Assessment on the Law Relating to Copyright Protection against Piracy on Music Industry in Tanzania. CHAPTER TWO.

 

CHAPTER TWO

THE ORIGIN AND DEVELOPMENT OF COPYRIGHT LAW IN TANZANIA

               2.0 Introduction

This chapter attempts to extract the historical background of Copyright Law in Tanzania. In an attempt to bring into focus the historical background in Tanzania, the definition of copyright will be provided so as to draw the general understanding of the same which is the key concern of the subject.

               2.1 Definition of the term Copyright

The new Act clearly defines what “copyright” means, something which was not provided for under the 1966 Copyright Act. The Act in its interpretation clause defines copyright to mean, the sole legal right to print, publish, perform film or record a literary or artistic work or musical work.[1] But all the same still this definition is not exhaustive. The exhaustive one could have been as “the right intended to protect the right of those who create works of various kinds, principally to protect literacy, artistic and musical works, as well as other entertainment industry such as films sound recording broadcasts and their like.”

Copyright is about the rights of intellectual creators and their creations. It is about authors and their books; painters and their paintings or drawing; sculpters and their sculptures; photographers and their photographs; journalists, artists and their illustrations, reporters and their articles. Creations which have just mentioned are available as physical objects. But others like poems; music and folklore tales are non-physical but creation enjoys copyright all the same.[2]

The law does not only protect the creators of copyright works but also confers rights on those who keep record, disseminate and perform the creation. These second level of creation constitute the so called “Neighbouring rights”. But copyright law does not protect ideas it protect the form of expression of ideas in the way words, colours, shapes are chosen and arranged. Technical guides, engineering or architectural drawings, maps are protected; but laws, judicial decisions, mere news are generally not protected.

               2.2 Background to Tanzania Copyright Law

               2.2.1   Copyright Ordinance of 1924

The first statutory provisions on copyright were imported into the Tanganyika by the British Colonial Government in 1924. This was done through Copyright Ordinance Cap 128, which was made applicable to the territory the English Copyright Act of 1911. The British Colonial Government was acting under the authority of the Foreign Jurisdiction Act which had empowered the King or Queen in Parliament (as the case may be) to enact specific legislation for the governance of the colonies.

Acting under such powers, the King enacted the Tanganyika Order in Council of 1920 in which effectively imported the Common Law into Tanganyika. This was later to be continued under the Judicature and Application of laws Ordinance Act[3] which made the existing Common Law, doctrines of Equity and statutes of general application in force in the territory to continue but subject circumstances of its inhabitants. The importation of British Copyright Law in Tanganyika in 1924 through Copyright Ordinance[4] was part of British imperialist expansion into Africa. As far as Britain was concerned, the industrialization of the country had opened vast opportunities of mass production of various products. Such products were easily sold to other European Countries during the existence of the first industrial revolution. The impact of industrial revolution on the intellectual property rights was also to be felt in the colonies. Tanganyika as one of British colonies received Copyright and Patent statutes that were essentially faithful copies of English Modes, such as the Copyright Ordinance of 1924 which was modeled on the English Copyright Act of 1911. The extension of British Copyright Law to Tanganyika was for the purposes of protecting monopoly rights of British Publishers in Tanganyika, to restrict the Publishing Industry in the country and to lay the foundation for the Censorship of publication that the colonies termed seditious, blasphemous, dangerous or immoral which were contrary to the public policy.

The Copyright Act of the United Kingdom was extended to Tanganyika not because of the perceived need to protect the intellectual property of the native authors and artist but rather it was intended to protect works of metropolitan authors whose creation were being exported into the territory.[5]

               2.2.2  The Copyright Act of 1966

The Copyright Ordinance of 1924 was therefore the first Copyright Law in   Tanganyika which was applied along with other pieces of legislations formerly in force in the territory. It was five years after when the parliament of the United Republic of Tanzania repealed this law and substituted it with the Copyright Act of 1966[6]. This Act was enacted on 14^th December 1966, which in operation in operation on 1^st October 1967. This was however merely an extension of the Copyright Act of 1911 of England to Tanganyika. By virtue of the position of Tanganyika as a dependent territory under British Administration, the territory was made a party to treaties and conventions to which the United Kingdom had acceded to.

