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Wednesday, May 22, 2019

Reconceptualizing International Copyright Laws to Protect African Creative Industries, 1 OAU L.J. 217 (2018).

Reconceptualizing International Copyright Laws To Protect African Creative Industries
by Samuel Samiai Andrews†

Table of Contents
§1.0 Article Road Map…………………………………………………………………………………2
§1.1 Indigenous Peoples’ Creativity………………………………………………………………....2
       [A] Nollywood An Indigenous Peoples Creativity……………………………………………………3
       [B] Intellectual Property for Digital Cultural Content……………………………………………….4
       [C] Protection of Cultural Intangible…………………………………………………………………...........5 
§ 2.0 Renegotiating African Creative Regime ………………………………..……………...6
         [A] Necessity for Intellectual Property Reform……………………………………………………....6
       [B] ‘Wakanda’: Cultural Anachronism & Content Appropriation…………………………………...8
       [C] Access for Derivative Works V. Limits of Unlawful Uses………………………………………...9
§ 3.0 Developing African Copyright for the Digital Age……………………………...................11
       [A] Afrollywood Films as Geographical Indication………………………………………………….13
       [B] Intellectual Property & Human Rights: A Hybrid Approach…………………………………….15
       [C] Reforming African Law Schools Curricula & IP Rights Management……………………………...16


This article critically examines the global legal and doctrinal concepts of Intellectual property law and suggests a rethink and renegotiation of Intellectual property laws to recognize cultural creative contents of traditional communities in the digital era. The early International treaties, especially the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) of 1886 created a receptive legal structure for the Internet Treaties of the late 1990s and of  the current millennium to thrive.[1] In the digital era, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) although not created initially to cater for technology related creativity, has become a relevant regime in protecting creativity in the digital space.[2]  Intellectual property (IP) recently has occupied international attention following the United States’ punitive tariff hike against China for stealing and infringing IP rights of U.S. citizens and its corporations.  The tariff hike has raised the specter of a global trade war. However, the Western developed economies and creators have for long been appropriating the cultural contents of indigenous African communities especially in the film industry without license, authority and approval of the source communities who own the proprietary rights to these contents. This article analyses the role of current International IP regimes in keeping the dominant status quo for developed economies to exploit and misappropriate African indigenous expressions and works. This article suggests a renegotiation of international intellectual property treaties for purposes of enhancing African indigenous cultural expressions and creative intangibles. Africa, led by Nigeria’s Nollywood has given birth to an indigenous film industry that has become a force in the entertainment industry. However, the creators from the developed economies will continue to take advantage of the present IP regimes to keep the uneven playing field in the economics and growth of the global creative industries, using concepts like public domain to deny owners of African contents the economic and social benefits arising from their contents.[3]

Keywords: Nollywood, digital copyright, intellectual property law, folklore, Afrollywood

Intellectual property scholars’ demand for protection of intangible cultures focuses on traditional knowledge and cultures of indigenous people.[4] The existing legal literature have not focused much on the protection of indigenous artistic expressions of cinematographic works with   a proper international legal regime.[5] The ongoing international discussion for recognition of folklore and traditional cultural expression within the contemporary IP regime broadly contextualizes the issues.[6] This article focuses on the protection and recognition of African creativity in the creative industries like film, music, fashion and literary works.
The current discussions  for international recognition and protection for African  proprietary rights in its intangible expressions tilt towards the international human rights intersection with cultural properties.[7]  The United Nations Educational Scientific and Cultural Organization (UNESCO) has undertaken programs to document intangible cultural heritages of traditional people with a view to preserving and protecting them.[8] However, this article adopts a different approach based on mutual economic growth of nations. This article argues for an international effort to strengthen the creative rights and intangible proprietary regimes of traditional societies within the current IP regime or an hybrid sui generis index.
 UNESCO, for example has recognized Gelede, Ifa Incantation and Ijele as some of Nigeria’s intangible cultural heritage for legal protection.[9] The formal recognition of these cultural expressions creates a framework to negotiate an acceptable international legal regime for films with cultural contents.[10] The Nigerian creative industries like Nollywood, Music, and fashion draws thematic contents from cultural expressions and by extension “make available” indigenous peoples’ heritage to a global audience.[11]

§1.0 Article Road Map
This article explores in three sections the enforceability of culture as a proprietary right under current and future copyright jurisprudence. Section One analyzes the existing international IP legal system that protects cultural expressions and intangible properties focusing on folklore, visual arts, traditional expressions and the non-effective protection of these properties under existing legal system in Africa. It uses Nigeria and Nigerian creative industry, Nollywood as a case study on the need to reform the existing international intellectual property regimes to protect African creative industries
Section Two argues for a renegotiation and reform of the existing international IP legal regime between the developed economies and Africa on a transactional beneficial basis to all parties to spur the emerging African creative industries. A Strong and vibrant African creative industry will have a multiplying positive net growth for African economies.[12] Finally, Section Three continues the theme of a reformed IP regime with suggestions on creating a strong IP regime for the African creative industries adaptable for the digital era.

§1.1 Indigenous Peoples’ Creativity
Nollywood introduced a unique indigenous creative genre to other parts of Africa.[13] The thematic contents of Nollywood films are uniquely connected to the culture and anthropological contents of Nigeria.[14] Across Africa, Ghanaians refer to their movie industry as, Ghallywood.[15]  South Africa’s movie industry is either Joziwood, Jollywood, or Vollywood.[16] The South Africans name their film industry based on its peculiar genre and its thematic content.[17] In Kenya, filmmakers refer to its contemporary genre of movies as Kennywood.[18] Tanzanians refer to their film industry as Bongowood or Bongo.[19] This article generically refers to the Nollywood-like genre of African films as ‘Afrollywood. The term ‘AfroNdise’ and Afrollywood describes Africa’s indigenous cultural cinematographic works.[20] This article uses the terms interchangeably. AfroNdise evolves from the merging of  Afro,’ a reference to African or black culture and ‘Ndise,’ an Ibibio word, spoken largely in the South-Southern region of Nigeria which means or refers to a film, picture and spectacle.[21] The Ibibio are an ethnic community in the South-South region of Nigeria in Western African region.[22]
 [A] Nollywood As Indigenous Peoples’ Creativity
Defining indigenous people is convoluted and at times complicated.[23] Scholars have put out diverse definition of indigenous people and a universally accepted definition is not available.[24] Indigenous peoples refer broadly to culturally distinctive communities
of the descendants of pre-invasion inhabitants of land now dominated by others.[25] This article uses indigenous people and traditional people interchangeably.
Traditional communities in Nigeria, mostly the Yoruba, Hausa, Ibibio, Efik, Ijaw and Igbo have preexisting indigenous customary laws and folklore which they used to regulate and protect the creative expressions of their cultures.[26] Nollywood uses mostly the customs, culture, and folklore of its people to tell its story in the big screen and in the cyberspace to the global audience.[27]
 [B] Intellectual Property for Digital Cultural Contents
Digital technology has eased the wider dissemination of traditional cultural expressions through cinematographic innovations.  The contemporary DVD or cinema screen methods of performing traditional cultures do little to dilute the character of indigenous cultures. Nollywood industry expresses indigenous cultural heritages in digital forms and animations monetized beyond the traditional format.[28] Digital technology merely heightened the visibility of these traditional cultures.  The protection of cinematic cultural contents as a traditional cultural expression or folklore may segue into two levels internationally.
The first level should be the recognition by African laws of the rights of traditional communities against all forms of misappropriation of their cultural expressions. For example, the Nigerian copyright law recognizes folklore, which includes traditional expressions as a protected right.[29]  The rights of these traditional communities should stand against all types of filmmakers, including those from the community who make films using indigenous cultural contents for private commercial use.
 The second level should cover the protection of African creative works or content from unlawful use from non-African and non-indigenes of the source-nation of the works or creation. For example, Nollywood films with traditional folkloric content should not be misappropriated by non-Nigerians and non-Nigerian corporations. The monopoly of folklore or traditional cultural expressions in Nollywood films should not be an absolute right.  However, for granting traditional cultural expressions protection, a licensing obligation should form part of the new legal system.
