The Protection of Traditional Cultural Expressions in Africa

‘Traditional cultural expressions’ is defined in the World Intellectual Property Organisation (WIPO) document The Protection of Traditional Cultural Expressions/Expressions of Folklore: Revised Objectives and Principles (hereafter WIPO Legal Options) as follows:

Traditional cultural expressions’ or ‘expressions of folklore’ are any forms, whether tangible and intangible, in which traditional culture and knowledge are expressed, appear or are manifested, and comprise the following forms of expressions or combinations thereof:

• verbal expressions, such as:

  • stories, epics, legends, poetry, riddles and other narratives;
  • words, signs, names, and symbols;
  • musical expressions, such as songs and instrumental music;
  • expressions by action, such as dances, plays, ceremonies, rituals and other performances, whether or not reduced to a material form; and
  • tangible expressions, such as productions of art, in particular, drawings, designs, paintings (including body-painting), carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal ware, jewellery, baskets, needlework, textiles, glassware, carpets, costumes; handicrafts; musical instruments; and architectural forms; which are:

    (a)

    the products of creative intellectual activity, including individual and communal creativity;

     

    (b)

    characteristic of a community’s cultural and social identity and cultural heritage; and

     

    (c)

    maintained, used or developed by such community, or by individuals having the right or responsibility to do so in accordance with the customary law and practices of that community.

     

This chapter provides an overview of the protection of ‘traditional cultural expressions’ as a means of identifying the subject matter of this book. The term ‘traditional cultural expressions’ is a deliberate choice from other terms that define the same subject matter such as ‘expressions of folklore’ and ‘intangible cultural heritage’. There are other concepts that are closely related to traditional cultural expressions such as traditional knowledge, which are also considered by this chapter. Furthermore, this chapter engages in a taxonomy of traditional cultural expressions in Africa and then proceeds to a discussion of communities in Africa as creators of traditional cultural expressions. A number of issues, principles and concepts that challenge and underpin the protection of traditional cultural expressions in Africa are also considered.

This chapter explores the negative protection of traditional cultural expressions. Negative models for the protection of traditional cultural expressions do not confer positive rights but rather enable communities and other stakeholders to ensure that third parties do not unlawfully exploit or misuse expressions of folklore. In the main, the defining feature of negative protection is that the use or otherwise of traditional cultural expressions by third parties is predicated on the consent of and benefit to communities that have a right to the folklore. Another feature of negative protection is that governments and national institutions facilitate the interaction of communities and third parties that seek the consent of communities to use their expressions of folklore.

In this chapter, the protection of traditional cultural expressions through the existing national protection of tangible heritage in African states is considered and evaluated. Ordinarily, the possibility of protection of traditional cultural expressions, which are often also intangible heritage, through a system designed for tangible heritage would appear to be remote because of their different mediums of expression. So long as tangible heritage is imagined to be different from intangible heritage, it would appear that tangible heritage protection serves little purpose for intangible heritage protection. If on the other, tangible heritage is intricately bound with intangible heritage, heritage protection is important.

This chapter critically evaluates the positive protection of traditional cultural expressions by examining how folklore is protected by intellectual property rights in African states, including South Africa, Nigeria, Ghana and Kenya. The protection of traditional cultural expressions by intellectual property rights is generally considered as positive protection if its primary objective is to endow proprietary rights on the creators of traditional cultural expressions, usually but not exclusively, on communities of origin, to exploit the traditional cultural expressions through determining how and when third parties will have access to their traditional cultural expressions. Since all African states recognise intellectual property rights, two broad possibilities—albeit loosely understood—exist in this regard. The first possibility is the use—especially through judicial interpretation that some traditional cultural expressions can be protected by some or all intellectual property rights. The second group consists of states that through recent legislation recognise new rights protecting traditional cultural expressions as intellectual property rights. In line with this broad framework, this chapter is organised as follows. In the next part, an overview of the protection of traditional cultural expressions in certain African states is undertaken. The intellectual property rights framework in these states suggests that traditional cultural expressions can be protected by all or some of the rights. In the third section, a consideration of recent legislative reform in South Africa and Kenya reveals how traditional cultural expressions can be protected by rights of the use of intellectual property rights to protect traditional cultural expressions. With respect to South Africa, it is to be noted that on 6 September 2013, South Africa achieved a milestone by using the MMA to restrict the use of the words: ‘Rooibos; Red Bush; Rooibostee; Roosibos Tea; Rooitee and Rooibosch’ in connection with any trade, business, profession or occupation or in connection with a trademark, mark or trade description applied to goods by unauthorised third parties. In addition, the dual-track engagement through, on one hand, IPLAB 2011 and, on the other hand, the Draft Protection of Traditional Knowledge Bill yielded IPLAA 2013, which came into force on 10 December 2013. In Kenya, the PTKCE 2016, which came into force on 26 September 2016, represents what may appear unorthodox in the protection of traditional cultural expressions.

In this chapter, I argue that fundamental human and peoples’ rights protection will significantly enhance both the negative and positive protection of traditional cultural expressions. The protection of traditional cultural expressions under the banner of human and peoples’ rights significantly enhances the capacity of communities to act as legal subjects in the protection of their rights. The analysis of the negative protection of traditional cultural expressions revealed an attenuated capacity of communities in African states to protect their traditional cultural expressions because the protective framework is, in the main, facilitated by national institutions. Communities are therefore hampered in their ability to protect their traditional cultural expressions. A peoples’ and human rights framework acknowledges the entitlement of communities to protect their traditional cultural expressions and therefore complements the legislative models for the positive and negative protection of folklore. A peoples’ and human rights framework acts as a default standard that, at the very least, will guide and enhance legislative development. The proposition that this chapter explores is that traditional cultural expressions can be protected indirectly through both collective rights and a number of specific human rights. This proposition is based on the principle that only individuals can directly enforce human rights. The fact that communities can enforce rights directly to protect traditional cultural expressions is an emerging idea that is not generally accepted. The focus of this chapter is primarily the Bill of Rights in the national constitutions of the African states, as well as extant jurisprudence.

This chapter explores an overview of a framework to protect traditional cultural expressions in Africa by examining certain issues that would strengthen this framework.