Overview of Intellectual Property Legal, Policy & Institutional Regime in Tanzania

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Author - Hawa Orgen Nchai

Author Hawa Orgen Nchai

 

 

Hawa Orgen Nchai is an LLB graduant from Islamic University in Uganda and a student of PGDLP at Law School of Tanzania. Her focus is on delivering high level expertise and professionalism in a broad range of legal matters, including Sharia Law. She has a passion for excellence and is results oriented.  She has proven Student Body leadership experience and is currently working as a lawyer and legal consultant at JB Advocates Dar es Salaam.

 

 


 

 

OVERVIEW OF LEGAL, POLICY & INSTITUTIONAL FRAMEWORKS ON PROMOTION OF INTELLECTUAL PROPERTY: CASE STUDY OF TANZANIA

By Hawa Orgen Nchai

 

Introduction-The Concept of Intellectual Property

 

Intellectual Property (IP), very broadly, means the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields. Countries have laws to protect intellectual property for two main reasons. One is to give statutory expression to the moral and economic rights of creators in their creations and such rights of the public in access to those creations. [1] The second is to promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development.

 

Generally speaking, intellectual property law aims at safeguarding creators and other producers of intellectual goods and services by granting them certain time-limited rights to control the use made of those productions. Those rights do not apply to the physical object in which the creation may be embodied but instead to the intellectual creation as such, intellectual property is traditionally divided into two branches, “industrial property” and “copyright.”Industrial Property includes inventions (patents), trademarks, industrial designs, and geographic indications of source whereas copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs.[2]

 

Policy Framework

 

Participating in international rule-making and implementing international agreements such as the TRIPS Agreement requires the preparation and implementation of a range of policies, laws and regulations. Specifically, a robust national IP system requires policies cutting across trade and industrial policy, agriculture, public health, science and technology, culture and education. This in turn demands specialised technical and analytical skills as well as the ability to coordinate the policy development process so as to ensure the participation of key stakeholders both within and outside of government. An overall national IP strategy or development plan complements a national IP policy by setting common objectives and an agreed framework amongst different stakeholders to guide the systematic modernisation and utilisation of the IP system for economic, social and cultural development.

 

Tanzania’s innovation and research through IP management. Mainland Tanzanian officials are working on a National IP Policy and consolidated legal framework, incorporating relevant TRIPS flexibilities. This appears to cover only mainland Tanzania, as Zanzibar is responsible for its own domestic policy and laws.[3] A Tanzanian National IP strategy is under formulation with WIPO support.

 

Issues relating to R&D and access to technologies have been clearly addressed. PRSP 2011 mentions IP in the following references: i) coordinated industrial researches carried out by the R&D institutions, universities and technical institutions will have to focus on availing technological solutions to local manufacturers and promoting new innovations through IPR management; ii) promoting technological innovation programs (incubators and clusters) and instituting IPR regimes in order to propel creativity; and iii) strengthen IPR associated with indigenous and traditional knowledge.[4]

 

Legal Framework

 

To formulate and implement international agreements on IP, such as the TRIPS Agreement, the preparation and implementation of a range of laws and regulations covering industrial property, copyright and related rights is of fundamental importance. A range of options are open to LDC members for the specific legislative approach to implementation and the optimum course of action will need to be determined in consultation with interested parties. As with IP policy development, this requires specialized technical skills, financial resources, as well as the ability to coordinate the legislative development process so as to ensure the participation of key stakeholders both within and outside of government. As in all countries, the process of legislative reform in LDC members ± from initiation through to completing all the stages in the national parliament or legislative assembly ± can sometimes take a considerable period of elapsed time to complete.[5]

 

The legislative framework for intellectual property in Tanzania has its roots to the colonial times. At independence, Tanzania inherited most of the colonial laws, including those on intellectual property rights, which by and large were a reflection of British system. In order to respond to the dictates of the day, most of these laws were repealed and new pieces of legislation were enacted to carter for the new realities and operating frameworks. As it stands, with the exception of the Industrial Designs Ordinance, which is still British, other laws on intellectual property are post‐independence. The most recent of all are the Copyright and Neighboring Rights Act, of 1999 and the New Plant Varieties (Plant Breeders’ Rights) Act, 2002‐ which became operational on 1st February 2004. At the present, a review process is underway to enact a law that will accommodate and combine all industrial property laws to be known as the Industrial Property Act. Until then, the legislative framework in Tanzania for intellectual property as described below is divided into two main branches.

