جمهورية تنزانيا المتحدة

RSA Limited v HansPaul Automechs Limited and another, Commercial Case No. 160 of 2014, High Court of Tanzania, Commercial Division at Dar es Salaam

Songoro, J.

Date of Judgment: April 20, 2016

Facts

The plaintiff, an engineering company selling safari cars converted from Land Cruiser and Nissan car bodies, claims that the defendants infringed its copyright by using its engineering drawings to make and sell similar cars, causing damages to the plaintiff’s business. The plaintiff sought a perpetual injunction, specific damages and general damages for deliberate copyright infringement.

Holdings

(i) For a work to be protected as a copyright, under section 5 of the Copyright and Neighboring Rights Act [Cap. 218 R.E. 2002], the plaintiff has to prove that the work is original that the plaintiff is the creator. This can be done via a written notice on each copy of the copyrighted work. In the absence of sufficient notice, the aforementioned section enables the court to determine a finding of copyright in the work at dispute.

(ii) A written notice or any other form of notice like a sign "on the works itself stating (1) "the name of the original owner”, (2) that copyright exists on the work (3) restriction of the copyright on the works is sufficient proof under section 5 of the Copyright and Neighboring Rights Act [Cap. 218 R.E. 2002] that the original owner has a subsisting copyright on his works.

(iii) The "commercial practice" followed by authors, manufacturers, engineers and others of inserting notices or signs of copyright on their works, ensures order and fairness in the copyright claim regimes, and has been adopted by many, to the extent that, the practices of notices on works form part of the unwritten rules.

(iv) Visual appearance alone may not be conclusive proof of infringement of copyright where the drawings and objects look similar.

Decision

(i) In the absence of any notice on the works itself or credible evidence from the works itself the Court has no legal basis of finding that the plaintiff is the original owner of the drawings and designs or that copyright subsists on drawings and designs.

The visual appearance of the cars was not conclusive. Although the cars looked similar, the plaintiff was bound to bring credible evidence on the analysis of parts, and drawings supplied by both parties to prove a claim of copyright infringement. The plaintiff’s and the defendant’s models of convertible cars similar visual appearance was not caused by the use of the same drawings, but because the models of cars were the same.