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

CHAPTER THREE

ANALYSIS OF FINDINGS ON COPYRIGHT PROTECTION AGAINST PIRACY IN MUSIC INDUSTRY IN TANZANIA

               3.0 Introduction

This chapter deals with presentation, analysis and interpretation of what has been observed, experienced and extracted on the findings of the study. It highlights on examining the law relating to copyright protection against piracy in music industry in Tanzania. It contains data collected in the field. The findings are presented based on the research questions presented in Chapter One.

In this research report quantitative data analysis method was employed. Quantitative data analysis entails factual and logical interpretation, comparison and explanation of findings from data obtained.

               3.1 Legal limitation on implementation of Copyright Law in Tanzania

It is generally known that once the law is brought into practice it usually bring the positive an or the negative of it which creates lacunae which is need to be filled for the smooth operation of the law. Copyright Laws of Tanzania have lot of lacunae. Few lacunae may be explored here, which if will be filled will create a smooth operation and achieve what have been intended for the fight against piracy in Tanzania.

( i ) The Copyright and Neighbouring Rights Act [Cap 218 R.E 2002]

The Act under section 9 and 18 provides for the Economic Rights and Transfer of Rights. These provision had specifically provide for those rights (Economic Rights) of the owner and the transfer of rights, but the sections are silent on the amount or percentage of royalty which the owner is entitled owing tot the use of the transferee and the benefits that he makes for using the work in commercial gain or advantage. This arrangement is normally left to the copyrights owner and the person he entered with in an arrangement to determine the amount something which may lead to detrimental of copyrights owners right. Copyright owners may opt to accept any payment as he may not be economically well of. When one look the law of Malawi[1] it had provides specifically that the owner is entitled to not less than 10% of the retail price of each copy that the transferee sales. The users in Tanzania use this loophole and the vacuum in our law to exploit the owners’ rights.

The Act under section 42(1) (a) and (b) provides for maximum fines and sentence. The section gives too much discretion to the magistrates to the extent that the provisions are abused. The law should provide for the minimum fines to limit the magistrates to give fines that do not prevent offenders to continue pirating copyrighted works. Good example is the case of State Vs. Khalfan abdallah[2] which was decided by the Resident Court of Kisutu. In this case the accused was found with possession of one truck load of pirated cassettes and CDs. After found guilty was punished to pay a fine of Tshs. 200,000. The punishment in one way or another may not meet the objective of deterrent of the offence.

But worse enough the Act do not provides as to what should be done as the final disposal of the pirated copies. Section 36 of the Act is to the effect that the infringed works should be destroyed, but sometimes after the accused found guilty the infringed copies may be returned to him or her as what was happened in the case of Khalfan Abdallah which was cited above.

The Act also does provide specifically the role of police officer in the provision of section 42. When I interviewed Mr Yustus Mkinga[3] concerning the involvement of police officers in preventing piracy in Tanzania, he said that it is impossible to enforce criminal offence/sections in the absence of police officers’ assistance.

Most of police officers have the mentality of not feeling that it is not their duty to deal with Copyright Law as it is not specifically provided in the Copyright statutes. COSOTA is know passing through out the country and conduct seminars by various stockholders including police officers to provides education for copyright protections and the role that police officers may play in the fight against piracy.

COSOTA should also be given absolute power to register users of copyright works like such as hotels, bars, MCs, broadcasting stations et cetera to make them easier to pay for the royalties to the copyright owners for their creativity. This is very important as it will make for COSOTA to collect royalties from users of artistic works especially music.

(ii) Copyright Licensing of Public Performances and Broadcasting Regulations, 2003

COSOTA also faces a lot of problems in implementations of this Act, because the tariffs provided for under the second schedule are not clear. Inconveniences do usually occurred because the hotels in Tanzania are not specifically categories. The law should be structured in such a way that the hotels should categories so as the have clear tariffs to be imposed in particular hotel so as to have no complaints which some of the users may refuse to pay for the tariffs. Usually the collection of the royalties and estimation of tariffs in a particular hotel generally base on the wisdom of the COSOTA field officers. Problems may also come after collection of the royalties when it comes to the issue of distributions of those royalties so collected to the artists. The rules are not clearly provided for under the second schedule. The entitlement of those who had participated in the accomplishment of the work is not clearly provided for.

