Property Asset Management by Small and Medium-

Sized Enterprises (Smes) August 22 To26,2011, Blue Pearl Dar Es

Salaam, available at, http://

21

Tanzania31 was under the British trustee and inherited or

copied many British legal practices including laws

through the reception clause.32

The development of science and technology not only

in Tanzania but worldwide have brought some

challenges in all aspects of human life. The digital

revolution has brought fundamental change to

communications and fuelled dramatic developments

in the new digital economy.

In addition, some countries, particularly developing

countries have not implemented the full range of

www.brela-tz.org/NATIONAL%20ADMINISTRATION%20FRAMEWO.

Extracted on 8th July 2013.

31 Tanganyika by then.

32 Section 2 subsection (ii) of the Judicature and Application of

Laws Act, CAP.358 of 1920.

22

limitations and exception available to them under

international law in terms of copyright protection.33

It has been said in Tanzania, that these technologies

began widely to be used by the years of 1993 when

Telecom services was liberated. This revolution

flourished after 20 years of prohibition of the

importation of the computer with the earliest Internet

Service Provider being Raha.Com compared with

nowadays Tigo, Airtel, Zantel, Simbanet and TTCL.34

The expansion of technology, especially information

and communication technology became the most

33 Gaelle Krikorian and Amy Kapczynski (2010). Access to

Knowledge in the Age of Intellectual Property, Zone Books: New

York, Pp. 518.

34 Twaakyondo, Hashimu M. Key Issues in Information

Communication Technology Policy Review Process: The Case of

Tanzania. Journal of Computing and ICT Research, Vol.5, Issue 2,

pp 46-58. http://www.ijcir.org/volume5-number2/article5.pdf-

retrieved on 19th June 2013.

23

important instrument in promoting the existence of

literary and artistic works by nearly 20th Century,

because these two things are dependently each other.

When the information and communication technology

is high, more information on copyrights and copyright

infringements will be spread throughout the world.

When information is spread, it means even the right of

artistic and literary works will be also promoted hence

the need for ICT legislation to protect such rights,

therefore the development of such piece of legislation

will improve ICT law.35

Even though currently in Tanzania we have the

Electronic and Postal Communication36, which was

35 Twaakyondo, Hashimu M. Key Issues in Information

Communication Technology Policy Review Process: The Case of

Tanzania. Journal of Computing and ICT Research, Vol.5, Issue 2,

pp 46-58. http://www.ijcir.org/volume5-number2/article5.pdf-

retrieved on 19th June 2013.

36 Act No.3 of 2009.

24

enacted with the aim of keeping part and parcel with

electronic development especially in the matter of

information and communication technology in

Tanzania, still it does not curter or give a Legal

Framework sufficient to governing the matters relating

to information technology in Tanzania.

Still the current ICT situation requires urgent steps to

enable the Tanzanians to participate meaningfully in

the knowledge of the economy, recognizing that

Tanzania has low levels of human capital

development, local content creation; ICT

infrastructures and access, which together lead to high

cost of participation37.

Information is the lifeblood of a community information

service and the information file is at its heart. Unless the

37The Tanzanian National Information and Communications

Technologies Policy of 2003, the Policy Context page 2.

25

heart is sound and continually pumping a supply of

regularly renewed and fresh information into the

system, it will not function at its best. Therefore, it is

important to give extra care and attention to planning

the resources needed to set up a sound information

base and a workable system for keeping it up to

date.38

One among the extra care and attention to secure

information is technology and not only law but

sufficient and efficient laws.

1.6 The Rise of International Agreements for

Copyright Protection

As the result of the industrial revolution and the rapid

developments made in the fields of science,

38 Ralph Forrestal (2009). Teacher‟s Handbook of Information

Technology, First Edition, Global Media: New Delhi. Pp 123.

26

technology, and culture, new kinds of property apart

from the traditional came into existence. The concept

has undergone a sea change especially after the

Second World War.

They received a great attention due to their unique

features and possibility of their violation easily. It is

because of their unique characteristics, international

and big corporation saw the necessity of protecting

them.39 To control market power, measures that seek to

counteract abuses of market power by heaviest

companies were inevitable. Otherwise, liberalization

might simply end in laissez faire.40 Intellectual property is

the umbrella phrase now used, but only since about

39 G.B. Reddy (2000). Intellectual Property Rights and the Law, 1st

Edition, Gogia Law Publications, Navya Printers Pp.2.

