Liability of Cyber Intellectual Property,

Competition Law and Competent Authority in

solving Cyber Disputes Relating to Intellectual

Property Rights

Prepared by

Asherry Magalla

Digitally signed by Asherry Magalla

DN: cn=Asherry Magalla gn=Asherry Magalla c=Tanzania,
United Republic Of l=TZ e=magallajr@gmail.com
Reason: I am the author of this document
Location: Dar Es Salaam-Tanzania
Date: 2015-10-20 14:08+03:00


LL.B Degree Holder at the University of Iringa (Formerly known as
Tumaini University Iringa University College) 2009-2012, Masters
Holder in Information, Communication and Technology Law at the
University of Iringa 2012-2013. Member of Non-Governmental
Organization NOLESA (The Noble Legal and Social Organization
(Association)). Articles and Legal Papers Author at academicians
website www.academia.edu, and
http://www.researchgate.net,
http://www.researchgate.net/ Consultant on legal issues of ICT.
Contact details, email, magallajr@gmail.com

1
Copyright © 2015 Asherry Magalla. All rights reserved.
No part of this publication may be reproduced or
transmitted in any form or by any means, electronic or
mechanical, including photocopying, recording, or any
information storage and retrieval system, without
permission in writing from the publisher. Details on how
to seek permission, further information about the
Publisher‟s permissions and other arrangements can be
obtained through his email, magallajr@gmail.com
This paper and the individual contributions contained in
it are protected under copyright by the Publisher (other
than as may be noted herein).

2
Abstract.

You are about to start an important journey.

Recently, nations depend more in cyber networks to

bring national prosperities, and provide government

with various services.1But these networks intrude,

destruct and attack our property, privacy, economy,

social life in a way which is harmful.

This paper presents important issues on the what, when,

where, who, which and how are the Liabilities of

Intellectual Property in the Cyber Space, the reaction

of competition laws on intellectual property disputes in

the cyberspace, and Competent Authority in solving

the disputes. The paper consists of four parts in Romanic

Numbers.

1UnitedNations 199, see also social learning theory and moral

disengagement analysis of criminal computer behaviour: an
exploratory study by Marcus, K. R. 2001.

3
The attempt here is simply to familiarize the reader with

a careful understanding of the term Liability, history,

and types of Liability and how these have been

affected in the Information Age.

In Part II, one has to know the concept of Intellectual

Property; this will include meaning, background, types

and their Liability in Information Age.

Part III will explain on Uncompetitive Behaviours,

especially on Competition Liability and Competent

Authority dealing with various competition disputes

involving Intellectual Property in Information Age.

And finally the Personal Assessment basically in

Tanzanian Laws in respect to intellectual property and

competition in Information Age (Part IV).

4
PART I: THE UNDESTANDING OF THE CONCEPT LIABILITY.

1.0 Introduction.

“There are terrible people who, instead of

solving a problem, bungle it and make it more

difficult for all who come after. Whosoever

can’t hit the nail on the head should, please,

not hit it at all.”2

–Friedrich Nietzsche

The above quotation entails that, if a person does not

have ability to overcome a certain situation which act

as a hindrance or put someone in disadvantages then

one must not try to solve it. In one way or another, it

tries to explain the meaning of liability, the act of being

2Friedrich Nietzsche, Seventy-Five Aphorisms from Five Volumes,

The Wanderer and His Shadow, No. 326, reprinted in Basic Writings
of Nietzsche 165–66 (Walter Kaufmann trans., First Modern Library
ed. 1968) (1880).

5
responsible for the harmful occurred to a person when

trying to overcome a situation.3 However, liability it is

not only about the act and responsibility but also

omission.

1.1 The Meaning of Liability (What is Liability?)

The term has different meanings according to the

situation and circumstances in which the act occurred.

The classical Roman lawyer thought in terms of natural

law spoke of a bond or relation of right and law

between them whereby the one might justly and

legally exact and the other was bound in justice and

law to perform.4

3Smith & Hogan, Criminal Law, Tenth Edition, Butterworths,

LexisNexis, The Bath Press, 2002, Great Britain, page 4.
4 Roscoe Pound (1930), an Introduction to the Philosophy of Law,

New Haven: Yale University Press, 1922.

6
In modern times, it could be whether he knows it or not,

in terms of natural rights and by derivation of legal

rights, the analytical jurist speaks of rights in personam.

The Anglo-American lawyer, may think in terms of

procedure, speaks of contracts and torts, using the

former term in a wide sense.5

According to the Oxford Dictionary of Law (1997)6, the

term liability is defined by referring to various types of

liability such as business liability7, occupier‟s liability8,

5 Ibid.
6 E. A, Martin, Oxford Dictionary of Law, New Edition, Oxford
University Press, 1997, p.266.
7 A breach of obligations or duties arising in the course of a

business which can include the activities of a government

department or local or public authority, or from the occupation of
business premises, page 56.
8 The liability of an occupier of land or premises to persons on the

land for the condition of the premises and things done there, page
316.

7
parent‟s liability9, products liability10, strict liability11, and

vicarious liability.12

It can also refer to the quality or state of being liable,

something for which one is liable such as failure of duty

and responsibility, or one that acts as a

disadvantage.13

Oliver W. Holmes, Jr. (1881) observes that the idea of

liability is practically attached to the body doing the

9 Parents are not liable for their children‟s torts, but they may be
liable for their own negligence in failing to supervise or train young
children, where the absence of supervision or training has led a
child to cause damage to others, page 328.
10 The liability of manufacturers and other persons for defective

products. The producer of a defective product that cause death

or personal injury or damage to property is strictly liable for the
damage, page 359
11In criminal, crime that is imposed without the necessity of proving

mens rea with respect to one or more of the elements of the

crime. In civil, liability for a wrong that is imposed without the
plaintiff having to prove that the defendant was at fault, page
448.
12 Legal liability imposed on one person for torts or crimes

committed by another usually an employee but sometime an

independent contractor or agent, although the person made
vicariously liable is not personally at fault.
13 http://www.merriam-webster.com/dictionary/liability, extracted

at 1224 hours, 10th Feb 2013.

8
damage, in an almost physical sense: “the hatred for

anything giving us pain, which wreaks itself on the

manifest cause, and which leads even civilized man to

kick a door when it pinches his finger, is embodied in

the noxae deditio14 and other kindred doctrines of

early Roman law.”15

The Author views on the concept of liability

Therefore, as a thinker the concept of liability can

involve the following;

1. The act of doing or;16

2. Omission of something;17

14 Roman Law which required the master to either pay the

damages as if he had himself been guilty of the delict or he could
surrender the slave to the injured party.
15 Oliver W. Holmes, Jr., the Common Law, 13 (1881).
16 Any wrongful act of the person is the result of the act, thus

creating liability.
17 A failure to act, which is not usually a crime, for example, to

stand by and watch a child who has fallen into a river drawn.
However, there is a duty on a person to act either because of the

9
 3. That is either one's responsibility;18

4. Obligation or duty, either;19

5. Under free will or unwillingful;20

6. Which at the end cause harmful or injuries21

7. Directly or indirectly.22

terms of his job, or because he is a parent or guardian of a minor,

or because he has voluntarily assumed duty, such as looking after
disabled relative. In such cases, omission may constitute a crime in
terms of negligence.
18 The situation of being accountable. It is the relationship between

acts and their effects. For instance when liability occurs, one
would say, “if you were here, the child would not cut off his
tongue”. That means it was the responsibility of this person to look
after the child, therefore, his absence (act) resulted to the child to
cut off his tongue (effect). In a real sense it is Guardian to Child
relationship-fiduciary relationship.
19 An obligation of law imposed on a person to perform or refrain

from performing a certain act.

20 Take an example of strict liability, for example trespass, whether

a person willingly knew the land or house belonged to a certain

person or not, the liability still will be imposed. The same to the
traffic offences.
21 Can liability occur without causing harm or injuries? The victim

has to prove the existence of injuries, either economically or

physically, which at the end will support the consequences of
remedies. However sometimes it can occur without harm, for
example in Europe leaving a child in a house alone, even if no
harms occur, parents can be liable under possible negligence.
Their absence could render possible harm or injury to child or
neighbours.

10
1.2 Historical Background of Liability (When and Where

did the Liability begin?)

“Everything changes continually. What is

history, indeed, but a record of change?”

Jawaharlal Nehru.23

Liability issues dominate the elective curriculum,

gender, race, the environment, and the impacts of

technological change together responses to those

problems in the legal clinic practice and jurisprudential

theory. But any attempt to deal with today‟s problem

22 Take an example of vicarious liability and employer‟s liability; it is

not necessary for the defendant or offender to cause direct
injuries. Sometimes, legal duties, obligations and responsibilities
create indirect liability or transfers liability to another person who
was not directly involved on the act or omission as for employees
to their employers.
23 Vakul Sharma, Information Technology-Law and Practice, 3rd

Edition (New Delhi: Universal Law Publishing Co.Pvt. Ltd 2011)

p.343.

