The Reflection of Copyright Infringements and Compensations

provided under [CAP.218, R.E. 2002]

By
Asherry Magalla

i
 Copyright Statement
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, asherryb.p.magalla@gmail.com
This paper and the individual contributions contained in it are protected
under copyright by the Publisher (other than as may be noted herein).
Copyright © 2018 Asherry Magalla. All rights reserved

ii
 Dedication
To My Son, Ryan Asherry Magalla
Get Well Soon Son
Daddy Loves You

iii
 Acknowledgement
I acknowledge G.O.D. because I wouldn‟t have everything and every
person surrounds me without HIM.

iv
 Table of Contents
Copyright Statement ................................................................................... ii

Dedication.................................................................................................. iii

Acknowledgement ..................................................................................... iv

Table of Contents ....................................................................................... v

The Reflection of Copyright Infringements and Compensations as provided

under [CAP.218, R.E. 2002] ....................................................................... 1

1.0 Introduction ........................................................................................... 1

1.1 Copyright .............................................................................................. 2

1.2 Copyright Infringement .......................................................................... 3

1.3 Other Definitions of Copyright Infringement .......................................... 4

1.3.1 The British Academy and the Publishers Association (2008) ............. 4

1.3.2 Ahmad (2009) .................................................................................... 4

1.3.3 Burgunder (2007) ............................................................................... 5

1.4 Why Are We Protecting Copyright?....................................................... 7

1.4.1 The Right to Property ......................................................................... 7

1.4.2 Protection of Expression of Ideas ....................................................... 7

1.4.3 Encourage Human Creativity ............................................................. 8

1.4.4 Encourage Developments .................................................................. 9

1.4.5 Protecting the Public from Counterfeits Products ............................... 9

1.5 How Is Copyright Protection Justified? .................................................. 9

1.5.1 Economic considerations ................................................................... 9

v
1.5.2 Natural law ....................................................................................... 10

1.5.3 Labour (Effort), Skills and Judgment Concept .................................. 10

1.6 Copyright Sanctions and Their Reflections against Infringements ....... 10

1.6.1 Copyright Criminal and Civil Sanctions and Remedies..................... 11

1.6.1.1 Civil Remedies .............................................................................. 11

Comments ................................................................................................ 11

1.6.1.2 Criminal Remedies ........................................................................ 12

Comments ................................................................................................ 12

1.6.1.3 Monetary Compensation ............................................................... 13

Comments ................................................................................................ 13

1.6.1.4 Right of Destruction ...................................................................... 13

Comments ................................................................................................ 13

1.6.1.5 Copies to Be Rendered Unusable ................................................. 14

Comments ................................................................................................ 14

1.6.1.6 Modification of the Work ................................................................ 14

Comments ................................................................................................ 15

1.6.1.7 Right of Delivery ............................................................................ 15

Comments ................................................................................................ 15

1.6.1.8 Seizure of the Object..................................................................... 15

Comments ................................................................................................ 16

1.6.1.9 Suspension of Release of the Goods ............................................ 16

Comments ................................................................................................ 17

vi
1.6.2 Exceptions ....................................................................................... 17

Comments ................................................................................................ 18

1.7 Responsibility of the Proprietor of an Enterprise ................................. 18

Comments ................................................................................................ 19

1.8 Courts in Reflection of Criminal and Civil Sanctions ............................ 19

1.8.1 Powers of the Courts in Respect to Legal Sanctions ........................ 19

1.8.2 Cases in Respect to Copyright Infringement in Tanzania ................. 20

United Republic of Tanzania v. Khalfan Abdallah ..................................... 20

Republic v. Hassan Nkamba ..................................................................... 20

Republic v. Ajay Amarsh Chavda .............................................................. 21

Khadija Jarufu Thabit v. Jackson Kabiligi .................................................. 21

COSOTA v. Golden Rose Hotel ................................................................ 22

1.9 Personal Assessments ....................................................................... 23

Bibliography .............................................................................................. 26

Text Books ................................................................................................ 26

Statutes .................................................................................................... 26

Articles and Journals................................................................................. 27

Case Laws ................................................................................................ 27

Local Cases .............................................................................................. 27

COSOTA v. Golden Rose Hotel ................................................................ 27

Khadija Jarufu Thabit v. Jackson Kabiligi .................................................. 27

Republic v. Ajay Amarsh Chavda.............................................................. 28

vii
Republic v. Hassan Nkamba ..................................................................... 28

United Republic of Tanzania v. Khalfan Abdallah ..................................... 28

Foreign Cases .......................................................................................... 28

Internet Sources ....................................................................................... 28

viii
 The Reflection of Copyright Infringements and
Compensations as provided under [CAP.218, R.E. 2002]

