COPYRIGHT PROTECTION IN TRADITIONAL ...

COPYRIGHT PROTECTION IN TRADITIONAL KNOWLEDGE AND DEVELOPMENT OF INFORMATION AND COMMUNICATION TECHNOLOGY Prepared By Asherry Magalla

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: 2015-10-20 13:19+03:00

Copyright © 2015 Asherry Magalla. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system, without permission in writing from the publisher. Details on how to seek permission, further information about the Publisher‘s permissions and other arrangements can be obtained through his email, [email protected] This paper and the individual contributions contained in it are protected under copyright by the Publisher (other than as may be noted herein).



LL.B Degree Holder at the University of Iringa (Formerly known as Tumaini University Iringa University College) 2009-2012, Masters Holder in Information, Communication and Technology Law at the University of Iringa 2012-2013. Member of Non-Governmental Organization NOLESA (The Noble Legal and Social Organization (Association)). Articles and Legal Papers Author at academicians website www.academia.edu, and http://www.researchgate.net, http://www.researchgate.net/ Consultant on legal issues of ICT. Contact details, email, [email protected]

1

1.0 INTRODUCTION The concept of traditional knowledge is a well known concept simply because it originates from a particular group whereby such knowledge is found. For example, the people from Central of Tanzania, mostly from Gogo Tribe they have a certain knowledge on how their Kigoda1 is made or how their traditional songs are sound different from other songs from other tribes. They also know on how their different medicines are made, which tree or leaves is suitable for creating a certain medicine. This is what we call traditional knowledge, knowledge from the origin. One among the concepts which tries to protect traditional knowledge is copyright which protect the exclusive literary and artistic works of the original owner Kigoda is a chair-like structured instrument which used by many people from Gogo and Hehe Land to sit when cooking or drinking pombe/alcohol during a pombe party. It mostly used for sitting purpose. 1

2

(s) as provided by a particular law of a particular country. The problem came in the protection of this traditional knowledge,

when

the

science

and

technology

developed as these development speeds up the infringement

of

the

rights

obtain

in

traditional

knowledge from the owner (s) of such knowledge. The bad thing, most of the laws in third world countries (particular

in

Tanzania)

do

not

have

sufficient

mechanism in protecting this traditional knowledge. This paper entails to discuss those challenges facing the protection of traditional knowledge (both traditional and online protection) and how does our law (particular copyright laws) respond to such challenges.

3

1.2 WHAT IS TRADITIONAL? It has to be understood that a word traditional it is different from norms and customs of a certain society. I say this because there have been a misunderstanding between

these

two concepts

in

terms

of

their

meanings. When a group of people having certain rules to guide their ways of living and decide to rely up such rules, and it came to our mind that such rules have been practice for a number of years from generation to generation. Those rules are known as traditions, means ways of living of a particular society. For example, it is our traditional that only male and a woman could have marital union depending on the religion of the person (s), but it is not our tradition and it is against the national ethics for the person (s) of the same gender to have such marital union.

4

In terms of tribes, each Tanzanian tribe has it own traditional song which is quite different from another tribe. And they are unchangeable as these songs remain the same throughout the period in which such tribe was formed. Norms as norms cannot be compared with traditions due to the fact of how a certain norm and tradition last over a period of time. Therefore; When a group of people having certain rules to guide their ways of living and decide to rely up such rules, and it came to our mind that such rules have been practice for a limited period of time, and then passes or demolished for such period of time. Those rules are known as norms,2 means ways of living of a particular

Norms include food taboos, talking taboos, dressing taboos, cooking taboos, farming taboos etc. take an example of dressing taboos, and in 1940s a person wore a trouser above the waist, but as the years goes on and science developed, the dressing style of a trouser changed, now it is below a human waist. This is example of dressing taboos on how norms change from time to time 2

5

society which does not last for a long period of time. Norms normally changes according to development of science and technology. For example, in 1980s, 1990s and some years back, it was prohibited to some tribes in Tanzania, for a child or a pregnant woman to eat a certain type of food like eggs, as it was believed that such type of food might be harmful to a child, both born and unborn. But this norm does no longer exist in the current world and if it exists, it exists to a few numbers of societies who are still conservative.

The

development

of

science

and

technology has change this norm as it is for the better health of the child (both born and unborn) and the mother to have such kind of food the better growth development.

