When you are faced with a possible copyright infringement in Tanzania, there are six steps to follow before making conclusion on occurrence of copyright infringement. These steps stem from the provisions of the Copyright and Neighboring Rights Act, 1999, and are as follows:
(a) Does copyright subsist in the work?
The first step is to consider whether the copyright subsist in the work. The Copyright and Neighboring Rights Act, 1999 sets out various matters on which copyright protection does not extend. Generally, the work in which copyright subsist must be ‘original’. Whether or not a certain work meets the requirement of originality is a matter of fact. The main test is whether the author has used his own skill and effort to create the work. It is possible for two identical pieces of work to meet the requirement of originality provided each author arrived at the end result by an independent process. Where there are two identical pieces of work, one work can be categorized as ‘underlying work’ and the other one can be categorized as a ‘derivative work’. Derivative works stem from and contain underlying works and yet attract their own copyright. The distinction between ‘underlying’ and ‘derivative’ works helps to identify the different layers of copyright that co-exist in a work.
(b) Who is the owner of the copyright?
The second step is to establish the owner of the copyright. In the first place, it is generally important to establish the ‘author’ of a copyright work. The author of a copyright work is, generally, a person who created it. There are rules in the Copyright and Neighboring Rights Act, 1999 which sets out legal positions in cases involving joint authorship, anonymous works and pseudonymous literary work. Under the Copyright and Neighboring Rights Act, 1999, the author of the copyright work may not necessarily own the copyright. The author who created the work is, however, regarded as the first owner of the copyright except for works made by an employee in the course of his employment and in the circumstances where the ownership of copyright vests in the Government. The ownership of copyright can move from one owner to another through licensing, assignment and declaration by courts on the rightful owner of copyright.
(c) Is the work still within the copyright protection period?
Under the Copyright and Neighbouring Rights Act, 1999, the duration of copyright protection is the life of the author and fifty years after his death. In case of the joint authorship, duration of copyright protection is the life of the last surviving author and fifty years after his death. For a work published anonymously or under pseudonym, duration of copyright protection is, subject to certain exceptions, fifty years from the date on which the work was either made, first made available to the public or first published, whichever date is the latest. Audio-visual works are protected for fifty years from the date on which the work was either made available to the public or first published, whichever date is the latest. Applied artwork is protected for twenty-five years from the date of making the work.
(d) Has there been an infringement of copyright?
The Copyright and Neighboring Rights Act, 1999 sets out in detail economic and moral rights that the copyright owner has the exclusive right to do in relation to a work. These rights are subject to certain exceptions. The economic rights include reproduction of the work, distribution of the work, rental of the original or copy of an audio-visual work, public exhibition of the work, translation of the work, adaptations of the work, public performance of the work, importation of copies of the work, etc. Moral rights include right to object and to seek relief in connection with distribution, modification of the work, etc. The act of infringement is considered to happen if, among other things, a person performs one of the economic and moral rights to which the copyright owner is exclusively entitled in relation to the work without the copyright owner’s permission.
(e) Are there any possible defences?
As pointed above, the economic and moral rights that the copyright owner has the exclusive right to do in relation to a work are subject to certain exceptions. The Copyright and Neighboring Rights Act, 1999 sets out the ‘permitted acts’. The permitted acts include but not limited to production, translation, adaptation, arrangement or other transformation of the work for personal and private use. The Copyright and Neighboring Rights Act, 1999 contains detailed rules on permitted acts, particularly the circumstances under which a certain act may qualify to be a ‘permitted act’.
(f) What remedies are available?
The Copyright and Neighboring Rights Act, 1999 provides for remedies to persons whose rights are in imminent danger of being infringed or have been infringed. These remedies include damages, account for profit, interlocutory injunction, delivery up of infringing articles, destruction of infringing articles. The provisions of the Civil Procedure Code, 1966 and Criminal Procedure Act, 1985 on search and seizure apply to copyright infringement. Furthermore, the Copyright and Neighboring Rights Act, 1999 sets out several offences relating to making or dealing with infringed articles.