Legal research proposal Sample + PDF


This is a legal research proposal sample. This sample of the legal research proposal will guide law students and lawyers in the course of conducting legal research and report writing.

Read also: How to conduct legal research and write your research report


AAA UNIVERSITY

FACULTY OF LAW

RESEARCH PROPOSAL

ON

ROLE OF COPYRIGHT AND NEIGHBOURING RIGHTS ACT IN PROTECTING OWNERS OF LITERARY WORKS IN DIGITAL ENVIRONMENT

BY

X SON OF Y

REGISTRATION NO. 111111/T.00

SUPERVISOR:  PROF. BBBB

A COMPULSORY RESEARCH PAPER SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE AWARD OF THE BACHELOR OF LAWS (LL.B) DEGREE OF THE AAAA UNIVERSITY

JUNE, 2022


LIST OF STATUTES

Constitution

The Constitution of the United Republic of Tanzania, 1977

International instruments

Agreement on the Creation of the African Regional Industrial Property Organization 1979

Berne Convention for the Protection of Literary and Artistic Works (1971)

Patent Cooperation Treaty, 1970

Universal Declaration of Human Rights of 1948

World Intellectual Property Organisation Performances and Phonograms Treaty, 2002

World Intellectual Property Organisation Copyright Treaty, 1979

Legislations

Copyright Ordinance, CAP 218

Digital Millennium Copyright Act (1998)

The Copyright and Neighbouring Rights Act [CAP 218 R.E 2002]

LIST OF ABBREVIATIONS AND ACRONYMS

ARIPO                        African Regional Industrial Property Organisation

CANRA                      Copyright and Neighboring Rights Act

CAP                            Chapter

CDPA                         Copyright Design and Patent Act

CERT                          Computer Emergency Response Team

Co.                              Company

Corp.                           Corporation

COSOTA                    Copyright Society of Tanzania

CURT                         Constitution of the United Republic of Tanzania

DMCA                        Digital Millennium Copyright Act

DRM                           Digital Rights Management

Ed                               Editor

ed.                               Edition

G.N.                           Government Notice

http                              hypertext transfer protocol

Ibid                             ibidem(in the same place)

ICT                              Information and Communication Technology

IP                                Intellectual property

IPRs                            Intellectual property rights

LL.B                           Lex  Legum Beccalareus

Ltd                              Limited

NEC                            Nippon Electricity Company

No.                              Number

P.                                 Page

Pvt                               Private

R.E                              Revised Edition

REG.                           Registration

TRIPS                         Trade-Related Aspects of Intellectual Property Agreements

U.S.A                          United States of America

UK                              United Kingdom

UNESCO                     United Nations Educational, Scientific and Cultural Organization

V                                  Versus

Vol.                             Volume

W.T.O                         World Trade Organisation

WCT                           WIPO Copyright Treaty

WIPO                          World Intellectual Property Organisation

www                           World Wide Web

LIST OF INTERNATIONAL INSTRUMENTS

Agreement on Trade-Related Aspects of Intellectual Property Right, 1994

Berne Convention for the Protection of Literary and Artistic Works, 1886

Directive on Electronic Commerce, Directive 2000/31/EC

Directive on Enforcement of Intellectual Property Rights, Directive 2004/48/EC

Directive on the Harmonization of Certain Aspect of Copyright and Related Rights in Information Society, Directive 2001/29/EC

European Convention on Cybercrimes, No. 1885 of 2001

WIPO Copyright Treaty, 1996

LIST OF LEGISLATIONS

Foreign Legislation

Copyright Designs and Patents Act, 1988 (U.K)

Digital Millennium Copyright Act, 1998 (U.S.A)

Domestic Legislation

Constitution of the United Republic of Tanzania, [CAP 2 R.E 2002]

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

Cybercrime Act, No. 4 of 2015

Regulations

Copyright (Licensing of Public Performances and Broadcasting) Regulations, GN No. 328 of October 2003

Copyright and Neighbouring Rights (Production and Distribution of Sound and Audiovisual, Recordings) 2006 GN No.18 of January 2006

Copyright and Neighbouring Rights (Registration of Members and Their Works) Regulations, GN No. 6 of January 2006

Electronic and Postal Communications (Computer Emergency Response Team) Regulations, G.N. No. 419 of December 2011

Electronic and Postal Communications (Licensing) Regulations, G.N No. 430 of December 2011

Electronic and Postal Communications (Telecommunications Traffic Monitoring System) Regulations G.N. No. 208 June 2013

LIST OF CASES

Exxon Corporation v Exxon Insurance [1982] RPC 69

NEC Corp. v. Intel Corp. (1989) 10 U.S.P.Q.2d 1177

Pastel Software (Pty) Ltd v Pink Software (Pty) (1991) Ltd 409

Torkington v Magee [1902] 2 KB

University of London Press v University Tutorial Press [1916] 2 Ch 601


CHAPTER ONE

BACKGROUND AND THEORETICAL INFORMATION

Introduction

This research will deal with the role of the Copyright and Neighbouring Rights Act[1](CANRA) in protecting the economic rights of owners of literary works in a digital environment.

It arises from the need of protecting the economic rights of owners of original literary works from online piracy and other related online illegal activities and a desire to consider whether CANRA recognizes and guarantees protection of economic rights of owners of literary works in a digital environment.