40 Christopher Arup (2008). The World Trade Organization

Knowledge Agreements, Second Edition, Cambridge University

Press, Pp. 14.

27

the 1970s. Before that it meant only copyright and the

like’s rights to cover all the various rights that may be

invoked to prevent imitations of various sorts.41

The Paris Convention for the Protection of Industrial

Property, signed in Paris France, on March 20, 1883, was

one of the first intellectual property treaties. It

established a Union for the protection of industrial

property. The Convention is still in force as of 2013.

The Berne Convention42 first established recognition of

copyrights among sovereign nations, rather than

merely bilaterally. Under the Berne Convention,

copyrights for creative works do not have to be

asserted or declared, as they are automatically in force

41 Jacob R, Alexander D and Lindsay L (2004). A Guide Book to

intellectual property, 5th Edition, London Sweet & Maxwell, Pp.3.

42 S. Ricketson (1987). The Berne Convention for the Protection of

Literary and Artistic Works:1886-1986 (London: Centre for

Commercial Law Studies, Queen Mary). Pp.56.

28

at creation: an author need not "register" or "apply for"

a copyright in countries adhering to the Berne

Convention. As the work is "fixed", author is

automatically entitled to all copyrights in the work, and

to any derivative works unless and until the author

explicitly disclaims them, or until the copyright expires.43

While the Berne Convention 1886 seems to be based

more on the protection of authors rights44 or literacy

and artistic works. The 1961 Rome Convention goes

further to protect neighbouring rights or entrepreneur

43 "Berne Convention for the Protection of Literary and Artistic

Works Article 5". World Intellectual Property Organization. Retrieved

January 26, 2013.

44 Droit de’ auteur which includes works created by authors such

as literary works that is to say books, music, art and firms (droit

voisins) including phonogram producers, performers and

broadcasters. However both Convention share same national

treatment.

29

works.45 Initially the Berne Convention did not seem to

reflect the impact of digital technology until it was

modernized via other Conventions.

The impact of digital technology on copyrighted works

has been considered via Article 20 of the Berne

Convention,46 the WIPO Copyright Treaty of 199647

appears to cope with digital technology as grant

45 Examples of these types of works include sound recordings,

cable programs, broadcasts and the typographical format of

published editions.

46 Berne Convention for the Protection of Literary and Artistic

Works, 1886-1986.

47 WIPO Copyright Treaty of 1996 is a special agreement enacted

by a consensus of over 100 member states of European Union in

Geneva Switzerland on December. It supplements the Berne

Convention for the Protection of Literary and Artistic and Rome

Convention. At that time the two Conventions were not modified

for more than 25 years. WIPO Copyright Treaty is also known as

Internet Treaty as it was created to address changes in digital

technology and communications, particularly the distribution of

digitally protected works over the internet. See further at

http://www.techopedia.comdefinition/26952/WIPOCopyrighttreat

y-extracted on 5th September 2013.

30

exclusive rights to others, performers and producers in

making their copies available to the public by wire or

wireless means.48 Thus the phrase “by wireless” suggests

the protection of IP rights in line with computer

technology. Wireless is a term used to describe

telecommunications in which electromagnetic waves

(rather than some form of wire) carry the signal over

part or the entire communication path. Some

monitoring devices, such as intrusion alarms, employ

acoustic waves at frequencies above the range of

human hearing; these are also sometimes classified as

wireless. 49

48 Article 10 of the WIPO Performances and Phonograms Treaty

1996.

49Margaret Rouse (2006). Wireless Definition, available at

http://searchmobilecomputing.techtarget.com/definition/wireless-

retrieved on 22nd February, 2013.

31

The first wireless transmitters went on the air in the early

20th century using radiotelegraphy (Morse code).

