Abstract
This chapter provides an overview of the protection of ‘traditional cultural expressions’ as a means of identifying the subject matter of this book. The term ‘traditional cultural expressions’ is a deliberate choice from other terms that define the same subject matter such as ‘expressions of folklore’ and ‘intangible cultural heritage’. There are other concepts that are closely related to traditional cultural expressions such as traditional knowledge, which are also considered by this chapter. Furthermore, this chapter engages in a taxonomy of traditional cultural expressions in Africa and then proceeds to a discussion of communities in Africa as creators of traditional cultural expressions. A number of issues, principles and concepts that challenge and underpin the protection of traditional cultural expressions in Africa are also considered.
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Notes
- 1.
See WIPO Legal Options. It is to be noted that expressions of folklore and traditional cultural expressions will be used interchangeably in this book.
- 2.
The Model Provisions are essentially a sui generis system of protection which has strongly influenced legislation protecting traditional cultural expressions in developing countries. See a 15(4) of the Berne Convention and the Tunis Model Law.
- 3.
The equivalent in the repealed Copyright Act 110 of 1985 (hereafter1985 CA Ghana), defines folklore as follows: ‘[A]ll literary, artistic and scientific work belonging to the cultural heritage of Ghana which were created, preserved and developed by ethnic communities of Ghana or by unidentified Ghanaian authors, and any such works designated under this Law to be works of Ghanaian folklore.’
- 4.
Hereafter Nigerian definition.
- 5.
Hereafter Kenyan definition.
- 6.
See para 34 of The Model Provisions.
- 7.
See para 33 of The Model Provisions.
- 8.
See para 34 of The Model Provisions.
- 9.
See para 35 of The Model Provisions, (Emphasis added).
- 10.
See para 36 of The Model Provisions.
- 11.
See para 36 of The Model Provisions.
- 12.
See para 36 of The Model Provisions.
- 13.
Hereafter CCH. 2368 UNTS 3.
- 14.
A 2 of the CCH makes it clear that consideration shall be given to such intangible cultural expressions as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect amongst communities, groups and individuals, and of sustainable development.
- 15.
(1) For the purposes of this Act, those heritage resources of South Africa which are of cultural significance or other special value for the present community and for future generations must be considered part of the national estate and fall within the sphere of operations of heritage resources authorities. (2) Without limiting the generality of subsection (1), the national estate may include—(a) places, buildings, structures and equipment of cultural significance; (b) places to which oral traditions are attached or which are associated with living heritage; (c) historical settlements and townscapes; (d) landscapes and natural features of cultural significance; (e) geological sites of scientific or cultural importance; (f) archaeological sites; (g) graves and burial grounds, including—(i) ancestral graves; (ii) royal graves and graves of traditional leaders; (iii) graves of victims of conflict; (iv) graves of individuals designated by the Minister by notice in the Gazette; (v) historical graves and cemeteries; and (vi) other human remains which are not covered in terms of the Human Tissue Act, 1983 (Act No. 65 of 1983); (h) sites of significance relating to the history of slavery in South Africa; (i) movable objects, including—(i) objects recovered from the soil or waters of South Africa, including archaeological and palaeontological objects and material, meteorites and rare geological specimens; (ii) objects to which oral traditions are attached or which are associated with living heritage; (iii) ethnographic art and objects; (iv) military objects; (v) objects of decorative or fine art; (vi) objects of scientific or technological interest; and (vii) books, records, documents, photographic positives and negatives, graphic, film or video material or sound recordings, excluding those that are public records as defined in section 1(xiv) of the National Archives of South Africa Act, 1996 (Act No 43 of 1996). (3) Without limiting the generality of subsections (1) and (2), a place or object is to be considered part of the national estate if it has cultural significance or other special value because of—(a) its importance in the community, or pattern of South Africa’s history; (b) its possession of uncommon, rare or endangered aspects of South Africa’s natural or cultural heritage; (c) its potential to yield information that will contribute to an understanding of South Africa’s natural or cultural heritage; (d) its importance in demonstrating the principal characteristics of a particular class of South Africa’s natural or cultural places or objects; (e) its importance in exhibiting particular aesthetic characteristics valued by a community or cultural group; (f) its importance in demonstrating a high degree of creative or technical achievement at a particular period; (g) its strong or special association with a particular community or cultural group for social, cultural or spiritual reasons; (h) its strong or special association with the life or work of a person, group or organisation of importance in the history of South Africa; and (i) sites of significance relating to the history of slavery in South Africa.
- 16.
