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Assessment on the Law Relating to Copyright Protection against Piracy on Music Industry in Tanzania. CHAPTER ONE.



1.0 Introduction

Southern African countries are losing millions of dollars every year as a result of music piracy and illegal audio and video music cassettes. Now strategies are being put in place to vigorously combat this problem which is affecting not only the region but the international arts industry. The case of Tanzania highlights why so many talented artists have not realized their full potential. Tanzania is reported to be loosing an average of US$9.4 million every year to piracy. Tanzania’s Music Copyright Association (TMCA) Secretary General Francis Kaswahili said over six million audio music cassettes and 2.5 million video cassettes were illegally duplicated and sold on the country’s streets last year.[1]

Piracy is the number one enemy to the development of the music industry in the country because pirates reap from where they did not sow by reproducing other people's intellectual works such as music, films and other artistic works. Pirates also rob Government of the much needed revenue by evading tax. 

A survey conducted recently established that Government lost revenue amounting to over K15 billion in a year through piracy. The effects of piracy are perhaps even harsher on the copyright owners themselves such as musicians, and film makers who are robbed of the fruits of their intellectual property.[2] 

Another sad thing about piracy is that it does not only rob Government of revenue, as recent raids by law enforcement agencies have revealed that pornographic products are also increasingly being brought into the country through pirated materials.

This contributes to the erosion of moral values resulting in the increase in rape and defilement cases.KJ76

It is for this reason that the Government of Tanzania through the Ministry of Information and Broadcasting Services which is the custodian of Copyright and Performance Rights Act, in conjunction with Tanzania Revenue Authority, security wings and other stakeholders, have intensified the fight against piracy. This fight against piracy however is not an easy job. For this battle to be won, among other things, there is need to educate the public on what Copyright and Piracy is.[3]

               1.1 Background to the Problem

Like in every other nation music has always been part of the peoples culture in Tanzania, and has moved along with the technological changes that have been going on with time. With its long history of trade connections with many other parts of the world, reaching as far back as the 15th century, people of Chinese, Indian, Arab and European descent landed on the coast of this country. They brought they influence in music, by their music style and music equipment. In the early years of the 20th century, advancement in technology brought about the possibility of recording music and storing it in shellac phonographic discs. Famously known as the 78s because of their 78 rounds per minute speed. As early as the musicians from Tanzania began releasing songs in the 78 RPM format, the most famous recordings being of Siti Binti Said the female singer from Zanzibar. It was not easy to produce these phonograms and Siti had to travel all the way to India to make the recordings then.[4]

In the early 50s, a Scandinavian entrepreneur put up a recording studio and a disc pressing plant in Kenya. That was the beginning of a very vibrant musical period for Kenya and the rest of East Africa, with Kenya being the centre of recording industry for East Africa for years. Most of the musicians from Tanzania who wanted to release their songs then had to go to Kenya, mainly Mombasa, Kericho and Nairobi to record and release their songs, now in a newer phonogram format of 45s and LPs.[5]

One thing that has go to be noted is that due to the lack of copyright knowledge, the musician recorded and then sold all their rights to the recording companies then. The record company would pay all their travel and accommodation bills, the studio would hired and paid for by the record companies, there were cases where later the bands would received music instrument in exchange for their music. There was thus, no further payment after that.[6] 

In the 70s two very notable things happened, the first was the closure of the Kenya/ Tanzania borders due to political misunderstanding. It was a big blow to Tanzanian musicians. There was nowhere they could release their music in 45s and LPs. And as this was the international format, that was the end of Tanzania music appearing on the international music scene for a long time.[7] 

The second event was the introduction of the audiocassette technology in Tanzania. Here was a population hungry for music and in comes a technology which is cheap, easy to store and easy to make copies. That then was the beginning of piracy in Tanzania. Due to the available technology then, very small scale of business was being done. Tapes could only be recorded if had two tape decks and it would take 12 hours to record 12 one hour long tapes. The covers were handwritten, and the work generally shoddy. The coming of the double speed cassette decks, made the work more easier and more cassette were made the cover now still not very good  but, photocopies to keep up with the speed of cassette production. Thousands of pirated cassettes poured in from the Far East and the Middle East, the business now became very luxurious.[8]

