ERICK MACHUA-Famous cases in law

BUSINESS LAW

Macaura v Northern Assurance Co Ltd [1925] AC 619 appeared before the House Of Lords concerning the principle of lifting the corporate veil. Unusually, the request to do so was in this case made by the corporation's owner.

FACTS

Mr Macaura owned the Killymoon estate in County Tyrone, Northern Ireland. He sold the timber there to Irish Canadian Sawmills Ltd for 42,000 fully paid up £1 shares, making him the whole owner (with nominees). Mr Macaura was also an unsecured creditor for £19,000. He got insurance policies - but in his own name, not the company's - with Northern Assurance covering for fire. Two weeks later, there was a fire. Northern Assurance refused to pay up because the timber was owned by the company, and that because the company was a separate legal entity, it did not need to pay Mr Macaura any money.

JUDGEMENT

The House of Lords held insurers were not liable on the contract, since the timber that perished in the fire did not belong to Mr Macaura, who held the insurance policy. Lord Sumner said,

“

It was not his. It belonged to the Irish Canadian Sawmills Ltd, of Skibbereen, co Cork… He stood in no ‘legal or equitable relation to’ the timber at all… His relation was to the company, not to its goods, and after the fire he was directly prejudiced by the paucity of the company’s assets, not by the fire…

”

Lord Buckmaster, Wrenbury, Atkinson and Phillimore concurred.

ADMINISTRATIVE LAW

Ridge v Baldwin [1964] AC 40:

Following acquittal in a trial on corruption charges in which the judge criticised him, a Chief of Police (Ridge) was sacked without a hearing. After reconsideration by the Police Authority and an unsuccessful appeal to the Home Secretary, Ridge brought an action for a declaration that the dismissal was unlawful. The House of Lords granted the declaration. In cases of dismissal on grounds of neglect of duty, a hearing was required. Neither the reconsideration nor the appeal to the Home Secretary cured the original defect in the decision, as both failed to give Ridge an opportunity to contest the material on which the decision was based. In any event, the original decision was a nullity, so that it could not be rendered valid by the appeal to the Home Secretary, nor did this appeal exclude recourse to the courts. Lord Reid dismissed the Police Authority’s claim that because it was implementing a policy, the principles of natural justice did not apply.

LAW OF TORT

Donoghue v Stevenson [1932] AC 562

This was a decision of the House of Lords that established the modern form of the tort of negligence in English and Welsh law, and delict in Scots law, by setting out general principles whereby one person would owe another person a duty of care. The case originated in Paisley, Renfrewshire under Scots law, but the House of Lords determined that the English law of negligence and the Scots law of delict were identical. Donoghue v Stevenson is often referred to as the "Paisley snail" or the "snail in the bottle" case, and is one of the most famous decisions in British legal history.

On the evening of Sunday 26 August 1928 May Donoghue, née M’Alister, boarded a tram in Glasgow for the thirty-minute journey to Paisley. At around ten minutes to nine, she and a friend took their seats in the Wellmeadow Café in the town's Wellmeadow Place. They were approached by the café owner, Francis Minchella, and Donoghue's friend ordered and paid for a pear and ice and an ice-cream drink. The owner brought the order and poured part of an opaque bottle of ginger beer into a tumbler containing ice cream. Donoghue drank some of the contents and her friend lifted the bottle to pour the remainder of the ginger beer into the tumbler. It was claimed that the remains of a snail in a state of decomposition dropped out of the bottle into the tumbler. Donoghue later complained of stomach pain and her doctor diagnosed her as having gastroenteritis and being in a state of severe shock.

On 9 April 1929, Donoghue brought an action against David Stevenson, an aerated water manufacturer in Paisley, in which she claimed £500 as damages for injuries sustained by her through drinking ginger beer which had been manufactured by him. The case was settled in court, and the manufacturer was held liable for damages as he owed a duty of care to the ultimate consumer- from that judgment onwards the particular caselaw has been founded and has been exercised through precedent. The identity of Donoghue's friend is unknown, but that person is referred to as "she" in the case reports (including the first paragraph of the judgement of Lord MacMillan in the House of Lords). Other factual uncertainties include whether the animal (if it existed) was a snail or a slug, whether the bottle contained ginger beer or some other beverage (as 'ginger' in Glaswegian and West of Scotland parlance refers to any fizzy drink) and whether the drink was part of an ice-cream soda.

Legal background

In common law, a person can claim damages from another person where that other person owed the first person a duty of care and harmed that person through their conduct in breach of that duty. This concept existed prior to Donoghue, but it was generally held that a duty of care was only owed in very specific circumstances, such as where a contract existed between two parties or where a manufacturer was making inherently dangerous products or was acting fraudulently.

