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 17:37+03:00
Digital Copyright Protection in Tanzania: The Rationale for the Balance between Private Rights and Public Rights By Asherry Magalla
Copyright © 2015 Asherry Magalla. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage and retrieval system, without permission in writing from the publisher. Details on how
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
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).
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1.0 Introduction The developments of science and technology in Tanzania
have
made
copyright
protection
and
exceptions to become of vital importance compared with the ancient period where these changes were not noticeable.
A
lot
of
copyrighted
information
is
accessed online through downloading; uploading and many other electronic means without any justifiable limitations; at the same time the owners of the copyrighted materials are trying to total prevent this accessibility of copyrighted materials which at the end affects the balancing between the owner‟s rights and user‟s rights. This paper distinguish between private rights and public rights on copyrighted materials, and how such rights are affected by the development of science and technology in Tanzania Mainland.
3
Keywords:
Copyright,
Private
right,
Public
rights,
copyright protection, Digital, Fair use. 1.1 Meaning of the Doctrine of Fair Use By the meaning of fair use it stipulate the act of the use of the copyrighted works of another author (original author) or other than the owner of the work without affecting
his/her
economic
and
social
rights
as
provided by the law of the particular country. For example a person may use literary or artistic work of another author for academic purpose. However, in order
for
such
work
to
be
treated
within
the
ambit/scope of the doctrine of fair use, the user of such work must acknowledge the source and the owner of such work during his academic writings. Also by the meaning of the use of the work it does not mean the use
of
the
whole
work.
Even
if
such
person
acknowledge the source and the owner of the work,
4
but have copied the large amount of such work, that would not amount to fair use as the amount of work used or copied by another person other than the original owner of the literary or artistic work is of high concern. Also people should not just copy the work of others without paraphrasing and using of other words of similar meaning on the same used work. The doctrine of fair use allows the use of works without the authorization of the rights owner, taking into account factors such as the nature and purpose of the use, including whether it is for commercial purposes; the nature of the work used; the amount of the work used in relation to the work as a whole; and the likely
5
effect of the use on the potential commercial value of the work.1 In respect of free use for reproduction, the Berne Convention2 contains a general rule, rather than an explicit limitation. Article 9 (2) states that; Member States may provide for free reproduction in special cases where the acts do not conflict
with
normal
exploitation of the work and do
not
unreasonably
Robert A. Gorman (2006). Copyright Law, Second Edition, Federal Judicial Center, Pp.131. 2 The Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886 as last revised at Paris on 24 July 1971 and amended in 1979. Available at www.wipo.org. Retrieved on 6th September 2013. 1
6
prejudice
the
legitimate
interests of the author.3
1.2 Significances of the Doctrine of Fair Use in Tanzania Under section 12 of the Act4 provides for the exception of the activities which does not amount copyright infringement, in which one among such activity is the aspect of fair use. The fair use doctrine comprises of the most significant limitation on the exclusive rights given to the copyright owner. It was developed by the courts in the mid of the
World Intellectual Property Organization, Understanding Copyright and Related Rights, WIPO Publication No. 909(E) ISBN978-92-805-1265-6. Available at www.wipo.int/freepublications/en/intproperty/909/wipo_pub_909. pd-Extracted on 5th July 2013. 4 Copyright and Neighbouring Rights Act of 1999, [Cap 218.R.E.2002]. 3
7
19th century to privilege what would otherwise have been a copyright infringement.5 The reason behind the development of this doctrine by the courts is that, without fair use doctrine any activity involving literary and artistic work would be deemed infringed if used by another person other than the owner of the work without his permission, even if it is for the academic purpose. So the doctrine had to exist so as to provide such a privilege to special groups like academicians and therefore provides limit on exclusive rights of the owner of the work. The decision made by Judge Story in Folsom v. Marsh,6 appears to be the first articulation of the policies underlying fair use. Justice Story opined that:
Robert A. Gorman (2006). Copyright Law, Second Edition, Federal Judicial Center, Pp.139. 6 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4,901). 5
8
“Quoting copyrighted material in the course of preparing a biography
or
commentary
a might
critical be
excusable, but not “if so much is taken, that the value of the original is sensibly diminished, or the labours of the original author are substantially to an injurious extent appropriated by another.”7
Further argued it proper to consider “the nature and objects of the selections made” and “the quantity and value of the materials used.”8 To him, the more soundly based rationale for the fair use doctrine is the very 7 8
Ibid at Pp.348. Ibid.
9
purpose articulated in the constitutional copyright clause: “to promote the progress of science.”9 The fair use principle enables the public to avail a “fair use” of the copyrighted works even during the period, when the creator of the work enjoys the exclusive rights. What amounts to a fair use is often a subject matter of debate and may differ among countries, although certain uses including citing in academic works are generally considered to be a fair use. The interest of the public to access information is often guaranteed through these limitations imposed on the exclusive rights of the copyright holder.10
9As
explained in the United States of America Constitution Article I, § 8, cl. 8. 10 R. Muruga Perumal (2006). Copy Right Infringements in Cyberspace: The Need to Nurture International Legal Principles, International Journal of the Computer, the Internet and Management Vol. 14.No.3 (September-December, Pp 8-31.
10
1.3 Jurisdiction Variance of the Doctrine of the Fair Use and Its Conditions According to Goldstein: "There is no specific provision for fair dealing in civil law practice,
but
copyright
legislation in most civil law countries contains exemptions comparable to those provided under
the
fair
defence.