Due to certain technical administrative bottlenecks this law not effectively enforced to accomplish its intended purposes, that is, the protection of Copyright in intellectual creations. Following were the main features of the Copyright Act of 1966.[7]

(a)   It provides for the automatic protection of copyright materials.

(b)   Literary, musical and artistic works qualified for protection when sufficient efforts has been expanded to give it original character, and the work must have been written down, recorded or reduced into material form.

(c)   The term of protection of the author’s work was the period of life of the author and twenty five years after the death.

(d)   Except in case of commissioned work, the owner of the copyright is the author.

(e)   Due to different factors such as technological development, and general outcry about the Act, as well as Tanzania’s accession to various international treaties on matters of Copyright, the 1966 Copyright Act became out - modeled.

Despite of the features which the Act has, but it has also shortcomings, few of them are as follows:-

(a) It lacks Definition of Copyright

The Act did not define what copyright mean in its interpretation clause. It simply provides that copyright simply means copyright under this Act. This did not completely suffice the meaning of copyright rather it was a contradictory clause because within the Act itself, copyright was not defined.

(a)   It lacks provision of Neighboring Rights 

The Act had no provision for the protection of Neighbouring or related rights of performers, producers and broadcasters. Neighbouring rights required protection particularly the legal interests of certain persons and entries who either contribute in making works available to the public or produce subject matter which will not qualify as “work under the copyright system of all countries. So the Act was supposed to recognize neighbouring rights because their creative, financial and organizational resources are necessary to make recorded sound available ton the public.[8]

Failure of the Act to recognize neighbouring rights, it simply means that the rights of all those who in one way or another has contributed to the work were not acquire protection since they could no be able to enforce their rights or remedies for infringement or violation of their rights in general, similar to those available to owners of copyright. So copyright legislation, as one of the means of promoting, enriching and disseminating national cultural heritage for the countries development, should provide for protection no only of the creators of the intellectual works, but also those who help in dissemination of those works.[9]

(b)  The Act has insufficient terms of protection

The Act did not provide sufficient term of protection because the one provided was below the minimum protection provided in International Conventions or Treaties.[10] The provision of section 4(2) of the Copyright Act[11] provides for the maximum protection of the authors work to be life time and 25 years after his/her death. The prescribed time was not enough as it may sometimes discourage intellectual creativity. Though the copyright must reach a time to lapse so that it enters into the public domain so that the public at large can benefit from creativity. Despite of this rationale, still the time of 25 years after the death of an author is still small for the authors’ successor to benefit economically from exploitation of the work.[12]

In countries, which are party to the Berne Convention, including Tanzania, the duration of copyright provided for by national law should, as a general rule, be during the life of thee author and not less than fifty years after his death. The term of fifty years is enough for the successors, so that after that also the nation can be in a position to utilize the work, otherwise the work will be of no importance.

(c)   The Act lacks criminal sanctions and penalties

The 1966 Copyright Act did not provide for criminal sanctions and penalties. The principle function of criminal proceedings is to punish the offenders. The Act though it provides for the fines to an infringer of the copyright, but these fines which are normally collected by the court they did not reach to an aggrieved person or a victim of infringement, that is the copyright owner.

(d)  The Act lacks protection of folklore

This is the other inherent shortcoming of the Act. The Act did contain the provision for the protection of the folklore.

