Development of Science and Technology and Protection of Artistic Works in Tanzania Prepared By Asherry Magalla And Marry Alfred Digitally signed by Asherry Magalla DN: cn=Asherry Magalla gn=Asherry Magalla c=Tanzania, United Republic Of l=TZ
[email protected] Reason: I am the author of this document Location: Dar Es Salaam-Tanzania Date: 2015-10-26 12:28+03:00
LL.B Degree Holder at the University of Iringa (Formerly known as Tumaini University Iringa University College) 20092012, 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,
[email protected] LL.B Degree Holder at the University of Iringa (Formerly known as Tumaini University Iringa University College) 20132014
i
Copyright © 2015 Asherry Magalla. All rights reserved. No part of this publication may be reproduced or transmitted
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ii
Table of contents Table of contents ...............................................................................................................ii Chapter One ..................................................................................................................... 1 General Overview of Artistic Works Protection in Tanzania ....................................... 1 1.1 Introduction .............................................................................................................. 1 1.2 Background of the Problem .................................................................................. 6 1.3 What is Copyright protection? ............................................................................ 14 1.4. Conclusion ............................................................................................................ 34 Chapter Two .................................................................................................................... 36 The Aspect of the Legal Protection of Artistic Works ................................................. 36 2.1 Introduction ............................................................................................................ 36 2.2 The Meaning and Contents of Artistic Works .................................................... 37 2.3 Historical development of the legal protection of artistic works. .................. 42 2.4 The rationale for copyright protection in artistic works. .................................. 55 2.5 General Overview on the Protection of Artistic Works .................................... 61 2.6 Conclusion ............................................................................................................. 69 Chapter Three ................................................................................................................. 71 An Assessment of Copyright Protection on Artistic Works in Tanzania As Compared To India and United Kingdom .................................................................. 71 3.1 Introduction ............................................................................................................ 71 3.1 Copyright Infringement in Artistic Works: How does it occur? ....................... 72 3.2 Laws combating Copyrights Infringement in Artistic works in Tanzania ....... 80 3.3 Institutional and other Practical Challenges on Copyright Protection in Artistic Works. ............................................................................................................... 97 3.3.1 Poor Enforcement Mechanism .................................................................... 97 3.3.2 Lack of Awareness on the Legal Framework on Copyright Protection. .................................................................................................................................. 101 3.3.3 Weaknesses on COSOTA............................................................................. 104 ii
3.4 Copyright Protection of Artistic Works in United Kingdom as Compare to Tanzania...................................................................................................................... 107 3.5 Copyright enforcement in the United Kingdom ............................................ 123 3.6 Copyright protection in cyberspace in the United Kingdom. ..................... 126 3.7 Copyright Protection in Artistic Works in India ................................................ 133 3.8 Copyright enforcement in artistic works in India. ........................................... 139 3.9 Copyright protection in cyberspace in India. ................................................ 142 In terms of Infringements and Legal Sanctions. Apart from other legal sanctions such as seizure of the infringed copies, protection of technological measures facilitating circumvention, and protection of Rights Management Information, the Indian Copyright Act provides that; ..................................... 150 3.10 Lessons that Tanzania can draw from other Jurisdictions ........................... 152 3.11 Tanzania towards efficient legal framework against infringement of artistic works. ........................................................................................................................... 158 3.12 Conclusion ......................................................................................................... 163 Chapter Four .................................................................................................................. 165 Remarks and the Way Forward Towards Digital Challenges in Protection of Artist Works in Tanzania .......................................................................................................... 165 4.1 Introduction .......................................................................................................... 165 4.2.1 Recommendations to the Judiciary .......................................................... 166 4.2.2 Recommendations to the General Public ............................................... 167 4.2.3 Recommendations to the Bar .................................................................... 170 4.2.4 Recommendations to the Policy Makers ................................................. 172 4.2.5 Recommendations to the law makers ..................................................... 172 4.1.6 Recommendation to the Copyright Society of Tanzania (COSOTA) .. 174 4.2 Conclusion ........................................................................................................... 176 BIBLIOGRAPHY ............................................................................................................... 186 TEXT BOOKS................................................................................................................. 186 LIST OF CASES ................................................................................................................. 195 iii
ARTICLES AND JOURNALS ......................................................................................... 197 WORLD WEB ADDRESSES .......................................................................................... 200
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Chapter One General Overview of Artistic Works Protection in Tanzania 1.1 Introduction Copyright protection in artistic works gives the creators incentives in the form of recognition of their
efforts
economic
and
providing
rewards.
them with
Through
fair
copyright
protection, creators of artistic works are assured that their works can be disseminated without fear of unauthorized copying or piracy. This in turn increases access to and enhances the enjoyment
of,
among
1
other
things,
knowledge and entertainment all over the world.1 Efforts made by authors and creators of artistic works will be worthless if their productive works of mind are never to be protected. Their works are worth of millions hence efficient legal framework for protecting their works is very important in order to deal with all types of infringements as technological developments have made the copyrighted material easier to access and reproduce and even more difficult to protect2.
EU Copyright Office, EU Copyright Office Homepage, http://www.eucopyright.com/en/why-protect-copyright (accessed on 6th July 2014 at 14:45 hrs) 2 Mambi A, J. ICT LAW BOOK: A Source Book for Information & Communication Technologies and Cyber Law in Tanzania 1
2
This paper aims to give an analysis on the infringement of artistic works in Tanzania, legal protection of artistic works in Tanzania, lessons for Tanzania from the protection of artistic works in India and the United Kingdom and things that Tanzania may do so as to have efficient legal framework on the protection of artistic works. Time, creativity, investment needed for the creating artistic works is often huge, and their protection against unauthorized use is of crucial importance. Efficient legal framework for legal protection is needed against their
& East Africa Community, (Dar es Salaam: Mkuki Na Nyota Publishers Ltd, 2010), at page 197.
3
misuse, misappropriation and infringement of artistic works that are done online or offline. The
authors
opted
to
analyze the
legal
framework on the legal protection of computer programs in India and the United Kingdom because of the significant development of Information and Communication Technology and
Copyright
Law
in
both
countries.
Furthermore, the United Kingdom is among of the first countries that adopted Intellectual Property Legal framework that protect artistic works
from
unauthorized
use,
since
15th
Century. Tanzania copied many of her laws from India; this is explained only by tracing how British Colonialists introduced copyright laws in
4
Tanzania exclusively in 1920s. Hence Tanzania has to learn from the legal protection of artistic works in India and the United Kingdom. The extent of protection of artistic works in India, the United Kingdom and Tanzania is going to be analyzed, lessons that Tanzania can learn from the legal protection of artistic works in India and the United Kingdom and other
things
that
Tanzania
may
towards
efficient way of protecting artistic works are discussed in this paper. This paper consists of Four (IV) parts.
5
1.2 Background of the Problem Copyright law development in Tanzania has emanated
out
of
the
womb
of
English
Common Law system, whereby in the 15th century there was a development of printing press in the United Kingdom and all works of authors belonged to the printers hence they decided to establish the British Statute of Anne in 1709, as the first copyright statute3. Initially copyright law only applied to the copying of books.4 The Statute of Anne5 Bainbridge, D.I., Intellectual Property, 8Th Edition, (Pearson Education Limited, Edinburgh Gate: England, 2010), at page 33-36 4 Ibid, Bainbridge at page 34. 5 The first copyright statute in the Kingdom of Great Britain (thus the United Kingdom) named after Anne, Queen of Great Britain, during her reign. The Act was enacted in 1709 and entered into force on 10 April 1710 and it is 3
6
established exclusive rights, and also
the
statute provided for the terms and conditions of protection thus the time of ownership of copyright limited to 28 years from the date of production.6 Today national copyright laws have
been
standardised
to
conform
the
International and Regional Agreements such as the 1886 Berne Convention, WIPO Copyright Treaty, TRIPS Agreement, ARIPO, and European Copyright Directives. Moreover, in Tanzania the concept of copyright law came from Colonial
generally considered to be the first fully-fledged copyright statute. See Bainbridge, at page 33 -36. 6 H. Lubengo, A Country Report About Intellectual Property in Tanzania, (Accessed on 27 June, 2014).
7
Administration in 1922. Later on the colonialists established the Copyright Ordinance7. After
independence
of
Tanganyika,
the
copyright system did not change although the Copyright Ordinance Cap 218 was repealed in 1966 by Copyright Act No. 61 of 1966. In 1999, Tanzania witnessed reform in Copyright arena whereby Copyright Legislation was enacted by the Parliament of Tanzania for the purpose of protect the owners right, but the Act faced with many challenges such as lack of express provision protecting film works against cyber piracy8 as well as absence of legal mechanisms Cap 218 of 1924. Unauthorised copying of a copyrighted works in the internet. 7 8
8
that may be used to engulf like cyber piracy in Tanzania. Tanzania
has
witnessed
revolution
of
information technology from 19999 whereby many changes have taken place in the copyright field, opening new horizons for artists and others to use the internet with confidence to create, distribute and control the use of their works within the digital environment10. There is no shadow of doubt that due to the rapid development of digital technology, the World Web has now become a new trend of The copyright and Neighbouring Rights Act, Cap 218 came into existence on which has brought changes into protection of copyrightable works. 10 Mambi A, J. ICT LAW BOOK: A Source Book for Information & Communication Technologies and Cyber Law in Tanzania & East Africa Community, (Dar es Salaam: Mkuki Na Nyota Publishers Ltd, 2010), at page 198 9
9
intellectual property. The internet does not recognise
boundaries
as
an
electronic
commerce allows products to be sold online while protection of the intellectual property is territorial,
under
digital
technology
the
copyrights of artistic work can be infringed anywhere.11 Tanzania country is among those countries who failed to provide protection to the victims of infringement of copyright through internet. In essence, the software allows very large audio files to be compressed file which can be burnt into a blank Compact Disc and can be Ibid, Mambi A, J. ICT LAW BOOK: A Source Book for Information & Communication Technologies and Cyber Law in Tanzania & East Africa Community, (Dar es Salaam: Mkuki Na Nyota Publishers Ltd, 2010), at page 198 11
10
emailed to friends, posted on a website hence the occurrence of infringement technically known as cyber piracy.12 The developments of internet technology have a great impact towards the traditional methods of film distribution and therefore influence unfairly infringing of the copyright of films owners. In developing countries like Tanzania there are some of the people who have been using this technology to infringe other people‟s copyrighted works irrespective of the existing copyright laws which do not seems to clearly
Ibid, Mambi A, J. ICT LAW BOOK: A Source Book for Information & Communication Technologies and Cyber Law in Tanzania & East Africa Community, (Dar es Salaam: Mkuki Na Nyota Publishers Ltd, 2010), at page 198 12
11
address digital infringement of copyrighted work13. Despite the existence of The Copyright and Neighbouring Rights Act14, the law which governs copyright matters in Tanzania, yet the copyright owners have been unable to defend their rights. This has been due to inadequacy in the part of the same law to unequivocally provide for cyber piracy in as far as films are concerned. Hence, it is the sole purpose of the present paper to asses to what extent the Copyright and Neighbouring Rights Act covers
13 14
Ibid, Mambi, note 7, at page 205. Cap 218 of 1999, R.E 2002
12
the area of cyber piracy taking the film industry in Tanzania. Many
people
in
Tanzania
do
not
have
knowledge on the rights of authors of artistic works hence infringe copyright rights without their knowledge. It is hence on this background that this research comes into play to assess the level of protection afforded by the law on copyright infringement in Tanzania. 1.3 What is Copyright protection? Holland C. J., et al15, said that copyright is any original work of authorship that fixed in a tangible form of expression and entitled to Holland C. J., et al, Intellectual Property: Patent Trade Marks, Copyrights and Trade Secrets, Entrepreneur Media Inc 2007, at page 217. 15
13
copyright protection. A copyright will protect many types of works including: musical works and accompanying lyrics, dramatic works such as plays and audio visual works such as motion pictures. The author has clearly stated that the original work of the author is protected by copyright but he does not state on the issue of compensation in case their rights has been infringed, thus the study shows the need of compensation for the victims of infringement of copyright through internet. Mambi,16 states that the impacts of digital technology
and
the
development
of
e-
Mambi A, J. ICT LAW BOOK: A Source Book for Information & Communication Technologies and Cyber Law in Tanzania 16
14
commerce can be observed from intellectual property rights point out of view whereby copyright especially musical works are now more vulnerable to infringement. However the writer fails to provides a solution for those infringements
especially
through
internet
infringement, thus the paper provide such solution of infringement of copyright through the internet. Bainbridge,17 admits that, the artistic work category in copyright law is a diverse one and includes several different types of works and it
& East Africa Community, (Dar es Salaam: Mkuki Na Nyota Publishers Ltd, 2010), at page 205. 17 Bainbridge, D., Intellectual Property, 8Th Edition, (Pearson Education Limited, Edinburgh Gate: England, 2010), at page 247 – 305.
15
causes special problems because it overlaps with design law and the relationship between copyright and design law is not at all clearcut18. Among other relevant information, the author has provided for the meaning of artistic works, works that are covered in the category of artistic works, historical development of copyright, enforcement copyright in artistic works, rationale for copyright protection in artistic works and the protection of artistic works in general. The author did not show how developing countries could benefit from the way some developed countries like the United Kingdom 18
Ibid, Mambi at page 58.