The
legislation,
for
dealing French example,
provides narrow exceptions in the case of published works for private copies and, so long as the source and author‟s name are clearly stated, for press
11
reviews and analyses as well as short quotations for critical, educational,
polemic,
or
scientific
purposes.
The
German
Copyright
Act
provides a long list of limited exceptions in addition to those for
quotation
and
private
use."11 The concepts of the fair dealing or fair use have been left to the jurisdiction of the country itself. For instance Article 9 Para 212 provides that; “It
shall
be
a
matter
for
legislation in the countries of http://www.ifla.org/publications/the-ifla-position-on-copyright-inthe-digital-environment-2000. Accessed on 24th July 2013. 12 The Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886 as last revised at Paris on 24 July 1971 and amended in 1979. Available at www.wipo.org. Retrieved on 6th September 2013. 11
12
the
Union
to
permit
the
reproduction of such works in certain
special
cases,
that
such
provided
reproduction does not conflict with a normal exploitation of the
work
and
unreasonably legitimate
does
not
prejudice
the
interests
of
the
author.”
It has been to the knowledge of many national copyright laws that most of the copyright exceptions include (the below exceptions are available on section 12 of the Copyright and Neighbouring Rights Act, [Cap.218. R.E. 2002]): i.
Personal use;
13
ii.
Research;
iii.
Education;
iv.
Archival copying;
v.
Library use and
vi.
News reporting which is mainly based on the principles of „fair dealing‟ or „fair use‟.
The ambient, efficiency, strength and flexibility of these exceptions vary widely between countries and regions, in
part
due
to
differing
national
or
regional
jurisprudence. For instance, American copyright law13 contains a range of specific fair dealing exceptions, similar to those in the Australian Act.
However, the American
„fair use‟ exception in Section 107 is broader than „fair dealing‟ under the Australian Copyright Act.14 Due to
13 14
Copyright Act of 1976. Copyright Act No. 63 of 1968.
14
this factor what constitutes „fair use‟ is left to the courts to assess.15 But
whatever
the
court
determines,
generally
focus/aimed on the following conditions:16
1.4 Conditions for the Doctrine of Fair Use to Exist i.
The purpose and character of the use or sometime regarded as transformative factor.17 That
copying
must
be
for
private,
non-
Margaret J, et al (2011). DRMs, Fair Use and Users‟ Experience of Sharing Music, Pp. 9. 16 Commission on intellectual property Rights (2002). Integrating Intellectual Property Rights and Development Policy, Chapter 5, Copyright, Software and the Internet, London. Pp.102. available at http://www.iprcommission.org-retrieved on 3rd September 2013. 17 Determining what is transformative and the degree of transformation is often challenging. For example, the creation of a Harry Potter encyclopedia was determined to be “slightly transformative” (because it made the Harry Potter terms and lexicons available in one volume), but this transformative quality was not enough to justify a fair use defense in light of the extensive verbatim use of text from the Harry Potter books. (Warner Bros. Entertainment, Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D. N.Y. 2008).) - See more at: http://fairuse.stanford.edu/overview/fairuse/four-factors/#sthash.z1HCwpTR.dpuf-Retrieved on 4th September 2013. 15
15
commercial purposes. Only single or a small number of copies may be reproduced. The issue here is whether the material has been used to help create something new or just minimal facts. For the purposes such as education, research, or scholarship may also regarded as transformative work, as the fact that, the copying was subject of review or commentary. For instance, Marina takes a number of Nyerere‟s quotations on corrupt government. These quotations were put in one of her journal pictures relating to the title „Corruption and the Government.‟ This copying can be regarded as a fair use. ii.
The proportion of the work that is copied copies should be made only of parts of the work. Complete works may be copied only where the
16
originals are not available on the market. Also if the amount taken is so small, the doctrine of fair use may not be required as it was in the case of Sandoval v. New Line Cinema Corp.,18 in the motion
picture
named
„Seven‟,
several
copyrighted photographs appeared in the film, prompting
the
copyright
owner
of
the
photographs to sue the producer of the movie. The court held that the photos “appear fleetingly and are obscured, severely out of focus, and virtually unidentifiable.” The court excused the use of the photographs as “de minimis”19 and did not require a fair use analysis.20
147 F.3d 215 (2d Cir. 1998). This is the Latin maxim which means things of less important that the law cares not for small thing. In a lawsuit, a court applies the de minimis doctrine to avoid the resolution of trivial matters that are not worthy of judicial scrutiny. Its application sometimes results in the dismissal of an action, particularly when the only redress sought is for a nominal sum, such as one dollar. Appellate courts also use the de minimis doctrine when appropriate. See at legal18 19
17
The proportion of the unpublished work will attract narrow scope of the doctrine of fair use than that which is published. This is simply because the owner of the work has the right to first publish the work before the public, other than anybody else. iii.
Copies of hard copy works may typically be produced only by reprographic processes. There is also some freedom to make copies of electronic works as, for example, for time shifting of
TV
programs
or
archiving
of
computer
software. iv.
If there are exemptions for the benefit of libraries and
archives,
those
institutions
must
be
dictionary.thefreedictionary.com/De+Minimis-retrieved on 4th September 2013. 20 See more at: http://fairuse.stanford.edu/overview/fair-use/fourfactors/#sthash.z1HCwpTR.dpuf-Retrieved on 7th September 2013.