The importation of the cassette dubbing machines that can be looped to dub hundred of cassettes per day, with improved covers, mostly photographs of the original covers, brought enough money for the pirate to become well established financially. The pirate developed their own infrastructure thus making available copies to all parts of the country, and by 90s smuggling them to neighbouring countries creating havoc with any systems that were in establishment there.[9]

The lack of a proper copyright law created a haven for pirates, some of who moved their equipment from the Middle Eastern countries into Tanzania. More and More sophisticated equipment was brought into the country; business grew more profitable as there were literally no checks, either by the Government of the copyright holders. But there was another side of this business that has remained hidden, and that is the use of music without manufacturing. Before music could be recorded it could only be performed live. With our infrastructure and culture, music was never originally performed for the business. People would gather for one reason or another marriage, funeral or such like gathering and music would be performed in participatory manner by the whole gathering, music was then regarded as property of the society, even though outstanding musician would be recognized and provided for by the society.[10]

The introduction of new technologies, the radio and the phonographic player brought about the new use of music. Now music could be and heard by a bigger audience. Music could now be used without the music owner being able to control or monitor its use. It began being used as an incentive for customers in drinking places, and the radio began being using it in programs that were highly paid for, but the musician did not get any benefit from the commercial use of his work. Advertisement jingles rich companies used music without even informing the owner let alone paying for the rights. We now have thousands of uses of music, mobile phones are now a new source of income in some countries bring in huge sums of money.

As you may by now be knowing, the owner of the music copyright has the exclusive rights for the music including the right to allow for public performance, the use of he music without his consent was direct infringement of this right. Years of free use of the music have now made it almost a tradition to use music for free. Bigger audience now receive music for free, while a lot of money is being generated through the use of this music. Radio, TVs cable stations, satellite stations, public address, Internet and various other means and ways are used to get money by the use of music.[11]

The other notable important factor of this kind of use is the fact that even music that is no longer on sale is still being used profitably.

It is important that payment for this music be made for the simple fact that this music is owned by someone, it is a property like any other property and thus should be used using simple rules of any property. Many musician whose music is being publicly aired may no longer be actively participating in music, or are even dead, thus paying them for the use of their property which is benefiting others is a reasonable and common use.[12]  

               1.2 Statement of the Problem

In recent years the work of arts becomes more popular to the whole society of the world. This made the increase in both fine and performing arts. This increase of the artistic work made a number of persons to involve in artistic work by either creating or participate in the creation or in producing it or in the supply of the completed work. In the due cause of the whole process from the creation to the stage of reaching the user of such product a number of things may occur. This includes piracy.

Although there is a law (Copyright and Neighboring Right Act) which protects the copyrighted work from any kind of infringement, piracy, still, seems to be the problem especially in the music and film industries in Tanzania.

Therefore, it is from this understanding that triggers’ the researcher to undertake this study in order to examine a critical assessment on the law relating to piracy protection to see whether the problem is with the law itself or else which find out and established the following; What were the major roles of the law relating to copyright protection against piracy at music industry in Tanzania? Does the law relating to copyright protection against piracy in music industry in Tanzania is effective in practice in protecting the rights of the artists both economically and morally? And what suggestion that can be recommended upon to solve the problem of piracy in music and film industry in Tanzania?

               1.3 Literature Review

It is the researcher’s humble position as it may be the position of other scholars that the rights of authors particularly the musicians are not well protected against piracy and hence brought a lot of problems to the authors and the industry generally. Various scholars and jurists have taken trouble to reveal the problem but they have in one way or another not touched the enormous cry of the musicians which is copyright protection against piracy. Thus it is from this motive that the work endures to cure. Their role is a corner stone from which force and valid of this work acquires the base to lean on.

Generally speaking there are three types of property, one is property consisting of movable things such as wristwatches, cars etc, in a legal sense, this is known as “movable property” and its legal right is referred to as “exclusive” because the owner has the exclusive right to use the property.

The second type is immovable property or sometimes known as “real property”. These are land and things which are permanently fixed on it such that they are not capable of being moving such as houses are generally termed as immovable property.

The third type of property is “intellectual property” which protects the creation of human intellect[13]. Intellectual property has been originally divided into three branches, namely, industrial property, commonly known as patent which protect inventions. Trade and service mark. And copyright which protects literary and artistic works as well as creations protected by Neighbouring Rights. This study seeks to explore the copyright only and more specifically copyright protection against piracy in film industry. 