1037 UNTS 151.
- 17.
Monuments as ‘architectural works, works of monumental sculpture and painting, elements or structures of an archaeological nature, inscriptions, cave dwellings and combinations of features, which are of outstanding universal value from the point of view of history, art or science.’
- 18.
Groups of buildings are defined as groups of separate or connected buildings which, because of their architecture, their homogeneity or their place in the landscape, are of outstanding universal value from the point of view of history, art or science.
- 19.
Sites are defined as ‘works of man or the combined works of nature and of man, and areas including archaeological sites which are of outstanding universal value from the historical, aesthetic, ethnological or anthropological points of view.’
- 20.
- 21.
WIPO defines traditional knowledge thus: ‘Intellectual activity in a traditional context and includes knowhow, skills, innovations, practices and learning that form part of the traditional knowledge systems and knowledge embodying traditional lifestyles of indigenous and local communities or contained in codified knowledge systems passed between generations as continuously developed following any changes in the environment geographical conditions and other factors. It is not limited to any specific technical field and may include agricultural, environmental and medicinal knowledge and any traditional knowledge associated with cultural expressions and genetic resources’. See ‘The Protection of Traditional Knowledge: Revised Objectives and Principles’ WIPO/GRTKF/IC/18/5 (10 January 2011). See also Drahos and Frankel (2012), pp. 1–13; Gibson (2004), EIPR, p. 280.
- 22.
See Gervais (2003), J World Intell Prop, p. 403.
- 23.
Section 80(2) of that Act defines indigenous biological resources as including: (i) any resource consisting of living or dead animal, plant or other organism; or any genetic material of such animal plant or organism; (ii) any cultivar, variety, strain, derivative, hybrid or fertile version of any indigenous species or of any animals, plants or other organisms; (iii) any exotic animals, plants of other organism, whether gathered from the wild or accessed from any other source which, through the use of biotechnology, have been altered with any genetic material or chemical compound found in any indigenous species or animals plants or other organisms.
- 24.
See Posey (1998), p. 43.
- 25.
See O’Faircheallaigh (2008), Dev & Change, pp. 25, 27.
- 26.
(1) Folklore means the literary, artistic, religious, scientific, technological and other traditions and productions as a whole created by communities and handed down from generation to generation. (2) The following, in particular, shall be included in that definition: (a) literary works of all kinds, whether in oral or written form, stories, legends, proverbs, epics, chronicles, myths, riddles; (b) artistic styles and productions: (i) dances, (ii) musical productions of all kinds, (iii) dramatic, dramatico-musical, choreographic and pantomime productions, (iv) styles and productions of fine art and decorative art by any process, (v) architectural styles; (c) religious traditions and celebrations: (i) rites and rituals, (ii) objects, vestments and places of worship, (iii) initiations; (d) educational traditions: (i) sports, games, (ii) codes of manners and social conventions; (e) scientific knowledge and works: (i) practices and products of medicine and of the pharmacopoeia, (ii) theoretical and practical attainments in the fields of natural science, physics, mathematics and astronomy; (f) technical knowledge and productions: (i) metallurgical and textile industries, (ii) agricultural techniques, (iii) hunting and fishing techniques.
- 27.
See South African Department of Science and Technology Indigenous Knowledge Systems Policy available at www.dst.gov.za (accessed on 21 Sept 2015).
- 28.
See Mukuka (2010), p. 17.
- 29.
See this chapter.
- 30.
See s 76 of CA Ghana.
- 31.
See s 28(5) of CA Nigeria.
- 32.
See s 2 of CA Kenya.
- 33.
See a 2 of the Swakopmund Protocol.
- 34.
See O’Keefe (1998), ICLQ, p. 904.
- 35.
See Coombe (1998), Ind J Global Legal Studies, p. 59.
- 36.
See generally Boateng (2006), pp. 61–74.
- 37.
See generally Dutfield (2003).
- 38.
1999 2 SA 83 (CC) (hereafter Christian Education).
- 39.
Christian Education 1999 2 SA 83 (CC), para 23.
- 40.
See, for example, ss 244, 245, 275 and 280 of the Nigerian Constitution.
- 41.
[2008] ZACC 23.
- 42.
[2008] ZACC para 23.
- 43.
2008 1 SA 474 (CC).
- 44.
2008 1 SA 47 (CC) para 47.
- 45.
- 46.
See s 6(5)(b)(ii) of the South African Constitution, 1996.
- 47.
A 19: ‘All peoples shall be equal; they shall enjoy the same respect and shall have the same rights. Nothing shall justify the domination of a people by another.’