18
accessible
to
the
public
and
act
in
a
noncommercial way. v.
The legitimate interest of the right holder must be taken into account the effect on the potential market for the work. For example in the case of Rogers v. Koons,21 an artist used a copyrighted photograph without permission as the basis for wood sculptures, copying all elements of the photo.
The
artist
earned
several
hundred
thousand dollars selling the sculptures. When the photographer sculptures
sued,
were
a
the
artist
fair
use
claimed because
his the
photographer would never have considered making sculptures. The court disagreed, stating that it did not matter whether the photographer had
21
considered
making
960 F.2d 301 (2d Cir. 1992).
19
sculptures;
what
mattered was that a potential market for sculptures of the photograph existed.22 1.5 The Concepts of Public Rights and Private Rights of the Copyrighted Materials It has to be understood that, protecting artistic and literary works can be legally accepted and meaningful if
the
copyright
owners
and
the
users
of
the
copyrighted work rights are treated equal in terms of their rights. This was well cemented by Tawfik: “In sum, by introducing the language of user rights and by adopting
a
broad
and
expansive interpretation of 'fair dealing' the Supreme Court
See more at: http://fairuse.stanford.edu/overview/fair-use/fourfactors/#sthash.z1HCwpTR.dpuf-Retrieved on 7th September 2013. 22
20
has
shifted
analysis
the
away
locus from
of the
preeminence of the copyright interest.
What
is
therefore
being advanced is equality of treatment
of
both
rights
holders and users in which neither
takes
precedence
over the other.”23 Copyright like any other intellectual property rights, as explained earlier has a dual mandate of public interest and private benefit.24
See Myra Tawfik (2005). “International Copyright Law and 'Fair Dealing' as a 'User Right' e-copyright Bulletin. Available at www.unesco.org-Retrieved on 5th September, 2013. 24 Commenting on the Canadian Copyright Act, Binnie J in Theberge v. Galerie d' Art du Petit Champlain Inc [2002] 2 S.C.R. 366 paras 30-31 said : “ The Copyright Act is usually presented as a balance between promoting the public interest in the encouragement and dissemination of works of the arts and intellect and obtaining a just reward for the creator....” 23
21
However,
the
copyright
law
determining
the
application have
got
proper
and some
balance
interpretation
of
challenges
on
between
these
mandates.25 In the case of CCH v. Law Society of Upper Canada26 the Canadian Supreme Court believes
that this
balance “lies not only in recognising the creator's right but in giving due weight to their limited nature.”27 In recognising a user right, the court seems to have elevated the standing of exceptions and limitations to be of comparable standing with the rights of the creator. This view is supported by other parts of the judgment. For example, the court declares: Public interest, in terms of assuring that the artistic and literary works of the author is accessible to the public in terms of free use such as academic purpose, personal use, research purpose and others, and Private benefit in terms of defending economic and moral rights of the author, that even though the public have the right to access the author‟s work, but such access shall not be to extent that infringed in one way or another author‟s economic and moral rights. 26 [2004] 1 S.C.R. 339. 27 Op cit, para 10. 25
22
“The Copyright Act sets out the rights and obligations of both
copyright owners and
users.”28
In another opinion the court declares: “The exceptions to copyright infringement,
perhaps
more
properly understood as users' rights...”29
The court continued to argue that; “... The fair dealing exception is
perhaps
more
properly
understood as an integral part of the Copyright Act than 28 29
Op cit para 11. Op cit para 12.
23
simply a defence. Any act falling within the fair dealing exception
will
not
be
an
infringement of copyright. The fair
dealing
other
exception,
exceptions
in
like the
Copyright Act, is a user's right. In order to maintain the proper balance between the rights of a copyright owner and users' interests,
it
must
not
interpreted restrictively.”30
30
Op cit para 48.
24
be
In my view, the meaning of public interest is served in two ways: i.
By giving authors an incentive to create; and
ii.
By
encouraging
the
dissemination
of
new
knowledge. Creators enjoy the monopoly, and to be remunerated for,
subsequent
dissemination.
Without
these
monopolies some authors might not be motivated to spend their time, skills and effort in creating valuable original expression. However, it should also be noted that a significant number of creatures31 place a far higher value on the dissemination of their creative work rather than direct reimbursement for the use of the work.32 Primarily academics. http://www.ifla.org/publications/limitations-and-exceptions-tocopyright-and-neighbouring-rights-in-the-digital-environment. Accessed on 24th July 2013. 31 32
25
Therefore, these two aspects, Public Rights and Private Rights are to be looked with a naked eye so as to strike a balance between the two concepts, because new ideas and knowledge will not readily benefit a society if their transmittal is limited. Only when knowledge is learned,
discussed
and
added
to
by
students,
researchers, scientists and the ordinary citizen, is its value truly appreciated.33 This need for balance can be seen in the Universal Declaration of Human Rights,34 which recognises both sides of the equation as vital to humanity.35 The protection of the labour of others is guaranteed by Article 27 (2):36
Ibid. The Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly on December 10, 1948. Available at http://www.un.org/en/documents/udhr/-Accessed 2nd September 2013. 35 http://www.ifla.org/publications/limitations-and-exceptions-tocopyright-and-neighbouring-rights-in-the-digital-environment. Accessed on 24th July 2013. 33 34
26
„Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.‟
The right of all to share in the cultural and scientific output of humanity is similarly guaranteed by Article 27 (1):37 „Everyone has the right freely to participate in the cultural life of the community, to enjoy the
arts
and
to
share
in
The Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly on December 10, 1948. Available at http://www.un.org/en/documents/udhr/-Accessed 2nd September 2013. 37 Ibid, para 35. 36
27
scientific advancement and its benefits.‟
Copyright has used three different approaches in its development. In Civil Law Systems both economical and social rights are protected. In Common Law Systems tends to view copyright as protection solely of economic
interests.