There was no contractual relationship between Donoghue and the drinks manufacturer or even, as Donoghue had not ordered or paid for the drink herself, between Donoghue and the café owner. Although there was a contractual relationship between the café owner and Donoghue's friend, the friend had not been harmed by the ginger beer. As ginger beer was not a dangerous product, and the manufacturer had not fraudulently misrepresented it, the case also fell outside the scope of the established cases on product liability. On the face of it, the law therefore did not provide a remedy for Donoghue.

Donoghue's solicitor, Walter Leechman of W G Leechman & Co in Glasgow's West George Street, had already tried to establish liability against aerated water manufacturer A. G. Barr when a dead mouse was alleged to have found its way into a bottle of its ginger beer. However, an action for damages was rejected by the Inner House of the Court of Session, when the appeal court judges ruled that there was no legal authority allowing such an action.

Progress of the case

The writ lodged in the Court of Session on April 1929 alleged that May Donoghue had become ill with nervous shock and gastroenteritis after drinking part of the contents of an opaque bottle of ginger beer, and David Stevenson, the manufacturer, "owed her a duty to take reasonable care that ginger beer he manufactured, bottled, labelled and sealed, and invited her to buy, did not contain substances likely to cause her injury." Donoghue claimed damages of £500.

Counsel for the manufacturer denied that any such duty was owed, but in June 1930 the judge, Lord Moncrieff, ruled there was a case to answer. Stevenson appealed the ruling on a number of legal grounds, and the judges of the Inner House granted the appeal in November 1930, dismissing Donoghue's claim as having no legal basis following the authority of their earlier decision in Mullen v AG Barr. One of the judges said that "the only difference between Donoghue's case and the mouse cases was the difference between a rodent and a gastropod and in Scots law that meant no difference at all."

Donoghue was allowed to appeal her case to the House of Lords but, whilst her legal team had agreed to provide their services free, she was unable to put up the security needed to ensure the other side's costs were met should she lose in the Lords. However, as such security would not be required if she could gain the status of a pauper, she petitioned the House of Lords, saying, "I am very poor and am not worth in all the world the sum of five pounds, my wearing apparel and the subject matter of the said appeal...". A certificate of poverty signed by a minister and two elders of her church was attached to the petition, and the House of Lords agreed to grant her pauper status.

Nine months after her petition was granted, Lords Buckmaster, Atkin, Tomlin, Thankerton and MacMillan heard counsels' arguments. Donoghue's counsel - George Morton KC and W. R. Milligan (later a Lord Advocate) - argued that a manufacturer who puts a product intended for human consumption onto the market in a form that precludes examination before its use is liable for any damage caused if he fails to exercise reasonable care to ensure it is fit for human consumption. Stevenson's counsel - W. G. Normand KC (then Solicitor General for Scotland and later a Law Lord), J.L. Clyde (later Lord Advocate and then Lord President of the Court of Session), and T. Elder Jones - argued that there was no authority for such a principle of law.

Judgment

The leading judgment was delivered on 26 May 1932 by Lord Atkin. The most famous section was his explanation of the "neighbour" principle, which was derived from the Christian principle of "loving your neighbour" (see James 2:8 and cf. the Parable of the Good Samaritan):

There must be, and is, some general conception of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. ...The rule that you are to love your neighbour becomes in law you must not injure your neighbour; and the lawyer's question: Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then, in law, is my neighbour? The answer seems to be - persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions that are called in question . . . a manufacturer of products, which he sells in such a form as to show that he intends them to reach the ultimate consumer in the form in which they left him with no reasonable possibility of intermediate examination, and with knowledge that the absence of reasonable care in the preparation or putting up of products will result in an injury to the consumer's life or property, owes a duty to the consumer to take that reasonable care.

"A man has a Duty of Care to conduct himself in such a way as to avoid harm to others, where a reasonable man would have seen that such harm could occur".

Lords Thankerton and MacMillan supported Lord Atkin's opinion, with Lords Buckmaster and Tomlin dissenting. Buckmaster said it was impossible to accept such a wide proposition and (anticipating later "floodgates" arguments) that it was difficult to see how trade could be carried on if Lord Atkin's principle was law. Buckmaster also opined, as did Lord Tomlin, that if such a duty of care existed it must cover the construction of every article, not just food: "If one step, why not fifty?" Tomlin referred to the Versailles train crash in 1842 caused by a defective axle, noting that, if Lord Atkin's principle were to be law, every injured party would be permitted to sue the axle manufacturer in such a case.

