MacMillan Aidan (T) Ltd versus Nyambari Nyangwine and 2 Others; Commercial Case No 81 of 2010: High Court of Tanzania (Commercial Division) at Dar es Salaam (Unreported).
- Intellectual Property.
- Copyright – copy right defined
- Copyright – what amounts to infringement of copy rights?
- Copyright - what is protected in copyrights?
Held:-
(i) Copyright entail a bundle of exclusive rights that enable the creator to control the economic use of such works whereby he or she through such exclusive right may authorize or restrict inter alia, reproduction of a work in copies, distribution of the copies to the public, translation or adaptation of the work.
(ii) Infringement of copyright occurs when a substantial, a vital and an essential part of a work is reproduced. Therefore, evidence to establish infringement of a copyright must show substantial similarity between the work subject of infringement and the infringing material or work. Such similarity is determined by the ordinary observer test of ‘whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work (Cited Ideal Toy Corp v. Fab –Lu Ltd, 360 F. 2d 1021, 1022 (2d Cir 1966).
(iii) Ideas, concepts and the like found in the common domain are the inheritance of everyone. What is protected is the original and unique way that an author expresses those ideas, concepts, principles or processes. Hence in looking at the two works or art to determine whether they are substantially similar, focus must be on the similarity of the expression of an idea or fact, not on the similarity of the facts, ideas or concepts themselves. (Cited Durham Industries, Inc v. Tomy Corp. 630 F. 2d 905,912 (2d Cir. 1980).