6

1.3 WHAT IS KNOWLEDGE? The term knowledge can be described in many different ways depending on the nature of the place where people came from. As far as I understand knowledge is the ability of a person to do the following things; 1.3.1 TO ASK In every human being, brain is the main aspect that differentiates between one person and another person. Despite the fact that this aspect of brain work or known as working rate of the brain is different to those person (s) with mental disorder, as they were born with such problems. But for a perfect human being with no mental problems may have the same brain‘s ability or working rate. This means if every person could have used at least half of their brain, we could have a lot of people who are called genius or mastermind. But as

7

the fact that each human being have different working rate of the brain, that is why we have different thinking capacity. If every human being could use a hundred percent (100%) of his/her brain, as I said before the world could be full of genius and more knowledgeable persons. One among the way to increase to have knowledge is by asking. When a person ask there are two things involves; first, a person ask simply because he/she does not know about the concerned facts (asking of the unknown facts); second, a person ask about something that he/she already know but for the sake of increasing the knowledge of the asked facts, he/she asked again (asking of the known facts). So from this point of view asking is knowledge.

8

1.3.2 TO GIVE REASON To give reason may also act as one among the thing which gave a rise to knowledge. When a person gives reasons to something which he or she described before, and such reasons became reasonable (from the doctrine of reasonability), then such person is said to have knowledge or acquire the knowledge over such matter he she described before. 1.3.3 TO SCRUTINIZE This means; Examine something

very carefully in order to discover

information or to examine in detail with careful or critical attention.3 When you ask a person about something, and you give a reason as to why you have asked such question or

http://dictionary.reference.com/browse/scrutinize and http://dictionary.cambridge.org/dictionary/british/scrutinizeretrieved at 30th March 2015 3

9

you have give a reason as to why you are arguing on the said concept, this will give you a knowledge as the fact that at the end you will scrutinize or examine as to why you did asked such question to the person, and why you gave the reasons for the asking of the said concept to such person.

Because it is from that

analysis which gave a person enough information about the concept requested before hence acquires knowledge. From this scrutiny, it is where the answers from the questions asked before and the reasons stated before could

be

given,

and

thus

giving

the

clear

understanding of what has been asked and reasons being given to create a knowledge of the concept asked and reason given. In religion concept, some they argued that God is Omnipotent, Omnipresent, and Omniscient.

10

If God is Omnipotent,4 Omnipresent,5 and Omniscient,6 then knowledge is God. Because knowledge has universal and unlimited power, knowledge is present everywhere that you cannot hide from knowledge, Omnipotence is the quality of having unlimited power. Monotheistic religions generally attribute omnipotence to only the deity of their faith. In the monotheistic philosophies of Abrahamic religions, omnipotence is often listed as one of a deity's characteristics among many, including omniscience, omnipresence, and omnibenevolence. The presence of all these properties in a single entity has given rise to considerable theological debate, prominently including the problem of theodicy, the question of why such a deity would permit the manifestation of evil. Read more:http://www.gotquestions.org/Godomniscient.html#ixzz3f8359QLp-retrieved on 6th July 2015 5 Omnipresence or ubiquity is the property of being present everywhere. This property is most commonly used in a religious context as an attribute of a deity or supreme being.The omnipresence of a supreme being is conceived differently by different religious systems. In monotheistic beliefs like Christianity, Judaism, and Islam the divine and the universe are separate, but the divine is present everywhere. Inpantheistic beliefs the divine and the universe are identical. In panentheistic beliefs the divine interpenetrates the universe, but extends beyond it in time and space. Read more:http://www.gotquestions.org/Godomniscient.html#ixzz3f8359QLp-retrieved on 6th July 2015 6 Omniscienceis defined as ―the state of having total knowledge, the quality of knowing everything.‖ For God to be sovereign over His creation of all things, whether visible or invisible, He has to be all-knowing. His omniscience is not restricted to any one person in the Godhead—Father, Son, and Holy Spirit are all by nature omniscient.Read more:http://www.gotquestions.org/Godomniscient.html#ixzz3f8359QLp-retrieved on 6th July 2015 4

11

and knowledge is Omniscient, because science is knowledge. But at the end some they argued that we cannot escape from the reality that God created knowledge. When He said, and let be the sun during the day, He knew that the sun have the light. When he created Eve to come and help Adam, he knew that how Eve must be created different from what Adam is. Therefore God created knowledge and it is from the knowledge that God created we get to know Him better. 2.0 THE MEANING OF TRADITIONAL KNOWLEDGE The traditional knowledge that might qualify for copyright or copyright-related protection consists of the stories, music, dances, art and design that are part of the life of a traditional group. Traditional knowledge is the usual name but, as we have seen, copyright

12

protects

―works‖ not ―knowledge‖. So traditional

knowledge of this sort is often, more correctly, called folklore, traditional cultural expressions or works of traditional

knowledge.