16
keeps up on the copyright protection on artistic works, hence
the study analyzes all
the
aforementioned matters and other relevant details from the book so as to bring up relevant and important things that could be learnt from developing strengthening
countries their
like legal
Tanzania
for
framework
on
copyright protection of artistic works. Magalla,19 says that, copyright protection in most of the Africa Societies began as soon as the existence of Colonialists in Africa who were believed to bring civilization in Africa.20 The author of this article has provided the history of Magalla, A., The History of the Concept of Copyright, Tumaini University, Iringa, Tanzania, 2013. 20 Ibid, Magalla, at page 25. 19
17
protection of copyright law in Tanzania and world at large but did not show how Tanzania and other African countries could learn from developed countries on copyright protection so as to strengthen their copyright laws. The study provide the lessons that African countries especially Tanzania could learn from the developed countries on the protection of copyright law and especially on artistic works for strengthening copyright protection against infringements. Magalla,21
upon
explaining
the
historical
development of copyright law in Tanzania, he Magalla, A., The History of Copyright Law in Tanzania: From Tanganyika to Tanzania – Where, When and How., Iringa, Tanzania, 2013. 21
18
admits that, there is no written evidence that during the ancient societies in Tanzania there was copyright protection22. The history of protection of copyright law in Tanzania is well provided in this article whereby the author shows the historical development of protection of copyright law in Tanzania before colonial era,
under
the
colonial
rule
and
after
independence. The author did not show solutions for strengthening the copyright law especially on artistic works and keep that protection in records so that the coming generations could benefit from efforts of today‟s generation. The study addresses the 22
Ibid, Magalla, at page 3.
19
way forward toward efficient legal framework on the protection of artistic works in Tanzania while keeping records for the benefit of the coming generations. Lloyd,23 has provided relevant information in relation to copyright protection on artistic works, explaining a number of artistic works that are protected under the umbrella of copyright law
including
architecture
works,
films,
photographs. The author has also explained how to enforce rights of author/creator of artistic works. The author‟s work is much based on the context of the United Kingdom which is
Lloyd I., Information Technology Law, 6th Edition, Oxford University Press: New York, 2011 23
20
somehow different from developing countries like Tanzania keeping in mind that the United Kingdom is way much developed and has started enforcing copyright laws earlier than Tanzania. The study analyzes the copyright protection on artistic works in the context of Tanzania while taking important lessons from the way United Kingdom developed copyright law on protection of artistic works. Berkeley
Law,24
says
that,
a
successful
copyright “ecosystem” should nurture a diverse range of works, by that it encourage creators to make and disseminate new works of
University of Carolina, Berkeley Law, Berkeley Technology Law Journal [Vol. 25:0000], 2010. 24
21
authorship
and
support
readers,
listeners,
viewers, and other users in experiencing those works25. Also, Copyright exceptions for libraries, archives, and museums should be updated to better
enable
legitimate
uses
preservation in
and
light
of
other ongoing
technological change.26 All in all, the author has provided in general the guiding principles and
recommendations
on
copyright
protection. The study provides valuable specific and general recommendations for protection of
artistic
works
against
infringements.
25 26
Ibid Berkeley Law at Page 6 Ibid Berkeley Law at Page 56
22
all
types
of
Magalla,27 admits that, Tanzania is one among the countries which is highly affected by copyright infringement through the internet as the Copyright and Neighbouring Rights Act, Cap 218 R.E 2002 does not have clear and specific
provisions
for
management
and
control of online piracy and other related illegal activities.28 The author has explained in his article on the infringement of copyright in digital era and remedies available to the copyright owners once their rights have been infringed on the internet.
Magalla A., What Are the Problems of Protection of Copyright On the Internet? What Are the Legal Remedies For Solving the Problem? Tumaini University, Iringa University College, Iringa, Tanzania 2013. 28 Ibid, Magalla, at page 46. 27
23
The authors join hands with the author showing how Tanzania is affected by infringement of copyright law on the internet. Moreover the authors recommends to the Tanzanian policy and law makers on the importance of the copyright
laws
and
policies
concerning
infringement on the digital environment. Breeding,29 has explained on the reasons as to why
one has
to pay for the online sharing
services for getting music quicker and easier, also it save time for the busy peoples and that by paying for access to music one ensures that the artist get paid for their work. The author
Breeding, A.,“The Music Internet Untangled”, Watetown MA, Giant Path Publishing, 2004. 29
24
pays more attention on payment but fails to look on the compensation for the infringement of artist works. Therefore this research study bases on adequate compensation to the artistic works as their rights are infringed through internet. Magalla,30 has examined ample of activities that amount to the infringement of copyright law
on
the
internet.
File
swapping,
downloading, uploading, browsing, caching, mirroring, copying and pasting, scanning are among activities examined by the author. These activities may occur but it could be hard
Magalla A., Examples of Digital Copyright Infringement Activities in Tanzania, Iringa – Tanzania, 2013. 30
25
to deal with infringers due to the insufficient laws that Tanzania posses. Although the author has given these well examined examples but did not show the way forward for Tanzania to act on so as to strengthen protection of artistic works. The study addresses the way forward to Tanzania for strengthening copyright protection of artistic works on the normal environment and digital environment as well. Sharma,31 provides for activities conducted on the internet that amount to infringement of copyright vested on artistic works. The author explains
that
peer
to
peer
sharing,
Sharma V., Information Technology-Law and Practice, 3rd Edition (New Delhi: Universal Law Publishing Co.Pvt. Ltd., 2010. 31
26
downloading, uploading and the like, causes infringement of rights of the creator/author of artistic works. The author has examined all these conditions upon the context of India and the world at large, hence the study shows how infringement of artistic works on the internet occurs in Tanzanian context. Paul,32 has provided remedies available to the author
of
an
artistic
work
in
case
of
infringement of his copyright occur as per the legal framework of the United Kingdom. The author has given much detail in the context of the United Kingdom on how to get remedies if
Paul T,. E-Commerce law, Cavendish Publishing Ltd, Great Britain, 2005. 32
27
the rights of an author of artistic works occur. The study shows copyright protection of artistic works in Tanzanian context and the available remedies once copyright of the author of artistic works has been infringed. Cornish,33 says that copyright arises upon creation of the works; the question of initial ownership
is
not
complicated. In
literary,
dramatic, musical and artistically works, first ownership rests in the author or co-authors unless the exception concerning employment applies. However the writer do not trace on the education of the copyright infringers and its CORNISH W. R., Intellectual Property: Patents, Copyright, Trademarks and Allied Rights, London Sweet & Maxwell 1989, at page 317. 33
28
compensation to which extent it contributes to copyright infringement on artistic works hence the authors tend to show that in the study. The study traces on the extent of how the copyright law fails to protect the original copyright owner through the infringement on the internet. United Kingdom Intellectual Property Office34 has defined artistic works and listed artistic works that are protected under copyright law. The author of this article has also examined the area of ownership of an artistic work and the rights that subsist in their works. Since many people tend to confuse artistic works and other United Kingdom Intellectual Property Office, Copyright: Essential Reading, Concept House, Cardiff Road, Newport, NP10 8QQ, Revised: July 2011. 34
29
copyright
works,
the
study
examines
the
context of artistic works and shows exactly what artistic works are and what are not. Australian Copyright Council,35 explains that, copyright protection does not depend upon registration, publication, a copyright notice, or any other procedure as the protection is free and automatic, thus a photo is protected by copyright automatically from the moment it is taken. The author has examined on the copyright
protection
on
photographs
as
among artistic works and not conclusively to all artistic works. The study examines copyright
Australian Copyright Council, Photographers & Copyright, Information Sheet G011v16, August 2012. 35
30
protection in all artistic works and specifically in Tanzanian context. Ku et al,36 say that, providing creators with economic incentives to create new works is one of the principal justifications, if not the justification, for copyright‟s expansion. The authors have explained the ways that creators of artistic works could be motivated and benefit from their works. The author has also explained on the issue of the numbers of artistic works which are increasing day after day but the authors do not go for the registration of their works. The authors have encouraged the Ku et al, Does Copyright Law Promote Creativity? An Empirical Analysis of Copyright’s Bounty, VANDERBILT LAW REVIEW [Vol. 62:6:1669], 2009. 36
31
creators of artistic works to register their works, although it is not compulsory but it surely protect
author‟s
inconveniences
rights
when
hence
no
infringement
much occurs.
Researchers agree with the author and give much detail on how to motivate the authors of artistic works and recommendations on how the authors could surely benefit from their works and escape disturbances caused by infringers of artistic works. Liebowits,37 has elaborated in his work, on digital piracy that causes significant harm to the record industries whereby people make a 37Liebowits
S., Will MP3 Downloads Annihilate the Record Industry? The Evidence So Far, University of Texas at Dallas, http://www.utdallas.edu/%20~liebowit/intprop/records.pdf, 2003.
32
file-sharing through internet. In other words the author concentrated on the important of digital piracy; however the research study confines itself on the infringement of films, photographs, architecture works, sculpture and other artistic works through the internet and the adequate compensation which was not dealt with other authors. 1.4. Conclusion This part does not concentrate much on artistic works as the title of the paper stated, but it provide for the general overviews of the concept of the copyright protection as explain by various authors, and rarely it entails on
33
artistic works and also
how does such rights
have been affected with the development of science and technology. These aspects are explained in the other parts of the paper.
34
Chapter Two The Aspect of the Legal Protection of Artistic Works
2.1 Introduction This part provides for the aspect of the legal protection of artistic works in general. For the purpose of general understanding of the topic, it also provides the context of artistic works. It also provides for the historical development on the legal protection of artistic works under copyright
law,
general
overview
of
the
protection of artistic works, also the essence of protecting artistic works.
35
2.2 The Meaning and Contents of Artistic Works Artistic works are protected under copyright,38 this category is a diverse one and includes several different types of works. category
that
causes
special
39
It is a
problems
because it overlaps with design law and the relationship between copyright and design law is not at all clear-cut.40
See Section 5 of the Copyright and Neighbouring Rights Act of Tanzania, 1999 R.E 2002; Section 4 of the Copyright, Designs and Patent Act of 1988 of the United Kingdom; and Section 13 of the Copyright Act, 1957 (of India) as last amended 1999. Also, see Bainbridge, D.I., Intellectual Property, 8Th Edition, (Pearson Education Limited, Edinburgh Gate: England, 2010), at page 3-5 39 Bainbridge, D.I., Intellectual Property, 8Th Edition, (Pearson Education Limited, Edinburgh Gate: England, 2010), at page 58. 40Bainbridge, D.I., Intellectual Property, Ibid at page 58. 38
36
Artistic works are defined by the Copyright, Designs and Patents Act41 to include a graphic work,42 photograph,43 sculpture44 or collage, architectural works (including buildings of any kind), and works of artistic craftsmanship, such as jewellery or pottery, are also included.45
Act of 1988 of the United Kingdom under section 4(1)(a)(b) 42 Graphic work further defined to include paintings, drawings, diagrams, maps, charts, plans, engravings, etchings, lithographs, woodcuts or similar. See Section 4(2) of the Copyright, Designs and Patent Act of 1988 of the United Kingdom 43 Photograph means a recording of light or other radiation on any medium on which an image is produced or from which an image may by any means be produced, and which is not part of a film. Photographs exclude stills from a film but include slides, negatives and microfilm. See Section 4(2) of the Copyright, Designs and Patent Act of 1988 of the United Kingdom 44 Sculpture includes a cast or model made for purposes of sculpture. See Section 4(2) of he Copyright, Designs and Patent Act of 1988 of the United Kingdom 45 Section 4(2) of the Copyright, Designs and Patent Act of 1988 of the United Kingdom 41
37
Copyright subsists in all of the above, regardless of artistic quality or craftsmanship.46 All in all, copyright applies to all works of an artistic nature including, but not limited to, photographs,
paintings,
sculptures,
maps,
charts, graphs, diagrams, cartoons (static not moving
animations),
logos,
engravings,
sketches, blueprints and buildings or models of buildings. Protection is also given to works of artistic craftsmanship which can include crafts,
See De Montfort University Leicester, De Montfort University Leicester Homepage, http://www.library.dmu.ac.uk/Support/Copyright/index.php ?page=427 (accessed on 6th July 2014 at 14:01 hrs). 46
38
embroidery,
ceramics,
woodworking
and
jewellery.47 In Nova Games Ltd v Mazooma Productions Ltd,48 it was said by Jacob LJ that, all the things falling within the artistic work category have one thing in common that, they are all static, non-moving. Certainly a series of graphic images cannot be a compilation which, being a literary work is written, spoken or sung.49 As copyright is stated to subsist in the first category irrespective of artistic quality, a painting of coloured rectangles by Mondrian or University of Melbourne, University of Melbourne Copyright Office Homepage, http://www.unimelb.edu.au/copyright/information/fastfind/ artistic.html (accessed on 6th July 2014 at 13:54 hrs) 48 [2007] RPC 589 at para 16. 49 See the definition of literary work in s 3(1) of the Copyright, Designs and Patent Act of 1988 of the United Kingdom. 47
39
a Jackson Pollock painting made up of coloured squiggles is as deserving of copyright protection as is a portrait or a landscape painted in a traditional manner.50
Relatively
simple things such as football club badges are works of artistic copyright51 as are crests applied to porcelain articles and patterns applied to tableware.52 The formula „irrespective of artistic quality‟ ensures that personal taste or preference is no bar
to
copyright
protection, and it also
safeguards utilitarian and functional works such Bainbridge, D.I., Intellectual Property, 8Th Edition, (Pearson Education Limited, Edinburgh Gate: England, 2010), at page 58. 51 See, for example, Football Association Premier League Ltd v Panini UK Ltd [2004] 1 WLR 1147. 52 X Ltd v Nowacki (t/a Lynton Porcelain Co) [2003] EWHC 1928 (Ch). 50
40
as
drawings
for
engineering
equipment,
photographs made for scientific or record purposes, weather charts and plans for civil engineering and building works.53 2.3
Historical
development
of
the
legal
protection of artistic works. The history of the legal protection of artistic works is initiated by the historical development of copyright law. With the increase importance and use of artistic works throughout the world there has been highly valuable developments due to the well made productive works of minds of authors and creators of artistic works. Bainbridge, D.I., Intellectual Property, 8Th Edition, (Pearson Education Limited, Edinburgh Gate: England, 2010), at page 58 53
41
This is evidenced by high quality of many architectural buildings seen in many big cities and towns, highly created paintings, well taken photographs and the like. This has turned artistic works into a valuable works, with such importance rose the need for protecting them. Copyright law has a relatively long history and its roots can be traced back to before the advent of printing technology, which permitted the printing of multiple copies quickly and at relatively little expense.54 The first record of a copyright case was Finnian v Columba55.
