AMENDMENTS TO COPYRIGHT AND FILM LAWS SET THE SCENE FOR CHANGE
There are in place, tougher penalties for copyright infringers and reforms to the films and stage plays industry in Tanzania following recent legislative amendments.
The Written Laws (Miscellaneous Amendments) (No 3) Act, 2019 amends several laws, including the Copyright and Neighbouring Relations Act, 1999 (the CNRA) and the Films and Stage Plays Act (the FSPA), among others. The amendments to the CNRA have eliminated jurisdictional peculiarities that pertained to copyright infringement claims; they have also enhanced protection for copyright owners by introducing tougher penalties against offenders. Similarly, the overhauling of the FSPA has introduced reforms to the films and stage plays industry.
The amendments were brought about to increase the Governments revenue collection. It has been noted that the arts and entertainment industry grew by 13.7 percent last year (the national growth rate was 7 percent according to the Ministry of Finance). So the amendments were put in place so that the Government can gain some revenue from national and international film investment. Furthermore, the amendments now allow the Government to use the video clips of the film or the whole film to promote Tanzania and the culture. This is in line with the Governments initiative to brand Tanzania as a top tourist destination and attract foreign investments (other examples include reviving Air Tanzania)
The following are the key aspects to the amendment of the CNRA.
Jurisdictional discrepancies eliminated
The definition of ‘Court’ under section 4 has been amended to mean a court of competent jurisdiction. Previously, ‘Court’ meant the District Court established under the Magistrates' Courts Act. This resulted in uncertainty with regard to jurisdiction, especially when a matter involved monetary claims. Under the Magistrate’s Courts Act, such claims were beyond the competence of the District Courts to try.
The case that settled the jurisdiction question was the High Court of Tanzania Civil Case no. 38 of 2011 between HAMISI MWINJUMA, AMBWENE YESSAYAH V. MIC (T) LIMITED. A claim of over TZS 2 billion, which would ordinarily be in the High Court’s jurisdiction, was struck out for want of jurisdiction and the Plaintiff had to institute the proceedings in the lower courts. The decision was contrary to normal rules of procedure because in any other case the lower court’s jurisdiction would have been limited to claims not exceeding TZS 100 million. The effect of the High Court ruling in that case is to single out copyright as a special category of suits that give District Courts an unlimited pecuniary jurisdiction over claims dealing with copyright.
This has resulted in the streamlining of the previous jurisdictional discrepancies between claims based on copyright and the rest.
Further protections for copyright owners
The amended CNRA extends the scope of the copyright owner’s rights and protection under section 9 by introducing a further right to benefit from a re-sale of copyright. Before the amendment, there was no recognition of such a right. Instead, the rights of a copyright owner appeared to cease at the moment the rights were assigned to a third party.
Further, the amendment introduces a new section 15A that enhances the rights of copyright owners. It provides that ’any person who intends to use any right protected pursuant to the provisions of this Act, shall be obliged to seek authorization from the copyright’s holder’. This obligation was implied in the overall scheme of the Act before the amendment but has now been expressly provided in the law, eliminating any uncertainty.
Rights of copyright owners have been further enhanced by imposing more severe penalties. The amendment to section 42 provides that an offence under the Act is punishable as follows:
- in the case of the first offence on a commercial basis, a fine of not less than TZS 20 million or 30% of the value of the pirated copyright material, whichever is higher, or imprisonment for a term of not less than six months but not exceeding three years or to both. (Prior to the amendment, the penalty for a first offence was a fine of not exceeding TZS 5 million or imprisonment for a term not exceeding three years or both, if the infringement was on a commercial basis.)
- in the case of each subsequent offence on a commercial basis, a fine of not less than TZS 30 million or 50% of the value of the pirated copyright material, whichever is higher, or imprisonment for a term of not less than 12 months but not exceeding five years, or both, in addition, the court may order compensation to the right holder. (Prior to the amendment, the penalty was a fine not exceeding TZS 10 million or imprisonment for a term not exceeding five years , or both, for each subsequent offence if the infringement was on a commercial basis.)