- 48.
A 20: ‘1. All peoples shall have the right to existence. They shall have the unquestionable and inalienable right to self-determination. They shall freely determine their political status and shall pursue their economic and social development according to the policy they have freely chosen. 2. Colonized or oppressed peoples shall have the right to free themselves from the bonds of domination by resorting to any means recognized by the international community. 3. All peoples shall have the right to the assistance of the States parties to the present Charter in their liberation struggle against foreign domination, be it political, economic or cultural.’
- 49.
A 21: ‘1. All peoples shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it. 2. In case of spoliation the dispossessed people shall have the right to the lawful recovery of its property as well as to an adequate compensation. 3. The free disposal of wealth and natural resources shall be exercised without prejudice to the obligation of promoting international economic cooperation based on mutual respect, equitable exchange and the principles of international law. 4. States parties to the present Charter shall individually and collectively exercise the right to free disposal of their wealth and natural resources with a view to strengthening African unity and solidarity. 5. States parties to the present Charter shall undertake to eliminate all forms of foreign economic exploitation particularly that practiced by international monopolies so as to enable their peoples to fully benefit from the advantages derived from their national resources.’
- 50.
A 22: ‘All peoples shall have the right to their economic, social and cultural development with due regard to their freedom and identity and in the equal enjoyment of the common heritage of mankind. 2. States shall have the duty, individually or collectively, to ensure the exercise of the right to development.’
- 51.
A 23: ‘All peoples shall have the right to national and international peace and security. The principles of solidarity and friendly relations implicitly affirmed by the Charter of the United Nations and reaffirmed by that of the Organization of African Unity shall govern relations between States. 2. For the purpose of strengthening peace, solidarity and friendly relations, States parties to the present Charter shall ensure that: (a) any individual enjoying the right of asylum under 12 of the present Charter shall not engage in subversive activities against his country of origin or any other State party to the present Charter; (b) their territories shall not be used as bases for subversive or terrorist activities against the people of any other State party to the present Charter.’
- 52.
A 24: ‘All peoples shall have the right to a general satisfactory environment favorable to their development.’
- 53.
App 276/03 46th Ord Sess (hereafter Endorois). It must be acknowledged that the African Commission on Human and Peoples Rights (African Commission) had in a number of other cases dealt with group rights. See Katangese Peoples’ Congress v Zaire 2000 AHRLR 72 (ACPHR 1995) and Social and Economic Rights Action Centre (SERAC) & Another v Nigeria 2001 AHRLR 60 (ACHPR 2001); Viljoen (2012), pp. 226–228.
- 54.
The African Commission is established by a 30 of the African Charter to promote human and peoples’ rights and ensure their protection in Africa.
- 55.
‘The African Commission therefore finds against the Respondent State a violation of Article 8 of the African Charter. The African Commission is of the view that the Endorois’ forced eviction from their ancestral lands by the Respondent State interfered with the Endorois’ right to religious freedom and removed them from the sacred grounds essential to the practice of their religion, and rendered it virtually impossible for the Community to maintain religious practices central to their culture and religion’ (Endorois para 173).
- 56.
‘[T]he African Commission agrees with the Complainants that the Property of the Endorois people has been severely encroached upon and continues to be so encroached upon’ (para 238).
- 57.
The Commission relied heavily on the Report of the African Commission Working Group of Experts on Indigenous Populations/Communities (adopted at the 28th Session, 2003) and the Advisory Opinion of the African Commission on Human and Peoples’ Rights on the United Nations Declaration on the Rights of Indigenous Peoples adopted by the African Commission on Human and Peoples’ Rights at its 46th ordinary Session held in May 2007 in Accra Ghana. (hereafter Advisory Opinion). Available at www.acphr.org/files/special-mechanisms-/indigenuos-populations/un-advisory-opinion_idp_eng.pdf (accessed on 29 August 2015). The report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities has identified indigenous peoples and communities as consisting mainly of hunters-gatherers and pastoralists. The Group identified a non-exhaustive list of these hunters-gatherers to include Pygmies of the Great Lakes Region, the San of Southern Africa, the Hadzabe of Tanzania, and the Ogiek of Kenya. The pastoralists are identified to be the ‘… Pokot of Kenya and Uganda, the Barabaig of Tanzania, the Maasai of Kenya and Tanzania, the Samburu, Turkana, Rendille, Orma and Borana of Kenya and Ethiopia, the Karamojong of Uganda, the numerous isolated pastoralist communities in Sudan, Somalia and Ethiopia, to name but a few. West and Central Africa also have pastoralists such as the Touareg and Fulani of Mali, Burkina-Faso, Niger and the Mbororo who are spread over Cameroon and other West African countries’. See Report of the African Commission’s Working Group of Experts on Indigenous Populations/Communities, Doc/OS(XXXIV)1345.