The assumption by western legal scholars that public domain doctrine negates cultural properties goes against existing traditional African jurisprudence.[30] The Yoruba in Western Nigeria, for example are the custodian of Ifa deity.[31] Any filmmaker that wishes to use Ifa incantation in its films should obtain a license from the Ifa priest (babalawo).[32] The public interest goal of access to creative resources and the preservation of traditional culture should guide these negotiations.[33] A compulsory license system for traditional expressions for public good, such as educational purposes will check the monopoly character of cultural tangibles.
[C] Protection of Cultural Intangibles
The Nigerian copyright law already protects folklore and traditional cultural expressions.[34]  The unauthorized reproduction, performance, broadcasting and distribution of folklore without the permission of the Nigerian Copyright Commission (NCC) breach a statutory duty.[35]  This breach attracts consequences such as damages, injunctions and other tortious remedies.[36]  The NCC under the Nigerian law is the quasi-trustee of Nigerian folklore.[37] The management and protection of folklore on behalf of Nigerian communities resides with the NCC.[38]
Traditional communities in Africa have prior identifiable political arm that regulates folklore on behalf of its people.[39]  A King or committee of elders in most communities is at the apex of the traditional political system.[40] The Kings or chiefs of a traditional community should be the legal trustees for the purposes of an identifiable traditional cultural expressions (TCE) custodian.  These Kings have a proper understanding of the communities’ culture unlike a bureaucrat living several miles away.
Ownership of TCE exists in the community leaders.[41] Therefore, TCE ownership is not abstract but identifiable in most communities.[42] Most traditional societies without a formal system that stand for the interest of the traditional communities have created artificial legal entities to regulate the cultural products of the communities.[43]
 The Maya women weavers of Guatemala as an example formed a national movement of Maya weavers, with the Women’s Association for Development of Sacatepéquez, known by its Spanish acronym as AFEDES.[44] The Maya women weavers, through the legal entity, AFEDES demand collective intellectual property right for their Huipiles.[45] This is a cotton dress that has traditional Maya knowledge, which foreigners misappropriated without compensation to the traditional Maya women.[46]
The case of the Maasai people is another example for the resolution of TCE ownership. The Maasai live within Kenya and Tanzania in East Africa.  They have come together to demand monetary compensation from a luxury brand, Louis Vuitton, for using their sacred cultural designs and symbols in its products.[47] As a practical step, the Maasai people of Kenya and Tanzania formed the Maasai IP Initiative Trust Ltd (MIPI), for purposes of ownership control and overcoming the authorship conundrum over their sacred cultural designs.[48]
§2.0 Renegotiating African Creative Regime
                        [A] Necessity for Intellectual Property Law Reform
The international creative communities led by the United Nations initiated several treaties to regulate the use and compensation systems of cultural materials.[49]  The UNESCO and  the World Intellectual Property Organization (WIPO) are in the process of adopting a legal regime that is globally acceptable for protecting cultural proprietary rights of indigenous people and traditional societies.[50] However, the efforts of these organizations have been dragging out for more than two decades. The current international intellectual property (IP) regime has been in existence for more than 300 hundred years.
In 1886, the industrialized and developed nations  signed the first major and effective global IP treaty, the Berne Convention.[51] The Berne Convention established the jurisprudential platforms for transnational and international copyright protection and enforcement.[52] In 1952, the Universal Copyright Convention attempted to address the perceived shortcomings of Berne Convention but failed.[53] However, economic and technological modes of productions and creation have greatly evolved beyond the 1886 era in contemporary twenty-first century.
The technological mode of economic productions influenced the changes in copyright regimes from the late 1990s with the World Intellectual Property Organization Copyright Treaty (WCT).[54] The Internet treaties of the late 1990s and the early 2000s, which includes  the recent  Beijing Audiovisual Treaty and Marrakesh Treaty responded to emerging technological innovations as regards the application of copyright laws.[55] However, the various international treaties do not recognize nor enforce effectively traditional intangible creations, cultures, and folklore.[56] In the era of digital innovations and creative derivatives of cultural intangible expressions, current  international copyright treaties have done little to effectively protect traditional and indigenous proprietary rights in the ‘old’ and ‘new’ spaces.[57]
The recent Marvel and Walt Disney Studio’s production of ‘Black Panther’ creates a renewed interest in the debate of the proper value or compensation that African communities deserve, for the use of their folklore, art craft, fashion designs, songs and sacred creation in a derivative cinematographic work.[58] The movie, ‘Black Panther,’ made box-office record by earning more than $400 million within ten days of its release in the U.S. and $700 million overseas in two weeks.[59]
The movie depicts a fictional Central or Eastern African nation, Wakanda, with abundant reserves of a rare mineral deposit, Vibranium.[60]  The Western powers never colonized Wakanda during their scramble for territories in Africa. Wakanda was a technologically advanced country beyond the reach of others in its time. Vibranium has a ubiquitous technological superiority that sets the country above its neighbors.  The movie revolves around the protagonist, T’ Challa, the prince of Wakanda who became its new inspirational leader.
T’Challa, who succeeded his father to be the leader of Wakanda, wanted to continue the kingdom’s isolationist policies that he thought kept them safe.  However, Erik Killmonger, the King’s cousin questioned T’Challa’s legitimacy to the throne and had a contrary vision as to the use of Vibranium.  Killmonger sets in motion plans to claim the throne from T’Challa and control the mineral resource. He envisaged that Vibranium could be used as a tool to change the political and economic power structure of the world.
[B] ‘Wakanda’: Cultural Anachronism & Cinematographic Appropriations
Olufumilayo Arewa, a internationally recognized intellectual property law  and Nollywood scholar contends that ‘borrowing’ certain African cultural works in the context of a commercial exploitation and for profit, just as the song, “The Lion Sleeps Tonight,” may cross the line into appropriation of creative culture.[61] Expounding further on Arewa’s argument, this article contends that Western colonist exploited  African resources.[62] In addition, Western economies with their competitive advantages enabled by advanced digital technology have continued the exploitation and appropriation in the film industry.[63] Africans in  renegotiating on the rights of  traditional communities should recognize the exploitative intersection of a “borrowed” African creative culture, folklore, artwork, songs, sacred institutions, fashion designs and Western cinematographic dominance.[64]
The movie ‘Black Panther’ depicts and uses both fictional and non-fictional African creative contents.[65] For example, Wakanda’s elite female guard draws on the traditions of Kenya, South Africa and Namibia.[66]  Another example for purposes of Intellectual Property law intervention is Wakanda’s king, T’Challa, wearing a tunic with an embroidered collar similar to those worn by Yoruba men in Nigeria.[67] The producers of “Black Panther,” perhaps for legal and artistic reasons, created a derivative art by combining cultures of different African ethnic communities into a new form of fictional African culture or art.[68] The cultural anachronism however does little to shield the appropriation of the inherent cultures that forms the basis of the screenplay.[69]
[C] Access for Derivative Works v. Limits of Unlawful Uses
Intellectual Property polices and regimes have recognized the legality and proprietary rights of digital era’s online public domain databases (OPDD).[70] For example, Google’s Book Search project host millions of public domain works and derives financial reward for the project.[71]  Public domain scholars contend that the financial reward is for Google’s effort to digitalize and make available creative works, which might have been lost or forgotten, for the benefit of the society.[72]
Randal Picker, another intellectual property law scholar referred to the indirect control of public domain work of Google Book Search project and similar OPDDs[73] as a ‘shadow-control regime.’[74] Prior to the advent of Western jurisprudence on public domain, the indigenous societies had in place a recognized ‘public domain’ system.[75]  In the Traditional societies, an existing   traditional political and legal system regulated creative works through communal-domain.[76] The Head of the smallest political unit was the family head.[77] The family head reports to the clan head or council of elders.[78] The council of elders or clan head reports to the King of the community who was the final authority in matters of usage and licensed exploitation of communal creations.[79] To use a communal cultural content all that is required is the application for use to the head of a family or clan.[80]
            The African traditional communities for example, the Yoruba in Nigeria, the  Ibibio, Hausa and Igbo use customary law to regulate folklore, arts, creative works, songs, sculpture, fashion design and recitation of poetry.[81] The traditional society’s husbandry of their cultural contents, in which foreigners like Ryan Googler, the director of “Black Panther,” later on ‘borrowed’ and appropriated, for a successful commercial screenplay came at the cost of a quantifiable creative efforts of the indigenous owners.[82] 
The indigenous people over generations appeased their deities with alcoholic beverages, animal sacrifices, performances at festivals and Ordering of its people to either spend money or use man-hours.[83] Therefore, if contemporary IP jurisprudence recognizes the right of the OPDDs to benefit from public domain works, fairness  and equity demand that intellectual property or a sui generis regime compensate the actual owners of the cultural content for its ‘pseudo-regulated’ regime of public domain works.[84]
The default defence for appropriation of cultural creative works swings between fair use and public domain use.[85] However, when a cultural work is used like in the case in point, ‘Black Panther’, and the movie has earned income for the ‘borrower,’ intellectual property  and communal creative rights are implicated.[86] This article argues that the starting point for legal and fair compensation of African creative culture is the renegotiation of current Intellectual Property jurisprudence and Treaties.
