Jonathan Blavin, HLS ‘03
January 8, 2003
I. Nature of Folklore in Africa
Definitions of folklore tend to emphasize its diverse, expansive nature. For example, one non-legal source defines folklore as “traditional customs, tales, sayings, or art forms preserved among a people.”[1] Generally, folklore applies to ideas, words and physical objects of a people; particular characteristics of folklore include its oral nature, group characteristics, and transmission across generations of people.
Legal definitions of folklore in various African countries underscore the importance of communal rights. For instance, Ghanaian legislation defines folklore as “all 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.”[2] Nigerian law similarly defines folklore as “a group-oriented and tradition-based creation of groups or individuals reflecting the expectation of the community as an adequate expression of its cultural and social identity, its standards and values as transmitted orally, by imitation or by other means.”[3] Almost identical definitions can be found in the laws of the Republic of Congo,[4] Burundi,[5] Mali,[6] Cameroon,[7] the Central African Republic,[8] and Senegal.[9] Statutory examples of folklore include (though are not limited to) poetry, riddles, songs, instrumental music, dances, and plays, productions of art in drawings, paintings, carvings, sculptures, pottery, terra cotta, mosaic, woodwork, metalware, jewelry, handicrafts, costumes, and indigenous textiles.[10] Annex VII of the Revised Bangui Agreement of 1999 of the African Intellectual Property Organization defines folklore more broadly as “literary, artistic, religious, scientific, technological and other traditions and productions as a whole created by communities and handed down from generation to generation.” Thus, plant varieties grown by farmers, and plant extracts developed by local medicine men, qualify as works of folklore to the extent that these techniques embody scientific techniques passed down through generations in the community.
II. Protection of Folklore in African Countries
A. Obstacles to Protection under Traditional IP Laws:
Traditional intellectual property laws present impediments to the protection of folklore and indigenous knowledge. Indeed, there are inherent difficulties in fitting folklore into certain accepted notions of intellectual property relating to ownership, originality, duration, fixation, inventiveness and uniqueness.[11] Though the following examples are hardly exhaustive, they do provide some initial examples of the obstacles present in protecting folklore under traditional IP laws.
As Farhana Yamin and Darrell Posey describe, an immediate problem is one of categorization:
It is difficult to classify indigenous knowledge innovations and practices into categories of intellectual property developed for use by commercial firms in an industrial and secular context because the lines between indigenous religious, cultural, business, intellectual and physical property are not as distinct or mutually exclusive. For example, indigenous ‘sacred sites’ are frequently both ecological reserves developed through human knowledge of management and conservation and cultural centers that have both physical as well as spiritual significance. Concepts such as business reputation and goodwill are also difficult to apply.[12]
Moreover, statutory provisions typically assume that IP rights will be vested in a single solitary creator, rather than a community at large. [13] Because differing concepts of ownership rights—typically invoking communal themes—apply within the context of indigenous knowledge,[14] folklore may not fall within the purview of traditional, Western-based intellectual property law.[15] Indeed, in indigenous societies, ownership refers to the rights of all members of the community in subject-matter originally acquired by ancestors that cannot be transferred unilaterally by any member of the group, including the head leader.[16] Additionally, customary indigenous rights may not meet specified statutory criteria. For example, copyright law requires protected works to be an original, independent creation of the author.[17] The originality of traditional, indigenous rights would be difficult to establish. First, it may be difficult to even identify an individual to claim authorship in a work given the passage of folklore through generations of people in the community.[18] Furthermore, even if an author could be located, it might be impossible to establish that an author employed "independent efforts" sufficient to justify copyright protection as the work would invariably have been founded upon-and substantially similar to-existing works of folklore.[19]
In the context of patents, most folklore would be excluded as “anticipated by the prior art” and as non-inventive. Most African nations require that inventions be novel to be patentable: “an invention is new if it is not anticipated by prior art.”[20] “Prior art” typically includes “[e]verything made available to the public anywhere in the world by means of written disclosure (including drawings and other illustrations) or by oral disclosure, use, exhibition or other non-written means . . . .”[21] Furthermore, the criterion of inventiveness requires that the invention is not “obvious to a person skilled in the art to which the invention pertains . . . .”[22] Thus, considering that folklore has long been available to the public and is not inventive to the extent that it has been passed down through generations, it is highly unlikely to be considered as patentable in most circumstances.
