ASHERI JUDGEMENT

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 11762 OF 2024 (Appeal arising from the decision of the Resident Magistrate’s Court of Dar es Salaam at Kisutu before Honourable R.S.Mushi-PRM dated 24/04/2024 in the Civil Case No. 58 of 2023) ASHERI KALIMANZILA WILBARD……..……………….. APPELLANT VERSUS AZAM MEDIA LIMITED………….…………………...1st RESPONDENT MAJADORY GROUP OF COMPANIES LIMITED………………………………………………...2nd RESPONDENT JUDGMENT MKWIZU, J The facts leading to this appeal are straightforward. The plaintiff, a registered artist and copyright owner under the Copyright Society of Tanzania (COSOTA), initiated legal proceedings against the 1st respondent, a limited company engaged in broadcasting. The 2nd respondent, his agent, was later joined to the suit by the 1st respondent as a third party for the unauthorised use of his copyrighted artistic work titled "SAWA" in the television series "KOSA MOJA." Plaintiff alleges that after being approached by Defendant's agent to create a demo for the series, he incurred expenses in good faith with the expectation of reimbursement, which defendant subsequently failed to 1 provide. Despite expressing his objections to Defendant’s use of his work, the unauthorized use continued, leading to significant economic losses and damage to Plaintiff's reputation. Efforts to resolve the matter amicably through mediation with COSOTA were unsuccessful, prompting the Plaintiff to pursue legal action seeking a judgment against the defendant for copyright infringement and unjust enrichment due to unauthorised use of his sound, rhythm, and lyrics; an order for the Defendant to stop using his copyrighted material and to remove it from all platforms; payment of TZS 585 million damages, additional royalties, and interest of 15% per annum from the date of the infringement until judgment, as well as 12% per annum on the total amount from judgment until full payment. He also sought aggravated damages and costs of the suit. At the end of the trial, the trial magistrate found the suit unmeritorious. It was concluded that the Plaintiff's claim of substantial copyright infringement regarding the soundtrack "Sawa" is unfounded. It determined that the plaintiff was provided with content for the song he was creating, similar to that of another singer involved in the series and that the plaintiff did not create the song used in the series. The appellant, the original plaintiff, is unhappy with the above decision; he has appealed to this court on the following grounds. 2 1. That, the Trial Court erred in law and fact for failure to analyse and consider the evidence tendered by both parties and only relied on mere words of the 2nd Respondent. 2. That the Trial Magistrate erred in law and fact by holding the Third Party is the lawful owner of the soundtrack ‘SAWA’ (Song, Melody and lyrics) while the Appellant tendered before the Honourable Court the COSOTA copyright clearance certificate of the registered Artistic work. 3. That, the Trial Magistrate erred in law and fact by not finding that the Defendant and Third Party failed to establish the lawful ownership of the artistic work ‘SAWA’ (Song, melody and lyrics) before the Honourable Court. Regarding the first ground of appeal, it is submitted that the trial court erred in both law and fact by failing to analyse and adequately consider the evidence presented by both parties and, instead, relied solely on the unsubstantiated statements of the second respondent. Citing the case of Paulina Samson Ndawavya vs Theresia Thomasi Madaha, Civil Appeal No. 45 of 2017, Court of Appeal at Mwanza (unreported), The appellant's counsel contended that the court is duty-bound to analyse the evidence from both parties to reach a just and equitable decision. He 3 stated that the appellant tendered a total of seven exhibits to substantiate his claims, including a Copyright Certificate (Exhibit P1), a flash drive containing the original song (Exhibit P2), a flash drive featuring the copied work aired by Azam Media (Exhibit P4), and a video featuring the producer (Exhibit P6), all of which proved his case to the requisite standard. He said DW1 asserted that the 2nd respondent owned the song as they engaged the singer involved in the dispute; during cross-examination, she conceded that verifying ownership typically requires documentation such as a business license, a COSOTA Copyright Certificate, and contracts for all participants in the production, none of which she had provided. Furthermore, when questioned by Advocates Mahinyila Deogratias and Mukhtar Hassan on behalf of the 2nd respondent, DW1 acknowledged that no verification of ownership had been conducted. Although the 2nd respondent promised to obtain the necessary certificates, the series had already been broadcast by the 1st respondent (Azam