AfCFTA : Ethiopia, Africa & the New Multilateralism

AfCFTA: Ethiopia, Nigeria and the New Multilateralism

by Samuel Samiai Andrews†1

The Africa Continental Free Trade Area Agreement (AfCFTA) opens up multiplier fronts for African economies. AfCFTA could amplify Ethiopian IP rights because of the unique and rich un-monetized geographical indication resources within its boundaries, which could become an international and regional identifier. AfCFTA could create opportunities to increase regional trade relationships in intellectual property (IP) driven products, while diversifying its national economy.^[i][ii] It could foster national unity and douse cultural tensions.[iii]  Therefore, Ethiopia should engage the rest of the Treaty member-nations from the earliest stages in negotiating Phase II of AfCFTA, which includes the leveraging of IP right of members for national economic growth.

AfCFTA and TRIPS

AfCFTA and member nations of the Treaty need to learn from the problems that the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS), a similar trade and IP protection agreement created and raised.[iv] One of the concerns about TRIPS is the unequal playing field that developing economies are subjected to by the technologically Western advanced member nations of the treaty.[v] Most legal commentators have claimed that developed economies deploy the provisions of TRIPS to expand their dominant international trade objective.[vi] This occurs through ‘dumping’ and importing their IP driven goods into Africa and other less developed and developing economies. However, TRIPS from its neutral objectives developed into a tool for demand by strong and developed economies to developing and less developing economies to enhance their IP regimes as conditions to enter into bilateral trade agreement with these developing economies. Several scholars have justified this strategy as recognized by the TRIPS-Plus provisions in the Treaty.[vii] This article regards the reverse-multilateralism practices as a backdoor strategy by developed economies to maintain their competitive and productive advantages over their less-developed partners.

AfCFTA and African Cultural Forces

In Africa, most countries are at different stages of economy development. There are fewer larger and developed African economies comparatively within the continent. In negotiating the Phase II and IP protocol of AfCFTA, the member nations and their non-African partners should be conscious of the cultural, traditional and political stages of development of the Treaty members. For instance how would AfCFTA recognize the protection of folklore, genetic resources, traditional fashion, indigenous food products, and plants and other traditional cultural goods/expressions? Against the background that the global and some African IP communities have not fully agreed on the scope of proprietary rights for communal ownership of most indigenous communities.^[viii] In negotiating AfCFTA IP protocol, member nations should not allow AfCFTA to encourage the undermining of its goals and objective of real Pan-African inter-nations trade and economic relations across the continent, which would impel and open centers of industrial innovation in member-nation states.

Ethiopian Digitalized Cultural Proprietary Rights

For Ethiopia, this is a great moment to engage the global IP community starting with the AfCFTA IP negotiating to stimulate the innovative and creative resources that is deep in this East African nation.^[ix] Ethiopia has not recognized nor signed major intellectual property Treaties.^[x] Apart from human rights Treaties like the African Human Right Treaty, Ethiopia remains non-receptacle to IP rights multilateralism.^[xi]

Ethiopian coffee, honey, [xii]Teff-Injera, Rose, and Cotton are few of the unique products peculiar to the region and naturally in abundance.^[xiii]  Ethiopia should take advantage of these rich natural food resources with an effective appellation and legal regime within its negotiating objective under AfCFTA.^[xiv] Ethiopia and other African economies could scale up its productive capacity and diversify its revenue intake, while protecting the rights of its people through a combination of indigenous and contemporary laws under AfCFTA.^[xv]

The Role of African Law Schools & AfCFTA

African law schools have an important role to play during the Phase II IP protocol negotiating and implementation of the outcomes or final documents. The effectiveness of the final documents would depend on African subject matter experts’ advisory services, which the African Law Schools are better position to render to their various nation-states.^[xvi] The African Union (AU) and other partners negotiating the IP protocol should engage African subject matter experts in IP and international trade of various University Law Schools. Apart from getting an African jurisprudential perspective from these legal scholars and institutions, the African Law Schools would be at the frontline of training, educating and creating specialized curriculum for existing and upcoming legal professionals as efficient and effective partners in African Trade development.