11
without an historical sense threatens to compound the

errors of the past.24

This evolution involves four phases which are commonly

identified with reference to their most salient feature,

namely: the original absence of generally agreed-upon

rules regarding the punishment of wrongs25, the gradual

emergence and articulation of a rule of proportional

retaliation26; the co modification of the punitive

entitlement, enabling the wrongdoer to buy out the

victim‟s retaliatory right with pecuniary compensation 27;

and the gradual replacement of lex talionis and blood-

money with a system of fixed pecuniary penalties.28

24 Davis S. Bogen, Ignoring History: The Liability of Ships‟ Masters,

Innkeepers and Stable keepers Under Roman Law, the American
Journal of Legal History, Vol XXXVI, 1992.
25 Discretionary retaliation.
26 Lex talionis” or “regulated retaliation.
27 Blood-money.
28 Fixed penalties.

12
1.2.1 Biblical History of Liability.

It is believed that the concept of liability started in

Biblical Era. When the first people, Adam and Eve ate

the fruit from the forbidden tree, Almighty GOD sent

them away from the Eden Garden. Their act of eating

the forbidden fruit from the forbidden tree, and their

omission of not following GOD‟S instructions, acted as

their failure to observe GOD‟s rules and obligations

which were their duties.29

The incidence of Abel and Cain, GOD asked Cain,

“What have you done? The voice of your brother‟s

blood is crying to me from the ground, and now you

are cursed from the ground which has opened its

29 Gen 3:1-24.

13
mouth to receive your brother‟s blood from your

hand”.30

Verses such as

“Thou shalt give life for life, eye for eye, tooth

for tooth, hand for hand, foot for foot, burning

for burning, wound for wound, stripe for

stripe,”31

“In those days they shall say no more, The

Fathers have eaten a sour grape, and the

children’s teeth are set on edge. But

everyone shall die for his own iniquity; every

man that eateth the sour grape, his teeth shall

be set on edge.”32

30 Gen 4:10.
31Exodus 21:23.
32 Jeremiah 31:29-30.

14
 “The fathers shall not be put to death for the

children; neither shall the children be put to

death for the fathers.”33

“The soul that sinneth, it shall die. The son shall

not bear the iniquity of the father, neither shall

the father bear the iniquity of the son; the

righteousness of the righteous shall be upon

him, and the wickedness of the wicked shall

be upon him.”34

These old Biblical words gave us a clear picture that

liability did exist during such time because the Biblical

Lex talionis, and similar rules that emerged in other

ancient legal systems laid the basis in the change of

the ancient law of wrongs, marking the end of

33 Deuteronomy 24:16, affirming the principle of individual

responsibility.
34 Ezekiel 18:20.

15
retaliatory justice system and the emergence of a

system based on victim‟s compensation.35

In Genesis we find the narrative of Cain and Abel

embodying a very severe conception of retaliatory

justice. As mentioned above, the early narratives most

commonly refer to practices of retaliatory punishment

that tended to be much more severe than the harm

done. In Genesis we read that “the blood of the victim

cries out of the ground”36and “whosoever slayeth Cain,

vengeance shall be taken on him sevenfold”37. The

degree of reaction varied greatly from case to case, as

exemplified in a later passage in Genesis: “If Cain shall

be avenged sevenfold, truly La’mech seventy and

sevenfold”.38

35Francesco Parisi, the Genesis of Liability in Ancient Law, Final

Draft , American Law and Economics Review, 2001, p.2.
36 Gen. 4:10.
37 Gen. 4:15.
38 Gen. 4:24.

16
1.2.2 Liability in Ancient Rome.

Roman law’s Praetorian Edicts the central idea of the

beginnings of liability is a duty to make composition for

or otherwise avert wrath arising from the affronted

dignity of some personality desirous of vengeance,

whether an injured individual, a god or a politically

organized society. Greek law and Roman law give the

name of “insult” to legally cognizable injury to persons.

An insult to a neighbour by injury to him or to one of his

household, insult to the gods by impious breach of the

promise they had witnessed, an insult to the people by

wanton disregard of the undertaking solemnly made in

their presence, threatened the peace and order of

society and called for legal remedy. 39

39The Praetor's Edict in Roman law was an annual declaration of

principles made by the new Praetor (a title granted by the
government of Ancient Rome to men acting in one of two official
capacities: Either the commander of an army or an elected

17
So far as the beginnings of law had theories, the first

theory of liability was in terms of a duty to buy off the

vengeance of him to whom an injury had been done

whether by oneself or by something in one’s power.40

The idea is put strikingly in the Anglo-Saxon legal

magistratus (magistrate) assigned various duties (as per the

historical period). During the days of the early Roman Empire, and
just after the end of the Republic, the Praetor's Edict was revised to
become the Edictum Perpetuum. As later summarized by Papinian
(Roman jurist circa148-211), the law developed by the Praetors in
their Edict became an instrument which could supplement,
explain, and improve the ius civile (body of common laws that
applied to Roman citizens). Thus, the Praetor's Edict developed
into an important vehicle for the evolution of early Roman Empire
civil law and formulary law relating to trial procedure. During the
latter period of the Republic of Rome (before the Empire), the trial
at civil law employed formulary procedure. In this process, the
Praetor (described above) first determined the legal issue in a
pending case. Then the Praetor decided the prescriptive formula
which instructed what remedy would be appropriate, depending
on the facts that were found. Then the Praetor would assign the
case to an iudex (law judge) for trial. After the facts were
determined at trial, the iudex would give his judgment, according
to the formula proscribed by the Edict. Also see Johnson,
Coleman-Norton, Bourne, ANCIENT ROMAN STATUES, Austin,
University of Texas, (1961). 2 “Digest Justinian, Liber 47 (Based upon
the Latin text of the Justinian Code, from Mommsen & Krueger‟s
Edition, Berlin, (1954), 47. 10. 15. 3-6),
http://webu2.upmfgrenoble.fr/Haiti/Cours/Ak/Corpus/d-
47.htm#10.
40 Roscoe Pound (1930), an Introduction to the Philosophy of Law,

New Haven: Yale University Press, 1922.

18
proverb, “Buy spear from the side or bear it,” that is,

buy off the feud or fight it out.

A “penalty of reparation,” was necessary, but the result

is to turn composition for vengeance into reparation for

injury. Thus recovery of a sum of money by way of

penalty for a delict is the historical starting point of

liability.41

Under Roman law, if a slave had occasioned harm, the

owner (who was vicariously liable for the wrongdoing of

his slaves) could obtain release from liability through

surrender of the slave to the victim.42 Likewise, in a

regime of communal liability, a Roman head of the

family43 could avoid the liability for the harm

41 Ibid.
42 noxae deditio
43 paterfamilias

19
occasioned by a member of his group44 by

surrendering the individual to the victim as a slave.45

Under the leadership of philosophical jurists (juristic

theory), men turn to the logical development of the

“nature” or ideal form of situations and to ethical ideas

of what “good faith” or “good conscience” demands

in particular relations or transactions. Moreover the duty

was to be one of doing what good faith demanded,

not one of doing literally and exactly what the letter of

the undertaking called for.46 That was the mode of

thinking in the classical period of the Roman law which

currently exists.

44 Filiifamiliasto
45 ius noxae dandi
46 Roscoe Pound (1930), an Introduction to the Philosophy of Law,

New Haven: Yale University Press, 1922.

20
The first record of Roman law is the Twelve Tables from

about 450 B.C of which only fragments survive.47Liability

was measured through looking whether the claim is in

correct form delivered from the Twelve Tables, and

then statutes such as lex Aquilia of 286 B.C provide

enforcement on injury to property by legis actions.48

Liability extended further to the masters of ships. The

Praetor says:

“I will give action against seamen,

innkeepers, and stablekeepers in respect of

what they have received and undertaken to

keep safe, unless they restored it. Let no one

think that the obligation placed on them is

47 Wolfgang Kunkel, An Introduction Roman Legal and

Constitutional History, trans. J.M. Kelly, 2nd Edition, Oxford:
Clarendon Press, 1973, p.23.
48 Davis S. Bogen, Ignoring History: The Liability of Ships‟ Masters,

Innkeepers and Stable keepers Under Roman Law, the American

Journal of Legal History, Vol XXXVI, 1992, p.3.