Media) before this process was completed admitting that the series was broadcast prematurely, indicating the possibility of errors in their claims of ownership. He believed the second respondent failed to prove ownership of the disputed artwork. DW2 did not present agreements with the artists, 4 payment receipts, a Copyright clearance certificate from COSOTA, or key witnesses such as someone from YOGA BEAT in Sinza or an individual named Elizabeth. He criticised the trial magistrate for arriving at an incorrect conclusion that the appellant and the second respondent were in an employer-employee relationship based on the hire principle despite the absence of any evidence presented by the second respondent to substantiate such a claim. He contended the impugned judgment relied primarily on the mere assertions of the 2nd respondent while disregarding the substantial evidence presented by the appellant, which unequivocally established that the artistic work in question was original, belonged to the appellant, and that he is indeed the creator of the song titled "SAWA." He relied on the case of Tanzania China Friendship Textile Company Limited Vs. Nida Textile Mills (T) Limited, Civil Case No. 106 of 2020, High Court of Tanzania at Dar es Salaam (Unreported) citing a case of RSA Ltd v. Hanspaul Automech Ltd & Another, HC-Comm. Case No. 160 of 2014 (unreported). He invited the court to reevaluate the evidence and reach a just decision since this power is well within this Court's reach. In addressing the second and third grounds of appeal, the appellant's counsel argues that presenting someone else's work as one’s own constitutes copyright infringement. The performer's identity is irrelevant; 5 what matters is that the plaintiff owns the song. Any imitation of the soundtrack, melody, beats, or lyrics constitutes copyright infringement. Therefore, the trial court erred in reasoning that the gender difference between the singers in Exhibits P2 and P4 negated potential infringement, arguing that copyright law focuses on ownership and copied expression rather than the performer. Thus, the melody, lyrics, and beat similarity indicate substantial evidence of infringement. He cited Tanzania China Friendship Textile Company Limited vs. Nida Textile Mills (T) Limited (Supra). He further argued that the trial court’s assertion on page 12 of the judgment, which claims that the identified similarities do not constitute substantial exploitation, is flawed. Such similarities arise from a form of expression, not from an idea, and the original creator is the Appellant. He believes that the assertion made by the second respondent, claiming that Elizabeth sang the soundtrack and that Yoga Beat recorded it in Sinza, lacks evidentiary support as the essence of this dispute pertains not to who performed or recorded the work but to copying the original artistic expression by the respondents. The counsel argued that the appellant owns the song "SAWA" and claims DW2 copied it for "Kosa Moja." The appellant provided Exhibits P1, P2, 6 and P4 as evidence of copyright infringement by the first respondent, who included elements of the appellant's song. The trial court's judgment suggested DW2 copied the work after hearing Exhibit P2, contesting the claim of no evidence of the performer’s knowledge. The appellant asserted that DW2’s admission of listening to the song and asking someone to perform it indicates awareness of the original work. Counsel argues that the trial court erred in finding insufficient evidence of the performer's awareness. He urged the court to allow the appeal and reverse the trial court’s judgment with costs. Counsel representing the 1st Respondent contends that the Appellant's assertion regarding the trial court's failure to adequately evaluate the evidence is baseless. The trial magistrate meticulously reviewed evidence from both parties and synthesized it in the judgment, resulting in a just outcome. Counsel emphasizes that the numerous exhibits presented by the Appellant do not guarantee a favorable verdict; rather, the weight of the evidence must be assessed in conjunction with the pertinent issues of the case. He posited that the appellant's grievances concerning the trial court's alleged oversight of the evidence provided by DW1 during cross- examination are unsubstantiated. The records from the trial court, he said, 7 reflect that the 1st Respondent acted solely as a broadcaster and was neither the owner nor the producer of the soundtrack in question, which was utilized in the film broadcast by the 1st respondent. The onus of verifying copyright ownership lay with the 2nd respondent, as delineated in Exhibit D1. Thus, the trial court evaluated the evidence appropriately grounded in the presented issues. Counsel elaborated that the primary issue before the