 

Tanzania is one of the signatories to the WTO and TRIPS agreements. Besides, it has a number of IPR-related legal instruments in the domestic market. The available IPR-related legal instruments in the country are governed by the following acts:

  • The Patents Act No. 1 of 1987
  • The Trade and Service marks Act No. 12 of 1986
  • The Copyright and Neighbouring Rights Act. No. 7 of 1999; and
  • The Fair Trade Practices Act of 1994

The first three instruments are operational while the fourth one is yet to be fully operational; under a separate organization (the Commission for Fair Trade Practices) supervised by the Tribunal for Fair Trade Practices.

 

Fair Practices Act

 

Following the economic and regulatory reforms implemented in 1986 to early 1990s, the Fair Trade Practices Act, 1994 was passed by the Parliament. The purpose of this Act was to encourage competition in the economy by prohibiting restrictive trade practices, regulating monopolies, concentrations of economic power and practices, protecting the consumer and to provide for other related matters. The Act prescribed establishment of a Tribunal that would hear and determine appeal cases on unfair trade practices and related matters. However, the Fair Trade Practices Act, 1994 had many shortcomings in respect of institutional arrangement and allocation of roles and functions. Therefore, in 2003 it was repealed and replaced by the Fair Competition, Act No. 8 of 2003 which became effective on 12th May 2004.

The new Act, among other things, provides for the establishment of the Fair Competition Commission (FCC), the Fair Competition Tribunal (FCT) and National Consumers Advocacy Council (NCAC).

The Fair Competition Tribunal is established under section 83 (1) of the Act, specifically, to create effective appeal mechanisms on competition and regulatory matters. The Tribunal adjudicates on appeals that arise from decisions and orders of the Fair Competition Commission, utilities and network regulatory authorities namely the Energy and Water Utilities Regulatory Authority (EWURA), the Tanzania Communications Regulatory Authority (TCRA), the Tanzania Civil Aviation Authority (TCAA), and the Surface and Marine Transport Regulatory Authority (SUMATRA).

 

Copyrights & Neighboring Acts

 

This was previously under Cap 61 of 1966 but was repealed, and is now governed by the Copyright and Neighbouring Rights Act No. 7 of 1999 and operationalised through Regulations under G.N. No. 214(A) of June 2000, which introduced other protections including protection of Folklore etc.

 

In Tanzania the Copyrights and Neighboring 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 1999.[6]

 

This Act establishes the Copyrights Society of Tanzania (Cosota), a body corporate, which has the duty and powers topromote and protect these rights.[7]

 

The kinds of works covered by copyright include; literary works such as novels, poems, plays, reference works, newspapers, and computer programmes, databases, films, musical compositions, and choreography; artistic works such as paintings, drawings, photographs, and advertisement, maps, and technical drawings.

 

The creators of original works protected by copyright, and their heirs, have certain basic rights. They hold the exclusive right to use or authorize others to use work on agreed terms. The creator of a work can prohibit or authorize:-

 

  • Its reproduction in various forms, such as printed publication or sound recording.
  • Its public performance, as in a play or musical work
  • Recordings of it, for example, in the form of compact discs, cassettes, or videotapes
  • Its translation into other languages, or its adaptation, such as a novel into a screenplay.

 

The Copyrights Laws and Framework

 

The controlling legislation on matters of copyright in Tanzania mainland is the Copyright and Neighboring Rights Act, Cap 218 [R.E. 2002].The Act was enacted to make better provisions for copyright and neighboring rights in literary, artistic works, folklore and for related matters. Similar to other IP legislation, the Act grants exclusive right to the authors of literary and artistic works which are original and possess a creative spark.

The duration of protection of copyrightable works is, in the case of natural person, life of the author plus fifty years. In the case of a legal person, or pseudonymous works, the duration of protection is fifty years from the date of publication.

One of the salient features of the Act is that it has introduced a collective management framework for matters of copyright administration. A duly established body known as Copyright Society of Tanzania (COSOTA) is established under the Act with the following mandates:

 

  • To promote and protect the interests of the authors and other participating actors of copyrightable works;
  • To collect and distribute royalties and other remunerations;
  • To maintain registers of works, productions and associations of authors;
  • To search for, publicize and give evidence as to the rights of authors in case there is a dispute;
  • To print, publish and circulate materials that have information on copyright and related matters for the benefit of the public;
  • To play an advisory role to the Minister on all matters under the Act.

 

In addition to the traditional acts of infringement, the Act has also expanded the spectrum of infringing practices by faulting those who imports or own instruments which are susceptible to be used to facilitate copyright infringement[8].

 

On the side of Zanzibar, the controlling legislation is the Zanzibar Copyright Act of 2003. The Act has established the Copyright Society of Zanzibar (COSOZA) with functions and mandates similar to those of COSOTA. The office of COSOZA is under the Registrar General which is under the Attorney General’s Chamber of Zanzibar.