21
 too strict, for it is in their own discretion

whether to receive anyone.”49

Thus the basis of liability has become twofold. It rests on

the one hand upon duty to repair injury. It rests on the

other hand upon duty to carry out formal

undertakings.50

1.2.3 Liability in Ancient Africans States.

Since ancient African societies were traditionally

preliterate, there are no ancient written sources

compiled by indigenous Africans themselves. However,

there is no reason to relegate ancient African legal

history in the field of pre-history merely because it is

based on oral traditions rather than on written material.

Once rights and duties shared upon a group, but the

latter was determined by rank, age, gender, marital

Ibid.
49
50Roscoe Pound (1930), an Introduction to the Philosophy of Law,
New Haven: Yale University Press, 1922.

22
condition and physical maturity.51For instance, take an

example of the Maasai and Nyakyusa in Tanzania.

Contracts were entered communally between groups.

The agreement had to be substantiated by a concrete

act in some way for it to give rise to contractual liability.

This concretization could take various forms, such as the

clapping of hands, spitting, breaking sticks and

drinking.52

By the time Arab geographers began to write of West

Africa in the 8th century, the empire of Ghana

described as a "land of gold", was already in

existence. It is believed that, there were 21 kings in

Ghana before 622 and 22 others after the intrusion of

Almoravid, then if so Ghana as empire existed before

51 Schapera A Handbook of Tswana Law and Custom (1938) 30-34.

52 Allott, Epstein & Gluckman "Conceptions in the substantive law.
Agreements and
Transactions: Contracts?" in Gluckman (Ed) Ideas and Procedures
in African Customary Law (1969) 74f; Lyall "Traditional contracts in
German East Africa: The transition from precapitalist forms" in 1986
J of African Law 118.

23
300.53How can kings and empires exist without the

essence of what are the duties, responsibilities,

obligations and sanctions for failure to observe the

three aspects to their people? Hence liability did exist.

In ancient Gogo Tribe people from East Africa, the

liability apart from traditional could rely on religion

basis. There is a story of the High God rejecting appeals

for help from several men, because in their journey to

heaven they behaved scornfully toward disabled

people. Mothers were liable for causing diarrhea in

their children through unhealthy breast feeding.54

53 Available at:
http//www.blacology.com/.../102_Ancient_African_Civilization.
54Miles M. 2013. Religion and Spirituality. In: JH Stone, M Blouin,
editors. International Encyclopedia of Rehabilitation. Available
online: http://cirrie.buffalo.edu/encyclopedia/en/article/1/

24
 1.3 Types of Liability.

There are many types of liability depending on the field

through which the liability rely, even though at the end

all of these types of liabilities fall under the legal

aspect.55 Since the paper is concerned on legal

aspect, then legal liability56 is going to be discussed.

The major types of legal liability are criminal liability and

civil liability. It is from those types, liabilities arise from

various areas of law, such as contracts, tort judgments

or settlements, murders, homicide, rape, taxes,

insurance or fines assessed by government agencies.

55 Such as finance accounting liabilities, insurance liability,

company liability, medical liability, product liability, etc.
56Legal liability is the duty, responsibility and obligation for an

individual or company to perform a designated act towards

another or duty as a result of a particular law or contract to not
cause harm, or the failure of which, result injury to a person or
property either directly or indirectly. The definition of legal liability is
somewhat broad and applies to several types of liabilities, all of
which offer legal recourse for failure to perform.

25
Liability may also be imposed joint57 and severally in

certain cases.58

1.3.1 Criminal Liability.

It is imposed the conduct felt to be against the general

interests of the society59.

1.3.1.1 Crime.

An attempt to define a crime at once encounters a

difficulty, because the law itself is nothing more than a

rule of conduct differs from other rules of conduct,

because crime varies according to time, group and

place.60 If the definition is true one, it should enable us

57 In criminal we have principal offender and second degree

offender in case of murder, and in civil we have joinder offenders if
the matter, facts and course of transaction of the offence are the
same.
58 http://en.wikipedia.org/wiki/Legal_liability, extracted at 1355,

10th Feb 2013.

59 Catherine Elliot and Frances Quinn, Criminal Law, 7 th Edition,

Dorset Press, Pearson Longman, UK, 2008 p.1.

60 P.S.A. Pillai‟s, Criminal Law, 9 th Edition (ed Suresh V and

Nagasaila D), Butterworths India, New Delhi, 2000, p.2.

26
to recognize any act or omission as a crime, or not a

crime by seeing whether it contains all the ingredients

of the definition.61

Austin defines it as any act or omission which the law

punishes, while Sir William Blackstone define it as an act

committed or omitted in the violation of public law

forbidding or commanding it. Further argued, it is a

violation of the public rights and duties due to the

whole community considered as a community.62

I do believe as thinker, good and well accepted

definition of crime must involve the following;

1. It is harm or injury brought or caused by human

conduct;63

61 Smith & Hogan, Criminal Law, Tenth Edition, Butterworths,

LexisNexis, The Bath Press, 2002, Great Britain, page 15.
62 P.S.A. Pillai‟s, Criminal Law, 9 th Edition (ed Suresh V and

Nagasaila D), Butterworths India, New Delhi, 2000, p. 5.

63 That means any human activities or conducts include act and

omission.

27
 2. Either by direct acts or indirect acts;64

3. Whether by the offender himself, or the agent of

offender; and

4. That such conduct is forbidden by the law; after

5. The reasonability of whether the accused person

did in fact cause harm or injury, followed by the

legal consequences upon such prove and not

social consequences.

The above definition is comprehensive because its

answer the philosophical questions, such as what is a

crime (harm or injury), how crime occurs (through direct

and indirect acts), done by who (the offender or agent

of the offender), where is its basis (the law determined

by the majority of a society) and when crime is

64 That means by either physical presence of a person to a

victim(s) like stabbing a person or not physical presence (virtual)
for instance putting a toxic substance to the water, food or any
other human materials used by the victim(s).

28
considered a crime (after legal reasonability and legal

consequences and not social consequences).

Criminal liability relates to crime such as Violate Crimes

like murder, sexual assault, battery and robbery;

Property Crimes like cyber theft, theft of identity

burglary, arson; Crimes against the State like, treason,

sedition, sabotage and espionage;65 Public Order

Crime like homosexual and child pornography (to some

countries); Blue Collar Crimes, committed by lower

social class, illicit drug, public drunkenness, gambling

and lastly White Collar Crimes, embezzlement, fraud

(check fraud), bribery, electronic tax evasion.66

1.3.2 Civil Liability.

This is neither more nor less than a breach of legal duty

owed to a plaintiff. Failure to perform contract or to

65Joel Samaha, Criminal Justice, Seventh Edition, Thomson

Wadsworth, USA, 2006, p.38.
66 Larry K. Gaines, M. Kaune, and Roger L. Miller, Criminal Justice in

Action, Wadsworth Thomson Learning, USA, 2000, p.7 and 8.

29
fulfill an obligation to make restitution of unjust

enrichment or to pay tax is less is no less capable of

being described as a breach of duty than negligent

injury or defamation, breach of trust or any other

familiar tort.67

1.3.2.1 Tort.

Tort as liability is action between the wrong doer and

the victim, and the aim is to compensate the victim for

the harm done.68In tort there are many liabilities such as

negligence, employer‟s liability, product liability,

vicarious liability, occupier‟s liability, animal‟s liability,

trespass, deceit, nuisance and defamation and

privacy. For the purpose of this paper defamation is

going to be discussed.

67 David G. Owen, Philosophical Foundations of Tort Law,

Clarendon Oxford University Press Inc, 1996, Great Britain, p.33.
68 Catherine Elliot and Frances Quinn, Tort Law, Fifth Edition,

Pearson Longman, 2005, Great Britain, p.1.

30
1.3.2.1.1 Defamation.

Today‟s law on defamation varies by jurisdiction as to

whether it is held as a criminal offence or simply as an

actionable civil tort.

Defamation referred to, in modern legal terminology as

traducement, calumny, vilification, slander, or libel, is

the communication of a statement that makes a claim

(actual malice required to be proven, in the case of

the plaintiff being a public official)69, expressly, stated,

or implied to be factual, that may give an individual,

business, product, group, government, or nation a

negative image.70

Defamatory statements are usually in written (libel) or

spoken words (slander) but pictures, photographs,

69New York Times Co. v. Sullivan, 376 U.S. 254 (1964).

70 Silvano Domenico Orsi, Defamation: Tort or Crime? A
Comparison of Common Law and Civil Jurisdictions, the Boston
University School of Law (Class of 2011).

31
gestures and other acts can also be defamatory.71

Untrue statement72, plaintiff reference73, publication of

the statement74, and proof of damage75 may be

regarded as the elements of proving the existence of

defamation.