Later, as modulation made it possible to transmit voices

and music via wireless, the medium came to be called

"radio." With the advent of television, fax, data

communication, and the effective use of a larger

portion of the spectrum, the term "wireless" has been

resurrected.50

Universal Copyright Convention – ratified by the U.S. in

1954 and again in 1971, this treaty was developed by

UNESCO as an alternative to the Berne Convention.51

Therefore the chronological historical development of

copyright protection falls under the following

legislations.52

50 Ibid, Margaret Rouse (2006). Wireless Definition.

51 Universal Copyright Convention, 1954-1971.

32

Licensing Press Act 1662,53 Statute of Anne 171054, The

Paris Convention for the Protection of Industrial Property

of 1883, International Copyright Act 1886 and the Berne

Convention, Copyright Act 1911,55 Universal Copyright

Convention,56 Copyright Act 195657; the Rome

52 History of copyright – http://www.ipo.gov.uk/type/copy/c-

about.htm...reviewed 30 January 2013

53 The issue of piracy brought bout an act to establish a register of

licensed books, along with the requirement to deposit a copy of

the book to be licensed.

54 Introduced the principle of a fixed term of protection. Before the

enactment of the Statute of Anne, there was no fixed term of

copyright protection. The statute fixed 21 years on the old works

and 14 years for the new works at the time when the work was

created and published. After the expiration of the work the author

had privilege to renew another 14 years from the date the work

was expired. See William, F. P (1994) Copyright Law and Practice,

Pp11-12. Available at http://digital –law-

online.info/patry/patry2.html-extracted on 6th September 2013.

55 This Act brought provisions on copyright into one Act for the first

time by revising and repealing earlier Acts.

56 One of the principal international conventions protecting

copyright was adopted in Geneva in 1952.

33

Convention of 1961,58 Copyright Designs and Patent

Act 198859 and lastly World Intellectual Property

Organization Copyright Treaty of 1996 was

established,60 in which in Africa, The African Regional

Intellectual Property Organization (ARIPO), formerly

African Regional Industrial Property Organization was

formed.61

Tanzania is a member state of some of the above

mention conventions and through the Copyright and

57 This Act acknowledged further amendments to the Berne

Convention and the United Kingdom’s accessions to the Universal

Copyright Convention.

58 Which protects neighboring rights or entrepreneur works.

59 This is the UK’s current Copyright Act has been amended by EC

Directives and other legislation since it came into force.

60 With the aim to cope with the advancement of science and

technology.

61 ARIPO or The African Regional Intellectual Property Organization

was established in Lusaka, Zambia, on December 9, 1979 (Lusaka

Agreement) and its headquarters located at Zimbabwe.

34

Neighbouring Rights Act, [Cap.218, R.E 2002] it complies

with their principles for example World Intellectual

Property Organization Convention, 1967 (effective for

Tanzania as from 30 December 1983);62 Paris

Convention (International Union) (effective for Tanzania

as from 16 June 1963);63 Berne convention;64

Agreement on the Creation of the African Regional

Industrial Property Organization (ARIPO) 1979 (effective

62 The World Intellectual Property Organization Copyright Treaty of

1996.

63 The Paris Convention for the Protection of Industrial Property of

20 March 1883 as last revised at Stockholm on July 14 1967 and

amended in 1979. Available at www.wipo.org-Retrieved on 8th

September 2013.

64 The Berne Convention for the Protection of Literary and Artistic

Works of 9 September 1886 as last revised at Paris on 24 July 1971

and amended in 1979. Available at www.wipo.org. Retrieved on

6th September 2013.

35

for Tanzania as from 12 October 1983);65 and the TRIPS

Agreement of the World Trade Organization (effective

for Tanzania as from 1 January 1995).66

For instance, one among the aims of this law is:

a. To protect the moral and economical

interests of authors (creators) relating to

their work.

b. To provide protection for expression of

folklore.

c. To protect the interests of performing

artists, producers of cassettes and

broadcasting organizations.

65 Agreement on the Creation of the African Regional Industrial

Property Organization (ARIPO) Created in Lusaka, Zambia, on

December 9, 1979 (Lusaka Agreement).

66 Agreement on Trade Related Aspects of Intellectual Property

Rights, April 15 1994, Annex IC of Marrakesh Agreement

Establishing the World Trade Organisation, 1869 U.N.T.S. 299, 33

I.L.M. 81 (1994).

36

d. To provide for civil remedies and

criminal sanctions against infringers and

pirates.

e. To provide for Public Rights to access

the author's work without conflicting

author’s rights.

