COPYRIGHT LAW IN TANZANIA (a synopsis)

Jaba Shadrack, 2009

Quiz

1. Using relevant authorities, critically discuss the subject matter of copyright, subsistence and its legal justification.
   
2. Using your own intellectual and creative ideas discuss the differences and similarities if any between musical works and sound recordings and how are these copy-righted works legally protected.
   

QN. 1 [a]

Essentially, copyright is a branch of law granting authors an exclusive privilege to produce, distribute, perform, or display their creative works. Therefore, many jurists copyrights entails the legal right given to the creator of an original work (authorship) exclusive rights to it, usually for a limited time, after which the work enters the public domain. Copyright is simply a right to copy which entitle the holder to financial benefits for his artistic or musical works and sound recordings.

This essay to the large extent intends to dwell in extenso on the subject matter, substance and legal justification of copyright as follows;

The subject matter of copyrights which is eligible for protection in the purview of the Act and, the Berne Convention includes both literary and, artistic works. The above (legal) regimes i.e. municipal and international law enumerates, seriatim, various copyrightable works such as sculpture, motion picture, musical compositions, dramatic works, choreography, lithography, illustrations, maps, sketches, plans relative to geography, topography, architecture or science, pantomime, painting, drawing, sound recording, lectures, books, computer programs, lectures, cinematographic works, tapestry, and exams scripts.

On the other hand, the law covers also the subsistence of copyrights. In the phraseology of both municipal and international legal instruments, for the copy right to subsist in copyrightable works, first, it needs to be an original work from the author (i.e. originality) as a result of exercise of skill and judgment. In the word of Peterson J in University of London Press Ltd., V. University Tutorial Press Ltd., that the work must not be copied from another work i.e., it should originate from the author.
Second, as per Camron J, the thought must be expressed to some extent in some material form enduring more or less permanence (i.e. fixation). In University of London Press Ltd. Case (supra), Peterson J puts it clearly that the expression of thought in case of literary work ought to be printed or in writing. This contention is also supported by the holding in Merchandising Corporation of America v. Harpbond. Finally, the law excludes facts and ideas from being copyrighted. These requirement were stipulated in Harper and Row, Publishers, Inc., v. Nation Enterprises as;

"No author may copyright facts or ideas. The copyright is limited to those aspects of work termed expression that display the stamp of authors' originality".

Basically, various schools of thought substantiate (justify) copyrighting of works. The first school regards copyrighting as a natural right, and therefore, an extension of author's personality. This thinking is derived from John Locke's arguments as to property. The second school associate copyrights to economic theories, in a sense that the author should benefit for investing in creativity, and that to motivate authors to invest effort in creating new works of arts and literature. 

Finally, is the consequentialist school which holds utilitarian views that the law must aim at producing the best result for the society (normally, to balance the individual rights to that of the community).

QN.1 [b]

Musical works and, sound recordings differ substantially and, look alike in some way in terms of their nature, definition, scope of coverage, rights and protection. In that regard therefore, this manuscript will firstly, strive to pinpoint in detail [the] similarities, differences of musical works and sound recordings. Secondly, shade a light on the protection of musical works, and sound recordings.

Primarily, the differences between the two are as follows;

At the first place, musical works contain music as well as any graphical notation of such work but does not include any words or any action intended to be sung, spoken or performed with music. On contrary, sound recording means a recording of sounds from which sound may be created despite the medium on which such recordings are made or the method by which the sounds may be produced.

Moreover, in musical works, literary works, drama and other artistic works requires originality. While sound recording, films, broadcasting and cable production does not need originality. It should be noted further that in sound recording the author is paid in terms of royalties.

Furthermore, in musical works, the entitlement to copyrights is on the lyricist, composer, the singer or producer, whereas, authors of sound recordings are not necessarily claimers of copyright. In essence, the ownership of sound recordings' copyright will either be vested in the performing artist or sound producer or placed in the joint ownership of the producer and an artist.

Inclusively, musical works includes but not limited to lyrics, poems, melody and tones, whilst, sound recording includes phonograms, and recordings of music, speeches or other sound. Therefore, prima facie, sound recording is derived from musical works in some instances.

Secondarily, the similarities between musical works and sound recording are follows;

At the outset, both are copyrightable works in municipal and international regime. 

Additionally, the authors of both works enjoy rights to adaptation, alteration, translation, assignment and reproduce the work. Apart from that the two works may be fixed or stored on Computer Floppy Disk, Compact Disc, recording on video tape or sculpting it in marble. Finally, both are literary and artistic works altogether. 

Fundamentally, musical works and sound recordings are Copyrightable under the Copyrights and Neighbouring Rights Act, and the Berne Convention for the Protection of Literary and Artistic Works respectively, thus, becoming free from any infringement. In the purview of the said laws the author may sue for damages or for other court orders. This is exemplified by In early 2006, the writers of Lee Hyori's song "Get Ya" were accused of plagiarizing Britney Spears' 2005 song "Do Something'". This eventually led Lee Hyori to stop promoting the song and contributed to the failure of the song and its album, Dark Angel. In early 2007, Timbaland was alleged to have plagiarised several elements (both motifs and samples) in the song "Do It" on the 2006 album Loose by Nelly Furtado without giving credit or compensation.