How well does copyright and intellectual property legislation protect bearers of traditional knowledge?  What protections should they be afforded?  How should one make a distinction between the tradition and the representations of the tradition?  What rights should documenters have?  Does it matter if they are non-profit or for-profit?

These are difficult questions that many people – myself included – often avoid because of their complexity and sensitivity.   Defining a tradition and understanding the difference between a tradition and manifestations of that tradition can be very difficult.  And you would arguably find vastly different interpretations depending on who you ask and what their relationship to the tradition is.

This easy-to-avoid situation results in many problems that can not be avoided though.  I was reminded of this through a post by Kevin Smith, Scholarly Communications Officer at Duke University, who wrote:

It is not difficulty to find stories of how native peoples have been exploited for economic gain by companies that will appropriate and market traditional knowledge forms — everything from music to medicine.  Such exploitation causes one to think that there is a hole in copyright laws that needs to be filled.  But any attempt to expand the scope of our copyright protections, which already seem to cover too much and last too long, is likely to have a detrimental effect on scholarship.  Thus I find myself caught between warring impulses — respect for the intellectual creations of native peoples  versus the desire to foster widespread knowledge of different cultures .  This latter impulse is a corollary of the general belief that a robust public domain is a good thing overall for all societies.

The kind of exploitation Kevin refers to is very real.  And it’s not just for-profit companies – academics, scholars, “folk collectors” of yore – they have also been accused of exploiting tradition bearers.  But addressing the exploitation of traditional knowledge bearers is complicated by poor understanding of traditional knowledge and a lack of sustained advocacy.  And this is compounded by an ineffective legal framework for dealing with traditional knowledge.

Copyright and Expressions of Folklore in Ghana

(for a thorough discussion of folklore in Ghana, see this article titled The Nationalization and Commercialization of Ghanaian Folklore by Kathleen Ludewig).

Kevin’s post is largely centered around an announcement from a few weeks ago that Ghana intends to start prosecuting “illicit users of folklore.” The government of Ghana apparently passed a Copyright Act in 2005 that requires the country’s National Folklore Board (NFB) to “administer, monitor and register expressions of folklore on behalf of the country.”  It also requires the NFB to collect fees for the use of expressions of folklore.

But Ghanaians and organizations in Ghana have not been using the system properly.  So Mr. Abraham Henry Lemaire, Acting Director of the NFB, is stepping up efforts to recoup this lost revenue.  The problem with this is not so much the government’s decision to enforce its laws, but the law itself.

Could this weaver be prosecuted for not paying a fee to use the Kente pattern he is weaving? (Image Source: Wikipedia)

The Copyright Act essentially stipulates that anyone who wishes to use folklore is required to “apply to the Board for permission in the prescribed form and the person shall pay a fee that the Board may determine.”  There are some exceptions to this (See Section 19), but really, the law attempts to commercialize folklore for the government.  And it uses the NFB to do it.

Alexander Asum-Ahensah, Minister of Chieftaincy and Culture in Ghana, acknowledged this was the case.  He was quoted in the article saying that “the Ministry was working to repackage the country’s culture to serve as a source of employment for the teeming unemployed youth” and that “just like any other raw material, folklore was an economic asset for developing countries.”  The article says he has called for the “collective exploitation of it for the benefits to accrue to all.”

The Act has some truly bizarre provisions to support the NFB’s powers.  For example, Section 4, Subsection 2 of the Act notes that “the rights of folklore are vested in the President on behalf of and in trust for the people of the Republic.”  The rights of folklore are vested in the President?  Section 17 assures us of this fact and notes that the rights exist in perpetuity.

Section 21, Subsection 3 of the Act directs libraries and archives to gate keep copyright and usage by requiring these institutions to “ascertain that the copy [authorized under Section 21, Subsection 1] is to be used solely for the purpose of study, scholarship or private research.”  These kind of provisions are not new or unheard of, but they make me very nervous.

At a Crossroads: Folklore and Intellectual Property

The point here is not to criticize Ghana’s copyright legislation, although I think it warrants criticism.  The bigger issue is that Ghana’s copyright law is at least in part the result of a broader effort, led by the World Intellectual Property Organization, to bring the folklore and intangible cultural heritage of indigenous peoples all over the world in line with a Western-styled copyright and intellectual property regime.  This, despite a significant body of evidence that suggests this kind of framework is ineffective for traditional knowledge and that it is “reducing knowledge and cultural expressions to commodities.”