Socialist
Legal
Systems
have
historically been less concerned with the payment to authors than with the management of culture for the purposes of revolution.38 As the fact that Tanzania was under British dominance and therefore adopted common law system, then, let us see the protection of copyright and exception under the Tanzania legal system.
Carolyn Hotchkiss (1994). International Law for Business, First Edition, Singapore: McGraw-Hill Inc, Pp.306. 38
28
2.0 The Aspect of Copyright Protection and Exception in Tanzania Legal System 2.1 How Does the Act provide for the Exceptions? The Act39 provides for the exceptions. Remember when dealing with the doctrine of fair use in definition part, there were several acts which were legally accepted to be used by the public without consultation of the original author of the work. Under section 12 of the Act40 provides that; “The
following
uses
of
a
protected work, either be in the original translation, in or shall
without
permissible consent
the
authors'
obligation
to
tile and pay
Copyright and Neighbouring Rights Act of 1999, [Cap 218.R.E.2002]. 40 Copyright and Neighbouring Rights Act of 1999, [Cap 218.R.E.2002]. 39
29
remuneration for the use of the work”.41 Except for computer programs and architectural works, that have lawfully published, the following acts are permitted; i.
To reproduce the work;
ii.
To issue copies of the work to the public;
iii.
To perform the work in public;
iv.
To communicate the work to the public;
v.
To
make
a
cinematograph
film
or
sound
recording in respect of the work; vi.
To make any translation of the work and;
vii.
To make any adaptation of the work.
However, these acts are permitted only if they are (see Section 12 of [Cap 218.R.E.2002)
Section 12 (1) of the Copyright and Neighbouring Rights Act of 1999, [Cap 218.R.E.2002]. 41
30
i.
For the purpose of research or private study. For example many of the high learning students, especially in universities such as Iringa University use
highly
conducting
the their
work
of
other
research
as
authors
in
long
as
acknowledgement is made. ii.
For criticism or review. A person may also use the work of another author without his permission if criticism or review is the purpose. This is simply because there is no logic for a person to ask the owner of the book or article or any journal, to criticize the work. What if the author refused, there could be no way of correcting misconcept or error made by the owner of the work.
iii.
For reporting current events. This means by the event
or
cinematography
31
photography,
or
communication to the public the reproduction of making available to the public, to the extent justified by the informatory purpose, of any work that can be seen or heard in the course of the said event. iv.
In connection with a judicial proceeding. The reproduction of a literary, dramatic, musical or artistic work for the purpose of a judicial proceeding or for the purpose of a report of a judicial proceeding.
v.
Performance by an amateur club or society such as religion institutions if the performance is given to a non-paying audience and as long as such performance is non-commercial, then nothing can stand against fair use.
32
vi.
The making of sound recordings of literary, dramatic
or
musical
works
under
certain
conditions. If copying a sound recording, do not use any more of the recording than the amount needed to serve your purpose. If it is for teaching purposes, limit access to the sound recording to students enrolled in the course. Such reproduction
must not conflict will
normal
exploitation of the work and does not unreasonably prejudice the legitimate interest, of the author. Therefore in respect of free use for reproduction, the Act has complied with the provision of the Berne Convention which contains a general rule, rather than an explicit limitation. Article 9 (2) states that; “Member States may provide for free reproduction in special cases where the acts do not
33
conflict
with
normal
exploitation of the work and do
not
prejudice
unreasonably the
legitimate
interests of the author”.42
Article 9 (2) of Berne is repeated in Article 13 of TRIPS,43 with respect to all rights, not simply the right of reproduction. Thus as seen above, the Act allows individuals to reproduce a work exclusively for their personal, private
The Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886 as last revised at Paris on 24 July 1971 and amended in 1979. Available at www.wipo.org. Retrieved on 6th September 2013. 43 Agreement on Trade Related Aspects of Intellectual Property Rights, April 15 1994, Annex IC of Marrakesh Agreement Establishing the World Trade Organisation, 1869 U.N.T.S. 299, 33 I.L.M. 81 (1994). 42
34
and non-commercial use which is also supported by Article 10 the Berne Convention.44 Fair use is one of the exceptions in copyright which allows use of copyrighted materials without obtaining permission as long as the using can be considered fair. The goal to these exceptions is to achieve a balance between the rights of the copyright holder with the rights of the public. Fair use is also technologically neutral so the same analysis may be applied to any medium. The Act45 obliged with the principles of
Berne
convention46 and the Agreement of the World Trade
Which permits free uses for the purposes of „Quotations‟ and „Illustrations for teaching‟) and Article 10bis (which permits further possible free uses for the purpose of reporting current events). 45 Copyright and Neighbouring Rights Act of 1999, [Cap 218.R.E.2002]. 46 The Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886 as last revised at Paris on 24 July 1971 and amended in 1979. Available at www.wipo.org. Retrieved on 6th September 2013 44
35
Organization (TRIPS)
47such
as:
48
To protect the moral
and economical interests of authors (creators) relating to their work; to provide protection for expression of folklore; to protect the interests of performing artists, producers of cassettes and broadcasting organizations; to provide for civil remedies and criminal sanctions against infringers and pirates; and to provide for Public Rights to access the author's work without conflicting author‟s rights. The Act provides the monopoly granted to authors by copyright.49
However,
such
monopoly
has
been
Agreement on Trade Related Aspects of Intellectual Property Rights, April 15 1994, Annex IC of Marrakesh Agreement Establishing the World Trade Organisation, 1869 U.N.T.S. 299, 33 I.L.M. 81 (1994). 48 The Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) is an international agreement administered by the World Trade Organization (WTO) that sets down minimum standards for many forms of intellectual property (IP) regulation as applied to nationals of other WTO Members. See Article 1 (3) of Trips. 49 Section 5 to 23 of [Cap. 218 R.E. 2002] Act No 7 of 1999. 47
36
positively affected by the right of the public to access the work. The works that are protected under copyright in Tanzania are provided under Section 5 up to 23 of the Act.50 2.2 The Rationale for the Balance between Private Rights and Public Right in Copyrighted Materials in Tanzania In
intellect
world,
many
people
have
strongly
supported the existence of intellectual property rights. Big corporations and companies51 and their trade associations, who have a financial interest in such an outcome, highly view this concept as of vital to support their revenue.