Compounding of offences
The amended CNRA now introduces the compounding of offences, which did not previously exist. Section 42A provides that where a person admits in writing that he has committed an offence under the Act, the offence may be compounded prior to commencement of proceedings in court and the person may be ordered to pay sums of money together with all reasonable expenses the Copyright Society of Tanzania ( COSOTA) may have incurred in connection with the offence. The person must also pay all fees and charges that would have been due where the action had been authorised under the Act. Further, once an offence has been compounded, the accused may raise the compounding as a defence if subsequently prosecuted for the same offence.
It is further provided that where sums of money are ordered to be paid pursuant to the compounding of an offence, such sums shall not exceed TZS 20 million.
Widening the functions of COSOTA
In section 47 of the amended Act, the functions of COSOTA have been extended to include the authority to maintain a register of contracts, among other things. This did not exist prior to the amendment.
The following are the key aspects to the amendment of the FSPA:
Reform of censorship boards
The amendment has re-named the Central Censorship Boards and Regional Censorship Boards and broadened the scope of their functions. Previously, the boards had one main function, which was to examine every film, and every poster or description thereof, submitted to it for approval, and to decide whether it should be approved for exhibition and if so, in what manner.
The Central Censorship Board and the Regional Censorship Boards have been re-named as the Tanzania Film Board and Regional Film Boards respectively. In addition to their original function prior to the amendment, the boards are now also required to:
- regulate film industry and stage plays, foreign and local motion pictures, practitioners and dealers of television, radio and stage plays, and production and performances of stage plays;
- monitor the quality of motion pictures and stage plays;
- license distribution, exhibition, motion pictures, stage plays’ exhibition venues, libraries, studios, production and distribution companies and individuals, online distribution and exhibition infrastructures;
- accredit, classify and register practitioners and dealers of motion pictures, television plays, radio plays and stage plays;
- coordinate and promote development of the film sector, local and international markets, motion picture festivals and awards, talent identification, talent promotion, activities and events related to film and stage plays;
- classify and certify motion pictures, video films and stage plays;
- advise the government and stakeholders on matters of or related to the film sector in Tanzania;
- solicit for opportunities and investments in motion pictures and stage plays;
- supervise and regulate professionalism, ethics and etiquette in the film industry and stage plays; and
- perform any other functions related to motion pictures and stage plays.
Introduction of accreditation and certification system
Section 15 of the FSPA has been amended to introduce an accreditation and certification system. Films will now be classified according to their suitability for audiences in terms of issues such as sex.
Requirements for production within the country
Specific requirements have been set for foreign production companies wishing to produce films in Tanzania. It is now a requirement that foreign production company or individual using Tanzanian scenes, content and locations for filming, advertising, or making a documentary or programme shall:
- submit raw footage to the Tanzania Film Board;
- acknowledge all physical locations used for filming
- submit a copy of the finished film, advertisement, documentary or programme;
- sign a prescribed clearance form before exiting Tanzania and submit this to the Board or any other authority appointed by the Board; and
- grant rights to the government of Tanzania to use content for the purposes of promoting Tanzania and its potential resources, tourism, photographic locations and cultural attractions through public broadcasts, cable programmes, sound or visual recordings or any other digital platform used by public broadcasters:
Any person who contravenes these requirements shall, upon conviction, be liable to a fine of not less than 5% of the production cost of the film, advertisement, documentary or programme.
It is now a requirement that every foreign film producer shall include a public liability insurance policy and insurance policy in every contract signed with actors and crew. Any person who contravenes this requirement shall, upon conviction, be liable to a fine of not less than 1% of the production cost of the film.
Profit returns for the Film Board
For every usage, sale and re-sale of content filmed in Tanzania by a foreign film producer, the Film Board shall be entitled to a prescribed benefit.
The Minister has been given powers to make regulations prescribing how such benefits should be determined, as well as the terms and conditions for acquiring producers’ filming permits issued under the Act.
The Minister may also make regulations prescribing the code of conduct and discipline, professional ethics and etiquette in the film industry and stage play.
In terms of copyright protection and the film and stage plays industry, it is clear that the scene has been set for significant change. While copyright owners can expect greater protection against infringement, the film and stage plays industry will be coming under increasingly close scrutiny and regulatory oversight.