Ibid, Bainbridge, Intellectual Property, 8Th at page 33 55 See Bowker R.R., Copyright: Its History and its Law, Houghton Mifflin, (1912) at page 9. 54
42
Before the late 15th century, works of literature were mainly religious and were written by scholarly monks who would work painstakingly for considerable periods of time preparing their gloriously
illuminated
books.
Obviously,
because of the substantial human labour and skill required to produce such works, plagiarism of books was not usually a viable consideration. Additionally, there was not a market for books due to the general illiteracy of the population at large. The religious books which were produced were made mainly for use within monasteries or churches. Two inventions in the late fifteenth century changed everything. It could be claimed that printing has had a
43
greater impact on civilisation than any other single invention.56 In 1518, the first printing privilege was issued to Richard
Pynson,
the
Royal
Printer,
which
prohibited the printing, for two years, of a speech by anyone else.57 Until the early 16th century, the art of printing was practised freely and England was quickly established as an important centre for printing in Europe. But Henry VIII, desiring to restrict and control the printing of religious and political books, eventually banned the importation of
Gutenberg invented moveable type, first used in 1455, and Caxton developed the printing press and published Chaucer‟s Canterbury Tales in 1478, the first „bestseller‟. 57 Ibid, Bowker R.R Copyright: Its History and its Law, at page 19. 56
44
books into England. By an Act of 1529, Henry VIII set up a system of privileges and printing came to be controlled by the Stationers‟ Company, originally a craft guild58. Statute of Anne; the system of privileges, registration and control survived, going through phases of varying effectiveness and licensing systems, until its ultimate collapse in 1695; and, following a brief period when piracy of books flourished, the Statute of Anne was passed in 1709.59 The Statute of Anne gave 14 years‟ sole right of printing to authors of new books (books already 58
Ibid, Bainbridge, Intellectual Property, 8Th Edition at page
34 59
Ibid, Bainbridge, Intellectual Property, 8Th Edition at page
34
45
published by 1710 were given 21 years‟ protection). At the end of that period, the right returned to the author and, if still alive, he was granted an additional 14 years. Infringers were to pay a fine of one penny for every sheet of the infringing book, one moiety of which went to the author, the other to the Crown. By modern standards, this was a considerable fine. In addition, infringing books and parts of books were forfeit
to
the
proprietor who
„shall
forthwith damask and make waste paper of them‟60.
Bainbridge, D.I., Intellectual Property, 8Th Edition, (Pearson Education Limited, Edinburgh Gate: England, 2010), at page 34 60
46
A system of registration was still in place and an action could be brought only if the title had been entered in the register book at the Stationers‟ Company before publication. The „copy‟, by the Act, was the „sole liberty of printing and reprinting‟ a book and this liberty could be infringed by any person who printed, reprinted
or
imported
the
book
without
consent. The Act was also the first clear acknowledgement
of
the
legal
right
of
authorship.61 The 1709 Act62 did not extend to certain universities and libraries, but some doubt about
61
Ibid, Bainbridge, Intellectual Property, 8Th Edition at page
34 62 Statute of Anne
47
the scope and effectiveness of this was remedied by the Copyright Act of 1775 which gave
a
perpetual
copyright
to
copies
belonging to the Universities of Oxford and Cambridge
and
the
Colleges
of
Eton,
Westminster and Winchester. This survived until the Copyright, Designs and Patents Act 1988 which substituted a period of 50 years from the end of 1989, after which such rights expire.63 The Statute of Anne was copied by the US Congress in 1790 and Donaldson v Beckett followed in the Supreme Court in Wheaton v Peters,64 hence, the similarity between the Copyright, Designs and Patents Act 1988 of the United Kingdom. 64 (1834) 8 Pet 591. 63
48
copyright laws of the United Kingdom and the United States.65 The
scope
of
copyright
was
gradually
increased to include other works, such as engravings and prints in 1734–35, lithographs in 1734, sculptures in 1798, dramatic works in 1833 and musical works in 1882.66 Moves were also made to extend the term of copyright, though these changes did not go unchallenged; for example, the historian Macaulay described copyright as „a tax on readers for the purpose
There are now, however, some significant differences which compromise the impact of the United States precedents. 66 Musical works were protected earlier though the form of protection was unsatisfactory. 65
49
of giving bounty to writers‟.67 In the meantime, it was becoming recognised that copyright was important in an international context, and the Berne Convention for the Protection of Literary and Artistic Works68 was formulated in 1886 with the purposes of promoting greater uniformity in copyright law and giving copyright owners full protection in all Contracting States.69 In
response
to
major
technological
developments, the Copyright, Designs and Patents Act70 1988, was passed. This Act takes
Hansard, HC Deb vol 56 (5 February 1841). However, he was not arguing for the abolition of copyright, merely against extending it beyond the author‟s life. 68 The „Berne Convention‟. 69 See Bainbridge, D.I., Intellectual Property, 8Th Edition, (Pearson Education Limited, Edinburgh Gate: England, 2010), at page 33 - 36 70 Act of 1988 of the United Kingdom 67
50
due account of moral rights, inalienable rights which belong to the author irrespective of the ownership of copyright.71 Today national copyright laws have been standardised to conform the International and Regional
Agreements
such
as
the
Berne
Convention, WIPO TRIPS, ARIPO, and European Copyright Directives. In Tanzania the concept of copyright law came from Colonial Administration in 1922 which was Britain72. Later on the colonialists established the Copyright Ordinance73. After
Ibid, Bainbridge, Intellectual Property at page 36 Magalla, A., The History of Copyright Law in Tanzania: From Tanganyika to Tanzania – Where, When and How., Iringa Tanzania, 2013. At page 5 73 Cap 218 of 1924 71 72
51
independence of Tanganyika, the copyright system did not change although the Copyright Ordinance74 was repealed in 1966 by Copyright Act75. In 1999, Tanzania witnessed reform in Copyright arena whereby Copyright Legislation76 was enacted by the Parliament of Tanzania for the purpose of protect the owners right, but the Act77 faced with many challenges such as lack of express provision protecting film works
Ibid, Magalla, The History of Copyright Law in Tanzania: From Tanganyika to Tanzania – Where, When and How , at page 5 75 Act No. 61 of 1966 76 The Copyright and Neighbouring Rights Act of Tanzania, 1999 R.E 2002. 77 Ibid , Magalla, A, The History of Copyright Law in Tanzania: From Tanganyika to Tanzania – Where, When and How at page 5 74
52
against cyber piracy78 as well as absence of legal mechanisms that may be used to engulf like cyber piracy in Tanzania. Tanzania
has
witnessed
revolution
of
information technology from 199979 whereby many changes have taken place in the copyright field, opening new horizons for artists and others to use the internet with confidence to create, distribute and control the use of their works within the digital environment80.
Unauthorised copying of a copyrighted works in the internet. 79 The copyright and Neighbouring Rights Act, Cap 218 came into existence on which has brought changes into protection of copyrightable works. 80 Mambi A, J. ICT LAW BOOK: A Source Book for Information & Communication Technologies and Cyber Law in Tanzania & East Africa Community, (Dar es Salaam: Mkuki Na Nyota Publishers Ltd, 2010), at page 198 78
53
2.4 The rationale for copyright protection in artistic works. Right to property;81 the basic reason for protecting artistic works is that, a man should own what he produces, that is, what he brings into being. If what he produces can be taken from him, he is no better than a slave.82 Intellectual property, which protects artistic works through copyright, is therefore, the most basic form of property because a man uses As explained in Article 24 of URTC that, Subject to the provisions of the relevant laws of the land, every person is entitled to own property, and has a right to the protection of his property held in accordance with law. If further state that subject to the provisions of subarticle it shall be unlawful for any person to be deprived of property for the purposes on nationalisation or any other purposes without the authority of law which makes Provision for fair and adequate compensation. 82 Ibid, Bainbridge, Intellectual Property, 8Th Edition at page 18 81
54
nothing to produce it other than his mind. Also artistic works being intellectual property works are protected under the Article 17 of The Universal Declaration of Human Rights of 1948,83 whereby both provide for the right to own and protect the property. The author or creator of an artistic work being the owner of the work that he created and that he has exclusive right over the said work. Another reason is that a person who creates a work or has a good idea which he develops has a right, based partly on morality and partly on the concept of reward, to control the use This provision provides for the right to own properties, alone as well as in association with others and no one shall be arbitrarily deprived of his property since all people are equal. 83
55
and exploitation of it, and he should be able to prevent others from taking unfair advantage of his efforts.84 Encourage human creativity; copyright and its related rights are essential to human creativity, by giving creators incentives in the form of recognition and fair economic rewards. Under this system of rights, creators are assured that their works can be disseminated without fear of unauthorized copying or piracy. This in turn helps increase access to and enhances the
Bainbridge, D.I., Intellectual Property, 8Th Edition, (Pearson Education Limited, Edinburgh Gate: England, 2010), at page 19 84
56
enjoyment
of
culture,
knowledge,
and
entertainment all over the world.85 Creativity being the keystone of progress, no civilized society can afford to ignore the basic requirement of encouraging the same. It is worth
noting
development
that, of
economic a
society
and
social
presupposes
creativity of such a particular society86. In
general,
the
protection
provided
by
copyright to the efforts of writers, artists, designers, dramatics, musicians, architect and producers of sound recordings, cinematograph EU Copyright Office, EU Copyright Office Homepage (http://www.eucopyright.com/en/why-protect-copyright) (accessed on 6th July 2014 at 14:45 hrs) 86 Mambi A, J. ICT LAW BOOK: A Source Book for Information & Communication Technologies and Cyber Law in Tanzania & East Africa Community, (Dar es Salaam: Mkuki Na Nyota Publishers Ltd, 2010), at page 201 85
57
films and computer software, creates an atmosphere conducive to creativity, which induces them to create more and motivates others to create. Encourage developments: The fact that an author knows that he will enjoy the fruits of his labour and skills, since his innovation and creativity is protected from any infringement, as well as availability of remedy in case of infringement innovation
encourages and
and
creativity;
motivate
hence
further
development of technology. Protecting
the
public
from
counterfeits
products. Counterfeiting is a serious problem which should be attacked, not so much to
58
protect the interests of legitimate traders but to protect society from being deceived into buying substandard goods. In some cases, safety is at issue: for example, where the counterfeit is a poorly made toy covered in a paint
containing
high
levels
of
lead.
Furthermore, there are links between organised crime and intellectual property crime. This is one main reason why the maximum penalties for copyright offences and trade mark offences are considerable.87
Bainbridge, D.I., Intellectual Property, 8Th Edition, (Pearson Education Limited, Edinburgh Gate: England, 2010), at page 19 87
59
2.5 General Overview on the Protection of Artistic Works Artistic works are protected through copyright law88. Like literary, dramatic and musical works, artistic works must be „original‟89. However, there is no requirement for them to be recorded as their very existence implies some form of tangibility90. With the exception of works of artistic craftsmanship, artistic copyright is
See Section 5 of the Copyright and Neighbouring Rights Act of Tanzania, 1999 R.E 2002; Section 4 of the Copyright, Designs and Patent Act of 1988 of the United Kingdom; and Section 13 of the Copyright Act, 1957 (of India) as last amended 1999. Also, see Bainbridge, D.I., Intellectual Property, 8Th Edition, (Pearson Education Limited, Edinburgh Gate: England, 2010), at page 3-5 89 Ibid , Intellectual Property, 8Th Edition, at page 3-5 90 Ibid Bainbridge, Intellectual Property, 8Th Edition at page 50. 88
60
very generous in what it can protect and in the scope of the protection. On the issue of Originality In
Ladbroke
(Football)
Ltd
v
William
Hill
(Football) Ltd,91 by Lord Pearce stated that, the word „original’ requires that, only that the work should not be copied but should originate from the
author.
Hence,
originality
is
more
concerned with the manner in which the work was created and is usually taken to require that the work in question originated from the author,
91
[1964] 1 WLR 273 at 291.
61
its creator, and that it was not copied from another work.92 In Mazer v. Stein,93 which held that the statutory terms 'works of art' and 'reproduction of works of art' . . . permit copyright of quite ordinary mass-produced items, the Court expressly held that the objects to be copyrightable, 'must be original, that is, the author's tangible expression of his ideas. The requisite "distinguishable variation," moreover, is not supplied by a change of medium, as "production of a work of art in a different medium cannot by itself
Bainbridge, D.I., Intellectual Property, 8Th Edition, (Pearson Education Limited, Edinburgh Gate: England, 2010), at page 41. 93 347 U.S. 201, 98 L. Ed. 630, 74 S. Ct. 460 (1954) 92
62
constitute the originality required for copyright protection."94 In Bridgeman Art Library v. Corel Corporation95 it was decided that photographic copies of public domain images could not be protected by
copyright
originality.