B. Municipal Laws Referring to Folklore
In order to circumvent such obstacles, African legislatures have devised a number of novel ways to protect folklore. Some African copyright laws, for example, provide that copyrights in folklore may be vested in the government, treating the government itself as if it were the creator the work.
Cameroon
Cameroonian copyright law extends protection to “works derived from folklore.”[23] Before commercially exploiting folklore, users must seek authorization from the National Copyright Corporation, which regulates the use of folklore in Cameroon.[24] The Corporation shall collect royalties to be fixed by agreement between both parties. The Corporation can bring infringement actions against unlawful users of protected works.[25]
Central African Republic (CAR)
The CAR copyright office authorizes all commercial exploitations of folklore.[26] Exploiting a work without such authorization is a criminal offense.[27] Money collected through the use of folklore is allocated under a precise formula between the author and the copyright office—the copyright office is statutorily required to use a part of such fees for cultural and welfare purposes.[28] The office also exempts folklore from the 50-year protection term that generally applies to other copyrightable works.[29]
Congo
In Congo, a society known as the “Body of Authors” is responsible for collecting royalties. The Body represents the interests of authors, and oversees the use of folklore,[30] which is regarded as part of the national heritage.[31] Prior to any public performance, reproduction, or adaptation of folklore for commercial purposes, one must seek permission and official authorization from the society.[32] The society charges users of folklore a fee to support cultural and social objectives that benefit Congolese authors.[33] Although public agencies are exempted from the obligation to obtain prior authorization to use folklore for non-profit activities, they nevertheless must notify the collecting society before using the material.[34] Copyright law of Congo also prohibits the importation or distribution of copies of national folklore works made without the explicit authorization of the Body of Authors.[35] Fines may be imposed for such unlawful importation, exportation or reproduction, and the Body of Authors is authorized to pursue legal action to prevent improper exploitation of the national folklore.[36]
Ghana
In Ghana one cannot use Ghanaian folklore for purposes other than those statutorily authorized without applying to the Secretary, and paying a fee. [37] The statute also states that "any sums of money accruing from the use of folklore…shall be paid into a fund established by the Secretary and shall be used for the promotion for institutions for the benefit of authors, performers and translators.[38] It is also a criminal offense for a person, without the permission of the Secretary, "to import . . ., sell, offer . . . for sale or distribute in Ghana . . . copies of . . . works made outside Ghana [of] works of Ghanaian folklore or translations, adaptations, or arrangements of Ghanaian folklore.”[39] The Secretary is also authorized by the copyright statute to adopt regulations regarding the designation of particular practices as Ghanaian folklore.[40]
Kenya (Proposed Bill)
In order to comply with the TRIPS copyright provisions, Kenya has published a Copyright Bill of 2001. The Bill seeks to modernize Kenya’s copyright law and to bring it in line with international instruments, in particular the Berne Convention and the WTO instruments. In the bill, Kenya expressly protects folklore, which is defined in Section 2 to mean literary, musical or artistic work that is presumed to have been created within Kenya by an unidentified author which has been passed from one generation to another and that constitutes a basic element of the traditional cultural heritage of Kenya. Folklore includes: folktales, folk poetry and folk riddles; folk songs and instrumental folk music; folk dances and folk plays; and the production of folk art, in particular drawings, paintings, sculptures, pottery, woodwork, metalware, jewelry, handicrafts, costumes and indigenous textiles. In contrast to other countries, under these provisions folklore explicitly does not constitute technical or scientific knowledge derived from indigenous culture.