It is important in this research to define what is literary works and the digital environment. According to Black’s law dictionary[2] literary works mean “a non-audiovisual work that is expressed by verbal, numerical, or other symbols such as words or musical notation and embodied in some physical object.[3]”

In University of London Press Limited v University Tutorial Press Limited[4] Peterson J at p. 608 stated that “literary work cover work which is expressed in print or writing, irrespective of the question whether the quality or style is high.

The word “literary” seems to be used in a sense somewhat similar to the use of the word “literature” in political or electioneering literature and refers to written or printed matter. That does not say that anything written or printed is a literary work.” In Exxon Corporation v Exxon Insurance[5], it was held that a literary work is one that conveys information or instruction. Also in the case of Pastel Software (Pty) Ltd V Pink Software (Pty) 1991 Ltd 409 literary work was defined as any combination of letters and/or numerals that embody the results of a measure of intellectual effort or skill.

A digital environment is a simulated place made through the use of one or more computers, records or evidence of an individual’s interaction with a digital environment constitute their digital footprint[6].

Also, it is worthwhile to know the economic rights which are entitled to the owners of original literary works.

Economic rights are pecuniary benefits the owner of original literary work gets from his work. The owner has to derive fair and sufficient financial reward from the use of his work. Economic rights are exclusive rights of the author to authorize reproduction of the work, distribution of the work, rental of the work, public exhibition of the work, translation of the work, an adaptation of the work, public performance of the work, broadcasting of the work, and importation of copies of the work.[7]These rights can be transferred to another person by the author.[8]

With digitalization and the internet, literary works are highly affected by digital copyright violations for example through file-swapping, copying and pasting, file sharing, uploading and downloading, and other related online illegal activities, these activities keep the economic rights of owners of literary works at risk.

In response to that, CANRA under Section 44 legitimizes the application of technical means of protection and rights management information so as to allow owners of original literary works to protect their economic rights from digital copyright violations. According to this section, specifically under subsection 1 (c) read together with subsection 2, it is unlawful and it shall be assimilated to infringements of CANRA to remove or alter any electronic rights management information without authority.

This is necessary because in absence of technical measures, implementation of CANRA prohibitions is hard to archive on the global internet.[9]

Despite that response, CANRA does not have clear and specific provisions for the protection of exclusive rights of owners of literary works from digital copyright violations compared to traditional or analogy infringement where it provides for offenses and remedies for infringement.

Traditionally once original literary work is entitled to copyright protection, the author shall have the exclusive right to carry out or to authorize; reproduction of the work, distribution of the work, public exhibition of the work, translation of the work, an adaptation of the work, other communication to the public of the work and importation of copies of the work[10].

Therefore traditionally a person is termed to infringe copyright when direct or aid to conduct any of the acts above activities without authorization of the author. Any person who knowingly violates, or causes to be violated, the rights protected, commits an offense [11].

Also, it provides that any person whose rights under the Act are in imminent danger of being infringed or have been Infringed, may institute proceedings in the United Republic of Tanzania for an injunction to prevent the infringement or to prohibit the continuation of the infringement.[12]

Digitalization emerge to have upset the traditional means of copyright protection, as it leads to the new forms of copyright infringements as it supports the conversion of literary works which are hardcopy to softcopy, its allows illegal copying of original literary works without affecting their quality and makes the illegal copies to be distributed over networks.

Therefore there is a need for the CANRA to be adequate in protecting economic rights of owners of literary works in a digital environment.

Noteworthy that the protection of the property is a constitutional right. As it has been stated in The Constitution of the United Republic of Tanzania 1977[13](CURT) that

Every person is entitled to own property and has a right to the protection of his property held in accordance with the law and it shall be unlawful for any person to be deprived of his property for the purposes of nationalization or any other purposes without the authority of the law which makes provision for fair and adequate compensation[14].

This study will examine the adequacy of CANRA in protecting the economic rights of owners of literary works in a digital environment. It inspects the extent to which CANRA recognizes and guarantees protection of economic rights of owners of literary works in a digital environment.

Background to the Problem

Copyright is a property right that subsists (exists) in the various works, for example, literary works, artistic works, musical works, sound recordings, films, and broadcasts.[15]

In relation to literary work, in the case of NEC Corp. v. Intel Corp[16], it was stated that “for a particular literary work to be copyrightable, two requirements must be satisfied: the work must be “fixed in any tangible medium of expression,” and it must be “original”. In Tanzania, copyright protection began as soon as the existence of colonialists. It can be traced to the British era. The British copyright law is often seen as a gift that was bequeathed to colonial countries.

The Copyright Ordinance[17] was introduced as an extension of the United Kingdom (imperial) Copyright Act 1911. It was applied in colonial territories and was the model for most of the early copyright legislation in Commonwealth countries[18].

After the independence of Tanganyika, the Copyright Ordinance of 1924 was replaced by the Copyright Act No. 61 of 1966[19]which improved on copyright matters. The 1966 Act provides the automatic protection of copyright materials. Cinematographic, musical, and artistic works qualified for protection.

However Act No. 61 of 1966 had challenges that, it lacks provisions on criminal offenses and their sanctions, the term of copyright protection was short.[20]

Development of technology, absence of the copyright organization for the protection and management of copyright, an increase of copyright infringement activities, most often, involves a claim of improper copying or creation of a new work based upon the original, made Act No. 61 of 1966  not effective.

