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MASTERS OF LAWS IN INFORMATION AND COMMUNICATION TECHNOLOGY LAW– (LL.M - ICT LAW)
REHEMA E. Y. UROKI
INTRODUCTION
The role of the law is to recognise, regulate human conduct and to enforce such regulation. The
challenge to any emerging economy is to keep pace with the developments in technology and
introduce relevant and appropriate legislation to facilitate the growth of Information and
Communication Technology (ICT).
"Information and communication technologies (ICTs) have the potential to profoundly change
global trade, finance and production. By making businesses more competitive and economies
more productive, and most of all by empowering people with knowledge, ICTs can support faster
economic growth and thus strengthen the material basis for development. Our challenge is to
ensure
that this potential is used to generate real gains in the global
struggle against poverty, disease and ignorance and their offspring,
fear, intolerance and war1."
The Internet and other global information technologies have opened new opportunities for the
creation, distribution, and use of creative content. The Internet challenges lawmakers and society
as a whole: how to preserve the balance between creators’ rights and users’ rights? Can the
foundations of copyright law withstand the pressures of the new technologies? Can they be
interpreted
to apply to the modern age? The Internet affords a new medium for
traditional types of creative expression and enables new types of
expression2. It also makes infringement of
protected rights substantially easier. The Internet’s challenges to copyright law arise from the
digitization of information and the creation of the networked environment. The Internet forces
policymakers to ask what interests should society protect, whose interests should be protected, from whom, how and where?3
Copyrights, Trademarks and Patents make up most of the area of law known as Intellectual
Property. Copyright gives authors or artists the legal right to exclude others from using their
1
Andrew L. Mollel & Zakayo N. Lukumay; Electronic Transactions and
The Law of Evidence in Tanzania: Iringa University College 2007 2
Murray, A. (2000): Entering into Contracts Electronically: The Real
W.W.W., in: Edwards & Waelde (eds.): Law and the Internet:
Regulating Electronic Commerce, Oxford: Hart Publishing 3 P.G. Altbach
ed., Copyright and Development: Inequality in the Information Age.
(Chestnut Hill, Mass.: Bellagio Publishing Network Research and
Information Center, 1995)
works.
Copyright arises automatically when a protectable work has been fixed
in any tangible medium, whether the medium is canvas, paper or computer
hard drive4.
Copyright protection has traditionally been viewed as offering an incentive for the production of
artistic,
scientific, and other creative content, while permitting the public to
access, use and innovate with such creative works5.
Copyright should primarily serve the instrumentalist function of satisfying social goals and
values: the creation, spread and sharing of knowledge and information, and public use and
access. In the current era, and particularly with regard to List Developing Countries like
Tanzania, the presumptions of copyright are ripe for wholesale reconsideration. The biases and
interests of developed countries are monopolizing the international copyright agenda; the
interests
of List Developing Countries have been ignored and, in any event,
copyright, a Western concept, is not a prerequisite for the production
of works in List Developing Countries6.
In Tanzania THE COPYRIGHTS AND NEIGHBOURING RIGHTS ACT No.7 of 1999 deals
with
the protection of these rights and also protects expressions of
folklore. The act has come into operation from 31st December 19997. As
outlined under Section III, 2B herein, this Act
establishes the COPYRIGHTS SOCIETY OF TANZANIA (COSOTA), a body corporate, which
has the duty and powers to:- Promote and protect these rights, Collect and distribute royalties on
behalf of its members, Maintain registers of works, productions and association of its members,
Search to identify and publicize rights of owners, and defend them and Print, publish, circulate
information and sensitize its members and the general public on these rights.
Industrialized countries, the main producers of copyright protected works, have also been the
nearly exclusive beneficiaries of expanded intellectual property protection. List Developing
Countries are primarily copyright users and have received minimal benefit. Increased copyright
protection and enforcement in their countries, as mandated by the Agreement on Trade-Related
4
D. Vaver, Intellectual Property Law: Copyright, Patents, Trade-marks (
Concord, Ontario, Canada: Irwin Law, 1997) 5 D. Karjala et al (more than
40 US intellectual property professors), ‘ Comment of US Copyright Law
Professors on the
Copyright
Office Term of Protection Study’, 12 European Intellectual Property
Review 531 ( 1994) 6 D. Nicholson, ‘Does copyright have any significance
in the lives of illiterate or visually-impaired persons?’
http://www.wipout.net/essays/1128nicholson.htm
7 CAP 218 RE 2002
Intellectual Property (TRIPS) and the Berne Convention, work primarily in the interests of
developed countries and copyright holders, predominantly multi-national enterprises. Credible
economic projections as to how increased copyright protection will assist List Developing
Countries
are rare and particular. In the current conjuncture, greater copyright
protection equals increased outflows of foreign currency from List
Developing Countries to developed countries8.