In

Tanzania

Traditional

Knowledge is protected in Part III of the Copyright and Neighbouring Rights Act, Cap. 218 R.E. 2002 through a Competent Authority (See S. 29 of CNA).7 As I said earlier; The concept of traditional knowledge is a well known concept simply because it originates from a particular group whereby such knowledge is found. For example, the people from Central of Tanzania, mostly from Gogo Tribe they have a certain knowledge on how their Kigoda8 is made or how their traditional songs are sound different from other songs from other tribes. They Copyright and Neighbouring Right Act, [Cap. 218, R.E.2002] Kigoda is a chair-like structured instrument which used by many people from Gogo and Hehe Land to sit when cooking or drinking pombe/alcohol during a pombe party. It mostly used for sitting purpose. 7 8

13

also know on how their different medicines are made, which tree or leaves is suitable for creating a certain medicine. This is what we call traditional knowledge, knowledge from the origin. Therefore, traditional knowledge is the knowledge from the locality of a certain traditional unity which passed from one generation to another generation of such indigenous group.9 Definitions from other authors: As expressed by Mackenzie Valley Environmental10 Impact Review Board Traditional knowledge is not a static wisdom and it is difficult to define due to its dynamic nature. However, in considering the broad The inheritors and practitioners of unique cultures and ways of relating to other people and to the environment. Indigenous Peoples have retained social, cultural, economic and political characteristics that are distinct from those of the dominant societies in which they live. 9

Mackenzie Valley Environmental Impact Review Board, Guideline for Incorporating Traditional Knowledge in Environmental Impact Assessment, July 2005. 10

14

definition of “impact on the environment”, there are three important elements of traditional knowledge that will contribute to the EIA process as set out in the MVRMA. 1) Knowledge about the environment This is factual or ―rational‖ knowledge about the environment.

It

includes

specific

observations,

knowledge of associations or patterns of biophysical, social

and

cultural

phenomena,

inferences,

or

statements about cause and effect, and impact predictions. All are based on direct observation and experience, shared information within the community and over generations. 2) Knowledge about use and management of the environment This is the knowledge that people have about how they use the environment and about how they

15

manage

their

relationship

Examples

include

activities,

land

use

cultural

with

the

practices

patterns,

environment. and

archeological

social sites,

harvesting practices, and harvesting levels, both past and current. 3) Values about the environment This

knowledge consists

of

peoples‘ values

and

preferences, and what they consider ―significant‖ or valued components of the environment, and what they feel is the ―significance‖ of impacts on those valued components. Aboriginal spirituality and culture plays a strong role in determining such values. This element of traditional knowledge includes moral and ethical statements about the environment and about the relationships between humans, animals, and the environment; the ―right way‖ to do things.

16

―TEK is a cumulative body of knowledge and beliefs, handed

down

through

generations

by

cultural

transmission, about the relationship of living beings (including humans) with one another and with their environment. Further, TEK is an attribute of societies with historical continuity in resource use practices; by and large, these are non-industrial or less technologically advanced societies, many of them indigenous or tribal‖.11

―Traditional environmental knowledge is a body of knowledge

and

beliefs

transmitted

through

oral

tradition and first-hand observation. It includes a system of classification, a set of empirical observations about the

11

local

environment,

and

(Berkes 1993:3)

17

a

system

of

self-

management that governs resource use. Ecological aspects are closely tied to social and spiritual aspects of the knowledge system. The quantity and quality of TEK varies among community members, depending upon gender, age, social status, intellectual capability and profession (hunter, spiritual leader, healer, etc.). With its roots firmly in the past, TEK is both cumulative and dynamic, building upon the experience of earlier generations and adapting to the new technological and socioeconomic changes of the present‖12 ―TEK could be characterized as the knowledge claims of those who have a lifetime of observation and experience of a particular environment and as a result function very effectively in that environment, but who are untutored in the conventional scientific paradigm .

