1.1  CONCEPT OF COPYRIGHT AND COMPUTER SOFTWARE

Copyright is the right to copy specific a property right in an original work authorship including literary, musical, dramatic, choreographic, pictoria, graphic, sculptural and architectural works.[1]

Copyright is the exclusive and assignable legal right given to the originator for a fixed number of years, to print, publish, perform, film or record literary, artistic or musical material. Section 4 of the copyright and Neighboring Act defines copyright to mean the sole right to print, publish, perform l, film or record a literary or artistic or music works. Copyright laws grant authors, artistic and other creators, protection for their literary creators, protection for their literary and artistic creation generally reffered to as “works”. A closely associated field is related rights or rights similar or identical to those of copyright, although sometimes more limited of shorter education.[2]

In the case of Celtel Tanzania Limited v Commissioner General Tanzania Revenue Authority)[3] discuss the copyright as distinct from the material objects. The court contended that copyrighted copy is an intangible incorporeal of a privileged, quite independent of any material substance such as manuscript.

Computer is defined under section 4 of the copyright and Neighboring Act to mean an electronic or similar device having information processing capabilities. Therefore computer software or sometimes known as computer program also the Act defines to mean a set of instructions expressed in words, codes, schemes or in any other form, which is capable when incorporated in a medium that the computer can read, of causing a computer to perform or achieve a particular task or result.

Similar concept of computer software defines in Cyber Crimes Act, Act No. 14 of 2015. Under section 3 defines computer data to any representation of facts concepts, information or instructions in a form suitable for processing in a computer system including a program suitable to cause a computer system to perform a function.[4]

Generally computer software is a set of instructions that directs a computer’s hardware to perform a task.

1.2 THE LEGAL BASIS FOR THE PROTECTION OF COMPUTER SOFTWARE IN TANZANIA

The legal regime that governing protection of computer software in Tanzania are as follows: Copyright and Neighboring Act, Cyber Crimea Act, the Constitution  of the United Republic  of Tanzania, the Electronic Transactions Act 2015 and the electronic and Postal Communications Act, The Written Laws(Miscellaneous Amendments) (No.3) Act No.9 of 2019 and its Regulation and Rules made there under.

1.3 THE EXTENT TO THE PROTECTION COMPUTER SOFTWARE IN TANZANIA

1.3.1 COPYRIGHT AND NEIGHBOURING ACT [ [ CAP 218 R.E 2002]

Computer programs are specifically under all forms of computer and the related documents, whether recorded as source code, object code or in any other form including user programs and operating system may be protected. The economic rights performing to software are transferable. To be eligible for protection by copyright a computer program should be individually and original. Under the Tanzania copyright law works are protected which are first made in Tanzania or which or which are made by on Tanzania Citizen irrespective of where the work was first made public[5]. Works of Foreign not first made public in Tanzania may be protected on the basis of a bilateral treaty or on the basis of reciprocity. In the case of Celten Tanzania Limted Case[6] in this case the Court of Appeal makes reference to Kenya Case, Kenya Commercial Bank Limited v Kenya Revenue Authority[7]that a payment for the right to use computer software constitutes royalty. Where it was held that upon payment for a license the appellant bank was provide with computer software by foreign company for use in banking service. “The agreement specifically provided, inter alia that Infosys would at all time retain all the copyright and other proprietary right in software and that the Bank would not acquire any rights other than those specified the agreement…”

Above design support that our laws does not protect a foreigner company, but though their agreement only. Thus payments made to Ericsson AB and Alcatel-Lucent France were consideration by the appellant for making use of the computer software subject to the terms and conditions stipulated under clauses 8.1 and 8.2 and 8.3 of the agreement.

The establishment  of body which known as Copyright Society of Tanzania ( COSOTA) which has function to promote and protect the interests of authors, performers, translators procedures of sound recording, broadcasters, to collect and distribute any royalties.[8] This body has duty to maintain registers of works, productions and associations of author’s performers, translators, producers of sound recordings broadcasters and publishers.[9] Though this bodies it possible for software to protect where the programmer register his computer software will enables him/her to report any violation of copyright.