The words should be construed in their ordinary and

natural meaning, but they may have a hidden

meaning, innuendo (both legal (true) and popular

(false) innuendo). In legal innuendo it is not necessary

to show the people who knew the special facts

believed the story, but in popular innuendo specific

71 Catherine Elliot and Frances Quinn, Tort Law, Fifth Edition,

Pearson Longman, 2005, Great Britain, p.210.
72 It must be false, not an opinion or a fact.
73It must refer to a particular person and not a group as it was held

in the case of Newstead v London Express Newspapers C.A, [1940]

All ER 319
74The statement must be "published" meaning that someone else

has heard or seen it, whether through printing, speaking, gesturing,

or some other method.
75 The statement must be injurious, meaning that it causes damage

to the person's reputation; it must not be privileged, or published in

a situation such as a courtroom or legislative chamber that has
specific speech protections.

32
facts must be proved by people who knew it and

believed them.76

1.4 How these Liabilities have been affected in the

Information Age/Cyber Space.

“Ever since men began to modify their lives by

using technology they have found themselves

in a series of technological traps”.

Roger Revelle77

States depend on science and technology for various

aspects of human life. The same technology intrudes

destructs, distorts and all aspects of human life. Some

scholars have interestingly argued that, “in the Internet

76Richard Kidner, Casebook on Torts, 10th Edition Oxford University

Press Inc, 2008, New York, p.400.
77 Vakul Sharma, Information Technology-Law and Practice, 3rd

Edition (New Delhi: Universal Law Publishing Co.Pvt. Ltd, 2011) p.30.

33
nobody knows you are a dog”.78 This raises some legal

issues and concerns.79

Because the more serious and costly wrongs relating to

computers do not fit into the ordinary definitions of

crime.80 For instance take an example of theft, one

among its requirement is asportation (movement of the

stolen property) 81it became difficult to prove it through

cyber space as liability. The issue of defamation on who

is the publisher in cyber space, trespass, fraud, privacy,

in general cyber space have changed the whole

concept of liability from conventional means to

nonconventional means, thus creating a new world of

78Christopher Reed, Internet Law, Text and Materials, 2000 at page

119.
79 Adam J. Mambi, ICT LAW BOOK, a Source Book for Information

and Communication Technologies and Cyber Law in Tanzania

and East Africa Community, 2010, page 96.
80 David P. Twomey and Marianne M. Jennings, Anderson’s

Business Law and the Legal Environment, 21st Edition, South-

Western Cengage Learning, 2011, USA p.214.
81 Section 257 of the Tanzania Penal Code [CAP. 16 R: E 2002].

34
liability as discussed in some aspects in Part II of the

Paper.

35
PART II: INTELLECTUAL PROPERTY AND THEIR CYBER

LIABILITIES.

2.0 Introduction.

“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”.

Lee Burgunder.82

82Lee Burgunder, Legal Aspects of Managing Technology, Fourth

Edition, Thomson/West Eagan, MN, United States of America, 2007,
p27.

36
2.1 Meaning of Intellectual Property (What is Intellectual

Property?)

A very broadly, means the legal rights which result from

intellectual activity in the industrial, scientific, literary

and artistic fields.83

They are intangible properties which include patents,

trademark, registered and unregistered design rights

and copyright.84

Bainbridge argued that, intellectual property is

concerned with the legal rights associated with

creative effort or commercial reputation and goodwill.

It is very wide and includes literary and artistic works,

83 WIPO Intellectual Property Handbook: Policy, Law and Use,

Second Edition, WIPO Publication No. 489 (E), 2004, Geneva, p.3.
84 E. A, Martin, Oxford Dictionary of Law, New Edition, Oxford

University Press, 1997,p.238.

37
films, computer programs, inventions, designs and

marks used by traders for their goods and services.85

My understanding as a thinker intellectual property is

simply meant the works that result from the emanation

of human mind. Thus it incorporates the following; first

the human mind, second the manifestation of the

human mind and last the results of the creativity of the

human mind.86

2.2 Origin (Where did Intellectual Property came from?)

As the result of the industrial revolution and the rapid

developments made in the fields of science,

technology, and culture, new kinds of property apart

from the traditional came into existence. The concept

85 David I. Bainbridge, Intellectual Property, Seventh Edition,

Pearson Longman, Ashford Colour Press Ltd, Gosport, 2009, p.3.
86 For example in copyright ideas are not protected but the

expression of ideas. The ideas is expressed when seen by other

person(s) other than the author himself, thus the creativity of
human mind must been seen.

38
has undergone a sea change especially after the

Second World War. They received a great attention

due to their unique features and possibility of their

violation easily. It is because of their unique

characteristics, international and big corporation saw

the necessity of protecting them.87

To control market power, measures that seek to

counteract abuses of market power by heaviest

companies were inevitable. Otherwise, liberalization

might simply end in laissez faire.88 Intellectual property is

the umbrella phrase now used, but only since about

the 1970s. Before that it meant only copyright and the

87G.B. Reddy, Intellectual Property Rights and the Law, 1 st Edition,

Gogia Law Publications, Navya Printers, 2000 p.2.
88Christopher Arup, The World Trade Organization Knowledge

Agreements, Second Edition, Cambridge University Press, 2008,

p.14.

39
like‟s rights to cover all the various rights that may be

invoked to prevent imitations of various sorts.89

Various Agreements and Laws were established such

as, The Statute of Anne 1710, The Berne Convention,

The Rome Convention of 1961, Copyright Designs and

Patent Act 1988, Munich Convention of 1973, World

Trade Organization of 1995, Agreement on Trade-

Related Aspects of Intellectual Property Rights of 1996

and lastly World Intellectual Property Organization

Copyright Treaty of 1996 which plays a pivotal role in

protecting intellectual property.90

2.3 Types of Intellectual Property.

There are several different and similarities forms of rights

or areas of law giving rise to rights that together make

89 Jacob R, Alexander D and Lindsay L, A Guide Book to

Intellectual Property, 5th Edition, London Sweet & Maxwell 2004,
p.3.
90 With the aim to cope with the advancement of science and

technology.

40
up intellectual property, for instance, there is common

ground between patent and registered design, and

between copyright and the right to performances.

Others give the right to monopoly and others prevent

unfair use of an existing work.91

2.3.1 Copyright.

It is a legal concept, enacted by most governments,

giving the creator of an original work exclusive right to

it, usually for a limited time.92Copyright is a legal device

that provides the creator of a work of art or literature, or

a work that conveys information or ideas, the right to

91 David I. Bainbridge, Intellectual Property, Seventh Edition,

Pearson Longman, Ashford Colour Press Ltd, Gosport, 2009, p.4.
92 World Intellectual Property Organization. "Understanding
Copyright and Related Rights". WIPO. pp. 6–7. Retrieved January
26, 2013

41
control how the work is used.93 It could be simply and

meaningfully, means the right to copy.

The intent of copyright is to advance the progress of

knowledge by giving an author of a work an economic

incentive to create new works, 94which provides a

limited form of monopoly protection for written and

creative works fixed in a tangible (material) form.95

2.3.1.1 What does copyright protect?

As per Article 17 of the Universal Declaration of Human

Rights of 1948, everyone has the right to own property

93 Fishman, S. (2008). The copyright handbook: What every writer

needs to know. Berkeley, CA: Nolo, p.6.
94Loren, L.P. (2000). The purpose of copyright. Open Spaces

Quarterly, 2(1). Retrieved from http://www.open-spaces.com/,

para 12.
95 A. Story, C. Darch, and D. Halbert, The Copy/South Dossier: Issues

in the Economics, Politics, and Ideology of Copyright in the Global

South, The Copy/South Research Group May 2006.

42
alone as well as in association with others, and prohibits

arbitrary deprivation of property.96

Copyright protects the works of author and artists, by

giving the copyright owner the right to control the

reproduction, sell, copy, distribute and performance of

the work. While the scope and length of copyright

protection vary among the countries, copyright

generally protects written works, music, film, and

performance.97It does not protect just an artistic and

literary works but the original works of the author, not

ideas, processes, systems, or methods of operation, and

not nominal creativity but the expressions.98

96 Asbjorn Eide, and Catarina Krause, Et al, Economic, Social and

Cultural Rights, Second Revised Edition, Martinus Nijhoff Publishers,
2001, p. 191.
97 Carolyn Hotchkiss, International Law for Business, First Edition,

McGraw-Hill Inc, 1994, Singapore, p.305.

98 Lee Burgunder, Legal Aspects of Managing Technology, Fourth

Edition, Thomson/West Eagan, MN, United States of America, 2007,

p.257. also see section 2(ii) of the Copyright and Neighbouring
Rights Act,[CAP.218 R.E. 2002}

43
The work must be fixed as in the case of Apple

Computer v. Formula International99, it was held that

copies stored in RAM were temporary and running a

computer programme from RAM does not create an

infringed copy.