(Dene Cultural Institute 1995 in English translation, quoted in Stevenson 1996: 281) 12

18

. . . TEK is not privileged or secret knowledge in the way that certain other cultural phenomena, such as ritual, healing, or spirituality, may sometimes be.‖13 ―Indigenous knowledge is the essence of the identities and world views of Indigenous peoples. Traditional knowledge constitutes the collective heritage and patrimony of Indigenous peoples.

Therefore it is

priceless to us, and its value cannot be calculated for economic exploitation.‖14 ―Traditional

Ecological

Knowledge

is

a

body

of

knowledge built up by a group of people through generations of living in close contact with nature. Traditional Knowledge is cumulative and dynamic. It builds upon the historic experiences of a people and adapts to social, economic, environmental, spiritual and political change. The quantity and quality of 13 14

(Usher 2000: 186-189) (International Indigenous Forum on Biodiversity 2003: Item 7)

19

Traditional

Knowledge

differs

among

community

members according to their gender, age, social standing, profession and intellectual capabilities. While those concerned about biological diversity will be most interested in knowledge about the environment, this information must be understood in a manner which encompasses

knowledge

about

the

cultural,

economic, political and spiritual relationships with the land.15 ‗It provides a distinctive worldview of which outsiders are rarely aware, and at best can only incompletely grasp.16 ―Indigenous

knowledge

is

an

important

natural

resource that can facilitate the development process in cost-effective, participatory, and sustainable ways).17

(Brockman and Legat, 1995) (Greaves 1996).‖ (Brockman and others 1997:n.p.) 17 (Vanek, 1989; Hansen and Erbaugh, 1987 15 16

20

Indigenous knowledge (IK) is local knowledge – knowledge that is unique to a given culture or society. IK contrasts with the international knowledge system generated by universities, research institutions and private firms. It is the basis for local-level decisionmaking in agriculture, health care, food preparation, education, natural resources management, and a host of other activities in rural communities. Such knowledge is passed down from generation to generation, in many societies by word of mouth. Indigenous knowledge has value not only for the culture in which it evolves, but also for scientists and planners striving to improve conditions in rural localities.‖18

18

(Warren 1991:1)

21

2.2 ORIGIN OF TRADITIONAL KNOWLEDGE PROTECTION (WESTERN PERSPECTIVE) Traditional knowledge worked well enough until people from

the

developed

Western it

met

European

countries

communities

with

that

had

their

own

understanding of traditional knowledge. Those from Western Europe assumed they were free to use the traditional knowledge of these communities in the same way they used the common knowledge of their own society. In return members of the communities were free to use what was common knowledge in Western Europe. This common knowledge included the contributions of individual authors, artists and inventors for which copyright (and patent) protection had ended.

22

An exchange of this sort poses two problems. The first is that some individuals in Western Europe ignored the prior existence of works of traditional knowledge in the hands of the traditional communities t h a t had produced them. They passed themselves off as the authors o f these works and claimed copyright i n them.

Be- cause

many

works

of

traditional

knowledge are oral and not well known outside the community that produced them, there was little to stop

these

individuals.

Even

when

traditional

communities knew that outsiders were appropriating their k n o w l e d g e , they u s u al l y were not in a position to challenge them. Another problem has to do with outsiders using traditional knowledge commercially. This is because some traditional communities

do

not

see their

traditional knowledge as a source of wealth. Rather

23

they see it as what creates their community and expresses their identity.

They regard anyone who

knows and lives by the traditional knowledge of their community as a member of the community. when

the

traditional

knowledge

of

such

So, a

community becomes public or is used to create wealth, it weakens the community it is supposed to create.