By Asherry Magalla
Digitally signed by Asherry Magalla
DN: cn=Asherry Magalla

Asherry gn=Asherry Magalla c=Tanzania,

United Republic Of l=TZ
o=Independent Researcher
ou=Independent Researcher

1.0 Introduction Magalla e=magallajr@gmail.com

Reason: I am the author of this
document
Location: Dar Es Salaam-Tanzania
Date: 2018-02-04 13:33+03:00

In most of my time when I pass through our Copyright and Neighbouring

Rights Act, No.7 of 1999 [CAP.218, R.E. 2002], I always think about the
reflection of the punishments with the amount, cost or extent of loss in
which the original author(s) have incurred upon such infringements. This is
simply because it has been a question to many people that I have come
across them, on the ineffectual of CAP.218, R.E. 2002 in preventing piracy
particularly on the punishment and compensation the accused required to
pay.
So the first question I asked myself is, whether the punishments and
compensations provided by the Act are reflecting the actual cost that the
original author gained upon such infringement. In order to know such
reflection, case decisions and law provisions on infringement of copyright
are crucial. In this paper, we are going to see some few cases in Tanzanian
Courts that have been made in relation to copyright infringement, so as to
see whether the punishments and compensations provided by the Act


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.Article and Legal Papers Author at academicians
websites. Book writer at Lambert Academic Publishing Company in German and DL2A – Buluu
Publishing Company in France. Contact details, magallajr@gmail.com.
1
really reflection the actual loss incurred by the original author of the literary
and artistic works.

1.1 Copyright

There are number of definitions of what copyright means. These definitions

are the reflection of the type of legal systems that a particular state adheres
to, such as Civil Legal System,1 Common Law Legal System,2 and Socialist
Legal System. I just do not want to make unnecessary repetitions, but in
some of my books such as Magalla A (2015), Copyright Protection in
Tanzania and the Development of Science, Lambert Academic Publishing,
OmniScriptum GmbH & Co. KG, Saarbrücken, and Magalla A, (2016),
Artistic Works and Their Legal Protection in Digital Age in Tanzania, EAE-
Publishing, OmniScriptum GmbH & Co. KG, and some of my legal papers
on copyright and intellectual property in general as available online, you
may find a number of definitions of copyright as defined by some authors
worldwide.
But the most important definition of all the times is how I defined it in
regarding to both sides of protection by means of copy right and copy left
(economic and moral or social rights), in which most of the authors do not
or did not thought so. They only define it as exclusive economic rights of
literary and artistic works of the original author.
That;
The copyright definition has to refer to the right to copy as other authors
have been saying. But the different is, they only referred it to the exclusive

1
In Civil Law Systems both economical and social rights are protected
2
In Common Law Systems tends to view copyright as protection solely of economic interests
2
rights of the owner of the work that means only the owner have the right to
copy. However the right to copy is also involves other users of the work
other than the owner of the work as long as permission and any other
principles of the doctrine of fair use have been observed. Therefore,
copyright is the right to copy the copyrighted material by both the owner of
the work and other users of the work.
There are some exceptions to the copyright owner‟s rights. They are known
as Free Use. For example, a person may be allowed to copy a work for
non-commercial research and private study, criticism or review, reporting
current events, judicial proceedings and teaching in schools. But if a
person copy large amounts of material or making many copies, permission
is required. Also, the need to include in your work an acknowledgement of
the name of the copyright work and its author.3

1.2 Copyright Infringement

To my understanding, copyright infringements are those acts which directly

or indirectly affect or bring negative impacts on both economic and social
rights of the original owner of the original work, as protected and prohibited
by the laws of the particular country in all circumstances including physical
and digital circumstances.
By the term, “as protected and prohibited by the laws of the particular
country in all circumstances”, implies that;
In order for the copyright infringement in any cause, to prevail before the
court of law, the copyright laws of the particular country must support

3
Magalla A (2015), Copyright Protection in Tanzania and the Development of Science, Lambert
Academic Publishing, OmniScriptum GmbH & Co. KG, Saarbrücken, p.122
3
(protect and prohibit) both physical and digital copyright infringements, so
that both economic and social rights can be observed in any manner or
form, fixed or not fixed.
If only one part is protected leaving the other part unprotected, then there
will be no copyright infringement on the neglected part.

1.3 Other Definitions of Copyright Infringement

1.3.1 The British Academy and the Publishers Association (2008)

The British Academy and the Publishers Association (2008) argues that,
copyright infringement occurs when one of the restricted acts4 takes place
in relation to a substantial part5 of the copyright work without the prior
authorisation of the copyright owner.6 They continue to argue that, such
infringement must be of substantial part and not trivial or small part which
cannot be entertained by the law.

