Let’s all protect intellectual property for the region’s traditional cultural expressions
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: firstname.lastname@example.org.