SOKOINE UNIVERSITY OFAGRICULTURE

COURSE: FUNDAMENTALS OF INTELLECTUAL

PROPERTY

(IRM 201)

(Semester 3: 2020/2021)

TOPICS: Intellectual Property in Tanzania

Instructor: Prof. M. J. F. Lwehabura

Intellectual Property in Tanzania

1.0 Introduction

The range or scope of intellectual property is very wide, and cuts across all economic sectors. In
general terms, intellectual property may be defined as a cluster of exclusive rights offered to
creations of the human mind. According to the WIPO, intellectual property covers the literary,
artistic and scientific works, performances of performing artists, phonograms, and broadcasts;
inventions in all fields of human endeavor; scientific discoveries; industrial designs; trademarks,
service marks, and commercial names and designations; protection against unfair competition;
and “all other rights resulting from intellectual activity in the industrial, scientific, literary or
artistic fields. Intellectual property would thus protect a music composer for his piece of music, a
manufacturing company for its trademarks, formulas and solutions, a technology company for its
technological innovations and designs, a university faculty for its research, and a particular
community for its customs and cultures.

2. The legislative framework for intellectual property in Tanzania

The legislative framework for intellectual property in Tanzania has its roots to the colonial times.
At independence, Tanzania inherited most of the colonial laws, including those on intellectual
property rights, which by and large were a reflection of British system. In order to respond to the
needs of the new situations, most of colonial laws were repealed and new pieces of legislation
were enacted to carter for the new realities and operating frameworks.

For the time in moment, with the exception of the Industrial Designs Ordinance, which is still
British, other laws on intellectual property are post‐independence. However, a review process is
underway to enact a law that will accommodate and combine all industrial property laws to be
known as the Industrial Property Act. Until then, the legislative framework in Tanzania for
intellectual is based on three major legislation

 Trade and Service Marks,

 Patents
 Copyright and Neighboring rights.

These legislations are being administered by different authorities, which are given mandates on a
particular legislation
 Vice President’s Office ‐ deals with CBD (Convention on Bio‐Diversity (CBD))
 Ministry for Industry and Trade ‐ deals with the TRIPS Agreement;
 Ministry of Agriculture and Food Security – deals with the Plant Breeders’ Protection;
 Business Registration and Licensing Agency (BRELA) ‐ deals with Industrial Property;
 Copyright Society of Tanzania (COSOTA) – deals with Copyright and Related Rights;
and
 Office of the Registrar General, Zanzibar ‐ deals with all IP legislation in Zanzibar.
3. Other IP participants

Also forming part of the IP framework are the enforcing agencies and stakeholders:
 Judiciary
 Customs
 Fair Competition Tribunal
 The Fair Competition Commission
 Police
 Individual IP Institutional arrangements: UDSM, Open University, SUA etc

4. Industrial Property Laws

The industrial property laws are those laws that carters for protection of intellectual property
through: trade and service marks, patents, industrial designs, trade secrets, and geographical
indications. In Tanzania, Business Registrations and Licensing Agency, (BRELA) is responsible
for administration of Industrial Property
4.1 Trade and Service Marks

In Tanzania Mainland matters pertaining to trade and service marks are governed by the Trade
and Service Marks Act 1986 , Cap 326 [Revised 2002]. This is an Act to provide for the
registration, and protection of trade and service marks and for related matters. It set out general
guidelines on the administration of the trade and service marks.
The Act establishes the office of registrar of trade and service marks who shall have all the
powers conferred under the Act11. The registrar of trade and service marks is also vested with
the mandate to administer the Act. For an elaborate understanding, the Act must be read together
with the Trade and Service Mark Regulations, 2000 promulgated under the Government Notice
No. 40 of 2000. The core ideal of the Act is to protect owners of marks from untrustworthy
competitors who would prefer to take advantage of established business reputation of marks of
other competitors.

4.2 Patents

The governing law on matters of patents is the Patents Act 1987, Cap 217 [Revised. 2002]. The
thrust of the Act is to promote invention, innovation and facilitation of technology acquisition
through the grant and regulation of patents, utility certificates and innovation certificates.