Even
because if
the
accurate
copies
lack
reproductions
require a great deal of skill, experience and effort, the key element for copyright ability is originality. There is little doubt that many photographs, probably the overwhelming majority, reflect at least the modest amount of originality required Past Pluto Productions v. Dana, 627 F. Supp. 1435, 1441 (S.D.N.Y. 1986) 95 36 F. Supp. 2d 191 (S.D.N.Y. 1999), 94
63
for copyright protection. “Elements of originality . . . may include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.”96 In Burrow-Giles Lithographic Co v. Sarony,97 the Supreme Court held that photographs are “writings” within the meaning of the Copyright Clause and that the particular portrait at issue in that case was sufficiently original by virtue of its pose, arrangement of accessories in the photograph, and lighting and the expression the photographer evoked to be subject to
96 97
Rogers v. Koons, 960 F.2d 301, 307 (2d Cir.) 111 U.S. 53, 4 S. Ct. 279 28 L. Ed. 349 (1884).
64
copyright. The Court, however, declined to decide whether "the ordinary production of a photograph" invariably satisfies the originality requirement. While Judge Learned Hand later suggested
that
the
1909
Copyright
Act
protected photographs independent of their originality,98 his view ultimately was rejected by the Supreme Court.99 On the issue of the skills It is required to create an artistic work, it was said in Interlego AG v. Tyco Industries, Inc.,100 that, “skill, labour or judgment merely in the
Jewelers' Circular Pub. Co. v. Keystone Pub. Co., 274 F. 932, 934 (S.D.N.Y. 1921), 99 Feist Pub., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 350-53, 113 L. Ed. 2d 358, 111 S. Ct. 1282 (1991). 100 1 A.C. 217 (P.C. 1989), 3 All E.R. 949, 970 (1988) 98
65
process of copying cannot confer originality . . . there must . . . be some element of material alteration or embellishment which suffices to make the totality of the work an original work.” 101
Some fairly simple things have been afforded artistic copyright, such as a bare design of a hand,102 chartlets (simplified coastal maps), a simple
label,103
a
working
sketch
of
machinery,104 a label for a whisky bottle105 and
3 All E.R. 971-72 (1988) Hildesheimer and Faulkner v Dunn & Co (1891) 64 LT 452. But see also Kenrick v Lawrence (1890) 25 QBD 93 involving a simple design of a hand showing voters how to cast their votes. 103 Charles Walker Ltd v British Picker Co Ltd [1961] RPC 57. 104 B O Morris Ltd v F Gilman (BST) Ltd (1943) 60 RPC 20. 105 William Grant & Sons Ltd v McDowell & Co Ltd [1994] FSR 690. 101 102
66
an inverted „R‟ with a dot in the loop which looked like a rabbit‟s head.106 In Graves' Case107 it was discussed and submitted
that,
a
person
who
makes
a
photograph merely by placing a drawing or painting on the glass of a photocopying machine and pressing the button gets no copyright at all. Justice Blackburn says as well that: “The distinction between an original painting and its copy is well understood, but it is difficult to say what can be meant by an original
photograph.
All
photographs
are
copies of some object, such as a painting or Hutchison Personal Communications Advertising Ltd (No 2) [1996] FSR 549. 107 (1869) LR 4 QB 715 106
67
Ltd
v
Hook
statue. And it seems to me that a photograph taken from a picture is an original photograph, in so far that to copy it is an infringement of the statute.” In Hearn v. Meyer,108 Judge Leisure held that "slavish copies" of public domain reproductions of public domain original works of art were not copyrightable despite the great skill and effort involved in the copying process, and minor but unintentional variations between the copies and the works copied. 2.6 Conclusion Apart from the efforts done to protect artistic works, there is still a challenge of high level of 108
664 F. Supp. 832 (S.D.N.Y. 1987),
68
piracy. With high level of piracy the spirit of innovation and creativity is discouraged. The suggested solution to this is that Government should
increase
public
awareness
and
education, modernize intellectual property law to account for new invention and creativity, step
up
enforcement
resources.
69
with
dedicated
Chapter Three An Assessment of Copyright Protection on Artistic Works in Tanzania As Compared To India and United Kingdom 3.1 Introduction This part forms the core aim of this paper. It seeks to presents an assessment on at what extent does our laws in Tanzania afford legal protection unwarranted
in
the
artistic
infringements
works
against
particularly
in
digoital environment. It goes further by making exploring the kind of protection afforded to artists‟ works against unwarranted infringement in other jurisdictions, to wit; the United Kingdom
70
and India. The institutional and other practical challenges on attempts to ensure copyright protection in artistic works are also discused in this chapter as well as the way forward towards an ideal protection of artistic works against infringement. 3.1 Copyright Infringement in Artistic Works: How does it occur? Creators of artistic works get incentives in the form of recognition of their efforts and fair economic
rewards
by
the
efficient
legal
framework. Through efficient legal framework against misappropriate dealing of their works, they are assured that their works can be
71
disseminated without fear of unauthorized copying or piracy.109 Creators of artistic works devote much of their time and put many efforts in creating their works. Their efforts are worthless if their works are never effectively protected. Technological developments have made the copyrighted material easier to access and reproduce and even more difficult to protect110. Efficient copyright law is needed to provide remedies to the creators and owners of artistic works
EU Copyright Office, EU Copyright Office Homepage, http://www.eucopyright.com/en/why-protect-copyright (accessed on 6th July 2014 at 14:45 hrs) 110 Mambi A, J. ICT LAW BOOK: A Source Book for Information & Communication Technologies and Cyber Law in Tanzania & East Africa Community, (Dar es Salaam: Mkuki Na Nyota Publishers Ltd, 2010), at page 197. 109
72
against
misuse,
misappropriation
and
infringement online or offline.111 Artistic
works112
are
protected
under
copyright,113 and copyright is protected under the The Copyright Designs and Patent Act,
114
The India Copyright Act, of 1957115; and the
Mambi A, J. ICT LAW BOOK: A Source Book for Information & Communication Technologies and Cyber Law in Tanzania & East Africa Community, (Dar es Salaam: Mkuki Na Nyota Publishers Ltd, 2010), at page 197. 112 Artistic work means a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality, a work of architecture; and any other work of artistic craftsmanship. See Section 2(c) of the Copyright Act, 1957 (as last amended in 1999), of India. 113 See Section 5 of the Copyright and Neighbouring Rights Act of Tanzania, 1999 R.E 2002; Section 4 of the Copyright, Designs and Patent Act of 1988 of the United Kingdom; and Section 13 of the Copyright Act, 1957 (of India) as last amended 1999. Also, see Bainbridge, D.I., Intellectual Property, 8Th Edition, (Pearson Education Limited, Edinburgh Gate: England, 2010), at page 3-5 114 1988 Cap.48, 1988 (as amended at 1/1/2005). 115 (as amended by Copyright (Amendment) Act No. 27 of 2012). 111
73
Copyright and Neighbouring rights Act116 in Tanzania. There are certain acts,117 once conducted
by
someone
other
than
the
creator118 of particular artistic work amount to infringement rights of the creator of that work.
Cap 218 R.E 2002 of Tanzania Restricted acts, these are acts like copying, communicating to the public and any other acts which shall be done by another person with licence from the author of that work 118 They are also called artists as in Mayers, Osterwald & Muhlfeld, Inc. v. Bendler, 18 C.C.P.A. 117 (1930), whereby GRAHAM, J. said that, the word artist [has] a meaning including one who practices some mechanical art or craft. It is equally that in the ordinary use of the term in the language of the people, singers, actors, and other alluded to as artists. We are convinced however that, it was in the sense of [“one who practices an art in which imagination and taste preside over execution”]. This being true...there must be in the production of an article a mental concept resulting in an aesthetic expression of the producer.” He further concluded that, “As our mental and aesthetic comprehension increases, our ideas on what constitute an artistic creation develop and change. But one thing we do know, that a thing, to be artistic must be something more than the common product of a utilitarian art or trade.” 116 117
74
Copyright in an artistic work may be infringed vicariously,
where
a
person
without
the
permission of the copyright owner authorizes another to do a restricted act119. Restricted acts like copying120 and use/distribute by using any device or equipments or whatever means an artistic work of the other without a prior permission of copyrights owner amount to infringement. It includes making a copy in 3-D of a 2-D work and making a copy in 2-D of a 3D work: for example, making a painting of a
Bainbridge, D.I., Intellectual Property, 8Th Edition, (Pearson Education Limited, Edinburgh Gate: England, 2010), at page 145 120 Section 17(2) of the Copyright, Designs and Patents Act of 1988 of the United Kingdom define copying as the act of reproducing the work in any material form and it includes storing the work in any medium by electronic means. 119
75
sculpture or constructing a building from an architectural drawing.121 The clarification of this point can be traced in the case of Cariou v. Prince122, whereby it was discussed on whether artist Richard Prince's art treatment of Patrick Cariou's photographs was a copyright infringement or a fair use. It was held
that
Prince's
appropriation
art could constitute fair use, and that a number of his works were transformative fair uses of Cariou's photographs123. The Court remanded
Bainbridge, D.I., Intellectual Property, 8Th Edition, (Pearson Education Limited, Edinburgh Gate: England, 2010), Table 6.1 at page 152 122 714 F. 3d 694 (2d Cir. 2013) 123 Brian Boucher, "Landmark Copyright Lawsuit Cariou v. Prince Is Settled", Art in America, March 18, 2014. 121
76
to the District Court for reconsideration of five of Prince's works and the case settled in 2014.124 Yet in Sony Music Entertainment (UK) Ltd v. Easy Internet café Ltd,125 whereby the defendant in this
case
downloaded
the
copyrighted
materials through internet for commercial gain without being authorized by the plaintiff who was a copyrights holder, he was held liable for infringement of copyrights and hence be required to pay compensation to the victim. Also in the case of Hawkes & Son (London) Ltd v. Paramount Film Service Ltd 126, Lord Slesser
Kaitlyn, Ellison, 5 famous copyright infringement cases (what you can learn), 2013, extracted on 28th August, 2014 from 99designs.com/designer.../5-famous-cop... 125 [2003] EWHC 62 (Ch) 126 [1934] 1 Ch 593 124
77
held inter alia that, infringement of copyright occurs when "a substantial, a vital and an essential part" of a work is copied. In Tanzania generally, copyright protection is available to works of authors who are nationals of, or have their habitual residence in Tanzania. Works first published in Tanzania may also qualify for copyright protection irrespective of the nationality or residence of their authors. Works first published abroad but thereafter published in Tanzania may also qualify for copyright
protection
under
certain
conditions.127
Section 3 of the copyright and Neighbouring Rights Act of 1999, Cap 218 of Tanzania. 127
78
3.2 Laws combating Copyrights Infringement in Artistic works in Tanzania As discussed in the foregoing parts, Tanzania provides for protection of various works against unwarranted infringements including artistic works. Nevertheless, arguments have been posed by experts in the field of intellectual property in Tanzania to the effect that the existing
main
legislation
which
regulates
copyrights matters in Tanzania is inadequate to cater copyrights infringement through various modes such as infringement through internet.128
128Faraja
Mgwabati, Tanzania: Government to Review Copyright Law to Curb Piracy, Tanzania Daily News (Dar esSalaam), 14th February 2010.
79
It
is
argued
that
the
Copyrights
and
Neighbouring rights Act129 which is the main legislation on copyrights matters lacks clear provisions
which
specifically
addresses
infringements of copyrights in various aspects to wit to infringement of artistic works through internet and other means particularly the less organized mushrooming artists in Tanzania. This hesitation by the law creates loopholes for continuance of these infringements to persist. It has further been argued that the remedies and sanctions which are provided by the Act are insufficient to deter the infringement of
129Cap
218. R.E 2002 of Tanzania.
80
artistic
works.130
This
henceforth
led
into
continuing existence of copyrights infringement through in Tanzania. The Act provides for civil remedies and criminal sanction for those who infringe copyrights. A person whose rights have been infringed may institute proceedings in the United Republic of Tanzania for an injunction or payment
of
compensation
for
damages
suffered in consequence of such infringement including any profits enjoyed by the infringing
The Act, ibid, provides for general remedies on copyright infringement without making specification of remedies depending on the nature of infringement. Section 36 of the Act provides for civil remedies such as damages, compensation and injunction. 130
81
person
that
are
attributable
to
the
infringement.131 For
criminal
offence
against
copyright
infringement the sanction is a fine not more than five million shillings or imprisonment for three years or both for the first offence or a fine of not more than ten million shillings or to imprisonment of up to five years or both for each subsequent offence if the infringement was on a commercial basis.132 With regard to the sanction imposed to the offence of copyrights infringement, it seems that the fine is trivial to achieve the goal of Section 36 of the Act. Section 42 of the Copyright and Neighbouring Rights Act, Cap 218, R.E 2002. 131 132
82
deterring the commission of such offence. Most of infringers afford to pay the fine out of the profit they obtain from such illegal business which infringes copyrights of the film artists. The above point can well be illustrated through the following cases on copyrights infringement in Tanzania. In the case of United Republic of Tanzania v. Khalfan Abdallah133 the court ordered the accused to pay a fine of 200,000/= Tshs. having committed the offence of infringement of artists‟ works by in which pirated artistic works was ownership of a small industry.
133Criminal.
550 of 2004 case No (Unreported).
83
In the case of Republic v. Hassan Nkamba134 the accused made piracy of artistic work valued 550,000/= Tshs and was ordered to pay fine of 300,000/= Tshs. From the above two cases it can be observed that the amount payable as fine is of less value compared to the value of an infringed work. This can therefore be said that in one way or other encourages more other infringements of copyrights.
134Criminal
Case No.519 of 2005 (Unreported).
