INTELLECTUAL PROPERTY LAW UPDATE: NAVIGATING THE IPR LANDSCAPE IN TANZANIA AS A CORNERSTONE FOR TANZANIAN EMERGING VENTURES.

• What are the intellectual property rights (IPRs).
• What are the laws governing the registration and protection of the IPRs in Tanzania.
• What is the existing regulatory framework for the IPRs in Tanzania.
• Why is it important for startups to protect their IPRs?
• Existing challenges around IPRs
• Specific recommendations based on the existing IPR issues.

1. Introduction

The Tanzanian Startup Association (TSA) and Breakthrough Attorneys are excited to present this Article series highlighting the significance of intellectual property rights in protecting and nurturing innovative emerging businesses, the underlying legal framework, and also underscores the benefits of  intellectual property (IP) registration for startups, addresses challenges in intellectual property rights (IPR) protection, and provides actionable recommendations.

As the entrepreneurial landscape is witnessing a remarkable transformation in Tanzania, with emerging ventures playing a key role in driving economic growth and innovation, these ventures are often characterised by their creativity, resilience, and determination to succeed. However, in the modern business world, (IPR) have become a cornerstone for the survival and prosperity of any business. In Tanzania, intellectual property rights are categorised into several forms, including patents, copyrights, trademarks, industrial designs, and trade secrets. Each form serves a unique purpose in protecting various aspects of a startup’s innovations.

Before diving into IPR, it is important to understand what intellectual property is. IP is generally characterised as a non-physical property that is the product of original thought. IP may also refer to creations of the mind, such as inventions, literary and artistic works, designs and symbols, names and images used in commerce. On the other hand, IPRs are any and allrights associated with intangible assets owned by a person or company and protected against use without consent. IPRs are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time. There are rights which protect creativity relating to authorship and artistic works, and there are rights which cover inventive works. From this categorization, we get the two main groups:-

2. Copyrights:

Copyrights are the sole legal rights to print, publish, perform, film or record literary, artistic or musical works. Under Copyrights, there are two kinds of rights, to which the authors of the works are entitled to. These are Economic Rights and Moral Rights.  The Economic Rights include reproduction of the work, distribution of the work, rental of the original or copy of an audio-visual work, public exhibition of the work, translation of the work, adaptations of the work, public performance of the work and importation of copies of the work.

On the other hand, Moral Rights refer to the rights of the author to claim authorship of his / her work. This entails the right to object and to seek relief against any distribution, mutilation, other modification of, and any other derogative act in relation to his / her work, where such deed would be or is detrimental to his/her character. Copyright is governed by the Copyright and Neighbouring Rights Act 1999 as amended from time to time. The Copyright Society of Tanzania (COSOTA) is actively involved in addressing copyright matters within Tanzania, particularly in the areas of legal dispute resolution, work registration, anti-piracy efforts, licensing, and royalty distribution etc. More details on the fee structure can be found on their website.

3. Industrial Properties:

3.1. Trade/service marks

A trade/service mark is a visible sign that distinguishes the goods or services of one trader from those of another. It could be a word, phrase, symbol, or design that appears on the product being sold and which serves to distinguish itself from other words, phrases, symbols or designs in the market. This is guided by the Trade and Service Marks Act, of 1986. Amidst the excitement of bringing new products or services to the market, many startups overlook a crucial aspect of their business strategy – trade and service marks. Trademarks protect a startup’s brand identity but also play a key role in fostering trust, ensuring legal compliance, and promoting long-term growth. Startups need to prioritize the registration and protection of their marks to ensure the long-term success and sustainability of their businesses. With a strong brand identity and legal safeguards in place, startups will be able to navigate the competitive Tanzanian market with confidence and resilience.

3.2. Patents/utility model

A Patent is an exclusive right for an invention. It is a set of exclusive rights granted by a sovereign state (and with the development of the law and concept, registered by multinational intellectual property organizations such as WIPO and ARIPO) to an inventor or assignee for a limited period in exchange for detailed public disclosure of an invention. An invention is a solution to a specific technological problem and is a product or a process. The patent matters in Tanzania are covered under the Patents (Registration) Act, Cap. 217 and Patent protection in Tanzania Mainland is 10 years while in Zanzibar is 20 years as articulated under the Zanzibar Industrial Property Act, 2008 (Act No. 4 of 2008).More detailed on the registration of patents can be found here, patents registration fee structure.  Application for patent registration in Tanzania goes through the Tanzania Patent Office at the Business Registrations and Licensing Agency (BRELA). After filing the application, there are a number of steps which the patent office has to take before one can be granted a patent. Obtaining a patent is crucial to protection as instead of it, a startup’s innovative ideas are likely to be vulnerable to theft or exploitation by competitors. Patents provide a legal shield against such threats, allowing startups to maintain control over their inventions.

3.3. Geographical indication
Geographical indication relates to the protection of products which have certain attributes with certain characteristics attributable to certain geographical locations. The concept of geographical indication has not been popular in Tanzania and it has not been provided for under the law. However, in recent years, the country has emerged as a fertile ground for entrepreneurial endeavours, with a fast-growing startup ecosystem that showcases innovation, resilience, and a commitment to sustainable economic growth. Geographical Indication holds promise of contributing to product sovereignty and quality, within an efficient marketing system and availability of government support. GI allows for the efficient protection of unique products with their qualities attributed to a particular geographical origin.