- 58.
Para 162.
- 59.
Para 10.
- 60.
Para 12.
- 61.
Para 1.
- 62.
Para 19.
- 63.
See Bulun Bulun v R&T Textiles Pty Ltd 1998 41 IPR 513.
- 64.
- 65.
See generally, Nwauche (2014), pp. 248–274.
- 66.
See Boyle (2003), p. 33 which contains a rich literature on the effect of intellectual property rights on the public domain.
- 67.
- 68.
See, for example, s 25 of the South African Constitution. See First National Bank of South Africa t/a Wesbank v Commissioner South African Revenue Service 2002 4 SA 768 (CC).
- 69.
See Atsali (2011), p. 1.
- 70.
- 71.
See Roets (2004), SARDQ, p. 79.
- 72.
The Karoo Development Foundation is at the forefront of a project to certify Karoo meat. See www.karoomeatoforigin.com.
- 73.
The South African Minister of Trade and Industry issued a GN 988 in GG of 4 October 2013 prohibiting the use of the words ‘honeybush’, ‘heunibos’, ‘honeybush tea’ and ‘heunibos tee’ following a request from the South African Honeybush Tea Association for a prohibition on the use of these words in connection with any trade, business, profession or occupation, or in connection with a trademark, mark, or trade description applied to goods other than by association.
- 74.
See McGregor Museum, Kimberly www.museumsnc.co.za/aboutus/depts/archaelogy/pdf/IKS.pdf 3.
- 75.
See Snel (2011), pp. 38–43.
- 76.
See Ranking-Smith (2009), p. 409.
- 77.
Armstrong (2008), p. 414.
- 78.
See Winters (2009), p. 418.
- 79.
See Ngubane (2004), pp. 171–177.
- 80.
See Ntombana (2009), pp. 73–84.
- 81.
See Okodo (2012), pp. 131–136.
- 82.
Abuku (2008), pp. 19–28.
- 83.
See Oguamanam and Dagne (2013), pp. 77–108.
- 84.
See Blakeney et al. (2012), p. 9.
- 85.
See Azumah (2002), p. 58.
- 86.
See generally Bolland (1988).
- 87.
Perani and Wolff (1999), pp. 25–26.
- 88.
- 89.
See Asmah (2008), p. 274.
- 90.
See s 76 of the CA Ghana.
- 91.
See Boateng (2006), Am UJ Gender Soc Pol’y & L, p. 342.
- 92.
See Bosumprah 2007 www.ghanaculture.gov.gh/mod_print?archived=452.
- 93.
Cited in Asmah (2008), p. 275.
- 94.
- 95.
See Asmah (2008), p. 274.
- 96.
Asmah (2008), p. 274.
- 97.
See Boateng (2006), Am UJ Gender Soc Pol’y & L, p. 352.
- 98.
Boateng (2006), Am UJ Gender Soc Pol’y & L, p. 352.
- 99.
- 100.
See Boateng (2006), Am UJ Gender Soc Pol’y & L, p. 357.
- 101.
See Boateng (2006), Am UJ Gender Soc Pol’y & L, p. 357.
- 102.
See Kriger (2006), p. 29.
- 103.
See Kriger (2006), pp. 35–36.
- 104.
See Kriger (2006), p. 44.
- 105.
See Kriger (2006), p. 45.
- 106.
See Kriger (2006), p. 45.
- 107.
See Kriger (2006), p. 46.
- 108.
- 109.
See Chuku (2005), p. 72 where reference is made to a type of Akwete cloth known as plangid, which is a bastardisation of ‘blanket’.
- 110.
See Chuku (2005), p. 72 where a design called Jioji and Popo … were named and patterned after the Indian Madras.
- 111.
See Chuku (2005), p. 67.
- 112.
Chuku (2005), p. 67.
- 113.
See Kriger (2006), p. 29.
- 114.
See Chuku (2005), p. 71.
- 115.
Chuku (2005), p. 71.
- 116.
Chuku (2005), p. 71.
- 117.
Chuku (2005), p. 72.
- 118.
Chuku (2005), p. 73.
- 119.
- 120.
See Olajide et al. (2009), p. 57.
- 121.
See Clarke 1996 Kurio Africana 17–18.
- 122.