1.3.2 Ahmad (2009)

Ahmad (2009), copyright in a work is infringed when the work is copied

without the consent of the copyright owner. In infringement, it must be

4
The creator's economic and moral rights mean that they are restrictions on what we as users
can do with copyrighted works. These restricted acts include: copying the work, Issuing copies
to the public, importing infringing copies, dealing in infringing copies, and providing means for
making infringing copies.
5
Lord Reid in the case of Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273
stated that “substantiality” depended more on the quality than the quantity of what has been
taken”.
6
The British Academy and The Publishers Association (2008). Joint Guidelines on Copyright
and Academic Research; Guidelines for researchers and publishers in the Humanities and
Social Sciences, British Academy and the Publishers Association. P .15.
4
established that the defendant has copied the plaintiff form of expression
and not his ideas.
A copyright law deals with the form in which the work is expressed .It does
not monopolize the idea of information.7 Thus computer programme, the
expression is protected. This includes not only the code lines of the
programme, but also the structure.8
Ahmad continued that, the problem arises when these specific rights get
violated through the medium of the Internet. In this context, one has to
understand the very nature of the Internet.9 As a medium, it allows a
person to access a large amount of information and to copy that
information in the same state as it is displayed.10

1.3.3 Burgunder (2007)

Burgunder (2007) copyright infringement argues that, copyright allows its

owner to enjoy the fruits of the creative energies by providing exclusive
control over a bundle of rights to a work‟s original expression. One who
intrudes on any of those rights without permission infringes the copyright
unless the use falls within the exception such as fair use. In supporting of

7
The US has well defined legal principle that copyright protects expression but not ideas, 17
USC s 102 (a) at http://www.bitlaw.com/source/17usc/102.html-Retrieved on 9th July 2013.
8
Nehaluddin Ahmad (2009), Copyright Protection in Cyberspace: A critical study with reference
Electronic Copyright Management Systems (ECMS): Communications of the IBIMA Volume 7,
ISSN:1943-7765.
9
One can draw an analogy from the case of DAT (digital audio tap) which also allows one to
make infinite copies without any loss in quality of music, Sony Corp. of America v. Universal City
Studios, 464 U.S. 417, 104 S .Ct .774 (1984.
10
James M. Jordan III Copyrights in an Electronic Age at
http://journal.law.ufl.edu/~techlaw/2/jordan.html (visited on 14 July 2013).
5
his arguments, there must be a proof on the alleging infringements.11 Proof
that the copyrighted work was copied,12 and that the copyrighted work was
illicitly.13
In the case of Sid & Marty Krofft Television Productions Inc. v. McDonald's
Corp,14 Sid and Marty Krofft alleged that the copyright in their H.R. Pufnstuf
television programs for children had been infringed by a series of
McDonaldland advertisements.15
After knowing what the advertisement requires and completed it Needham
promised to pay the Kroffts for McDonaldland advertisements, but later
informed the brothers that the ad campaign had been cancelled and that no
money was forthcoming. But later Needham started to show the
advertisement. The Kroffts promptly sued when the McDonaldland
commercials began to air.
The Court held that, if the idea was similarly shared, then there would be
no infringements. However, both worlds were inhabited by
anthropomorphic plants and animals, shared the same topographical
features such as trees, caves, a pond, a road, and a castle. Both works
present talking trees with human being features and characters with round
heads and wide mouths, evil features. The McDonaldland Expression is

11
Burgunder, L, (2007). Op cit.299.
12
If one cannot prove that the similarities in the works resulted from copying, then the
circumstantial evidence is required such as access to copyrighted material in terms of ideas or
expressions.
13
Substantial similarity of original expression is required, looking at quality and quantity
dimensions, total concept and feel. If that is proven then no one can claim for fair use defence.
14
562 F.2d 1157 (9th Cir. 1977).
15
Bernard A. Galler (1995). Software and Intellectual Property Protection: Copyright and Patent
Issues, Greenwood Publishing Group, Pp.82-83.
6
substantially similar to that in H.R. Pufnstuf. McDonaldland captured the
total concept and feel of Pufnstuf show.16

1.4 Why Are We Protecting Copyright?

1.4.1 The Right to Property

Right to property;17 the basic reason for protecting artistic works is that, a
man should own what he produces, that is, what he brings into being. If
what he produces can be taken from him, he is no better than a slave.18
Intellectual property, which protects artistic works through copyright, is
therefore, the most basic form of property because a man uses nothing to
produce it other than his mind. Also artistic works being intellectual property
works are protected under the Article 17 of The Universal Declaration of
Human Rights of 1948,19 whereby both provide for the right to own and
protect the property. The author or creator of an artistic work being the
owner of the work that he created and that he has exclusive right over the
said work.