Robbin J and Daniel A[14] observed that copyright arise automatically as soon as a work is created. Some people think that to have copyright in a work one has to put a letter “C” in a circle, that is ©, but this is not the case. The origin of the letter “C” in a circle is the Universal Copyright Convention (UCC) (which Tanzania is not part to it) in which among other things have these main features:

(a)   Works of a given country must carry a copyright notice in order to secure protection.

(b)   There is no need for formalities or acquiring notice copyright notice in order to secure protection.

It should be noted that a letter © can be advantageous when an author lives in a country with proper protection of copyright. However, a “©” notice in itself may well be of no relevancy or help in determining authorship or duration of rights other then a publisher’s or other matter included I a public agreement.[15] 

Kihwelo P. F[16] has to some extent examines the state of intellectual property rights protections in Tanzania. He starts by exploring the meaning of intellectual property rights, different types and branches of intellectual property rights available.

He also discuss the existing legal regime or the protection of intellectual rights which includes the Patents Act 1987, Trade and Service Mark Act 1986, Copyright and Neighbouring Rights Act, 1999 and many others. He went further arguing that the rationale for affording protection to intellectual property rights are inter alia to encourage and reward creative works, to nurture technological invention, to ensure fair competition, to protect consumers as well as facilitate the transfer of technology in the form of Foreign Direct Investment (FDI), joint ventures and licensing. I appreciate the observation of the author, that the lack of clear policy on intellectual property and other trade matters to take of WIPO/WTO related issues have brought hardship in implementation of intellectual property laws. He suggested that it is important to ensure that the structure of our intellectual property system is well suited the nurture and encourage innovation and invention.

Despite all these observations the learned author did not take time to discuss categorically as to how the authors rights (musicians) can be protected against piracy. The learned author thought it was suitable for him to engage on general matters regarding copyright protections basing on the aim he seeks to achieve and left aside the rights of the musician of this country which is highly infringed. This work is as well intended to reveal such gaps and provides the recommendations as to how the problem may be tackled.

When a person creates a literary, musical, scientific or artistic work, he or she is the owner of that work and is free to decide on its use. That person (called the “creator” or the “author” or “owner of right”) controls the destiny of the work. Since, by law, the work is protected by copyright from the moment it comes into being, there is no formality to be complied with such as registration or deposit, as a condition of that protection. However, certain national law provides for formalities which are not considered to be a requirement to be satisfied in order to benefit from copyright protection, but which serves as initial prove in the case of dispute. In addition to this so called automatic protection, it should be borne in mind that mere ideas in themselves are not protected, only the way in which they are expressed.[17]

Generally speaking intellectual property is the term applied to intangible forms of property the value of which derives generally from creative effort. The term seems to be the best available to cover that body of legal rights which arises from mental and artistic product of the human intellect. The phrase intellectual property right therefore raises multiple questions. Whose intellect? What property? Whose rights? What rights?[18] The concept, intellectual property can be broadly and roughly defined to include all those intangible human inventivity and inventively embodied in tangible and intangible human products of labour. Hence intangible property like any other kind of property capable of being owned, disposed off, transferred by way of sale or any other arrangement.[19]

Professor Mihayo P. B and Rwezaura C. K [20] contended that copyright like all other kinds of intellectual property are globally recognized as devices used by a creator of some literary or other artistic work to identify himself with his creation. They argued further that copyright prevents from unfair competition through unauthorized imitation. Again the copyright avoid confusion as to the owner of an artistic or literary creation. It also operates as a caveat on the public in general by preventing it from engaging in unauthorized imitations, and also it gives a copyright owner the right to asserts his rights on the “original creation” if such rights are infringed. Their observations is of great importance, but their study does not examine the practical aspect as to how the law can protect the rights of musicians as an artists in Tanzania, which this study had been promptly seek to achieve.

Saamzugi S. A. and Benhajj S[21] have tried to examine the implications of copyright protection to distance education in Tanzania. They observed that the significance of copyright to distance education is exposed and Copyright and Neighbouring Rights Act 1999 is examined and appraised as to the extent to which it permits distance education use of copyrighted material without obtaining the copyright owner’s permission.

