Bentley l and Sherman B1 states that copyright law provides the means to protect investment and labor.

The existence of copyright in particular work restricts the uses that can be made of the work. For
example, a person who purchases a book in which copyright subsists cannot legally photocopies the
book. Similarly, a person who buys a protected CD cannot legally make a tape of that CD for a friend.
The authors also provides for the importance of Rental Directive of 1992 that provides for the rental and
lending rights. The same stated in the case of Warner Brothers and another v.Christiansen

According Paul Faustin Kihwelo2 he define copyright as the legal right of an author or creator to the
exclusive control of the reproduction, publication and sale of certain literary or artistic works for a
limited period of time.

According to P. Narayanan,3 the objective of copyright is to encourage authors, composers, artists and
designer to create original works by rewarding them with exclusive right for limited period to exploit
work for monetary gain.

According to Ngassa Dindi4 The Copyright and Neighboring Rights Act, 1999 provides for remedies to
persons whose rights are in imminent danger of being infringed or have been infringed. These remedies
include damages, account for profit, interlocutory injunction, delivery up of infringing articles,
destruction of infringing articles. The provisions of the Civil Procedure Code, 1966 and Criminal

N. Stephan Kinchella5 defines Copyright as a right given to authors of “original works,” such as books,
articles, movies, and computer programs. Copyright gives the exclusive right to reproduce the work,
prepare derivative works, or to perform or present the work publicly. Copyrights protect only the form
or expression of ideas, not the underlying ideas themselves.

Internationally Tanzania is a member of the several Copyright International Conventions. Among others
namely; The Convention Establishing the World Intellectual Property Organization 1970 (WIPO
Convention), The Berne Convention for the Protection of Literary and Artistic Works (1886), Lusaka
Agreement on the Creation of the African Regional Intellectual Property Organization (ARIPO) (October
12, 1983), Cultural Charter for Africa (September 19, 1990) and WTO- TRIPS Agreement (1994)

Due to rapid technological developments and rapid globalization process, co-operation among nations in
all spheres of development including in intellectual property, becomes inevitable. International and
Regional co-operation, to attempt the forging and harmonize intellectual property rights such as
copyright protection regimes among nations, have made through various International and Regional Co-
operation.

1
Bentley L et all, Intellectual property law, oxford university press, 2001, page 29, 47.

2
in his paper of Intellectual Property Rights (IPR) Protection in Tanzania: The Nightmare and the Noble Dream

3
Intellectual Property Law, 3rd Ed. Eastern House, Calcutta, 2007 Lyaruu, Innocent. J

4
A short guide to copyright Law in Tanzania, Lexglobe LLP, Lyaruu, Innocent. J

5
Against Intellectual Property, 2008 Lyaruu, Innocent. J
Why copyright protection

Bentley l and Sherman B6 states that copyright law provides the means to protect investment and labor.
The existence of copyright in particular work restricts the uses that can be made of the work. For
example, a person who purchases a book in which copyright subsists cannot legally photocopies the
book. Similarly, a person who buys a protected CD cannot legally make a tape of that CD for a friend.
The authors also provides for the importance of Rental Directive of 1992 that provides for the rental and
lending rights. The same was stated in the case of Warner Brothers and another v.Christiansen.7

Copyright infringement

According to the Act No.7 (1999) Section 5 provides for the works in which copyright may subsist;
musical works qualifies for such protection.33

Section 9(1(a), (b), (c),(d),(e), (f), (g), (h), (i) and (j) the Act8extends copyright protection to work
conferring certain exclusive rights to its author(s), the protection so granted aims at giving the
opportunity to the owner of the copyrighted work to reap the fruits of the labour and investment to the
exclusion of others.

Therefore, if a person uses exclusive rights available without his permission or any licence he deemed to
have infringed copyright provided Section 12 does not allow such9

Remedies available to copyright infringement

- injunction10

- Authors, persons having rights in scientific editions, photographers and performers may, if the
infringement was intentional or the result of negligence, recover, as justice may

The Constitution of United Republic of Tanzania, 1977

Constitution does not contain provisions concerning the protection of intellectual property rights;
however, article 2450 refers to the right to own property

50 The Constitution of the United Republic of Tanzania of 1977 Lyaruu, Innocent. J

24

Article 23(2) 51provides for the right to own properties, right to dispose properties, right to
remuneration and income.