            The argument in relation to access of derivative works by public domain proponents that Google earns ‘minimal’ financial reward for contributing to societal good, also holds true for the owners of the replicated cultural themes in ‘Black Panther.[87]  The African owners of the cultural content preserved their culture to a superior art form, which have artistically enticed filmmakers from developed economies with high-tech cinematic capacities to appropriate or ‘borrow.’[88] However, most developed countries under the guise of international IP treaties would continue to maintain a competitive advantage over developing country’s cultural content, as long as the existing international IP regimes protect their IP rights over the traditional communities.[89]
Google and other creative industries participants should not be deprived of ‘borrowing’ from the abundant cultural work of indigenous societies but ought to reward those that “maintained the field’ and ‘sweat their brows” to create traditional art for the aesthetic and thematic core of contemporary filmmakers.[90]  The African cultural themes and art forms add substantial artistic and financial value to contemporary cinematographic productions.[91]
This article further proposes that Intellectual Property laws, especially copyright and trademark laws, be reconceptualized to address the unique productive and creative character of African contents. Effective laws should protect and compensate the African cultural communities for the use of their creative products in a commercial cinematographic work by a foreign creator.  However, this article recognizes the emotional push back from scholars and politicians, that creating such law is not necessarily an effective remedy to redress historical and political imbalance of the past.[92]
§ 3.0 Developing African Copyright for the Digital Age
African cultural contents used specifically for cinematographic creations deserve a renegotiated platform. Nigeria, Ghana, and most African legal systems protect their proprietary rights in their fashion design, folklore and cultural creative works.[93] In Benin Republic a French speaking West African country, the court denied the popular French musician’s Angelique Kidjo public domain defence to infringe on the intellectual creation of Athanase Houévègnon Akpovi in the songs that was the subject matter of an intellectual property infringement lawsuit.[94] The  court reasoned that the elements of folklore copied in the songs,  Makou, Gnonnou kpassou and Dogbe  were originally created by Akpovi even though the songs were derivatives of folklore.[95]
Unlike copyright jurisprudence of the developed Western economies that grant little copyright protection or none to fashion design and  folklore, the indigenous traditional legal systems protect fashion designs and other intangible creations.[96]  There is an apparent jurisprudential tension between the African system and the Western system on the issues of IP protection of culture.[97] Therefore, within the context of folklore and fashion designs, the African creator deserves a fair economic value  and compensatory system based on the general objectives of the Lockean IP rights as practiced under Nigerian and most African legal systems.[98]
John Locke’s theory of propertied efforts and reward further supports legal protection for African folklore and culture.[99] Locke’s theory has remained the leading justification for intellectual property law. [100] Locke believed that people have inalienable natural rights to life, liberty, and property. Locke’s “labor desert” theory would hold that a creative genius like Fred Jones or the renowned African filmmaker, Tunde Kelani earned his inalienable right to profit from his hard work as an imaginative inventor.[101]  
The Lockeans’ exertion of efforts in creativity seems to clash with the entire concept of folklore as a community production.[102]  However, analyzing the Lockeans’ property-labor concept critically reveals that a community exerts significant efforts to preserve and innovate a folklore, in order to transmit it in its present form from one generation to the other.[103] The labor and efforts exerted by the community equates to the Lockean bonafide of private property ownership rights.[104]  Therefore, Folklore epitomizes the “purest” form of Lockeans’ “private”  ownership of property and creativity.[105]
  Folklore is “pure” because unlike Locke’s creativity or productions, which inured from the labor or effort of the creator and exclusively owned by the private creator.[106]  Folklore created from communal labor and efforts belongs to all. It shades the monopolistic values of a Lockean creation.[107] Folklore is communal property freely accessible to the community and has utilitarian values.[108] To update and refine Lockean IP rights for traditional indigenous and nonindigenous people, it would be necessary to extend his hypothesis to communal preservations of cultural creative expressions.[109]
Most scholars claim that the cost of innovation will increase, and the contemporary society will be the ultimate loser in the potential legal tension that inures, if every aggrieved indigenous community asserts a claim for reparation and compensation.[110] However, the line of argument is similar to the parade of horrible put forward against the adoption of Technical Protection Measures (TPM) in copyright regimes to protect creativity in the digital platforms.[111]It turns out that contrary to antagonist of TPM, access to creativity thrived from enhanced copyright regimes.[112] For example, Apple Corporation’s iTunes revolutionize access to music at  lower cost because of digital copyright regimes.[113]
 An international collective should agree on a treaty that places global responsibility on the comity of nations, for the protection of African and traditional society’s cultural contents.[114] The comity of nations should adopt a transactional-international collective  to amicably reach a consensus  between the developed and developing economies in enforcing traditional cultural creations.[115] The international collectives  birthed the early  and contemporary IP treaties.[116] Therefore, the developed and developing nations should adopted the tested strategy of consensus building in global geo-political customs.
            [A] Afrollywood Films as Geographical Indication
The WIPO, TRIPS and United Nations have embarked on the process of protecting traditional knowledge of indigenous communities, particularly in cultural expressions, genetic resources, and knowledge of biodiversity.[117] Numerous scholarly works acknowledge the inadequacy of present IP regimes to address the protection of traditional knowledge.[118] However, Western traditional communities have accommodated the protection of cultural products and cultures like the production of cheese, champagne, wines and spirits.[119] For example, TRIPS Agreement and the Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration (Lisbon Agreement), creates the concept of geographical indications (GI) for the protection of natural and created food products.[120] 
In most European Union law jurisdiction, GI has become a distinct regime for legal protection.[121] GI is an appellation of origin that shows a product with unique characteristics, quality and peculiarity.[122] An important feature in GI goods is the inherent natural or human creativity of the place of origin.[123] Like a trademark, GIs are registrable and guarantee the product legal protection from appropriation.[124]
The registration of a product as a GI gives it higher economic value because such product reflects the superior quality and authenticity associated with its origin.[125]  Registration of a GI product would act as a notice to counter fake products of its kind in the international market.[126]  Examples of well-known GIs are Roquefort Cheese, Idaho potatoes, Port Wine, Basmati rice, Aranyik knives, Darjeeling tea and Pisco liquor.[127]
One of the characteristics that make Afrollywood suitable for GI protection is its place of origin.[128]  For example, Nollywood is a cultural product with unique quality and geographical origin from Nigeria.  Copyright may not be entirely suitable for protecting the unfixed expression of traditional oral poetry in a Nollywood film.[129]  However, a GI will guarantee legal protection against misappropriation of a Nollywood film with a sound track made of traditional poetic renditions.[130]
This article proposes the GI protection of expressive cultural innovations of traditional communities beyond agricultural products, wines, foods, and spirits. Although, GI protection mostly covers food products, an extension of its coverage for non-food cultural products conveys reputational and quality characteristics in the production process of the cultural expressions.[131] Nollywood films have a unique genre and production process, which is exclusively unique to Nigeria.[132] Nollywood films epitomize the digital expression of Nigerian traditional cultures.