trial court was whether the Defendant and the third party infringed upon the Appellant’s exclusive copyright in the artistic work titled "Sawa." The testimony of PW1 (the Appellant) indicated the existence of an oral hire agreement with the 2nd Respondent, asserting that the disputed soundtrack was intended for use in the film "KOSA MOJA," produced by the 2nd Respondent. Both PW1 and DW2 corroborated that an agreement had been reached to develop the soundtrack specifically for the film. The trial court accurately examined the evidence presented by both parties to ascertain whether an infringement of the Appellant’s copyright had occurred. A summary of PW1’s evidence can be found on pages 4 to 5 of the trial court’s judgment, detailing the testimony that implicated the 2nd respondent. Furthermore, DW2’s testimony succinctly summarises on 8 page 7 of the judgment. The trial court’s analysis, which spans pages 8 to 13, reflects a thorough consideration of the conflicting evidence and ultimately resulted in a well-reasoned verdict based on this comprehensive assessment. Regarding the trial court's alleged application of the hire principle, the 1st respondent's counsel asserted that the evidence provided by PW1 and DW2 supports the conclusion that PW1 was hired to prepare the soundtrack for use in the film. Therefore, it was appropriate for the trial court to apply this principle when evaluating the evidence. In respect to the 2nd and 3rd grounds of appeal, the counsel for the 1st Respondent asserts that the arrangement between the Appellant and the 2nd Respondent was established in 2021. Under this arrangement, the 2nd Respondent commissioned the appellant to create a soundtrack, providing the lyrics to ensure thematic alignment with the film. The 2nd respondent also authored the film's script and supplied the necessary lyrics for incorporation into the soundtrack. Subsequent to the rejection of the soundtrack by the 1st respondent, the appellant registered the soundtrack with the Copyright Society of Tanzania (COSOTA) on January 16, 2023, with the intention of initiating this infringement action. The counsel underscored that the engagement of the appellant by the 2nd 9 respondent occurred prior to the registration of the song "Sawa." Therefore, under Section 15(1) of the Copyright and Neighbouring Rights Act, Cap 218, the copyright in the produced soundtrack resides with the hirer or employer. To clarify further, he stated that the trial magistrate had the opportunity to evaluate Exhibits P2 and P4, which pertain to the soundtrack. While assessing these exhibits, the magistrate noted several differences, including the genders of the performers; specifically, the disputed soundtrack was not sung by the appellant but rather by an individual named Elizabeth, with the work in question being produced by Yoga Beats, which is sufficient to support the conclusion that infringement did not happen. In reference to the cited case of Tanzania China Friendship Textile Company Limited vs. Nida Textile Mills (T) Limited (supra), it was stated that for a work to qualify for copyright protection under Section 5, the plaintiff must demonstrate that the work is original and proprietary in the truest sense and that the plaintiff is the creator thereof. In this case, the appellant's claims are limited solely to the melody and lyrics of the specific soundtrack rather than to the entirety of the work, which contravenes the stipulations articulated in Section 5 of Cap 218 R.E. 2002. 10 He observed that after considering the testimonies by PW1 and DW2, the trial court was suitably equipped to ascertain the party responsible for contracting the appellant and supplying the lyrics to the soundtrack. The lyrics presented by the 2nd Respondent were directly aligned with the film's central theme. The judgment rendered by the trial court specifies on page 13, paragraph two (lines 9 to 13), that the appellant received the song's content for creation. This process mirrors the work of another artist associated with the series. This indicates that the appellant did not originate the foundational concept, establishing that the song featured in the 1st respondents’ series was not attributed to the appellant. In support of the first ground of appeal, the counsel for the second respondent contends that the evidence presented demonstrates that the appellant is not the legal owner of the song in question, which allegedly forms the basis of the copyright infringement claim against the first respondent. It has been established that the 2nd respondent compensated the appellant in the amount of TZS 200,000 for the recording and presentation of his acoustic work, which was originally intended for inclusion in a television series. However, the appellant’s rendition of the song was ultimately deemed unsuitable for the intended purpose. 