16
Burgunder, L, (2007).Op cit Pp.300-03.
17
As explained in Article 24 of URTC that, Subject to the provisions of the relevant laws of the
land, every person is entitled to own property, and has a right to the protection of his property
held in accordance with law. If further state that subject to the provisions of subarticle it shall be
unlawful for any person to be deprived of property for the purposes on nationalisation or any
other purposes without the authority of law which makes Provision for fair and adequate
compensation.
18
Ibid, Bainbridge, Intellectual Property, 8Th Edition at page 18
19
This provision provides for the right to own properties, alone as well as in association with
others and no one shall be arbitrarily deprived of his property since all people are equal.
7
1.4.2 Protection of Expression of Ideas

Another reason is that a person who creates a work or has a good idea
which he develops has a right, based partly on morality and partly on the
concept of reward, to control the use and exploitation of it, and he should
be able to prevent others from taking unfair advantage of his efforts.20

1.4.3 Encourage Human Creativity

Encourage human creativity; copyright and its related rights are essential to
human creativity, by giving creators incentives in the form of recognition
and fair economic rewards. Under this system of rights, creators are
assured that their works can be disseminated without fear of unauthorized
copying or piracy. This in turn helps increase access to and enhances the
enjoyment of culture, knowledge, and entertainment all over the world.21
Creativity being the keystone of progress, no civilized society can afford to
ignore the basic requirement of encouraging the same. It is worth noting
that, economic and social development of a society presupposes creativity
of such a particular society22.
In general, the protection provided by copyright to the efforts of writers,
artists, designers, dramatics, musicians, architect and producers of sound
recordings, cinematograph films and computer software, creates an

20
Bainbridge, D.I., Intellectual Property, 8Th Edition, (Pearson Education Limited, Edinburgh
Gate: England, 2010), at page 19
21
EU Copyright Office, EU Copyright Office Homepage (http://www.eucopyright.com/en/why-
protect-copyright) (accessed on 6th July 2014 at 14:45 hrs)
22
Mambi A, J. ICT LAW BOOK: A Source Book for Information & Communication Technologies
and Cyber Law in Tanzania & East Africa Community, (Dar es Salaam: Mkuki Na Nyota
Publishers Ltd, 2010), at page 201
8
atmosphere conducive to creativity, which induces them to create more and
motivates others to create.

1.4.4 Encourage Developments

Encourage developments. The fact that an author knows that he will enjoy
the fruits of his labour and skills, since his innovation and creativity is
protected from any infringement, as well as availability of remedy in case of
infringement encourages and motivate innovation and creativity; hence
further development of technology.

1.4.5 Protecting the Public from Counterfeits Products

Counterfeiting is a serious problem which should be attacked, not so much

to protect the interests of legitimate traders but to protect society from
being deceived into buying substandard goods. In some cases, safety is at
issue: for example, where the counterfeit is a poorly made toy covered in a
paint containing high levels of lead. Furthermore, there are links between
organised crime and intellectual property crime. This is one main reason
why the maximum penalties for copyright offences and trade mark offences
are considerable.23

23
Bainbridge, D.I., Intellectual Property, 8Th Edition, (Pearson Education Limited, Edinburgh
Gate: England, 2010), at page 19
9
1.5 How Is Copyright Protection Justified?

1.5.1 Economic considerations

The first is the utility, or consequentiality, basis. Society benefits from the
production of creative works. But in the absence of legal protection,
creative production tends to be inefficient since costs of creation are high
while costs of copying and distribution are low.24

1.5.2 Natural law

The second form of copyright justification is based on moral rights or

personality claims. This theory embraces the view that expressive works
are the extension of one‟s self and thus are deserving of protection
because of an individual‟s inherent dignity.

1.5.3 Labour (Effort), Skills and Judgment Concept

The final theory owes its origins primarily to the work of Enlightenment
philosopher John Locke. Here, the justification of copyright stems from the
right of an individual to control the fruits of his labour.

1.6 Copyright Sanctions and Their Reflections against Infringements

The Act (Copyrights and Neighbouring Rights Act),25 was enacted to make
better provisions for protection of copyright and neighbouring rights in
literary, artistic works and folklore and for related matters in Tanzania.

