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]
* 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).
[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.
[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).