11 Consequently, the second respondent opted to engage a different artist to produce an alternative version of the song for the series. The counsel asserts that to substantiate a claim of copyright infringement, the Appellant bears the burden of demonstrating substantial similarity between the work alleged to be infringed and the infringing material. He banked on the case of Macmillan Aidan (T) Ltd Vs Nyambari Nyangwine And 2 Others, Commercial Case No.18 0f 2010 at page 9 while citing the case of Durham Industries, Inc. Vs Tomy Corp, 630 F.2d 905,912 (2d Cir. 1980), where court observe that; “we recognize that ideas, concepts, and the like found in the common domain are the inheritance of everyone. What is protected is the original or unique way that an author expresses those ideas, concepts, principles or processes. Hence, in looking at these two Works of 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”. He insisted that the second respondent used a different version to record the soundtrack, which is quite distinct from the appellant's soundtrack and does not constitute copyright infringement. 12 Countering the second ground, he endorsed the trial court's findings that the third party is the lawful owner of the soundtrack ‘SAWA’ (including the song, melody, and lyrics) because, after the appellant neglected to record the song for use in the TV series, the 2nd respondent opted to hire another person, a woman, to record the song. Consequently, the third party is recognised as the lawful owner of the soundtrack, as they were the ones who engaged the other artist to create a different version for the recording soundtrack. He also cited Tanzania China Friendship Textile Company Limited Vs Nida Textile Mills (T) Limited, (Supra), and section 15(4) of the Copyright and Neighboring Rights Acts, Cap 218 R.E. 2002 On the third ground of appeal, the counsel for the second respondent argues that the court records indicate that both the defendant and the second respondent are the rightful owners of the soundtrack in question, as evidenced by Exhibit D1, which shows that the second respondent was obligated to create a series for the defendant to broadcast. In this context, the second respondent engaged the appellant to prepare the soundtrack for the series and paid the appellant a sum of TZS 200,000 before hiring another female singer to perform the soundtrack, resulting in a different version intended for use in the television series. This sequence of events 13 bolsters the assertion that the first and second respondents are the legal owners of the soundtrack, including the song, melody, and lyrics. In conclusion, he requested the dismissal of the appeal costs. Rejoining, the counsel for the appellant articulated that although both Respondents assert that the trial Court sufficiently analyzed the evidence, they did not sufficiently address the specific concerns raised by the appellant regarding the cross-examination process, thereby implying an acknowledgement of those issues. Furthermore, the 1st respondent, in their capacity as a broadcaster, neglected to authenticate the ownership of the soundtrack, which significantly contributed to the erroneous decision rendered by the trial Magistrate. The first respondent's assertion that the appellant received the lyrics fails to accept that the appellant's claim relates to the infringement of the entirety of the artistic work and that the second respondent did not produce essential witnesses to establish her ownership of the disputed work and did not provide evidence to support her assertion regarding the appellant's compensation. He reiterated his position and prayers. 14 This being a first appeal, this court is duty bound to re-evaluate the entire evidence and come to its conclusion as was aptly stated in the case of Selle versus Associated Motor Boat Co. [1968] EA 123 that: “Reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that is has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Ham eed Saif vs. Ali M oham ed Sholan (1955), 22 E.A.C.A 270.” I will go by the above rule. After thoroughly re-evaluating and accurately analyzing the record in light of the three grounds of appeal, the rival submissions, and the legal principles cited by both parties, it is evident that the plaintiff (appellant) 's authorship of "SAWA" was never in dispute and, consequently, does not form part of the current appeal. The core issue before the trial court 15 centred on whether the defendant and the third party infringed upon the plaintiffs' exclusive copyright to the artistic work "SAWA." I have conducted a thorough and conscientious evaluation of all pertinent evidence. It is evident from the plaintiff's complaint and accompanying plaint that Faraja approached him in December 2021, who