24
Terry Hart (2012) Rehabilitating Locke: The Labour Justification of Copyright.
25
Cap 218. R.E 2002 of Tanzania
10
Also to promote the creation of literary and artistic works, to safeguard
expressions of traditional culture and to productive activities in the field of
communicating to the public author's works, expression of folklore, other
cultural productions and events of general interest.26

1.6.1 Copyright Criminal and Civil Sanctions and Remedies

The Act provides for civil remedies and criminal sanction for those who
infringe copyrights.27

1.6.1.1 Civil Remedies

A person whose rights have been infringed may institute

proceedings in the United Republic of Tanzania for an
injunction or payment of compensation for damages
suffered in consequence of such infringement including
any profits enjoyed by the infringing person that are
attributable to the infringement.28

Comments

The person, who suffers any injuries both social and economic, may seek
help from any court of competent jurisdiction in order to get relief either
through prohibiting or preventing such infringement from further
continuance or payment of money as compensation for the loss occurred.

26
Section 2 of Cap 218. R.E 2002 of Tanzania
27
For the legal sanctions see section 42 (2) of the Copyright and Neighbouring Rights Act, Cap
218, R.E 2002
28
Section 36 of the Act.
11
The money paid can also include all of the profit attained or gained by the
wrongdoer.

1.6.1.2 Criminal Remedies

For criminal offence against copyright infringement the

sanction is a fine not more than five million shillings or
imprisonment for three years or both for the first offence
or a fine of not more than ten million shillings or to
imprisonment of up to five years or both for each
subsequent offence if the infringement was on a
commercial basis.29

Comments

With regard to the criminal sanction imposed to the offence of copyrights

infringement, it seems that the fine is trivial to achieve the goal of deterring
the commission of such offence. Most of infringers afford to pay the fine out
of the profit they obtain from such illegal business which infringes
copyrights of the film artists.30

29
Section 42 of the Copyright and Neighbouring Rights Act, Cap 218, R.E 2002
30
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 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; and 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
12
1.6.1.3 Monetary Compensation

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 require, a monetary indemnity for the injury
caused to them even if non pecuniary loss has occurred.
This right is not assignable unless it has been
acknowledged by contact or unless legal action asserting
the right has previously been commenced.31

Comments

This section apply to any author who is having intellectual property rights in
scientific editions, photographers and performers, to claim monetary
compensation for the injuries caused by intention or the result of
negligence even if non pecuniary loss has occurred.

1.6.1.4 Right of Destruction

The injured party may require the destruction of copies

that have been unlawfully manufactured or unlawfully
distributed or which are intended for unlawful
distribution.32

31
Section 37 (2) of the Copyright and Neighbouring Rights Act, Cap 218, R.E 2002
32
Section 38 (1) of the Copyright and Neighbouring Rights Act, Cap 218, R.E 2002
13
Comments

The fatality may request the obliteration of unauthorized copies or illicitly

distributed or which are projected for illegitimate circulation. Consequently,
under his/her demand such copies may be shattered as reckoned fit.

1.6.1.5 Copies to Be Rendered Unusable

The injured party may further require that the equipment

such as moulds, plates, engraving stones, blocks,
stencils and negatives which were exclusively destined
for the unlawful production of copies be rendered
unusable, or if this is not practicable, destroyed.33

Comments

The offended casualty may auxiliary necessitate that any apparatus which
were utterly predestined for the prohibited fabrication of copies be turned
into ineffectual, or shattered.

1.6.1.6 Modification of the Work

If the appearance of the copies or the equipment causing

the infringement can be modified in some other fashion
that the work no longer constitutes an infringement of the
rights of the injured party, in such case such injured party

33
Section 38 (2) of the Copyright and Neighbouring Rights Act, Cap 218, R.E 2002
14
 may only require that such measures be undertaken as
to achieve this effect.34

Comments

In case manifestation of the copies or the apparatus resulting the

encroachment can be tailored in various supplements approach to the
extent that it is no longer represent an infraction of the rights of the
indignant party, in such case such indignant party may necessitate actions
to be embarked on to realize them.

1.6.1.7 Right of Delivery

The injured party may require that the copies and

equipment be delivered to him, in whole or in part, for an
equitable price which shall not exceed the production
cost.35

Comments

The indignant party may necessitate that the copies and paraphernalia be
conveyed to him, entirely or in component, for an impartial outlay which
shall not surpass the fabrication expenditure.