2.3

INTERNATIONAL

PROTECTION

OF

TRADITIONAL

KNOWLEDGE International knowledge, countries

protection as

with

for

works

copyright

of

traditional

protection,

needs

to agree on a minimum standard of

protection. It also needs countries to come together to grant this protection to works of traditional knowledge from

other countries. As

24

with early international

copyright

protection,

these

agreements

can

be

bilateral or regional. But the best protection for works of traditional

knowledge would be an international

agreement. Since

2001

WIPO

has

been

hosting

an

Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (the IGC) that has been working to produce such an agreement. Following two weeks of text-based negotiations, the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) of the World Intellectual Property Organization (WIPO) revised and forwarded to the WIPO General Assembly two sets of draft articles on traditional

knowledge

and

traditional

cultural

expressions. These drafts, along with the draft on intellectual property and genetic resources forwarded

25

by the IGC in February 2014, could form the basis of one or more international legal instruments.19

2.4 HOW

CAN

TRADITIONAL

KNOWLEDGE

BEING

PROTECTED? 2.4.1 ORIGINAL WORKS Copyright protects a literary or artistic work. The works of traditional

knowledge

to

which

copyright

protection might apply are stories, music, dances, art and design. These works qualify as literary or artistic works. Copyright only protects original works. The works of traditional knowledge copyright might protect must once have been original. Whether a particular work was created so long ago that the term for copyright

read more: http://biodiversity-l.iisd.org/news/wipo-igc-refinesdraft-articles-on-traditional-knowledge-cultural-expressions/ 19

26

protection has ended is something we will look at below.20 Different

communities

knowledge.

may claim similar traditional

They may have arrived

at this

knowledge independently, which would not prevent each community having copyright in the knowledge. If one community had copied from another or if they had both copied from a third community, then the community that created

the work will hold the

copyright.

2.4.2 FIXATION Fixation is

a

problem with works of

traditional

knowledge. Most countries, as we have seen, require a work to be fixed to qualify for copyright protection. Traditional works such as buildings or sculptures will 20

See Section 24 of the Copyright and Neighbouring Rights Act, [CAP.218 R.E. 2002]

27

satisfy

this

requirement.

But,

in

traditional

communities, stories, songs and dances are often not fixed. This has meant the first person to ―fix‖ a work of traditional knowledge has been able to claim copyright i n

it.

This person m a y

have been a

researcher who records or transcribes music or stories for research or archival purposes.

Or it may have

been someone l ookin g for new material to use for commercial purposes.21 Article 2(2) of the

Berne Convention does

not

require a work to be fixed to qualify for copyright protection. It leaves member countries to decide ―that works in general or any specified categories of works shall not be protected unless they have been fixed in some material form‖. This means a country

Julien Hofman, Introducing Copyright (A Plain Language Guide to Copyright in the 21st Century) Commonwealth of Learning Vancouver (2009) 21

28

can decide that a category of works, such as those of

traditional

knowledge,

shall

have

copyright

protection even though they are not fixed in material form. In Tanzania Copyright legislation it states that; Works shall be protected irrespective of their form of expression, their quality and the purpose for which they were created.22 By the term, ―Works shall be protected irrespective of their form of expression‖ it implies that even if such work is not yet fixed in the physical form, the work will gain copyright protection, thus it complies with Article 2(2) of the Berne Convention does not require a work to be fixed to qualify for copyright protection.

Section 5 (3) of Copyright and Neighbouring Right Act, [CAP.218 R.E. 2002] 22

29

2.4.3 AUTHORSHIP We have seen that copyright needs an author who will be the first holder of copyright in a work. With works of traditional knowledge, however, it is often not possible to identify an individual author.

This

problem can be dealt with in three ways. Article 15(4) protection: It appears to have been an attempt to recognize an author

for works of traditional knowledge.

It

does this by equating works of traditional knowledge to unpublished works of an unknown author. Joint Authorship Another w a y

to protect

works of traditional

knowledge would be to rely on Article 7bis of the Berne Convention. authors

Article 7bis recognizes

who together

are the

first

holders

joint of

copyright in a work. The Berne Convention does

30

not

limit

the

number

of

joint

authors,

so

if

members of a community have jointly created a work of traditional knowledge, then they will all be the joint authors of the work. The law that governs joint copyright, p r e s u m a b l y , r e f l e c ts the law of joint ownership. While this law varies from

country to

country, j o i n t ownership

usually requires j o i n t c o n s e n t .

Usually

joint

authors give this consent in express terms, but there seems no reason the members of a traditional community

cannot

being joint authors

give an implied consent of a work

they create.

to Joint

ownership also requires all joint owners to agree when disposing of what they own. With joint owners of

a

work

of

traditional

31

knowledge,

shared

agreement could be problematic.23

Corporate Ownership Allowing a tr a d i ti o n a l co m m u n ity some form of corporate

ownership

in

works

knowledge is another possibility. would

combine

elements

of

the

of

traditional

This approach previous

two

approaches. Nothing

in the Berne Convention stops a country

from recognizing

corporate legal identity

in a

traditional community. This corporate body would then be able to claim copyright in its works of traditional knowledge.