84
The following below is the overview on the laws that deal with protection of artistic works in Tanzania. Tanzania being a signatory to the 1886 Berne Convention for the Protection of Literary and Artistic Works,135 therefore, automatically has obligation to
protect artistic works under
copyright equivalent to other literary works136 within
the
meaning
of
the
1886
Berne
The Berne Convention specifically obliges member states to provide effective standards of protection and rights to the authors and owners of copyright as such right to reproduce work as according to Article 9 of the Convention, right to perform the work publicly as according to Article 11, right to translate the work among other restricted rights. 136 Section 5 of the Copyright and Neighbouring Rights Act, 1999[R.E 2002] of Tanzania and Article 2 of the Berne Convention for Literary and Artistic works of 1886 as revised in Paris in 1971 135
85
Convention for the Protection of Literary and Artistic Works.137 As
according
to
the
Copyrights
and
Neighbouring rights Act,138 rights that are in a copyrighted artistic work are regarded as exclusive rights whereby exclude others from using that work without authorization from the owner or author of that particular copyrighted artistic work.139
Article 2(1) of the Berne Convention for Literary and Artistic works of 1886 as revised in Paris in 1971 138Cap 218. R.E 2002 of Tanzania 139 Section 8 of the Copyright and Neighbouring Rights Act, 1999[R.E 2002] of Tanzania provides for substance of copyright in a literary and artistic work in which it comprises of the exclusive economic and moral rights of the author of the copyrighted work as provided under provisions of section 9 and 11 of the same Act 137
86
Rights that are provided for author or owner of artistic works are economic rights140 and moral rights141 in which are to be enjoyed by the author or owner of a copyrighted work and prevents others from using that artistic work. Infringement of an artistic work is by a person who is not authorize by the author or owner of a particular work to do acts that are exclusive to a author or owner of that particular work.142
Sections 9 of the Copyright and Neighbouring Rights Act, 1999[R.E 2002] of Tanzania provides for economic rights in which the owner or author of a artistic work has a right to claim a share of the money that is derived, directly or indirectly, from the public use of his works. 141 Section 11 of the Copyright and Neighbouring Rights Act, 1999[R.E 2002] of Tanzania provides for moral rights in which the owner or the author of a artistic work among other things, can claim authorship of the work, object to any distortion, mutilation or other modification of the work. 142 As provided under Section 9 and 11 of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania 140
87
Reproduction of the work,143 distribution of the work144 whenever that right is not sold,145 the rental of the an artistic work irrespective of the ownership of the original or copy concerned whereby the work is essential object of the rental,146
public
exhibition
of
the
work,147
translation of the work,148 adaptation of the work,149 public performance of the work,150
Section 9(a) of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania 144 Section 9(b) of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania 145 As according to Section 10(1) of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania 146 Section 9(c) of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania 147 Section 9(d) of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania 148 Section 9(e) of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania 149 Section 9(f) of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania 143
88
broadcasting
of
the
work,151
other
communication to the public of the work,152 importation of copies of the work153 are acts that are to be performed only by the owner author of a artistic work and whenever anyone other than the one who is authorized to perform these acts perform one of these acts will be infringing copyright that subsist in that particular artistic work.
Section 9(g) of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania 151 Section 9(h) of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania 152 Section 9(i) of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania 153 Section 9(j) of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania 150
89
Remedies154 may be given to the author or the owner of a copyrighted artistic work whenever his rights to his works are proved to be infringed.155 This includes to an artistic work too as whenever there is infringement of copyright in an artistic work, an author or owner of a that work may This may include payment of money, injunction, legal sanction or any other measure against the infringer as provided under part V of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania 155 Section 11(a) and (b) of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania provides that, whenever someone other that the person authorized to perform acts provided under Section 9 of the Act perform mentioned exclusive economic rights, the author of that protected work shall have the right to claim authorship of his work, in particular that his authorship be indicated in connection with any of the acts referred to in Section 9, except when the work is included by means of photography, sound or visual recording broadcasting or distribution by cable. Or he may object to and to seek relief connection with, any distribution, mutilation other modification of, and any other derogative action in relation to, his work, where such action would be or is prejudicial to his honour or reputation. 154
90
seek the help of the court in claiming his rights156 as in cases of the United Republic of Tanzania v. Khalfan Abdallah157 whereby the court ordered the accused pay a fine of 200,000/= Tshs having committed the offence of infringement of artists‟ works by in which pirated artistic works was ownership of a small industry and in Republic v. Hassan Nkamba158 whereby the accused made piracy of artistic work valued 550,000/= Tshs and was ordered to pay fine of 300,000/= Tshs.
Part V of the Copyright and Neighbouring Rights Act, 1999[R.E 2002] of Tanzania provides for the sanctions in which may face the person who found guilty of infringement of copyright subsist in a copyrighted work, also remedies that injured party may seek for infringement of his copyrighted work. 157Criminal. 550 of 2004 case No (Unreported). 158Criminal Case No.519 of 2005 (Unreported). 156
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Payment of damages suffered in consequence of infringement or other civil remedies,159 injunction relief and damages,160 destruction of infringed
works,161
delivery
of
infringed
Section 36 of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania provides for civil remedies, that an injured party may seek for infringement of his work and this may be done by instituting proceedings in the court and seek for injunction so as to prevent infringement or prohibiting continuation of the infringement, payment of damages suffered in consequence of infringement of that work including profits gained by infringing person, exemplary damages if the court finds out that the infringement is prejudicious to the reputation of the person whose rights were infringed, and seizure of the object that used by the infringing person to make violation of the copyrighted rights of owner or author of that copyrighted work. 160 Section 36 of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania provides for action for injunction and damages by injured party against infringer of a copyrighted work. 161 Section 37 of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania provides for rights of destruction and similar measures from unlawful manufactured or unlawful distributed or intended unlawful to be distributed. 159
92
copyrighted works,162 are among of the things that an injured party may seek to do if he finds out that his copyrighted artistic works are infringed by a particular person, group of persons or a company. Duration of protection of an artistic work in Tanzania is during the life of the author and for fifty years after his death.163 In the case of a work of joint authorship, protection is during the life of the last surviving author and fifty years
Section 36 of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania provides for the right of delivery whereby an injured party may require that the copies and equipment be delivered to him in whole or part for an equitable price which shall not exceed the production cost. 163 Section 14(1) of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania provides that, subject to the provisions of subsections (2) to (5), of this section, the economic and moral rights shall be protected during the life of the author and for fifty years after his death. 162
93
after his death.164 In the case of a work published anonymously or under a pseudonym, protection is for fifty years from the date on which the work was either made, first made available to the public or first published, which ever date is the latest.165 In the case of audiovisuals work protection is for fifty years from the date on which the work was either made, first made available to the public, or first published, whichever date is the latest.166 Every period provided for protection shall continue Section 14(2) of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania 165 Section 14(3) of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania; But if the author's identity is revealed or is no longer in doubt before the expiration of the said period, then it will be protected as according to subsections (1) and (2) of the same provision. 166 Section 14(4) of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania 164
94
until the end of the calendar year in which it would otherwise expire.167 All in all, what have been discussed in the above shows that a well functioning copyright law carefully need to balance the interests of the public in access to expressive works and the sound advancement of knowledge and technology, on the one hand, with the interests of copyright owners in being compensated for uses of their works and deterring infringers from making market-harmful appropriations of their works, on the other168. Tanzanian copyright law
Section 14(6) of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania 168 Pamela Samuelson and Members of The Copyright Principle Project(CPP), Berkeley Technology Law Journal 167
95
should enable the formation of well functioning markets for creative and informative works that yield benefits for all stakeholders.
3.3 Institutional and other Practical Challenges on Copyright Protection on Artistic Works. 3.3.1 Poor Enforcement Mechanism It
is
worth
noting
that
laws
become
meaningless if the enforcement is poor.169 Having
a
recognition
to
this
point,
the
international instruments on copyrights insists on the
proper
enforcement
of
copyrights
[Vol. 25:0000 ],The Copyright Principles Project: Directions For Reform, United States, 2010, at page 1. 169 Natasha Nsanta, Copyrights Protection in the context of Music Industry in Zambia, A dissertation to be submitted to school of law of University of Zambia in partial fullfilment of the award of degree of bachelor of laws (LLB), 2005.
96
legislation among the member states. TRIPS Agreement calls for enforcement procedures that
permit
for
effective
action
against
intellectual property rights infringement which not only prevent and provide for remedies but also avoid the dangers of measures taken being barriers to legitimate safeguard agaist abuse.170 It has been observed in this paper that Tanzania is yet to meet the above objective as pinpointed under the above said international instruments since the enforcement is very poor. It has been observed that the organs which are responsible are not committed to ensure that 170
Article 41 of the TRIPS Agreement
97
the infringers of copyrights are brought before the eyes of law and prosecuted properly. For instance, when you go to places like Buguruni, Kariakoo and the likes, fake CDs, DVDs have been sold openly. These place known as Music Kiosk are playing artist music with
no
legal
authorization,
much
worse
internet cafes have bben used as the place to illegally download and accessing artists works without any justifiable means. This is just example of such places but when you travell around Tanzania both in rural and urban areas, one may find these problems. The
question
is,why
these
people
continuing infringing these artistic rights?
98
are It is
simply because that the organs which are responsible are not committed to ensure that the infringers of copyrights are brought before the eyes of law and prosecuted properly. It has also been observed that the procedures in
courts
highly
disapoint
the
victims
of
copyrights infringement and hence force them decide not to institute the proceedings based on copyrights infringement. Other stakeholders have even proposed for the establishment of copyrights protection tribunals which shall be responsible for hearing and determining cases on copyrights infringement.171
Rulu Arts Promoters (RAP), Changes in copyright laws are needed for the music industry to grow. Fact sheet june 2013 171
99
3.3.2
Lack
of
Awareness
on
the
Legal
Framework on Copyright Protection. It has been observed that lack of awareness on copyrights
infringement
challenge
on
figthing
laws this
becomes
problem.
a
Most
people in Tanzania are less conversant to copyright laws and hence not keen in evedn making follow up upon discovering that their works are infringed. This was also seen by author, Magalla,172 it was observed that, among 10 buses where a research was made, 90% of the buses in Iringa (Miyomboni Bus Stand) use CD as a means of Magalla, A., A Report on the Impacts of ICT Evolution on Copyrights Protection in Tanzania Case Study: Iringa Region , 2013. 172
100
listening to the music.
Some of the CDs are
original and others are illegally obtained, almost 70% of the buses. For those who use fake CDs, when asking them if they know the rights of artistic and literary works (copyrights), it seemed that they know nothing about such rights. And if they know that by having such illegal form of music infringe the copy right infringements, they did not know either. For instance when interviewing a famous Bus conductor in Semtema Tumaini Road, Also known as (a.k.a.) Doctor, argued that they are using such form of music to please their customers and no one has come and telling him that what they are doing is
101
against the law and do infringe the copy rights, because
sometimes
the
artists
themselves
provide those CDs to them, to play their songs into their buses, so as to gain popularity (especially underground musicians). This clearly indicate that some people engage on business which involves the infringement of copyrights because even the copyright owners of those infringed works are not conversant to their legal rights which emanate out of their works. It is a real hard task to enforce copyright infringement sanctions were even the one agaist whom a copyright is infringed is less interested in enforcing his right or he/she neither
know
what
his/her
102
rights
are,
or
knowledge to te person who have infringe such intellectual property rights. 3.3.3 Weaknesses on COSOTA COSOTA as an organ which is responsible for protection of copyrights in Tanzania is toothless in its function. COSOTA has turned to be a blinded eye in the sense that, despite the fact that copyrights infringement in artists‟ works has spread in every corner in Tanzania towns, still no appropriate
actions
which
are
taken
by
COSOTA against the infringers as some of artists decide deal with infringers personally without their assistance this because COSOTA is aware about infringement of the copyright works.
103
Even after the infringers get caught for the infringement, others caught with the machines and printers as evidence but no more other action even to court rather that to pay compensation and set them free, hence they continue with their infringement business of our works because of the pleasure and profit gained, all of this is because of the weakness of copyright law and COSOTA in other hand as in cases of the United Republic of Tanzania v. Khalfan Abdallah173 whereby the court ordered the accused pay a fine of 200,000/= Tshs having committed the offence of infringement of artists‟ works by in which pirated artistic works 173Criminal.
550 of 2004 case No (Unreported).
104
was ownership of a small industry and in Republic v. Hassan Nkamba174 whereby the accused made piracy of artistic work valued 550,000/= Tshs and was ordered to pay fine of 300,000/= Tshs. Also COSOTA is having an office at Dar es salaam
only,
this
makes
dealing
with
infringement be more difficult for it to conduct its functions effectively hence it should not be a surprise that COSOTA fails to attack copyrights infringers in all towns in Tanzania. I myself, living in Iringa but I never saw any office that is named as COSOTA registry in Iringa.
174Criminal
Case No.519 of 2005 (Unreported).
105
3.4 Copyright Protection of Artistic Works in United Kingdom as Compare to Tanzania Copyright
legal
framework
in
the
United
Kingdom is clear and adequate in as far as protection of artistic works is concerned. It is hence crucial to have a glance over the same due to the very fact that, Tanzania as is the case with most of commonwealth countries, traces its legal framework from that of the United Kingdom. In the United Kingdom, the Copyright, Designs and Patents Act175, also known as the CDPA176,
1988 of the United Kingdom acronym stands for Copyright, Designs and Patents Act, 1988 of the United Kingdom 175
176This
106
is the principal law that govern copyright arena.177 In order for a creation to be protected by copyright it must fall within one of the following categories of work; literary work, dramatic work, musical work, artistic work, films, sounds recordings,
broadcasts,
and
typographical
arrangement of published additions.178 It reformulates almost completely the statutory basis of copyright law (including performing rights) in the United Kingdom, which had, until then, been governed by the Copyright Act.179 It also creates an unregistered design right, and This Act received Royal Assent on 15 November 1988 Section 304 of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 179 1956 of the United Kingdom 177 178
107
contains a number of modifications to the law of
the
United
Kingdom
on Registered
Designs and patents. Copyright is an automatic right arising on fixation and generally requires no further action or registration for a work to be protected.180 Ideas are not protected by copyright, only if the work is expressed in a recorded like in a form of a artistic work.181 The case of Designers Guild
Limited
v.