Mali
Under Mali law, all persons seeking to use folklore for profit purposes must obtain prior authorization from the Minister of Arts and Culture who may impose a fee for such use.[41] Additionally, it is prohibited to totally or partially assign copyrights or exclusive licenses in “works derived from folklore” without the exclusive approval of the Minister.[42] Another area of the law that could include folklore is the requirement under Mali law is that for all “works whose authors are unknown, including the songs, legends, dances, and other manifestations of the common cultural heritage,” such works are in the public domain and individuals using such works are subject to government imposed user fees.[43]
Nigeria
Nigerian copyright law similarly protects expressions of folklore “against reproduction, communication to the public by performance, broadcasting, [or] distribution by cable.”[44] The law also protects translations and other transformations of folklore, when such expressions are made either for commercial purposes, or outside their traditional or customary context.[45] The Nigerian Copyright Council possesses the exclusive right to authorize such uses of folklore.[46] There are limits to Nigerian law, however. Nigerian folklore may be used without authorization for private or educational purposes,[47] as well as for illustrative purposes in other original works.[48] Nigerian law also permits use of folklore "by way of illustration in an original work of an author; provided that the extent of such utilization is compatible with fair practice" ; "for creating an original work of an author; provided that the extent of such utilization is compatible with fair practice, and for "the incidental utilization of expressions of folklore." [49] Additionally, whenever folklore is referred to, whether in printed publications or in communications to the public, the law requires identification of the source of the folklore by reference to the community or place from where the folklore is derived.[50]
Senegal
Article I of Senegal’s Copyright Act provides special protection for “folklore and works derived from folklore, subject to special provisions, which shall be established by a special law on the protection of the national heritage.”[51] Article 9 states that any “direct or indirect fixation” of such material for “profit-making purposes”—which arguably encompasses the telecenter’s various advertising schemes—is subject to prior authorization by the Copyright Office of Senegal (Bureau sénégalais du droit d'auteur—BSDA). [52] For folklore-derived works where there is no arrangement or personal contribution, 50% in royalties must be paid to the BSDA. For works where there is collecting with arrangement or adaptation, 25% in royalties must be paid to the BSDA.[53] Additionally, Article 45 under Chapter VII provides that failure to declare exploitation of folklore altogether results in a fine “amounting to twice the amount of the royalties normally payable, and not less than 5,000 francs.”[54] As folklore is protected under copyright law as part of Senegal’s national cultural heritage, Senegalese law also criminalizes the importation of unauthorized works.[55]
C. Folklore Protection under Regional Arrangements
African Intellectual Property Organization (“OAPI”)
OAPI was created in Libreville, the capital of Gabon, in 1962 by a number of French-speaking African states to administer shared intellectual property matters.[56] The Libreville Agreement has since been replaced by the 1977 Bangui Agreement, revised in 1999. The Bangui Agreement of 1999 contains a special annex dealing with folklore and indigenous knowledge. It does not appear that any countries party to the OAPI have yet to harmonize their domestic law with the Bangui Agreement’s Annex on folklore.
Scope
Article 67 of the Revised Agreement defines folklore as the “literary, artistic, religious, scientific, technological and other traditions and productions as a whole created by communities and handed down from generation to generation.“ The following is a list of works provided that could constitute folklore:
(a) literary works of all kinds, whether in oral or written form, stories, legends, proverbs, epics, chronicles, myths, riddles;
(b) artistic styles and productions:
1. dances,
2. musical productions of all kinds,
3. dramatic, dramatico-musical, choreographic and pantomime productions,
4. styles and productions of fine art and decorative art by any process,
5. architectural styles;
(c) religious traditions and celebrations:
1. rites and rituals,
2. objects, vestments and places of worship,
3. initiations;
(d) educational traditions:
1. sports, games,
2. codes of manners and social conventions;
(e) scientific knowledge and works:
1. practices and products of medicine and of the pharmacopoeia,
2. theoretical and practical attainments in the fields of natural science, physics,
3. mathematics and astronomy;
(f) technical knowledge and productions:
1. metallurgical and textile industries,
2. agricultural techniques,
3. hunting and fishing techniques.
