Protecting intellectual property rights

IN RECENT weeks, and not for the first time, there has been a tremendous clamour over the issue of cultural appropriation. This time it was about the use of the word ‘J’Ouvert’ as the label for a rum product to be produced by the well-known American actor Michael B. Jordan.

In 2019, there was the matter of Kanye West using national emblems of Jamaica on merchandise that he was marketing in promotion of his church services. In both situations, public condemnation, and i n West’s case intervention by the Government of Jamaica, resulted in the reversal of the decisions to use the identified term ‘J’Ouvert’ and logos for personal gain by these artistes.

In some ways it is heartening that Caribbean voices are being raised i n objection to the appropriation of cultural emblems, words, phrases, and other expressions which are of definite Caribbean origin, by those in developed countries for personal gain. It signals that there is a growing awareness of the value of culture from a sociopsychological perspective for nationals, as well as the novelty it contributes to world culture. It is the latter that non-Caribbean operatives have exploited for decades with no recompense for the Caribbean economies or its people as a whole. The Caribbean has benefited little from the use of cultural and traditional knowledge both in the region and outside it, and while some in the past have considered it of low value and the culture of developed countries as far superior, the diaspora has begun to own the culture more forcefully, to share and promote it vigorously. Caribbean peoples the world over have begun to recognise the value of our cultural contributions and to feel pride in it now more than any time in our history.

PROTECTING CULTURE

Nevertheless, the more substantial i ssue of how to approach t he protection of cultural and traditional assets still remains to be addressed in a holistic manner and through the mechanisms of legal and regulatory framework, as outlined in Article 66 of the Revised Treaty of Chaguaramas for CARICOM nations.

Traditional knowledge and cultural expression have long held the attention of a few academics and cultural groups who have felt the need to preserve them but are to this day largely unknown to the public.

The concept of traditional knowledge i n the context of intellectual property is rooted in the idea that the life skills and knowledge passed down through generations should be the preserve of the peoples who practised them, and that any use of such knowledge should be with their permission and in such a manner as prescribed by them. It is recommended that where financial gain is intended from the use of such knowledge, the originators of that knowledge should benefit financially as well. This seems to be a fair approach to the issue of monetising traditional knowledge.

The following excerpt from a WIPO publication is instructive on this idea. ‘‘Contrary to a common perception, traditional knowledge is not necessarily ancient. It is evolving all the time, a process of periodic, even daily creation as individuals and communities take up the challenges presented by their social and physical environment. In many ways, therefore, traditional knowledge is actually contemporary knowledge. Traditional knowledge is embedded in traditional knowledge systems, which each community has developed and maintained in its local context. The commercial and other advantages deriving from that use could give rise to intellectual property questions that could in turn be multiplied by international trade, communications and cultural exchange.” (http://www.wipo.int/about-ip/en/studies/publications/generesources.htm).

There is also the issue of folklore and the ability of any group or nation to protect for posterity the use of information known as folklore. For example, the legend of the Guyanese ‘Massacuraman’, a demonic spirit found in the jungles of Guyana, particularly the rivers and creeks which appears to those it encounters as half-man halfanimal and which causes untold terrors to those who cross its path, is derived from the tribal traditions of the Amerindian peoples, though it is unclear which of the tribes originated the legend. It is said to be similar to the legend of ‘Papa Bois’ of Trinidad. It the case of the ‘Massacuraman’, the protection of the legend as folklore or cultural expression has not been considered to any great degree, if at all, by academics, and certainly not by policymakers. This applies, of course, to all Guyanese folklore and cultural expressions. WIPO is still in the process of working on a draft document for the protection of traditional knowledge and cultural expressions with input from several countries, including a few from the Caribbean. It is unclear whether CARICOM through its COHSOD – Council for Human and Social Development – is part of the negotiations and how the eventual draft mechanism will take into account the various traditional practices of the Caribbean region.

It is clear, however, that CARICOM has an opportunity to craft a regional convention for the protection of traditional knowledge and cultural expressions for the entire region to which member countries can become signatories. Such an approach will serve two purposes: in the first instance, it will enable the protection of the use of traditional expressions and folklore within the region, and second, provide a substantial basis for negotiations at international bodies in these areas.

The clamour for recognition and protection of the use of expressions, practices and other cultural attributes both by Caribbean nationals and foreigners who wish to monetise them is an important facet in owning the culture, protecting it from sociological and anthropological standpoint, ensuring that it is passed freely to the next generations as part of their natural inheritance, and asserting the value of our unique contributions to the world at large. National governments and CARICOM have to take up the responsibility for ensuring that comprehensive legal mechanisms are developed to protect our heritage. The tactic of ‘shouting strangers away from the yard’ will not always work, and may not work much longer.