Its protection has a long duration, the general yardstick

being the life of the author, plus 50 to 70 years after the

death of the author. This duration varies according to

jurisdiction, for instance in the United Kingdom and

United States of America it is 70 years after the death of

the author.100In Tanzania is 50 years after the death of

the author.101

Copyright has used three different approaches in its

development. In Civil Law Systems both economical

99 594 F Supp 617 (1984)

100 David I. Bainbridge, Information Technology Law, Sixth Edition,
Ashford Color Press Ltd, Pearson Longman, 2008, p.10 and p.21.
101 Section 14(1) of the Copyright and Neighbouring Rights

Act,[CAP.218 R.E. 2002}

44
and social rights are protected. In Common Law

Systems tends to view copyright as protection solely of

economic interests. Socialist Legal Systems have

historically been less concerned with the payment to

authors than with the management of culture for the

purposes of revolution.102 Skills, efforts or labour and

judgment must be shown by the original author of the

work.103

There are some notable difficulties in the application of

the 18th century concept of copyright in digital

technology.104 This is because technology is double-

edged sword, in which one way it create new means

to fix the original expression in a tangible form and on

102 Carolyn Hotchkiss, International Law for Business, First Edition,

McGraw-Hill Inc, 1994, Singapore, p.306.
103 As Peterson J said in University of London Press Ltd v University

Tutorial Press [1916] 2 Ch 601.

104 Adam J. Mambi, ICT LAW BOOK, a Source Book for Information

and Communication Technologies and Cyber Law in Tanzania

and East Africa Community, 2010, page198.

45
the other hand exploit it by infringing the copyrights

with impunity.105

2.3.1.2 Copyright Liability in Cyber Space.

“While I shall think myself bound to secure every man in

the enjoyment of his copyright, one must not put
manacles upon science”.106

The same liabilities in traditional world are used in cyber

space, but due to the nature of the internet the

question still remains who is liable for copyright

infringement in cyber space?

In section 16 (2) of the Copyright, Designs and Patents

Act 1988 states copyright in a work is infringed by a

person who, without the licence of the copyright owner

105 Vakul Sharma, Information Technology-Law and Practice, 3rd

Edition (New Delhi: Universal Law Publishing Co.Pvt. Ltd., 2011),
p.465.
106 Lord Ellenborough in Carey v. Kearsley, 4 Esp. 168 ER 679 (KB

1803)

46
does, or authorize another to do any of the acts

restricted by copyright.

The following cases are the guidance as to Copyright

Liability in Cyber Space;

MAI System Corporation v. Peak Computer107, in which

a copyright owner of the operating system successfully

sued a computer pair company for copyright

infringement their Operating System software. The

defendant was able to view the software program

during assisting him in diagnosing the problem, thus

copying it in the absence of owner's permission. The

Ninth Circuit held that, “the loading of copyrighted

computer software into the memory of a CPU caused a

copy to be made thus constitutes infringement”.

107 911 F. 2d 511 (9th Cir. 1993).

47
In Kelly v. Arriba Soft Corporation108, plaintiff had

copyrighted his images. Some of his images were

located on other websites under license agreement.

The defendant (who obtained plaintiff pictures)

operates internet search engine which displays its

results in the form of smaller pictures rather than the

more usual form of text. By clicking one of these small

pictures called thumbnails, the user could view the

large version of the same picture within the Arriba web

page. The plaintiff brought a claim for copyright

infringement.

The Circuit Court held that, “the creation and use of

the thumbnails in the search engine is a fair use, but the

display of the larger image is a violation of Kelly’s

exclusive right to publicly display his work”.

108 280 F.3d 934 (9th Cir. 2002).

48
In terms of Intermediaries such as ISP and Web 2.0, and

Publisher's liability lies upon their ability to exercise

control over what they print, publish and distribute.

In Playboy Enterprises Inc v. Frena109, a subscriber

uploaded copyrighted playboy picture to a bullet

board service provider for other to view and download.

The court held that, the bulletin board provider was

liable for the infringement, even if it did not know the

existence of such picture.

In A & M Records, Inc v. Napster, Inc110 , the defendant

allowed its users to make, transfer and search MP3

music files stored on individual computer hard drives

available for copying by other Napster users. The

plaintiff alleges that Napster is contributory and

vicarious copyright infringer. The court agreed with the

109 839 F. Supp. 1552 (M.D. Fla. 1993).

110 9th Circuit Court of Appeals, 2001.

49
plaintiff, that two exclusive rights were infringed by the

defendant.

Some of these intermediaries have decided to depart

from any liability resulted from their websites. For

instance, ebook3000.com, a website for electronic free

books have Copyright

Disclaimer which states:

“This site does not store any files on its server. We only

index and link to content provided by other sites.

Please contact the content providers to delete

copyright contents if any and email us, we'll remove

relevant links or contents immediately”.

Therefore, this excludes them from any liability arise

from copyright infringements.

50
2.3.2 Patent.

It is concerned with new industrially applicable

inventions. It is a form of personal property that may be

assigned, licensed or charged by the way of

mortgage.111It is the grant of an exclusive right to

exploit an invention.112

For it to be protected by patent, a formal patent

application must be made to the relevant patent

office. If granted, the patent can be renewed in

accordance with the nature of the particular patent

statute of the state, either for 7, 10 to 20 years, for

example in the United Kingdom under the Patents Act

of 1977, it is 20 years, and in Tanzania it is 10 years.113

111 David I. Bainbridge, Intellectual Property, Seventh Edition,

Pearson Longman, Ashford Colour Press Ltd, Gosport, 2009, p.363.
112 E. A, Martin, Oxford Dictionary of Law, New Edition, Oxford

University Press, 1997,p.333.

113 Section 39(1) of the Patents (Registration) Act, [CAP.217, R.E

2002]

51
Generally, a patent is the exclusive right granted to the

owner by the law for the product invention and process

invention.

2.3.2.1 What does the Patent protect?

A patent protects; the novelty of the invention114 (not

obvious thing), the capability of industrial application of

the invention115, the inventive steps of the invention116,

the invention which is not a part of discovery,

mathematical or scientific theories or prohibited by

public order.117

2.3.2.2 Patents Liability in Cyber Space.

What the traditional Patent protects it is the same in the

cyberspace, only nonconventional means makes them

different.

114 Ibid, Section 9.

115 Ibid, Section 11.
116 Ibid, Section 10.
117 Ibid, section 12 and 38.

52
In Amazon .com v. Barnes and noble.com118, Amazon

owns a program 411 system in which a customer may

complete purchase order by a single click. Barnes

conducts BN‟s Express Lane ordering option which

violates 411 patents. The District Court ordered

preliminary injunction. In Appeal Amazon lost in terms of

preliminary injunction, as the fact that BN cast enough

doubt as to the patentability of 411 programs. If

Amazon went to trial might then fend off BN‟s claim on

patentability of 411.

In MercExchange L.L.C., v. eBay Inc119, the plaintiff

alleges that the defendant used features within its

internet auction system that violate MercExchange

Patents. Order of damages was awarded to the

118 Federal Circuit Court of Appeals, 2001.

119 401 F.3d 1323 (Fed. Cir. 2005)

53
plaintiff, $29.5 million. On Appeal, 2006 judgment was

upheld but damages were reduced.

Other incidence includes, Yahoo v. Google in 2002,

over infringement of bid-for-placement and a pay-for-

performance internet search services, Google settled it

in 2004. First USA v. PayPal in 2002 over patent on

cardless payment system, and the current issue

between Apple Inc v. Samsung Electronics Co. Ltd,

involving a series of suits regarding to design of

Smartphone and tablet computers between 2011-12,

Apple won in USA, Samsung in South Korea, Japan and

UK.120 These cases show the liability when one takes

without permission or infringe the patentability of

owner‟s product or process.

120Lee Burgunder, Legal Aspects of Managing Technology, Fourth

Edition, Thomson/West Eagan, MN, United States of America,
2007,p.200-201.

54
2.3.3 Trademarks.

Some people have distinguished between trademark,

trade secrecy and designs as different types of

intellectual property. For the purpose of this Paper, and

as defined below, Trademark will include both trade

secrecy and designs.

It means a mark capable of being represented

graphically and distinctive in nature and it may include

a word, name, symbol, device, numerals, letters,

signatures, label, tickets, brand, slogans, pictures,

characters, sounds, smell, shape, logo, graphic designs,

three dimension form, moving image, product or

packaging features.121

121Vakul Sharma, Information Technology-Law and Practice, 3rd

Edition (New Delhi: Universal Law Publishing Co.Pvt. Ltd, 2011),
p.502.

55
2.3.3.1 Classification of Trademarks.