 

For SMEs, the field of copyright is extremely important. Many SMEs in Tanzania are dealing with creative industries in the fields of arts and cultural products, music and entertainments. The understanding of the copyright regime and how it can assist them in improving their business is critical for their continued success and thriving in the market.

 

Trade and Service Marks

 

In Tanzania Mainland matters pertaining to trade and service marks are governed by the Trade and Service Marks Act, Cap 326. Cap 394 repealed and replaced by Trade and Service Marks Act 12 of 1986 operationalized through Government Notice No. 40 of 2000. This is an Act to provide for the registration, and protection of trade and service marks and for related matters. It set out general guidelines on the administration of the trade and service marks. The Act establishes the office of registrar of trade and service marks who shall have all the powers conferred under the Act[9]. The registrar of trade and service marks is also vested with the mandate to administer the Act. For an elaborate understanding, the Act must be read together with the Trade and Service Mark Regulations, 2000 promulgated under the G.N. No. 40 of 2000.

 

A Trade Mark (or Service Mark) is a distinctive sign; be it a name, signature, drawing or anything, which is used to distinguish similar goods or Services of various manufacturers or those rendering such services.

 

Trade/Service Marks besides helping the owner of the Services or products to market their products/Services, it helps the consumers to identify, choose and finally purchase a product or Service because of its quality as has been displayed by the Trade/Service Mark over the years.

 

Registration of a Trade and Service Mark is not a mandatory requirement, provided in using an unregistered mark one does not interfere with the rights of the registered Trade and Service Mark owned by another. Registration of a mark gives exclusives rights of use to the applicant of that Mark, and this exclusive right is extended for the period of seven years and renewable ten years consecutively.

 

A person using an unregistered mark is most likely going to infringe a registered mark and is at risk of facing legal action which in the final analysis can make him/her bankrupt due to heavy penalties imposed against him/her. So, the best advice to manufacturing and the trading community is to play safe by registering their trade and Service marks in order to avoid those repercussions.

 

The application for registration of a trade mark/service mark is made by filing a form known as TM/S 2 which is obtained from the office of Registrar of Trade/Service Mark or from Trade and Service Mark agents. This is accompanied by TM/S 3 which together with about 8 loose representations of Trade and Service mark are submitted to the Registrar. Upon receipt of the application and upon payment of application fees, examination is conducted, whereby if the Registrar accepts the mark it proceeds to advertise it. If the Registrar receives a no objection within sixty days of advertisement, then he proceeds to issue the certificate of Registration.It has to be renewed after seven years, this renewal runs for ten years and then renewed.Assignments where the owner of the mark decides to assign it to someone else, this has to be communicated to the Registrar.Any change of name or address is to be communicated to the Registrar.Mergers, Registered users and any other changes should be communicated to the Registrar.

 

The core ideal of the Act is to protect owners of marks from unscrupulous competitors who would prefer to take advantage of established business reputation of marks of other competitors.[10]

 

For SMEs the protection afforded through Trade and Service Marks Act is particularly important because their business success and market penetration depends largely on their ability to distinguish their products/services from the rest.

 

In the case of Zanzibar, matters of trade and service marks are governed by the Trademarks Decree. The Decree provides parallel frameworks with the Tanzania Mainland through which trade and service marks are applied and upon meeting the statutory requirements registration is granted by the Registrar.The Office of Registrar is under the Attorney General’s Office.[11]

 

It must be noted that registration in Tanzania mainland does not extend to Tanzania –Zanzibar. In other words, Zanzibar enjoys a complete autonomy in matters of administration and protection of trademarks.[12]

 

Patents Legal Regime

 

Repeal of Cap 217 and institution of the Patents Act No. 1 of 1987 operationalized through Patents Regulations G.N. 190 of 1994. This changed the patent procedure to be explicit from the previous practice, which was a re-registration in Tanzania, having registered elsewhere, especially UK.

 

As we have pointed out in the preceding part, we have two parallel systems on matters of intellectual property in Tanzania. In Tanzania mainland, the governing law on matters of patents is the Patents Act, Cap 217 [R.E. 2002]. The Act establishes the office of the Registrar of Patents and provides for the patents registration procedures. The thrust of the Act is to promote inventivity, innovation and facilitation of technology acquisition through the grant and regulation of patents, utility certificates and innovation certificates.

 

The Act provides a framework through which inventors are allowed to claim exclusive rights over their inventions, hence forbidding others from using the inventions without their prior permission. The duration of protection is 20 years. As an exchange for the exclusive rights granted by the government, the inventor is under the obligation to make a full disclosure of his/her invention such that upon reading it, others in the same field of practice may grasp the sense and applicability of the invention.