As the result, in 1999 CANRA was promulgated to repeal Act No. 61 of 1966. This Act was enacted to make better provisions for copyright and neighboring rights in literary, artistic works, folklore and for related matters.[21]

To protect the moral and economic interests of authors (creator) relating to their works, to provide protection for the expression of folklore, to protect the interests of performing artists, producers of cassettes and broadcasting organizations, to provide for civil remedies and criminal sanctions against infringers and pirates[22].

It introduced new provisions included, such as enhanced provision on criminal offenses and sanctions[23], protection for the expression of folklore[24], computer programs[25], phonograms and related rights[26]and composition of Copyright Society of Tanzania (COSOTA)[27]  which were not included in Act No. 61 of 1966.

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In addition to the traditional acts of infringement, the Act has also expanded the spectrum of infringing practices by faulting those who import or own contrivances, which may be used to facilitate copyright infringement[28].

In relation to digital infringement, CANRA legitimized the use of technical means of protection and rights of management information so as to enable the owners of literary works to safeguard their economic rights from digital copyright violations[29]. CANRA managed to adhere to the rules and principles of some conventions such as the Berne convention[30] and the TRIPS Agreement of the World Trade Organization[31]for example protection of computer programs and software.[32]

In the 2000s several regulations were made to ensure effective implementation of CANRA, it includes; The Copyright (Licensing of Public Performances and Broadcasting) Regulations[33] which deals with licensing of public performance and broadcasting of copyrighted works, as provided under Regulation 3 “that no person shall hold public performances or broadcasting a copyrighted work except under the license from the society”

The Copyright and Neighbouring Rights (Registration of Members and Their Works) Regulations[34], which deals with the registration of artistic work and membership of COSOTA, as provided under Regulation 3 that “author or another owner of the copyright may apply for membership of COSOTA.

The Copyright and Neighbouring Rights (Production and Distribution of Sound and Audiovisual Recordings) Regulations[35], which deals with the protection of sound recordings or audio-visual recordings, as provided under Regulation 2 that “A person shall not produce, distribute or import for distribution sound recordings or audio-visual recordings in Tanzania except under a license issued by the Copyright Society of Tanzania under these Regulations are referred to as the “Society”.

Nevertheless, contemporarily, there is no regulation that is made to ensure effective implementation of CANRA towards the protection of literary works in a digital environment.

Since the year of 1990s when Privatization and investment took the role, it gave away for the development of Information Technology as things like computers were highly engaged.

These technologies are both promising and potentially harmful to various parties interested in the use and the exploitation of works of authorship[36]and thus, enhance copyright infringement through the digital environment.

Activities such as caching, scanning, file-swapping, browsing, copying and pasting, downloading, and uploading of literary works, cause violation of the copyright owner’s exclusive rights, such as the right to make copies[37].

To control infringement of copyright in the digital environment, international organizations, directives, and several nations began to introduce in their binding legislation regulations aimed to increase protection of works and rights of their authors’ organizations in a digital environment.

An example of an international organization, treaties are WIPO Copyright Treaty (WCT). The provisions of the WCT relating to digital technology covers storage of works in digital form in an electronic medium, transmission on digital networks, limitations, and exceptions in the digital environment, and technological measures of protection and rights management information, Berne Convention the impact of digital technology on copyrighted works has been considered through Article 20.[38]

Also Directive on Electronic Commerce[39], Directive on Enforcement of Intellectual Property Rights[40] and Directive on the Harmonisation of Certain Aspect of Copyright and Related Rights in Information Society[41], was made in European Union so as to ensure proper regulation and enforcement of IPRs in the digital era.

United States of America (USA) enacted Digital Millennium Copyright Act, 1998 (DCMA) Title I of the DMCA contains, among other things, provisions to implement obligations concerning technological measures and rights management information and United Kingdom (UK) enacted The Copyright Designs and Patents Act, this law prohibits copying in relation to Literary (which include software), dramatic, musical, and artistic work, including reproducing the work in any material form which includes storage in any medium by electronic means[42]

To control digital copyright infringements in Tanzania, CANRA allows the application of technical means of protection and rights management information so as to enable owners of original literary works to protect their economic rights from digital copyright violations. It is unlawful and it shall be assimilated to infringements of CANRA to remove or alter any electronic rights management the information which was set by the owners of literary works towards the protection of their economic rights without authority[43].

Despite that response, CANRA does not have clear and specific provisions for control of online piracy and other related online illegal activities compared to international instruments and copyright laws of other jurisdictions like the USA and UK which respond to the digital copyright via lotions by including clear and specific provisions for control digital copyright violations.

Absence of clear and specific provisions for control of online piracy and other related online illegal activities in CANRA may renders the enforcement of the Act in a digital environment very difficult.

Statement of the Problem

Authors of original literary works shall be entitled to copyright protection for their works by the sole fact of the creation of such works [44]. In the case of the University of London Press v University Tutorial Press[45] it was stated that “The word “original” does not in this connection mean that the work must be the expression of original or inventive thought.

Copyright Acts are not concerned with the originality of ideas, but with the expression of thought, and, in the case of “literary work,” with the expression of thought in print or writing.

Due to the development of Information and Communication Technologies (ICTs) particularly digitalization, computerization and the internet, there have been various means on how original literary works can be copied or reproduced without affecting its quality, disseminated and obtained without authorization, for example through uploading or downloading literary works from the internet.