The Act provides a framework through which:

 inventors are allowed to claim exclusive rights over their inventions by applying for a
patent, hence protecting them from others using the inventions without their prior
permission
 In exchange for protection, inventor is under the obligation to make a full disclosure of
his/her invention such that upon reading it, others in the same field of practice may grasp
the sense and applicability of the invention.
 The duration of protection is 20 years
  Patents Act No.1, 1987, as amended by Acts Nos. 13 and 18 of 1991
 Deals with inventions

4.3 Protection of Industrial Designs

Industrial designs are protected under the United Kingdom Designs (Protection) Ordinance
Chapter 219. The on‐going review seeks to merge the industrial designs provisions within the
current Patent Act Cap 217 by adding four sections (i.e. Ss.76‐79). Until such amendments to the
Patents Act becomes enforceable and the UK Designs (Protection) Ordinance is repealed, the
controlling legislation will continue to be the UK Designs Act.

4.3.1 Trade and Service Marks

Trade and Service Marks Act
In Tanzania Mainland matters pertaining to trade and service marks are governed by the Trade
and Service Marks Act 1986, Cap 326 [Revised. 2002]. This is an Act:
 to provide for the registration, and protection of trade and service marks and for related
matters.
 Setting out general guidelines on the administration of the trade and service marks.
 Establishment of the office of registrar of trade and service marks with all the powers
conferred under the Act
 Vesting the registrar of trade and service marks with the mandate to administer the Act.
For an elaborate understanding, the Act must be read together with the Trade and Service
Mark Regulations, 2000 promulgated under the Government Notice. No. 40 of 2000.

4.3.2 The Merchandise Marks Act Cap 85 [Revised. 2002],

This is an Act to control the use of marks and trade descriptions in relation to merchandise
(Products/goods) and other related marks. It is particularly designed to prevent the growing
business of counterfeit products by empowering the Chief Inspector to carry out raids, impound
and destroy suspected counterfeit goods and conduct summary proceedings against the alleged
sellers or perpetrators of counterfeit business in Tanzania.

4.4 BRELA

Business Registrations and Licensing Agency (BRELA) is a Government Executive Agency

established under the Government Executive Agencies Act No. 30 of 1997.
It was established on the 28th of October, 1999 by Government Notice No. 294 A published on
the 8th October, 1999 and it was officially inaugurated on the 3rd December, 1999.
BRELA’s roles include the following:
1. To administer companies and business names laws.
2. To regulate business by administering business and industrial licensing laws.
3. To administer intellectual property laws.
4. To encourage and facilitate local and foreign business investment.
5. To stimulate scientific and technological inventiveness and innovation and encourage
technology transfer.
6. To protect the development of creativity in artistic, literary works, and expression of
folklore by protecting such work in conjunction with rights owners.

5. Protection of Copyrights

The controlling legislation on matters of copyright in Tanzania mainland is The Copyright and
Neighbouring Rights Act, No.7 of 1999
The Act was enacted to make better provisions for copyright and neighboring rights in literary,
artistic works, folklore and for related matters. Similar to other IP legislation, the Act grants
exclusive right to the authors of literary and artistic works which are original and posses a
creative spark.
The duration of protection of copyrightable works is, in the case of natural person, life of the
author plus fifty years. In the case of a legal person, or pseudonymous works, the duration of
protection is fifty years from the date of publication.
One of the outstanding features of the Act is that it has introduced a collective management
framework for matters of copyright administration. A duly established body known as Copyright
Society of Tanzania (COSOTA) is established under the Act with the following mandates:

5.1 Copyright Society of Tanzania (COSOTA)

This is a statutory body set up by the government of Tanzania. Formally COSOTA was under the
Ministry of Industry and Trade but shifted to the Ministry of Information, Culture, Arts and
Sports . It was established under Section.46 of the Copyright and Neighboring Rights Act, No. 7
of 1999, the Copyright Society of Tanzania is vested with power to administer the Copyright
Act.

Under Sections 9 and 11 of the Copyright and Neighboring Rights Act NO. 7 of 1999, the
copyright owner’s rights are classed into two categories:

 Economic rights and

 Moral rights.

(i) Economic rights

Under economic rights, as the term implies, the copyright owner has a right to claim a
share of the money that is derived, directly or indirectly, from the public use of his works,

(ii) Moral rights

Moral rights, on the other hand, entitle the copyright owner, among other things, to claim
authorship of the work, object to any distortion, mutilation or other modification of the
work.