[Cap. 218 R.E. 2002]. For example, The Tanzania Revenue Authority collects tax from Cassettes, CDs and DvDs of various artists, then allowing some work of these artists to be freely available to the public may affects its tax collection. 50 51
37
However, it is quite difficult to pass this concept in a generation of those who are also strongly believer and supporter of what is known as public access or rights over the intellectual property rights, who mostly covered the public whom their interest is being able to access this material and usually they have no direct economic motive. Due to this reason, the following are the grounds as to why in Tanzania there must be a balance between the above two concepts. One, in order to have a strong sense of democracy,52 there
must
be
a
comprehensive
exchange
of
information between the individuals in the society. Such comprehensive exchange of information must also Is a means for the people to choose their leaders and to hold their leaders accountable for their policies and their conduct in office. Form of government, where a constitution guarantees basic personal and political rights, fair and free elections, and independent courts of law. U.S. president Abraham Lincoln (18091865) defined democracy as: Government of the people, by the people, for the people. 52
38
include information from the copyrighted works of different authors. Take an example, the using of artist songs such as the late King of Reggae, Bob Marley let say his song „Redemption Song‟ or Kala Jeremiah53 with his song „Dear God,‟ and quotation of famous prominent leaders of the world, either alive or died, for instance, the quotations of Our Late President and Father of the Nation, Julius Kambarage Nyerere about „corrupt government‟. Using of these copyrighted works may bring some sense of strong democracy, first politically, second socio-economics. Politically, in terms of the consciousness the works have, for instance encouraging people to choose the rightful leaders of our nation.
A famous Tanzania Hip hop artist and the best Hip Hop Rapper with the famous song known as Dear God and Jaribu Kujiuliza. 53
39
Think of an example of these verses from Bob Marley;54 “Emancipating yourself from mental slavery, none but our self can free our mind; I am not fear for atomic energy, there is none of them can stop me to tell. How long shall they eat our profits, all we stand aside and look. Yes I say it is just a politic, they have got to fulfill their group. Don‟t you here to sing, these songs of freedom, because it is all that I have”.
The Honourable, Nesta Robert "Bob" Marley, OM was a Jamaican singer-songwriter and musician best known for his Conscious Reggae records against the Colonial Government in the third world countries. Reggae's most transcendent and iconic figure, and the first Jamaican artist to achieve international superstardom. 54
40
If there could be strict exclusive rights of an author over his work, then people could not express their ideas over the need for democracy, the above verses have a strong conscious of freedom of both mentally and physically. Socio-Economics in terms of those who creates the works. If the work is acknowledged by the user and some considerations have been met, then the two sides can be benefit from the work, thus promoting both private and public rights over the copyrighted work as long as the extent and purpose of using such work are not prejudice.55 A society with no access the knowledge required for a proper discussion of political, social, environmental or
Unfounded beliefs and may include "any unreasonable attitude that is unusually resistant to rational influence or is an unfavorable opinion, attitude or feeling made about something or someone before having enough information to make an accurate judgment. 55
41
economic issues will not be able to achieve the kind of broad consensus upon which a healthy society is based.56 Two, the balance to the fair access to copyright protected materials encourages creativity and the production of new works. It is strongly believed that, most of the economic growth companies benefits and highly depending on economic view of the intellectual property rights while for those who made copyright exceptions are purely for social reasons. In fact this is a false dichotomy.57 This is simply because, many companies and corporations require access to copyright material for the purposes of research and
http://www.ifla.org/publications/the-ifla-position-on-copyright-inthe-digital-environment-2000- Retrieved on 21st July 2013. 57 A dichotomy is any splitting of a whole into exactly two nonoverlapping parts, meaning it is a procedure in which a whole is divided into two parts. For examples, "liberal or conservative," "black or white," "red or blue" would also be the good incidence of dichotomies. 56
42
development,
education,
software
or
hardware
interoperability, so as to improve their wealth position. Therefore, it is from the social requirement of freeing copyrighted materials that strengthen the economic position of the companies. For example, a telecommunication company such as Vodacom may use a person‟s article relating to telecommunication
and
privacy
in
a
digital
environment, in making a research on whether the company protects customer‟s privacy, and at what extent the digital environment have affected the customer‟s confidentiality.58 That is one among the social reason for freeing copyrighted
materials
(by
research).