For Nigeria

AfCFTA, Nigeria -Most Favored Nation, National Treatment, 

In Africa, most countries are at different stages of economy development. There are fewer larger and developed African economies comparatively within the continent. In negotiating the Phase II and IP protocol of AfCFTA, Nigeria should be conscious of the cultural, traditional and political stages of development of the Treaty members. In Negotiating the Phase II the objectives of encouraging inter-regional trade should encourage Nigeria to negotiate a robust Most Favored Nation (MFN) and National Treatment (NT) clauses so that Nigerians and Nigeria can trade in products protected by IP in territories of other member states of AFCFTA without being unfairly and inequitably treated.[i] The principle of National Treatment generally means that Nigeria should treat intellectual property protected traded products or creations of AfCFTA member states as it would treat that of its citizens or nationals.[ii] This NT obligation should be based on reciprocity. Nigerian should insist on the inclusion of these clauses and a practical system to annually assess member states’ implementation.[iii]

AfCFTA and Nigerian Cultural Creative Forces

Nigeria should leverage this moment in history to engage AfCFTA  to recognize the protection of its film (Nollywood), folklore, geographical indications, genetic resources, traditional fashion, indigenous food products, and plants and other traditional cultural goods/expressions as trade related intellectual property rights interest. With the background that the global and some African IP communities have not fully agreed on the scope of proprietary rights for communal ownership of most indigenous communities.[viii] In negotiating AfCFTA IP protocol, Nigeria should push for the attainment of the goals and objective of real Pan-African inter-nations trade and economic relations across the continent. The large continent market of Africa could set the pace for proprietary protection of indigenous food, innovative products. However, the NOTN should join other IP stakeholder to lobby or promote the total overhaul and reform of Nigerian IP laws. For example, laws for Geographical indications, Trade secret, and electronic contracts do not exist in Nigeria. The traditional IP laws in the books: Trademark, Patent, Copyright and Industrial Designs suffer legal lag and needs amendment urgently.[iv] It is when Nigeria has good laws at home that she can stand a better chance of protecting her trade interest within Africa and globally.[v]

The Digital International Trade and Intellectual Property Approach

Digital era economies are powered by innovative technologies. In international trade, current legal regimes have adapted its forms to suit the contemporary means of production. For effective international and regional trade Nigerians would depend on the power of cyberspace and the Internet. Imports and exports of food and products largely now depend on digital means and its regulations. Therefore, Nigeria in negotiating the IP Phase II protocol of AfCFTA should be conscious that its laws must comply with the digital spaces. Nigeria should encourage other member states of AFCFTA to recognize global trade and IP Treaties, which should be incorporated into AFCFTA regulations and protocol as it suits the African interest and objectives. This is a great moment to engage the global IP community starting with the AfCFTA IP Phase II negotiations.

 

[i]†Samuel Samiai Andrews, SJD is a Professor of Intellectual Property Law and USA Ambassador’s Distinguished Scholar, Ethiopia (ADSP) at the University of Gondar, School of Law, Ethiopia. © 2021, He has recently joined the Faculty of the College of Law, Prince Mohammad Bin Fahd. Al Khobar-Dammam. Kingdom of Saudi Arabia. Samuel Samiai Andrews. All Rights Reserved. This article is solely the personal opinion of the author and does not represent that of any public or private institutions associated with the author. It is an adaptation from an earlier published paper with similar theme.

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[i] Jacques Berthelof, Most favored nation (MFN) clause, the Africa’s continental Free-Trade and the interim Economic Partnership Agreement of Ivory coast and Ghana, https://www.bilaterals.org/?most-favoured-nation-mfn-clause. Retrieved 30 April 2021

[ii] Brent Sadler, Intellectual Property Protection through International Trade, 14   Houston j. Int’l  L. 393 (1992).