They argued that the statutory exemptions under the Act are neither elaborate nor specifically set for education and in particular distance education use of copyrighted materials, hence uncertainties as to the extent to which the exemption may be applied for distance education purpose. They suggest that there is a need to ameliorate the Act with view to facilitate and promoting distance education whilst maintaining an appropriate balance between the rights of both copyright owners and users. A deliberate emphasis need also be placed in arousing copyright awareness among distance educators.

Saamzugi S. A. and Benhajj S cemented that copyright as a concept does not protect ideas unless they are expressed in such manner that can be shared the rest of the world. This does not however give a monopoly to any form of words or design. Sargant, J. in CORELL vs. GRAY[22] illustrates the point as follows:

“If it could be shown that two precise similar works were in fact produced wholly independently of one another, the author of the work that was published first would have no right to restrain the publication by the other author of that author’s independent and original work.” 

Saamzugi S. A. and Benhajj S observed that the purpose of copyright law is to protect the creators of works from unlawful reproduction of their materials and to fund further creativity. It presence and operation encourage authors to continue creating new works without fear of having their works stolen or misused. It tries as well to ensure that some access to copyrighted work is allowed as without as without thus access creators would be starved of ideas and information to create more copyrighted materials. This respect is essential in so far as maintenance of balance and regulated flow of knowledge is concerned.

James Boyle (1996) on his research observes that: Piracy of intellectual property products has become one of the central concerns in negotiations on world trade, a concern where both the figures for projected losses and the rethoric of condemnation are surprising to the neophyte.

He argued that; The International Federation of Phonogram and Videogram Producers (IFPVP) estimates 25 per cent of the music phonograms sold throughout the world are pirate copies. Its estimate for worldwide losses in 1994 was $2.245 billion. Piracy costs the recording industry in Europe an estimated $3billion per year. The side effect is that this would cost the authorities in Europe up to $750 million each year in lost VAT alone, and about 30,000 jobs. [23]

With the introduction of the DVD pirates will get a still bigger competitive advantage to legal producers and distributors in the audio- and image-markets. Piracy becomes more than ever a profitable calculated risk. More can be stored on a DVD which costs the pirate nothing while the legal entrepreneur has additional expenses for producing more software. There is also no quality difference between the legal and the pirated copies. One of the reasons why mass scale piracy is nearly unavoidable is the increase in excess production capacity of cd's and so on. There is currently more than the double manufacturing capacity available worldwide than is needed for legitimate production.' The cost of new and secondhand machinery is falling. For example the new ODME miniliner costs $500.000 and has the capacity to produce five million cd's a year. Actually the major right holders are causing this excess capacity themselves. They operate on very tensed and nervous markets which "obliges" them to have instantly sufficient production capacity.[24]

Bonnie Richardson, spokeswoman for the Motion Picture Association of America (MPAA) observed that, 'All we are talking about piracy is theft. One of the fundamental roles of all states is to protect their citizens against theft.' Despite the proclaimed neo liberalism a strong state seems to be needed in this field the more digitalization will bring copying on the easiest level one ever could imagine. 'Will protection of intellectual property be adequately cared for in government regulations as the new information infrastructure evolves, or will piracy on the Internet become just a massive problem?

That is a very important issue for MPAA, and for the copyright industries, book, music publishers, recording industry, computer data basis; all of us care about the protection of what we put over the new system.[25]

1.4 Research Hypothesis

This study was guided by a number of assumptions that the researcher thinks are important to be tested when review what does the law provides in relation to the copyright protection against piracy in music industry in Tanzania.

Thus, the study was thought to verify that:

The general public at large (wananchi) and some of the artists does not understand the concept of the law relating to copyright protection against piracy in film and music industry generally and its effect to the government and the individual artist. Even if (the public at large- wananchi) they understand the concept of the law relating to copyright protection against piracy in music industry they are not aware of the significant impact of piracy to the government generally and to an artist in particular.

The discretionary power given to the court to determine the amount of compensation imposed to the infringer of the film and music work negates the war against piracy in film and music industry.

               1.5 Objective of the Research

               1.5.1 General Objective

The primary objective of this study was made a critical assessment on the law relating to copyright protection against piracy in music industry in Tanzania.

This study thereafter was focused on identifying the law and practice relating to copyright protection at music industry in Tanzania, its effect to artists in particular and to the Government generally.