Russell
Williams
(Textiles)
Once a created work is a artistic work, it is worth protected under copyright, no registration is required. The only requirement for a work to be protected under copyright is in Section 3(2) of the Copyright, Designs and Patents Act of 1988 of United Kingdom that the work has to be in a recorded form. 181 Section 3(2) of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 180
108
Limited182 also provide that, ideas are not protected, only expression of idea. Artistic works must be original
to
obtain
copyright protection, this means that, an artistic work must originate with the author and there must have been a modest amount of skill, labour or judgment involved in its creation.183 The copyright lasts for 70 years from the end of the calendar year in which the author dies.184 The nature of copyright is to prohibit people who are not the owner of the intellectual property right from performing certain acts in
[2000] 1 WLR 2416, HL Bainbridge D., Introduction to Computer Law, 4th Edition, England, 2000, at page 25 184 Section 12 of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 182 183
109
respect of the protected work without the owner‟s authorization.185 In Section 2 (1) provides that, the owner of the copyright in a work of any description has the exclusive right to do the acts specified in Chapter II as the acts restricted by the copyright in a work of that description. These acts include performance and reproduction.186 The term „work of any description‟ means even work with digital description is recognize in term of performance and reproduction.
Section 16 of the Copyright, Designs and Patents Act of 1988 of the United Kingdom provides for the acts that are restricted to be performed by the person other than the author and owner of that work. 186 Section 180 (2) of [Cap.48 of 1988 (as amended at 1/1/2005)]. 185
110
Among other things, it also provide for the meaning of film that; means a recording on any medium from which a moving image may by any means be produced including sound track accompanying a film.187 Since the act from the beginning recognize digital environment, then the phrases „any medium‟ and „by any means‟ automatically includes digital means. In the United Kingdom, an author means the person who creates it. In the case of a literary, dramatic, musical or artistic work which is computer-generated, the author shall be taken to be the person by whom the arrangements 187
Section 5B of [Cap.48 of 1988 (as amended at 1/1/2005)].
111
necessary for the creation of the work are undertaken.188This indicates recognition of the author in digital environment. Copying189 as according to the Act190 is among the acts that are restricted to be performed by other person than the author and owner of the artistic work unless that person is authorized to perform. Issuing copies of the work to the public as according to the Act191 is among of the
Section 9 (3) of Copyright, Designs and Patents Act Cap.48, 1988 (as amended at 1/1/2005). 189 Section 17(2) of the Copyright, Designs and Patents Act of 1988 of the United Kingdom define copying as the act of reproducing the work in any material form and it includes storing the work in any medium by electronic means. 190 Section 17 of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 191 Section 18 of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 188
112
restricted acts as a matter of copyrighted work is concerned and this includes artistic works. Renting192 or lending193 the work to the public as according to the Act194 is among of the restricted acts that should not be performed by the person other than the owner or author of that work unless that person is authorized to perform that act.
Section 18(2)(a) of the Copyright, Designs and Patents Act of 1988 of the United Kingdom define renting to mean making a copy of the work available for use, on terms that it will or may be returned, for direct or indirect economic or commercial advantage. 193 Section 18(2)(a) of the Copyright, Designs and Patents Act of 1988 of the United Kingdom define lending to mean making a copy of the work available for use, on terms that it will or may be returned, otherwise than for direct or indirect economic or commercial advantage, through an establishment which is accessible to the public. 194 Section 18A of the Copyright, Designs and Patents Act of 1988 of United Kingdom 192
113
Perform, show or play the work in public as according to the Act195 is among of the restricted acts that should not be performed by the person other than the owner or author of that work unless that person is authorized to perform that act. Performance as an infringing act could be done where there is delivery in the case of lectures, addresses, speeches and sermons, and in general, it includes any mode of visual or
acoustic
presentation,
including
Section 19 of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 195
114
presentation by means of a sound recording, film or broadcast of the work.196 Communication197 of the work to the public as according to the Act198 is among of the restricted acts that should not be performed by the person other than the owner or author of that work unless that person is authorized to perform that act.
Section 19(2)(a) and (b) of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 197 As artistic works are concerned, Section 20 of the Copyright, Designs and Patents Act of 1988 of the United Kingdom communication provides that, communication of the work to the public as infringing act means broadcasting of the work or the making available to the public of the work by electronic transmission in such a way that, members of the public may access it from a place and at a time individually chosen by them. 198 Section 20 of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 196
115
In
Section
20
(2)199
provides
that,
communication to the public are by electronic transmission, and in relation to a work include the broadcasting of the work; the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them.
This
directly
involves
digital
communication. Making an adaptation or act done in relation to adaptation public in accordance to the Act200 is among of the restricted acts that [Cap.48 of 1988 (as amended at 1/1/2005)]. Section 21 of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 199 200
116
should not be performed by the person other than the owner or author of that work unless that person is authorized to perform that act. Adaptation as an infringing act is made when the work is recorded, in writing or otherwise201 and in relation to an artistic work, means an arrangement or altered version of the work or a translation202 of that artistic work.203
Section 21(1) of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 202 Section 21(4) of the Copyright, Designs and Patents Act of 1988 of the United Kingdom define the term translation in relation to a artistic work to include a version of the work in which it is converted into or out of a computer language or code or into a different computer language or code 203 Section 21(3)(a)(ab) of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 201
117
The Copyright, Designs and Patents Act of 1988204 provide for a number of limited acts that are permitted in respect of any artistic work. These exemptions are designed to give business efficacy to any licence that may be granted in respect of the artistic work. They regulate the restrictions that a licensee can include in a licence and adapt the regime of prohibited acts to artistic works in specific circumstances. The statutory exemptions are applicable regardless of any provision in an
Amended by the Copyright (Artistic works) Regulations 1992 and the Copyright and Rights in Databases Regulations 1997 204
118
agreement
purporting
to
apply
to
the
contrary.205 Observing, studying and testing of artistic works as according to the provision of the Act206 does not amount to an infringement of artistic work. As provided in the Copyright, Designs and Patents Act,207 copyright in a work is infringed by a person who does not hold a licence to the work uses the work or authorizes another to do
See section 50A to 50C of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 206 Section 50BA(1) of the Copyright, Designs and Patents Act of 1988 of the United Kingdom provide that it is not an infringement of copyright for a lawful user of a copy of a artistic work to observe, study or test the functioning of the work in order to determine the ideas and principles which underlie any element of the work if he does so while performing any of the acts of loading, displaying, running, transmitting or storing the work which he is entitled to do. 207 Act of 1988 of the United Kingdom 205
119
any of the acts restricted by the copyright.208 And so, generally, a person infringes the copyright in a work if he does one of the restricted acts or authorizes another to do one of the acts in relation to a substantial part of the
work
without
the
permission
of
the
copyright owner and such a person may be sued by the copyright owner, or an exclusive licence of the owner for infringement. Generally, infringement of copyright in an artistic work may take two forms namely primary
infringement
and
secondary
Mambi A, J. ICT LAW BOOK: A Source Book for Information & Communication Technologies and Cyber Law in Tanzania & East Africa Community, (Dar es Salaam: Mkuki Na Nyota Publishers Ltd, 2010), at page 202 208
120
infringement.209
Possession
or
dealing
with
infringing copy,210 providing means for making infringing copies,211 permitting use of premises for
infringing
performance,212
provision
of
apparatus for infringing performance213 and importing copyrighted work are among of the infringing acts to the artistic works.
According to Mambi, in his book, Mambi A, J. ICT LAW BOOK: A Source Book for Information & Communication Technologies and Cyber Law in Tanzania & East Africa Community, (Dar es Salaam: Mkuki Na Nyota Publishers Ltd, 2010), at page 201-202. Primary infringement normally is said to be done by people who are directly involved with misusing copyrighted works and secondary infringement is said to involve people in a commercial context dealing with infringing copyright or helping primary infringers. 210 Section 23 of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 211 Section 24 of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 212 Section 25 of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 213 Section 26 of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 209
121
Section 96 (1) of UK Copyright Act provides that an infringement of copyright is actionable by the copyright owner. Then who is a copyright owner? As we have seen before an author is any person either in ordinary world or digital world who create literary and artistic work.214 Without
doubt
this
Section
implies
the
availability of legal sanctions in digital world. As a matter of strengthening its law on protecting artistic works, the United Kingdom implements international instruments that deal with the issue of protection of artistic works.215
See Section 9 (3) of Copyright, Designs and Patents Act Cap.48, 1988 (as amended at 1/1/2005). 215 Example, the Copyright, Designs and Patents Act of 1988 of the United Kingdom shows application of the Berne 214
122
3.5
Copyright
enforcement
in
the
United
Kingdom Unlike
Tanzania
where
enforcement
of
copyright seems to be a nightmare, the United Kingdom is very serious when it comes to punishing the culprits of copyright infringement. Infringement of copyright is actionable by the copyright owner as the infringement of a property right216 or, in the case of infringement of moral rights, as the tort of breach of statutory duty.217
Convention in case of originality of the work as according to section 15A of the Act 216 Section 96 of of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 217 Section 103 of the Copyright, Designs and Patents Act of 1988 of the United Kingdom
123
Damages will not be awarded against one who did not know and had no reason to know that
the
work
nevertheless,
other
was
under
remedies
injunction, account
of
copyright, (such
as
profits: Scots
law interdict, accounting and payment of profits) continue to be available.218 This notion was so held in the case of Microsoft v Plato Technology219. Orders are available for the delivery up and disposal of infringing copies and copyright
Section 97 of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 219 [1999] F.S.R 834, [1999] Masons C.L.R. 87, [1999] 22(5) I.P.D. 22047 218
124
owners may also seize such copies.220 The making, dealing in or use of infringing copies is a criminal offence under the same law221. Further to that, Copyright owners may ask the HM Revenue and Customs to treat infringed copies as "prohibited goods", in which case they
are
prohibited
from
import222
Unlike
Tanzania, UK has special tribunals to deal with copyright infringement culprits.
Sections 99 and 114 of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 221 Section 107 of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 222 Section 111 of the Copyright, Designs and Patents Act of 1988 of the United Kingdom 220
125
3.6 Copyright protection in cyberspace in the United Kingdom. In the United Kingdom, even earlier, copyright has been supported by the judges who have usually been sympathetic to the principle of protecting the result of a person‟s skill or effort as Mr. Justice Peterson said in University of London Press Ltd v University Tutorial Press Ltd223 that, what is worth copying is prima facie worth protecting. As far as infringement of copyright, it must be noted that, generally infringement occurs when one or more of the following takes place, communication of the work to the public such 223
[1916] 2 Ch 601
126
as making
available for download some
copyrighted works online such as photographs, books, music and so on224, and /or making of adaptations and translations of the work and doing any of the aforementioned acts in relation to a substantive part of the work. There must
be
an
appropriation
of
substantial
portions of the copyright matter.225 As technological developments have made the copyrighted material easier to access and reproduce
and
even
more
difficult
to
protect,226 the copyright industry in the United
U.S v. La Macchia 871 F.Supp. 535 (1994) Roe-Lawton v. Hal E. Roach Studios, D.C.Cal (1927)., 18 F.2d 126, 127 226 Mambi A, J. ICT LAW BOOK: A Source Book for Information & Communication Technologies and Cyber Law in Tanzania 224 225
127
Kingdom
had
to
respond
with
self-help
measures, including digital rights management technologies, to further protect its interests.227 This has led in turn to a first wave of legislation to protect this protection, most notably in the form
of
prohibit
“anti-circumvention” tampering
with
statutes
digital
media
that or
devices in order to gain access to or otherwise make unauthorized use of the protected digital content.228
& East Africa Community, (Dar es Salaam: Mkuki Na Nyota Publishers Ltd, 2010), at page 197. 227 See Godwin M, What Every Citizen Should Know About DRM, a.k.a. “Digital Rights Management, Public Knowledge, at http://www.publicknowledge.org/pdf/citizens_guide_to_dr m.pdf (last visited 31st July, 2014) 228 Ibid, Mambi A,J. At page 197
128
In
the
United
Kingdom,
the
law
covers
protection of artistic work in both online and offline, upon online protection of artistic works, the United Kingdom has harmonized certain EU Directives229 so as to strengthen the protection of artistic work in the United Kingdom. For more copyright protection on artistic works in the digital environment, the United Kingdom recognize and implement as well the 1996 WIPO Copyright Treaty (WCT) and the 1996 WIPO Performances and Phonograms Treaty
Directive 93/98/EEC harmonizing the term of protection of copyright and certain related rights; Directive 98/84/EC on the legal protection of services based on, or consisting of, conditional access; and Directive 2001/29/EC on the harmonization of certain aspects of copyright and related rights in the information society. See the Preface on the Copyright, Design and Patents Act of 1988 of the United Kingdom 229
129
(WPPT),
known
as
the
“Internet
Treaties”
whereby these Treaties clarify international norms
aimed
at
preventing
unauthorized
access to and use of creative works on the Internet.230 In order to deal with the protection of copyright online, the United Kingdom implements the Information Society Directive 2001 (“InfoSoc Directive”)231 with effect from 31 October 2003, by introducing it in her laws the Copyright, Designs and Patents Act232 on which the issue
See the WIPO Copyright Treaty and the WIPO Performances and Phonograms Treaty of 1996 231 Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001 on the harmonization of certain aspects of copyright and related rights in the information society 232 See section 20 of the Act of 1988 of the United Kingdom 230
130
of „making available‟ right in digital networks233 has been provided. The Act also makes clear, that the public communication right extends beyond transmission through digital networks to include broadcasting.234 To strengthen the copyright protection on artistic
works,
the
United
Kingdom
had
implements as well the 1996 WIPO Copyright Treaty (WCT) and the 1996 WIPO Performances Section 20(1) of the Copyright, Design and Patents Act of 1988 of the United Kingdom deals explicitly with the „making available‟ right in digital networks as it says in sub sections (1) that, the communication to the public of the work is an act restricted by the copyright in a literary, dramatic, musical or artistic work, a sound recording or film, or a broadcast. 234Section 20(2) of the Copyright, Design and Patents Act of 1988 of the United Kingdom, as to the references to communication to the public, are to communication to the public by electronic transmission, and in relation to a work include the broadcasting of the work and the making available to the public of the work by electronic transmission in such a way that members of the public may access it from a place and at a time individually chosen by them. 233
131
and Phonograms Treaty (WPPT), known as the “Internet
Treaties”
whereby
these
Treaties
clarify international norms aimed at preventing unauthorized access to and use of creative works on the Internet.235 All in all, the United Kingdom protect copyright both
online
and
offline
and
keeps
on
amending her laws from time to time so as to strengthen the protection of the productive works of minds for the creators of artistic works to enjoy fruits of their labours.