 

[iii] Zhen Kun and Wang and L. Alan Winter, Africa’s Role in Multilateral Trade Negotiations, https://ssrn.com/abstact=620570, Retrieved 30 April 2021

 

[iv] 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”).

 

[v]  Samuel Samiai Andrews, Why it pays to link products to places - and how African countries can do It, https://theconversation.com/why-it-pays-to-link-products-to-places-and-how-african-countries-can-do-it-151511 Retrieved 30 April 2021

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^[i]†Samuel Samiai Andrews, SJD is a Professor of Intellectual Property Law and USA Ambassador’s Distinguished Scholar, Ethiopia (ADSP) at the University of Gondar, School of Law, Ethiopia.  © 2020, Samuel Samiai Andrews.  All Rights Reserved. This article is solely the personal opinion of the author and does not represent that of any public or private institutions the author is affiliated to.

 See Vera Songwe, A Continental Strategy for Economic Diversification through the AfCFTA and Intellectual Property Rights, Brookings (January 8, 2020), https://www.brookings.edu/research/a-continental-strategy-for-economic-diversification-through-the-afcfta-and-intellectual-property-rights/; Brookings, Foresight Africa: Top Priority for the Continent 2020-2030, Brookings Institute (January 8, 2020), https://www.brookings.edu/multi-chapter-report/foresight-africa-top-priorities-for-the-continent-in-2020/

^[ii] World Intellectual Property Organization, Indigenous Community Goes Digital with High Tech Support From WIPO, (August 5, 2009), http://www.wipo.int/pressroom/en/articles/2009/article_0030.html

[iii] Ruth Okediji, Legal Innovation in International Intellectual Property Relations: Revisiting Twenty-One Years of the TRIPS Agreement, 36 U. Penn Int’l L. 101 (2014) (http://ssrn.com/abstract=2591531)

[iv] Ruth Okediji, The Limits of International Copyright Exceptions for Developing Countries, 21 Vanderbilt J. Entertainment & Technology L. (2019).

[v] Id.

[vi] Okediji, supra note iii

[vii] Samuel Samiai Andrews, Reconceptualizing International Copyright Law to Protect African Creative Industries, 1OAU L.J. 217 (2018).

^[viii] World Intellectual Property Organization, The Coffee War: Ethiopia and the Starbucks Story,    https://www.wipo.int/ipadvantage/en/articles/article_0082.html; see Wendy Wendland & Jessyca V. Weelde, Digitizing Traditional Culture, WIPO Magazine (June 3, 2008); http://www.wipo.int/wipo_magazine/en/2008/03/article_0009.html

^[ix] Justin Hughes, The Limited Promise of Geographical Indications for Farmers in Developing Countries in Geographical Indications At The Crossroads Of Trade, Development, And Culture-Focus On Asia-Pacific 66-86 (Irene Calboli & Wee Loon Ng-Loy, Eds., Cambridge University Press, 2017); see Paul Schemm, How Ethiopia Got Its Grain Back, The Washington Post (February 7, 2019), https://www.washingtonpost.com/world/2019/02/07/how-ethiopia-got-its-grain-back/; Michael Blakeney & Getachew Mengistie, Geographical Indications in Africa: Opportunities, Experiences and Challenges, The University of Western Australia Faculty of Law Research Paper (2017), https://ssrn.com/abstract=3082093

^[x] Takele Soboka Bulto, The Monist-Dualist Divide and the Supremacy Clause: Revisiting the Status of Human Rights Treaties in Ethiopia, 23 J. Ethiopian L. 132 (2015), https://ssrn.com/abstract=1408842

^[xi] Antointee Ladaroia, Ethiopia’s Admission into the League of Nations: An Assessment of Motives, 8 Int’l J. Afr. Hist. Stud. 601-622 (1975).