The case was returned to Scotland for the Court of Session to apply the ruling to the facts of the case. In the event, David Stevenson died within a year of the decision and his executors settled out of court, for less than the original claim of £500.

Significance

As Justice Allen Linden has pointed out, Donoghue is an extension of a principle articulated by Benjamin Cardozo in an earlier case in the United States, MacPherson v. Buick Motor Co., which the judges referred to in Donoghue. MacPherson pioneered the tortious principle of a general duty of care, the starting point for any action in negligence, though the principles were expressed within the context of product liability only.

Donoghue is perhaps best known for the speech of Lord Atkin and his "neighbour" or "neighbourhood" principle, where he applied Luke 10 to law so that, where an established duty of care does not already exist, a person will owe a duty of care not to injure those whom it can be reasonably foreseen would be affected by their acts or omissions. The effect of this case was not only to provide individuals in the United Kingdom with a remedy against suppliers of consumer products even where the complainant had no privity of contract with those individual or company tortfeasors, but to allow such individuals to bring negligence claims in any circumstance where the conditions for establishing a duty of care were met.

In 1990, the House of Lords revised Lord Atkin's "neighbour" principle to encompass public policy concerns articulated in Caparo Industries Plc. v Dickman ([1990] 1 All ER 568). The three-stage Caparo test for establishing a duty of care requires (i) foreseeability of damage, (ii) a relationship characterised by the law as one of proximity or neighbourhood and (iii) that the situation should be one in which the court considers it would be fair, just and reasonable that the law should impose a duty of given scope on one party for the benefit of the other. In other jurisdictions, such as New Zealand, there is now a two-part test for novel fact situations, where the establishment of a duty must be balanced against applicable policy matters.

Because of the significance of the case, in 1996 former Supreme Court of British Columbia Justice Martin Taylor, Vancouver lawyer David Hay and filmmaker Michael Doherty produced an educational documentary of the case. Besides recreating the events leading up to the case and "interviews" with actors playing the significant participants in the case, the production includes a 1995 interview with Lord Denning—then aged 96.^[3] This was one of the last interviews with Lord Denning, who died three years later. The film has been exhibited worldwide.^[4]

CONTRACT LAW

Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ

FACTS

The Carbolic Smoke Ball Company made a product called the "smoke ball". It claimed to be a cure for influenza and a number of other diseases. The smoke ball was a rubber ball with a tube attached. It was filled with carbolic acid (phenol). The tube was then inserted into the user's nose. It was squeezed at the bottom to release the vapours into the nose of the user. This would cause the nose to run, and hopefully flush out the viral infection.

The Company published advertisements in the Pall Mall Gazette and other newspapers on November 13, 1891, claiming that it would pay £100 to anyone who got sick with influenza after using its product according to the instructions set out in the advertisement.

“£100^[1] reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza colds, or any disease caused by taking cold, after having used the ball three times daily for two weeks, according to the printed directions supplied with each ball.

£1000 is deposited with the Alliance Bank, Regent Street, showing our sincerity in the matter.

During the last epidemic of influenza many thousand carbolic smoke balls were sold as preventives against this disease, and in no ascertained case was the disease contracted by those using the carbolic smoke ball.

One carbolic smoke ball will last a family several months, making it the cheapest remedy in the world at the price, 10s. post free. The ball can be refilled at a cost of 5s. Address: “Carbolic Smoke Ball Company, “27, Princes Street, Hanover Square, London.”

Mrs Louisa Elizabeth Carlill saw the advertisement, bought one of the balls and used three times daily for nearly two months until she contracted the flu on January 17, 1892. She claimed £100 from the Carbolic Smoke Ball Company. They ignored two letters from her husband, who had trained as a solicitor. On a third request for her reward, they replied with an anonymous letter that if it is used properly the company had complete confidence in the smoke ball's efficacy, but "to protect themselves against all fraudulent claims" they would need her to come to their office to use the ball each day and be checked by the secretary. Mrs Carlill brought a claim to court. The barristers representing her argued that the advertisement and her reliance on it was a contract between her and the company, and so they ought to pay. The company argued it was not a serious contract.

JUDGMENT

LINDLEY, L.J. * * * We are dealing with an express promise to pay £100 in certain events. Read the advertisement how you will, an twist it about as you will, here is a distinct promise expressed in language which is perfectly unmistakable: "£100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the influenza after having used the ball three times daily for two weeks according to the printed directions supplied with each ball."