The Act provides the right to institute Civil Proceeding before the Court; the court vested with such jurisdiction is Primary Court, District Court and Resident Magistrate Court or High Court depend with pecuniary jurisdiction as the term Court was defined under section 11 of the Written Laws Miscellaneous Amendment No.3 of 2019.[10] Such person may pray to the court to order injunction in order to prevent him to continuation of the infringement.[11] Another remedy is to order payment of any damages suffers in consequence of the infringement.[12] All these remedies are available for any infringement under the computer program where such case is instituted to the court of law.

Criminal Punishment; though the Written Laws Miscellaneous Amendments provides for the fines of twenty Million Shilling or thirty per centum for the value of the pirates copyright material or imprisonment for the term not exceeding three years.

1.3.2 THE ELECTRONIC AND POSTAL TELECOMMUNICATION ACT,

Under the Interpretation section define electronic Communication to mean as radio communication or the communication of information in the form of speech or other sound, data, text or images, by means of guided and unguided electronic magnetic energy.[13] Section 98 of the said Act imposes the duty of confidentiality of information upon license and section 99[14] of the Act prohibit disclosure of information without authorization. This provision is very important to the owner of computer software in sense that to some company has a password which will enable to open such computer program. Once third party disclose a certain information example password will amount to violation of provision of EPOCA.

Regulation 6 imposes punishment of fine and imprisonment where a person intercept, attempt to intercept any communication at any place in the United Republic of Tanzania.[15]

TCRA is regard to establish and maintain a central Equipment Identification Register (CEIR) with information on all devise that licenses use in their networks. Licenses must supply every subscribers number and its unique International Mobile Equipment Identity (IMEI) code. In line of that, the operator is obliged to maintain a sub-register of all the information submitted to the CEIR and to TCRA once every month.[16]

TCRA has developed Computer Emergence Response Team Regulations, though such regulation the TCRA developed what is called a computer Emergency Response Team (CERT).[17] The CURTIS role is to protect people against abuse and other risks related to ICT by responding to Computer emergence and dealing with security risks. These regulation require Internet services provides, telecommunications operators and other service providers to provide a secures environment against information security threats.

1.3.3 THE CYBER CRIMES ACT

Is penal statute and also fall under copyright law intended to protect against data abuse and violations.[18]The Act applies to any person regardless of nationality if the abuse or violation is committed using q computer system device or data located within Tanzania or directed against a computer system, device or person located in the Republic.

Section 4 criminalize to access or case a computer system to be accessed without permission.[19] Anyone who commits this offence will be liable to imprisonment for not less than a year or to a fine of not less than three million Tanzania Shillings.[20] It also an offence to intentionally and unlawfully remain in computer system or to continue to use a computer system after the expiration of the time which was allowed.[21]

Damage computer data; it is an offence for a person to alter or interfere computer data which cause computer to stop to work or denies access to computer such person found guilty the fine 10 million.[22]Section7 (2) impose punishment where a person transfer software data to any person in Tanzania or other jurisdiction. The fine for such offence is fine not less than twenty million shillings.

Also protection of property of another person[23]; impose the punishment where a person cause a loss of property to another person including computer data and when found guilty  the court shall convict him for term not less than seven years or twenty million shillings.

1.3.4 THE ELECTRONIC TRNSACTIONS ACT

The Electronic Transactions Act gives legal recognition to the use of electronic transactions to do business.  It has also allowed for the Government to interact with its citizens and to offer certain services by electronic means.  Although there are no direct and comprehensive provisions on privacy and data protection, there are some provisions which are relevant. One is the requirement that suppliers of goods and services by electronic means must disclose all information pertaining to themselves and their businesses, and the goods or services they are offering.  Before placing an order, the consumer must be allowed to review the transaction and have the discretion to withdraw from it.  Further, suppliers are prohibited from interfering with an individual’s privacy. They are also prohibited from sending unsolicited commercial communications unless the consumer consents to this. As such, it is a requirement under this Act that the sender must from the outset disclose his identify and the purpose of the communication, and the consumer should be given the option to opt out of the communication. The consent requirement is deemed to have been met where the contact details of the addressee and other personal information were collected in the following settings:

• by the originator of the message in the course of a sale or negotiations for a sale;
• when the originator only sends promotional messages relating to its similar products and services to the addressee;
• the originator offered the addressee the opportunity to opt-out and the addressee declined; and
• an opportunity to opt-out is provided by the originator to the addressee with every subsequent message.

