Saturday 2 July 2016

Afro Ng'ombe

Big Win for Copyright and Artists in Tanzania

Back in May, a large variety of news outlets announced a major copyright victory for two Tanzanian musicians, rappers AY (Ambwene Yessaya) and MwanaFA (Hamisi Mwinjuma), against telecom operator Tigo (MIC Tanzania Limited).  According to its Wikipedia page [which reads like it was written by Tigo’s PR department], the company is owned by European-based Millicom International Cellular.  The High Court’s decision in an appeal was supposed to be released on June 27, but Little Leo wasn’t able to find much on the High Court of Tanzania website, or elsewhere, in terms of a written decision from either the High Court or District Court.  As also, Afro Leo would love if someone has either decision to share.

Here’s what we know based on what’s been circulating in the news.  Tigo was selling AY and MwanaFA’s music to Tigo customers to use as caller tunes (called ringback tunes in America), the music that can replace the standard telephone ring a caller hears while waiting for the line to be answered.  At least two songs released on the Bongo label were at issue in the case, “Dakika Moja” (“One Minute”) and “Usije Mjini,” which were both written and performed by the duo.  The case was brought before Magistrate Juma Hassan in Ilala District Court (a district in Dar es Salaam) in 2012 and was decided on April 11, 2016.  The court held that Tigo infringed the rights of AY and MwanaFA’s musical works.  Tigo was ordered to pay Tsh 2.16 billion (about 2 to 3 million bottles of Coca Cola) in special damages and costs and another Tsh 5 billion or 25 million, depending on your source, in general damages. 

Tigo’s appeal brought the story back into the news again in May.  Tigo filed for a stay of execution with the High Court, arguing that the actual damage suffered by the artists was not proven and that the court should consider the benefits the artists received because of Tigo’s work to create and offer the caller tones with their songs.  [Presumably that magical “promotional” benefit for which all artists should be happy to work.]  Tigo also is arguing that the artists cannot prove rights to the songs because they do not have registrations from the Copyright Society of Tanzania (Cosota, which is the collecting society authorized by the Copyright Act, Art. 46 and the entity listed with WIPO as being the national copyright office).

What is unknown is which rights the court held were infringed.  Ringback tunes present interesting issues here that often turn into interesting arguments.  (Citations to articles in The Copyright and Neighbouring Rights Act 1999)  Are the ringback tunes adaptations because they are only a part of the song? (4(1)(f).)  Did (or does when the tune plays) the telecom company reproduce the work? (4(1)(a).)  Is the ringback tune a public performance even though it only plays to one person at a time because it could play to anybody and does play to multiple people over the time it’s in use? (4(1)(g).)  Is the telecom distributing the work by sending the ringback tone to its customer’s phones? (4(1)(b).)  It would be interesting to see how the court sorted these answers under Tanzanian law.  Also, was it only the musical works that were held to be infringed?  What about the phonogram/sound recording rights (32(1).) or performance rights (31(c) and (f).)?  We know that AY and MwanaMF wrote the songs and performed them.  Did they also produce them?  Are producer’s rights held by their label, Bongo Flava [likely], and was the label a plaintiff in the case?

Tigo’s registration issue is also unclear.  There’s no registration requirement in the Tanzanian Copyright Act.  It sounds like (see Mwananchi below) they are arguing that the artists must prove their collecting society membership in order to sue, but it is unclear from the information available whether Cosota was the (or a) plaintiff.  Most of the reports make it sound like the artists themselves won the damages, but one can easily see how the press might confuse a collecting society or label winning on behalf of an artist who was infringed with the artist winning.  [Of course, if it was Cosota or Bongo Flava, one would wonder why only sue for these two songs.  According to The Citizen (see below), most of the caller tones in use in Tanzania belong to Bongo Flava.] 

Lastly, what are those “general damages”?  The reports seem pretty clear that the Tsh 2.6 billion are actual damages for the plaintiffs.  But the reports interchangeably refer to the other amount (the 5 billion or 25 million) as “damages” and “fines.”  Article 36(1)(b) allows the court to award exemplary damages “if the infringement is found to have been prejudicious to the reputation of the person whose rights were infringed.”  Is that what happened here?  The Copyright Act also has a “sanctions” provision for knowingly infringing on a commercial basis, which allows the court to impose a fine up to Tsh 5 million or 3 years imprisonment (42(1)(a).)  This seems like an odd criminal remedy in a civil suit, but perhaps that is what is going on here, though neither proffered amount matches the limit. In any case, is this extra amount a fine that goes to the government or additional damages that go to the plaintiffs?

There’s a lot left to find out, but one thing is very clear—and it’s been said by the plaintiffs—having copyright upheld in court is a big win for young artists in East Africa.

Similar cases have been brought in Kenya--where Safaricom settled with JB Maina for using his works in ringtones without his approval—,and in Nigeria, where MTN is in trouble again.

News sources for the case:
The Citizen
Daily Nation
Hat tip to African Hip Hop Blog and their Podcast for discussing the story

Afro Ng'ombe

Afro Ng'ombe

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