Macmillan Aidan (T) Limited v Nyambari Nyangwine, J.A. Masebo and Nyambari Nyangwine Publishers, Commercial Case No. 81 of 2010, High Court of Tanzania, Commercial Division at Dar es Salaam
Date of Judgment: March 14, 2016
The author of Mfadhili vested their copyrights to the plaintiff via a Memorandum of Understanding, leaving the plaintiff as the sole copyright owner. The plaintiff sued the defendants, alleging that defendant published, sold, and distributed a book titled Tahakiki, a review of the plaintiff’s book titled Mfadhili, which caused sales of the plaintiff’s book to drop. The plaintiff sought declaratory relief, injunctive relief, compensation for loss of revenue (equalling TZS 87,500,500/), general and punitive damages, and attorneys’ fees.
(i) Generally, copyright vests in the Author, which includes the exclusive right to reproduce the work, to prepare derivative works, and distribute copies of the work. However, the publisher retains the exclusive right to publish and distribute the work in all forms throughout the duration of the copyright. Copyright infringement is a violation of an exclusive right unless otherwise agreed.
(ii) The infringement of the reproduction right must show substantial similarity between the work and the allegedly infringing material.
(iii) Substantial similarity between the work subject of infringement and the infringing material is determined by the ordinary observer test: whether a lay person “would recognize the alleged copy as having been appropriated from the copyrighted work.” The analysis must focus on the similarity of the expression of ideas, not the similarity of the facts, ideas, or concepts themselves.
(iv) Substantial similarity between a work and a review of the underlying work may not be found if the overall arrangement, organization, and expression of the two works are different, even if the review quotes the underlying work.
(v) It would be problematic if copyright owners were allowed to seek damages for copyright infringement alleging that a negative review of their work caused damage to their sales.
“Tahakiki” is substantially different in the expression of its ideas (content, form, and style) from “Mfadhili.” Thus, there is no copyright infringement. The defendants were awarded the costs of the suit and the suit was dismissed.