 

A patent is an exclusive right granted for an invention. In order to get this exclusive right or protection, there must be an invention. An invention is a solution to a technical problem.

 

An inventor is protected against unauthorized use of his/her invention if that invention is registered and has been granted with a patent. The protection is granted for a limited period. The term is for ten years renewable for two terms of 5 years each on application to the Registrar by the patentee.

 

A Patent restricts commercial use, distribution or sale of goods made out of the invention without the consent of theowner. Any person using or exploiting the patented invention without the consent of the owner is infringing theserights and may face a legal action and will be liable to compensate the owner for the wrong acts.

 

The patent owner has the right to work on his/her invention without fear of his/her invention being infringed or being subjected to unfair competition. He has the right to decide on whom to license, or assign on terms to be agreed upon by both parties.

 

However, this right is only valid during the lifetime of the patent. When this time expires, the patent falls in the public domain and it can be used by anyone for commercial purposes or any other purpose.

 

The inventor or any person who has a right over an invention files a patent application with the office of the Registrar of Patents

 

This application should contain a title of the invention, description of the invention, stating the technical field under which the invention falls. The description should be in clear language to be understood by a person with average understanding in the field such that they can work on the invention basing on the description. More elaboration such asdrawings should be made and should also state what is claimed in the invention.

Patents are granted by the Government through BRELA (Business Registrations and Licensing Agency).

BRELA in collaboration with the Regional office – African Regional Intellectual Property Organization (ARIPO) and the World Intellectual Property Organization (WIPO) deals with protection of patents at national, Regional and International levels.

 

IP Administration & Enforcement

 

Administration

 

Considerable specialist human resources and information management systems (ideally automated) are needed to establish and effectively operate institutions charged with the administration of national IP systems for industrial property and copyright and related rights. Many LDC members have distinctly defined industrial property offices and copyright offices, with mandates divided between them for the administration of the national intellectual property system, including the registration, examination and granting of rights.[13] These offices often appear to be located within, or supervised by, ministries dealing with industry and culture respectively. Ministries of justice are at times also involved in the administration of IP. For LDC members where information is available, IP administration systems generally appear to be paper-based rather than fully automated. Plans exist in some LDC members (eg Tanzania, Bangladesh) to automate and modernise the IP registries and administration system, but this is an area where considerable gains can be made and investment will be required. IP offices in some LDC members (eg Rwanda, Uganda, Malawi and Sierra Leone) appear to be undergoing significant institutional reform, often intended to establish a more autonomous status for the national IP office in terms of financial management, recruitment, capital investment and retention of revenues from various forms of IPR administration fees charged by the office to rights holders. Malawi provides a good example of this aspect of national IP infrastructure modernisation, and the catalytic link between the development of a national IP policy and downstream reforms to other components of the national IP system.[14]

 

As with legislation, mainland Tanzania and Zanzibar have separate IP administrative bodies. On the mainland, the Business Registration and Licensing Agency (BRELA) is the main agency responsible for patents and trademarks, while the Copyrights Society of Tanzania (COSOTA) handles copyright protection; the Plant Breeders Registrar handles issues on rights and the UPOV Convention; and the Tanzanian Seeds Agency administers IPRs for seeds. Mainland officials have indicated that they are in the midst of a rationalisation process of IP administration into a single national office, though as of June 2012 this was still in progress.[15]

 

In Zanzibar, the Copyright Society of Zanzibar (COSOZA) handle copyright and patent protection, respectively.[16] Tanzania did not report any data to WIPO for the period 2008-2011 on applications or registrations for patents, trademarks, and industrial designs. Tanzania is party to the Patent Cooperation Treaty. Tanzania is an ARIPO member and party to the Harare Protocol on Patents & Industrial Designs and the Banjul Protocol on Trademarks.

 

IP Enforcement

 

The effectiveness of laws depends on the level of their enforcement. Tanzania’s intellectual property laws good reference tools and potential instruments for protecting people’s rights. The relevant intellectual property laws are in the books but due to institutional weaknesses, they are not fully and systematically enforced.