Protection:
Article 72 provides that the State shall carry “out an inventory, determine, classify, place in security and illustrate the elements that make up the cultural heritage.”
Article 73 states that, except where special authorization has been obtained from the state, it is prohibited to carry out for profit-making purposes the 1) “the publication, reproduction and distribution of copies of any cultural property, whether classified or not, listed or not, ancient or recent, and considered by this Act as part of the national cultural heritage”; and 2) “any recitation, public performance, any transmission by wire or by wireless means and any other form of communication to the public of any cultural asset, whether classified or not, identified or not, ancient or recent and considered by this Act as an element of the national cultural heritage.”
Fair Use Exceptions:
According to Article 74, Article 73 shall not apply where such information is used for “teaching,” “illustration of the original work of an author on condition that the scope of such use remains compatible with honest practice,” or constitutes “borrowings for the creation of an original work from one or more authors.” Additionally, works that fall under any of the exceptions to copyright listed above are also exempt from Article 73. It is unclear, however, whether these exceptions would exempt such uses of folklore from the royalty scheme laid out in Article 59 of the Annex (discussed above).
Public Domain and Exploitation of Expressions of Folklore Royalties to National Collective Rights Administration Body
For works that have fallen into the public domain, Article 59 states that a required “royalty shall be equal to one half the rate of remuneration normally agreed in the contracts or by usage with respect to authors and holders of related rights in protected works and productions. The revenue from the collection of such royalties shall be devoted to welfare and cultural purposes.” Royalties regarding the exploitation of expressions of folklore are subject to a royalty to be determined by the relevant national collective rights administration body. A “part” of such royalties collected “shall be devoted to welfare and cultural purposes.”
III. Application of Folklore Provisions to the OKN
It is plausible to contend that some villager material that is submitted to the access points/telecenters is “work inspired by folklore” and thus subject to the various statutory schemes noted above. This could potentially subject local OKN telecenters to civil and criminal liability if there is improper or inadequate disclosure of folklore use. As Article 73 of the revised Bangui Agreement notes, use of folklore for profit making purposes is outright prohibited without government authorization. This provision obviously presents complications for telecenters that possess ancillary profit-making advertising schemes in their dissemination and reproduction of potentially protected cultural materials on the OKN. Additionally, even if authorization of use occurs, telecenters might be subject to prohibitive royalty fees that make their business models infeasible.
Ambiguities Regarding Scope
Despite descriptions of the term folklore noted above, statutory references in African legislation seem to suffer from ambiguity and vagueness—which might limit their applicability to the OKN. For example, no clear criteria exist for determining the size of the social group necessary in the formation of a work of folklore. [57] Similarly, the nature of the practices required to classify a particular work as folklore are unclear. Statutory provisions provide little to no guidance as to how widespread a cultural practice must be to constitute folklore.[58] Nor do they consider whether alterations to preexisting cultural practices could be regarded as new works, in which individual authors responsible for such modifications could possess intellectual property rights.
Additionally, it is often difficult to tie folklore down to one particular nationality or territory. The borders of African states typically cut through and across several ethnic communities. Indeed, folklore may be common to ethnic groups spanning several countries.[59] This of course complicates statutory schemes that are founded upon the protection of a “national” folklore—in particular, problems are created as to identifying which are the proper communities to control the domestic and foreign use of the indigenous knowledge at issue.[60] This becomes particularly problematic for copyright legislation in countries such as Senegal and Ghana that criminalize the importation of works made outside the country that incorporate that country’s folklore.
Applicability of Fair Use Exemptions
It is unclear in many of the African country statutes discussed above whether uses of folklore could be excused under a fair use defense (though note, the Bangui Agreement of 1999 does specifically provide such defenses). At the very least it seems that even if such uses of folklore were permitted/authorized by the government, they might still be subject to government royalty schemes.