6
Intellectual property law, 2001
7
[1888]ECR 2603
8
Op. cit

9
Op. cit Lyaruu, Innocent. J
10
Section 36(1) Act no. 7 of 1999 Lyaruu, Innocent. J
Copyright and Neighbouring Rights Act, 1999

Section 4 of the Copyright and Neighbouring Rights Act, No. 7 of 199952 hereinafter called Copyright
Law where Copyright means the sole legal right to print, publish, perform film or record a literally or
artistic or musical work.

The Act applies to national works from Tanzania Mainland and Foreign Works as per section 3(6) (a) of
Act No.7 of 1999 and Regulation of 15 of Production and Distribution of Sound and Audiovisual
Recordings G.N. No 18 0f 2006.

Under Copyright and Neighbouring Act11 related rights are known as neighbouring rights or secondary
rights.54 Neighbouring rights means the secondary right of copyright which performers are entitled.

The Copyright and Neighboring Right Act, 1999 provide for remedies to persons whose rights are in
imminent danger of being infringed or have been infringed.55 These remedies include damages, account
for profit, interlocutory injunction, delivery up of infringing articles, destruction of infringing articles.

51 Op. cit.

1 Offences and legal sanctions57

The Act provides that any person who knowingly violates, or causes to be violated, the rights protected
under this Act shall be liable to-

- a fine of not exceeding more than five million shillings or to imprisonment for a term not exceeding
three years or to both, for the first offence if the infringement was on a commercial basis;

- A fine of not exceeding ten million shillings or to imprisonment for a term not exceeding five years or
both, for each subsequent offence if the infringement was on a commercial basis.

- Fine not exceeding ten million shillings or imprisonment for a term not exceeding ten years for a
person who, without the authorization of the competent authority imports or distributes copies

2 Civil remedies

Section 3463 provides for the civil remedies that any person whose rights under the Act, are in imminent
danger of being infringed or have been infringed, may institute proceeding before the Court for;

- an injunction to prevent the infringement or to prohibit the continuation of the infringement

- payment of any damages suffered in consequence of the infringement, Including any profits enjoyed
by the infringing person that are attributable to the infringement and if the infringement is found to
have been prejudicious to the reputation of the person whose rights were infringed, the court may, at
its discretion, award exemplary damage.

Criminal

- Subject to the provisions of the Penal Decree, Cap.13 and the Criminal procedure Decree, Cap. 14, any
infringement of a right protected under the Act, if committed willfully or by gross negligence and for

11
Act No. 7 Cap 218 R.E 2002
profit-making purposes, shall be punished by imprisonment for a period of between six months and
three years, or by a fine of between three hundred thousand and two million, or by both.

- The court shall have the authority to increase up to double the maximum penalties specified in
subsection (1)65 of this section, where the defendant convicted for a new act of infringement within five
years of a previous conviction for infringement.

The Court having jurisdiction of a civil action arising under the Act, or Criminal Procedure Decree have
the authority, subject to the relevant provisions of that Act, and on such terms as it may deem
reasonable:

- to grant injunctions to prohibit the committing, or continuation of committing of infringement of any

right protected under this Act;

- to order the impounding of copies of works or sound recordings suspected of being made or imported
without the authorization, as well as the impounding of the packaging of, the implement or; that could
be used for the making of, and the documents, accounts or business paper referring to, such copies. (2)
The provisions of Civil Procedure Decree, Cap. 8 and the Criminal Procedure Decree, cap. 14 dealing with
search and seizure shall apply to infringements of rights under this Act. Any object that was made in
violation of the Act and any receipts of the person violating it, and resulting from such violations, shall
be subject to seizure.66

Research Findings

With regard to the first question researcher sought to find out, if the public is aware of the remedies
offered in copyright and neighbouring Act 1999. The researcher found out that out of 60 respondents,
35 respondents did not know even if the Act exists, 10 respondents have saw the Act but they have not
read it, whereas 15 respondents read and understand the Act. It was their common argument that the
act be written in Swahili because it is intended to them and that the Act should be easily accessible to
the public.

On the second question as to whether the remedies under the Act is sufficient to deter the public from
copyright infringement? 40 respondents answer the question in affirmative, 20 respondents said the
remedies does not deter the public from infringing copyright in musical works.

Honorable Joseph Mbilinyi said the law only provides for the maximum penalty, it does not talk of
minimum penalty thus the law is left hanging. Thus, a person might caught with a truck loaded with
infringed artistic works worth 10 Million Tsh and be fined only 200,000 Tsh.

Lyaruu, Innocent. J

37

Moreover, that despite of all the remedies police should directly help in investigation of infringed works.