34
Section 38 (3) of the Copyright and Neighbouring Rights Act, Cap 218, R.E 2002
35
Section 39 of the Copyright and Neighbouring Rights Act, Cap 218, R.E 2002
15
1.6.1.8 Seizure of the Object

Any object which was made in violation of this Act and

any receipts of the person violating it and resulting from
such violations, shall be subject to seizure.36

Comments

Subject to this provision the Civil Procedure Code of 1966 and Criminal
Procedure Act of 1987 provisions on seizure shall be used together in
rendering such right to the victim of the infringements.37 Section 170 (2) of
the Criminal Procedure Act of 1987 which describes that;
“sentences which exceed the minimum term of imprisonment prescribed in
respect of it by the Minimum Sentences Act or for any other offence, which
exceeds twelve months or a sentence of corporal punishment which
exceeds twelve Strokes, or a sentence of a fine or for the payment of
money (other than payment of compensation under the Minimum
Sentences Act, which exceeds six thousand shillings, shall not be carried
into effect, executed or levied until the record of the case, or a certified
copy of it, has been transmitted to the High Court and the sentence or
order has been confirmed by a Judge:
Provided that this section shall not apply in respect of any sentence passed
by a Senior Resident Magistrate of any grade or rank.”
Cannot be applicable in this matter.

36
Section 36 of the Copyright and Neighbouring Rights Act, Cap 218, R.E 2002
37
Section 43 (2) of the Copyright and Neighbouring Rights Act, Cap 218, R.E 2002
16
1.6.1.9 Suspension of Release of the Goods

The provisions of Tanzania Revenue Authority Act, 1995

dealing of release of the suspension with suspected
illegal goods shall apply to articles and implements
protected under this Act.38

Comments

This means the provisions of Tanzania Revenue Authority Act, 1995

connecting with the discharge of the deferment with alleged banned goods
shall be relevant to articles and apparatus secluded by Cap.218, R.E.
2002.

1.6.2 Exceptions

If infringement of a right protected under this Act, the

demands of the injured party for any injunction (section
37, for work the rendering or destruction unusable
(section 38) or for delivery (section 39) are asserted
against person whose acts of infringement were neither
intentional nor negligent, such person may simply
indemnify in money to the injured party if execution of the
aforesaid demands would produce for him a serious and
disproportionate injury and if it may be assumed that the
injured party could accept redness in cash. The
damages payable as aforesaid shall be such an amount

38
Section 43 (3) of the Copyright and Neighbouring Rights Act, Cap 218, R.E 2002
17
 as would have constituted an equitable remuneration
had the right been granted by contract. Payment of such
damages shall constitute the injured party's consent to
utilization within customary limits.39

Comments

Any infringement of the copyright as provided by section 37, 38, and 39 of

the Copyright and Neighbouring Rights Act, Cap 218, R.E 2002, shall not
be presumed as infringement if the alleged action were neither deliberate
nor inattentive. However, fair indemnification may be done if the indignant
party deemed so right.

1.7 Responsibility of the Proprietor of an Enterprise

If a right protected under this Act has been infringed by

an employee or agent of an enterprise in the course of
this duties to such enterprise, the injured party may also
assert the rights provided in sections 37 to 38, with the
exception of the right to damages, as against the
proprietor of Further claims which such enterprise may
arise from other legal provisions shall not be affected.40

Comments

The section provides for the liability to the act committed by the employee
or agent of the company or any enterprises. The victim has been given

39
Section 41 (1) of the Copyright and Neighbouring Rights Act, Cap 218, R.E 2002
40
Section 40 of the Copyright and Neighbouring Rights Act, Cap 218, R.E 2002
18
opportunity to claim for the infringement upon the right of destruction,
copies to be rendered unusable, modification of the work, and right of
delivery with the exception of the right to damages.

1.8 Courts in Reflection of Criminal and Civil Sanctions

It has further been argued that the remedies and

sanctions which are provided by the Act particularly
criminal sanctions are insufficient to deter the
infringement of artistic and literary works.41 This
henceforth led into continuing existence of copyrights
infringement through in Tanzania.

1.8.1 Powers of the Courts in Respect to Legal Sanctions

The court having jurisdiction of a civil action arising under the Act, or
Criminal Procedure Act shall have the authority, subject to (the relevant
provisions of the Act and the Civil Procedure Code) and on such to do the
following;42
A. to grant injunctions to prohibit the committing, or continuation of
committing, of infringement of any right protected under this Act;43
B. to order the impounding of copies of works or sound of suspected
recordings or imported made being without the authorisation of the
owner any right protected under the Act where making or where

41
The Act, ibid, provides for general remedies on copyright infringement without making
specification of remedies depending on the nature of infringement. Section 36 of the Act
provides for civil remedies such as damages, compensation and injunction.
42
Section 43 (1) of the Copyright and Neighbouring Rights Act, Cap 218, R.E 2002
43
Section 43 (1) (a) of the Copyright and Neighbouring Rights Act, Cap 218, R.E 2002
19
 importation is a subject of such copies to an authorization, as well as
the impounding of the packaging of the implements that could be
used for the making of, and the documents, accounts or business
papers referring to, such copies.44

1.8.2 Cases in Respect to Copyright Infringement in Tanzania

United Republic of Tanzania v. Khalfan Abdallah45

The court ordered the accused to pay a fine of 200,000/= Tshs. having
committed the offence of infringement of artists‟ works by in which pirated
artistic works was ownership of a small industry.