It becomes difficult for the owners of literary works to control dissemination or distribution of their works through the internet without law to provide for effective measures to protect their economic rights.

Digitalization, computerization and the internet facilitates rampant infringement of the economic rights of the owners of literary works which are conducted both offline and online environment. Mostly in offline environment infringement is done through copying, burning, scanning, distribution of literary works through flash disk and memory cards and any other similar means.

In a few instances infringement is also conducted through an online environment, it is done through file-swapping (peer-peer file sharing) whereby people can share literary works without permission from the owner.

In Tanzania the most applicable file swapping websites are; 4shared, Telegram, Mega upload, Media fire, Files tube, Rapid share and The Pirate Bay, also infringement via digital environment is conducted through, downloading, uploading, copying and pasting, and scanning of literary works.

Consequently, CANRA under Section 44 provides for the application of technical means of protection and rights management information so as to enable owners of original literary works to protect their economics rights from digital copyright violations, however, this section is not accommodated enough to ensure more effective protection and enforcement of CANRA in relation to the digital copyright infringement.

Therefore there is a need for the CANRA to be adequate in protecting the economic rights of owners of literary works in digital environment.

This study will examine the extent to which CANRA recognizes and guarantees the protection of economic rights of owners of literary works in a digital environment. The study further provides recommendations regarding the effective enforcement of CANRA in a digital environment.

Hypotheses of the Study

This research will base on the following hypotheses:

  1. The emergence of the digital environment and lack of digital copyright law facilitate rampant infringement of economic rights of owners of literary works
  2. CANRA is ineffective in protecting the economic rights of owners of literary works in a digital environment.

Objectives of the Study

General Objective

The general objective of this research is to explore the legal challenges in the protection of the economic rights of owners of original literary works in a digital environment.

Specific Objective

  1. To examine the extent to which CANRA protects the economic rights of owners of literary works in a digital environment
  2. To explore the effectiveness of CANRA in protecting the economic rights of owners of literary works in a digital environment.

Significance of the Study

  1. The study will be useful to the law-making bodies to restructure the copyright legislation to meet the contemporary situation of science and technology.
  2. This study will make the general public awareness of copyright issues.
  3. The study will as well serve as reference material for further studies on the same area.
  4. Furthermore, the study will enable a researcher to qualify for an award of bachelor’s degree of laws (LL.B) of AAA University 2022.

Literature Review

The issue of infringement of intellectual property rights via the digital environment has been discussed by various persons both from Tanzania and outside of Tanzania.

The researcher reviewed the existing literature in order to know how other writers have dealt with the problem at hand and to discover the existing gaps which are left by them so as this research to deal with those gaps. Also, the existing literature gave the researcher a direction as to where to go after getting the starting point.

Fujita A.K. (1996)[46] in her article provides that, the new technology of digitization in our present Information Age has upset the delicate balance created and maintained by copyright law between the rights of authors, users, and the industries that collect the money. There is no doubt that the technology of digitization will have a profound effect on copyright law.

She further states that digitization allows copying to be done quickly, cheaply, and easily, with no loss in quality, and then distributed to potentially millions of people in a few seconds.

Because of the new Information Superhighway, it can be done in the comfort of one’s own home with just a personal computer and a modem. Copyright holders have always been worried about new copying technology.

Photocopy machines, cassette recorders, and video recorders have all been thought to be a threat to copyright. Digitization allows a user to easily remove an author’s name from a work, substituting his own name, another’s, or none at all.

It allows a user to alter text, insert words, delete paragraphs, etc. Digitization allows a user to easily remove an author’s name from a work, substituting his own name, another’s, or none at all. It allows a user to alter text, insert words, delete paragraphs, etc.

She proposed that we must now determine how to write the laws to create the appropriate balance of author, user, and publishing rights. A major criticism of laws regulating private behavior in a digitized environment centers on enforcement. It is believed that the laws cannot be enforced without strict monitoring that would violate the privacy rights of users.

This literature discloses various problems which have been brought by digitalization, also it proposes that the resort should be made to the law, although it pinpoints that a law cannot be enforced without strict monitoring that would violate the privacy rights of users.

However, in his literature, the author did not cover the protection of economic rights of literary works in a digital environment. The researcher intends to use this literature to show the importance of the copyright law to be strict in monitoring that would violate the economic rights of owners of literary works.

Szczepańska, B. (2004)[47] in his paper stated that the copyright issue has gained additional significance in the context of the information society, the development of which we can witness where access to broadly understood media and means of public and direct communication plays a key role.

Using digital technology to record, make available, store, archive, and transfer works triggered the change in methods and scope of their exploitation. Apart from obvious and undisputable positive consequences of those changes, there are risks related to the infringement of copyright and neighboring rights on an unprecedented scale by using the protected property without the consent of authorized entities or by “manipulating” the content of the works distributed in digital format.

This literature tries to show that, piracy for many years has been a serious problem especially in the traditional way in which literary works and other copyrighted works are distributed in digital format.

That with the advent of digitization the situation is worse. However, in his literature, the author says nothing about the protection of literary works in a digital environment.

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The researcher will use it to show the importance of legal framework on protecting the economic rights of literary works in the digital environment and keep in pace with the development of new technology such as the internet and computer networks.

Mahingira, E. (2007)[48] in his paper states that, there is infringement and piracy of protected works. He points out the importance of IP in building a socio-economic positive growth of Tanzania by formalizing IP activities, having an IP Policy, and building up of the IP institution by the stakeholders of IP.