We must first consider whether this was intended to be a promise to all, or whether it was a mere puff which meant nothing. Was it a mere puff? My answer to that question is "No," and I base my answer upon this passage: "£1000 is deposited with the Alliance Bank, shewing our sincerity in the matter." Now, for what was that money deposited or that statement made except to negative the suggestion that this was a mere puff and meant nothing at all? The deposit is called in aid by the advertiser as proof of his sincerity in the matter, that is, the sincerity of his promise to pay this £100 in the event which he has specified. I say this for the purpose of giving point to the observation that we are not inferring a promise; there is the promise, as plain as words can make it.

Then it is contended that it is not binding. In the first place, it is said that it is not made with anybody in particular. Now that point is common to the words of this advertisement and to the words of all other advertisements offering rewards. They are offers to anybody who performs the conditions named in the advertisement, and anybody who does perform the conditions accepts the offer. In point of law this advertisement is an offer to pay £100 to anybody who will perform these conditions, and the performance of the conditions, is the acceptance of the offer. That rests upon a string of authorities, the earliest of which is Williams v. Carwardine, 4 Barn. & Adol. 621, which has been followed by many other decisions upon advertisements offering rewards * *

It appears to me, therefore, that the defendants must perform their promise, and, if they have been so unwary as to expose themselves to a great many actions, so much the worse for them.

Bowen, L.J. I am of the same opinion. * * *

Then it was said that there was no notification of the acceptance of the contract. One cannot doubt that, as an ordinary rule of law, an acceptance of an offer made ought to be notified to the person who makes the offer, in order that the two minds may come together. Unless this is done the two minds may be apart, and there is not that consensus which is necessary according to the English law-I say nothing about the laws of other countries-to make a contract. But there is this clear gloss to be made upon that doctrine, that is notification of acceptance is required for the benefit of the person who makes the offer, the person who makes the offer may dispense with notice to himself if he thinks it desirable to do so, and I suppose there can be no doubt that where a person in an offer made by him to another person, expressly or impliedly intimates a particular mode of acceptance as sufficient to make the bargain binding, it is only necessary for the other person to whom such offer is made to follow the indicated method of acceptance; and if the person making the offer, expressly or impliedly intimates in his offer that it will be sufficient to act on the proposal without communicating acceptance of it to himself, performance of the condition is a sufficient acceptance without notification. * * *

Now, if that is the law, how are we to find out whether the person who makes the offer does intimate that notification of acceptance will not be necessary in order to constitute a binding bargain? In many cases you look to the offer itself. In many cases you extract from the character of the transaction that notification is not required, and in the advertisement cases it seems to tnp to follow as an inference to be drawn from the transaction itself that a person is not to notify his acceptance of the offer before he performs the condition, but that if he performs the condition notification is dispensed with. It seems to me that from the point of view of common sense no other idea could be entertained. If I advertise to the world that my dog is lost, and that anybody who brings the dog to a particular place will be paid some money, are all the police or other persons whose business it is to find lost dogs to be expected to sit down and write a note saying that the: have accepted my proposal? Why, of course, they at once look after the dog, and as soon as they find the dog they have performed th condition. The essence of the transaction is that the dog should b found, and it is not necessary under such circumstances, as it seems to me, that in order to make the contract binding there should be an notification of acceptance. It follows from the nature of the thing that the performance of the condition is sufficient acceptance without the notification of it. and a person who makes an offer in an advertisement of that kind makes an offer which must be read by the light of the common sense reflection. He does, therefore, in his offer impliedly indicate that he does not require notification of the acceptance of the offer. * * *

Appeal dismissed.

ERICK MACHUA-PIRACY AND COPYRIGHT PROTECTION IN CINEMATOGRAPHIC WORKS IN TANZANIA.

CHAPTER 1

1.0 Introduction

In Tanzania the legal terminology “copyright” is defined and recognized as a property which vests in the author’s of original literary, dramatic, musical and autistics works. Copyright also vest in authors of sound recordings, films (cinematographic works), broadcasts, cable programs and typographical arrangements of published editions.

Copyright ensures certain minimum safeguards of the rights of authors over their creations, thereby protecting and rewarding creativity. Creativity being the keystone of progress, no civilized society can afford to ignore the basic requirement of encouraging the same. Economic and social development of a society is dependent on creativity. The protection provided by copyright to the efforts of writers, artists, designers, dramatics, musicians, architect and producers of sound recordings, cinematograph films and computer software, creates an atmosphere conducive to creativity, which induces them to create more and motivates others to create.

The main legislation which governs copyright in Tanzania is the Copyright and Neighboring Rights Act No 7 of 1999.[1]Section 5(2) provides for works in which copyright may subsist where Cinematographic works and other audio-visual works is provided

Copyright and neighboring rights are essential to human creativity. Copyright protection gives the creators incentives in the form of recognition of their efforts and providing them with fair economic rewards. Through copyright protection, creators are assured that their works can be disseminated without fear of unauthorized copying or piracy. This in turn increases access to and enhances the enjoyment of, among other things, knowledge and entertainment all over the world.