 

Offering right holders a sound basis to enforce their IP titles presents a significant set of challenges for many WTO LDC members. Low levels of awareness, limited use of information technology, inadequate regulatory frameworks and lack of specialised skills within IP offices, customs, police and the judiciary all combine to limit the abilities of LDC members to tackle IP infringements and violations.[17]

 

Requirements for technical and financial assistance in this field includes addressing low levels of awareness about IP amongst consumers and businesses, and building adequate specialist capacity within enforcement agencies such as police, customs and the judiciary to cope with IP caseloads. There are also capacity building requirements for the effective regulation of IP rights, particularly in relation to matters of special public interest or in relation to controlling anti-competitive practices by rights holders. LDC members are not currently considered to be principal sources for the large scale production and export of counterfeit or pirated products. However, they are often significant markets for those products, particularly for counterfeit medicines. In the East African region, for instance, this has led to proposals, currently under consideration and the subject of policy discussions, for regional and national measures to deal with counterfeiting.[18]

 

IPR enforcement is an ongoing challenge for both mainland and Zanzibar officials, as Tanzanian industry estimates that pirated goods account for 40% of the total local market. The Tanzanian Fair Competition Commission has apprehended importers of counterfeits and seized counterfeit products, though the Commission has limited resources to launch nationwide campaigns. There is no special tribunal for IPRs, rather, the High Court’s Commercial Division is the main authority, and has been involved in several trademark cases.

 

International Participation and Cooperation withotherOrganizations

 

BRELA works closely with institutions handling IP internally, as well as ARIPO, WIPO and other international institutions linked to the WTO. Under the regional development blocks, especially SADC and with revival of the East African Community (EAC), a number of institutions in East Africa have taken initiatives to cooperate closely, and rationalize their operations within the region. IP issues especially Rationalization and Harmonization of IP administration and procedures in the region will most likely feature in the agenda, although explicit knowledge about this could not be adduced.

 

WTO and TRIPS Agreements

 

The Uruguay Round Agreement produced the most fundamental reforms of the world trading system since the formation of GATT in 1947. Trade rules were reformed across the spectrum and brought under the aegis of the newly created World Trade Organization (WTO), now responsible for overseeing the envisaged further reforms under the 1994 General Agreements on Tariffs and Trade (GATT 1994), the General Agreements on Trade in Services (GATS), Trade Related Investment Measures (TRIMS), and the Trade Related Intellectual Property Rights Agreements (TRIPS). [19]

 

The TRIPS agreement covers such intellectual property rights as patents, trademarks, copyrights, industrial designs and geographical indications. It provides for the minimum standards of protection, unlike the World Intellectual Property Organization (WIPO) conventions, which focused on ensuring the implementation of the national legislation.[20] The TRIPs agreement applies the principles of national treatment and most-favoured-national treatment to intellectual property rights. But it goes beyond border issues and thus needs a considerably different architecture than either the GATT or the GATS. Here the Industrial countries have only one year to fully implement the agreement, whilst developing countries have an additional four years to provide basic requirements and a further five years delay in introducing product patents and areas not protected at the date of agreement application. Least industrial countries, Tanzania inclusive, are allowed eleven years before being required to provide full protection of intellectual rights.[21]

 

In some areas, such as copyright, the agreement broadly applies for the relevant agreement, in this case the Berne Convention. In other areas, the agreement provides for higher standards than were previously conceived and required. In patents, for instance, it extends protection to all areas of technology, including pharmaceuticals, requires a life of at least 20 years for patents, restricts the scope for compulsory licensing of patent rights, and strengthens the projection of patent rights.

 

Other Treaties

 

Tanzania is a signatory to various Treaties and has Memberships with respective organizations as follows[22]:

  • WIPO Convention, since December 1983.
  • Paris Convention (Industrial Property), since June 1963.
  • Berne Convention (Literary and Artistic Works), since July 1994.
  • PCT (Patents), since September 1999.
  • Nice Agreement (International Classification of Goods and Services), since 1999.
  • WTO: Member and Signatory to TRIPS Agreement, since January 1995
  • ARIPO: Member of ARIPO since October 1983.

 

Institutional Framework for IP Administration

 

Business Registrations and Licensing Agency (BRELA)

 

The Tanzania government has embraced market economy policies, as it is a catalyst to sustainable economic development, resulting in competition in the markets for both goods and services. Competition in turn leads to product and systems innovations for better quality products and services in the market and also value for money, all for the benefit of consumers.[23]

 

However regulation and facilitation are necessary ingredients for a vibrant, sustainable and effective market economy, to ensure participants in the market economy can compete fairly.[24]

 

In consideration thereof the Tanzania government, as part of its civil service reform, decided to establish Government Executive Agencies, among which is the Business Registrations and Licensing Agency (BRELA).

 

BRELA is a Government Executive Agency established under the Government Executive Agencies Act No. 30 of 1997.

 

It was established on the 28th of October 1999 by Government Notice No. 294 and published on the 8th October 1999. It was officially inaugurated on the 3rd December 1999.