Other

would then have to protect

member countries this copyright

in the

same way as they protect the copyright held by a 23Julien

Hofman, Introducing Copyright (A Plain Language Guide to Copyright in the 21st Century) Commonwealth of Learning Vancouver (2009)

32

person living in a member country or the copyright held by a company or trust registered in a member country.24

2.4.4 TERM OF PROTECTION From the date of d e a t h . A difficulty with allowing copyright

protection for traditional knowledge

that an essential feature of copyright, the Anglo-American

common

is

at least in

law and

Berne

Convention traditions, is that copyright protection should last only for a limited time. Copy- right in a traditional work would be unacceptable to this tradition without some way to set a term to it. The Berne Convention recognises two ways of setting a term to copyright, and it would be possible to use

24Julien


33

either for a work of traditional knowledge. When dealing with a work of joint authorship, article 7bis says this should be done ―from the death of the last surviving author‖. This would mean, for a work o f traditional knowledge, from the death of the last surviving member of that community. This is not a trick to avoid setting a term traditional

knowledge.

contributed works civilisation

but

Many

of art and no

longer

for

communities

literature to our exist.

Language

communities are disappearing and it is possible, because of the pressures of globalisation, that some of today‘s traditional communities will no longer be with us tomorrow. Should this happen, no one would be

left

to

assert

the

community‘s rights

34

in its

traditional knowledge.25 From the date of publication:

When dealing with

authors and artists who are not nationals member

country,

article

3

of

the

of a Berne

Convention calculates copyright term from when the work

is published.

The Convention could be

revised to apply this way of calculating the term to works of traditional knowledge. If works of traditional knowledge d o not have to be fixed, it would be necessary to consider revising what Article 3(3) says about public performance not amounting to publication. It should still be the case, as article 3(3) says, that p u b l i c a ti o n

should m e a n

published with the consent of the authors.

25Julien


35

2.4.5 HOLDERS’ RIGHTS If a traditional community has copyright in a work, then it would have the usual rights of a holder. These rights would include the right to license using works for a fee (See S.28 of CNA).26 It would also include the right, for those communities t h a t wanted to preserve the secrecy of their traditional knowledge, to prevent others using a work of traditional knowledge. Understanding works what

of traditional knowledge

creates a traditional community

as

might,

however, limit some of the usual copyright holders‘ rights. It might not be appropriate, for example, for a traditional community to assign the rights in a work of its traditional knowledge to an outsider.

26

Copyright and Neighbouring Right Act, [Cap. 218, R.E.2002]

36

2.4.6 USERS’ RIGHTS The IGC has discussed whether users should have rights in works of traditional knowledge the

exceptions

and

limitations

similar to the

Berne

Convention allows. If traditional knowledge is about community rather than profit, then the three-step tes t seems inappropriate. It would seem appropriate to allow exceptions for education and research (See S. 26 and 27 of CNA).27 The problem

with copyright

protection for works

of traditional knowledge is not that it is impossible to

accommodate such works within

protection. The problem,

copyright

as with any copyright

protection, is that protecting works of traditional knowledge pre- vents those who do not hold the copyright

27

from

exploiting

these works unless they

Copyright and Neighbouring Right Act, [Cap. 218, R.E.2002]

37

get permission from the copyright holders. This tension between those who claim rights in a work of traditional knowledge exploit

and those who want to

the work is strong in countries

where

the

members of the organised traditional communities that produced these works are in the minority. In these countries there are those on the fringes of these

communities

claim to membership

and there

are those with no

who are familiar with these

works. They want to earn a living by copying them or using them to make derivative literary, artistic or musical works. It might be possible to resolve these issues by combining copyright for works of traditional knowledge w ith compulsory l i c e n c e s to use these works.28

28Julien


38

3.0 Conclusion Some developing countries have already enacted domestic laws dealing with the protection of traditional knowledge. There are also important legislative efforts that have taken place at regional levels. As well, the Plan of Implementation of the World Summit on Sustainable Development (WSSD) (paragraph 42(j)) calls on countries to, ―subject to national legislation, recognize

the

rights

of

local

and

indigenous

communities who are holders of traditional knowledge, innovations

and

practices,‖

and

―develop

and

implement benefit-sharing mechanisms on mutually agreed

terms

for

the

use

of

such

knowledge,

innovations and practices.‖ The United Nations Declaration on Rights of Indigenous Peoples (UNDRIP) establishes a right for Indigenous Peoples

to

be

included

39

in

impact

assessment

processes. UNDRIP stipulates that

Free and Prior

Informed Consent (FPIC) needs to be respected when Indigenous Peoples are implicated by projects on and near

their

lands

and

traditional

territories.