In Tanzania as a general rule, copyright protection is available to works of authors who are nationals of, or have their habitual residence in Tanzania. Works first published in Tanzania may also qualify for copyright protection irrespective of the nationality or residence of their authors. Works first published abroad but thereafter published in Tanzania may also qualify. Protection of intellectual property rights could attract investors and hence develop the national economy. Therefore protection of patents, rights to industrial designs, trade marks and service marks and artistic, musical and literary works is a very serious issue which every player in the market must be aware of and must respect.[2]

Cinematographic works are recognized in Tanzania and are included in the Copyright and Neighboring Rights Act.[3]The protection of copyright in cinematographic works in Tanzania is faced with many challenges. Piracy of cinematographic works poses a lot of constraints on the protection of the cinematographic works; it operates within the nation and across national boundaries.

Introduction of digital technology and internet has posed new challenges to traditional copyright protection. This is due the fact that it facilitates piracy of copyrighted works and this is to include cinematographic works. Introduction of digital technology and internet enables private individuals to publish, reproduce and communicate copyright works to vast audiences without resorting to original owners.

Piracy is a form of theft and is mostly often involves violation of copyright law. Specifically it refers to the unauthorized copying or use of intellectual property. Some scholars classify piracy into four forms known as internet piracy, optical Disk piracy, signal theft and Public performance.

1.1 Historical background

As with the concept of intellectual property in general many Tanzanians, among the few who are aware of the existence of intellectual property, think that in Tanzania, intellectual property is a totally new concept very few among those who know that intellectual property in Tanzania came with the colonial administration, thus we see the introduction in 1924 through Chapter 218 of the Copyright Legislation Marks in 1922. So the coming into then Tanganyika of the colonial administration came with those aspects of intellectual property. The immediate post independent Tanganyika did not have any significant change in the contents of the intellectual property legal system, although it is notable that the Copyright Ordinance Cap. 218 was repealed in 1966 by Copyright Act No. 61 of that year. In 1999 a new Copyright Legislation was enacted. It is the current Copyright Legislation in force.[4] Therefore it will clearly be seen, during the colonial administration the forms of intellectual property were mainly to protect the rights of the subjects who came and settled in the country and the national of the colonial power and of its allies. Intellectual property had little or no value to indigenous Tanzanians. This same position was maintained even after independence as indigenous Tanzanians did not have any objects of protection in the really intellectual property rights protection in the conventional sense. Indigenous Tanzanians did not have any patentable inventions or innovations, nor did they have trade marks to protect, even in cinematographic works, music, local composers knew nothing about the rights under copyrights. Intellectual Property then, was more or less an instrument of monopoly. There were infact some laws which were promulgated to inhibit innovative activities among the indigenous Tanzanians.

It is however now different due to rapid technological developments and rapid globalization process, co-operation among nations in all spheres of development including in intellectual property, becomes inevitable. International and Regional co-operation, to attempt the forging and harmonize intellectual property rights protection regimes among nations, have been made through various International and Regional Co-operation. The World Intellectual Property Organization (WIPO) and the World Trade Organization (WTO) as intellectual property norm setters have been the driving force behind these efforts. There have been some achievements although the asymmetrical reality of the developed, developing and least developed countries had made that task to be complex.[5]

However Piracy in cinematographic works in Tanzania does not have a long historical background. Piracy in cinematographic works started to emerge mainly in the late 1990’s when introduction of digital technology and internet took its pace. Also it is at this period when the film industry was getting its momentum.[6]

Prior to 1990’s the film industry in Tanzania was real low. Very few films were produced and there were no any trace of piracy in cinematographic works. However there were several instrument both legal and non legal which governed cinematographic works and film in Tanzania. For example there was Copyright and Neighboring Rights Cap of 1967 which was enacted to govern copyright.

Tanzania is member of WIPO Convention since 1983.[7]Also Tanzania ratified Berne Convention for the protection of literary and Artistic works of 1886 as revised in 1971 since 1963 which is supervised by WIPO.[8]

The cap of 1967 was amended and replaced by the Copyright and Neighboring right Act No 7 of 1999.The president assent in June 1999 and the law became operational from December,31,1999.It complies with the Berne convention(1886) and the TRIPS Agreement of the world Trade organization(1994)

The new Act extended the scope of copyright to encompass among other things copyright society of Tanzania (COSOTA)[9] The COSOTA is vested with the power to administer the copyright Act and serve as Collective Management Society. This is itself a great improvement. On the old Act among other things did not provide for an institution to administer the Act.