Hence
by
Entrusted with the confidence of another or with his secret affairs or purposes; intended to be held in confidence or kept secret. Law Dictionary: What is CONFIDENTIAL? definition of CONFIDENTIAL (Black's Law Dictionary) http://thelawdictionary.org/confidential/#ixzz2ZPynDutZ-Retrieved on 26th July 2013. 58
43
knowing the weakness of their privacy policies through such
research,
automatically
the
policy
will
be
changed, and if changed means it will attract customers and since companies are depending much on the number of customers for economic gain, therefore the economic position will be in good shape in accordance with the increasing number of the customers. Thus it is a social requirement of freeing copyrighted materials that strengthen the economic position of the companies, in which the lack of reasonable access can actually hurt economic growth. Therefore, by looking at these grounds, the need for the balance between public rights and private right in copyrighted materials is inevitable.
44
2.3 Advantages of Balancing Between Copyright and Fair Use as Exception in Tanzania The exceptions to the rights of copyright owners have been existing perpendicular or in pari material59 to the rights themselves. The English Statute of Anne (1710)60 which is believed to be the first real Copyright Act contained no exceptions but did require that the owner of the work to deposit copies within seven important libraries as a condition of protection. This was the first codification of a balancing principle, that is, in
The legal definition of in Pari Materia is sharing a common purpose or relating to the same subject and which are construed together. On the same topic or pertaining to the same subject matter. For more view: Webster's New World Law Dictionary 2010 by Wiley Publishing, Inc., Hoboken, New Jersey. Used by arrangement with John Wiley & Sons, Inc. 60 The parliaments of England and Scotland were united and created an Anglo-Scottish Union. This new parliament changed the laws in both countries and an important early piece of legislation was the Copyright act of 1709, also known as the Statute of Anne, called after Queen Anne. For further readings see; Macqueen, Hector L, Charlotte W, Graeme T L, (2007). Contemporary Intellectual Property: Law and Policy. Oxford University Press Pp.34. 59
45
return for copy right protection; copies of the work must be made available to the public. "The fair dealing exception to infringement to copyright is, and always has been, squarely based on recognition of the paramount Public interest in the copying or reproduction of copyright material for certain purposes such as research and study, criticism or review, news reporting, court proceedings and the provision of legal advice." The advantages are the following: 2.3.1 It creates respect. Balancing between public right and private right creates respect between the owner of the work and the public at large. The public will respect both economic and moral rights of the owners of the works by either buying the work or acknowledging the owner
46
when using this work, as long as the principles of the doctrine of fair use are applicable. Using the work beyond the principles of fair use will attract penalties as normal copyright infringements. Also the owner of the work cannot prevent people from using the work as long as the principles of fair use are observed, thus this creates respect between the two sides. 2.3.2 It plays a crucial role in promoting the work. If the public can access your work without any strict limitations like payments, and sees the good side of your work, the same work can be seen by another person who have been told about the goodness of your work by another person who visit it. If that's the case, a person‟s work is promoted, because if such a person was hindered from seeing the owner‟s work, only few people could have access to that work. And
47
those few people are only those who can afford to pay for the work.
2.1.3 It enables everyone (the poorer and the richer) to have the right to access the work. It should not be born in mind that copyright is a monopoly
right.
Therefore,
without
providing
the
exceptions to copyright protection, the copyright owners would have a complete monopoly over the learning process. The learning process cannot develop without looking at what others have been said upon the particular concept, so as to get a wide concept of the thing learned. But this balancing has created an opportunity to every person to have an access over the work. Generally,
copyright
enabling
the
has
production
48
an of
economic
function,
information,
and
entertaining to be rewarded for their authors and publishers.
Copyright
also
has
a
non-economic
function, related in some legal systems to idea of recognising creativity as an aspect of individual personality. Copyright rewards individuals for their contributions; but this is offset by recognition of the interests, if not the rights of the wider public in the free dissemination of material in certain circumstances.