Generic marks are words which generally used and

they do not receive protection because of lack of

distinctiveness, such as COLA, SKIN, WATER, and MICRO

as discussed in the case of J.R. Kapoor v. Micronix

India.122

Descriptive marks. Descriptive in nature, only require

distinctiveness either inherently like Apple for computer

or acquire like Ciba for registration, as it was held in the

case of M/s Ciba-Geigy Ltd. V. Surinder Singh.123

Suggestive, Arbitrary and Fanciful marks frequently

considered to be inherently distinctive marks.124

1221994 supp (3) SCC 215, where by the term micro was considered
to be generic mark.
123AIR 1999 Del 49, where by the term Ciba was considered to be

descriptive mark through acquires method.

124 Vakul Sharma, Information Technology-Law and Practice, 3rd

Edition (New Delhi: Universal Law Publishing Co.Pvt. Ltd. 2011)

p.504.

56
2.3.3.2 What Does Trademark Protects?

The owner has to prove only the distinctive nature of his

mark on graphical representation.125 Even for non-

traditional marks like three-dimension marks

distinctiveness plays an important role in their

registrability. A trademark protects the rights to own

and exploit, sell and permit, goodwill, promote, stop

others from using the mark, and initiate legal action

against the infringer.126Trademarks are protected for

the whole seven (7) year from the date of

registration.127

2.3.3.3 Trademark Liability on Information Age.

Since the internet is rapidly becoming an essential

medium of international commerce, it should come as

125 Section 16 of The Trade And Service Marks Act, [CAP.326, R.E.
2002]
126 Ibid.
127 Ibid, section 29(1).

57
little surprise that it has raised several controversial issues

regarding to trademark policies especially on domain

names.128

Trademark liability can only be imposed where a

competitor uses a mark in advertising or commerce

“causing the public to see the protected mark and

associate the infringer‟s goods or services with those of

the mark holder”.129

In Playboy Enters. V. AsiaFocus Int’l, Inc130, the plaintiff

sued defendant on trademark infringement for the use

of federally registered trademarks “Playboy” and

“Playmate” in its HTML. The District Court granted

judgment to the plaintiff as the defendant intentionally

128 Lee Burgunder, Legal Aspects of Managing Technology, Fourth

Edition, Thomson/West Eagan, MN, United States of America,
2007,p.475.
129 Daimler Chrysler AG v. Bloom, 315 F.3d 932, 939 (8th Cir. 2003).
130 No. CIV.A. 97-734-A, 1998 WL 724000.

58
misled viewers to believe it has connection with

Playboy.

Again in Playboy Enters v. Calvin Designer Label131, a

District Court of California concluded that, the

repeated use of the term Playboy by the defendant

within the machine readable code, constitute

trademark infringement.

In Panavision International v. Dennis Toeppen132, the

plaintiff, a photographic camera and equipment

business registered trademarks Panavision and

Panaflex. The defendant applied for and received

registration from Network Solutions, Inc of the internet

domain name, “panavision.com” and establishes a

website displaying aerial views of Pana, Illinois. Plaintiff

discovered that its own name has already been

131 985 F Supp 1220 (1221) (N.D.Cal 19997)

132 District Court for the Central District of California, 1996.

59
registered and notified the defendant who demanded

$ 13,000 but it was refuted. Toeppen then registered

Panaflex the site which contained the word hello but

never use the domain name in connection with the

sale of goods or services.

The court held that, since Toeppen registered a famous

mark as a domain name for the purpose of trading on

the value of the mark by selling the domain name to

the trademark owner, has violated federal and state

dilution statutes and enjoins him from further violating

these laws.

The confusion between Freedom of expression and

trademark infringement creates a drama. The balance

between these two things depend on the limitation of

freedom of expression, the more freedom the more

trademark infringement. For example, in the United

60
States of America, the courts recognize a First

Amendment defense to trademark infringement where

another seeks to use a mark to communicate ideas or

express points of view. One court recently held that a

song entitled “Barbie Girl,” that poked fun at the Mattel

Corporation‟s doll of the same name, did not infringe

the trademark.133

Using well-known brand such as Disney Corporation to

make pornographic films it is unlikely that consumers

would believe that the, famous for family oriented

entertainment is the manufacturer of such

unwholesome products, thus will create market

distortion.

In terms of Trade Secrecies, in recent years in Tanzania,

Coca Cola Kwanzaa Limited has been accusing

Bakhresa or Azam drinks, proclaiming that, their drink‟s

133 Mattel, Inc. v. MCA Records, 296 F.3d 894 (9th Cir. 2002)

61
taste, “Azam Cola” resemble to their product Coca

Cola. This can be regarded as an infringement of

trade secrecies.

62
PART III: COMPETITION LIABILITY AND COMPETENT

AUTHORITY IN SOLVING CYBER INTELLECTUAL PROPERTY

DISPUTES.

3.0 Introduction.

“People of the same trade seldom meet together,

even for merriment and diversion, but the conversation

ends in a conspiracy against the public, or in some

contrivance to raise prices.”

Adam Smith.134

For the purposes of exploring the economic dimensions

of the intellectual property, the principal objective of

intellectual property law is the protection of the work of

the owner to different economic problem ensuring the

integrity of the marketplace. Competition laws respond

134 Adam Smith, An Inquiry into the Nature and Causes of the
Wealth of Nations, State College, PA: Penn State University, 2005,
p. 364 (originally published in 1776).

63
to this concern.135It is from this principle whereby the

uncompetitive behaviours are restricted in intellectual

property.

3.1 What is Competition?

Competition is a dynamic and inherently uncertain

process, one in which some innovative business

strategies succeed and others fail; and in which the

process of continuing rivalry between firms gives

consumers new products and better-run businesses.136

Cini and McGowan (2009) argued that „Competition‟

has been defined as the „struggle or contention for

superiority, which in the commercial world means a

135 A. Mitchell Polinsky and Steven Shavell, Handbook of Law and

Economics, Volume 2, 2007 Elsevier B.V, P.1473-76.
136 Dermot McAleese, Economic for Business: Competition, Macro-

stability, and Globalization, Third Edition, Ashford Color Press Ltd,

Prentice Hall Financial Times, 2004, p.183.

64
striving for the custom and business of people in the

market place.137

Section 5 (2) of the Tanzania Fair Competition Act of

2003 explain competition as competition in a market in

Tanzania, whereby two or more person(s)

supply/acquire or attempt to supply/ similar or

substitutable goods or services to a person(s) of similar

geographical market.

As a thinker, when one is compete means;

Fierce fight or struggle, either peaceful or harmful unless

otherwise provided by the particular law of the state,

existing between two or more person(s) or a group(s) of

person(s) over the existence of something

advantageous (either economical, social, political or

137Lee McGowan, The Antitrust Revolution in Europe: Exploring the

European Commission‟s Cartel Policy, Edward Elgar Publishing Inc,
MPG Books Group, UK, 2010, p.16.

65
technological) or benefit to them in the society

(existence in the society).

3.2 Origin of Competition.

It is a historical fact that, generations and generations

have been competing from time to time. The

competition started as early as a human being

developed from surplus production to commercial

production whereby the class of professionalism started

to grow, like ironsmiths, agriculturalists, merchants,

potteries and others.138However, even during the

period of gathering competition did exist, the more one

gather the more survival of life exist.

Since more than two person(s) could make the same

product, the tendency of unfair dealings began to

138Specialization of tools, use of jewellery and images (such as

cave drawings), organization of living space, rituals (for example,
burials with grave gifts), specialized hunting techniques,
exploration of less hospitable geographical areas, and barter
trade networks.

66
exist, thus the law to regulate dealings between these

professionalism became important.

3.3 The Law of Competition.

Competition law concerns intervention in the

marketplace when there is some problem with the

competitive process or when there is market failure.