The main tasks of the moment for least developing countries are to create exemptions to
copyright restrictions, figure out creative way to avoid copyright presumptions, and improve
affordable
access to materials. And providing assistance to such endeavors is the
main task of the developed world if they wish to help, rather than
further dominate, such countries9.
MAIN BODY
a) PLAYED MUSIC IN COMMUTER BUSES
It is observed and interviewed that, there are different forms of music is being played from this
commuter buses. Some commuters’ buses use CD, Flash Disc, and just a radio, some uses only
radio and others uses radio and flash disc. In the observation shown that the drivers and
conductors using flash disc in the most commuter buses for the purpose of having different
music and not only one type of music something which proved by interview method. And when
interviewed the driver and conductor that why they are playing different music while the system
of playing music is one, others they asked that they just took that music by flash disc and by CD
from different music centers, and also from different friend computers.
The purpose of them taking music differently in one CD or in one flash disk, when conducting
interview the realization is that, a lot of them are doing that purposely so that they can attract
passengers to the bus; Example, more than three drives in different commuter buses they replied
confidently in interview that there are some people who likes much gospel music, others they
like rege music, others likes bongo music, and some of them likes taarabu and bolingo, so for the
purpose of helping all passengers to enjoy in the bus while travelling is to have a flash disc
8
H. Chakava, ‘International Copyright and Africa: The Unequal Exchange’
in P. Altbach ed., Copyright and Development: Inequality in the
Information Age, (Chestnut Hill, Mass.: Bellagio Publishing Network
Research and Information Center, 1995) 9 Ibid
which has all kind of music as longer as they know what passengers mostly like. They also tried
to help to believe that a lot of passengers they like to travel with those buses having played music
especially different music.
What observed and conducted by interviews in the commuter buses drivers and conductors is
that, music played in the buses is not from an original CD or radio. What driver and conductors
know of copyright and copyright infringement; the observation shows that they know nothing
about copyright and copyright infringement. But in the interview it was observed that they heard
about COSOTA finding people who are playing music which is not from original CDs or from
radios directly, in different areas and different buses. When asked if they are aware that the
music played by flash disk or CDs if are not original is infringement of copyrights their response
was observed to be negatives, that it is impossible for a person to buy all music passangers they
are interested so that the best way is to buy an empty CDs or flash disc go to friends or to the
people who burning CDs and ask to burn for them due to the cheapest price of gaining different
music.
Example; one driver asked that one CD which burned is 1500Tsh/= and sometimes 2000Tsh/=,
and the CD may have more than 100 different music played depending only the capacity of the
CD brought to the burner. And the matter of original CD, they said that most of original CD are
unaffordable because original one are to much expensive that the lowest price of one CD which
is original starting from 3500Tsh/=. Hence when comparing the price of original CD or burned
CD they are mostly interested to burn CD and also having music in flash disc for lowest price
instead of buying original CDs in the sense that original CD is to much expensive.
All in all here, what observed is that, the drivers and conductors of these commute buses are not
all aware of copyright and copyright infringement in the matter of played music in their buses.
b) PLAYED MUSIC IN TAXIS
It is observed and interviewed that, Most of the taxis specifically here in Iringa are mostly using
to play different music in CD and flash discs, and few in the form of CD/DVD, while some of
them are using to listen the music by radio directly. Taxis in Iringa have no differences in
playing music as their friend’s commuter buses.
It is observed that; Tax drivers they don’t know the intellectual property rights in general and
copy rights as specifically a question to answer. As said earlier, taxi drivers they are playing
music mostly from the flash discs or from the CDs, which means that they have infringed the
copyrights of the original work or the work of the creator. During the time of interview; they
asked that they know nothing about copyright infringement because; that is not their business so
long as the burner of that CDs and flash discs are not explaining to them that it is not allowed to
copy or to burn the CDs or to take music in flash disc. Also they respond that they don’t know if
it is wrong for what they are doing.