3.4. Industrial designs
Industrial design is the outward appearance of a product which gives it a special appearance and attraction. It is the process of designing the shape, and features, of manufactured products.  It encourages innovation in product aesthetics and helps prevent competitors from capitalizing on the creative efforts of designers and companies. African Regional Intellectual Property Organization (ARIPO) provides the avenue for securing design protection in Tanzania and Zanzibar and this is achieved through the process of registration. In a dynamic market like Tanzania, where startups are emerging and rapidly scaling, the aspect of industrial design takes on added importance. It not only distinguishes their offerings in a crowded marketplace but also safeguards their creative efforts from being exploited by competitors. This protection literally proves invaluable in maintaining a competitive edge.

4. Existing Regulatory Framework

The protection of intellectual property rights has been put under the mandate of the following government agencies and institutions including the Business Registration and Licensing Agency (BRELA), Copyright Society of Tanzania (COSOTA) as well as Fair Competition Commission (FCC) especially in promoting and protecting effective competition in trade and commerce and protecting consumers from unfair and misleading market conduct. This function includes curbing counterfeit goods/services and misuse of trade/service marks.

5. Why is it important for startups to protect their IPRs?

Protection of the IPRs is important as it enables the startups to commercialize their IPRs. This process gives room for the startups to exploit their IP assets for financial gain, through selling or licensing their IPRs to third parties. This in turn enables the startups to get payment for the respective IP assets through payment of fees and royalties.

Registration of the IPRs is instrumental in promoting technology transfer and boosting innovation, through foreign direct investment, joint ventures and licensing. The startups can leverage their IPRs to close these kinds of arrangements and deals with the investors while ensuring that they will get economic benefits. These are important even at the stage of acquisition of the startups, as they include the value of their IPRs in the purchase price.

Enables the startups to take legal action against the infringement of their registered rights. Through the registration of their IPRs, the startups can opt for various recourses such as filing suits in Courts, out-of-court mediation/negotiation or resorting to the use of an anti-competition agency (FCC).

The protection of the IPRs ensures consumer protection. With the protection of distinctive signs of their products, the startups protect the consumers by enabling them to make informed decisions/choices between various goods and services.

The protection IPRs protected the invention of the startups. Since startups have innovative solutions within their products, those inventions need to be protected to maintain their competitive advantage in the market and establish a noticeable brand, that introduces the products to the local and international market. This gives the entity a unique recognition and presence in the market.

6. Existing challenges around IPRs

Non-protection of some of the IPRs. Our laws do not have the mechanisms to protect some of the IPRs in Tanzania. Currently, in Tanzania, there is no legal mechanism to protect and enforce the protection of geographical indications or industrial designs. This is a challenge as it hinders the protection of the IPRs for the startups intending to venture into these areas.

The absence of the IPR policy brings hardship in the implementation of the IP laws. This is among the factors that frustrate foreign-directed investment and technology transfer. Most of investors need assurance on the stability and firmness of the IP legal framework.

The complexity of some of the registration processes for the IPRs. For instance, the registration of patents in Tanzania is complex and requires technical know-how and expertise. These are challenging to the startups who cannot get hold of the expertise and funds to pay these experts.

Some of the laws are outdated and need to be updated to reflect the current development around innovation and commercialization aspects. In addition, there are some IPRs which are not protected under our current legal regime, such as trade secrets, geographical indicationsand industrial designs.

Inadequate protection systems and mechanisms. This is a challenge because most of the IPR holders need to be their own police to guard against infringement. The startups would need to be at the forefront to follow up and ensure that their protected IPRs are not infringed, while ordinarily, the protection mechanisms should be the ones doing that task.

The enforcement and protection process may be costly and hence become impossible for the startups to pay for the required processes.  Taking into account most of the start-ups are struggling with the funds to manage their operations.

7. Specific recommendations based on the existing IPR issues

1. The existing IP laws should be reviewed to accommodate new trends and developments occurring within the IP global space.
2. This process should go hand in hand with the legislation of new IP laws for the IPRs which are not yet protected.
3. There should be a waiver for startups that intend to protect their IPRs. In alternative startups should be allowed to pay a lower range of fees for the registration processes. This will open doors to start-ups being able to protect their IPRs.
4. There should be increased sensitization and practical knowledge of IPRs for startups. This will help the start-ups to integrate the IP assets into their business planning and strategy.
5. There should be put in place policies and incentives that encourage local inventions, research and development, innovation and technology transfer.
6. The protection measures and mechanisms should be revisited to come up with effective ones, to discourage piracy, copying and counterfeit products.

In this era where many youths have engaged in self-employment through start-ups and innovation, intellectual property ownership and protection are no longer a luxury but a necessity. We advise the start-ups to ensure that they take seriously the issues around IP and to register their works at the outlined agencies/institutions to have guaranteed protection of their IP rights. With the proper advocacy and sensitization, the challenges around IPRs will be resolved gradually.

8. Conclusion

In summary, navigating the IPR landscape is an important aspect of Tanzanian emerging ventures. The enabling environment with supportive sector-specific incentives tailored to startups, the right strategies and legal support are key to achieving this. Additionally, there’s a pressing need for more awareness programs and sensitization efforts to ensure that emerging businesses in Tanzania thrive in an environment that both values and safeguards their intellectual property.

 

 

Important Notice:

This publication has been prepared for general guidance on matters of interest only, and does not constitute professional advice. You should not act upon the information contained in this publication without obtaining specific professional advice. No representation or warranty (express or implied) is given as to the accuracy or completeness of the information contained in this publication, and, to the extent permitted by law, Breakthrough Attorneys, its members, employees and agents do not accept or assume any liability, responsibility or duty of care for any consequences of you or anyone else acting, or refraining to act, in reliance on the information contained in this publication or for any decision based on it.