Rome is believed to be the earliest city to have

competition laws. The Lex Julia de Annona was

established in Roma about 50 B.C with the aim of

protecting the grain trade, heavy fines were imposed

on anyone directly, deliberately, and insidiously

stopping supply ships. Even death penalty was imposed

for those who opposed or violating the tariff.139 The law

139 Under Diocletian in 301 AD.

67
expanded to games140 and politics as it was in Ancient

Rome.141

Events such as Dark Ages, Norman Conquest, the Great

Depression, first and second world wars necessitate the

important of establishing a law to deal with matters of

competition as the fact that, big Corporations of the

countries which were heavily affected by the Two

Great Wars, fiercely fought to increase industrial

production so as to compensate for the War loss which

resulted to the tendency of unfair trade dealings which

could result to another Great War, thus competition

laws were inevitable.142

140 In Rome games were dedicated to Zeus, the father of gods and
men.
141 See;
http://www.nostosbooks.com/index.files/theolympicgamesinancie
ntgreece.htm.
142 In UK, the first competition-related statute was the Profiteering

Act 1919, which was aimed at excessive pricing following the First
World War. The 1944 White Paper on Employment Policy led to the
Monopolies and Restrictive Trade Practices (Inquiry and Control)

68
The first steps towards the first coherent regimes

occurred in the United Kingdom (from 1948) and West

Germany (from 1957)143 which were influenced

indirectly and directly by the well-established US

competition model (initiated under the Sherman and

Clayton Acts in 1890 and 1914 respectively which

sought to ensure that economic power (in the shape of

banks, oil, and railroad companies) was not

concentrated in the hands of a few powerful

Act 1948, the Restrictive Trade Practices Act 1956, Resale Prices
Act 1964, and lastly in 1973 when UK entered European
Community, the Fair Trading Act was introduced.
143 The framework for both these evolving competition regimes was

laid down in the 1948 Monopolies Act and the 1956 Restrictive
Trade Practices Act in the United Kingdom and the Gesetz gegen
Wettbewerbsbeschränkungen (Law against restraints on
competition) in West Germany. For overview of the historical
evolution of both see S. Wilks, 1996, „The Prolonged Reform of
United Kingdom Competition Policy‟ and R. Sturm „The German
Cartel Office in a Hostile Environment‟ in G.B. Doern and S. Wilks
(eds) Comparative Competition Policy: National Institutions in a
Global Market, Clarendon Press, Oxford, pp. 139–184, pp.185–224.

69
trusts).144Thus people and companies were liable for

competition liability.145

3.4 Competent Authority in Solving Intellectual Property

Disputes.

3.4.1 Introduction.

“Anything under the sun is made by man.”146 .

3.4.2 Intellectual Property Disputes Resolution in

Information Age.

Unlike tangible goods, knowledge and creative works

are public goods in the sense that their use is

nonrival.147One agent‟s use does not limit another

144 Lee McGowan, The Antitrust Revolution in Europe: Exploring the

European Commission‟s Cartel Policy, Edward Elgar Publishing Inc,
MPG Books Group, UK, 2010, p.19.
145These are the results of uncompetitive behaviours conducted

among the competitors, such as exclusive dealing, limiting price,

refusal to deal, tying, dividing territories, absorption of competitor,
patent misuse, bad digital rights management (first sale doctrine),
passing of, cyber squatting, cyber parking, etc.
146 Diamond v. Chakrabarty (1980)
147 Arrow, 1962, Nelson, 1959.

70
agent‟s use. That is, even if someone claims to own the

knowledge, it is difficult to exclude others from using it.

Intellectual property law grants exclusive use of the

protected knowledge or creative work of the creator;

however science and technology have made this

difficult as the fact that national laws (including

competition laws) usually does not cover activity

beyond territorial borders compare to internet unless it

has significant effects at nation-state level. Sometimes

may allow for extraterritorial jurisdiction in competition

cases based on so-called effects doctrine.148

The existence of online media result in possible

contradiction of jurisdictions, which might be the site of

the origin of the work, the site of an assignment or

licence, the site of the emission or reception of the

148Taylor, Martyn D, International competition law: a new

dimension for the WTO? Cambridge University Press. (2006) pp. 1

71
transmission, the nationality or residence of the

producer, or the nationality or residence of the

infringer. This can be seen to generate permutations

with a vast potential for a clash of laws.149

Thus the issue of jurisdiction depends on two aspects, a

state's ability to define its own laws in respect of any

matters it chooses, and state ability to enforce those

laws depending on the existence of prescriptive

jurisdiction.150

Section 3 (1) of Copyright and Neighbouring Rights Act

No.7, 1999, prescribes, this Act shall apply to works of

authors who are nationals of, or have habitual

residence in United Republic of Tanzania, works first

publish in United Republic of Tanzania irrespective of

149 Christopher Arup, The World Trade Organization Knowledge

Agreements, Second Edition, Cambridge University Press, 2008,
p.40.
150 Vakul Sharma, Information Technology-Law and Practice, 3rd

Edition (New Delhi: Universal Law Publishing Co.Pvt. Ltd 2011 p.359

72
nationality or residence of their authors (territorial

jurisdiction).

When problems arise in cyberspace, some prefer to

litigate them through court of law (as we have seen in

Part II of the Paper, in term of cases), but others prefer

to settle down their dispute through Alternative Dispute

Resolution151, and since our focus is on intellectual

property and competition laws, then an overview of

the WIPO Arbitration Center and Mediation (specifically

on Internet Domain Names) is our concern.

151 Refers to any of a variety of techniques for resolving civil

disputes without the need for conventional litigation. It includes
negotiation (which is more informal agreements between
person(s) or group(s)), reconciliation (two parties exchanging
consideration so as to reach an agreement), conciliation (using a
third person as conciliator to settle down dispute but no likelihood
of abidingness by the law), mediation (using a third parties as
mediator to settle down disputes, there is likelihood of abidingness
by the law if necessary) and arbitration (This is the determination of
a dispute by one or more independent third parties, named
arbitrators, rather than a court, the decision abide the parties).

73
3.4.3 WIPO Arbitration and Mediation Center.

In 1994 WIPO152 established the WIPO Arbitration and

Mediation Center to offer alternatives to court litigation

to alternative dispute resolution. This is well known

worldwide as the leading dispute resolution service

provider for challenges related to misuse of registration

of the internet domain names, generally known as

cyber squatting.153

It provides advice, and administers procedures

conducted under the WIPO Rules. It has more than

1500 intellectual property specialists acted as neutrals

from different 70 states, and since 1999 more than

152 The World Intellectual Property Organization is an independent

intergovernmental organization headquartered in Geneva,
Switzerland comprising of 184 members. It administer more than 20
treaties include, Paris, Berne and Madrid Agreement and Protocol
on International Registration of Marks.
153 WIPO, Guide to WIPO Domain Name Dispute Resolution, p.3-4,

available at http://www.wipo.int/amc.

74
27,000 cases have been resolved.154In 2004 almost 8000

cases were filed.155

3.4.3.1 The Uniform Dispute Resolution Policy.

Following the recommendations of the IAHC report,

ICANN adopted a new mandatory Uniform Dispute

Resolution Policy (UDRP) in August 1999. The purpose

was to give trademark owner efficient means to deal

with cyber squatting.156

3.4.3.2 Requirements for Arbitration under WIPO.

According to UDRP, a trademark owner may force a

domain name registrant to have the dispute resolved

by an arbitrator panel if; the domain name is identical

154WIPO, WIPO Arbitration and Mediation Center, Dispute

Resolution for the 21st Century, p.2, available at
http://www.wipo.int/amc.
155 Lee Burgunder, Legal Aspects of Managing Technology, Fourth

Edition, Thomson/West Eagan, MN, United States of America,

2007,p.494.
156 Ibid p.492.

75
or confusingly similar to a trademark or service mark in

which a complainant has rights; the registrant has no

rights or legitimate interests in respect of the domain

name; and the domain name has been registered and

is being used in bad faith.157

3.4.3.3 Procedures for Arbitration under WIPO.

According to UDRP complaint may be filed to any

ICANN-approved dispute resolution provider158; WIPO

has to check for complaint compliance and notify

complaint and commencement of administrative

proceedings to the respondent. Filling of response by

the respondent within 20 days from formal

commencement. The panel is appointed upon receipt

157 Vakul Sharma, Information Technology-Law and Practice, 3rd

Edition (New Delhi: Universal Law Publishing Co.Pvt. Ltd. 2011)
p.528.
158 Such as Asian Domain Name Dispute Resolution Centre, CPR

Institute for Dispute Resolution, National Arbitration Forum, and

WIPO.

76
of the statements of acceptance and declaration of

impartibility and independent. The panel is expected to

issue its decision within 14 days of its appointment.

Notification of decision by WIPO to the parties,

registrars and ICANN. Lastly Implementation of the

decision by the Registrar pursuant to paragraph 4(k) of

the UDRP rules.

3.4.3.4 Some Cases.

Madonna Ciccone v. Dan Parisi.159 The complainant

famous sexual explicit musician owns U.S trademark

MADONNA for entertainment services. Parisi purchases

the registration for Madonna.com for $20,000 and

registered MADONNA as a trademark in Tunisia

operating adult entertainment at madonna.com. The

site contained a disclaimer of not associating with the

musician or any other entities relating to Madonna.

159 WIPO Administrative Panel Decision, case No.D2000-0847 (2000).

77
Madonna objected the use of the domain name, and

filed complaints to WIPO.

The Panel decided that, the domain name was

identical and confusing, and the complainant has

rights, thus domain name madonna.com was

transferred to the complainant.

Vivendi Universal v. Jay David Sallen.160The

complainant is a global communications company

that owns trademark Vivendi, universal and Vivendi

universal. The respondent registered

vivendiuniversalsucks.com as domain name. The Panel

held that, the respondent has acted in bad faith both

in registration and use of the disputed domain name,

thus domain name was transferred to the complainant.