See Olajide et al. (2009), p. 61.
- 123.
Olajide et al. (2009), p. 61.
- 124.
See Asakitikpi (2007), pp. 101–115.
- 125.
See Asakitikpi (2007), p. 105.
- 126.
See Asakitikpi (2007), p. 106.
- 127.
See Renne (1997), pp. 773–792.
- 128.
See Olajide et al. (2009), p. 64.
- 129.
See Olajide et al. (2009), p. 64.
- 130.
Aso-ebi is a uniform worn by friends and family as a mark of solidarity during special occasions.
- 131.
Olajide et al. (2009), p. 64.
- 132.
- 133.
See Amubode and Adetoro (2001), pp. 29–34.
- 134.
See Akinwumi (2008), p. 189.
- 135.
The same conclusion applies to the Shweshwe fabric, which is popular in Southern Africa. What has become a distinctively popular fabric amongst South African ethnic groups such as the Xhosa, Sotho and Zulu has an Asian and European origin allegedly traceable to German immigrants. See Davie www.mediaclubsouthafrica.com/land-and-people/3556-shweshwe-the-denim-of-south-africa.
- 136.
- 137.
See Troskie ‘Geographical Indications at the National Level’, who lists five conditions for a successful production of Rooibos: (a) it must be in the winter rainfall area; (b) the substrate must be a derivative of Table Mountain Sandstone; (c) it must be deep, well drained in sandy soils; (d) the ph of the soil must be below 7; and (e) it must be in the Fynbos biome.
- 138.
Troskie (2007).
- 139.
Troskie (2007).
- 140.
Troskie (2007).
- 141.
Troskie (2007).
- 142.
See an account of this in Troskie (2007): ‘South Africa’s Minister of Trade and Industry recognised the importance of geographical indications (GI) and submitted the Intellectual Property Laws Amendment Bill to parliament. If approved, this bill would develop a framework for GIs in South Africa. The protection of Rooibos was one of the main reasons for the proposal of the Bill, and as of early 2011 it was still being considered by the South African parliament.’
- 143.
Troskie (2007).
- 144.
In a notice in the GN 911 of 2013 of 6 September 2013, the Minister of Trade and Industry, in terms of the Merchandise Marks Act, published the final prohibition on the use of the following words: ‘Rooibos’, ‘Red bush’, ‘Rooibostee’, ‘Rooibos tea’, ‘Rooitee’ and ‘Rooibosch’ in connection with any trade, business, profession or occupation, or in connection with a trademark, mark, or trade description applied to goods, other than by SARC members or any other party in accordance with the Rules of Use for Rooibos, published as an annexure to the notice.
- 145.
See Chap. 5.
- 146.
See Haynes (2007), p. 1.
- 147.
See Haynes (2007), p. 1.
- 148.
This estimation is based on evidence of the output of Nigerian films through the statistics kept by the Nigerian Video Film and Censors Board. Established by Act 85 of 1993, it is charged with keeping records of film made in Nigeria. Statistics contained in Vols 1 & 2 of the National Film and Video Censors Board Directory indicates that 4425 video films were produced in Nigeria between 1997 and 2003.
- 149.
March (2007), pp. 8–9.
- 150.
See Adeoti (2007), pp. 198–214.
- 151.
See McCall (2007), p. 94.
- 152.
See Esan (2008), pp. 1–19.
- 153.
See Okome (2007), p. 1.
- 154.
See March (2007).
- 155.
Haynes (2007), pp. 1–10.
- 156.
As evidence of the perceived influence of the ethnic film industry, the Kano State Government in 2008 shut down the Hausa Video industry in Kano on the ground that it offended Hausa culture and Islam. See ‘Censorship in Kano’. A blog entry at Bahaushe Mai Ban Haushi available at www.Ibrahim-Sheme.blogspot.com.
- 157.
Haynes (2007), p. 2.
- 158.
Haynes (2007), p. 4.
- 159.
See, for example, Meyer (1999), pp. 93–114.
- 160.
See generally Ugor (2007).
- 161.
See Waldron (1991), pp. 109–110: ‘To put it crudely, we need culture but we do not need cultural integrity…in general, there is something artificial about a commitment to preserve community cultures. Cultures live and grow, change and sometimes wither away: they amalgamate with other cultures, or they adapt themselves to geographical or democratic necessity. To preserve a culture is often to take a ‘favored’ snapshot of it, and insist that this version must persist at all cost, in its defined purity, irrespective of the surrounding social economic and political circumstances.’
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Nwauche, E. (2017). 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_2
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