 

The principal objective of the Agency is to ensure businesses operate in accordance with the laid down regulations and sound commercial principles, including the following:

 

  • To administer companies and business names laws.
  • To regulate business by administering business and industrial licensing laws.
  • To administer Intellectual Property laws.
  • To encourage and facilitate local and foreign business investment.
  • To stimulate scientific and technological inventiveness and innovation and encourage technology transfer.
  • To protect the development of creativity in artistic, literary works, and expression of folklore by protecting such work in conjunction with rights owners.

 

The structure of BRELA comprises the Chief Executive, four Divisions and one Unit as follows: –

  • Commercial laws Division
  • Intellectual Property Division
  • Licensing Division, and
  • Business Support Division
  • Internal Audit Unit

 

Previously IP was administered under different sections of the government Ministries and departments. Under Government Executive Agencies Act No. 30 of 1997 the IP functions are now under the Registrar – the Chief Executive of BRELA.

 

The Copyright Society Of Tanzania (Cosota)

 

The creator of a work, for instance a musician, has the right to allow or to prohibit the use of his works. He can agree on certain conditions that his music or performance be recorded on a compact disc, be performed on a stage, be broadcasted on TV, etc.

 

An individual is not materially capable of monitoring, all uses of such works for instance to contact every radio or television station to negotiate on licenses and remuneration for the use of such works. Similarly, it is impractical for a broadcasting organization to seek specific permission from every single author/creator for the use of copyrighted works. This is because there are thousands of such owners of rights and their created works, hence difficulties in individually trying to approach the other parties for authorization.

 

A collective management organization is needed to cater for such a problem, whose role is to bridge the gap between the two. This need led to the establishment of the Copyright Society of Tanzania (COSOTA). The following sections present an outline of COSOTA, and its role in copyright law and their related rights in Tanzania, the establishment of such a collective management organization, its role and what it is doing at the moment.[25]

 

Section 46 of the Copyright and Neighboring Rights Act, No. 7 of 1999 provides for the establishment of the Copyright Society of Tanzania (COSOTA). Hence, this is a body corporate having perpetual succession and a common seal, capable of suing and be sued and of purchasing or otherwise acquiring, holding and alienating movable or immovable property, and subject to the provisions of the said Act, capable of doing or performing all such acts or things as bodies corporate may by law do or perform.

 

The society assumed its full role from July 2001 after its budget was approved by the Parliament and it employed its core staff in October, 2001.

 

The functions of COSOTA are provided for under Section 48 of the Act, and they include:

  1. Promotion and protection of authors, performers, publishers, translator of works, and broadcasters.
  2. Collection and distribution of royalties in respect of uses of the works of its members.
  • The printing, publicizing and circulating of information and the rights of its members.
  1. Searching to identify and publicise rights of owners, and defend them.
  2. Maintenance of registers of works, productions and associations of its members.

 

Recommendations &Conclusion

 

In general, there is lack of public awareness on the importance of abiding by Intellectual Property laws. The concept of Intellectual Property is a new concept in the country and the people see nothing wrong in copying. There was a tendency to place ownership on physical property and not on the intellectual property. For instance, if one buys a tape, he regards the tape as his property and therefore feels free to make as many copies as possible out of it.[26]

 

More recently, however, some sections of the society have become aware of IPRs in Tanzania. Performing artists such as musicians and some inventors have of recent been making efforts to impress upon the Government to gear up its law administering and enforcing machinery to protect their works from piracy. Musicians have been in the forefront in this regard. The business community is also aware of the requirements to adhere to intellectual property rights laws. Unfortunately due to the inadequacies inherent within the legal system in connection with intellectual property rights matters, the business community is openly involved in doing business in pirated intellectual goods. The public at large is not much informed of the laws governing their rights to intellectual property. Although people are involved in the creation of works of art, such as literally works, folklore and other cultural productions and events, in most cases these are done without awareness of laws protecting the rights on such creations.

 

Tanzania as a signatory to the Uruguay Round Agreements needs to be prepared for the system to be administered by the World Trade Organisation. This calls for developing a strong and effective IPR legal instruments and machinery, which will ensure adherence to trade related intellectual property rules.

 

Given the limited infrastructural and expertise base in Tanzania, the Patent Office does not carry out substantive examination of the patents applications. It only examines the applications to satisfy itself that the application conforms to the formality required under the law.

 

In the case of Zanzibar, patents are regulated under the Patents Decree which provides for the similar functions and procedure for patents applications and protection.

 

The lack of effective intellectual property protection in Tanzania warranted significant improvement, adaptation and enlargement of legal, administrative and enforcement framework as well as human capacity. The costs associated with the implementation of Trade Related Aspects of Intellectual Property Rights (TRIPs) are enormous. The relevant departments did not have fully functioning facilities then.