The author speaks generally about importance of IP activities and the importance of having an IP policy and institution dealing with IP without specifically concentrates on the protection of economic rights of owners of literary works in a digital environment. The researcher intends to use this paper since it supports the establishment of a system of protection which in turn will control copyright infringement in a digital environment.

Burgunder, M. (2007)[49] in his book states that, even if intellectual property protection is established by law overseas, it may be useless if the enforcement mechanisms are insufficient. It is one thing to state that something is wrong; it is quite another thing to do something about it.

This literature is useful in this research since it insists on the importance of sufficient enforcement of intellectual property protection. However, this literature does not specifically provide for enforcement of copyright law in protecting the economic rights of literary works in the digital environment, which will be covered in this research.

The researcher will use this literature to provide for an efficient copyright enforcement mechanism that will ensure the protection of the economic rights of owners of literary works in a digital environment.

Wangwe, S. (2009)[50] in his report notes that by 1966 the lack of effective intellectual property protection in Tanzania warranted significant improvement needing the adaptation and enlargement of legal, administrative and enforcement framework as well as human capacity.

He further observes that, although the legal framework and the necessary institutional framework for IP administration been established, the need for other IP implementing agents such as the police department, the customs office, and the judiciary needs adequate preparation in order to be able to curb the infringement of intellectual property rights.

Finally the author suggests   that extensive training is required to cause awareness of Intellectual field in general and put it into practice.

In his report, points out some administrative concerns and concentrates on the lack of effective IP protection in Tanzania.

He suggests for the importance of improving, adapting, and enlarging the legal administrative and enforcement as well as human capacity machinery for enforcement intellectual property protection in Tanzania. However, the author did not specifically discuss the issues facing copyright protection in the digital environment in Tanzania, particularly in literary works.

Therefore this research will use this literature to cover how legal and institutional frameworks will be outfitted so as to protect the economic rights of owners of literary works in a digital environment.

Mambi, A.J. (2010)[51] in his book points out that, the growth of the internet has had major implications for the treatment and protection of copyright materials and other related intellectual property rights that are published electronically.

He notes that one can clearly observe the difficulty faced by the intellectual property laws in Tanzania and other countries specifically copyright law-keeping in pace with changes in technology.

In his book specifically addresses the issue of difficulties on copyright protection on technological development which is the realm of this study, but he does not cover literary works. The research will use this literature to show the importance of copyright law to keep pace with the development of new technology such as digitalization and the internet.

Hargreave, I. (2011)[52] in his report states that IP law must adapt to change, digital communications technology involves routine copying of text, images, and data, meaning that copyright law has started to act as a regulatory barrier to the creation of certain kinds of new, internet-based businesses.

He also argues that the copyright regime cannot be considered fit for the digital age when millions of citizens are in daily breach of copyright, simply for shifting a piece of music or video from one device to another. People are confused about what is allowed and what is not, with the risk that the law falls into disrepute

He also pinpoints the reasons for supporting effective enforcement of IP rights by saying that a theme that connects all areas of IP is enforcement. IP rights cannot succeed in their core economic function of incentivizing innovation if rights are disregarded or are too expensive to enforce.

Ineffective rights regimes are worse than no rights at all: they appear to offer certainty and support for reliable business models, but in practice send misleading signals. Widespread disregard for the law erodes the certainty that underpins consumer and investor confidence. In the most serious cases, it destroys the social solidarity which enables the law abiding majority to unite against a criminal minority. These are powerful reasons for supporting effective enforcement of IP rights.

This report reveals that IP law must change to adapt digital environment situations and also insists on effective enforcement of IP rights.

However, it does not provide on how the law particularly copyright legislations, can be sufficient to protect owners of literary works in digital environment. The researcher intends to use this literature since it supports effective enforcement of IP rights and it shade the light on the need of changing the law so as to control the challenges brought by the development of science and technology.

Denton, A. (2011)[53] highlights that digital copyright infringement is ubiquitous. There are a number of technical approaches used by pirates to copy and share content. These techniques are increasingly sophisticated and have increasing scale and scope.

Industry is making efforts to work cooperatively to mitigate the risks and to help to enforce copyright. These efforts alone have clearly not managed to limit copyright abuse and there is an on-going debate on the role of different players in the ecosystem in enforcement.

This paper reveals how digital copyright infringement terrorizes copyright protection, it notes a number of technical approaches used by pirates to copy and share content and it tells that effort has been made to mitigate the risks.

However the literature does not cover on the issue of protecting owners of literary works in digital environment. The researcher intends to use this literature since it shows how the digital environment rampant copyright infringement and informs that effort has to be made so as to mitigate the risks.

Nyariki, D. et al. (2012)[54]  in their report notes that, another impediment to the development of creative industries is piracy, which is normally considered a serious challenge in developing countries. Piracy is because of the absence of adequate IP protection.

They argue that to strengthen and streamline the activities of the copyright industry, relevant policies should be put in place and existing policies should be reinforced to make them more effective in improving the operational efficiency of the industries. This will, in turn, encourage the development of the industries, by creating enabling environment for the government to harness the benefit that they provide, which will subsequently lead to greater recognition of their value in the creation of wealth.

This report is very important not only to this research but also to the government of Tanzania as it has pointed out various contributions of copyright-based industries to the economic growth.

