ERICK MACHUA-PIRACY AND COPYRIGHT PROTECTION IN CINEMATOGRAPHIC WORKS IN TANZANIA.

CHAPTER 1

1.0 Introduction

In Tanzania the legal terminology “copyright” is defined and recognized as a property which vests in the author’s of original literary, dramatic, musical and autistics works. Copyright also vest in authors of sound recordings, films (cinematographic works), broadcasts, cable programs and typographical arrangements of published editions.

Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. Creativity being the keystone of progress, no civilized society can afford to ignore the basic requirement of encouraging the same. Economic and social development of a society is dependent on creativity. 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 atmosphere conducive to creativity, which induces them to create more and motivates others to create.

The main legislation which governs copyright in Tanzania is the Copyright and Neighboring Rights Act No 7 of 1999.[1]Section 5(2) provides for works in which copyright may subsist where Cinematographic works and other audio-visual works is provided

Copyright and neighboring rights are essential to human creativity. Copyright protection gives the creators incentives in the form of recognition of their efforts and providing them with fair economic rewards. Through copyright protection, creators are assured that their works can be disseminated without fear of unauthorized copying or piracy. This in turn increases access to and enhances the enjoyment of, among other things, knowledge and entertainment all over the world.

In Tanzania as a general rule, copyright protection is available to works of authors who are nationals of, or have their habitual residence in Tanzania. Works first published in Tanzania may also qualify for copyright protection irrespective of the nationality or residence of their authors. Works first published abroad but thereafter published in Tanzania may also qualify. Protection of intellectual property rights could attract investors and hence develop the national economy. Therefore protection of patents, rights to industrial designs, trade marks and service marks and artistic, musical and literary works is a very serious issue which every player in the market must be aware of and must respect.[2]

Cinematographic works are recognized in Tanzania and are included in the Copyright and Neighboring Rights Act.[3]The protection of copyright in cinematographic works in Tanzania is faced with many challenges. Piracy of cinematographic works poses a lot of constraints on the protection of the cinematographic works; it operates within the nation and across national boundaries.

Introduction of digital technology and internet has posed new challenges to traditional copyright protection. This is due the fact that it facilitates piracy of copyrighted works and this is to include cinematographic works. Introduction of digital technology and internet enables private individuals to publish, reproduce and communicate copyright works to vast audiences without resorting to original owners.

Piracy is a form of theft and is mostly often involves violation of copyright law. Specifically it refers to the unauthorized copying or use of intellectual property. Some scholars classify piracy into four forms known as internet piracy, optical Disk piracy, signal theft and Public performance.

1.1 Historical background

As with the concept of intellectual property in general many Tanzanians, among the few who are aware of the existence of intellectual property, think that in Tanzania, intellectual property is a totally new concept very few among those who know that intellectual property in Tanzania came with the colonial administration, thus we see the introduction in 1924 through Chapter 218 of the Copyright Legislation Marks in 1922. So the coming into then Tanganyika of the colonial administration came with those aspects of intellectual property. The immediate post independent Tanganyika did not have any significant change in the contents of the intellectual property legal system, although it is notable that the Copyright Ordinance Cap. 218 was repealed in 1966 by Copyright Act No. 61 of that year. In 1999 a new Copyright Legislation was enacted. It is the current Copyright Legislation in force.[4] Therefore it will clearly be seen, during the colonial administration the forms of intellectual property were mainly to protect the rights of the subjects who came and settled in the country and the national of the colonial power and of its allies. Intellectual property had little or no value to indigenous Tanzanians. This same position was maintained even after independence as indigenous Tanzanians did not have any objects of protection in the really intellectual property rights protection in the conventional sense. Indigenous Tanzanians did not have any patentable inventions or innovations, nor did they have trade marks to protect, even in cinematographic works, music, local composers knew nothing about the rights under copyrights. Intellectual Property then, was more or less an instrument of monopoly. There were infact some laws which were promulgated to inhibit innovative activities among the indigenous Tanzanians.

It is however now different 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 protection regimes among nations, have been made through various International and Regional Co-operation. The World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO) as intellectual property norm setters have been the driving force behind these efforts. There have been some achievements although the asymmetrical reality of the developed, developing and least developed countries had made that task to be complex.[5]

However Piracy in cinematographic works in Tanzania does not have a long historical background. Piracy in cinematographic works started to emerge mainly in the late 1990’s when introduction of digital technology and internet took its pace. Also it is at this period when the film industry was getting its momentum.[6]

Prior to 1990’s the film industry in Tanzania was real low. Very few films were produced and there were no any trace of piracy in cinematographic works. However there were several instrument both legal and non legal which governed cinematographic works and film in Tanzania. For example there was Copyright and Neighboring Rights Cap of 1967 which was enacted to govern copyright.

Tanzania is member of WIPO Convention since 1983.[7]Also Tanzania ratified Berne Convention for the protection of literary and Artistic works of 1886 as revised in 1971 since 1963 which is supervised by WIPO.[8]

The cap of 1967 was amended and replaced by the Copyright and Neighboring right Act No 7 of 1999.The president assent in June 1999 and the law became operational from December,31,1999.It complies with the Berne convention(1886) and the TRIPS Agreement of the world Trade organization(1994)

The new Act extended the scope of copyright to encompass among other things copyright society of Tanzania (COSOTA)[9] The COSOTA is vested with the power to administer the copyright Act and serve as Collective Management Society. This is itself a great improvement. On the old Act among other things did not provide for an institution to administer the Act.