1.2 Statement of the problem

Copyright piracy and infringement are not victimless crimes as many people think; the true victims are the creators, designers, the authors, composers, song writers, filmmakers and investors.[10]

Piracy in cinematographic works in Tanzania is still a big problem. Tanzania like many other countries has experienced the drastic increase of piracy in cinematographic works. Even after enactment of the Copyright and Neighboring Right Act of 1999 the problem still exists. The copyright and Neighboring Rights Act of 1999 provides for the protection of copyrighted rights but piracies in cinematographic works gradually increase.

.

Also introduction of digital technology and internet has posed new challenges to copyright protection. Private individuals now have the ability to produce copies of copyrighted works and distribute them at minimum cost. Internet users also share video files not for their uses also on the scale that affects the profits of the right holders more Internet users continue to upgrade from slow dial-up Internet access to the fast-speed broadband access afforded them through cable and DSL modems. Technology continues to improve, making illegal copies higher quality and the means to download them faster and easier. Unlike VHS tapes that degrade, the quality of the 1000th digital copy of a DVD is as good as the original.

Peer to peer net works (P2P) is also a problem; this also has being a greater problem and one of the obstacles towards the protection of cinematographic works. In this modern world there is a tendency of file sharing where by individual shares copyrighted material on such file sharing system. This includes sharing of copyrighted movies.

COSOTA has been of little help. This is due to a number of reasons. One of the major problems is lack of enough funds to administer copyright protection in Tanzania. Apart from funding another problem which COSOTA is facing is that, when they find culprits and are in the process of prosecuting them, the right owners, all of a sudden don’t want it to go to court. Later the pirates would go behind and ‘settle’ them. Even when they call on the big names in the industry for the campaigns, they are asked paid for it.[11]

COSOTA may not have been able to cover every spot and locate each piracy plant as most of them operate underground. Tanzanians should realize that piracy is not just a threat to the economy but a matter of national security. It is linked to organized crime and other such atrocities as it is a big money spinning venture.[12]

Few cases have been reported; there are very few cases concerning copyright protection in cinematographic. As stated earlier the issue of cinematographic piracy is still a new concept in our society it therefore becomes very difficult to find the owner of the pirated work institute a case against the alleged pirates. Also there is no a Copyright Board to adjudicate certain cases pertaining to copyright as for many other countries such as India.[13]

Despite the fact that Tanzania has ratified various international conventions and being member of various international bodies such as the Berne convention for protection of literary and Artistic works of 1886 and member of TRIPS Agreement, since January 1995 which intends to promote and protect copyright from piracy it has not succeeded to protect cinematographic works from piracy.

1.3 Hypothesis

There is hast increase of trend and incidences of piracy in cinematographic works in Tanzania. The following are intended to be established in this study.

Whether protection of copyright in cinematographic works against piracy in Tanzania fails due to inefficiency and insufficiency of the existing law

Whether the amendment of the existing Act would reduce the incidents of piracy in cinematographic works

Whether there is lack of awareness among the authors, actors and private individuals on the laws protecting copyright works.

Whether the copyright society of Tanzania (COSOTA) has failed to administer copyright protection in cinematographic works in Tanzania

Whether there is any attempt by the government of Tanzania to curb the problems facing copyright protection in cinematographic works.

1.4 Objectives of the Research

The main objective of the study is to pinpoint the trends and prevalence of piracy in cinematographic works in Tanzania.

Raising awareness to the members of society about the importance of copyright protection in cinematographic works.

To examine the extent of which the courts has played its role in implementing the protection cinematographic works in Tanzania.

To examine the inefficient and or the loopholes found in The Copyright and Neighboring Rights Act, 1999.

To find out the modern tactics and strategies for preventing and combating piracy in cinematographic work in Tanzania.

1.5 Significant of the research

It can be used of great importance and assistance to those ho will research on other aspects

It will bring awareness in the society

It will help to convince the legislature to amend the existing laws and make them known to the public so as to be given more attention and work in accordance with the new technology

It will help legal students to develop their knowledge of the law relating to intellectual property rights especially in the copyright and neighboring rights.

Enhance legal student’s intellectual, interpersonal and transferable skills as well as developing other skills including independent research, legal research, problem solving and critical awareness of correct problems

1.6 Scope of the Study

The study will basically be confined in Copyright and Neighboring Rights Act No 7 of 1999 by looking at the definition, nature and scope of the law relating to copyrights and neighboring rights. The nature of ‘piracy’ and copyright protection in cinematographic works. The role of the court on its implementation of copyright protection.