(iii) The Tanzania Communications Regulatory Authority Act of 2004

This Act provides for the licensing of broadcasting stations. But the Act did not provide for the copyright rights when broadcasting stations uses the artistic works especially music. Broadcasting stations depends much on artistic work in the performance of their daily activities. Some provisions should be included in the Act to cutter for piracy and provides for the mandatory requirement of the broadcasting stations to comply with the copyright law and its regulations so as the fight against made easier.

            (iv) The Fair Trade Practice Act of 1994  

The Fair Trade Act among other things provides for fair competitions among trade competitors. It should also provides for the provisions which requirement all the manufacturers and distributors of music art to comply with all regulations related to the Act.

               3.2 How Tanzania faces problems practically on implementations of Copyright Law

Basically COSOTA had been established specifically to play two roles, one as a Copyright Office with a core functions of administering the Copyright Law and fight against piracy. The second role which COSOTA play is the role of Collective Management Organization with a core function of administering rights of the authors and composers.[4]

 

COSOTA in the fight against piracy is constrained by lack of capacity in terms of human resources. It has only three licensing officers, two documentation officers, two advocates, one field inspector, few field officers who are working temporary[5], the Executive Secretary and few supporting staffs. The mere seize of staffing creates a situation whereby a fight against piracy is an uphill tasks.[6]

There is a need to increase the capacity of COSOTA in relation of the capacity to perform its core functions. There are only licensing officer in Dodoma, Mwanza, and Kilimanjaro which makes most of its functions to be performed at the main office Dar-es-Salaam where there are very few staffs. There is no any by law whatsoever which provide a clause for delegation of authority of licensing and registration of copyrighted work to government institutions at the district level.

In the area of collection of royalties COSOTA had not performed well. The situations have left entertainment and broadcasting organizations enjoy free rights by not paying royalties for public performance. For the year 2007/2008, COSOTA has managed to collect Tshs 113,275,500 million in royalties for music and films.[7] All the hotels, disco places, airlines, radio stations, TV stations, bar and other public places enjoy the negative impact of the insufficiency of COSOTA.[8] Moreover, COSOTA has managed to mediate 25 cases on the copyright.

Something which makes a fight against piracy in music industry to be much harder is also the failure of COSOTA to extend Working Corporation with all music stakeholders such as Fair Commission.[9] This commission is empowered by the Fair Competition Act[10] to lead the fight against importation or selling of the counterfeit products in Tanzania. Since music product are sold everywhere in Tanzania, the fight against piracy could have been made simple if other stakeholders like the commission could have been made part in the war against it.

Piracy in Tanzania is still the major problem and the practice of law by COSOTA has not been performed to the satisfaction of combating piracy. The collective of royalties is still limited as compared to the other copyright societies like that of Malawi. The fights became harder as the public at large has no sufficient education and understand the implication on both moral and legal perspective of pirating copyrighted work.

               3.3 How ignorance affect the war against piracy in Tanzania

Most of the South African countries including Tanzania are poor. Poverty has become a major problem in most societies when comes the issue of fighting against a certain problem. Poverty generates various problems like poor education, healthy services, lack of job opportunities et cetera.

Most of the people in Tanzania do not have awareness on importance of abiding to the Copyright Law due lack of education which may probably be caused by poverty. Most of the people do not know whether there is any problem in copying and what could be the impact of the same to the artist individually and to the government generally. Most of the people generally regards ownership of copyrighted work to be on physical property and on intellectual property as the law requires. If one buys a tape for example, he consider it as his own property and thought that he is free to make many copies as he want out of the copy he has so far bought.

The problem of the past situation however can not be compared to the present situation whereby some people had started to become aware of the Copyright Law. Some musicians have of recent been making efforts to impress upon the government to gear up its law administering and enforcing machinery to protect their works from piracy. Musicians have been in the forefront in this regard. The business community is also aware of the requirement to adhere to copyright law. Due to inadequacies inherent within the legal system in connection with Copyright rights matters, the business community is openly involved in pirated Copyrighted goods. People are usually involved in creation of works of art, such as literally works of art, folklore and other cultural productions and events, in most cases these are usually done without awareness of laws protecting the rights on such creations.[11]

One may ask himself as to why despite the fact that the Copyright Law are there but piracy is still increasing in the country? The Copyright Law as for now is over seven years old but it true piracy in music industry is still continues.