These aims are also encompasses in the above two

conventions.

However, the country has not signed and ratified the

Convention relating to the distribution of program

carrying signals transmitted by the satellite of 1974.67This

brings challenges especially on the copyrighted

materials which are transmitted through satellites.

67 See Brussels Convention Relating to the Distribution of

Programme-Carrying Signals Transmitted by Satellite at

http://www.wipo.int/treaties/en/text.jsp?file_id=283796-retrieved

on 21st July 2013.

37

1. 7 The First Recorded Copyright Case.

The first record of a copyright case was the case of

Finnian v. Columba.68 Finnian possessed a new Psalter

known as a book of Psalms; Columbia copied it,

intending to keep his copy of the work. St. Finnian

disputed his right to have such copy, which at the end

led to a Battle of Cul Dreimhne in 561 AD, and many

people died. Columba was punished for it.69 The copy

was reclaimed, so the tradition relates, under the

decision of King Dermott,70 in the Halls of Tara: "To every

68 567 A.D

69 Bowker(1912). R.R, Copyright: Its History and its Law, Houghton

Mifflin, Pp.9.

70 Dermot MacMurrough was the King of Leinster during the twelfth

century and is most remembered as the man who invited the

English into Ireland. Dermot MacMurrough was a deeply ambitious

man who refused to accept his exile. He made his way to the

Court of Henry II of England and offered to become a vassal to

the King in return for military aid in retaking his kingdom. The king

did not directly provide assistance but allowed MacMurrough to

38

cow her calf, to every book its copy.71" The authenticity

of the tradition is questioned by other writers, but the

phrase gives the pith of the common law doctrine of

literary property and indicates that in those early

centuries there was a sense of copyright.

In Tanzania even though, we have the Copyright and

Neighbouring Rights Act, [Cap.218, R.E 2002], there are

few numbers of copyright cases or no cases at all

because they are unreported and mostly not easily

accessible. It is from their remoteness that made

Tanzanian copyright cases seemed none and

unavailable.

petition the Anglo-Norman lords. See http://www.ireland-

information.com/articles/dermotmacmurrough-strongbow.htm-

retrieved on 5th January 2013.

71Graham D, and Uma S (2013). Global Intellectual property Law,

Edward Elgar Publishing, Pp.64.

39

1.8 Conclusion.

It can be rightly argued that careful looking at the era

and all the changes which have taken place within the

development of copyright in Tanzania , some other

countries such like the United States, United Kingdom,

Australia, South Africa, India and others have grossly

responded for the same so as to ensure the copyright

protection in regard to the computer programs and

music industry, Tanzania on the other hand is still in an

infancy stage and the same calls for the viable reforms

in the respective laws so as to go hand to hand with

the modern requirements and science and

technology.

Article 24 of the Constitution of the United Republic of

Tanzania72 provides on the right to own property that

72 The Constitution of the United Republic of Tanzania of 1977, as

amended from time time.

40

every person entitled to own property and has a right

to the protection of his property held in accordance

with the law. Also in the case of Attorney General v.

Lohay Akonaay and Joseph Lohay73.The court quoted

an article by Nyerere in his book,74he stated inter alia

that;

“When I use my energy and talent to clear a piece of

ground for my use it is clear that I am trying to transform

this basic gift from God so that it can satisfy a human

need. It is true, however, that this land is not mine, but

the efforts made by me in clearing the land enable me

to lay claim of ownership over the cleared piece of

ground. But it is not really the land itself that belongs to

me but only the cleared ground, which will remain

73 [1995] TLR 80 (CA).

74 Mwalimu Julius K. Nyerere (1966). Freedom and Unity, Oxford

University Press.London.

41

mine as long as I continue to work on it. By clearing that

ground I have actually added to its value and have

enabled it to be used to satisfy a human need.

Whoever then takes this piece of ground must pay me

for adding value to it through clearing it by my own

labour”.

In light to intellectual property especially copyright, the

quotation above also implies to the protection of

intellectual property, especially copyright as long as a

person used talent, effort/energy, labour in adding

something value to such property. It also implies the

essence of public use over the work of another owner

in creating a new work. This is shown in this phrase, It is

true, however, that this land is not mine, but the efforts

made by me in clearing the land enable me to lay

claim of ownership over the cleared piece of ground.

