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While Africa’s legal systems have a strong basis for protecting traditional cultural expressions, more needs to be done to establish links between brands and indigenous communities, as Sarah Morgan reports.
In the Maasai community, which inhabits central and southern Kenya and northern Tanzania, a group of Maasai elders and leaders united to protect their cultural brand after an estimated 1,000 companies made use of the community’s name, image, and reputation.
While the brand itself is worth billions of dollars, around 80 percent of the Maasai live below poverty level, according to non-governmental organization Light Years IP. The organization helped set up the Maasai Intellectual Property Initiative, dedicated to reclaiming the Maasai ownership of its famous brand.
Unfortunately, it’s not just the Maasai community whose work has been used in this unauthorized manner: Kente designs from Ghana and Ndebele art from South Africa are just two other examples.
“Traditional cultural expressions (TCEs) embody the exquisite creativity of the more than 300 million members of indigenous and local communities from all around the world, representing a treasure trove of cultural wealth,” explains Wend Wendland, Director at the World Intellectual Property Organization’s (WIPO’s) Traditional Knowledge Division (Switzerland).
It stands to reason that TCEs, as creations of the human mind, should receive some type of IP protection, adds Mr. Wendland.
He believes that not all TCEs should receive absolute and indefinite protection, which some indigenous and local communities ask for, but rather that a system for the protection of TCEs should be inspired by the IP systems that already exist for the protection of contemporary literary and artistic expressions, trademarks, and geographical indications.
“These existing IP systems reflect delicate balances between the interests of rights holders and users, and these balances should also apply to TCEs and traditional knowledge (TK) protection,” Mr. Wendland says.
This is more easily said than done, however.
Denis Loukou Bohoussou, Director General at the Organisation Africaine de la Propriété Intellectuelle (OAPI) (Cameroon), believes “there is no incompatibility between the IP system and Aboriginal values, for example. However, because of the holistic nature of TK and TCEs, the IP system does not fully understand them.”
He questions how the IP system could “protect an object, such as a statue, without the ritual that gives it its meaning.”
TCEs and TK are an “integral part of the identity” of the peoples who hold them, making them invaluable in the cultural and social life of these communities, explains Mr. Bohoussou.
Mr. Wendland adds: “A bedrock principle of most parts of the IP system is that protected materials pass, at some stage, into the public domain.”
However, the differences between TCEs and TK, and other forms of IP, shouldn’t be overstated, says the WIPO director.
“The basic norm that underlies IP protection—that human creativity and innovation should not be misappropriated and misused by third parties—is not unique to the societies that most fully embrace the current and conventional IP system,” he notes.
Mr. Wendland goes on to explain that this norm forms part of the customary laws and protocols of societies in all parts of the world, noting:
“What we call ‘IP’ rules are, therefore, found in almost all societies, now and in the past.”
In 2010, the African Regional Intellectual Property Organization (ARIPO) introduced a regional instrument, The Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore, which entered into force in May 2015.
The Protocol is aimed at empowering TK and TCE owners to exploit and protect their resources, as well as preventing misappropriation and illicit use of the resources.
Fernando dos Santos, Director General at ARIPO (Zimbabwe), says: “The TK owners already have knowledge as their own. The Swakopmund Protocol gives them legal rights to exploit it as their own.”
It enables ARIPO to manage transboundary TK and TCEs. The Maasai tribe is a prime example: it has a common pool of traditional and cultural knowledge, but the community resides in both Kenya and Tanzania.
Under the Swakopmund Protocol, applications to register TK and TCEs cost US $50, and it costs another US $50 for registration.
The Protocol has also served as a template for the development of national legislation, with Kenya and Zambia modeling legislation on it.
ARIPO is also attempting to develop a database on codified and non-codified TK and expressions of folklore.
Mr. Dos Santos explains: “It is a database for the knowledge holders. For one to access the database one needs consent from the owners.”
Many African nations are also undertaking practical initiatives, such as creating their own databases and supporting work on protocols and guidelines.
The protection of TK and TCEs is also an integral part of OAPI’s mission, reflected in the Bangui Agreement of March 1977, with measures on the protection of expressions of folklore and cultural heritage.
In 2007, OAPI member states adopted two legal instruments on the protection of genetic resources, TK, and expressions of folklore.
OAPI registers industrial property rights and marks or other distinctive signs that may include figurative elements representative of certain communities. The existing opposition procedure allows an interested community to oppose any appropriation by a third party.
The majority of OAPI member states have had national laws on the protection and promotion of cultural heritage, including TCEs, since the 1960s, but difficulties remain in the implementation of these laws, says Mr. Bohoussou.
OAPI intends to invest more in supporting its member states in the protection of genetic resources, TK, and TCEs, as presented in its strategic plan for 2018 to 2022.
On the policy side, WIPO assists the regional organizations to develop policies, action plans, strategies, and legislation.
“The assistance that the WIPO Secretariat provides is not ‘advice’ as such, but rather information as to the key issues, options, and international experiences,” explains Mr. Wendland.
Establishing links between brands and the community should also be high on the agenda, although Mr. Dos Santos notes that there are challenges to doing so.
“Brands should work with these communities to promote their authentic cultural artefacts and for the communities to derive some economic benefits from them. If one has a brand and can link it to the community then it adds value to what they are doing,” he concludes.
Mr. Wendland adds: “In my view, it’s not that brand owners should never use indigenous materials, but rather that there are good and not-so-good ways of doing so.”
Consultation is a key ingredient of any successful collaboration, he explains, adding that without this, the brand owner may attract negative publicity.
“The ideal would be win-win collaborations between the brand owner and the community, in which the community can benefit economically, socially, and culturally, and the brand owner can enjoy the enthusiastic endorsement of the community and achieve a broader public relations benefit that increases brand equity,” Mr. Wendland says.
It’s always possible to do more.
“Africa is doing well on traditional and indigenous knowledge, and has institutional structures and cultural heritage sites, but more needs to be done on IP and economic development. Documentation is also lacking,” says Mr. Dos Santos.
He adds that Africa supports the establishment of international frameworks to effectively protect resources and to create more awareness of the rights and obligations of communities. “We also need to empower them through community projects and assist them to add value to what they have,” states Mr. Dos Santos.
The first step is to help communities make more strategic and effective use of existing IP tools, through hands-on capacity-strengthening and practical projects, says Mr. Wendland.
“If new sui generis laws are enacted, more could be done to ensure that the laws are implemented in practice (and do not simply sit on the statute books) and in ways that benefit communities,” he claims.
Lessons learned at national and regional levels should find their way into international processes, such as the WIPO IGC, so that “new normative outcomes are focused on addressing actual harms and build on real-world experiences,” Mr. Wendland concludes.
The views expressed by Wend Wendland do not necessarily represent the views of WIPO or any of its Member States.
INTA, INTA18, traditional knowledge, Maasai, traditional cultural expressions, ARIPO