In the interview, it was noted that two tax drivers as respondents replied that they know, and they
are aware about the intellectual property rights, but they prefer to use the flash discs and burned
CDs to play music to entertain their passengers because it is too cheap to them, and some time
they got it free of charge from different friends with different music as they are aware that some
passangers likes much gospel music, others they like rege music, others likes bongo music, and
some of them likes taarabu and bolingo, so for the purpose of helping all passengers to enjoy in
the tax while travelling is to have a flash disc which has all kind of music as longer as they know
what passengers mostly like.
All in all, played music in the taxis in Iringa as the area of concentration it is not quite different
from that music played in other buses like as it is shown in the commutes buses. What observed
is that, the tax drivers are not all aware of copyright and copyright infringement in the matter of
played music in their taxis, what they are all looking is the cheapest price of getting more and
different music in one CD or flash disc instead of buying the original in the sense that the
original one are to much expensive.
But in the interview also, it was observed that they heard about COSOTA but they are all not
care about COSOTA in the sense that there is no law for catching them only contradictions and
wasting others time, is what they have in their mind.
c) PLAYED MUSIC IN THE INTERNET CAFES AND IN THE KIOSKS
In the observation and interview in the areas surrounding Tumaini University – Iringa College,
most of the internet cafes and kiosks are not inviting for CD burning services. But if you heard
about a good music in the café or in the kiosk and ask them to give you they will offer you free
but by using flash disc and not by the way of burning CDs.
In Iringa town cafes and in the kiosks they are totally not offering the service of burning CDs
until they know you, otherwise they will refuse the service fearing that may be you are coming
from COSOTA offices. Therefore, most of the internet cafes and kiosks operators in Iringa they
know what the intellectual property rights in general means, and copyright in particular mean.
Almost all of the respondents in an interview to the cafes and to the kiosks replied that they
know the copyrights law through the COSOTA, that if they burn the CD’s they know that they
are making copyright infringement. Hence they are not offering that services until may be they
know that person, if is a close friend or relative and the believable people he or she is asking the
offer in good faith and not for the search of information about the people who are burning and
supplying the music by the way of burning a lot of CDs from the original one and sell it in
cheapest price but with more profit because it is what their are doing.
All in all, most of the cafes and kiosks specifically here in Iringa town are mostly using to play
different music in CD flash discs, and others in the form of CD/DVD, while some of them are
using to listen the music by radio directly. But in the cafes and to the kiosks they are somehow
know the effects of copyright and copyright infringement due to the small knowledge from
COSOTA whom it is observed that most of the time they are visiting the places for the purpose
of making investigation if there are people who still infringing the copyright.
d) KIOSKS OFFERING OR UPLOADING MUSIC IN THE PHONES.
It is observed and interviewed that, a big number of the people in the kiosks offering or
uploading music in the phones they know the intellectual property rights especially copyrights
and copy rights infringement. It is observed that apart from knowing copyrights and copyright
infringement, they are still infringing the copyright because there are no proper mechanisms for
the government to control the copyrights infringements. They said that COSOTA has in certain
extent tried to prevent this copy rights infringement, but yet they have failed to implement what
was expected from the said kiosks offering or uploading music in the phones. Hence they do
continue infringe the copyright especially by using computer network system something that,
they said that it is difficult for COSOTA to prove that they do infringement while they are just
using computer for their own purpose.
All in all, these groups of people observed that at least they have the knowledge about copyright
infringement although they are continuing to infringe by using computer network system in the
sense that there is no law established to prove copyright infringement through computer
programs as they are almost using the computer to do so.
e) FOUR MOBILE PHONE COMPANY OFFICE (BRANCH) IN YOUR COMMUNITY
(I.E. VODACOM, ZANTEL, TIGO AND AIRTEL)
From the interview and the observation done, four customer services centre in these four mobile
phones company office they said that the company knows about copyright and copyright
infringement. When interviewed about the caller tunes and ringtones they offer, all of them said
that, the money gained from the said music are not actually benefiting the artists, they also
replied that the artist actually are not benefiting anything from their work when the company like
Vodacom company offering the caller tunes, they all together agreed that they are in one way or
another infringing the copyright and exploiting the artist.
When asked if themselves as the customer are benefiting from that business, they all from that
different company as mention Vodacom, Airtel, Zantel, and Tigo replied that privately they are
not benefiting, but the companies are benefiting a lot of money from those offer services of caller
tunes and ringtones, and contributing nothing to the development of the artists.