               2.2.3         The Copyright Neighbouring Act [CAP 218 R.E 2002]

Parliament in 2001 passed the Copyright Act. This replaced the 1966 Copyright Act. The Act came into effect in 2003. It provides specifically for administrative and enforcement structures and mechanisms for copyright and related rights.  The salient features of the Act include;

a)   The creation of the Tanzania Copyright Board, which is charged with the overall administration and enforcement of copyright ad related rights in Tanzania.

b)      The provision for both civil remedies and criminal sanctions for copyright infringement

c)      The specific provision for Anton pillar orders

d)      The introduction of the anti piracy security device

e)      The appointment of copyright inspectors and special prosecutors to deal with copyright infringement cases

The Act goes further by making it illegal for one to engage in activities that are likely to encourage counterfeiting and piracy such as circumvention of technological devices used to protect copyright rights or the removal of rights management systems.  The Act prohibits the sale of audio or audio-visual works without the anti piracy security device. This provision is intended to help in the identification of works.  The maximum fine payable under the Act is Tshs. 8,000,000/= and a maximum jail term of 10 years.

               2.3 Copyright in other jurisdictions

The Copyright society of Malawi (COSOMA) the collective management of copyright inn Malawi, for example, was establish as a parastatal organization in 1992 in accordance with section 41 of the Copyright Act, 1989. The main objectives of COSOMA are first, to promote and protect the interests of owners of copyright and interest and related material rights and, secondly, to collect and distribute royalties which accrue to owners of works from use of their works. COSOMA had membership of nearly 1000 authors and composers and dose to 10,000 works have been registered for protection.[13]

Through reciprocal representation agreement with sister and Malawi accession to international copyright conventions, the repertoire under its protection is large. In Malawi, COSOMA enabled the author to implement and enforce his rights. COSOMA acts as a link between creators, publishers and producers of sound recording on the one hand and various types of users of their works on the other hand. COSOMA ensures that the authors are adequately remunerated for use of their works.

COSOMA also plays an important role in implementing and enforcing the economic rights of authors at International level. Section 55 of the Copyright Act, 1989[14], extends the application of the Act to works which are created in a country which is a party to a copyright treaty or convention to which Malawi is also a party and which grants reciprocal provisions. Malawi is a member of both the Berne Convention, which is administered by WIPO, and Universal Copyright Convention which is administered by UNESCO.

In Zanzibar, administration of Copyright was started in 1921 by extension of English Copyright Act of 1911 to Zanzibar. The Act was extended to Zanzibar by the Order in Council of 1924, which also extended a number of other imperial enactments, which were of general application. The current copyright law in Zanzibar generally protects original intellectual creators in literary, artistic and scientific domain.[15] The Law goes further to specifically outline protects value-added service to the works, as derivative works are also protected under section 4.

In addition to Copyright, the law under section 6 vests unto the copyright owner exclusive economic right. Under this right, the owner is allowed to do a number of things to the works which gives rise to some economic gain. The owner is also vested with moral rights as elaborated under section 7. despite the fact the legal regime for copyright in Zanzibar is almost a century old, yet little can be can be said on the enforcement aspect.[16] There are a number of reasons for this anomaly.

Notably among them are cultural background, poor infrastructure for publishing, recording and distribution of works. Lack of awareness among enforcement authorities is another major setback. On the foregoing reasons, administration of copyright sounds as a new thing in Zanzibar and therefore change of attitude and practice is necessary.[17]

CHAPTER ONE

CHAPTER TWO

CHAPTER THREE

CHAPTER FOUR

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[1]     Section 4 of the Copyright and Neighbouring Act [Cap 218 R.E 2002]

[2]     Peter C. Bakilana, “The Journalist” Volume No.9 Nov.-Dec. 2001

[3]     No. 57 of 1961

[4]     Cap 128

[5]     Peter C. Bakilana op. cit

[6]     Act no. 61 of 1966

[7]     Ibid

[8]     Bakilana op.cit

[9]     Bakilana op cit

[10]   Ibid

[11]   1966 Act no. 61

[12]   Tanzania acceded to the Berne Convention on 25^th July, 1994

[13]   Chavula W.S, “Economic Aspect of collective management of copyright in Malawi” Seminar paper held in Zanzibar August, 2002.

[14]   Malawi Copy Act, 1989.

[15]   Section 3 (1) of the Copyright Act, No. 14 of 2003-Zanzibar.

[16]   Sharrif Othman M. “Current Status of Copyright and protection in Zanzibar, seminar paper presented in Zanzibar August 2002

[17]   Ibid.