requested the creation of a soundtrack intended for use as background music in the film "KOSA MOJA," produced by the second respondent. According to the testimony of PW1, they arrived at a mutual agreement regarding the expected deliverables. Subsequently, the plaintiff composed a demo within the same month, with assistance from his producer, Msajigwa (PW2). This demo was presented to Faraja, who then instructed the plaintiff to await further guidance. Despite the plaintiff's attempts to inquire about production costs with Faraja he received no responses. Testimony from DW2 corroborates that he engaged the plaintiff to develop a soundtrack demo, providing the necessary lyrics drawn from the series, with the understanding that a formal contract would be established upon acceptance of the work. Regrettably, this work was ultimately rejected, and the plaintiff received compensation of TZS 200,000 for his efforts. This is where the legal doctrine of "W ork for Hire" comes in. 16 The appellant complains that the principle of work-for-hire was erroneously applied to the facts, leading to the improper conclusion that the Third Party owned the soundtrack "SAWA," which encompasses its songs, melody, and lyrics, disregarding the Appellant's established rights, as evidenced by the COSOTA copyright clearance certificate for the registered artistic work. I am, however, firmly of the opinion that since the plaintiff claimed ownership of the complete work, while the second respondent maintained that the plaintiff was explicitly contracted to execute this work, the invocation of the doctrine was necessary to determine the rights associated with the produced work and the related claims of copyright ownership. Within our jurisdiction, sections 5(1)(2) and 15(1) of Cap. 218 establish protections for literary and artistic works. The original creator, referred to as the "author" of a work, retains exclusive rights, including the rights to reproduce the copyrighted work, prepare derivative works, distribute copies to the public, publicly perform the copyrighted work, and display the works, among others. Nevertheless, this provision is not devoid of exceptions. Section 15(4) of Cap. 218 introduces exceptions to this general principle: 17 “15(4) In the case of a work created by an author for any person or body corporate in the course of fulfilment of his or her duties under a contract of service or employment, the rights of the work referred to in section 9 shall, in the absence of contractual provisions to the contrary, be deemed to be assigned to the employer of the author to such extent as may be necessary to its customary activities at the time of the conclusion of the relevant contract of service or employment.” The above provisions introduce what is universally referred to as “works for hire." described in Community for Creative Non-Violence v. Reed, 490 U.S. 730 (1989), cited by my brother Ismail J ( As he then was) in Tanzania China Friendship Textile Company Limited vs Nida Textile Mills (T) Limited (supra) as follows “If a w ork is m ade for hire, an em ployer is considered the author even if an em ployee actually created the w ork. It must be ascertained whether a work was prepared by (a) an employee or (b) an independent contractor. If an employee created the work in the course of his or her employment, it will generally be considered a work made for hire.”( Emphasis added) 18 In other words, when a work is designated as a “w ork m ade for hire,” the author is not the individual who actually created the work. Rather, the entity that engaged this individual is recognised as the author and copyright holder of the work owner. Determining whether a work qualifies as having been created for hire is contingent upon its creation's circumstances. Section 15, subsection 4, of Cap 218 outlines two scenarios for establishing a work made for hire: (i) w hen an em ployee creates the w ork as part of their regular job responsibilities, and (ii) w hen a specific w ork is produced under an agreem ent betw een the creator and a party that ex pressly orders or com m issions that w or k. In such instances, the employer or the commissioning party is recognized as the author and copyright holder. At this juncture, the primary issue that necessitates examination is whether the plaintiff’s work constitutes a "w ork for hire" or an independent creation of the appellant that warrants full protection under copyright law. This inquiry can be effectively addressed by evaluating several key factors: (i) the purpose for w hich the song or artistic w ork w as created; (ii) the identity of the individual w ho initiated the underlying idea; (iii) the presence of any directives or 19 instructions from the defendants regarding its developm ent; and (iv) the tim ing of the w ork's creation. The