See the WIPO Copyright Treaty and Performances and Phonograms Treaty of 1996 235
132
the
WIPO
3.7 Copyright Protection in Artistic Works in India The Copyright Act236, governs the laws and applicable rules related to the subject of copyrights in India. Copyright Law in India was then governed by the Copyright Act of 1914, which was essentially the extension of the British Copyright
Act237, to
India,
and
borrowed
extensively from the new Copyright Act of the United Kingdom238.
1957(Act No. 14 of 1957) as last amended in 2012, of India. 237 1911 238 Act of 1956 of the United Kingdom. 236
133
All copyright related laws are governed by the Copyright Act, 1957.239 The Copyright Act today is compliant with most international conventions
and
treaties
in
the
field
of
copyrights240. India is a member of the Berne Convention of 1886 (as modified at Paris in 1971), the Universal Copyright
Convention
of
1951 and the
Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement of 1995. Though India is not a member of the Rome Convention of 1961, WIPO Copyrights
The Indian Copyright Act, 1957 (as last amended in 1999). Archived from the original on July 21, 2011. Retrieved 30 September 2012. 240 http://en.wikipedia.org/wiki/Copyright_law_of_Indiaretrieved 23rd July 2014 239
134
Treaty (WCT) and the WIPO Performances and Phonograms Treaty (WPPT)241. Artistic works242 affords legal protection under Indian copyright protection law. Under the said Act, the works under which copyright subsist including artistic works.243 Specifically copyright infringement is dealt with under section 51 of the Act244. This provision provides
for
circumstances
under
which
copyright in a work shall be deemed to be http://en.wikipedia.org/wiki/Copyright_law_of_Indiaretrieved 23rd July 2014 242 Artistic works are covered by copyright law in India is albeit broad ranging from but not limited to a painting, a sculpture, a drawing (including a diagram, map, chart or plan), an engraving or a photograph, whether or not any such work possesses artistic quality; work of architecture; and any other work of artistic craftsmanship. See Section 2 of Copyright Act, 1957 (as last amended in 2012) of India. 243 Section 13 of the Copyright Act, 1957(as last amended in 2012) of India. 244 Act of 1957 (as last amended in 2012) of India. 241
135
infringed to include when any person, without a license granted by the owner of the copyright or the Registrar of Copyrights under the Act or in contravention of the conditions of a license so granted or of any condition imposed by a competent authority under the Act does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or permits for profit any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless
he
was
not
aware
and
had
no
reasonable ground for believing that such communication to the public would be an
136
infringement of copyright; or when any person makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or by way of trade exhibits in public, or imports into India, any infringing copies of the work.245 A fair dealing246 of artistic works in India is not considered as infringement of artistic work. If a
Section 51 (a) (i)-(iv) of the Copyright Act, 1957 (as last amended in 2012) of India. 246 Fair dealing covers research (now only noncommercial research) or private study, criticism, review and reporting current events.The fair dealing provisions allow the copying or other use of the work which would otherwise be an infringement, and in many circumstances the amount of the original work used is very relevant. It may be fair dealing to include 5 per cent of another work for the purpose of criticism or review. It would not normally be fair dealing to 245
137
person uses an artistic work as per Section 52 of the Act247 does not infringe the rights of the author or owner of an artistic work as provided by Section 51 of the Act248. The Copyright Act,249 have gone through numerous amendments including the latest amendment of 2012. This latest amendment includes specifically amendments to rights in incorporate the whole of the other work. The proportion of work taken can be relevant to whether the second author can successfully plead the fair dealing provisions, so this immediately brings into question the relationship between fair dealing and the taking of a substantial part of a work. If the part taken is not substantial, then there is no infringement of copyright and no need to rely on the permitted acts. See Bainbridge, D.I., Intellectual Property, 8Th Edition, (Pearson Education Limited, Edinburgh Gate: England, 2010), at page 213 and Section 52 of the Copyright Act, 1957 (as last amended in 2012) of India. 247 The Copyright Act, 1957 (as last amended in 2012) of India. 248 Ibid, The Copyright Act, 1957 (as last amended in 2012) of India 249 1957 (as last amended in 2012) of India.
138
artistic works. Under this new amendment, exclusive right in respect of a work has been amended.250 3.8 Copyright enforcement in artistic works in India. As far as copyright enforcement is concerned, India has a well established path through which any artist whose work has been or is likely to be infringed may use to access justice. Protection of copyrighted works against infringement commences with Administration of rights of owner by copyright society subject to such conditions as a copyright society may accept
Section 14 of the Act, 1957 (as last amended in 2012) of India, provides for exclusive right in respect of a work. 250
139
from an owner of rights exclusive authorisation to administer any right in any work by issue of licences or collection of licence fees or both251. Specifically, various remedies are open to a creator of artistic work to wit; civil remedies for infringement of copyright in which the law is certain to the effect that, where copyright in any work has been infringed, the owner of the copyright shall, except as otherwise provided by this Act, be entitled to all such remedies by way of injunction, damages, accounts and
251Section
13 of the Copyright Act, 1957 (as last amended in 2012) of India.
140
otherwise as are or may be conferred by law for the infringement of a right.252 Under section 58 of the Act, any infringed copies of an artistic work are deemed to be owned
by
the
owner
of
the
right.
The
amendments clarify the rights in inter alia, artistic work to include „storing‟ of it in any medium by electronic or any other means. This amendment is important as it curbs some of the digital challenges253. As far as Courts‟ jurisdiction is concerned, Section 62 of the Act provides for jurisdiction of Courts over matters arising under copyright Section 55 of the Copyright Act, 1957 (as last amended in 2012) of India. 253 The development in Indian IP Law: The Copyright (amendment) Act 2012 252
141
infringement. It provides that, “every suit or other
civil
proceeding
arising
under
this
Chapter in respect of the infringement of copyright in any work or the infringement of any other right conferred by this Act shall be instituted
in
the
district
court
having
jurisdiction”254. 3.9 Copyright protection in cyberspace in India. As technological developments have made the copyrighted material easier to access and reproduce
and
even
more
difficult
protect,255
India
has
revisited
her
to laws
Section 62 of the Copyright Act, 1957(as last amended in 1999) of India. 255 Mambi A, J. ICT LAW BOOK: A Source Book for Information & Communication Technologies and Cyber Law in Tanzania 254
142
concerning copyright protection on artistic works and made amendments256 so as to keep the protection up-to-date and having the law that protect infringements online or offline. Infringement occurs if any of the acts specified in Section 14 of the Copyright Act257 relating to the work is carried out by a person other than the owner or without license from the owner or a competent authority under the Act it constitutes infringement of copyright258.
& East Africa Community, (Dar es Salaam: Mkuki Na Nyota Publishers Ltd, 2010), at page 197. 256 1999 and 2012 amendments 257 Act of 1957 as last amended in 2012 of India 258 See Section 51 of the Copyright Act, 1957 as last amended in 2012 of India
143
The Act259 has been amended260 so as to include infringements that occur on the cyber space; starting with definition of terms, Section 2 has been amended to include changes on the
definition
of
some
terms
like,
communicating works to the public has been changed to include communication of work on the
cyber
space,261
definition
of
„visual
recording‟ has been changed to include storing in the electronic form.262
Act of 1957 as last amended in 2012 of India 2012 amendment to the Copyright Act, 1957 of India 261 See 2012 amendment to the Copyright Act, 1957 of India on Section 2(iii)(ff) 262 Ibid 259 260
144
Section 14 of the Act263 has been amended to include acts that are done on the cyber space. The amendment in the provision now specifies acts relating to the work that if carried out by a person on the cyber space and if that person is other than the owner or without license from the owner or a competent authority under the Act it constitutes infringement of copyright264. Hence as per these amendments,265 section 51 of
the
Act
covers
protection
on
any
infringement online and offline. India also implements the 1996 WIPO Copyright Treaty (WCT) and the 1996 WIPO Performances The Copyright Act, 1957 of India See 2012 amendment to the Copyright Act, 1957 of India on Section 14 265 2012 amendment to the Copyright Act, 1957 of India 263 264
145
and Phonograms Treaty (WPPT), known as the “Internet
Treaties”
whereby
these
Treaties
clarify international norms aimed at preventing unauthorized access to and use of creative works on the Internet.266 Also the Indian Act has defined copyright as the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely: to reproduce, distribute or disseminate the work in any material form including the storing of it in any medium or by electronic means. The term, „in
See the WIPO Copyright Treaty and Performances and Phonograms Treaty of 1996 266
146
the
WIPO
any medium or by electronic means‟ have cleared the doubt as to the performance of such activities in the digital environment.267 In aspect of the author, the Indian Copyright Law has tried to include literary, dramatic, musical or artistic work as computer generated works in which the author is entitled to such works.
268
This means not only computer
programs are recognized as artistic and literary work in India (as recognized in Tanzania) but any work which is electronically formulated. In terms of Communication to the Public, the Act has defined it as the means making any
267 268
Section 14 (a) (1) of Act No. 27 of 2012. Section 2 (d) (vii) of Act No. 27 of 2012.
147
work or performance available for being seen or heard or otherwise enjoyed by the public directly or by any means of display or diffusion otherwise than by issuing physical copies of it whether simultaneously or at places and times chosen individually, regardless of whether any member of the public actually sees, hears or otherwise
enjoys
the
work
so
made
available.”269 The phrase “by any means of display or diffusion otherwise than by issuing physical copies of it” clearly shows that, communication can be done electronically on either physical
269
Section 2 (ff) of Act No. 27 of 2012.
148
copies or electronic copies of the copyrighted works. The Indian explanation is wide and clear. It terms of rights of the performers. In India, among other rights the performers have the exclusive rights or may authorise for doing of any of acts in respect of the performance or any substantial part as permitted by the law in any material form, including the storing of it in any medium by electronic or any other means.270This means the performer may have the right of online performance of his work. For whosoever
perform
his
work
authorization will be legally responsible.
270
Section 38A (1) (a) (i) of Act No. 27 of 2012.
149
without
In terms of Infringements and Legal Sanctions. Apart from other legal sanctions such as seizure of
the
infringed
copies,271
technological
measures
circumvention,272 Management
protection
of
facilitating
and protection of Rights Information,273
the
Indian
Copyright Act provides that; “Any person who knowingly makes use on a computer of an infringing copy of a computer programme
shall
be
punishable
with
imprisonment for a term which shall not be less than seven days but which may extend to three years and with fine which shall not be less Section 64 of Act No. 27 of 2012. Section 65A of Act No. 27 of 2012. 273 Section 65B of Act No. 27 of 2012. 271 272
150
than fifty thousand rupees but which may extend to two lakh rupees”.274 It further stated that; “Where the computer programme has not been used for gain or in the course of trade or business, the court may, for adequate and special reasons to be mentioned in the judgment,
not
impose
any
sentence
of
imprisonment and may impose a fine which may
extend
to
fifty
thousand
rupees.”275
Therefore, the Act has special provision for computer programs sanctions compare to
274 275
Section 63B of Act No. 27 of 2012. Ibid.
151
Tanzanian Copyright law where such provision has not been provided. 3.10 Lessons that Tanzania can draw from other Jurisdictions The radical transformation of public access to information brought about by changes in computing and communications technologies and accessibility of information through global digital networks cause today‟s stresses in the copyright
law276
as
technological
developments have made copyright material
See Pamela Samuelson and Members of The Copyright Principle Project(CPP), Berkeley Technology Law Journal [Vol. 25:0000 ],The Copyright Principles Project: Directions For Reform, United States, 2010, at page 2. 276
152
easier to access and reproduce, and more difficult to protect”277. As far as copyright infringement in artistic works is concerned, Tanzania has but many aspects to learn from the whole legal framework in India and the United Kingdom. These are explained as follows:As a matter of strengthening their laws on protecting artistic works, India and the United Kingdom implements international instruments that deal with the issue of protection of artistic
Mambi A, J. ICT LAW BOOK: A Source Book for Information & Communication Technologies and Cyber Law in Tanzania & East Africa Community, (Dar es Salaam: Mkuki Na Nyota Publishers Ltd, 2010), at page 197. 277
153
works.278 Tanzania could learn from this, and by domesticating (particularly domesticated
international
those yet)
instruments
which
have
not
that
deal
with
been the
protection of artistic work in Tanzanian laws and implement them, will be a major impact towards efficient legal framework on protecting artistic works. The term “artistic work” is not straight forward term and is not defined under Tanzania Copyright and Neighbouring Act279 like in the
Example, the Copyright, Designs and Patents Act of 1988 of the United Kingdom shows application of the Berne Convention in case of originality of the work as according to section 15A of the Act 279 Cap 218 R.E 2002 of Tanzania. 278
154
Copyright Act280 and the Copyright, Designs and Patents Act281. To avoid confusions and from broad definitions in the aspects of protection of artistic works. The copyright and neighbouring Act282 should be amended and shall provide the clear definition of artistic works as provided by other legislations, for strictly enforcement of copyright once artistic works are infringed.