It emphasizes that, the absence of adequate IP protection and proper policy would lead to the existence of unauthorized illegal works. However the issue of protection of copyright in digital environment, particularly economic rights of literary works is not covered. Therefore the research intends to use this study to cover that area, as it entails adequate IP protection and policy building.

Mwakaje, S. (2012)[55]in his report states that Tanzania does not have the national Intellectual Property Policy. The IP policy statements can be traced from national policies on industrial development, science, and technology, commerce, health, arts, and culture.

As the result, intellectual property policy statements are sometimes overlapping, contradictory and confusing. An obvious challenges is to coordinate these expertise and institutional organizations and agencies in enforcement of IP policy.

This literature reveals that, Tanzania does not have IP policy and the palpable challenge is how to coordinate expertise and institutional organizations and agencies in enforcing IP policy.

However the author does not cover how IP policy will be useful in the protection of owners of literary works in a digital environment. The researcher intends to use this report since it highlights the importance of having IP policy in protecting intellectual property rights.

Magalla, A. (2013)[56] in his research paper provides that the only problem here is the legal framework (Legislation). If the government would set new, efficient and sufficient principles, laws and regulations on the matter relating to information technology, then there would be no irregularities within it, and then the whole aspect intellectual property would be protected and promoted by the development of information technology.

The Act still it does not curter or gives legal framework governing the matters of information technology in Tanzania especially in intellectual property. He also says that, it is the duty of the government of the United Republic of Tanzania to ensure that its laws cope with the development of science and technology, and fully participates in intellectual property-specific legislation

He further claims that Tanzania is one among the country which is highly affected by copyright infringement through the internet.

There is no doubt that the CANRA does not have clear and specific provisions for management and control of online piracy and other related illegal activities, even though is a member of the Berne Convention for the Protection of Literary and Artistic Works and also ratified several multilateral instruments include World Intellectual Property Organization Conventions, 1967 (effective for Tanzania as of 30 December 1983); and Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) (Annex 1C of the Marrakesh Agreement Establishing the World Trade Organization), 1994 which have a bearing to the protection of intellectual property not to exclude computer programs or software.

He blames that the government has to know that, few Tanzanians are awakening now over the concept of intellectual property in the digital age and requires change for that. It is not enough to transform the society technology from analog to digital while the laws and the society are still in analog form.

He proposes that, at this moment Tanzania is in a good position to prevent or reduce any copyright infringements. We have good examples from various countries with such a piece of legislation.

Then what is the problem? Does that means the government encourages the infringements rather than preventing it? Are the efforts employed to prevent it sufficient enough? It is time for a change because the future is in our hands; CANRA must develop to meets the requirements of the development of science and technology, thing like online piracy through downloading and other electronic activities that may affect the literary and artistic works.

The author in his paper touch some issues which are most helpful to this research, he showed the weaknesses in the legal framework and insisted that the law must develop to cope with the development of science and technology which affect literary and artistic works, also he proposed that Tanzania has to take examples from other countries with legislation that respond to the development of science and technology.

However, the author did speak generally on the weakness of the law to protect intellectual property rights in the digital environment without specifically touch on the protection of economic rights of owners of literary works, which will be dealt with thoroughly in this research.

Ubena, J. (2015)[57] in his dissertation argues inter Alia that transformation from analog to a digital representation of data or information contributed to delivery of data and text in many different networks and it supported mass digitalization of copyrighted literary and artistic works.

Moreover, the internet and the emergency of the peer to peer (P2P) file sharing facilitated illegal copying, streaming, uploading, downloading, or generally sharing of copyrighted works. This raises a question of whether the traditional copyright law means for example banning or legal restriction of peer-to-peer file sharing is an effective way of regulating ICT innovation and uses.

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He further contends that the legislature reacted by enacting the law that criminalizes or bans peer to peer file sharing applications/technology that facilitates unauthorized sharing of copyrighted content. In addition, the law legitimizes the application of the Technical Measures of protection[58]example Digital Rights Management (DRM).

He argued that, despite the copyright balance achieved by the traditional statutory copyright safeguards, the translation of analog content into digital and general generally digitalization of literary and artistic work appears to have disturbed that copyright balance.

The author in his dissertation reveals some substances which are very supportive to this research; he showed the impact of digitalization and computerization in literary works and artistic work and how the law responded to that situation. However, author did not discuss the need for the copyright law to be more clear and specific so as to control digital copyright infringement which will be covered in this study.

Generally the researcher agrees that, the authors of the reviewed literatures states about the problems brought by the digital environment on intellectual property, the insufficient enforcement of the existing law to control those problems.

The authors also tried to propose some various measures to be taken by the government to curb the infringement of copyright through the digital environment. After a very critical analysis of the literatures, the researcher has discovered that, the issue concerning the role of CANRA in protecting the economic rights of owners of literary works has not been covered; it appears that the above literature speaks about copyrighted works generally without particularly touching literary works which will be the gist of this study.

Research Design and Methodology

Research methodology is a way to systematically solve the research problem. In it, we study the various steps that are generally adopted by a researcher in studying his research problem along with the logic behind them.[59]

This research will consist of information collected from library research as well as a field study. The research will be conducted by using various methods and approaches as elaborated in this part.

Research Design

This research will employ a Case Study Design, because it is a fairly exhaustive method, thus it enabled the researcher to focus his study deeply and thoroughly on different aspects of a research phenomenon.