The appellation of origin to every Afrollywood film with predominant indigenous expression increases its artistic and economic value in the international market.[133] GI appellation on an Afrollywood film conveys quality value, which is an advantage for marketing. The appellation of origin will alert consumers about the authenticity and legitimacy of any copy of a Afrollywood film.[134] GI status for Afrollywood film may grant the filmmaker legal standing in the national court of the country where misappropriation of the GI-marked film occurs for legal remedy.[135]
 [B] Intellectual Property & Human Rights: A Hybrid Approach
The UNESCO laid a legal platform to protect mostly tangible (intangible) cultural heritages and works of traditional and indigenous peoples.[136] The processes of production of most of the cultural heritages under UNESCO international treaty protection are similar to the creative processes of traditional cultural expressions and folklore.[137] For example, Gelede and Ifa incantation recognized under the UNESCO initiatives have similar methods of collective production within the intangible or tangible international regime as the creative forces in traditional cultural expressions.[138]
Legal regimes recognize indigenous exclusivity in creation based on generational knowledge and artistic applications.[139] Ifa incantation includes traditional oratorical expressions and graphic codes known only to a class of families or peoples of a particular community.[140] Gelede on the other hand includes the use of traditional and indigenous materials and skills in making the masquerade, which is exclusively for a reserved communal group.[141] The exclusivity and creative methods of the traditional creative activity parallel with the contemporary regimes of intellectual property.[142]
The international cultural community and culture scholars focus more on using human right regimes in protecting cultural heritages and creativity.[143] However, traditional cultural expressions and contents, which African creative industries depend more in achieving modern financial success could benefit from a combination of human right protection and a sui-generis regime, a hybrid-system.[144]
The advantages of protecting cultural contents or creations with a sui generis regimes are  the adaptability and flexibility of laws to realities.[145] An effective  sui generis proprietary legal regime is most likely to impel the monetization or commodification of a novel creation where  an existing legal system lacks the ability to respond.[146] A sui generis system mostly likely will strengthen and protect the creative rights of the African creative industries, like the film industries of Afrollywood genre.[147] While international human right mostly acts as a shield against depriving the indigenous peoples of their rights in cultural intangible  and tangible creations, it lacks the capacity to compensate African creators for appropriation of their expressions in foreign cinematographic works.[148] Human rights regime lacks the efficiency of applying the sword and shield qualities of IP laws or a sui generis regime.[149]
[C] Reforming African Law Schools Curricula & IP Rights for Digital Era
In addition to enhancing their IP laws, African nations should develop their creative human capital.[150] Individual African nations should have a deliberate policy to develop their creative human capital and nurtured for effective execution of IP policies.[151] The intellectual property teacher and experts have significant roles in steering lawyers and creators towards a new approach of legal tutorials to promote creativity in the digital era.[152] The intellectual property subject matter experts could create an African atmospherics for creativity.[153] The core legal regime for protecting the creative industries is copyright law.[154] Therefore, the success and economic growth of African creative industries also hinges on the quality of IP lawyers and IP teachers that it produces from their law schools.[155] African law schools should emphasize interdisciplinary and clinical teaching of IP subjects.  African law Schools should seek effective partnerships with foreign and local institutions to collaborate in teaching updated and innovative IP subjects.
  A lawyer or law teacher with requisite skills and knowledge of the digital era intellectual property systems and laws would influence the quality of IP law graduates in the market and innovative place. The African law schools should steer their graduates towards transactional-commercial aspects of legal advisory services to African creators. The practical hands-on training helps emerging lawyers segue into the rapidly changing ecosystem of IP law.
Most African countries have intellectual property laws that lag in the digital IP ecosystems.[156] The IP experts in digital copyright laws applicable to Africa will have the knowledge and skill sets to influence the reform of outdated intellectual property laws in their various countries.[157] By comparison, the IP curricula should de-emphasize the focus on litigation and lawsuits as remedies for IP rights issues.[158]  The emerging African creators primarily lack the financial means to pursue lawsuits. African creators should focus on creating new and beneficial works while obtaining relevant legal advice at the outset from skilled lawyers with relevant IP-based knowledge.

With a foundational entrepreneurial approach towards creative works, Africa could harness its IP system for economic growth and societal prosperity.[159] Technological infrastructures like accessible and affordable bandwidth capacity for wide Internet support in the law libraries, open spaces, and classrooms will support the study of IP laws in African law schools and support innovative works of African creators. Other infrastructure to support a strong copyright regime in Africa is the provision of good road networks, electricity, and public security for creators to feel comfortable investing in movies, creating music, designing fashion, sculpturing and digitalize folklore in African locations.
The recent United States claim and allegation against China for stealing or illegally using its IP rights underscore the call for the Western economies to renegotiate the unfavorable international IP treaties that allows the unlawful uses of African IP rights without due financial reward to the owners. Renegotiating the old treaties starting from Berne Convention and recognition of African cultural intangible proprietary rights may be a starting point.


OBAFEMI AWOLOWO LAW JOURNAL Volume 1 Page 217 (2018) (ISSN: 0795-8714).

Dr. Samuel Samiai Andrews, SJD is an Adjunct Professor at Albany State University, Georgia. USA. He teaches Cybercriminology, Criminal Justice and Legal Environment of Business at Albany State University.  He co-lectured the SJD Colloquium and Workshop Seminar of the SJD Doctoral Program at Suffolk University Law School (2015-2018). He holds double LL.M (Intellectual Property & Policy from the University of Washington, Seattle and LL.M in International Law & Legal Theory from the University of Uyo, Nigeria). He also holds an LL. B (Hons) from the University of Uyo, Nigeria and a  BL (Barrister-at-Law) diploma from the  Nigerian law School, Lagos. I would like to thank Professors, Michael L Rustad, Christopher Gibson, Patrick Shin, Sara Dillion (all of Suffolk University Law School, Boston. USA), Jessica Silbey and Thomas Koenig all from Northeastern University School of law, Boston. USA for their help in guiding me through developing the themes of this article. © 2018. Samuel Samiai Andrews, All Rights Reserved.
[1] See, Ted Shapiro, The Beijing Audiovisual Performers Treaty: A Long March to Compliance? 25 Ent. L. Rev. 291 (2014); See also, Ruth Okediji, The Regulation of Creativity Under WIPO Internet Treaties, 77 Fordham L. Rev. 2379 (2009).
[2] See, Michael A. Carrier, The Propertization of Copyright in Intellectual Property and Information Wealth: Issues and Practices in the Digital Age Vol i, 345-360 (Peter K. Yu, ed., Westport: Praeger Perspectives, 2005).
[3] See, Carlos Ropes, How Can Africa Profit from Its Creative Industries? United Nations Economic Commission for Africa Executive Secretary’s Blog (August 19, 2014) available at https://www.uneca.org/es-blog/creativity-new-money
[4] See, Danielle M. Conway, Indigenizing Intellectual Property Law: Customary Law, Legal Pluralism, and the Protection of Indigenous Peoples’ Rights, Identity, and Resources, 15 Tex. Wesleyan L. Rev. 207 (2009).
[5] See, Paul Kuruk, Protecting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions between Individual and Communal Right in Africa and the United States, 48 Am. U. L. Rev. 769 (1998); See also, Kevin J. Greene, Copyright, Culture and Black Music: A Legacy of Unequal Protection, 21 Hastings Comm. & Ent. L. J. 399 (1998); See e.g., Kevin J. Greene, Copynorms, Black Cultural Production, and the Debate Over African- American Reparations, 25 Cardozo Arts & Ent. L. J. 2007 1179 (2007).
[6] Paul Kuruk, supra, note 5.