5.1.4 Functions of COSOTA

Under Section 47 of the Copyright and Neighboring Rights Act, No. 7 of 1999 the functions of
the society are:-

(a) To promote and protect the interest of authors, performers, transistors, publishers and in
particular to collect and distribute any royalties or other remuneration accruing to them in
respect of their rights;

(b) To maintain registers of works, productions, and associations of authors, performers,

translators, producers of sound recordings, broadcasters and publishers;

(c) To publicize the rights of owners and give evidence of ownership of these where there is
a dispute or an infringement;

(d) To print, publish, issue or circulate any information reports, periodicals, books,
pamphlets, leaflets, or any other material relating to copyright, expressions of folklore
and neighboring rights;

(e) To advise the minister on all matters under the Act.

6. The Protection of New Plant Varieties (Plant Breeders' Rights) Act No. 22 of 2002

Under the Patents Act, life forms (which include plants) are excluded from the subject matter of
patent protection. However, under the framework of TRIPS Agreement, Member States are
allowed to devise suitable frameworks so as to protect some life forms which are of critical
interest to their countries. Countries may thus devise a sui generis system to carter for such
protection.

It is against this background and the further incentive that was provided by the Convention on
Bio‐Diversity (CBD) and the International Union for the Protection of New Varieties of Plants
(UPOV) that Tanzania Mainland enacted the Protection of New Plant Varieties (Plant Breeders’
Rights) Act 22, 2002.

 The Act establishes the office of the Registrar of Plant Breeders Rights under the Ministry of
Agriculture, Cooperatives and Food Security. In addition, the Act provides for a framework
through which new plant varieties can acquire protection and the rights..

7. Fair competition

7.1 The Fair Competition Act

In order to ensure that trade and business in Tanzania are practiced fairly, Tanzania introduced
Fair Competition, Act No. 8 of 2003 which became effective on 12th May 2004.
The new Act, among other things, provides for the establishment of the Fair Competition
Commission (FCC), the Fair Competition Tribunal (FCT) and National Consumers Advocacy
Council (NCAC).

This is an Act to encourage competition in the economy by prohibiting restrictive trade practices,
regulating monopolies, concentrations of economic power and prices, to protect the consumer
and to provide for other related matters.
The Act establishes a:

 Fair Competition Commission (FCC) and

 Fair Competition Tribunal (FCT)

to oversee, on among other things, unfair trade practices which include the curbing of
importation and selling of counterfeit products in Tanzania. In its function, the FCC and FCT
may invoke provisions of other laws including the Merchandize Act, Cap 85.

8 External links on IP

Tanzania is a member to a number of External links on IP issues

8.1 International conventions

 Paris Convention for the protection of Industrial Property.

 World Intellectual Property Organization (WIPO).
 Berne Convention for the Protection of Literary and Artistic Works
 PCT-Patent Cooperation Treaty
 World Trade Organization
 Agreement on Trade-Related Aspect of Intellectual Property Rights[TRIPs]
 Nice Agreement Concerning the International Classification of Goods and Services for
the Purposes of Registration of Marks, 1957 as amended in 1979.
 Marrakesh Agreement Establishing the World Trade Organization of 15 April 1994

8.2 Regional Organizations

Tanzania is also a member to;

 The Africa Regional Intellectual Property Organization [ARIPO] and is a signatory to

various Protocols administered by ARIPO:
o The Harare Protocol on Patents and Industrial Designs
o The Banjul Protocol on Trade and Service Marks

8.3 Benefits of external links

 Single application covering member countries according to choice

  Cost and time saving
 Avoidance of unnecessary competition
 Control of IP in a large area

9. Ongoing Initiatives

 i)National IP strategy/plan
 It is a plan to stimulate IP innovation, fully utilization of IP, legally protect IPRs
and scientifically administrate IP, implementing the National Intellectual Property
Strategy and to energetically improve IPR creation, utilization
(commercialization)

 Initiatives by BRELA/WIPO
- organized a workshop aimed at introducing the concept of IP Strategy, articulating the
importance of IP strategy, helping in identifying the IP assets with the aim of enabling the
country to draft a National IP Strategy/Plan

 Review of Industrial Property laws:

 The aim is to have a single legislation with various chapters of current laws under one
roof and will also be TRIPS compliant.
 The new Industrial property law will introduce the protection of Geographical Indication.
 Branding strategy: This strategy will enable owners of IP assets to benefit by getting the
real value of their products

10 IP Challenges

 Lack of adequate knowledge on Intellectual Property

 Lack of effective Intellectual Property policy
 Inadequate capacity of enforcing agencies
 Lack of inter institutional IP coordination and information exchange

11. Conclusion

• IP strengthening in Tanzania requires:

• Collective cooperation of all institutions dealing with Intellectual Property.
• Those institutions are Intellectual Property Offices, Customs, Fair Competition
Commission, Plant Breeder’s Rights Office, R&D Institutions including the Universities,
Judiciary, Police and their respective Ministries as policy makers.
• Doing this will enable:
o motivation in innovativeness and creativity
o protecting the well being of consumers.
o technical and economical advancement of country
12. Intellectual Property in Zanzibar

Under the Government of United Republic of Tanzania, Intellectual Property is not a Union
matter. In this regard Zanzibar has some of its own organs.