 

Although the legal framework and the necessary institutional framework for IPR administration has now been established, other IP implementing agents such as the police department, the customs office and the judiciary need adequate preparation in order to be able to curb infringement of intellectual property rights.

 

Finally, extensive training is required to cause awareness of intellectual property laws, considering that until recently, Intellectual Property law was not formally taught in the country: but now some aspects of IP have been introduced in the Law Curriculum at the University of Dar es Salaam.[27]

 

 

References

 

Conventions & Treaties

ARIPO Convention

Berne Convention (Literary and Artistic Works), since July 1994.

General Agreements on Tariffs and Trade (GATT 1994),

General Agreements on Trade in Services (GATS),

Nice Agreement (International Classification of Goods and Services), since 1999.

Paris Convention (Industrial Property), since June 1963.

PCT (Patents), since September 1999.

Trade Related Investment Measures (TRIMS),

Trade Related Intellectual Property Rights Agreements (TRIPS).

WIPO Convention, since December 1983.

WTO Convention

 

Books:

 

Michael Blakeney, The Process of National IP Policy Making: Theory, Practice and Policy Lessons, Stockholm Network, 2006.

Bekefi, Tamara, Tanzania: Lessons in Building Linkages for Competitive and Responsible Entrepreneurship, UNIDO and Kennedy School of Government, Harvard University, 2006.

 

Acts of Parliament

 

Copyright and Neighboring Rights Act, of 1999

Fair Trade Practices Act, 1994

Fair Competition, Act No. 8 of 2003

Government Notice No. 40 of 2000.

Government Notice No. 40 of 2000.

Industrial Property Act

New Plant Varieties (Plant Breeders’ Rights) Act, 2002

Patents Act No. 1 of 1987

Patents Act No. 1 of 1987

Patents Regulations G.N. 190 of 1994.

Patents Act, Cap 217 [R.E. 2002].

Protection Ordinance of 1936, Cap 219

Standards Act of 1975

Tanzania Commission for Science and Technology Act of 1986

Trade and Service marks Act No. 12 of 1986

Trade and Service Marks Act, Cap 326. Cap 394

Trade and Service Marks Act 12 of 1986

Trade and Service Mark Regulations, 2000

Patents Act, Cap 217, [R.E. 2002].

Patents Regulations of 1994, G.N. No. 490

Trade and Service Marks Act, Cap 326 [R.E. 2002]

Copyright and Neighboring Rights Act, Cap 218 [R.E. 2002]

Tanzania Investment Act, Cap 38 [R.E. 2002]

The Protection of New Plant Varieties (Plant Breeders) Act, Cap 344 of 2002.

Small Industries Development Organization Act, Cap 112 [R.E. 2002]

 

Journals and Studies

 

LeonilaKishebuka, Selected Case Studiesand Best Practices in Tanzania: SMEs Benefiting from Use of Intellectual Property System, WIPO/SMEs/DAR/05/8.

Shemdoe, G., Kasonta, J., and Chuwa, P. (2005) “Current National Policy Frameworks on Intellectual Property (IP) Management and IP Capacity Building in Tanzania” Institutional Management of Intellectual Property in Biotechnology Research & Development in East Africa: Country Case Studies, BIO‐EARN Programme Publication, October 2005.

 

Official Reports

 

United Republic of Tanzania, Economic Survey Report – 2009, Ministry of Finance and Economic Affairs, June 2010.

BRELA, Annual Report for the Financial Year 2002/2003, BRELA Report, 2004

TCU, Tanzania Commission for Universities Strategic Plan for 2005/2006 – 2009/2010

Enterprise and Trade: A Plain Language Guide to Tanzania National Trade Policy and SMEs Development Policy, 2005.

UNCTAD Report on Intellectual Property Provisions in International Investment Arrangements, IIA MONITOR No. 1 (2007), Doc. No. UNCTAD/WEB/ITE/IIA/2007/1.

United Republic of Tanzania, Report on Industrial Sector Performance in Tanzania 2007, Ministry of Industry, Trade and Marketing, August 2007

UNIDO Report of 2001

EU, Intellectual Property and Competitiveness: Challenges for ICT – Producing SMEs, Study Report, 2008.

ILO, The State of Research on women in MSES in Tanzania: Support for Growthoriented Women Entrepreneurs in Tanzania, 2005.

