A review of the decisions in Hamisi Mwinjuma, Ambwene Yessayah V MIC TANZANIA LIMITED (Ilala District Court Civil Case No. 17 of 2012; and The Republic V Ajay Amarsh Chavda (Ilala District Court Criminal Case no. 814 of 2011) 

In the past few years, we have witnessed a number of court cases and decisions related to copyright infringement in Tanzania. This perhaps indicates a shift in the Tanzanian community towards appreciating intellectual property as something of value, something that ought to be safeguarded and protected.  The cases discussed in this article are unprecedented in Tanzania, and, although the decisions were made by the District Court, which is not a court of record, their impact is not to be ignored, particularly as they may have opened up the floodgates.

Hamisi Mwinjuma, Ambwene Yessayah V Mic (T) Ltd

The plaintiffs in this case were two famous hip hop artists who make music popularly known as Bongo Flava in Tanzania.  They sued the defendant, a telecommunications company, over the unauthorised use and sale of caller or ring-back tones based on songs that the plaintiffs jointly own.   

The matter was filed in the High Court of Tanzania in 2011 (High Court of Tanzania Civil Case no. 38 of 2011).  Before the suit could be considered on its merits, the defendant raised preliminary objections, which were upheld by the Court. Consequently, the suit was struck out for want of jurisdiction.  It was subsequently instituted in the lower court, the District Court of Ilala, where it was tried. The Court held in favour of the plaintiffs, and made the largest award ever to have been granted by a District Court: TZS 2 160 million as special damages (approximately USD 1.08 Million), and TZS 25 million as general damages.

The absence of an agreement between the defendant and the plaintiffs was key in the decision of the Court.  Based on their own admission, the defendants were being supplied with the tones from third parties who also had no agreement for such supply with the plaintiffs.

This award made news headlines, firstly, because it was the first case of its nature in which a telecommunications company was held liable for the selling of caller ringtones.  Music artists had for many years been complaining that their rights were being violated but, until this case, no one had ever successfully taken legal action. 

Secondly, the amount of the award was unprecedented and the fact that it was made by a District Court raised eyebrows.  The defendant sought to appeal the decision to the High Court but did not succeed on technical grounds.  It remains to be seen if the defendants will continue to pursue the appeal.

Affirmation of District Courts’ jurisdiction

One of the important aspects of this decision is that it resolved the jurisdictional uncertainties for copyright infringement cases.  Before this case there was uncertainty as to which court had originating jurisdiction, the High Court or the District Courts. 

Ordinarily, in cases of a civil nature, the jurisdiction of the District Courts is limited by the value of the claim.  District Courts have no jurisdiction over claims whose value is above TZS 100 million. In such cases the jurisdiction has been vested in the High Court.  Apparently, such is not the case to proceedings based on copyright.  The Copyright and Neighbouring Rights Act (Copyright Act) has departed from the general rule.  

The Copyright Act defines the word “court” to mean a District Court established under the Magistrates’ Courts Act.  Sections 36 and 37 allow for actions to be filed in court to enforce civil remedies applicable to copyright owners.  Since the word “court” has expressly been defined in the Copyright Act to mean a District Court, the High Court in Civil Case no. 38 of 2011 ruled that the District Courts have exclusive, unlimited original jurisdiction to entertain copyright infringement cases regardless of the value of the claim.

Some shortcomings

Much as the courage and boldness of the District Court in ruling and making the award may be admired, the judgment can be criticised in that the special damages award, was in our view, not supported by evidence.  There is no indication that data was available on the number of downloads of the songs by subscribers per day, month or year.  It appears the award was based on the defendant’s admission that downloads were in fact being carried out, but to what extent?  This question was not answered in the proceedings. 

It is apparent from the judgment that the award of the special damages was arbitrary.  The Magistrate mentions that the plaintiffs had posed a claim of TZS 4 320 million and therefore he was dividing that claim in half. Thus, he was awarding TZS 2 160 million, stating that this would be in the interest of justice since the defendants had earned income.  We believe this was an error and the defendant should have preferred an appeal.

In our view, the ruling and award of the special damages go against the long-established principles that special damages must be specifically pleaded and proved as held by the Court of Appeal of Tanzania in the cases of Zuberi Augustino V Anicet Mugabe [1992] TLR 137; and The Manager, NBC, Tarime V Enock M Chacha [1993] TLR 228.

The Republic V Ajay Amarsh Chavda

This case was brought in court by way of criminal prosecution in which the accused were charged under the Copyright Act for illegal reproduction, translation, adaptation and distribution of copyrighted work from India.  The prosecution brought evidence of reproduced or duplicate DVDs and VCDs which were found in a shop being sold by the accused.  The accused were found guilty of the charges brought against them.

The importance of this decision is that it dealt with the question of enforcement of foreign copyright in Tanzania. 

Enforcement of foreign copyright

As a general rule, the Copyright Act applies to (a) works of authors who are nationals of, or have their habitual residence in the United Republic of Tanzania; (b) works first published in the United Republic of Tanzania, irrespective of the nationality or residence of their authors; (c) audio-visual works, the producer of which has his or her headquarters or habitual residence in the United Republic of Tanzania; (d) works of architecture erected in the United Republic of Tanzania and other “artistic works” incorporated in a building or other structure located in the United Republic of Tanzania.

In this case, the works which were the subject of criminal prosecution, were by Indian authors and performers based in India.  However, there is an exception under the Copyright Act that for works first published in a foreign country of authors of foreign nationality and having their residence in a foreign country, would be protected in Tanzania where the country of habitual residence of the author or, in the case of published works, the country of their first publication, grants or reciprocates similar protection to Tanzanian nationals or residents.

Ordinarily the accused would not have been found criminally liable in the absence of reciprocal provisions with India.  In this case, the reciprocal provisions consisted of an agreement between the Copyright Society of Tanzania (COSOTA) and the Indian Performing Rights Society (IPRS).  The Court relied on the evidence of the chief executive director (CEO) of COSOTA, who stated that COSOTA has a mandate under the Copyright Act to protect outside works as long as they have an agreement with the foreign but similar societies.  The CEO testified that they have an agreement with the IPRS to enforce rights of the Indian artists.  This would appear to be in line with Section 47 of the Copyright Act specifying the protection of interests of copyright owners, and section 48(f) allowing COSOTA to join regional and international associations having similar objectives and functions.

Although a decision of the lower court, this is an important decision in sending a message that the courts will uphold rights of foreign copyright owners provided that there are provisions for reciprocal enforcement.  Furthermore, the decision is of persuasive value to proceedings before the High Court, and we believe it has opened the door for foreigners to enforce their copyright against infringement in Tanzania.