The laws and regulations guiding registration of Intellectual Property rights require the owner of the intellectual property to state his personal information. For stance, regulation 8 (1) of the Patents Regulations, 1994 provides for the applications for the grant of patents. Sub regulation 2 of the same Regulation it puts a mandatory requirement for including of full name, address and nationality of the applicant, inventor and the agent in the application.
On the other hand, the Tanzania intellectual property registration system has been designed to require the applicant to provide information such as phone numbers and e-mails. All of these are personal information. When this information is provided in the application, it becomes public to anyone. However, these laws that protect intellectual property in Tanzania, they have not set the conditions for the protection of this important information where it is given to the public.
This paper tends to look on the relevance of the Personal Data Protection Act in Tanzania in the development of Intellectual property right with the coverage of Patents, Copyrights and Trademarks.
It is a basic principle of intellectual property law that, there should be a monopoly of right to personal information, i.e., a person or any entity is excluded from using, reproducing or selling a certain intellectual property right of another. The history of Intellectual property right can be traced from time immemorial. As the time goes both National and International Instruments have been enacted to ensure protection of Intellectual Property right.
The Personal Data Protection Act No. 11 of 2022 was enacted by the Parliament and the same came into force on 1st may 2023.
According to section 3 of The Personal Data Protection Act personal data has been defined to mean;
data about an identifiable person that is recorded in any form, including- (a) personal data relating to the race, national or ethnic origin, religion, age or marital status of the individual; (b) personal data relating to the education, the medical, criminal or employment history; (c) any identifying number, symbol or other particular assigned to the individual; (d) the address, fingerprints or blood type of the individual; (e) the name of the individual appearing on personal data of another person relating to the individual or where the disclosure of the name itself would reveal personal data about the individual; (f) correspondence sent to a data controller by the data subject that is explicitly or implicitly of a private or confidential nature, and replies to such correspondence that would reveal the contents of the original correspondence, and the views or opinions of any other person about the data subject;
From the construction of the cited above provision, Personal data has a wider coverage, as it touches the important aspects International property right.
Section 35 of the Personal Data Protection Act restrict the use of personal data by data controller for business/undertaking without the prior consent of the owner of such data. By a virtual of this Act, Inventors, designers, developers authors e.t.c can now protect their intellectual property right against individuals or institutions that have been taking unfair advantage over others rights. The aim is to prevent individuals and institutions from wrongly acquiring benefits from the creations and inventions of others. It also provides for the remedy in case there is violation or misuse of personal data by an authorized user. Remedy for violation of personal data is the fundamental objective of the Act, as reflected under section 4 of the Act that;
The objectives of this Act are to provide data subjects with rights and remedies to protect their personal data from collection and processing that is not in accordance with this Act.
Though this Act has put more emphasis on the right to privacy of the data owner, judicial body has continued to enforce this Constitutional Right through various decisions including the very recent and famous case of Waubani Linyama (Ndugu abiria’case). On August 8, 2022 the District Court of Kinondoni ordered Dexter Insuarance Brokers to pay Waubani Linyama Tanzania Shillings One Hundred and Fifty Million (Tsh. 150,000,000/=) being compensation for unlawful using a picture of Linyama.
However before the Enactment of the new Personal Data Protection Act, there was narrow way of protecting personal data. This assertion can be evidenced in the case of Ivanna Felix Teri v. Viettel Tanzania Public Ltd Company and Set Up Company Ltd As Third Party . In this case the plaintiff Ivanna Felix Teri instituted this suit against the defendant claiming for Tshs 800,000,000/= as damages for unlawfully using her pictures in marketing and promoting the defendant's business without her consent. Believing that her right of privacy and dignity has been breached.
Unfortunately the court employed a persuasive literature from the United Kingdom which state that; copyright of an image as a general rule belongs to the creator of the image, or to the person making arrangement of the photo, or to a person having a license (permission) to use the image often in consideration for payment on certain condition for specific period of time. Finally the court pronounced judgment in favour of the defendants only for the reason that, the plaintiff failed to prove on balance of probabilities that either she was the creator of the image/photo or made an arrangement for the same to be taken though there was no disputed that, a picture in marketing and promoting the defendant's business belonged to the plaintiff.
Looking on the objective of the Act reflected under section 4 of this Act, it intends to safeguard the rights of the data subject or owner of the data by ensuring that the processing of the personal data is only done in line with the specified purpose. And that, it prevents the misuse of personal data as per the wish of the data controller or processor without permission of the data subject or owner.
Prohibition of misusing personal data has only imposed to data collectors and data processors. According to section 3 Data collector has been defined to mean;
a person, body corporate or a public institution which either alone or in conjunction with another institution determine the purpose and methodology of personal data processing and where such methods have been prescribed by law;
Again data processors has been defined to mean;
a person, body corporate or public institution which processes personal data for and on behalf of the data collector under the guidance of the data collector, except persons under the direct control of the data collector, and includes their agents;
From the definitions provided above; data collectors and processors are digital and financial services company, cellular network companies, Learning situations, government institutions, private institution and others of the like having a mandate over personal data of a particular person or data subject. Even an individual or a person as a data collector named in the definition section is not a mere person. Is the one who have been duly registered to perform the function according to this Act. This means that, an individual, company or any organization that does not fall under the definition of data collector or data processor cannot bound by this Act.
Commercialization of personal data which has been used to be for so long now is going to be abolished by this Act. No personal data relating to patents, copyrights or trademarks can now be used by the data collector or data processor for any commercial purpose without a prior consent of the data subject, and the breach of the law by data collector or data processor attract sanction.
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