[xii] Ethiopian has a deep reserve honey especially White honey

^[xiii] Paul Schemm, How Ethiopia Got Its Grain Back, The Washington Post (February 7, 2019), https://www.washingtonpost.com/world/2019/02/07/how-ethiopia-got-its-grain-back/

^[xiv] 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); see also Ruth L. Okediji, Back to Bilateralism? Pendulum Swings in International Intellectual Property Protection, I. U. Ottawa L. & Tech. J. 125 (2004); Keith F. Maskus, Intellectual Property Rights in the Global Economy 239 (2016); see also Dev Gangjee, Relocating the Law of geographical Indications (2015); see e.g., Research Handbook on Intellectual Property and Geographical Indication (Dev S. Gangjee, ed., 2016); Teshager Dagne, The Identity of Geographical Indications and their relations to Traditional Knowledge in Intellectual Property Law,54 Idea 255 (2014); Michael Blakeney & Getachew Mengistie, Geographical Indications in Africa: Opportunities, Experiences and Challenges, The University of Western Australia Faculty of Law Research Paper (2017), https://ssrn.com/abstract=3082093; Michael Blakeney & Getachew Mengistie, Geographical Indications in Africa: Opportunities, Experiences and Challenges, The University of Western Australia Faculty of Law Research Paper (2017), https://ssrn.com/abstract=3082093; Kirti Singh, Geographical Indication as a Tool for Protection of Traditional Knowledge with Special Reference to Protection of ‘Cashmere’ in Kashmir, http://ssrn.com/abstract=2115257.

^[xv] See Tekeba Nega & Yeshitela Eshete, Review of Ethiopia’s Global Position in Honey and Other Bee Product Production and Marketing:  Analysis of Sectoral Opportunities and Limitations, 10 Biomedical J. Scientific Tech. Rch. 1-5 (2018), https://www.researchgate.net/publication/331037935_Review_of_Ethiopia's_Global_Position_in_Honey_and_Other_Bee_Products_Production_and_Marketing_Analysisof_Sectoral_Opportunities_and_Limitations; see also Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration, October 31, 1958, as revised, July 14, 1967, 923 U.N.T.S. 205 [hereinafter Lisbon Agreement], www.wipo.int/treaties/en/text.jsp?file_id=285856/; World Intellectual Prop. Org. [WIPO], Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications and Regulations under the Geneva Act of the Lisbon Agreement on Appellations of Origin and Geographical Indications, WIPO Document LI/DC/19 (May 20, 2015), [hereinafter Geneva Act], www.wipo.int/meetings/en/details.jsp?meeting_id=35202. ; see also TRIPS Agreement, art. 22. 2 & art. 23.1; Lisbon Agreement, 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; see further Daniel Gervais, A Look at the Geneva Act of Lisbon Agreement: A Missed Opportunity? in geographical indications at the crossroads of trade, development, and culture-focus on Asia-pacific 122-144 (irene calboli & wee loon ng-loy, eds., Cambridge university press, 2017).

^[xvi] Id.

[1] Samuel Samiai Andrews, Reconceptualizing International Copyright Laws to Protect African Creative Industries, Vol. 1 Obafemi Awolowo University Law Journal page 217-242 (2018); Samuel Samiai Andrews, Reforming Copyright Law for a Developing Africa, Vol. 66 Page 1. Journal of the Copyright Society of the USA; Vera Songwe, A Continental Strategy for Economic Diversification through the AfCFTA and Intellectual Property Rights, Brookings (January 8, 2020), https://www.brookings.edu/research/a-continental-strategy-for-economic-diversification-through-the-afcfta-and-intellectual-property-rights/; Brookings, Foresight Africa: Top Priority for the Continent 2020-2030, Brookings Institute (January 8, 2020), https://www.brookings.edu/multi-chapter-report/foresight-africa-top-priorities-for-the-continent-in-2020/

 

[1] Jacques Berthelof, Most favored nation (MFN) clause, the Africa’s continental Free-Trade and the interim Economic Partnership Agreement of Ivory coast and Ghana, https://www.bilaterals.org/?most-favoured-nation-mfn-clause. Retrieved 30 April 2021

[1] Brent Sadler, Intellectual Property Protection through International Trade, 14   Houston j. Int’l  L. 393 (1992).