Violation of these requirements is an offence punishable by a fine of not less than ten million Tanzanian Shillings or to imprisonment for not less than one year or to both fine and imprisonment.The disclosure of data for the purposes of a criminal investigation or the prosecution of an offence is dealt with in Section 32 of the Cybercrimes Act.[24]

 In such instances, a police officer in charge of a police station or a law enforcement officer of a similar rank may issue an order to any person in possession of such data compelling him or her to disclose it.  It may happen, however, that there is resistance from the party holding data of evidential value. Similarly, it may be impossible to obtain the data without the use of force. In these circumstances, the law enforcement officer may apply to court for an order of disclosure or preservation.

Section 22 of the Cybercrimes Act makes it an offence to intentionally and unlawfully prevent the execution of an order under the Act, as well as to fail to comply with such an order. On conviction, the penalty is a fine of not less than three million Tanzanian Shillings or imprisonment for not less than one year, or both fine and imprisonment. Then there are the interception provisions under the Postal and Electronic Communications (Investigation) Regulations. In terms of these Regulations, law enforcement officers have a mandate to obtain access to and intercept personal communication.  Rule 5 of these Regulations provides that the interception may be done by the Director-General of Tanzanian Intelligence and Security Service, or the Director of Criminal Investigations, upon obtaining a warrant from the Inspector General of Police. This warrant will serve as a disclosure order against any person with access to encrypted or protected information.[25] 

Apart from these two officials, any other person is allowed to intercept communication under Rule 5 of the Investigation Regulations under the following circumstances: if the person is a party to the communications; has the consent of the person who is sending it; is the person to whom the communication is sent; is authorized by law; or is a bona fide interception of communications for purposes of provision, installation, maintenance or repair of the communications service.[26]

1.4 CONCLUSION

The lack of a comprehensive statute as left many gaps in respect of protection of software. For example, among the laws discussed in this paper, there is no express provision on protection on software. What is clear is that there is a need for a comprehensive statute on software.

BIBLIOGRAPHY

READINGS

Garner. B. A., Black’s Law Dictionary, Thomson & West Publisher, 2004⁸

LEGISLATION

The Cyber Crimes Act, Act No.14 of 2015

The Constitution of the United Republic of Tanzania, 1977

The Written Laws Miscellaneous Amendment No.3 of 2019

The Electronic and Postal Communications Act, Act No.3 of 2010

CASES

Celtel Tanzania Limited v Commissikner General Tanzania Revenue Authority) Tax Appeal No.5 of 2011, Court of Appel of Tanzania (2019)

Kenya Commercial Bank Limited v Kenya Revenue Authority[2016] KLR

---

[1]B. A. Garner, Black’s Law Dictionary , Thomson & West Publisher, 2004⁸,361

[2]Section 4 of the Copyright and Neighboring Act [Cap 218 R.E 2002]

[3]Tax Appeal No.5 of 2011, Court of Appeal of Tanzania  (2019

[4]Section 3 of the Cyber Crimes Act, Act No.14 of 2015

[5]Section 3 of the Copyright and Neighboring Act [Cap 218 R.E 2002]

[6]Supranote

[7][2016] KLR

[8]Section 47(a) of the Copyright and Neighboring Act

[9]Ibid, Section 47(b)

[10]Ibid, Section 36

[11]Ibid, Section 36(b)

[12]Ibid, Section 36(c)

[13]Section 3 of the Electronic and Postal Communications Act, Act No.3 of 2010

[14]Idem

[15]Reg.6 of the Electronic and Postal Communication (Consumer Protection) Regulation GN.No.401 of 2018

[16]Section 84 of the Electronic and Postal Communications Act, Act No.3 of 2010)

[17]The Computer Emergence Response Regulations

[18]The Cyber Crimes Act, Act No.14 of 2015

[19]Ibid, section 4

[20]Idem

[21]IbidSection 5

[22]Ibid, section 7(1)

[23]Ibid, Section12

[24] Section 32 of the Cyber Crimes, Act No. 14 of 2015

[25] Rule 5 of the Postal and Electronic Communications (Investigation) Regulations,

[26] Ibid, Rule 5