3.0 Issues of Scope of Copyright Protection and Exceptions in the Digital Environment. 3.1 Introduction The copyright system has traditionally maintained a balance between protecting creators' property rights and the exclusive right to control use of copies of their work, and the public good in fair access to and use of
49
such materials.61 Copyright laws permit exceptions to copyright, in order to maintain this balance. 3.1 Scope of Copyright Protection and Exceptions in the Digital Environment. In the United States, for example, this balance has been enshrined in the principle of "fair use"62 limitations on the rights of authors, while in other countries such as Australia and the United Kingdom, the concept is recognized by way of statutory exceptions to copyright infringement for "fair dealing."63
See Sections 8-11 and 12 of the Copyright and Neighbouring Act, [Cap.218, R.E. 2002] of 1999. 62 Draft legislation (H.R. 5544, the "Digital Media Consumers" Rights Act?) was introduced in the United States legislature on October 3, 2002, by Representatives Frederick C. Boucher (D-Va) and John T. Doolittle (R-Calif), designed to establish principles that would reaffirm the fair use doctrine, allowing consumers to make copies of copyright materials for their personal use, and aimed at maintaining the balance in copyright law. See "Boucher Draws Battle Lines for Future War Over Digital Copying," Vol 7(39), Electronic Commerce and Law Report, p.1001 (October 9, 2002). 63 Under United Kingdom law, the Copyright Designs and Patents Act (1988) provides fair dealing exceptions to copyright infringement, including for: research or private study (s. 29), 61
50
The rise of digital technologies puts this balance into a question, because it has changed the way how people access
the
user
information.64
We
can
access
copyright work without infringing it by an act of borrowing a book from the library. The digital revolution has made access to such materials by an act of copying, where a simple act of viewing a website requires the computer to make a temporary local copy of the data in our computer, the question came as to what degree the authors retain the right to control and license their works, when those works are re-compiled or
re-distributed
electronically
in
the
digital
reporting current events (s. 30(2)-(3)) and criticism or review (s.30(1)). 64 Jim Lahore (2000). "Fair Dealing and the Digital Agenda: Will the Copyright Balance Survive?" Vol.18(1), Copyright Reporter. Pp.2334
51
environment. This automatically affects the exceptions and limitations to copyright.65 3.2 The Unique Features of Internet. As the Internet is unlike any technology that has preceded it; it enables intercommunication: among an unprecedented unprecedented
number
of
people;
number of devices;
using
an
without any
intrinsic geographic limitations;66 using many different data-formats;67 with great speed, high reliability, and high capacity. This has made the World Web to become the famous Bazaar of Intellectual Property.68 Therefore, any lawyer looking at the problem of Internet copyright infringement is immediately struck by the fact Op cit. Pp.23-34 The internet does not respect the boundaries of the states, house, village, or any other physical object. 67 Such as Microsofts word, Pdf, Power point, Microsoft Exile, and others. 68 Llyod Ian (2000). Op cit. P. 304. 65 66
52
that it has an inherently transnational nature as the fact that national laws (including competition laws) usually do
not
cover
activity
beyond
territorial
borders
compare to internet unless it has significant effects at nation-state
level.69
Sometimes
may
allow
for
extraterritorial jurisdiction in competition cases based on so-called effects doctrine.70 The existence of online media result in possible contradiction of jurisdictions, which might be the site of the origin of the work, the site of an assignment or licence, the site of the emission or reception of the transmission,
the
nationality
or
residence
of
the
producer, or the nationality or residence of the
Nick Hanbidge (2001)., "Protecting Rights Holders' Interests in the Information Society: Anti-circumvention; Threats Post-Napster; and DRM," Issue 8, Entertainment Law Review, Opinion 70 Taylor, Martyn D (2006). International competition law: a new dimension for the WTO? Cambridge University Press. Pp. 1 69
53
infringer. This can be seen to generate permutations with a vast potential for a clash of laws.71 4.0 Conclusion Despite of Cyber Crime Act of 2015, still the 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 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
Christopher Arup (2008). The World Trade Organization Knowledge Agreements, Second Edition, Cambridge University Press. Pp.40. 71
54
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.72 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
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. 72
55
Kingdom have tried to distinguish between the two concepts, yet it is difficult to determine.
Things to be done 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 Act73 has defined what intellectual property rights mean state that; "intellectual
property
rights"
means the rights accrued or 73
The Cybercrimes Act, 2015
56
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; (b) Information, including an electronically program
produced
or data or copy
57
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 offence
(1)
and
commits in
infringement is on -
58
case
an the
(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 country is not the member, for example the country has not signed and ratified the Convention relating to the
59
distribution of program carrying signals transmitted by the satellite of 1974.74This brings challenges especially on the copyrighted materials which are transmitted through satellites. If the Treaty is not signed or ratified can the local legislation enable to solve the problem which can be solve by such Treaty? Also the Act does not discuss the concept of fair use that means if it started to be operated (as the fact that the Act it is not yet put into practice despite of the fact that it has been already signed by the president) only one right will be claimed digitally (private rights) and leaving the other rights (public rights) hanging, thus twisting the balance between the protection of both public and private rights.
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. 74
60
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 particularly in copyright.
61
BIBLIOGRAPHY Books Akdeniz, Y., and Walker, Et al. (2000). The Internet: Law and Society, London: Pearsons Longman. Andrew M. C (2006). Cyber Terrorism: Political and Economic Implications, Idea Group Publishing Inc: London. Andrew G (1996). Artists and Copyright in Cyberspace, Artlines, Issue 1.6, Arts Law Centre of Australia, ISSN 132695X. Armstrong, Elizabeth (1990). Before Copyright: the French Book-Privilege System 1498-1526, Cambridge University Press, Cambridge. Asbjorn E, and Catarina K, Et al (2001). Economic, Social and Cultural Rights, Second Revised Edition, Martinus Nijhoff Publishers.
62
Bainbridge D. (2000). Introduction to Computer Law, 4th Edition, Edinburgh Gate: Pitman Publishing. Bainbridge D, (2009). Intellectual Property, Seventh Edition, Pearson Longman, Ashford Color Press Ltd, Gosport. Bernard A. G (1995). Software and Intellectual Property Protection: Copyright and Patent Issues, Greenwood Publishing Group. Christopher Arup (2008). The World Trade Organization Knowledge Agreements, Second Edition, Cambridge University Press G.B. Reddy (2000). Intellectual Property Rights and the Law, 1st Edition, Gogia Law Publications, New Delhi: Navya Printers. Graham D ,and Uma S (2013). Global Intellectual property Law, Edward Elgar Publishing.