[1] Zhen Kun and Wang and L. Alan Winter, Africa’s Role in Multilateral Trade Negotiations, https://ssrn.com/abstact=620570, Retrieved 30 April 2021

 

[1] 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”).

 

[1]  Samuel Samiai Andrews, Why it pays to link products to places - and how African countries can do It, https://theconversation.com/why-it-pays-to-link-products-to-places-and-how-african-countries-can-do-it-151511 Retrieved 30 April 2021

SAMIAI: Uko Akpan: When Traditional Cultural Expressions B...

SAMIAI: Uko Akpan: When Traditional Cultural Expressions B...: In Memoriam ! Uko Akpan: When Traditional Cultural Expressions Become Tangible The sunsets and he joined his forebears few weeks ago. ...

Uko Akpan: When Traditional Cultural Expressions Become Tangible

In Memoriam!

Uko Akpan: When Traditional Cultural Expressions Become Tangible

The sunsets and he joined his forebears few weeks ago. In South Southern Nigeria of Akwa Ibom State, an Annang indigene, one of the tribes in Africa created and owned a unique and transformative folkloric-traditional expressive content. It included dance, poetic oratory, and musical compositions.

Chief (Dr) Uko Akpan grew up without formal education nor silver spoon in his possession. A University in Nigeria awarded him a well-deserved doctoral degree (honoris causa) in the twilight of his years. Beyond the recognition from his people, Uko Akpan contributed enormously to creative and cultural arts of the indigenous peoples.

Growing up in my teen years in Nigeria, we watched, we danced, we chanted, and we communed to the rhythms of Uko Akpan’s flowery songs and choreographic ensemble. He had the ability to segue in lyrics from his native Annang dialect to Ibibio and Efik and the local pidgin English. His was transformative and original.

Contemporary intellectual property regimes are still struggling to protect his type of creation. However, Nigerian laws in the books protect his type of creation many may not be aware. Did anyone enforce his rights or leveraged or maximized the multiplier benefits that laid in his works? But why not? That is a story for another place and time. Now is to celebrate this great son of Africa.

Uko Akpan epitomizes the resourcefulness of human creatives in Africa, which if properly guided by competent professionals from onset could change the creative spaces unimaginably. Uko Akpan revamped the traditional, indigenous entertainment, and creative culture to tangible positives. Uko Akpan impelled creativity among young and up coming creators. Other indigenous and contemporary artists probably copied or ‘borrowed’ his works. I would say infringed, but again I digress.

He was a celebrity per excellence. A funeral rite, marriage ceremony, political rally or other celebratory activities would not be an event without Uko Akpan performing. He was in the class of Nigerian original celebrities before the Nollywood era but a saner celebrity.

Now, we that are vested in creativity and African arts must not allow the body of work of this great son of  Akwa Ibom State of Nigeria, and Africa to sleep on with him in celestial bliss. Hopefully, Universities in Nigeria, particularly in Akwa Ibom state geographical area would set up a curriculum in a postgraduate level to research and study the arts and creativity of Uko Akpan for posterity. He brought us joy, memories and taught us our culture in simple practical forms. That is why Uko Akpan will live on.

Adieu Chief (Dr) Uko Akpan, Our Culture.

© Samuel Samiai Andrews, SJD.

Professor of Intellectual Property Law, University of Gondar, Ethiopia | USA Ambassador’s Distinguished Scholar, Ethiopia (February 2020).