Policies and Strategies

United Republic of Tanzania, National SMEs Development Policy, 2002,

United Republic of Tanzania, National Public Private Partnership Policy, 2009

United Republic of Tanzania, National Science and Technology Policy for Tanzania, 1996

United Republic of Tanzania, National Strategy for Growth and Reduction of Poverty (NSGRP), 2005

United Republic of Tanzania, Sustainable Industrial Development Policy (SIDP) 1996 2020

 

Websites

 

Tanzania: Country Profile: www.tanzania.go.tz/ministriesandinstitutions.html (retrieved on 21st October 2010)

TCCIA’s SMEs Tool Kit: www.tccia.com/tcciaweb/SMEtoolkit/introduction.htm (retrieved on 17th October 2010)

Public Research Institutions Websites: :www.temdo.or.tz, www.tirdo.org, www.tanzania.go.tz/carmatec.htm, www.sido.go.tz, www.udsm.ac.tz (visited at various dates)

Tanzania Women Entrepreneurs Report: http://www.unido.org/fileadmin/user_media/Publications/Pub_free/Tanzanian_women_entrepreneurs.pdf

University of Dar es Salaam Entrepreneurship Center (UDEC): http://udec.udsm.ac.tz

Credit Guarantee Scheme in Tanzania: http://www.bottz.org/FinancialMarkets/SMECGSenglish.htm .

 

[1]Shemdoe, G., Kasonta, J., and Chuwa, P. (2005) “Current National Policy Frameworks on Intellectual Property (IP) Management and IP Capacity Building in Tanzania” Institutional Management of Intellectual Property in Biotechnology Research & Development in East Africa: Country Case Studies, BIO‐EARN Programme Publication, October 2005.

[2]Bekefi, Tamara, Tanzania: Lessons in Building Linkages for Competitive and Responsible Entrepreneurship, UNIDO and Kennedy School of Government, Harvard University, 2006.

 

[3] WTO EAC Trade Policy Review – Tanzania, 2012 & Priority Needs for Technical and Financial Cooperation, Communication from Tanzania, 2010

[4] IMF, Tanzania PRSP, 2011

[5]LeonilaKishebuka, Selected Case Studiesand Best Practices in Tanzania: SMEs Benefiting from Use of Intellectual Property System, WIPO/SMEs/DAR/05/8.

[6]TCCIA’s SMEs Tool Kit: www.tccia.com/tcciaweb/SMEtoolkit/introduction.htm (retrieved on 17th October 2010)

[7]Tanzania: Country Profile: www.tanzania.go.tz/ministriesandinstitutions.html (retrieved on 21st October 2010)

[8] See part VI of the Act, section 44 and 45.

[9] See section 3 of the Act.

[10]Tanzania Women Entrepreneurs Report: http://www.unido.org/fileadmin/user_media/Publications/Pub_free/Tanzanian_women_entrepreneurs.pdf

[11]Public Research Institutions Websites: www.temdo.or.tz, www.tirdo.org, www.tanzania.go.tz/carmatec.htm, www.sido.go.tz, www.udsm.ac.tz (visited at various dates)

[12]Enterprise and Trade: A Plain Language Guide to Tanzania National Trade Policy and SMEs Development Policy, 2005.

[13]ILO, The State of Research on women in MSES in Tanzania: Support for Growthoriented Women Entrepreneurs in Tanzania, 2005.

[14]United Republic of Tanzania, Tanzania Development Vision 2025

[15] WTO Trade Policy Review, EAC – Tanzania, 2012 & Priority Needs for Technical and Financial Cooperation, Communication from Tanzania, 2010

[16]Id.

[17]United Republic of Tanzania, Report on Industrial Sector Performance in Tanzania 2007, Ministry of Industry, Trade and Marketing, August 2007

[18]UNCTAD Report on Intellectual Property Provisions in International Investment Arrangements, IIA MONITOR No. 1 (2007), Doc. No. UNCTAD/WEB/ITE/IIA/2007/1.

[19]EU, Intellectual Property and Competitiveness: Challenges for ICT – Producing SMEs, Study Report, 2008.

[20]UNIDO Report of 2001

[21]United Republic of Tanzania, Economic Survey Report – 2009, Ministry of Finance and Economic Affairs, June 2010.

[22]TCU, Tanzania Commission for Universities Strategic Plan for 2005/2006 – 2009/2010

[23]BRELA, Annual Report for the Financial Year 2002/2003, BRELA Report, 2004

[24]United Republic of Tanzania, Sustainable Industrial Development Policy (SIDP) 1996 2020

[25]University of Dar es Salaam Entrepreneurship Center (UDEC): http://udec.udsm.ac.tz

[26]Michael Blakeney, The Process of National IP Policy Making: Theory, Practice and Policy Lessons, Stockholm Network, 2006.

[27] See Credit Guarantee Scheme in Tanzania: http://www.bottz.org/FinancialMarkets/SMECGSenglish.htm .