Let’s all pro­tect in­tel­lec­tual prop­erty for the re­gion’s tra­di­tional cul­tural ex­pres­sions

CHRISTO­PHER MUHAWE

The East African - - OPINION -

Uganda has just hosted the third edi­tion of the 2017 East African Com­mu­nity Arts and Cul­ture Fes­ti­val (Ju­muiya ya Afrika Mashariki Uta­maduni Fes­ti­val, (Ja­mafest) un­der the theme “Cul­ture and the cre­ative In­dus­try: The en­gine for unity and em­ploy­ment.”

The fes­ti­val is hosted on a ro­ta­tional ba­sis by each partner state ev­ery two years. The fes­ti­val is ex­pected to bring cul­tural com­mu­ni­ties within the East African re­gion to showcase their cul­tural en­dow­ments. This ar­range­ment points to a fact that the fes­ti­val is meant for con­ti­nu­ity.

It was or­gan­ised as a one-stop shop for show­cas­ing East African tra­di­tional mu­si­cal per­for­mances, arts and craft, lit­er­ary works, tra­di­tional film shows, poetry, sto­ry­telling, ac­ro­bat­ics, a sym­po­sium and East Africa’s tra­di­tional culi­nary art.

Pa­pers were pre­sented by East African pol­icy mak­ers mostly on the main theme of the fes­ti­val. How­ever, there was no pa­per or pol­icy pro­posal on in­tel­lec­tual prop­erty pro­tec­tion for the tra­di­tional cul­tural ex­pres­sions (TCES), a linch­pin of the Ja­mafest.

Lack of a com­mon and agreed upon le­gal pro­tec­tion mech­a­nism means that TCES will con­tinue be­ing ex­ploited at a dec­i­mal com­mer­cial value or at no cost by ruth­less busi­ness sharks. TCES em­body a unique form of in­tel­lec­tual prop­erty that needs com­bined le­gal and ad­min­is­tra­tive ef­fort in or­der to pre­vent unau­tho­rised ex­ploita­tion.

Glob­al­i­sa­tion cou­pled with ad­vanced and so­phis­ti­cated tech­no­log­i­cal pro­cesses has en­abled the unau­tho­rised com­mer­cial ex­ploita­tion of works of art, craft, and knowl­edge of tra­di­tional so­ci­eties at a very wide and un­prece­dented scale.

The East African tra­di­tional cul­ture and cre­ative in­dus­try has not been spared by this wave of unau­tho­rised com­mer­cial ex­ploita­tion of the valu­able tra­di­tional in­tel­lec­tual prop­erty. This sit­u­a­tion has largely been made worse by the fact that pro­tec­tion of tra­di­tional cul­tural ex­pres­sions in East Africa has re­mained legally blurred.

It is not shock­ing for one to find nu­mer­ous ar­ti­facts and other tra­di­tional ob­jects im­ported from East African com­mu­ni­ties on Euro­pean and Amer­i­can mar­kets. Such tra­di­tional wares shock­ingly sell at an high price in th­ese up­per mar­kets. Be­hind this unau­tho­rised ex­ploita­tion are our own peo­ple with con­nec­tions and po­si­tions of priv­i­lege.

The in­dict­ment here is that com­mer­cial ex­ploita­tion of tra­di­tional in­tel­lec­tual prop­erty as­sets at the ex­pense of tra­di­tional so­ci­eties from which th­ese valu­able and time­less as­sets have long been de­vel­oped is eco­nom­i­cally un­fair. There should be di­rect com­mer­cial ben­e­fits trick­ling to na­tive com­mu­ni­ties from the ex­ploita­tion of their tra­di­tional knowl­edge and ar­ti­facts.

The unau­tho­rised copy and paste ap­proach is not only in the tra­di­tional ar­ti­facts but also in in­dige­nous mu­sic and dance be­ing sam­pled by record­ing com­pa­nies which at­tract high prof­its with­out any com­pen­sa­tion to the so­ci­eties of ori­gin.

Com­mer­cial ex­ploita­tion of cul­ture and cre­ative ef­forts of East Africans with­out re­ward­ing such ef­fort should be legally and ad­min­is­tra­tively com­bat­ted by the East African Com­mu­nity states. A uni­form le­gal pol­icy should be put in place to cre­ate an en­gine for unity and em­ploy­ment cre­ation in cul­ture and cre­ative arts. This le­gal ap­proach will en­sure spe­cial recog­ni­tion of the cul­ture and cre­ative in­dus­try and the re­sul­tant in­tel­lec­tual prop­erty rights which be­long to na­tive com­mu­ni­ties.

Ac­cord­ing to the East African Com­mu­nity Sec­re­tar­iat, the main ob­jec­tive of the fes­ti­val has been to pro­mote so­cio-cul­tural in­te­gra­tion through arts and cul­ture by pro­vid­ing a re­gional plat­form to showcase cul­ture as a prime driver of the EAC in­te­gra­tion. But there will not be ef­fec­tive in­te­gra­tion un­less East African TCES, which are held in high es­teem by its cit­i­zenry, are pro­tected.

The East African Com­mu­nity states in­te­gra­tion path is one that is bent (or should be) on fos­ter­ing eco­nomic de­vel­op­ment of its cit­i­zenry in all ways pos­si­ble. In this re­gard, an East African pro­to­col in form of le­gal pro­tec­tion of tra­di­tional cul­tural ex­pres­sions should be passed to pre­vent the unau­tho­rised ex­ploita­tion of the in­tel­lec­tual prop­erty em­bed­ded in tra­di­tional cre­ative works.

A spe­cially made cross-bor­der le­gal in­stru­ment that pro­hibits im­proper com­mer­cial util­i­sa­tion of cul­ture and cre­ative arts with­out com­pen­sat­ing com­mu­ni­ties and/or in­di­vid­u­als who de­velop them should be en­acted and com­monly en­forced by all East African coun­tries.

The states should use a rec­i­proc­ity treat­ment ap­proach in han­dling and pre­serv­ing the cul­ture and cre­ative in­dus­try in­tel­lec­tual prop­erty rights. This ap­proach trans­lates into a sit­u­a­tion that no cul­tur­ally in­spired art should be il­le­gally ex­ploited in­clud­ing sell­ing, of­fer­ing for sale, im­port­ing and ex­port­ing from any of the East African coun­tries with­out pro­vid­ing a li­cense or recog­ni­tion of in­tel­lec­tual prop­erty rights from the source.

Be­hind this ex­ploita­tion are our own peo­ple with con­nec­tions and po­si­tions of priv­i­lege.” TCES em­body a unique form of in­tel­lec­tual prop­erty that needs com­bined le­gal and ad­min­is­tra­tive ef­fort in or­der to pre­vent unau­tho­rised ex­ploita­tion.

Christophe Muhawe is a Ugan­dan lawyer spe­cial­is­ing in in­tel­lec­tual prop­erty and cy­ber­se­cu­rity Law. Email: cmuhawe1204@gmail.com.

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