42

The last sentence of the quotation implies the

economic right of the owner of the work.

Currently, the President of the United Republic of

Tanzania, Honorable Dr. Jakaya Mrisho Kikwete has

signed the new law THE CYBERCRIMES ACT, 2015, in

February 20.

This Act to a certain extent has tried to solve some

problems relating to protection of intellectual property

rights in digital environment.

For instance Section 3 of the Act75 has defined what

intellectual property rights mean state that;

"intellectual property rights"

means the rights accrued or

related to copyright, patent,

75 The Cybercrimes Act, 2015

43

trade mark and any other

related matters;

Also the same section has tried to explain

the meaning of property as;

"Property" means property of

any kind, whether movable or

immovable, tangible or

intangible, and includes-

(a) Any currency either as a

legal tender in the United

Republic of

Tanzania or not;

(b) Information, including an

electronically produced

program or data or copy

thereof, human or computer-

readable data; or

44

(c) Any right or interest in

property.

Furthermore section 24 of the Act state

that;

(1) A person shall not use a

computer system to violate

intellectual property rights

protected under any written

law.

(2) A person who contravenes

subsection (1) commits an

offence and in case the

infringement is on -

(a) non-commercial basis, is

liable to a fine of not less than

five million shillings or to

45

imprisonment for a term of not

less than three years or both;

or

(b) Commercial basis is liable

to a fine of not less than

twenty million shillings or to

imprisonment for a term of not

less than five years or to both.

In this Act digital copyright infringement may be

claimed, but I still have some questions, what about

those international and regional treaties which the

country is not the member, for example the country has

not signed and ratified the Convention relating to the

distribution of program carrying signals transmitted by

46

the satellite of 1974.76This brings challenges especially

on the copyrighted materials which are transmitted

through satellites. If the Treaty is not signed or ratified

can the local legislation enable to solve the problem

which can be solve by such Treaty?

Also the Act does not discuss the concept of fair use

that means if it started to be operated (as the fact that

the Act it is not yet put into practice despite of the fact

that it has been already signed by the president) only

one right will be claimed digitally (private rights) and

leaving the other rights (public rights) hanging, thus

twisting the balance between the protection of both

public and private rights.

Despite of having this CYBERCRIMES ACT, 2015, still we

need to improve our other written laws such as

76 See Brussels Convention Relating to the Distribution of

Programme-Carrying Signals Transmitted by Satellite at

http://www.wipo.int/treaties/en/text.jsp?file_id=283796-retrieved

on 21st July 2013.

47

Copyright and Neighbouring Rights Act, [Cap.218 R.E.

2002] so as to support these changes which have been

brought by this Act so as to strike a balance between

the protection of private rights and public right in

intellectual property rights particularly in copyright.

Therefore, one of the most logical requirements of ICT

regulation is that, ICT legislation should be sustainable

enough to cope with technological developments

over a sufficiently long period of time. If a law is too

technology-specific, it is not likely to cover future

technological developments, and it will therefore have

to be adapted sooner rather than later.77

77 Koops (2006). „Should ICT Regulation Be Technology-Neutral?‟ in Bert-

Jaap Koops at el (eds) Starting points for ICT Regulation. Deconstructing

Prevalent Policy One –Liners, IT & Law Series, Vol.9, Hague: T.M.C. Asser

Press. Pp. 77-108.

48

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Statutes

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55

International Sources

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Property of 20 March 1883 as last revised at Stockholm

on July 14 1967 and amended in 1979.

The Rome Convention of 1961

The Statute of Anne 1710

56

The Universal Copyright Convention of 1952 (Adopted

on September 6, 1952 at Geneva Entry into force on

September 16, 1955).

The Universal Declaration of Human Rights (UDHR) was

adopted by the UN General Assembly on December

10, 1948.

The World Intellectual Property Organization

Performances and Phonograms Treaty 1996

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57

Policies

The Tanzanian National Information and

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Research Paper

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Application by the Courts in Tanzania. A Research

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58

Bills

The Data Protection and Privacy Bill of 2013.

The Electronic Transactions and Communications Bill of

2013.