reason for creating the complained demo used by the 1st respondent is well reflected in the plaint filed by the appellant (plaintiff) at the trial court. Paragraph 8 of the plaint says: “8. That sometimes in December 2021, an agent of the defendant contacted the Plaintiff to create a demo song to be used as the background music for the Defendant’s television series “KOSA MOJA” w hich w as to be presented and if accepted then be included by the Defendant as a crucial piece of art to introduce the series story to the audience as they are w atching the television series”( bold is m ine ) In summary, the paragraph indicates that in December 2021, the agent of the defendant, who seems to be the second respondent in this appeal, contacted the plaintiff to create a demo song for the television series "KOSA MOJA," which is aired by the defendant, the first respondent. This fact is supported by PW1 and Dw2; their testimonies confirm that the appellant and the second respondent agreed to prepare the soundtrack intended for use in the film. Further collaborative evidence is also found 20 in the plaintiff's evidence, the demand notice (exhibit P5) particularly paragraphs 5, 6 and 8, which are drafted thus; 5. That on December 11,2021 our client was approached by one Mr David Emmanuel, Director of Photography/ Cameraman to create a demo song to be used as the background music for the television series “KOSA MOJA” which was to be presented and if accepted then aired by AZAM MEDIA LIMITED on one of their platforms. 6. That our client agreed to produce the demo song, and due to the urgency of the request, he decided to use his already recorded but unreleased song titled SAWA. He had to fine-tune it to m atch the them e of the television series. 7. ..N.A 8. That after submitting the demo, Mr David Emmanuel expressed his appreciation for our client's work and made a few suggestions for improvements, including requesting that the singer be changed from male to female . Our client did as requested, hired a female vocalist re-did the demo and sent the final recording to Mr. David Emmanuel.(Emphasis added) 21 This evidence incontrovertibly demonstrates that the appellant was unaware of the respondents' intentions until the second respondent officer (DW2) approached him with the request. He acted solely upon the instructions provided by the second respondent. Furthermore, it is evident that the second respondent played a crucial role in shaping the concept by offering explicit directions that guided the development of the work. In paragraph six of Exhibit P5, the plaintiff unequivocally states that he was required to refine and adjust the work to be consistent with the thematic elements of the associated television series. This assertion signifies that the creative output necessitated adaptation to conform to the narrative structure of the series, thereby rendering its expression dependent upon the thematic requirements of the series and profoundly impacting the plaintiff’s creative process. Moreover, the directive issued by the second respondent to change the singer's gender from male to female, outlined in paragraph 8 of Exhibit P5, illustrates the second respondent's proactive engagement in shaping the final form of the work and signifies a substantive degree of control exerted over the creative process, an emblematic of the employer- employee dynamic often characteristic of works for hire, wherein the employer retains the right to direct and supervise the creation of the work 22 to ensure it meets their specified requirements. This evidence, again, supports the second respondent's critical role in developing and finalising the work. Not only that, but the plaintiff was also, from the outset, informed that the utilization of the soundtrack demo he was creating would be contingent on receiving approval from the first respondent. This means that the plaintiff understood that his work would not automatically be included in the television series; instead, it had to meet the standards or expectations of the first respondent. The payment arrangement for the created work also supports the applicability of the work-for-hire principle in this matter. As explained above, the idea originated from the second respondent, who engaged the appellant to have it performed for an agreed sum of £200,000, which, according to DW2, was fully paid. This evidence is corroborated by the plaintiff's evidence (exhibit P7) in the minutes of the meetings held at COSOTA, where DW2 was quite explicit about her engagement with the plaintiff in the song transaction, stating that she ultimately paid him £200,000. When permitted to ask Ms Faraja questions by the chairperson at COSOTA, the appellant had nothing to inquire about, informing the members that he had no questions for Faraja because his claims were 