On the third question whether the copyright society of Tanzania (COSOTA) and Baraza la Sanaa Taifa
(BASATA) have failed to plan, administer and to make consultation with the government in copyright
protection in musical works in Tanzania? 50 respondents answer the question in affirmative that these
government authorities have failed to protect copyright in musical works. Honorable Joseph Mbilinyi he
was on the view that COSOTA is toothless, and that COSOTA is a small organization without enough
tools to manage all of the Tanzania regions in fighting copyright.

Francis Kaswahili said The Copyright and Neighbouring Act is perfect but the problem is on the
implementation by COSOTA thus why they want COSOTA to be restructured especially in management
area because it fails to perform what have been assigned to do.

Honorable Joseph Mbilinyi also commented on BASATA that it perform its‟ function in old fashioned or
using outdated techniques in administering and protecting copyright. He proposed that there should be
some changes in the structure of BASATA in order for it perform well its functions of administering and
develop arts in general and the BASATA should spread to all of the Tanzania regions rather than it is
now, it has only the Dar es salaam branch.

10 respondents were on the view that COSOTA and BASATA have successful plan and administering
copyright protection in musical works. They said the problem is not on these government authorities but
musicians themselves, they do not trouble to know their rights and many of their works have not yet
been registered hence they cannot be protected. Lyaruu, Innocent. J

38

Ally said that Tanzania musicians they are not creative and they do not know what to do in order to
protect their works, every musician is trying to find his own ways of protection without even regarding
to the law of country. That most of the musicians have not registered their selves in either COSOTA or
BASATA and yet they blame these organizations. For instance every Monday BASATA conducts Sanaa
Press Talk were musicians are provided with the platform to air their view and cry outs but surprisingly
very few musicians attend those meetings hence raised the question whether they are really exploited
their works or they want their works to be exploited.

Honcho Materego said the problem is unity between musicians‟ themselves. That should create unity
through their federations in order to make sure there is a beneficial system, which secure and properly
protects their works but the problem is that there is no unit between them so it is very difficult to bring
positive changes in the industry.

On the Fourth question, what should to be done? Researcher found out different views and opinions
from the respondents as follows,

TRA and TBS

35 respondents urged that Tanzania Revenue Authority (TRA) and Tanzania Bureau of Standards (TBS) to
be involved in the protection of artistic works so that there should be control of revenue and standard
of artistic works. They lamented on quality and disorganization of artistic products, which result to the
loss of revenues to both government and artist.

Honorable Joseph Mbilinyi said according to the research by RULU/BEST – AC, of 2007/08 in 2007
Tanzania government had lost revenue of 7 billion on music industry alone. Lyaruu, Innocent. J

39

Authority need to tax foreign musicians or artists from what they earned because they acquire a lot of in
show they perform in our land.
COPYRIGHT REGULATORY AUTHORITY OF TANZANIA (CORATA)

That Copyright and Neighbouring Act, 1999 should be amended so as to establish Copyright regulatory
Authority Tanzania (CORATA) which will be supervisory agency of BASATA, CHAMUDATA(Chama Cha
Muzik wa Dansi Tanzania), Tanzania Urban Music Association(TAUMA). The establishment of the
Authority will give power COSOTA to protect copyright and that police should give assistance to
CORATA.

Stickers

That government should give enough money to establish a system of creating stickers for all of the
artistic works, especially music cd‟s. COSOTA should act in assistance with TRA to administer and to
distribute the stickers. Stickers from TRA will help to people to recognize the original work over infringed
work of an artist.

Feasibility Study

That government should conduct analytical research and collect the already made research on music
sector (feasibility study) to recognize opportunities and obstacles in the industry and come out with the
plans of improving and protecting music sector for the benefit of the artists and to the country‟s
economy.

Arts subjects

Respondents was on the view that arts subjects such as music and hand craft should be returned in all
public and private schools in all levels so as to boost the creativity and government should Lyaruu,
Innocent. J

40

construct a plan so as to have competent teachers. Government to teach students about artistic work
rights and most important the obligations and how to protect copyrighted work to create a new
generation, which will value copyright and hence decrease amount of infringement in the future. Re
introduction of UMITASHUMTA and UMISETA in all school levels to create competition in artistic work
and innovation to the young generation.

3.3 Conclusion;

Based on findings researcher found out that most of the artists and music stake holders did not know
The Copyright and neighbouring Act, 1999 and that many of the artists have not register their work. Also
based on the findings researcher found out that the remedies offered by the Act and the Act itself are
deeply appreciated by music stakeholders but they seemed to centered they blame on implementation
by government through its agencies (COSOTA and BASATA) whereas BASATA and COSOTA shifted the
blame to artists themselves for the lack of unit among themselves.

Lyaruu, Innocent. J