A lot of this evidence was covered in a  2009 UN report on the state of the world’s indigenous peoples that found that the culture of indigenous peoples have not been respected when global intellectual property standards were being set.  The report makes a number of startling observations. From Page 20:

…neo-liberalism has frequently been imposed on indigenous peoples, and that under structural adjustment programmes, multinational corporations have extracted resources from indigenous territories without the free, prior and informed consent of the indigenous peoples involved, providing little or no compensation for the communities with adverse impacts on their livelihood and cultural/spiritual life. As a result, the indigenous peoples are made worse-off beyond what is evident in the quantitative (monetary) indicators of poverty and well-being.

From Page 74 (paraphrased):

The dominant model for recognising and protecting knowledge and cultural expressions is the intellectual property rights regime. This regime, which is based on Western legal and economic parameters as well as on Western property law, emphasizes exclusivity and private ownership, reducing knowledge and cultural expressions to commodities that can be privately owned by an individual or a corporation. This form of ownership is protected by states and promoted by the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO).

The intellectual property rights (IPRs) regime and the worldview it is based on stand in stark contrast to indigenous worldviews, whereby knowledge is created and owned collectively, and the responsibility for the use and transfer of the knowledge is guided by traditional laws and customs.  What is often overlooked by the wider society is the fact that, within indigenous societies, there are already laws governing the use and transmission of their knowledge systems that often do not have any formal recognition in the wider legal system. The international property rights regime, however, often fails to recognize indigenous customary law.

There are therefore concerns that the IPRs regime, grounded in Western concepts of individualism and innovation, does not have the ability to protect the collective or perpetual interests of indigenous forms of cultural expression.

Unfortunately, the UN is not exactly offering any alternative models to the work being carried out by the  African Regional Intellectual Property Organization (ARIPO), WIPO, WTO, and other intellectual property organizations.  And it has sent conflicting messages about where it stands on intellectual property and traditional knowledge.  While the Status of the World’s Indigenous Peoples Report criticized efforts to develop Western-styled copyright and intellectual property provisions for folklore, it also refers to these international efforts as evidence of “increasing appreciation of the value and potential of traditional knowledge.”   And it quotes Article 31 of the Declaration on the Rights of Indigenous Peoples:

1. Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

This paradox is a perfect example of how difficult it can be to strike the kind of balance Kevin referred to in his post about Ghana’s Copyright Act.

Intellectual Property and Traditional Knowledge in Africa

Without a clear alternative to the copyright /intellectual property model and with so many significant players interested in seeing that model succeed, governments across Africa are developing policies and legislation that does exactly what the UN report warns against.

Ghana has the folklore provisions in its Copyright Act.  South Africa has been debating an Intellectual Property Amendment Bill.  The draft bill has received some heavy criticism, again because it attempts to use existing copyright and intellectual property legislation to protect (i.e. commercialize) traditional knowledge (see more about that here and here).  And just this summer, the African Regional Intellectual Property Organization (ARIPO) has approved a new protocol on the protection of traditional knowledge and expressions of folklore.  Known as the Swakopmund Protocol after the coastal town in Namibia where it was ratified, the document is the product of years of work between ARIPO, WIPO, and national governments in Africa.  It seeks to “empower the custodians and holders of traditional knowledge and expressions of folklore to utilize their knowledge for socio-economic development and wealth creation.”

Needless to say, WIPO is thrilled. The Swakopmund Protocol closely mirrors the language of the Revised Objectives and Principles of WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.   And once it’s ratified, WIPO and ARIPO will have led 17 more countries to pursue a model that advances the interests of the intellectual property, copyright, and patent lobby while having little demonstrated success in actually protecting traditional knowledge or expressions of traditional knowledge.

It remains to be seen whether ARIPO members will try to establish a system similar to what Ghana is experimenting with.  Extensive inventories would need to occur before anything like that could be feasible and as Kathleen Ludewig has noted, Ghana’s inventory efforts have been very unsuccessful.

Traditional knowledge needs something tailor made, similar the sui generis systems being developed by the Convention on Biological Diversity.  It needs something that puts (or keeps) traditional knowledge in the public domain while ensuring the rights of knowledge bears are being respected.  And it needs something that allows stewards and custodians of traditional knowledge to foster learning and the sharing of that knowledge.

Like Kevin Smith, the UN, and pretty much everyone else it seems, I don’t pretend to have the answers.  But I do know that intellectual property regimes like the Swakopmund Protocol have little chance of success unless they loosen their attachment to concepts like exclusive ownership and property rights and introduce protections for traditional knowledge that are not economic in principle.  As Kevin pointed out, we just need to find a balance.  I think this starts with accepting the reality that intellectual property and copyright is a poor foundation for actually protecting traditional knowledge.