Recognizing Preexisting Indigenous Creative Jurisprudence: Kidjo Angélique v. Akpovi H. Athanase

Recognizing Preexisting Indigenous Creative Jurisprudence: Kidjo Angélique v. Akpovi H. Athanase   

Recognizing Preexisting Indigenous Creative Jurisprudence

*{66 J. Copyright Soc’y USA 1 (2018-2019)}     

**Kidjo Angélique v. Akpovi H. Athanase        

Infringing indigenous creative works is an equal opportunity lassie faire adventure recently. It involves all creeds, color and geographical location including stakeholders from the indigenous communities. 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.[1] The Beninese court in this case held that the popular African musician Kidjo Angélique infringed  Akpovi H. Athanase intellectual works.[2] The court further asserted that the author of an a intellectual work owns exclusive incorporeal property right in the work and its title enforceable against all parties.[3] In Benin Republic a French speaking West African country, the court denied the popular ‘Angelique Kidjo’ public domain defense to infringe on the intellectual creation of Athanase Houévègnon Akpovi in the songs that was the subject matter of an intellectual property infringement lawsuit.[4] 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.[5]

Unlike copyright jurisprudence of the developed Western economies that grant little copyright protection or none to fashion design and folklore, the indigenous traditional legal system grants comparative advantage to creative works of developing economies.[6] However, a lopsided contemporary IP regime enhances proprietary rights of developed economies without corresponding IP protection for the creative rights of developing nations.[7] There is an apparent jurisprudential tension between the African and Western system on the issues of IP protection of culture.[8] 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.[9]

John Locke’s theory of propertied efforts and reward further supports legal protection for African folklore and culture[10]. Locke’s theory has remained the leading justification for intellectual property law.[11] 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 arduous work as an imaginative inventor.[12] The Lockeans’ exertion of efforts in creativity seems to clash with the entire concept of folklore as a community production.[13] However, analyzing the Lockeans’ property-labor concept critically reveals that a community exerts significant efforts in preserving and innovating folklore to transmit it in its present form from one generation to the other.[14]

The labor and efforts exerted by the community equates to the Lockean bonafide of private property ownership rights.[15] Therefore, Folklore epitomizes the “purest” form of Lockeans’ “private” ownership of property and creativity.[16] 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.[17] Folklore created from communal labor and efforts belong to all. It shades the monopolistic values of a Lockean creation.[18] Folklore is communal property freely accessible to the community and has utilitarian values.[19]  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.[20]

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* Samuel Samiai Andrews, SJD. “Reforming Copyright for A Developing Africa” {66 J. Copyright Soc’y USA 1 (2018-2019)}

** Herve ́ G. Adoukonou.

[1] See Hervé G. Adoukonou, Recent Jurisprudence in Benin: Copyright-Authorship of the Work- Pre-existence- Plagiarism-Penalties, 36 Copyright Bulletin 58 (202); see also Paul Kuruk, African Customary Law and Protection of Folklore, 36 Copyright Bull. 5-35 (2002).

[2] Adoukonou, supra note 1.

[3] Id.

[4] See M. Stuart Madden, Myth, Folklore, and Ancient Ethics, 37 Cumb. L. Rev. 43 (2006).

[5] Adoukonou, supra note 1.

[6] 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

[7] See Paul Kuruk, Protecting Folklore under Modern Intellectual Property Regimes: A Reappraisal of the Tensions Between Individual and Communal Rights in Africa and the United States, 48 Am. U. L. Rev. 769-843 (1999).

[8] See Paul Kuruk, African Customary Law and Protection of Folklore, 36 Copyright Bulletin 5-35 (2002).

[9] 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); see also 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.

[10] 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 recognizing political representatives of a traditional community as owners of communal rights in creative works).

[11] Id.

[12] 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), 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).

[13] 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).

[14] See Edwin C. Hettinger, Justifying Property, 18 Philosophy & Public Affairs 31, 36-45 (1989).

[15] See Benjamin G. Damstedt,  Limiting Locke: A Natural Law Justification for the Fair Use Doctrine, 112 Yale L.J. 1179-1221 (2003).

[16] Id.

[17] Gordon, supra, note 10.

[18] 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).

[19] 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).

[20] American Folklore Society, supra note 16  (defining non-indigenous 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); see also Bernard R. Boxill, A Lockean Argument for Black Reparations, 7 J. Ethics 63-91 (2003).