Abstract
‘Traditional cultural expressions’ is defined in the World Intellectual Property Organisation (WIPO) document The Protection of Traditional Cultural Expressions/Expressions of Folklore: Revised Objectives and Principles (hereafter WIPO Legal Options) as follows:
Traditional cultural expressions’ or ‘expressions of folklore’ are any forms, whether tangible and intangible, in which traditional culture and knowledge are expressed, appear or are manifested, and comprise the following forms of expressions or combinations thereof:
verbal expressions, such as:
stories, epics, legends, poetry, riddles and other narratives;
words, signs, names, and symbols;
musical expressions, such as songs and instrumental music;
expressions by action, such as dances, plays, ceremonies, rituals and other performances, whether or not reduced to a material form; and
tangible expressions, such as productions of art, in particular, drawings, designs, paintings (including body-painting), carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal ware, jewellery, baskets, needlework, textiles, glassware, carpets, costumes; handicrafts; musical instruments; and architectural forms; which are:
- (a)
the products of creative intellectual activity, including individual and communal creativity;
- (b)
characteristic of a community’s cultural and social identity and cultural heritage; and
- (c)
maintained, used or developed by such community, or by individuals having the right or responsibility to do so in accordance with the customary law and practices of that community.
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- 1.
WIPO/GRTKF/IC/9/4 of 9 January 2006, a 1(i). This document contains a set of policy options and legal mechanisms for the protection of traditional cultural expressions. In this work, the term ‘traditional cultural expressions’ is used interchangeably with ‘folklore’.
- 2.
- 3.
See Von Lewinski (2009), pp. 207–226.
- 4.
Hereafter Berne Convention 828 UNTS 221.
- 5.
A 15(4) of the Berne Convention provides as follows: ‘(a) In the case of unpublished works where the identity of the author is unknown but where there is any ground to presume that he is a national of a country of the Union, it shall be a matter of legislation in that country to designate the competent authority which shall represent the author and shall be entitled to protect and enforce his rights in the countries of the Union, (b) Countries of the Union which make such designation under the terms of this provision shall notify the Director General by means of a written declaration giving full information concerning authority thus designated. The Director General shall at once communicate this decision to all other countries of the Union.’
- 6.
Hereafter the Tunis Model Law.
- 7.
Examples include the Kenyan Copyright Act, 1975; the Senegal Copyright Act 73–52 of 1973; Burundi’s Copyright Act, 1978.
- 8.
- 9.
Hereafter The Model Provisions.
- 10.
See Nwauche (2005), p. 263.
- 11.
- 12.
Amegatcher (2002), p. 33.
- 13.
1982 (21) ILM 580.
- 14.
UNGA res 61/295of 2007. UN Doc A/161/49(2008).
- 15.
Coombe (1998), Ind J Global Legal Studies, p. 59.
- 16.
OAPI was established on 13 September 1962 pursuant to the Agreement Relating to the Creation of an African and Malagasy Office of Industrial Property in Libreville. This Agreement was revised in Bangui in 1977 by the Agreement Relating to the Creation of an African Intellectual Property Organisation and came into effect on 8 February 1982. Negotiations to revise the Bangui Agreement started in 1994 and culminated in the Agreement Revising the Bangui Agreement of March 2 1977 on the Creation of an African Intellectual Property Organisation 1999 (hereafter Revised Bangui Agreement) which came into force on 28 February 2002. OAPI is made up of the following countries: Benin, Burkina Faso, Cameroon, Central African Republic, Chad, Republic of Congo, Cote d’ Ivoire, Gabon, Guinea, Guinea Bissau, Equatorial Guinea, Mali, Mauritania, Niger, Senegal and Togo.
- 17.
The organisation was known as ESARIPO at inception. In 1985 the name of the organisation was changed to African Regional Industrial Property Organisation (ARIPO). In 2002, the mandate of the organisation was changed to include copyright so necessitating the change of name. The organisation is made up of the following countries: Botswana, The Gambia, Ghana, Kenya, Lesotho, Malawi, Mozambique, Namibia, Rwanda, Sao Tome and Principe, Sierra Leone, Somalia, Sudan, Swaziland, Uganda, Tanzania, Zambia and Zimbabwe. These countries are hereafter referred to as the ARIPO countries and their relationship is governed by the Agreement for the Creation of the African Regional Intellectual Property Organisation 1976 (hereafter Lusaka Agreement). In addition, some of the mandate of the organisation is governed by the Protocol on Patents and Industrial Designs within the Framework of the African Regional Intellectual Property Organisation (ARIPO) 1982 (hereafter Harare Protocol) and the Banjul Protocol on Trade Marks 1993 (hereafter Banjul Protocol).
- 18.
Hereafter the Swakopmund Protocol. On 9 August 2010, ARIPO and its member states held a Diplomatic Conference at the coastal town of Swakopmund in Namibia for the adoption of the Protocol on the Protection of Traditional Knowledge and Traditional cultural expressions. The Protocol was adopted by the member states and signed by nine (9) states which presented their credentials at the Conference. The nine (9) member states are: Botswana, Ghana, Kenya, Lesotho, Liberia, Mozambique, Namibia, Zambia and Zimbabwe. The Protocol is known as the Swakopmund Protocol on the Protection of Traditional Knowledge and Traditional cultural expressions. The Protocol will enter into force when six (6) member states of the Organisation either deposit instruments of ratification or instruments of accession. The nine (9) states that signed the Protocol will be required to deposit instruments of ratification, whilst those that did not sign will have to deposit instruments of accession. Accession to the Protocol by such states shall entail acceptance of the agreement on the creation of the African Regional Intellectual Property Organisation. Other than the member states, the Protocol is open to any state that is a member of the African Union or United Nations Economic Commission for Africa.
- 19.
The WTO is established by the Agreement Establishing the World Trade Organisation 1994 (33) ILM 1144.
- 20.
823 UNTS 231.
- 21.
1037 UNTS 151.
- 22.
2368 UNTS 1.
- 23.
34 ILM 1322.
- 24.
2440 UNTS 311.
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Nwauche, E. (2017). Introduction: Key Issues in the Protection of Traditional Cultural Expressions in Africa. In: The Protection of Traditional Cultural Expressions in Africa. Springer, Cham. https://doi.org/10.1007/978-3-319-57231-4_1
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