23 against AZAM MEDIA. The records of the proceedings tendered by the appellant is self-explanatory that: “Mwenyekiti baada ya kumsikiliza Bi Faraja alimuuliza mlalamikaji kama ana lolote aweze kumuuliza Bi Faraja nae m lalm ikaji alisem a hana sw ali kw a Faraja kw a vile yeye m alalam iko yake ni juu ya Azam M edia kupitia chanel yake ya Sinem a Zetu kutum ia ubunifu w ake bila idhini yake ndio lengo lake kuu katika m alalam iko yake hivyo anahitaji wao Azam Media kumlipa kiasi cha Dola za kimarekani laki mbili na Hamsini ($250,000) ambazo ni sawa na shilingi za Kitanzania Milioni Mia Tano Themanini na Tatu, Laki saba na elfu Hamsini ( 583,750,000.00)…” (Bold is mine) The above evidence by the plaintiff himself shows that he accepted the explanation given by Ms Faraja, the 2nd respondent officer, which is why he made them available for the court's consideration. The next issue for consideration pertains to the timing of creation. It is understood that copyright protection commences with the expression of an idea as soon as the work is embodied in a tangible format. This includes being inscribed on paper, recorded in an electronic file, captured in an 24 audio or video recording, or any other means that facilitates experiential engagement by others. Thus, in a dispute of this nature, such evidence must be presented to the court to establish the chronology of the asserted rights, among other matters. The plaintiff's evidence on this aspect is somewhat contradictory. While he says that he created the song by the Title “SAW A” in 2020 before it was used by the 1st respondent in 2022, his statement on page 27 contradicts his assertions. On this page, the appellant said Madam Faraja approached him in December 2021. After that, he recorded the work at the Morden Music Studio. Speaking on this aspect, the appellant said: “I went to the studio Morden music to the producer Msajigwa Modekai recorded the work of which she wanted. I accomplished the work on 12/12/2021” He repeated this statement on page 38 of the proceedings and page 43 during cross-examination. Corroborating this version of the evidence, PW2, again the plaintiffs' witness, the claimed song producer, told the court on page 47 of the typed proceedings that he recorded the plaintiff's song, SAWA, on 12/12/2021. This witness was on pages 46 and 47 of the typed proceedings recorded thus: 25 “I am before the court as the plaintiff's rights were infringed on his copyright. We worked on the song called sawa. On 12/12/2021 was the date we finalised to make the song of the plaintiff by sawa: we stored it in the computer “ The above evidence unequivocally establishes that the soundtrack was produced on December 12, 2021, under the guidance of the second respondent, who imparted their creative vision for the television series. The plaintiff's efforts were consistent with the thematic elements defined by the second respondent, who prescribed the timeline for creation. Furthermore, the financial agreements suggest the existence of a professional work-for-hire relationship as stipulated under Section 15(1) of the Copyright and Neighbouring Rights Act, Cap 218, lending credence to the argument that the demo that the plaintiff initially created rose to the status of a work-for-hire. The appellant has failed to prove his copyright ownership claims for the soundtrack demo produced on 12/12/2021. I am supported by the decision of RSA Ltd v. Hanspaul Automech Ltd & Another, HC- Comm. Case No. 160 of 2014 (unreported), wherein it was held: “For a work to be protected by copyright, under section 5 of the Copyright and the Neighbouring Rights Act, [Cap. 218 RE 26 2002] plaintiff has to prove that the work is original and belongs to him. That means, it has to be original in the real sense and the plaintiff has to be creator of the real sense.” Following the same reasoning, I remain convinced that as the owner of the soundtrack created on 12 December 2021, the second respondent holds exclusive rights to the work, including the right to make it available for another person's use, such as allowing the use of the lyrics to produce any soundtrack. As stated, after the first respondent rejected the plaintiff's demo, the second respondent engaged, rightly so, another person, to perform the soundtrack, which was later aired in the first respondent’s television program in the KOSA MOJA series. I don’t find anything weird to fault the trial court's decision. The trial magistrate's decision is also faulted for ignoring the appellant's copyright clearance certificate for the song SAWA, issued by the Copyright Society of Tanzania. I have examined this certificate in light of the entire evidence. As stated above, the work under scrutiny stemmed from the 2nd respondent's request in December 2021. The plaintiff did not successfully