Illegal duplications and selling of music works has left composers to die in poverty.[12] When I asked Mr John Kitime[13] about why the fight against piracy seems to be inevitable? He said that COSOTA should bring into focus new strategies to fight for the piracy as the law themselves can do nothing without the strong enforcers to implement them together with the new strategies. He added that also poverty to most artists becomes a contributing factor as to why the artists in Tanzania are losing their rights. He observed that at first instance the artist before he becomes famous he may sell all his legal right to realize the income and also to become famous, which they used to refer it is Swahili term as ‘kutoka’.

Mr Mkinga[14] while responding to my question during the interview I conducted with him, as to why the piracy still persists? He said, piracy like other crimes is normally committed in hiding, and there is a great secret between the pirated copies manufacturers and the suppliers despites the fact they are sold in open market by the people commonly known as the “machinga”. To arrest them you need to have the information.

Other people during the interview, when asked as to why the fight against piracy seems to be a night mare which is difficult to be achieved, they said, the public at large do not have sufficient education concerning the law that protect musicians’ work and generally the evils that piracy may bring.

Despite the observations which were made during the interview, another significant observation which makes the fight against piracy to be impossible to overcome is lack of awareness among enforcement authorities. Majority of police officers do not know the procedures for enforcing Copyright Law and even the law itself. It has even happened musician took a person pirating music cassettes and CDs to the police stations but the police officers sometimes may ask them (musician) what is wrong for him (infringer) to copy the music.[15]

Worse enough even a big number of court officials do not know the court which is empowered to hear copyright cases i.e. the District Court as per section 4 of the Copyright and Neighbouring Right Act[16]. The good example is the case of Malaika vs. Ally Kiba[17] whereby Ally Kiba was alleged of selling the verses of the Cinderela song and record it as his. This copyright case was opened at Kariakoo Primary Court instead of Kisutu District Court. All of this is due to lack of training required to cause awareness of intellectual property laws. Considering that until recently intellectual property law was not formally taught in the country and even in the Universities is taken just as an option subject. But some Universities, like the Open University of Dar-es Salaam have as for now introduced the aspect of IP subject in their curriculum.

Through out the discussion above it has been observed that the administration of Copyright sounds a new thing in Tanzania, therefore there is a need of the attitude and practice to be changed in order the fight against piracy to be made easier.

               3.4 The necessity of the musician to be registered

COSOTA has played a very big work in registering the number of artists. The musician who had been registered until recently is about 1250 all over the country[18] and 8,894 registered works. The numbers of the registered members are however not comparable with other countries like Malawi which has over 3500 registered local authors and composers and over 17,000 registered works.[19] The research found that musicians have limited awareness on the existence of COSOTA, its roles and functions and benefits for the musicians to be registered with it. They did not understand the importance of registrations of their works until their work gets stolen. Despite the fact that the ownership of copyrighted work becomes due by the mere fact of creation but registration is a premafacie evidence of ownership.

The other factor which hinders the musician to register their work is expensiveness in terms of payment and transportations fee. Transportations fee cheap in because COSOTA is still at its infancy stage of development and its offices did not spread all over the country. Registrations are done at the main office at Dar-es-Salaam. This centralization of the entire process of registration denies musicians and other artists their basic rights of protecting their works and receiving royalties so far collected.[20]

               3.5 The fight of the artist against Piracy

Piracy is the theft of one’s intellectual property, particularly in the music industry. Experts have highlighted that one major snag to development of the music industry is piracy. It has ripped off many producers, artists, marketers and stakeholders. It has prevented the music industry from rapid financial growth and advancing in major areas, due to low income from their intellectual material.