63
Herman T. Tavani (2007). Ethics and Technology, Ethical Issues in an Age of Information and Communication Technology, 2nd Edition, John Wiley & Sons, Inc. Hotchkiss C, (1994). International Law for Business, First Edition, McGraw-Hill Inc. Jacob R, Alexander D and Lindsay L (2004), A Guide Book to intellectual property, 5th Edition, London Sweet & Maxwell. Julien Hofman Introducing Copyright: A Plain Language Guide to Copyright in the 21st Century, Vancouver: Commonwealth of Learning, (2009). Margaret J, et al (2011). DRMs, Fair Use and Users‟ Experience of Sharing Music, Mambi A. J (2010). ICT LAW BOOK, a Source Book for Information and Communication Technologies and Cyber Law in Tanzania and East Africa Community. Mkuki na Nyota printer: Dar es Salaam.
64
Sharma V, (2011). Information Technology-Law and Practice, 3rd Edition (New Delhi: Universal Law Publishing Co.Pvt. Ltd. Taylor, Martyn D (2006). International competition law: a new dimension for the WTO? Cambridge University Press Webster's New World Law Dictionary (2010) Wiley Publishing, Inc., Hoboken, New Jersey, John Wiley & Sons, Inc.
Statutes Local Statutes The Copyright and Neighbouring Rights Act [CAP 218 R.E. 2002] Foreign Statutes The United States Copyright Act of 1976. Case laws
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Binnie J in Theberge v. Galerie d' Art du Petit Champlain Inc [2002] 2 S.C.R. 36 CCH v. Law Society of Upper Canada [2004] 1 S.C.R. 339. Folsom v. Marsh, 9 F. Cas. 342 (C.C.D. Mass. 1841) (No. 4,901). Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992). R. v. Masquid Ali [1966] 1 Q.B. 688 Sandoval v. New Line Cinema Corp., 147 F.3d 215 (2d Cir. 1998). Warner Bros. Entertainment, Inc. v. RDR Books, 575 F. Supp. 2d 513 (S.D. N.Y. 2008).) Articles and Journals Boucher Draws Battle Lines for Future War Over Digital Copying," Vol 7(39), Electronic Commerce and Law Report, p.1001 (October 9, 2002
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Koops „Should ICT Regulation Be Technology-Neutral?‟ in Bert-Jaap Koops at el (eds) Starting points for ICT Regulation. Deconstructing Prevalent Policy One – Liners, IT & Law Series, Vol.9, Hague: T.M.C. Asser Press. (2006). Pp. 77-108 Jim Lahore (2000). "Fair Dealing and the Digital Agenda: Will the Copyright Balance Survive?" Vol.18(1), Copyright Reporter Nick Hanbidge (2001)., "Protecting Rights Holders' Interests in the Information Society: Anti-circumvention; Threats Post-Napster; and DRM," Issue 8, Entertainment Law Review, Opinion Commission on intellectual property Rights (2002). Integrating Intellectual Property Rights and Development Policy, Chapter 5, Copyright, Software and the Internet, London. Pp.102. available at http://www.iprcommission.org-
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R. Muruga Perumal (2006). Copy Right Infringements in Cyberspace: The Need to Nurture International Legal Principles, International Journal of the Computer, the Internet and Management Vol. 14.No.3 (SeptemberDecember, Pp 8-31 Treaties International Treaties The Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886 as last revised at Paris on 24 July 1971 and amended in 1979. Brussels Convention Relating to the Distribution of Programme Done at Brussels on May 21, 1974. The Paris Convention for the Protection of Industrial Property of 20 March 1883 as last revised at Stockholm on July 14 1967 and amended in 1979.
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The Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly on December 10, 1948.
Regional Treaties Agreement on the Creation of the African Regional Industrial Property Organization (ARIPO) 1979. Created in Lusaka, Zambia, on December 9, 1979 (Lusaka Agreement). TRIPS-Agreement on Trade Related Aspects of Intellectual Property Rights, April 15 1994, Annex IC of Marrakesh Agreement Establishing the World Trade Organisation, 1869 U.N.T.S. 299, 33 I.L.M. 81 (1994).
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Internet Sources. World Wide Websites Cyber Security in Tanzania: Country Reportwww.itu.int/osg/spu/cybersecurity/.../Tanzania Ulanga paper.pd Elizabeth Corcoran, 1 in 6 U.S. Adults Regularly Online, Study Indicates, WASH. POST, May 7, 1997, at C10; see also CyberAtlas/Market Size (visited Feb. 5, 1998) (providing historical data on Internet and Web use). Lexglobe LLP, A Short guide to Copyright Law in Tanzania,
available
www.lexglobelaw.com/assets/guide_copyright2.pdf. Myra Tawfik (2005). “International Copyright Law and 'Fair Dealing' as a 'User Right' e-copyright Bulletin. Available at www.unesco.org
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at
http://www.wipo.int/freepublications/en/intproperty/90 9/wipo_pub_909. http://fairuse.stanford.edu/overview/fair-use/fourfactors/#sthash.z1HCwpTR.dpuf http://www.ifla.org/publications/limitations-andexceptions-to-copyright-and-neighbouring-rights-in-thedigital-environment The Universal Declaration of Human Rights (UDHR) was adopted by the UN General Assembly on December 10, 1948. Available at http://www.un.org/en/documents/udhr/ http://thelawdictionary.org/confidential/#ixzz2ZPynDut Z Bills The Electronic Transactions and Communications Bill of 2013 Data Protection and Privacy Bill of 2013
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