All in all, what observed is that, these companies are aware of copyright infringement but they
have this saying that the government have nothing to tell them when infringing these rights
because
they are doing that by computer network system and there is no law to
stop them in Tanzania unless to be established.10 They said also that
even if the government will establish the
law still to them is not easy to get the chance to catch that infringement because they have no
habit of disclosing any information to anybody outside the office.
10
Vodashop, Iringa Town, Miyomboni highway to Iringa stend, Zantel shop,
Ruaha areas, Iringa town, Airtel shop, CRDB areas Iringa Town, and Tigo
shop, Iringa Town, Miyomboni highway to Iringa stend, first door and
first floor.
f) TWO MUSIC ARTISTS
What
has done here is telephone interview and not observation method of
conducting data. When tried to call one artist from Boma FM,11 and ask
him on how and what they understand
about copyright and copyright infringement when using copyrighted materials he tried to tell that
they are aware of copyright infringement and they are thinking about how they will abolish
copyright
infringement soon. Not only this artist but also other artist whom
communicated with he said the nearly the same thing as the first artist
said.12
In the interview with telephone; AY mzee wa commercial Tanzania replied that copyright
infringement in Tanzania is mostly caused by lack of adequate knowledge on Intellectual
Property, lack of Intellectual Property policy, inadequate capacity of enforcing agencies and lack
of inter institutional Intellectual property coordination and information exchange. Following his
more words he said that no way that the artists will combat the problem until the government
start valuing the work of the artist in Tanzania and formulate the policies and laws to govern
copyright infringement through computer network system and also to make people aware that it
is prohibited under the law that copyright infringement is causing the work of artists loose the
market hence to stop it immediately.
Both of the interviewed artists; replied by showing the high understanding of what is copyright
and copyright infringement. But both of them claimed that most of their works if not all are very
easily and cheaply infringed through the computer network system due to the development of
information and communication technology (ICTs).
In the interview further claimed against the government, that although the parliament enacted
intellectual property laws in Tanzania, the government is not in the position to the enforcement
of the said laws, something which affected morally and economically both the government and
the music artists.
The interview also come with the point that; they were asked in what forms their work has been
infringed mostly, they both replied that through the rapid development of information and
communication technology (ICT), people in various places they used to burn CD/DVD’s, and
11 Evoid Rosen Katurya of Boma FM Moshi 12 AY, Mzee wa Commercial
use flash disc to tape or records their music and playing the music in public areas like in the
restaurant, buses, bar, in the areas of ceremonies without their permission, and without using the
original CD/DVD. And by doing so, they claimed that they lost a lot of money, as their original
and certified CD/DVD’s remains unsold in the shop, hence losses occurred.
They also claimed against the radio, that most of the radio stations playing their music without
their permission in the commutes and taxis, in the kiosks and cafes and other areas; therefore
they are suffering not only morally but also economically because as the artists they are gaining
nothing from their work. Hence they both replied that the big problem facing most of the user of
their product in Tanzania is that they don’t know the intellectual property laws, so they commit
copyright infringement without their personal knowledge and that is the big problem they are
facing as artists.
About the matter concerning internet cafe and kiosks in the copyright and copyright
infringement, they both replied that internet cafe and kiosks they played a very big role in the
copyright and copyright infringement by burning CD/DVD’s and downloading music in the flash
discs something which is bringing a more problematic issue in the copyright infringement. The
internet cafes and kiosks operators knows well about the intellectual property laws through
COSOTA, but still in a good number of them violating intellectual property laws which has a big
challenge in the artists original works.
The question on the point of the kiosks which downloading music in the mobile phone the two
artists both replied that these people they know the copyrights law and copyright infringement
because they have habit of visiting them and talk with them friendly about the concerned issue
on copyright infringement, and not only that but even the people from COSOTA are well
elaborate the issue and effects to them. They are still claiming that; the only problem is the
government. That the government is too reluctant in the enforcement of the intellectual
properties laws, something which made the rights of the artists to be infringed.
The question about the customer service of the four mobile phone companies if they know
anything about the copyright law and also about the caller tone and ringtones, if they are
benefiting or not. They both replied that the four companies as the international companies they
know the laws of copyright infringement very well but they take advantage of the weakness of
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