[7] See, Josephine Gillespie, Heritage and Human Rights: Reframing the Conversation Ethic in Heritage, Culture and Rights: Challenging Lega Discourses 1, 165-180 (Andrea Durbach & Lucas Lixinski, eds., Oxford & Portland, Oregon: Hart Publishing, 2017).
[8] See, United Nations Educational, Scientific and Cultural Organization, Ifa Divination System, available at http://www.unesco.org/culture/ich/en/RL/ifa-divination-system-00146 ; See also, United Nations Educational, Scientific and Cultural Organization, Oral Heritage of Gelede, available at http://www.unesco.org/culture/ich/en/RL/oral-heritage-of-gelede-00002 ; See e.g., Paolo D. Farah & Riccardo Tremolada, Conflict Between Intellectual Property Rights and Human Rights: A Case Study of Intangible Cultural Heritage, 94 Or. L. Rev. 125 (2015).
[9] See, UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, Oct. 17, 2003, 2368 U.N.T.S.35.
[10] See, United Nations Educational, Scientific and Cultural Organization, Ifa Divination System, available at http://www.unesco.org/culture/ich/en/RL/ifa-divination-system-00146 ; See also, United Nations Educational, Scientific and Cultural Organization, Oral Heritage of Gelede, available at http://www.unesco.org/culture/ich/en/RL/oral-heritage-of-gelede-00002 ; See e.g., Paul Kuruk, Cultural Heritage, Traditional Knowledge and Indigenous Rights: An Analysis of the Convention for the Safeguarding of Intangible Cultural Heritage, 1 Macquarie J. Int’l & Comp. Envtl. L .111 (2004).
[11] See, Sean A. Pager, Folklore 2.0: Preservation Through Innovation, 2012 Utah L. Rev. 1835 (2012).
[12] Carlos Ropes, Supra, note 3.
[13] See generally, Jonathan Haynes, The Creation Of Nigerian Film Genre (2016).
[14] Id.
[15] See, Carmela Garritano, African Movies and Global Desires: A Ghanaian History 1, 154-194 (Center for International Studies; Ohio University Press, 2013).
[16] See, Jyoti Misty & Jordache A. Ellapen, Jyoti Misty & Jordache A. Ellapen, Nollywood’s Transportability: The Politics and Economics of Video Films as Cultural Products in Global Nollywood: The Transnational Dimensions of an African Video Film Industry 46-69 (Matthias Krings & Onookome Okome, eds., Bloomington: Indiana University Press, 2013). 
[17]  See, Ann Overbergh, Innovation and Its Obstacles in Tanzania’s Bongowood, 7 J. Ari. Cinemas 137-151(2015); See also, Ann Overbergh, Kenya’s Riverwood, Market Structure, Power Relations and Future Outlooks, 7 J. Afr. Cinemas 97-115 (2015).
[18] See, George Issaias, East Africa: The Start of a Booming Film Industry?  True Africa (December 15, 2015) available at  https://trueafrica.co/article/east-africa-the-start-of-a-booming-film-industry/ ; See  also, Frankline Sunday, Kenya’s Film Industry is in Revival Mode, Standard Digital (October 6, 2015) available at https://www.standardmedia.co.ke/business/article/2000178722/kenya-s-film-industry-is-in-revival-mode.
[19] Ann Overbergh, supra, note 16.
[20] See, Jyoti Misty & Jordache A. Ellapen, Nollywood’s Transportability: The Politics and Economics of Video Films as Cultural Products in Global Nollywood: The Transnational Dimensions of an African Video Film Industry 46-69 (Matthias Krings & Onookome Okome, eds., Bloomington: Indiana University Press, 2013).
[21] See, Ibibio-English Online Talking Dictionary, available at  http://talkingdictionary.swarthmore.edu/ibibio/?fields=all&semantic_ids=&q=film
[22]  See, Susannah Walker, Black is Profitable: The Commodification of the Afro, 1960-1975, 1 Enterprise & Society 536-564(2000); See also, Gregory U. Rigsby, Afro-American Studies at Howard University: One Year After, 39 J. Negro Edu. 209-213 (1970); This article also refers to Afrondise as “Afrollywood.”
[23] See, Christine H. Farley, Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer?  30 Conn. L. Rev. 1, 4-5 (1997); See also, James Anaya, International Human Rights and Indigenous peoples: The Move Toward the Multicultural State, 21 Ariz. J. Int’l & Comp. L. 13 (2004).
[24] See, Stephanie Spangler, When Indigenous Communities Go Digital: Protecting Traditional Cultural Expressions through Integration of IP and Customary Law, 27 Cardozo Arts & Ent. L. J. 709 (2010).
[25] See, Jane Anderson, Indigenous/Traditional Knowledge and Intellectual Property, Duke University School of Law Center for the Study of Public Domain; Issue Paper (2010) available at http://www.law.duke.edu/cspd/pdf/ip_indigenous-traditionalknowledge.pdf
[26] See, Danielle M. Conway, Indigenizing Intellectual Property Laws: Customary Law, Legal Pluralism, and the Protection of Indigenous People’s Rights, Identity and Resources, 15 Tex. Wesleyan L. Rev. 207 (2009); See also, RaoRane Meghana, Aiming Straight: The Use of Indigenous Customary Law to Protect Traditional Cultural Expressions, 15 Pac. Rim. L. & Pol’y J. 827 (2006).
[27] See, Jonathan Haynes, African Cinema and Nollywood: Contradictions, available at https://radicalimagination.institute/wp-content/uploads/2017/02/haynes-2011.pdf ; See also, Uchenna Onzulike, Nollywood: Nigerian Videofilms as a Cultural and Technological Hybridity, 17 Intercultural Comm. Stud. 176 (2009).
[28] Uchenna Onzulike, supra, note 23.
[29] Copyright Act (2004), Cap. (28), § 31 (Nigeria).
[30] See, Bankole Sodipo, Piracy And Counterfeiting: GATT, TRIPS And Developing Countries 36-42 (London: Kluwer Law, 1997): See also, Boatema Boateng, Walking the Tradition-Modernity Tightrope: Gender Contradiction in Textile Production and Intellectual Property Law in Ghana, 15 Am. U.J. Gender Soc. Pol’y & L. 341 (2007); See e.g., Paul Kuruk, African Customary Law and the Protection of Folklore, 36 Copyright Bulletin 4 (2002).
[31] See, Stephanie Spangler, supra note 20.
[32] See, Taslim O. Elias, The Nature Of African Customary Law 60-65 (2d. Manchester: The University Press, 1962).
[33] See, Rebecca Tsosie, Just Governance or Just War? Native Artists, Cultural Production, and the Challenge of “Super-Diversity,” 6 Cybaris An. Intell. Prop. L. Rev. 56, 94-96 (2015).
[34] Copyright Act (2004), Cap. (28), § 31 (Nigeria).
[35] See, Adebampo Adewopo, Protection and Administration of Folklore in Nigeria, 3 SCRIPTed 1 (2005).
[36] Copyright Act (2004), Cap. (28), § 32 (Nigeria).
[37] Id.
[38] Id. at § 31.
[39] Boateng Boateng, supra, note 27.
[40] See, Robert P. Merges, Locke for the Masses: Property Rights and the Products of Collective Creativity, 36 Hofstra L. Rev. 1179-90 (2008). (discussing the significance of finding the political representatives of a traditional community as owners of communal rights in creative works).
[41] See, Kristen A. Carpenter et al, In Defense of Property, 118 Yale L. J. 1022 (2009); See also, Paul Kuruk, Supra, note 27.
[42] See, Robert Merges, Locke for the Masses: Property Rights and the Products of Collective Creativity, 36 Hofstra L. Rev. 1179 (2008).
[43] See, Manuela Picq, Maya Weavers Propose a Collective Intellectual Property Law, Centre for World Indigenous Studies, March 14, 2017 available at https://intercontinentalcry.org/maya-weavers-propose-collective-intellectual-property-law/
[44] Id.
[45] Id.
[46] Id.