1.7 Literature review

Davis J[14] states that introduction of digital technology and internet has posed new challenges to traditional copyright protection. It poses novel obstacles to a similar expansion of copyright. It has enabled private individuals to publish, reproduce and communicate copyright works to vast audiences without resorting to publishers. The researcher aims at using this literature to show the importance of amending our laws to work according to the new technology such as cable television, computer software, and digital technology and internet. The author also describe circumvent technology as one of the technological measures to prevent copyright abuse. Also formation of organizations which raise public awareness of copyright infringement and its consequences, perhaps offering rewards to individuals who provide information leading to successful civil or criminal proceedings. The author suggests the increase of police search and seizure powers and the power of the court to order forfeiture of pirated goods. However the author failed to show how circumvent technology can be used as a technological measure to prevent copyright abuse. The researcher wish to explore more on how this technology can be used to curb piracy in cinematographic works.

Bentley l and Sherman B[15] states that copyright law provides the means to protect investment and labor. The existence of copyright in particular work restricts the uses that can be made of the work. For example a person who purchases a book in which copyright subsists can not legally photocopies the book. Similarly a person who buys a protected CD can not legally make a tape of that CD for a friend. The authors also provides for the importance of Rental Directive of 1992 which provides for the rental and lending rights. The same was stated in the case of Warner Brothers and another v.Christiansen.[16] In another case of FDV v.Leserdisken[17]it was asked whether the proprietor of an exclusive right to authorize or prohibit the rental and lending out of originals and copies of copy right works(“rental”) pursuant to Article 1(I) of the Rental Right Directive. This article gives the holder of the copyright in a film the right to oppose its renting out.To this point the researcher will use this literature to show how rental right directive is important and suggest the same to be incorporated into our copy

The report commissioned by the IPR commission[18] shows that 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. However the commission report does not stipulates those weaknesses. It does not go further to discuss about possible ways to curb the problem. The report also states that generally 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 copyrighted works. It further states that there was tendency to place ownership on physical property and not on the intellectual property. For instances 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. Thus a researcher wishes to use this literature since it provides for the importance of public awareness on the maters concerning protection of copyrighted works and this is to put in cinematographic works to raise awareness among the member of society. The researcher will go deep into discussing those weaknesses in the Tanzania’s Intellectual Laws.

Wangwe[19] states that the lack of effective intellectual property protection in Tanzania warranted significant improvement adoption and enlargement of legal administrative and enforcement frame work as well as human capacity. Other intellectual property 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. The author does not however go deep to discuss the issues concerning piracy in cinematographic works and how it can be prevented. He only concentrated in piracy in artistic works. The researcher intends to use this case study since it suggests for the importance of improving, adopting, and enlarging the legal administrative and enforcement as well as human capacity as machinery for protecting copyrighted works against piracy. The researcher also wishes to go further in discussing the issues concerning cinematographic works and how it can be protected against piracy.

Wilson C [20] states that copyright will not subsist in a work unless it has been created by qualifying person. The issue of qualification is not stipulated in the Copyright and Neighboring Rights Act of 1999.The author also describes integrity as moral rights which allow LDMA[21] works authors and directors of film to object to the derogatory treatment of their work. That is that the work has been added to, altered or deleted in such a way to amount to a distortion, mutilation or otherwise prejudicial treatment. Integrity as a moral right is not contained in the laws of Tanzania. Apart from integrity the author also explains about privacy in photos and films which is very important for the possessors of copyrighted works in such a juncture. The author goes further in explaining the importance of circumvention in protection of copyrighted works. However the author has failed to define and show how circumvention can be used to protect cinematographic works from being abused. Thus the researcher wishes to use this literature to show the importance of incorporating integrity and privacy in film as new moral rights among other things and how circumvention can be used to protect cinematographic works.

Cornish W and Llewellyn D[22] states that the demand for increased protection has arisen. The demand for new forms of protection is dependent upon many factors including expression and liberation of economy to a point where new entrants to a market can no longer be excluded by local cartels in the form of guilds and corporation. The authors’ states further that film is a field in which the law has needed to reflect highly significant technological advances subsequent arrived of video taping and now of digital recording has added immensely to the ways in which filmed material can be produced and subsequently manipulated. However the author does not state how the problem can be curbed. He also does not clearly stipulate the forms of which can be used in the protection of cinematographic works against piracy. Therefore the researcher will go further to discuss the alternative methods and forms which can be used to solve the problem.