12.1 Copyright

In Zanzibar, the controlling legislation is the Zanzibar Copyright Act of 2003. The Act has
established the Copyright Society of Zanzibar (COSOZA) with functions and mandates similar
to those of COSOTA. The office of COSOZA is under the Registrar General which is under the
Attorney General’s Chamber of Zanzibar.

As part of the United Republic of Tanzania, Zanzibar is a member of the Berne Convention and
the WTO/TRIPS.

The law provides for copyright in respect of original intellectual creations in the form of literary
and artistic works, including:

 books, pamphlets, articles, scientific and artistic writings and other writings, including
computer programs
 speeches, lectures, addresses, sermons and other works
 dramatic and dramatic-musical works, choreographic works, pantomimes, and other
works created for stage productions
 musical works
 audiovisual works
 works of architecture
 works of painting, drawing, sculpture, engraving, lithography and tapestry and other
works of fine art
 photographic works
 works of applied art
 illustrations, maps, plans, sketches and three-dimensional works relative to geography,
topography, architecture or science.

Derivative works shall also be protected, including:

 translations, adaptations, arrangements and other transformations of works

 collections of works, compilations of data (databases), collections of expression of
folklore.

Excluded from protection are:

 ideas, procedures, systems, methods of operation, concepts, principles, discoveries or

mere data
 official texts of a legislative, administrative or legal nature.
12.2 Trade Marks

Zanzibar’s Business and Property Registration Agency (BPRA)

As part of the United Republic of Tanzania, Zanzibar is a member of the Paris Convention,
ARIPO (Banjul Protocol), the Nice Agreement and the WTO/TRIPS.

Provision is made for the registration of trade marks for goods and services, for collective marks
and for certification marks.

12.3 Patents

As part of the United Republic of Tanzania, Zanzibar is a member of the Paris Convention,
ARIPO (Harare Protocol), the PCT, and the WTO/TRIPS.

Tanzania comprises two countries, ie Tanganyika and Zanzibar. Patent protection must
separately be obtained in each territory. In what follows, the securing of patent protection in
Zanzibar is dealt with.

Patent protection is obtainable in Zanzibar via a national filing or via an ARIPO application
designating Tanzania. Unlike Tanganyika, Zanzibar has not yet recognised the Harare Protocol
(which regulates patent and design filings in ARIPO) in its national laws. Accordingly, it seems
uncertain that enforceable rights will be obtained in Zanzibar via an ARIPO application
designating Tanzania.

Unlike Tanganyika, Zanzibar has also not introduced provisions in its law to recognise and
provide for PCT applications. Although Zanzibar is a member of PCT, it is not clear whether
valid patent protection could be obtained via a PCT application.

12.4 Designs

As part of the United Republic of Tanzania, Zanzibar is a member of the Paris Convention,
ARIPO (Harare Protocol), and the WTO/TRIPS.

Although Zanzibar has enacted legislation (as part of its Industrial Property Act of 2008) to
provide for the registration and protection of industrial designs, it appears that regulations to
implement this legislation have not yet been promulgated. According, it is currently not possible
to obtain design protection by way of a national filing.

Since Zanzibar is a member of ARIPO, the registration of a design may be effected via an
ARIPO application designating Tanzania. However, in the absence of a duly implemented
national system, it is not clear whether enforceable rights will be obtained.
As indicated above, it does not seem that a national design filing is possible at the time of
writing. An ARIPO application designating Tanzania may be a way of obtaining protection,
although this is not clear.

12.5 Plant Breeders' Rights

As far as could be determined, no separate legislation on plant breeders’ rights or other sui
generis protection for plants is available in Zanzibar. In as much as Zanzibar is part of the United
Republic of Tanzania, it is expected that the protection under the New Plant Varieties (Plant
Breeders’ Rights) Act no 22 of 2002 would also apply in Zanzibar.