Republic v. Hassan Nkamba46

The accused made piracy of artistic work valued 550,000/= Tshs and was
ordered to pay fine of 300,000/=.

Republic v. Ajay Amarsh Chavda47

The accused person Ajay Amarsh Chavda and Justine Paul Limonga, were
charged with violation of copyright in 12 (twelve Counts) that is unlawful
reproduction, translation, adaptation, and distribution of visual-video film.
Both accused persons were fine 500,000/=Tsh or 3 (three) years to jail in
case of default. And they may serve both punishments in case of default.
All of the counterfeited apparatus were ordered to be destroyed by the
COSOTA.

44
Section 43 (1) (b) of the Copyright and Neighbouring Rights Act, Cap 218, R.E 2002
45
Criminal. 550 of 2004 case No (Unreported).
46
Criminal Case No.519 of 2005 (Unreported).
47
Criminal case No. 814 2011, Distric Court of Ilala at Samora Avenue
20
Khadija Jarufu Thabit v. Jackson Kabiligi48
The plaintiff filed a plaint against the defendant for breach of contract as he
failed to execute the terms and conditions of the contract. The plaintiff
entered into agreement with the defendant to distribute film or movies
together. Hey did the film and agreed to share 50% each.
The work was registered to COSOTA, however the defendant went further
to be given sticker to sell the work but COSOTA refused as the work was
registered under the name of plaintiff. COSOTA director called them to talk
and the defendant said he was not ready to distribute the work due to
inadequate budget.

The defendant gave a sum of 500,00/Tsh, but the agreement was that the
defendant will give the plaintiff 8,000,000/= installments in 3and the work
changed from plaintiff to the defendant.
They went further to COSOTA in which the defendant requested more time
to pay the amount. The defendant was ordered to pay eight millions
(8,000,000/=) Tsh to the plaintiff as specific damage for the breach of
contract, to stop from producing and selling of film or movie known as
“WAPE SALAM ZAO” until when he pay the full amount, and to pay 50% of
the profit obtained from producing and selling a film or movie to the plaintiff
from the date the parties entered into the contract t the date on which the
court pronounce the judgment (the judgement was made on 14th June
2016).

48
Civil Case No.113 of 2015, District Court of Kinondoni, at Kinondoni
21
COSOTA v. Golden Rose Hotel49

The Resident Magistrate Court in Arusha withdrew the case on the ground
that the matter be resolved outside the court. The defendant was ordered
to pay 2,100,000/= TSH

From some of the above cases it may be observed that the amount
payable as fine is of less value compared to the value of an infringed work.
This can therefore be said that in one way or other encourages more other
infringements of copyrights, but this is not my perception.

1.9 Personal Assessments

I stand to be corrected
When you look at section 36, 37, and 42 (1) of the Act on the civil and
criminal remedies that; section 42 (1),
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 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; and 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.
Section 37,
As against any person who infringes a copyright or any other right
protected by this Act, the injured party may bring an action in court for
injunctive relief requiring the wrongdoer to cease and desist if there is a
49
R.M.C.C 23/2007

22
danger of repetition of the acts of infringement was intentional or the result
of negligence. In lieu of damages, the injured party may recover the
profits derived by the infringer from the acts of infringement together
with a detailed accounting reflecting such profits.

I do believe that these provisions do not have problems. The problem is on

the assessment of the costs, loss or damages incurred by the plaintiff in
regarding to the copyright infringement.
One among the sentences in section 37 stipulates that, the injured party
may recover the profits derived by the infringer from the acts of
infringement together with a detailed accounting reflecting such
profits.

This means that, there must be sufficient evidence in supporting of the

alleged loss in connection with the infringement of the said rights, as
practiced in any other case you know.

I just do not blame the court on the punishments or legal sanctions or any
other forms of compensation provided to the wrongdoer. The issue is that,
the courts only rely upon the facts brought before it in corresponding to the
evidence brought before it. The financial assessment on the loss incurred
by the plaintiff is crucial in determining the amount that such plaintiff must
be paid to recover such loss. If the reports are not adequate and sufficient
enough to replace the loss a plaintiff suffered, then the amount paid cannot
be sufficient enough to compensate the actual loss.

