The Tanzania 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 pivotal role in driving economic growth and innovation, these ventures are often characterized by their creativity, resilience, and determination to succeed.
Also read Tanzania’s Tech Startup Scene: Why Is It Not as Thriving as Other African Countries?
However, in the modern business world, IPRs 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 essential to understand what intellectual property is. IP is generally characterized 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 rights 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 their creation for a certain period.
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:
Copyrights 101
Copyrights are the sole legal rights to print, publish, perform, film or record literary, artistic or musical works. Under Copyright, the authors of the works are entitled to two kinds of rights. These are Economic Rights and Moral Rights. The Economic Rights include a 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, general performance of the work and importation of copies.
On the other hand, Moral Rights refer to the author’s rights to claim authorship of their work. This entails the right to object and seek relief against any distribution, mutilation, modification of, and any other derogative act concerning their work where such deed would be detrimental to their character.
Copyright is governed by the Copyright and Neighbouring Rights Act 1999, as amended occasionally. The Copyright Society of Tanzania (COSOTA) is actively addressing copyright matters within Tanzania, particularly in legal dispute resolution, work registration, anti-piracy efforts, licensing, and royalty distribution. More details on the licence fee structure can be found on their website.
Industrial Properties
(a) 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 and play a key role in fostering trust, ensuring legal compliance, and promoting long-term growth.
Startups must prioritize registering and protecting their marks to ensure their businesses’ long-term success and sustainability. With a strong brand identity and legal safeguards, startups can confidently and resiliently navigate the competitive Tanzanian market.
(b) 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 ten years, while in Zanzibar, it is 20 years as articulated under the Zanzibar Industrial Property Act, 2008 (Act No. 4 of 2008). More details 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 applying, there are several steps which the patent office has to take before one can be granted a patent. Obtaining a patent is crucial to protection, as, instead, 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.
(c) Geographical Indication
Geographical Indication protects products with specific attributes and characteristics for certain geographical locations. The concept of geographical Indication has not been popular in Tanzania, particularly for startups and SMEs, 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 promises to contribute to product sovereignty and quality within an efficient marketing system and availability of government support. It allows for the efficient protection of unique products with their qualities attributed to a particular geographical origin.
(d) Industrial Designs
Industrial design is the outward appearance of a product, which gives it a unique 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, achieved through registration.
In a dynamic market like Tanzania, where startups are emerging and rapidly scaling, industrial design takes on added importance. It distinguishes their offerings in a crowded marketplace and safeguards their creative efforts from competitors’ exploitation. This protection proves invaluable in maintaining a competitive edge.
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), and the Fair Competition Commission (FCC) 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 misusing trade/service marks.
Why is it important for startups to protect their IPRs?
Protecting IPRs is essential as it enables the startups to commercialize their IPRs. This process allows 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 arrangements and deals with the investors while ensuring they benefit economically. 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 infringing their registered rights. By registering their IPRs, the startups can opt for various recourses such as filing suits in Courts, out-of-court mediation/negotiation or resorting to an anti-competition agency (FCC).
The protection of the IPRs ensures consumer protection. By protecting 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 must be saved to maintain their competitive advantage in the market and establish a noticeable brand that introduces the products to the local and international markets. This gives the entity a unique recognition and presence in the market.
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. Tanzania has 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 implementing the IP laws. This is among the factors that frustrate foreign-directed investment and technology transfer. Most investors need assurance of 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 for startups who cannot get the expertise and funds to pay these experts.
Some laws are outdated and must be updated to reflect the current development around innovation and commercialization. In addition, some IPRs are not protected under our current legal regime, such as trade secrets, geographical indications and industrial designs.
Inadequate protection systems and mechanisms. This is a challenge because most IPR holders need to be their 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 the protection mechanisms should ordinarily 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 startups are struggling with the funds to manage their operations.
Specific Recommendations Based on The Existing IPR Issues
The existing IP laws should be reviewed to accommodate new trends and developments within the IP global space. This process should go hand in hand with the legislation of new IP laws for the IPRs, which are not yet protected.
There should be a waiver for startups that intend to protect their IPRs. In alternative, startups should be allowed to pay lower fees for the registration processes. This will open doors to startups being able to save their IPRs.
There should be increased sensitization and practical knowledge of IPRs for startups. This will help the startups to integrate the IP assets into their business planning and strategy.
There should be put in place policies and incentives that encourage local inventions, research and development, innovation and technology transfer. The protection measures and mechanisms should be revisited to develop effective ones to discourage piracy, copying and counterfeit products.
In this era where many youths have engaged in self-employment through startups and innovation, intellectual property ownership and protection are no longer a luxury but a necessity. We advise the startups to ensure that they take IP issues seriously and 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.
In summary, navigating the IPR landscape is essential to Tanzanian emerging ventures. The enabling environment with supportive sector-specific incentives tailored to startups, the right strategies and legal support are crucial 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 values and safeguards their intellectual property.