See Section 2(c) of the Copyright Act, 1957 (as last amended in 1999), of India. artistic work" means; a painting, a sculpture, a drawing ( including a diagram, map, chart or plan) , an engraving or a photograph, whether or not any such work possesses artistic quality; work of architecture; any other work of artistic craftsmanship. 281 See Section 4(1)(a)-(b) of the Copyright, Designs and Patents Act, 1988 of the United Kingdom. “artistic work” means; a graphic work, photograph, sculpture or collage, irrespective of artistic quality; a work of architecture being a building or a model for a building, or; a work of artistic craftsmanship. 282 Cap 218 R.E 2002 of Tanzania. 280
155
The Copyright, Designs and Patents Act of 1988283 was enacted as an attempt to keep abreast
of
developments
in
technology
coupled with an intention to enact legislation that would take future change in its stride284 and by several amendment conducted in the Act has strengthened the protection of artistic works. Tanzania could do the same by making sure that the laws that deal with the protection of artistic works are up to date and that will cover on future challenges. This may be done by amending the Copyright and Neighbouring For the matter of technological development, it was amended by the Copyright (Computer Programs) Regulations 1992 and the Copyright and Rights in Databases Regulations 1997 284 Bainbridge, D.I, Intellectual Property, 8Th Edition, (Pearson Education Limited, Edinburgh Gate: England, 2010), at page 247 283
156
Rights Act285 from time to time so as to make if flexible and able to cover future challenges. Further to that, Tanzania has to adopt changes in its copyright law to cope with the changes in science
and
technology.
This
has
been
observed under the recent amendment of India
Copyright
Act,286
by
the
copyright
(Amendment) Act287 to introduced “storing” as to curb the lacuna in this digital era. All in all, Tanzania has a lot to learn from both India and the United Kingdom including, strengthening the enforcement institutions and she can learn this from the United Kingdom by Act No. 7 of 1999[R.E 2002] of Tanzania 1957 287 2012 285 286
157
making special tribunals to deal with copyright infringement culprits. 3.11 Tanzania towards efficient legal framework against infringement of artistic works. Although
there is a legal
framework
on
copyright law that protects artistic works in Tanzania288 but the issue of artistic work is not well addressed in the law as according to the technological developments as, technological developments have made copyright material easier to access and reproduce, and more difficult to protect289.
Copyright and Neighbouring Rights Act of 1999[R.E 2002] of Tanzania. 289 Mambi A, J. ICT LAW BOOK: A Source Book for Information & Communication Technologies and Cyber Law in Tanzania 288
158
There is a need to redefine certain terms in the Copyright
and
Neighbouring
Rights
Act290
focusing on artistic works so as to strengthening protection of artistic works and to deal with all types infringements, online and offline. The Act should be amended and shall provide the clear definition of artistic works for strictly enforcement of copyright once artistic works are infringed and for just clear understanding of the Act in general. It must be ensured that intellectual property laws are up to date and more effective in dealing with emerging intellectual property & East Africa Community, (Dar es Salaam: Mkuki Na Nyota Publishers Ltd, 2010), at page 197. 290 Act No. 7 of 1999[R.E 2002] of Tanzania
159
rights challenges posed by the development of digital technology. The fact that due to rapid development of digital technology, “the World Web has now become the famous Bazaar of Intellectual
Property”291
and
“internet
is
becoming broadcasting system”292 and so “intellectual property rights can be infringed anywhere digitally”293 either by using internet as the
“internet
does
not
recognize
boundaries”.294
See Lloyd Ian, Information Technology, 3rd Edition, Oxford University Press: New York, 2000, at page 304. 292 Mambi A, J. ICT LAW BOOK: A Source Book for Information & Communication Technologies and Cyber Law in Tanzania & East Africa Community, (Dar es Salaam: Mkuki Na Nyota Publishers Ltd, 2010), at page 199. 293 Ibid, Mambi, at page 198 294 Ibid, Mambi, at page 198 291
160
By ensuring that, civil and criminal remedies are available against any intellectual property rights infringement be it in physical or cyber space295 will make infringers who infringe rights of creators of artistic works to be afraid of performing
any act
that
will
amount
to
infringement of intellectual property rights that subsist in artistic works. The Act is too general to all literary and artistic works
and
doesn’t
say
much
on
the
infringement of artistic works that are done online since the “technological developments Section 9 and 11 of the Copyright and Neighbouring Rights Act of 1999[R.E 2002] provide for acts that are to be claimed for copyright infringement although it does not show performance of these acts online, further more Part V of the Act need to include remedies on the infringement that is done online. 295
161
have made copyright material easier to access and
reproduce,
and
more
difficult
to
protect”296 and due to lack of effective legal framework that provide intellectual property rights protection electronically, most authors, innovators or creators of those rights are vulnerable
of
online
infringements
and
economic loss as pirates can just download free of cost electronically.297 The law should further provide for deterrent penalties which should be geared towards strictly
prohibiting
any
kind
of
copyright
infringement in artistic works. Finally, the same
296 297
Ibid, Mambi, at page 197 Ibid, Mambi, at page 212
162
law should provide for separate enforcement institutions such as tribunals to avoid pressure of other litigations in normal judicial system. 3.12 Conclusion On the light of the foregoing, it is worth noting that
protection
of
artistic
works
against
unwarranted infringements is something
a
country like Tanzania cannot overlook. Its importance needs no struggle to understand as it
ranges
from
protecting
creativity
to
protection of nation‟s economy. Suffice it to say that in a country of mushrooming artists‟ works
like
Tanzania
where
alternative
employment opportunities are such limited,
163
protection of works of arts need a credible emphasis.
164
Chapter Four Remarks and the Way Forward Towards Digital Challenges in Protection of Artist Works in Tanzania 4.1 Introduction The study shows that, Tanzania has insufficient legal framework on protection of artistic works against infringements. Important changes need to be done sooner for strengthening the protection of artistic works and encourage authors to create many more valuable works. Among other things, there must be changes in Tanzanian laws protecting artistic works as recent law lacks efficient mechanisms to
165
provide efficient protection on the artistic works. Other specific recommendations are explained as follows:4.2.1 Recommendations to the Judiciary Justice to be surely provided to the authors and creators
of
artistic
works
in
case
of
infringement. Karl Llewellyn298 in his writing299 stated that rules as rules do not confer any rights or liabilities, these two are conferred at interpretation level. Thus the judiciary being the body with powers to interpret laws300 it has a duty to ensure that the right of authors and creators
of
artistic
works
are
sufficiently
(1983 – 1962) Common law tradition, 1960 300 Article 4 of The Constitution of The United Republic of Tanzania of 1977 298 299
166
protected by giving well thoughtful decisions against those found guilty of infringing the rights of authors and creators of artistic works. Legal forum, judges should conduct forums with the aim of educating people about the rights of authors and creators of artistic works and the law protecting the same. Public awareness on the rights of authors and creators of artistic works will increase and therefore less infringement acts. 4.2.2 Recommendations to the General Public General public should be educated on the intellectual property rights and specifically on the rights vested to the creator of artistic work so as to lessen the infringement. Through this,
167
the general public will be aware of author‟s rights
and
especially
on
permitted
and
restricted acts while dealing with artistic works. As a large number of people will be aware of rights vested to the authors of artistic works and legal consequences that they may face if they infringe those rights, the level of piracy will decrease hence less infringements. The general public should be very supportive while respecting many
devoted hours of
authors and creators on creating artistic works. The well productive work of mind and efforts made by creators of artistic works in the whole process of making artistic works into existence is a
very
important
contribution
168
towards
developments as evidenced by many large bridges and buildings made by architectures. Therefore it is important for the public to support these efforts so as to encourage innovations. The public can support and show their respect to author‟s efforts by avoiding acts which amounts to infringement of
rights of
authors and creators of artistic works, such as unauthorized copying artistic works301. People should abide the law; the law restricts certain acts in dealing with an artistic works. Therefore people should abide the law by only involving
Section 17 of the Copyright, Designs and Patents Act of 1988 of the United Kingdom. 301
169
themselves in permitted acts; this will help to reduce the infringement of artistic works. 4.2.3 Recommendations to the Bar The bar should provide a legal education on the rights of authors and creators of artistic works
to
the
public.
Section
4
of
The
Tanganyika Law Society Act302 provides for the objects of establishment of the society to include, protecting and assisting the public in Tanzania in all matters touching, ancillary or incidental to the law. Therefore it is a duty of members of the bar to ensure that they offer a helping hand to the government in providing legal education to the public as well as 302
Chapter 307 of 1961
170
creators of artistic works on matters of legal protection of artistic works. The bar should assist the court in matters of protecting artistic works; a lawyer is not only a legal representative of a party in a case but also a friend of the court303. Therefore members of the bar have got a duty to assist the court in matters of protecting artistic works such as bringing to the knowledge of the court all previously decided cases relating to the issue in question304, so as to make sure justice is done to the parties in a case.
Rondel v. Warsley 1966, vol3, Weekly Law Report 950 Fauz Twaib, The Legal profession in Tanzania, Bayreuth African studies, 1997 303 304
171
4.2.4 Recommendations to the Policy Makers Policies do not only help to make people aware of the rights of protecting artistic works, but also insist the people on importance of observing those rights towards developments of those creators and authors of artistic works. Therefore policy makers should make policies which promote rights of creators and authors of artistic
works
and
reduce
the
extent
infringements. 4.2.5 Recommendations to the law makers With
the
movement
constitution,
the
of
new
creating
United
a
new
Republic
of
Tanzania Constitution should make specific provision for protection of intellectual property
172
rights as among of the basic rights as ownership right
is
protected
Constitution
of
in
Article
United
of
24
of
the
Tanzania305.
Amendments should be made to the Copyright and Neighbouring Rights Act306, as time to time amendments will make the statutes flexible and efficient for providing legal protection of artistic works. Despite of having Cyber Crime Act, 2015, still we need particular law on artistic works to be also amended so as to keep pace with these technological changes.
305 306
Of 1977 as amended from time to time Act No. 7 of 1999, R..E 2002
173
4.1.6
Recommendation
to
the
Copyright
Society of Tanzania (COSOTA) The society should conduct as many seminars as they can for educating the creators and authors of artistic works and the public on the rights of authors of artistic works. This will help to promote rights of creators and authors of artistic works and therefore help the copyright society to fulfill its duty of promoting rights of creators
and
authors
of
artistic
works.307
Therefore with promotion of rights of creators and authors of artistic works, infringement acts will be lessen day after day and the creators Section 47(a) of the Copyright and Neighbouring Rights Act, No.7 of 1999 [R.E 2002] of Tanzania provides for protection and promotion of author‟s rights as a duty of the society. 307
174
and authors of artistic works shall benefit from their productive works of their minds. The offices of COSOTA should not base only in Dar es Salaam, it should have branches in other regions so that creators of artistic works from those regions rather than Dar es Salaam could use the office in protecting their works. To advice the minister on the need for domestication of the international instruments relating to protection of artistic works to which Tanzania is a signatory308.
Section 47(e)of The Copyright and Neighbouring Rights Act,No7of 1999 [R.E 2002] of Tanzania provides that one the duties of the society is to advice the minister on all matters under the Act 308
175
By strengthening the protection of artistic works, it will bring upon efficient protection of rights of creators and authors of artistic works. 4.2 Conclusion Article 24 of the Constitution of the United Republic of Tanzania309 provides on the right to own property that 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
Lohay310.The
court
The Constitution of the United Republic of Tanzania of 1977, as amended from time time. 310 [1995] TLR 80 (CA). 309
176
quoted an article by Nyerere in his book,311he 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 mine as long as I continue to work on it. By clearing that ground I
Mwalimu Julius K. Nyerere (1966). Freedom and Unity, Oxford University Press.London. 311
177
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 the 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
178
by me in clearing the land enable me to lay claim of ownership over the cleared piece of ground. The last sentence of the quotation implies the economic right of the owner of the work. Recently the new law THE CYBERCRIMES ACT, 2015, Act No.14 has been enacted. This Act in no doubt extent has tried to solve several problems relating to protection of intellectual
property
rights
in
digital
environment, particularly on artistic works.
179
For example Section 3 of the Act312 has defined what intellectual property rights mean state that; "intellectual property rights" means the rights accrued or related to copyright, patent, 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; 312
The Cybercrimes Act, 2015
180
(b) Information, including an electronically produced program or data or copy thereof, human or computer-readable data; or (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
imprisonment for a term of not less than three years or both; or
181
(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 or a contracting party of the agreement, for example the country has not signed and ratified
the
Convention
182
relating
to
the
distribution
of
program
carrying
signals
transmitted by the satellite of 1974.313 This
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 only one right will be claimed digitally (private rights) and leaving the other rights (public rights) hanging, thus
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=283796retrieved on 21st July 2013. 313
183
twisting the balance between the protection of both public and private rights. The research conducted has revealed that, there is inefficient legal protection of artistic works in Tanzania as compared to India and the United Kingdom. This means Tanzania has to learn from both India and the United Kingdom regarding on the matter of protection of artistic works. To strengthen the protection and discourage restricted acts on artistic works; there must be changes to the laws of Tanzania as recommended on previous discussion of this paper. These recommendations should be taken into consideration in order to
184
obtain efficient
protection of artistic works in Tanzania so as to encourage the spirit of creativity among the creators and authors of artistic works. Despite of having this Cybercrimes Act, 2015, still we need to improve our other written laws such as 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
copyright.
185
particularly
in
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