A report by the COSOTA in Tanzania (2008), estimated the total annual loss of the content industries (Music) within the nation to be well over Tshs. 100,000,000,000. This is a great loss, no doubt. It suggests that, there is an urgent need to organize marketing and distribution strategy internationally to eliminate piracy and repatriate money and efforts back into Tanzania.[21]

Among the strategies which should be put in place in order to win the war of the fight against anti piracy is the effective participation of all the members. The fact which is reality is that the musicians and artists generally are disorganized. There is no organization which units them all. Associations that exist are weak hence they can not provide the necessary support to COSOTA. In order to accommodate good force for the fight against piracy, musicians and artists in general need to organize themselves in associations and or networks. Such organizations will be good partners with COSOTA and at the same time they would facilitate advocacy issues affecting the industry. The association to day include: Tanzania Music Network (TMN), Chama cha Muziki wa Dansi Tanzania (CHAMUDATA), Tanzania Urban Musicians Associations (TUMA), Tanzania Folk Music Development Association (TAFOMUDEA), Tanzania Taarabu music Association (TTA), Tanzania Disco Music Association (TDMA) Dar Choir Associations (DCA), Umoja of Tanzania Musicians (UTAMU) and Sherehe Arts Association (SAA). The National Arts Council (BASATA) has given the mandate to register these organizations.

The law enforcers like the police officers have not been educated enough to feel that piracy is also crime like any other crime they usually deal with. It is only a smaller group of police officers who have the knowledge of this fact. Some of the police officers have acquired the knowledge in the Universities, and some during seminars conducted by COSOTA especially when they want to invade and arrests infringers upon receiving information. Mr Yustus Mkinga[22] had said that it is in their plan and they have stated to provide educations to a great numbers of police officers as they will help much in the war against piracy upon having sufficient knowledge of infringed material and how to handle the case. On top of that they are now talking to Regional Police Commanders (RPC) so as to have to at least few police officers in every police station who are conversant with copyright law. However he added that COSOTA is now like a child baby who is now starting to learn how to walk. It shall soon become strong and finance is major problem they society is facing as a result they fail to employ more staffs.

Mr Augen Mkami[23] when he was speaking with the Guardian with regards of the hardship in the war against piracy he had said, matters making the war against piracy more difficult are the prevailing inclination in which composers readily sell their copyright to producers or distributors for want of getting quick money. This rush of getting quick money makes the artists always be on the disadvantage positions. When the distributors or producers buy these rights, they may produce and distribute the track without the limits.

The distributor obviously ended up with an attractive goldmine due to the lack of professional knowledge on the part of the young man who had not made his hands into good money, leave alone owning one of the posh cars in this part of the world without knowing what he could earn if at all s/he can may remain with his/her sole legal right.

 CHAPTER ONE

CHAPTER TWO

CHAPTER THREE

CHAPTER FOUR

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[1]     Malawi Copyright Act No. 6 of 1989.

[2]     Case No. C. 550 Kisutu Resident Court (Unreported)

[3]     The Chief Executive Officer of Cosota

[4]     Section 47 Act No 7 of 2002

[5]     In making sure that COSOTA wanted to at least cure the problem, recently it recruited about ten students from Mzumbe University when we were doing our field research. Among our task was to collect royalties for artists and fight against piracy in Dodoma and Dar-es-Salaam.

[6]     Workshop Report Stakeholders Workshop: op cit

[7]     Budget Speech of the Minister for Trade, Commerce and Marketing Ms. Dr. Marry Nagu on August 12, 2008.

[8]     Loc cit

[9]     This is an independent Commission established under the Fair Competition Act, 2003 to promote and protect effective competition in trade and commerce and to protect consumers from unfair and misleading market conduct.

[10]   No. 8 of 2003

[11]   Workshop Report Stakeholders Report

[12]   Mr. Mseti Ryoba, Director of Administration and Personnel, Ministry of Information and Culture, when opening the Music Stakeholders Workshop in Bagamoyo, March 13, 2003

[13]   A famous musician

[14]   Chief Executive Officer of Cosota.

[15]   Waziri Ally: Former Senior Musician with Kilimanjaro Band “Wana Njenje”  Speaking on 5 Connect at TV Programme on EATV, 12/06/2008

[16]   [CAP 218 R.E 2002]

[17]   Case No. 33/2007 Kariakoo Primary Court (Unreported)

[18]   Mr Yustus Mkinga Chief Executive Officer

[19]   Mukhondia, M, The Music Industry in Malawi: Its Growth and Constraints.

[20]   Report on Music Industry Landscape and Regulatory System in Tanzania.

[21]   Mr Yustus Mkinga , CEO COSOTA During interview on 25^th August, 2009

[22]   CEO of COSOTA During interview on 25^th October, 2009

[23]   An Advocate with Sungwi Advocates speaking on the Guardian on December, 31, 2007