[47] See, Tania Phipps-Rufus, Companies Accused of Exploiting Cultural Identity of Kenya’s Maasai, The Guardian (UK) (Aug. 8, 2013) available at https://www.theguardian.com/sustainable-business/ethical-exploit-cultural-brands-masai. 
[48] See, The Maasai Cultural Brand, available at http://lightyearsip.net/the-maasai/
[49] See, Wendy Wendland & Jessyca V. Weelde, Digitizing Traditional Culture, WIPO Magazine (June 3, 2008) available at http://www.wipo.int/wipo_magazine/en/2008/03/article_0009.html ;  See also, World Intellectual Property Organization, Indigenous Community Goes Digital with High Tech Support From WIPO, WIPO Media Center: Press Releases (August 5, 2009) available at http://www.wipo.int/pressroom/en/articles/2009/article_0030.html; See generally, Olufunmilayo Arewa, Cultural Appropriation: When ‘Borrowing’ Become Exploitation, The Conversation (June 20, 2016) available at https://theconversation.com/cultural-appropriation-when-borrowing-becomes-exploitation-57411, also available at https://www.huffingtonpost.com/the-conversation-africa/cultural-appropriation-wh_b_10585184.html
[50] Id.
[51]  See, Berne Convention for the Protection of Literary and Artistic Works 1161 U.N.T.S., July 24, 1971; See also, Agreement on Trade Related Aspects of Intellectual Property Rights, April 15, 1994. 33 I.L.M. 1197 (1994).
[52] After Berne Convention the international intellectual property regime introduced various treaties to adapt to the changing technological challenges implicating copyrights and other creative rights. For example, the WIPO Performance and Phonograms Treaty (1996) and the Rome Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations (Rome Convention) (1961), which is not an Internet Treaty but deals with changes in creativity ecosystems belong to the category of relevant international IP regimes.
[53] See, Mihály Ficsor, The WIPO “Internet Treaties.”: The United States as the Main Source of Obstruction- As Seen by an Anti-Revolutionary Central European, 6 John Marshall Rev. Intell. Prop. L. 17 (2006).
[54] See, Beijing Treaty on Audiovisual Performances, 51 ILM 1214(2012), Art. 2 (defining performers broadly to include any persons who perform literary or artistic works, including expressions of folklore and audiovisual fixation as any transmission of moving images through a device with or without sound); See also,  Beijing Treaty on Audiovisual Performance, arts,5-12, June 24, 2012, WIPO Doc. AVP/DC/20 available at http://www.wipo.int/edocs/pubdocs/en/wipo_pub_beijing_flyer.pdf ; See e.g.  Aaron Fellmeth, Introductory Note to the Beijing Treaty of Audiovisual Performances, 51 ILM  1211 (2012) (describing in detail the WIPO diplomatic conference on the protection of audiovisual performances adopting the Beijing Treaty on Audiovisual Performances).
[55] See, Ruth L. Okediji, Legal Innovation in International Property Relations: Revisiting Twenty-One Years of the TRIPS Agreement, 38 U. Pa. J. Int’l. L. 232-33 (2014); See also, Ruth L. Okediji, The Regulation of Creativity Under the WIPO Internet Treaties, 77 Fordham L. Rev. 2379 (2009).
[56] See, Peter Jaszi, Protecting Traditional Cultural Expressions: Some Questions for Lawmakers, WIPO Magazine (August 2017) available at http://www.wipo.int/wipo_magazine/en/2017/04/article_0002.html.
[57] The old and new spaces refer to the traditional or analogue copyright eligibility requirements versus the contemporary digital or technological protection measures adopted from the late 1990s to protect copyright arising from technical and digital infringement of works.
[58] Id.
[59] See, Elahe Izadi, ‘Black Panther’ Keeps Smashing Records, Exceeding Box-Office Expectations and Making History, The Washington Post, (February 25, 2018) available at https://www.washingtonpost.com/news/comic-riffs/wp/2018/02/25/black-panther-keeps-smashing-records-exceeding-box-office-expectations-and-making-history/?utm_term=.44934949e52f ; See also, Andrew Chow, “ Tomb Raider” Can’t Topple ‘Black Panther’ at Box Office, New York Times (March 18, 2018) available at https://www.nytimes.com/2018/03/18/movies/black-panther-box-office-tomb-raider-i-can-only-imagine.html (reporting that black Panther, the movie earned $605million domestically and $1,2 billion globally five straight weeks after its official release).
[60] See, Elahe Izadi, supra, note 59..
[61]See, Olufunmilayo Arewa, Cultural Appropriation: When ‘Borrowing’ Become Exploitation, The Conversation (June 20, 2016) available at https://theconversation.com/cultural-appropriation-when-borrowing-becomes-exploitation-57411, also available at https://www.huffingtonpost.com/the-conversation-africa/cultural-appropriation-wh_b_10585184.html
[62] See, Dani W. Nabudere, The African Renaissance in the Age of Globalization, 6 Afr. J. Pol. Sci. 11-28 (2001).
[63] See, Negativland, Two Relationships to a Cultural Public Domain, 66 L. & Comtemp. Problems  239-62 (2003).
[64] See, Paul Kuruk, The Role of Customary Law Under Sui Generis Frameworks of Intellectual Property Rights in Traditional and Indigenous Knowledge, 17 Ind. Int’l & Comp. L. Rev. 67 (2007).
[65] See, Mallory Yu, ‘Black Panther, Costume Designer Draws On ‘The Sacred Geometry of Africa,’ NPR.org (Feb. 16, 2016) available at  https://www.npr.org/2018/02/16/586513016/black-panther-costume-designer-draws-on-the-sacred-geometry-of-africa
[66] Id.
[67] See, Zeba Blay, From Zamunda to Wakanda: How ‘Black Panther’ Reimagined African Style, Huffington Post (Feb. 16, 2018) available at https://www.huffingtonpost.com/entry/how-black-panther-reimagined-african-style_us_5a7730e0e4b01ce33eb3e6d5
[68] Id.
[69] See, Jelani Cobb, “Black Panther” and The Invention of “Africa,” The New Yorker (February 18, 2018) available at https://www.newyorker.com/news/daily-comment/black-panther-and-the-invention-of-africa
[70] See, Randal C. Picker, Access and the Public Domain, 49 San Diego L. Rev. 1183 (2012).
[71] Id.
[72] Id.
[73] Id.
[74] Id. See, Kevin J. Greene, Intellectual Property at the Intersection of Race and Gender: Lady Sings the Blues, 16 Am. U. J. Gender Soc. Pol’y & L. 365 (2008).
[75] See, Ruth Gana Okediji, Copyright and Public Welfare in Global Perspective, 7 Indiana J. Global L. Stud.  117-189 (1999).
[76]  See, Deborah Wassel, From Mbube to Wimoweh: African Folk Music in Dual Systems of Law, 20 Fordham Intell. Prop. Media & Ent. L.J. 289 (2009).
[77] Paul Kuruk, supra, note 53.
[78] Id.
[79] Id.
[80] Id.
[81] Bankole Sodipo, Supra, note 27.
[82] See, Ganiyou Gassikia, Implementing and Enforcing Intellectual Property Rights in West Africa, 13 J. Marshall Rev. Intell. Prop. L. 782 (2013); Boatema Boateng, Supra, note 27.
[83] See, Boatema Boateng, supra, note; See also, Emanuela Arezzo, Struggling Around the “Natural” Divide: The Protection of Tangible and Intangible Indigenous Property, 25 Cardozo Arts & Ent. L.J.367 (2007).
[84] See, Daniella Fischetti, Lost in Translation: The Impact of Copyright Legislation on Female Folk Musicians of the Twentieth Century, 33 Women’s Rts. L. Rep. 285 (2012).
[85] Jane Anderson, supra, note 21.
[86] Olufunmilayo B. Arewa, supra note 43.