This design will enable a researcher to board on different relevant methods of collecting data from specific area like COSOTA in order to collect relevant data in relation to the material condition of the problem itself.

The researcher will employ both primary and secondary methods in collecting data to enhance the in-depth analysis of the phenomena under the study so as to give more accurate results.

Library Research

Library research will be done so as to get relevant information concerning the topic, in order to build up more understanding to the problem, to get the theoretical information relating to the problem, also to know what has been addressed by other researchers so that should not repeat the same thing.

It will involve the collection of secondary data from books, research papers, newspapers, reports, brochures, articles, dissertations, journals, statutes, and electronic sources. This will be conducted in libraries specifically AAA University and ‘Home’ Regional library because all documents that will be reviewed are easily accessible from these libraries.

Field Research

This study will involve the collection of primary data relating to the problem. Field research will allow the direct interaction between a researcher and respondents, thus it will enable the researcher to collect information which is current and most relevant to the problem under the investigation, so as to prove or disapprove the existence of the problem regarding the hypotheses formulated.

Area of the Study

This study will be conducted in two geographical areas namely; ‘Home’ and ‘Away’. Because, in Home the researcher will be able to get the respondents including magistrates, advocates, police officers and state attorneys who have knowledge on the problem at hand. This will enable the researcher to get relevant and useful information concerning the problem.

In ‘Away’ the researcher was able to get respondents who are not available at ‘Home’ especially owners of literary works who are the victims of the digital copyright violations and COSOTA which is the institution deals with implementation of the copyright rights law in Tanzania.

Sample Population

For the purpose of this study, the researcher will collect data from; owners of literary works, because they are victims of infringement via the online environment, COSOTA because it established to implement the copyright rights law in Tanzania, the researcher specifically preferred Chief Executive Officer and Copyright Administrator, Head of Information and Communication Technology and head of legal unity in order to grasp the implementation of the copyright law in the digital environment, also researcher preferred magistrates, advocates, state attorneys  and law enforcers including police officers in order to grasp how CANRA has been interpreted and enforced when it’s come to the matters of digital infringement.

Sample Size

The study will target thirty-five (35) respondents to give opportunity and ensure good coverage of information. The sample was selected based on the population size, time, and financial factors. That is, Three (3) officers of COSOTA including Chief Executive Officer and Copyright Administrator, Head of Information and Communication Technology and Head of Legal Unity, seven (7) owners of literary works, six (6) magistrates, eleven (11) advocates, five (5) state attorneys and three (3) police officers.

Sampling Technique

The researcher will use the purposive sampling technique. This technique will enable a researcher to focus on a particular sample based on special knowledge of the research problem, which will be best to enable the researcher to prove or disapprove research hypotheses. This will be done by rejecting people who would be most likely not to contribute appropriate data, both in terms of relevance and depth.

Methods of Data Collection

Regarding to the nature of the problem, data will be collected through two methods, namely interview and questionnaire. The researcher preferred these methods because they are fair exhaustive means to acquire first-hand information concerning the problem so as to enhance profound investigation of the phenomena under the study. However, interviews will be the dominant method in terms of data collection.

Interview

An interview is basically an interaction, where questions are posed or a discussion takes place between two or more people with a specific purpose in mind.[60] This method is ultimate for providing first-hand information to the researcher. The interview was focused on; owners of literary works, magistrates, law enforcers including police officers, advocates and state attorneys who were available and willing to help the researcher to get direct and easily accessed information instantly. This method will involve direct contact with the respondents. The interview will be unstructured so as to allow flexibility of respondents and convenience of the researcher in accessing data.

Questionnaire

The researcher will also use a questionnaire in collecting primary data because the tool is good where new facts are to be found, but also it gives respondents’ liberty to use their own knowledge and reasoning.

The questionnaire will be suitable for respondents who are literate, for providing in-depth information on the matter. This method will focus on the respondents who are officers but they are unable to provide information instantly because their very busy or when it might be difficult for researchers to face them due to the nature of their offices especially officers from COSOTA. The researcher will use an open mixed questionnaire where the question set was neither closed nor open.

Data Presentation and Analysis Techniques

In this study, data will be presented in a descriptive way, because, this study mainly contains qualitative data, that is, data that deals with descriptions of information. Data will be analyzed by sampling and comparison.

Analysis shows how many people in terms of percentage approve or disapprove of the existence of problem in the light of formulated hypotheses. To clarify the respondents’ answers the analysis demonstrates the most useful statements made by respondents in response to the hypotheses. Also, researcher notes down the number of people who have the same views and those with differing ones.

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[1] [CAP 218 R.E 2002] [2] Garner, B.A (Ed) (2004) Black’s Law Dictionary  8th ed. West: West Publishing Co. p. 1637

[3]According to Section 5 (2) (a-b) of  CANRA literary works shall include books, pamphlets and other writings, including computer programs, lectures, addresses, sermons and other works of the same nature

[4] [1916] 2 Ch 601

[5] [1982] RPC 69

[6]John S. B. and Paul D. (2000) The Social Life of Information,  Boston: Harvard Business School press, at p.13

[7] Section 9 (1) (a)-(j) of CANRA

[8] Section 16 (1)

[9] John, U. (2015) How To Regulate Information And Communications Technology? A Jurisprudential Inquiry Into Legislative And Regulatory Techniques, Stockholm: Jure p.187

[10] CANRA section 9 (1)

[11] Ibid section 42

[12] Ibid section 36.-(l) (a)

[13] [Cap. 2 R.E 2002] [14] Article 24 (1) and (2)

[15] David I. Bainbridge (2009). Intellectual Property, 7th  Edition, Pearson Longman, Ashford Colour Press Ltd, Gosport, Pp.5 and 31

[16](1989) 10 U.S.P.Q.2d 1177

[17] Cap 218 of 1st August, 1924

[18] Julien H. (2009). Introducing Copyright: A Plain Language Guide to Copyright in the 21st Century,Vancouver: Commonwealth of Learning, p.5.