1.8 Research methodology

The research will be mainly conducted at library where it will involve an analysis of the problem through statutes, textbooks, journal, articles and case law on the related study and also use of other relevant material that will be available. The researcher will conduct a field research in Dar es Salaam Region. In thus regard field work will be involving both experts and non experts who are concerned with enforcement of copyright law in Tanzania such as COSOTA.

1.9 BIBLIOGRAPHY

BOOKS

Alexander, D, and Jacob, R. (1993). A Guide Book to Intellectual Property: Patents, Trademarks Copyright and Designs, (4^thed) London: Sweet and Maxwell, London,

Allison, C. (1992). Intellectual Property Law, (1^sted) London. Longman,

Allison, C and Jeremy P, (1995) Introduction to Intellectual Property Law, (3^rd Ed), Butterworths, London..

Blanco, W. (1989) Trade Marks Copyright and Industrial Designs (2^nd Ed), London: Sweet and Maxwell.

Cornish, W. (2003) Cases & Materials on Intellectual Property (4th Ed), London: Sweet and Maxwell limited.

Cornish, W., & Llewlynd, (2007) Intellectual Property (5TH Ed), London: Sweet and Maxwell limited.

Davis, J.(2005) Intellectual Property Law (2nd Ed),New York: Oxford University Press Inc.

Davis M.H. and Miller A.R (1987), Intellectual Property Patents Trademarks and Copyright (5^th Ed) New York: West Publishing Co.

SUGGESTED ARTICLES

Laurie, G.T., (1997). "Intellectual Property Rights and the Interests of Indigenous Peoples”, Lesotho Law Journal Vol. 10.

Marco B.(1994) "The Impact of TRIPS Intellectual Property Protection in Developing Countries", Common-Market Law Review 31:1 245-8.

Rwezaura, B.A, (1988) "Legal Protection of Intellectual Property in Tanzania" 4 Lesotho Law Journal 1,139-254 (1988).

Samzugi, A.S. and B. Shabaan,(2001)Implications of Copyright Protection to Distance Education in Tanzania: An Appraisal of the Copyright and Neighboring Rights Act 1999, Huria Journal of the Open University of Tanzania Volume II No. 2

STATUTE

Copyright and Neighboring Rights Act No 7 Cap 218(1999)

WEBSITES

www.wto.org

www.intellectual-property.org.uk

www.wipo.org

www.aripo.wipo.net

www.parliament.the-stationery-office.co.uk

www.lexixnexis.co.uk

www.cosota-tz.org

TELEVISION BROADCAST

Kiria, N. J. (Host). (2009, September 16).Bongo movies [Television Broadcast].Dar es salaam. East Africa Television.

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[1] Cap 218

[2] The website of Copyright and related Rights found at http://216.69.44/guardian/2007/10/12/100276.html.accessed on 5/5/2010.

[3] Cap 218;Section 5(1) (f)

[4] A report by WIPO workshop on intellectual property law business for small and medium size Enterprises

(SMES) organized by the World Intellectual Property Organization (WIPO) in cooperation with the Tanzania Chamber of Commerce Industry and Agriculture (TCCIA) Dar-es-Salaam, May 10 and 11, 2005.

[5]The website of Intellectual Property found at http.www.intellectual-property.orig.uk accessed on 12/5/2010

[6] Personal observation

[7] World Intellectual Property Organization

[8] The convention covers the artistic and literally works to put in the cinematographic works.

[9] Provided under Section 46 of the Copyright and Neighboring Rights Cap 218.It functions as an authority body for Collective administration of copyright and neighboring rights. The society is responsible for copyright administration and it is under the ministry of industry and Trade

[10] The website of copyright infringement found at http //www.copynot.com accessed on 5/5/2010

[11] The website of copyright rights in Tanzania found http//www.wipo.org accessed on 5/5/2010

[12] Ibid

[13] Most of copyright boards act as quasi-judicial body and has power to hear appeals against the orders of the Registrar of Copyrights, adjudicate upon disputes ob assignment of copyright and many other kinds of disputes concerning copyright abuse.

[14] Davis J, Intellectual property law, Oxford university press 2^nd ed,2005,page 143

[15] Bentley L et all, Intellectual property law,oxford university press, 2001, page 29, 47.

[16] [1888]ECR 2603

[17] The case covers the rights under council Directive of 19 November 1992 on rental and lending right in the field of intellectual property.

[18]The report by the intellectual property rights commission

[19]A case study for UNCTAD.1996

[20]Wilson C, Nutshells Intellectual Property law, 2^nd edition, 2005, page 71, 72.

[21] Literary, dramatic, musical and artistic

[22] Cornish W et all, Intellectual Property: Patent, Copyright, Trade marks and Allied Rights, Sweet and Maxwell limited 5^th ed, 2007, page 31.