The

declaration also establishes a right for Indigenous Peoples to consider themselves distinct from the dominant society and be respected as such.29 In Tanzania even though we do not have a particular law protecting traditional knowledge, but there are some kind of legislations which in one way or another they are trying to protect traditional knowledge from being infringed such as Copyright and Neighbouring Right Act of 1999 as discussed before.

Croal, P., Tetreault, C., and members of the IAIA IP Section. (2012) the IAIA IP Section. (2012) Respecting Respecting Indigenous Peoples and Traditional Indigenous Peoples and Traditional Knowledge. Special Publication Series No. Knowledge. Special Publication Series No. 9.9. Fargo, USA: International Association Fargo, USA: International Association for Impact Assessment. for Impact Assessment 29

40

Therefore, the best way to make sure that this traditional knowledge are protected from unlawful use is to ensure that the law protecting it creates suitable balance between the groups which these knowledge belongs to, and the public use on such knowledge. Also the law must correspond to the changes brought by the development of science and technology as the fact that this knowledge can be easily infringed through online transmission such as on satellite through using internet and other technological transmission equipments. The current legal framework in Tanzania might not be useful to fight against online piracy on Intellectual property rights. Due to lack of an effective legal framework

that

provide

for

copyright

protection

electronically, most authors or creators of copyrighted materials are vulnerable on online infringements and

41

economic loss as pirates electronically can just access and download the copyrighted materials free of cost. Also the same owners of the work may totally restrict the accessibility of their work to the public through using the same technology methods such as putting passwords in a document which may affect the balance between public and private rights. Therefore, the easiness and quality of individual copying made possible by recent technology has led some countries to narrow the scope of such provisions, including through systems which allow certain copying, but incorporate a mechanism for payment to rights owners for the prejudice to their economic interests resulting from the copying.30

Understand Copyright and Related Rights, available at; http://www.wipo.int/freepublications/en/intproperty/909/wipo_pu b_909.html-Retrieved on 28th July 2013. 30

42

Furthermore, it is from these developments of science and technology which mostly affected the developing countries (Tanzania being among them) present the issue of balancing the two concepts. Even though the court in economy countries such as the United Kingdom have tried to distinguish between the two concepts, yet it is difficult to determine. Currently, the President of the United Republic of Tanzania, Honorable Dr. Jakaya Mrisho Kikwete has signed the new law THE CYBERCRIMES ACT, 2015, in February 20. This Act to a certain extent has tried to solve

some

problems

relating

to

protection

of

intellectual property rights in digital environment. For instance Section 3 of the Act31 has defined what intellectual property rights mean state that;

31

The Cybercrimes Act, 2015

43

"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;

44

(b) Information, including an electronically program

produced

or data or copy

thereof, human or computerreadable 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)

45

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 (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

46

country is not the member, for example the country has not signed and ratified the Convention relating to the distribution of program carrying signals transmitted by the satellite of 1974.32This brings challenges especially on the copyrighted materials which are transmitted through satellites. If the Treaty is not signed or ratified can the local legislation enable to solve the problem which can be solve by such Treaty? Also the Act does not discuss the concept of fair use that means if it started to be operated (as the fact that the Act it is not yet put into practice despite of the fact that it has been already signed by the president) only one right will be claimed digitally (private rights) and leaving the other rights (public rights) hanging, thus

See Brussels Convention Relating to the Distribution of Programme-Carrying Signals Transmitted by Satellite at http://www.wipo.int/treaties/en/text.jsp?file_id=283796-retrieved on 21st July 2013. 32

47

twisting the balance between the protection of both public and private rights. Therefore, one of the most logical requirements of ICT regulation is that, ICT legislation should be sustainable enough to cope with technological developments over a sufficiently long period of time. If a law is too technology-specific, it is not likely to cover future technological developments, and it will therefore have to be adapted sooner rather than later.33 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