[19] Came into operation on 1st October 1967

[20] Section 4 (2) (i)-(iv) (3).

[21]  Under Section 5(1) it provides for exclusive right to authors of original literary and artistic works

[22] Ibid Section 2

[23]Ibid  section 42

[24] Ibid section 24

[25]Ibid  Section 5

[26] Part IV

[27] First Schedule para 1

[28] Part. VI  section 44and 45

[29] Section 44

[30]The Berne Convention for the Protection of Literary and Artistic Works of 9 September 1886 as last revised at Paris on 24 July 1971 and amended in 1979. Available at www.wipo.org.  Retrieved on 6th September 2014.

[31]Agreement on Trade Related Aspects of Intellectual Property Rights, April 15 1994.

[32] Under Sections 4 and 5 (2) (a) CANRA

[33] GN No. 328  of  October , 2003

[34] GN No. 6 of  January , 2006

[35] 2006 G.N No.18 of February  2006

[36]George C. and Marybeth P. (2006).The Challenge of Copyright in Digital Age: U. S. Department of State Bureau of International Information Programs Focus on Intellectual Properties Rights, P. 50

[37] Vakul S. (2011). Information Technology-Law and Practice, 3rd ed. New Delhi: Universal Law  Publishing Co.Pvt. Ltd., P.466.

[38] Berne Convention for the Protection Of Literary And Artistic Works, 1886

[39] Directive 2000/31/EC

[40]Directive 2004/48/EC

[41]Directive 2001/29/EC

[42]Under section 17 (2) and (6)

[43] Section 44 (1) c and  (2)

[44] Section 5(1) of CANRA

[45] [1916] 2 Ch 601

[46] The Great Internet Panic: How Digitization is Deforming Copyright Law, Journal of Technology Law and Policy, Vol. 12, retrieved from http://jtlp.org/vol2/fujita.html on 19th June 2015

[47]“Digital is not different” – copyright in digital environment, retrieved from http://www.iatul.org/doclibrary/public/Conf_Proceedings/2004/Barbara20Szczepanska.pdf  on 5thJuly 2014

[48]Building Intellectual Property Institution In Tanzania: Paper presented at The Intellectual Property High Level Meeting Kilimanjaro – Kempinsiki

[49] Legal Aspects of Managing Technology,4th  ed. Thomson/West Eagan, MN: United States of America at p 27

[50] Case Study Report on Institutional Capacity in Intellectual Property Policy, Administration and Enforcement; Economic and Social Research Foundation: Dar es Salaam

[51] A Source Book for Information and Communication Technologies and Cyber Law in Tanzania and East Africa Community, Mkuki na Nyota Publishers: Dar es salaam at p.198

[52]Digital Opportunity; A Review of Intellectual Property and Growth, retrieved from  http://www.ipo.gov.uk/ipreview-finalreport.pdf  on 28th May  2014

[53]Intellectual property rights in today’s digital economy, Discussion paper, retrieved from http://www.itu.int/ITU-D/treg/Events/Seminars/GSR/GSR11/documents/05-Intellectual-property-E.pdf  on May 28th  2014

[54] The Economic contribution of Copyright Based Industries in Tanzania,  Report for World Intellectual Property Organization (WIPO) retrieved from http://193.5.93.81/edocs/pubdocs/en/copyright/1041/wipo_pub_1041.pdf  on 01 March 2015

[55]“National Study on Intellectual Property and Small and Medium Sized Enterprises in Tanzania  The work has been commissioned by the World Intellectual Property Organization (WIPO) under the WIPO Development Agenda Project

[56]  The Impacts of ICT Evolution on Copyrights Protection in Tanzania, Research report; Tumaini University: Iringa  retrieved from http://s3.amazonaws.com/academia.edu.documents/31213291/EFFECTS_OF_ICT_IN_COPYRIGHT-libre.pdf?AWSAccessKeyId=AKIAJ56TQJRTWSMTNPEA&Expires=1404253519&Signature=wVOBaWZ4hCHwJW4NKuK2oWM%2FvXs%3D  on 2ndJuly  2014

[57] How To Regulate Information And Communications Technology? A Jurisprudential Inquiry Into Legislative And Regulatory Techniques, Stockholm: Jure

[58] Section 44 of CANRA

[59]Kothari, C.R, (2004) Research Methodology: Methods and Techniques, 2nd Revised ed. New Age, p.9

[60] Majamba H. I. (2009) Fundamental of Legal Research: A Law Student’s Companion, Draft for Students at Law School

Isack Kimaro

Editor-in-chief and founder of sherianajamii.com. Holder of Bachelor of Laws (LL.B) from Mzumbe University and Post Graduate Diploma in Legal Practice from the Law school of Tanzania. Lawyer by profession and blogger by passion.

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