[87] See, Ruth Gana Okediji, Copyright and Public Welfare in Global Perspective, 7 Indiana J. Global L. Stud.  117, 198-199 (1999) (noting that “…[c]opyright law determines ownership of creative contents and therefore grants copyright owners the authority to regulate how and under what terms protected information [copyrighted work]is sold, bought, used and otherwise transmitted [transferred] ”) ; See e.g., Eldred, 537 U.S. 186 (2003) (holding that a copyright owner has overwhelming broad powers that includes regulating the usage of copyrighted works even when such owner is long dead).
[88] See, Joseph W.P. Wong, Overview of TRIPs, Services and TRIMs in the New World Trading System Readings, OECD Documents 173 (1994) (noting that developed countries are concerned more about protecting their comparative advantage from developing economies, therefore, a lopsided IP regime that enhanced their IP rights without corresponding IP protection for the creative rights of developing nations content serves the developed economies better).
[89] See, Jerome H. Reichmann, Universal Minimum Standards of Intellectual Property under the TRIPs Components of the WTO Agreement in Intellectual Property and International Trade 21, 22-23 (Carlos M. Correa & Abdulqawi A. Yusef, eds., 1998) (furthering the debate that the competitive nature of traditional industrial products manufactured, and economically lucrative due to its richness in cultural value has forced the developed countries to rely more heavily on the existing IP regimes, which  they originally crafted to favor their comparative advantages in derivable production of IP goods).
[90] See, M. Stuart Madden, Myth, Folklore, and Ancient Ethics, 37 Cumb.  L. Rev. 43 (2006).
[91] Id.
[92] See, Bernard R. Boxill, A Lockean Argument for Black Reparations, 7 J. Ethics 63-91 (2003).
[93] See, Hervé G. Adoukonou, Recent Jurisprudence in Benin: Copyright-Authorship of the Work- Pre-existence-Plagiarism-Penalties, 36 Copyright Bulletin 58 (202) (exploring the jurisprudence laid out in a superior court in Benin, a Western Africa nation in the case between popular French musician Kidjo Angélique versus Akpovi H. Athanase, which held that  the author of an a intellectual work owns exclusive incorporeal property right in the work and its title enforceable against all parties
[94] Id.
[95] Id.
[96] See, Paul Kuruk, African Customary Law and Protection of Folklore, 36 Copyright Bulletin 5-35 (2002).
[97] Id.
[98] See, Paul Kuruk, The Role of Customary Law Under Sui Generis Framework of Intellectual Property Rights in Traditional and Indigenous Knowledge, 17 Ind. Int’l & Comp. L. Rev. 67 (2007) (describing the preexisting traditional jurisprudence under customary law to protect indigenous intangible creations in  most African communities); In Nigeria, the Offrey v Ola & Ors Hos/23/68 (1969) (Nigeria) holding, supports the ‘sweat of the brow’  copyright ownership doctrine, which emphasizes the effort that a creator exerts in his or her creative work as the basis of authorial rights.
[99] See, Robert Merges, supra, note 39.
[100] Id.
[101] See, John Locke, Two Treatise Of Government (Peter Laslett ed., Cambridge Univ. Press, 1988) (1690) ; See also, John Locke, The Second Treatise Of Government in Two Treatises of Government, supra, § 25 ; See e.g., Diane L. Zimmerman, Information as Speech, Information as Goods: Some Thoughts on Marketplaces and the Bill of Rights, 33 Wm. & Mary L. Rev. 665, 690-703 (1992); Tunde Kelani is the Nigerian International and award winning  filmmaker whose cinematic works are primarily influenced and interpretative of Nigerian traditional cultures; See e.g., Olushola Adenugba, Aesthetics in the Nigerian Film Industry : A Study of the Directorial Styles and Concepts of Amaka Igwe-Isaac, Muyiwa Ademola and Tunde Kelani, FilminNaija, July 25, 2007 available at http://filminnaija.blogspot.com/2007/07/aesthetics-in-nigerian-film-industrya.html; See generally, Akinwumi Adesokan, Tunde Kelani’s Nollywood: Aesthetic of Exhortation in Postcolonial Artist And Aesthetics (Bloomington: Indiana University Press, 2011).
[102] See, Wendy J. Gordon, A Property Right in Self-Expressions: Equality and Individualism in the Natural Law of Intellectual Property, 102 Yale L. J. 1533-1609 (1993).
[103] See, Edwin C. Hettinger, Justifying Property, 18 Philosophy & Public Affairs 31, 36-45 (1989).
[104] See, Benjamin G. Damstedt, Limiting Locke: A Natural Law Justification for the Fair Use Doctrine, 112 Yale L.J. 1179-1221 (2003).
[105] Id.
[106] See, Wendy J. Gordon, supra, note 102.
[107] See, Brian Cwik, Labor as the Basis for Intellectual Property Rights in Ethical Theory and Moral Practice, 7 Special Issue: BSET-Conference 681-695 (2014).
[108] See, American Folklore Society, Recommendations to WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore, 117 J. Am. Folklore 296, 297-98 (2004).
[109] Id. (defining nonindigenous peoples as a group who have developed significant traditional knowledge and folklore over the course of generations in locations different from their historical places of origin).
[110] See, Kevin J Greene, Copyright, Culture and Black Music: A Legacy of Unequal Protection, 21 Hastings Comm. & Ent. L.J. 399 (1999); See also, Kevin J. Greene, Stealing the Blues: Does Intellectual Property Appropriation Belong in the Debate Over African-American Reparation? SSRN (December 1, 2004) available at https://ssrn.com/abstract=655424; See e.g., Kevin J. Greene, “Copynorms” Mass Appropriations of Black Cultural Production, and the Debate Over African-American Reparations (2006).
[111] See, Ruth L. Okediji, When Copyright Law and Science Collide: Empowering Digitally Integrated Research Methods on a Global Scale, 96 Minn. L. Rev. 1162, 1417-18 (2011); See also, Jane Ginsburg, From Having Copies to Experiencing Works: The Development of an Access Right in U.S. Copyright Law, 50 J. Copyright Soc. 113, 115 (2003).
[112] See, Derek J. Schaffner, Note: The Digital Millennium Copyright Act: Overextension of Copyright Protection and the Unintended Chilling Effect of Fair Use, Free Speech and Innovation, 14 Cornell J. L. & Pub. Pol’y 145 (2004); See also, Electronic Frontier Foundation, Unintended Consequences : Sixteen Years Under DMCA, Eff.Org (September 2014) available at https://www.eff.org/files/2014/09/16/unintendedconsequences2014.pdf; See e.g., Glynn S. Lunney Jr, The Death of Copyright: Digital Technology, Private Copying and the Digital Millennium Copyright Act, 87 Va. L. Rev. 813 (2001).
[113] See, Kelly Leong, iTunes: Have They Created a System for International Copyright Enforcement? 13 New Eng. J. Int’l & Comp. L. 365 (2007).
[114] See, Joost Pauwelyn, Enforcement and Countermeasures in the WTO: Rules are Rules- Towards a more Collective Approach, 94 Am. J. Int’l L. 335-347 (2000).
[115] Id.
[116]  See generally, Peter K. Yu, Intellectual Property and Information Wealth: Issues and Practices in the Digital Age Vol I -Copyright and Related Rights (Peter K. Yu, ed., Westport: Praeger Perspectives, 2007).
[117] See, Daniel Gervais, Traditional Knowledge and Intellectual Property: A TIPS- Compatible Approach, 2005 Mich. St. L.Rev. 137 (2005).
[118] See, Weerawit Weeraworawit, Formulating an International Legal Protection for Genetic Resources, Traditional Knowledge and Folklore: Challenges for the Intellectual Property System, 11 Cardozo J. Int’l & Comp. L. 769 (2003).
[119] See, Daniel Gervais, Traditional Knowledge: Are we closer to the Answer(s)? The Potential Role of Geographical Indications, 15 Ilsa J. Int’l & Comp. L. 551 (2009).
[120] TRIPS Agreement at art.22.2 & art. 23.1; Lisbon Agreement at art. 5 (1), Oct. 31, 1958, 923 U.N.T.S. 205 as revised at Stockholm July 1, 1967 and as amended on Sept. 28, 1979.