prove that he was the original creator of the soundtrack featured in the 1st respondent's programs prior to being contacted by the 27 2nd respondent. In this situation, the plaintiff was required to confirm that his song SAWA existed before any engagement with the 2nd respondent and that the 1st respondent utilized it without his consent or awareness. As pointed out earlier, the plaintiff's assertion that the song was created in 2020 remains unsubstantiated. This finding is also supported by the plaintiff's own evidence brought through paragraph 2 of page 3 to exhibit 7 where the appellant was recorded to have said: “…kwa kuwa hakutafutwa ili kupewa mrejesho juu ya wimbo huo kama watautumia hivyo yeye aliuweka katika albam yake mpya ambayo ameipatia jina la “sound of hope” ili aweze kuitoa” This evidence verifies that the song "SAW A," featured in the album "Sound of Hope," is indeed the same composition crafted by the appellant under the auspices of the second respondent. Its incorporation into the appellant's album occurred only after the respondent remained silent about whether it would be used in the film, indicating that this song “SAW A” is distinct and separate from any other works created before or after the demo in question. I find no compelling reason to question the 28 credibility of this evidence, particularly given that it was presented to the court by the plaintiff/appellant himself. And even if I were to entertain the possibility that the song's creation date was indeed proven to be 2020, which is not the case, it is critical to note that any incorporation of elements from the song by the plaintiff in the demo requested by the second respondent cannot be construed as an act of compliance with the second respondent's directives. Instead, it appears to be an autonomous decision made by the plaintiff in an effort to fulfil the second respondent's description and requirements for the demo. This finding is expounded by paragraph 6 of the letter of the demand (Exhibit P5), wherein it is explicitly stated: “… our client agreed to produce the demo song, and due to the urgency of the request, he decided to use his already recorded but unreleased song titled SAW A. He had to fine-tune it to m atch the them e of the television series.” ( Bold is mine) This excerpt acknowledges the plaintiff's initiative as the driving force behind the decision to utilise the pre-existing song, thereby indicating a departure from any implication that the second respondent dictated this choice. Again, the urgency cited by the plaintiff indicates his 29 acknowledgement of the need to respond promptly to the second respondent's requirements. So, legal responsibility, if any, for using an earlier composed song, “SAWA”, in creating the demo in December 2021, as requested by the second respondent, who supplied the necessary content and context, lies on the plaintiff. In my opinion, the copyright registration for the song SAWA with COSOTA in 2023 does not affect the originality test of the demo soundtrack created at the request of the second respondent as explained above on 12 December 2021, nor does it establish the appellant's original work subject to copyright infringement under the Copyright and Neighbouring Rights Act. The appellant's claims are thus without merit. It is also important to note that the first respondent has been using the soundtrack since 5th September 2022, when they officially agreed with the second respondent, as shown in exhibit D1. In terms of exhibit P1, the song titled SAWA was registered with the Copyright Society of Tanzania (COSOTA) on January 16, 2023, and according to exhibit P7, the parties initially met at COSOTA on 20 January 2023 in response to the plaintiff’s complaint, just four days after the registration. I think this is not a coincidence. This sequence of events raises significant concerns regarding 30 the intentions behind the song's registration, particularly given that the song was allegedly created as early as 2020. I agree with the respondent's counsel that this timing is suspicious, suggesting that the registration was executed to fortify the plaintiff's claims against the first respondent. Allowing these actions within our legal system might create a troubling pattern, potentially leading to chaos and disputes in society. The Copyright Society of Tanzania (COSOTA) and other pertinent regulatory agencies must ensure that the copyright protection framework stays intact to guard against deceptive practices that undermine the integrity of legal processes designed to protect intellectual property rights. In conclusion, the trial court's decision is sound. I find all grounds of appeal without merit and proceed to dismiss the appeal in its entirety, with costs. DATED at DAR ES SALAAM, this 14TH MARCH 2025 E.Y. MKWIZU 31 JUDGE 32