160 WIPO Administrative Panel Decision, case No.D2001-1121 (2001)

78
3.4.3.5 International Laws on Enforcement of Arbitration

Awards.

The 1958 New York Convention on Recognition and

Enforcement of Arbitral Award, Geneva European

Convention on International Commercial, the 1965

Washington Convention on Settlement of Investment

Disputes between States and Nationals of other states,

and the 1975 Panama Inter-American Convention.

These international laws aimed at strengthening the

enforcement of the arbitral awards through enforcing

various decisions laid down by the authorised organs.161

Such as international Chamber of Commerce (ICC) 1919-1923,

161

London Court of International Arbitration (1883) etc

79
PART IV: CONCLUSION

4.0 Introduction.

“We need courage to throw away old garments which

have had their day and no longer fit for the

requirements of the new generation”.

Fridtjof Nansen.162

4.1 Tanzanian Laws in respect of Intellectual Property

and Competition Liability in Information Age.

Tanzania is one among the country which is highly

affected by an intellectual property rights‟ infringement

through the internet. There is no doubt that the laws

governing intellectual property in Tanzania do not have

either clear and specific provisions for management

and control of online piracy and other related illegal

162Vakul Sharma, Information Technology-Law and Practice, 3rd

Edition (New Delhi: Universal Law Publishing Co.Pvt. Ltd., 2011),
page 328.

80
activities such as uncompetitive behaviours or no

provisions at all, even though is a member of the Berne

Convention for the Protection of Literary and Artistic

Works and also ratified several multilateral instruments163

which have a bearing to the protection of intellectual

property.

Arbitration in Tanzania is regulated through section 64

of the Civil Procedure Code, CAP.33 R.E. 2002,

Arbitration Act CAP.15, R.E. 2002, which recognized

foreign awards as per sections 29 and 30 of the Act.

163 World Intellectual Property Organization Convention, 1967

(effective for Tanzania as from 30 December 1983); Paris
Convention (International Union) 1883–1967 (effective for Tanzania
as from 16 June 1963); Patent Cooperation Treaty (PCT) 1970
(effective for Tanzania as from 14 September 1999); Agreement on
the Creation of the African Regional Industrial Property
Organization (ARIPO), 1979 (effective for Tanzania as from 12
October 1983); (effective for Tanzania as from 01 September
1999); and Agreement on Trade Related Aspects of Intellectual
Property Rights (Annex 1C of the Marrakesh Agreement
Establishing the World Trade Organization), 1994

81
Fair Competition Act, 2003 is the main legislation which

regulates unfair competition in Tanzania and the

administering authority is the FCC.164Section 20(1) of the

Act provide for misleading representations about

certain business activities.

Among other things, the Act does not provide

competition liability on online basis. Section 2 of the Act

defines goods as; ships, aircraft, vehicle, animals

including fish, minerals, trees and crops, gas and

electricity, and service include rights and interests in

real or personal property, what about intangible

property? Does this mean software programs, audio

and video music are not part of the goods or service?

164Section 10 of the Fair Competition Act, 2003, prohibits a person

with a dominant position in a market to use his position of
dominance with the object, effect or likely effect of appreciably
preventing, restricting or distorting competition.

82
There is this saying, “He who does not prevent a crime

when he can, encourages it”.165 At this moment

Tanzania is in a good position to prevent or reduce any

infringement or uncompetitive behaviours relating to

intellectual property rights. It could be difficult if, there

would be no state with digital legislations, or

international digital legislations. But we have good

examples from various countries with such a piece of

legislations. Then what is the problem? Does that mean

the government encourages the infringements rather

than preventing it?

The Late US President John F. Kennedy said that,

“My fellow Americans, ask not what your country can

do for you, ask what you can do for your country”.166

It is true, even though the government act as a spanner

to fix every aspect of the citizen‟s life; however, it does

165 Available at: http//www.en.wikiquote.org/secena_the_younger

166 Available at: http//www.brainyquote.com/quotes.

83
not mean that it has absolute burden, because as the

first American President, Abraham Lincoln said about

democracy,

“The Government of the People by the People and for

the People”,

Then this shows the interdependence between the

government and the citizens. We must be the change

we desire to have, for instance, few experts with

enough knowledge of the law of intellectual property

and competition in the digital age, have to pioneer for

educating people from various positions such as in the

parliament, ministries, hospitals, schools and universities

and in the villages whereby a special care must be

taken. But in respect to the government;

Once Mahatma Gandhi, argued that,

84
“We get the Government we deserve. When we

improve, the Government is also bound to improve”167

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 technology168, and fully

participate in intellectual property specific legislation169

enactment because;

167Vakul Sharma, Information Technology-Law and Practice, 3rd

Edition (New Delhi: Universal Law Publishing Co.Pvt. Ltd., 2011),
page 46.
168In which result will be a benefit to consumers, users, rights

holders, service providers, and a benefit to national cultures and

economies - a true "win-win" situation.

169Inthe United States of America, Congress enacted copyright-

specific legislation as part of the 1998 Digital Millennium Copyright
Act (DMCA).

85
David Ben Gurion once argued that,

“It’s not enough to up to date; you have to be up to

tomorrow”170

That means the laws relating to Intellectual Property

especially in Copyright Protection, must not only looking

to the current status of copyright protection but also

considering the effects of it in the future because:

“Those who fail to anticipate the future are in for a rude

shock when it arrives”.171

Seen the problem it is not a problem, but seen the

problem and letting it the way it is, it is a problem. This is

simply because we have already seen the problem,

then what are our steps towards it? Are the steps we

170 Vakul Sharma, Information Technology-Law and Practice, 3rd

Edition (New Delhi: Universal Law Publishing Co.Pvt. Ltd., 2011),pg
xi.
171 See R G Smith, P Grabosky & G Urbas, Cyber Criminal on Trial

(2004) 156.

86
are taken sufficient enough to eradicate or reduce the

problem, currently and in the future?

If we can‟t protect our tradition intellectual properties

by encouraging indigenous individuals to be creative

and inventive and protect their inventions even if they

can be harmful if not well managed such as guns,

rather than threaten them to jail or death, then we

cannot protect the same individual in the information

age.

The government has to know that, few Tanzanians are

awakening now over the concept of intellectual

property and competition laws 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. It is time for

a change because the future is in our hands.

87
4.2 The Current Situation under Cyber Crime Act, 2015

Currently there is a new CYBERCRIMES ACT, 2015, in

which Act to a certain extent has tried to solve some

problems relating to protection of intellectual property

rights in digital environment.

For instance Section 3 of the Act172 has defined what

intellectual property rights mean state that;

"intellectual property rights"

means the rights accrued or

related to copyright, patent,

trade mark and any other

related matters;

Also the same section has tried to explain

the meaning of property as;

172 The Cybercrimes Act, 2015

88
"Property" means property of

any kind, whether movable or

immovable, tangible or

intangible, and includes-

(a) Any currency either as a

legal tender in the United

Republic of

Tanzania or not;

(b) Information, including an

electronically produced

program or data or copy

thereof, human or computer-

readable data; or

(c) Any right or interest in

property.

89
Furthermore section 24 of the Act state

that;

(1) A person shall not use a

computer system to violate

intellectual property rights

protected under any written

law.

(2) A person who contravenes

subsection (1) commits an

offence and in case the

infringement is on -

(a) non-commercial basis, is

liable to a fine of not less than

five million shillings or to

imprisonment for a term of not

less than three years or both;

or

90
 (b) Commercial basis is liable

to a fine of not less than

twenty million shillings or to

imprisonment for a term of not

less than five years or to both.

Despite of having this CYBERCRIMES ACT, 2015, still we

need to improve our other written laws such as

Copyright and Neighbouring Rights Act, [Cap.218 R.E.

2002] The Patents (Registration) Act Of 1987 [CAP 217

R.E. 2002] and The Trade and Service Marks Act of 1986

[Cap 326 R.E. 2002] so as to support these changes

which have been brought by this Act so as to strike a

balance between the protection of intellectual

property rights on traditional basis and on digital basis.

Having the laws which do not suffice or support our

existing situation is like having no laws at all, because it

is one thing to say something relate to patent,

91
copyright and trademark is wrong/crime under the

Cyber Crime Act, 2015 and it is another thing for the

same thing not to be described or express as a crime in

a particular piece of legislation.

Therefore, the laws relating to intellectual property

rights must be amended so as to accord with the

development of science and technology.

92
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Author’s Particulars:

Name: Asherry Magalla.

106
Home Address: 8401, DSM-Tanzania.

E-mail Address: magallajr@gmail.com

Phone No: +255716348882, +255687565680,

+255752140992

107