[121] See, Benjamin Hopper, Whither (Wither) Geographical Indications and for Appellations of Origin in an Era of Globalization, 16 Chi-Kent J. Intell. Prop. 210 (2016).
[122] See, Clark W. Lackert, Geographical Indications, What does the WTO TRIPS Agreement Require?  109 Trademark World 22 (1998).
[123] Id.
[124] Id.
[125] Benjamin Hopper, Supra, note 100.
[126] Id.
[127] See, Teshager Dagne, The Identity of Geographical Indications and their relations to Traditional Knowledge in Intellectual Property Law,54 Idea 255 (2014).
[128] Id.
[129] Teshager Dagne, Supra, note 104.
[130] Id.
[131] See, Irene Calboli, Expanding the Protection of Geographical Indication of Origin under TRIPS: Old Debate or New Opportunity, 10 Marq. Intell. Prop. L. Rev. 181 (2006).
[132] See, Irene Calboli, Time to Say Local Cheese and Smile at Geographical Indications of Origin? International Trade and Local Development in the United States,53 Hous. L. Rev. 373 (2015).
[133] Id.
[134] See, Tunisia L. Staten, Geographical Indications Protection under the TRIPS Agreement: Uniformity Not Extension, 87 J. Pat. & Trademark Off. Soc’y 221 (2005).
[135] See, Daniel J. Gervais, Reinventing Lisbon: The Case for a Protocol to the Lisbon Agreement (Geographical Indications), 11 Chi. J. Int’l L. 67,104-5 (2010).
[136] See, Paolo D. Farah & Riccardo Tremolada, Conflict Between Intellectual Property Rights and Human Rights: A Case Study of Intangible Cultural Heritage, 94 Or. L. Rev. 125 (2015).
[136] See, UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage, Oct. 17, 2003, 2368 U.N.T.S.35. See, United Nations Educational, Scientific and Cultural Organization, Ifa Divination System, available at http://www.unesco.org/culture/ich/en/RL/ifa-divination-system-00146 ; See also, United Nations Educational, Scientific and Cultural Organization, Oral Heritage of Gelede, available at http://www.unesco.org/culture/ich/en/RL/oral-heritage-of-gelede-00002 ; See e.g., Paul Kuruk, Cultural Heritage, Traditional Knowledge and Indigenous Rights: An Analysis of the Convention for the Safeguarding of Intangible Cultural Heritage, 1 Macquarie J. Int’l & Comp. Envtl. L .111 (2004).
See, Christine H. Farley, Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer?  30 Conn. L. Rev. 1, 4-5 (1997); See also, James Anaya, International Human Rights and Indigenous peoples: The Move Toward the Multicultural State, 21 Ariz. J. Int’l & Comp. L. 13 (2004).
[137] See, Danielle M. Conway, Indigenizing Intellectual Property Law: Customary Law, Legal Pluralism, and the Protection of Indigenous Peoples’ Rights, Identity, and Resources, 15 Tex. Wesleyan L. Rev. 207 (2009).
[138] Stephanie Spangler, supra, note 20.
[139] See, Taslim O. Elias, The Nature Of African Customary Law 60-65 (2d. Manchester: The University Press, 1962); See also, Rebecca Tsosie, Just Governance or Just War? Native Artists, Cultural Production, and the Challenge of “Super-Diversity,” 6 Cybaris An. Intell. Prop. L. Rev. 56, 94-96 (2015).
[140] See, WANDE Abimbola, Ifa: An Expository of Ifa Literary Corpus (2d. 1997); See also, Karin Barber, Yoruba Oriki and Deconstructive Criticism, 15 Res. Afr. Lit. 497-518 (1984).
[141] See, Ernest Fantel, Gelede Mask, 8 Afr. Arts 75 (1975); See also, Babatunde Lawal, New Light on Gelede, 11 Afr. Arts 65 (1978); See e.g., Henry John Drewal, Gelede Masquerade: Imagery and Motif, 7 Afr. Arts 8 (1974).
[142] See, Robert Merges, Justifying Intellectual property (2011); See also, Robert Merges, Locke for the Masses: Property Rights and the Products of Collective Creativity, 36 Hofstra L. Rev. 1179 (2008).
[143] See, Stefan Gruber, The tension between Rights and Cultural Heritage Protection in China in Heritage, Culture and Rights: Challenging Legal Discourses 149 -180 (Andrea Durbach & Lucas Lixinski, eds., Portland, Oregon: Hart Publishing, 2017); See also, Folarin Shyllon, The Poverty of World Heritage Management in Sub-Saharan Africa: The Legacy of Colonialism and Disregard of Human Rights in Heritage, Culture and Rights: Challenging Legal Discourses 181-202 (Andrea Durbach & Lucas Lixinski, eds., Portland, Oregon: Hart Publishing, 2017).
[144] Copyright Act (2004), Cap. (28), § 31 (Nigeria); See, Stefan Gruber, supra, note 143; See also, Folarin Shyllon, supra, note 143.
[145] See, Caroline B. Ncube, Calibrating Copyright for Creators and Consumers: Promoting Distributive Justice and Ubuntu in What If We Could Reimagine Copyright? 253-280 (Rebecca Giblin & Kimberlee Weatherall, eds., Action: Australian National University Press, 2011).
[146] Id.
[147] See, Molly Torsen, “Anonymous, Untitled, Mixed Media”: Mixing IP Law with Other Legal Philosophies to Protect Traditional Cultural Expressions, 54 Am. J. Comp. L. 173-198 (2006).
[148] See, Paolo D. Farah & Riccardo Tremolada, Conflict Between Intellectual Property Rights and Human Rights: A Case Study of Intangible Cultural Heritage, 94 Or. L. Rev. 125 (2015); See also, James Anaya, International Human Rights and Indigenous peoples: The Move Toward the Multicultural State, 21 Ariz. J. Int’l & Comp. L. 13 (2004); See e.g., Phllipe Cullet, Human Rights and Intellectual Property Protection in the TRIPS Era, 29 Human Rts. Q.403-432 (2007).
[149] See, Eta Stamatopoulou, Monitoring Cultural Human Rights: The Claims of Culture on Human Rights and The Response of Cultural Rights, 34 Human Rts. Q. 1170-1192 (2012).
[150] See, Emmanuel Adomako Nuakoh, Law School Crisis in Ghana: The Way Forward, available at https://ssrn.com/abstract=3035230; See also, David McQuoid-Mason, Access to Justice and the Role of the Law Schools in Developing Countries: The South African Experience, available at https://ssrn.com/abstract=270592
[151] Id.
[152] See, Peggy Maisel & Susan R. Jones, Implementing the Social and Economic Promise of the Constitution: The Role of South African Legal Education in Law and Rights: Global Perspective On Constitutionalism and Governance, Chap. 17 (Penelope E. Andrews & Susan Brazilli, eds., 2008) available at https://ssrn.com/abstract=1507947.
[153] Id.
[154] See, Enyinna Nwauche, Intellectual Property and Creative Industries Policy in Africa in African Research Handbook on Intellectual Property and Creative Industries 85-90 (Abbe E.L. Brown & Charlotte Waedle, eds., Cheltenham, Glasgow: Edward Elgar Publishing Inc., 2018)
[155] Id.
[156] Id.
[157] See, Thomas H. Koenig & Michael L. Rustad, Global Information Technologies : Ethics And The Law 21-36 (St. Paul, Minnesota: West Publishing, 2018) (describing legal lag as when legal institutions fail to keep up with the changing social and cultural conditions of society and quoting Justice Benjamin Cardozo posit that law must continually evolve to deal with the emergent social realities); See also, Benjamin Cardozo, The Growth  Of The  Law 19-20 (New Haven, Connecticut: Yale University Press, 1973) (emphasizing that “the inn that provides shelter for the night is not the journey’s end. The law, like the traveler must be ready for the morrow. It must have a principle of growth”).
[158] Peggy Maisel & Susan R. Jones, Supra, note 149.
[159] Emmanuel Adomako Nuakoh, Supra, note 147.

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