               1.5.2 Specific Objectives

The first specific objective of this research was to observe; what were the major roles of the law relating to copyright protection against piracy at music industry in Tanzania.

Second, is to see whether the law relating to copyright protection against piracy in music industry in Tanzania is effective in practice in protecting the rights of the artists both economically and morally.

Finally the study was aimed to suggest recommendations that can be worked upon to solve the problem of piracy in music industry in Tanzania as it has a very significant economic impact to both an artist individually and the government generally.

               1.6 Significance of the Study

This study is important to the legal profession as it will contribute knowledge to the existing literature on the general topic on making a critical assessment on the law relating to copyright protection against piracy in music and film industry in Tanzania.

The study will also be useful as it may also trigger awareness to the public at large on the need of fighting against piracy as it has got a very significant impact to the government income and more specifically to the artist/s concern.

This study will also motivate government as the policy maker to find the weaknesses of the law relating to copyright protections and suggests recommendations which should be undertaken so as to make it a shield to artists.

In the final analysis, the study will help the researcher to improve the knowledge in the field of the Intellectual Property law generally and the area of law relating to copyright protection against piracy in music industry in particular.

               1.7 Research Methodology

In conducting this research, the researcher was adopted various methods that helped him to accomplishing this report in an academic structure. This research for the study therefore was involved two types of data collection methods. These are library and field research.

               1.7.1 Library Research

The library research was including perusal of relevant material which was exposing the researcher to know the various arguments of other writers on the matter at hand. Various resources especially documented ones was reviewed so as to see what other authors have tried to address the issue concerned and later on to come up with the specific findings on the matter. In accomplishing this research, the researcher had visited the Mzumbe University Library, the Open University of Tanzania library and the University of Dar-es-Salaam Library.

               1.7.2 Field Research

The second method which was employed here is field research. In this methods field work was conducted at the Organization known as The Copyright Society of Tanzania Abbreviated as COSOTA. The researcher was participating in different activities in as far as this research is concerned. Techniques which were employed in the field work was include interview which was conducted to different people. Also it was involved travelling to different organizations and currently running mining projects as it may deem fit for this purpose, made a direct observation whereby.

               1.7.3 Data Collection and Presentations

In accomplishing this research data was collected by using various instruments. The instruments which were involved are computer, notebooks, and pens. Instruments such as notebooks and pens were used when conducting interview with some of the interviewee. A computer was used to store data obtained from various sources.

[1]              Retrieved in the internet on 10th February,2010

[2]     Ibid

[3]              Retrieved in the internet on 10th February, 2010

[4]     John Kitime, Paper Presentations fro the Justification of Payment of Royalty for Music Works. Presented at Cosota Premises on  4th December, 2006

[5]     John Kitime, Paper Presentations fro the Justification of Payment of Royalty for Music Works. Presented at Cosota Premises on  4th December, 2006

[6]     Ibid

[7]     Ibid

[8]     Ibid

[9]     John Kitime, Paper Presentations for the Justification of Payment of Royalty for Music Works. Presented at Cosota Premises on  4th December, 2006

[10]   Ibid.

[11]   John Kitime, Paper Presentations fro the Justification of Payment of Royalty for Music Works. Presented at Cosota Premises on  4th December, 2006

[12]   Ibid.

[13]   WIPO “Introduction of Basic notions of Copyright and Neighbouring Rights” September, 1999 p.3

[14]   Robbin J and Daniel A, Aguide Book to Intellectual Property, Trademarks, Copyright and Designs, 1999 P.3

[15]   Raymond A. W, Copyright Made Easier, 1993 Pp 211-212

[16]   Intellectual Property Rights (IPR) protection in Tanzania: The Nightmare and the Noble Dream

[17]   World Intellectual Property Organization, Collective Management of Copyright and Related Right

[18]   Kihwelo P. F Op. cit

[19]   Kihwelo P.F, Op cit  ft note no.17

[20]   Mihayo P. B and Rwezaula, Copyright Materials: The Range and its limitation, 1985 P. 54

[21]   Implication of Copyright Protection to Distance Education in Tanzania: an Appraisal of the Copyright and Neighbouring Rights Act, 1999.

[22]   (1913) 29 T.L.R 570

[23]   Retrieved in the Internet at 10th February, 2010

[24]   Retrieved in the Internet at 10th February, 2010

[25]   Op. cit 

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