Koops „Should ICT Regulation Be Technology-Neutral?‟ in BertJaap Koops at el (eds) Starting points for ICT Regulation. Deconstructing Prevalent Policy One –Liners, IT & Law Series, Vol.9, Hague: T.M.C. Asser Press. (2006). Pp. 77-108 33

48

the protection of private rights and public right in intellectual property rights particularly in copyright. The issue is, the law is bound these days to take cognizable of the fact that mechanical means replace human effort‖,34 therefore, the Tanzanian Government must take notice of that.

34

As discussed in the case of R. v. Masquid Ali [1966] 1 Q.B. 688

49

REFERENCES A/61/L.67* United Nations Declaration of the Rights of Indigenous Peoples, Article 18 Biber-Klemm, Susette and Cottier, Thomas (Editors) 2006. Rights to Plant Genetic Resources and Traditional Knowledge: Basic Issues and Perspectives. CABI. United Kingdom. pp. 56-110 Boyle, James. The Second Enclosure Movement: and the Construction of the Public Domain. Duke University, 2003 Caillaux, Jorge, Tobin, Brendan, Ruiz, Manuel. 1999. Acceso a Recursos Genéticos. Lecciones y Experiencias. WRI, SPDA. Lima, Perú Dietz, Adolf, ―A Modern concept for the right of the community of authors (domaine

50

public payant)‖, Copyright Bulletin, 1990, XXIV, n°4, 1328. Dutfield, Graham. Protecting Traditional Knowledge and Folklore. A Review of Progress in Diplomacy and Policy Formulation. UNCTADICTSD. Intellectual Property Rights and Sustainable Development. Issue Paper No. 1. June 2003. Henninger, Thomas. Disclosure requirements in patent law and related measures: a comparative overview of existing national and regional legislation on IP and biodiversity. In: Werth, Alexander, Reyes, Sussane (Editors) 2010. Triggering the Synergies between Intellectual Property Rights and Biodiversity. GIZ, Eschborn, Germany.

51

Kresalja, Baldo. Editor. Anuario Andino de los Derechos Intelectuales. No. VI, 2009. Lima Perú. Laird, Sarah (Editor) 2002. Biodiversity and Traditional Knowledge. Equitable Partnerships

in

Practice.

People

and

Plants

Conservation Series. WWF, UNESCO, Royal Botanic Gardens Kew. Earthscan Publications Ltd. London. New York. Moore, Gerald, Tymowski, Wytold. 2005. Explanatory Guide to the FAO International Treaty on Plant genetic Resources for Food and Agriculture. IUCN Environmental Law Programme. Environmental Law and Policy Paper No. 57. IUCN, Gland.

52

Martin

van Ameijde, ―Biopiracy: The need

protective

for a

solution?‖

http://www.jur.lu.se/Internet/Utbildning/kurser/JCA803. nsf/43e828219552/

(Viewed

on

11 December

2009) Menon Ramesh. ―Traditional Knowledge receives a boost

from

the

government‖,

India

http://www.indiatogether.org/

Together,

(Viewed

on

13

December 2009) National Knowledge Commission, 2005. ―Traditional Knowledge‖ http://www.knowledgecommission.gov.in/recommend ations/traditional1.asp

(viewed

on

10

December

2009) Traditional Knowledge Resource Classification http://www.tkdl.res.in/tkdl/langdefault/common/TKRC. asp (Viewed on 13 December 2009)

53

Yoga

piracy:

India

shows

who‘s

the

guru

http://timesofindia.indiatimes.com/Yoga-piracy-Indiashows-whos-the-guru/articleshow/4167939.cms (viewed on 10 December 2009) Munyi, Peter. Progress or Setback? An African regional Instrument for the Protection of Traditional Knowledge and Folklore. Reichman, Jerome, Maskus, Keith. The Globalization of Public Knowledge Goods and the Privatization of Global Public Goods. In: Maskus and Reichman, Editors. Journal of International Economic Law. 7(2)-279-320. 2004. THE STRATEGIC PLAN FOR BIODIVERSITY 2011-2020 (adopted by the United Nations General Assembly as a plan for the United Nations System) at: http://www.cbd.int/sp/

54