Reconceptualizing International Copyright Laws To Protect
African Creative Industries
by Samuel Samiai Andrews†
Table of Contents
Abstract
Introduction………………………………………………………………………………………….....1
§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
Conclusion………………………………………………………………………………………………18
Abstract
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
Introduction
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.
Conclusion
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).
[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).
[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.
[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).
[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.
[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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