23
Also in criminal sanctions as provided by the Act, the penalties and
compensations have been fixed by the term „not exceeding‟ which entails
that you cannot exceed the required amount or sentences as provided by
the Act. But in civil sanctions it depends upon the loss incurred by the
victim(s) supported by sufficient evidence.

I believe the court cannot provide less amount of money or compensation

upon provision of strong evidence and sufficient financial statements
relating to the infringement of the said copyright. Just look at the example
of the incidence of Mwana FA and AY, where by the Bongo Flavas Artists
claimed 2.1 Billions Tsh as special damages and 5 million as general
damages and they were awarded by the Trial Court.50 Despite the appeal
filed by Tigo to the High Court against the judgment, such appeal was
dismissed.51
After the appeal decision, Respondent Advocate, Albert Msando said that;
„It was a big win for Tanzanian Music industry as far as copyright protection
was concerned.‟ “Huu ni ushindi mkubwa kwao na kwa tasnia ya mziki
nchini. Ni haki yao kulipwa kwa sababu ni kazi zao ambazo zinalindwa
kisheria.”52
End of quotation.

50
Hamisi Mwinyijuma and Ambwene Yesaya Civil Case No.17 of 2016 of the District Court of
Ilala
51
Mic Tanzania Limited v Hamisi Mwinyijuma, Ambwene Yesaya, and Cellulant Tanzania
Limited, Civil Appeal No.64 of 2016, HC
52
Available at http://nairobinews.nation.co.ke/chillax/bongo-stars-ay-mwana-fa-pocket-sh 98m-
ruling/- retrieved on 3rd February 2018 at 2000 hours
24
 Bibliography

Text Books

Bainbridge, D.I (2010)., Intellectual Property, 8Th Edition, (Pearson

Education Limited, Edinburgh Gate: England,

Bernard A. Galler (1995). Software and Intellectual Property Protection:

Copyright and Patent Issues, Greenwood Publishing Group

Magalla A, (2016), Artistic Works and Their Legal Protection in Digital Age
in Tanzania, EAE-Publishing, OmniScriptum GmbH & Co. KG

Magalla A (2015), Copyright Protection in Tanzania and the Development

of Science, Lambert Academic Publishing, OmniScriptum GmbH & Co. KG,
Saarbrücken

Mambi A, J. (2010) ICT LAW BOOK: A Source Book for Information &
Communication Technologies and Cyber Law in Tanzania & East Africa
Community, (Dar es Salaam: Mkuki Na Nyota Publishers Ltd,

Terry Hart (2012) Rehabilitating Locke: The Labour Justification of

Copyright.

Statutes

The Constitution of the United Republic of Tanzania, 1977,

The Copyright and Neighbouring Rights Act, Cap 218, R.E 2002
25
Articles and Journals

EU Copyright Office, EU Copyright Office Homepage

(http://www.eucopyright.com/en/why-protect-copyright) (accessed on 6th
July 2014 at 14:45 hrs)

James M. Jordan III Copyrights in an Electronic Age at

http://journal.law.ufl.edu/~techlaw/2/jordan.html (visited on 14 July 2013).

Nehaluddin Ahmad (2009), Copyright Protection in Cyberspace: A critical

study with reference Electronic Copyright Management Systems (ECMS):
Communications of the IBIMA Volume 7, ISSN:1943-7765.

Case Laws

Local Cases

COSOTA v. Golden Rose Hotel R.M.C.C 23/2007

Hamisi Mwinyijuma and Ambwene Yesaya Civil Case No.17 of 2016 of the
District Court of Ilala

Khadija Jarufu Thabit v. Jackson Kabiligi Civil Case No.113 of 2015,

District Court of Kinondoni, at Kinondoni

Mic Tanzania Limited v Hamisi Mwinyijuma, Ambwene Yesaya, and

Cellulant Tanzania Limited, Civil Appeal No.64 of 2016, HC

26
Republic v. Ajay Amarsh Chavda Criminal case No. 814 2011, Distric Court
of Ilala at Samora Avenue

Republic v. Hassan Nkamba Criminal Case No.519 of 2005 (Unreported).

United Republic of Tanzania v. Khalfan Abdallah Criminal. 550 of 2004

case No (Unreported)

Foreign Cases

Sid & Marty Krofft Television Productions Inc. v. McDonald's Corp, 562
F.2d 1157 (9th Cir. 1977)

Sony Corp. of America v. Universal City Studios, 464 U.S. 417, 104 S .Ct
.774 (1984

Internet Sources

http://nairobinews.nation.co.ke/chillax/bongo-stars-ay-mwana-fa-pocket-sh
98m-ruling/- retrieved on 3rd February 2018 at 2000

http://www.bitlaw.com/source/17usc/102.html-Retrieved on 9th July 2013.

27