Potential Policy Arguments for OKN Exemption
One could argue that domestic African copyright legislation’s failure to provide appropriate exemptions for folklore may result in directly or indirectly charging a fee to members of the community from which the folklore itself originated.[61] Not only do such arrangements potentially prevent communities from commercializing those rights, but in the context of the OKN, could result in overall decreasing the dissemination of foreign and domestic knowledge as telecenters are effectively priced out of the market (given the royalty schemes). Additionally, some countries do not even share the revenues derived from the use of folklore, or damages collected from infringement actions, with local communities. Though countries like Ghana are statutorily required to use fees to promote institutions for the benefit of “authors, performers, and translators, Nigeria’s statute does not specify any methods for the utilization of such funds. Finally, most legislation does not provide clear guidance regarding the adequacy of the fees imposed for the use of folklore or the methods used to determine the value of folklore items. One could thus contend that given these consequences, such folklore provisions have a net negative effect on communities.
Potential Solutions for the OKN
· Licensing Agreements with the Government
One possible route to immunize OKN telecenters from liability regarding the use of folklore would be negotiate with the government for a blanket license for the use of a folklore-perhaps on an annual basis. In exchange for a license, the OKN telecenter could offer the government expanded use of the OKN (posting and retrieving information) at a reduced rate. Additionally, to protect the government's interest in expropriating royalties from deep pocket firms that might exploit folklore discovered on the OKN, the OKN telecenter would employ specific contractual provisions in user agreements notifying users of the government's interest in such material and the potential for imposed royalties, and even liability, for commercial uses of such folklore. OKN dissemination of folklore/indigenous knowledge could ultimately result in vastly increased government revenues from the subsequently increased commercial-and thus taxed-uses of folklore.
· Notice and Take Down Liability Exemption (Cf. DMCA Section 512 ISP Liability)
In sharp contrast to the above solution, a "notice and take down" legal route would entail minimizing to the greatest extent possible all instances of folklore posted on the OKN. Local village telecenters would question all village contributors as to whether their contribution was at all derived from folklore. In addition, OKN telecenter contractual agreements with villagers, hubs, and even possibly the government, would emphasize the telecenter's efforts to minimize to the best of its ability instances of folklore on the OKN. Finally, upon receiving notice from the government-or any other entity-of folklore on the OKN, telecenters and hubs would immediately remove such material. This would be analogous to the DMCA's liability exemption for ISPs from that promptly remove infringing material upon receiving notice of its existence. Though this route would minimize liability for the OKN, it could also substantially decrease its utility, as a substantial amount of valuable villager contributions would presumably be unavailable on the network. Additionally, given that something akin to the DMCA simply does not exist within such nations, OKN telecenters would still have to absorb the transaction costs of negotiating with government officials to implement such a plan without fear of liability.
For Further Information about the Legal Protection of Folklore and Indigenous knowledge, see:
WIPO Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore
http://www.wipo.int/globalissues/tk/UNESCO Intangible Cultural Heritage Site
http://www.unesco.org/culture/heritage/intangible/html_eng/index_en.shtmlCalson Analytics: Indigenous Culture Copyright Guide
http://www.caslon.com.au/ipguide12.htmQuestia Online Library-African Folklore.
FOOTNOTES
1 Webster’s Ninth New Collegiate Dictionary 479 (1984).
2 Copyright Law (Ghana) § 53 (Mar. 21, 1985).
3 Copyright Decree (Nigeria) § 28(5) (Dec. 19, 1988).
4 Under the laws of Congo, folklore is defined as “all literary and artistic productions created on the national territory by authors presumed to be Congolese nationals or by Congolese ethnic communities, passed from generation to generation and constituting one of the basic elements of the national traditional cultural heritage.” Law on Copyright and Neighboring Rights (Congo) art. 15 (July 7, 1982)
5 Under the laws of Burundi, folklore is defined as “all literary, artistic and scientific works created on the national territory by authors presumed to be nationals of Burundi, passed from generation to generation and constituting one of the basic elements of the traditional cultural heritage.” Decree-Law Regulating the Rights of Authors and Intellectual Property (Burundi) art. 4 (May 4, 1978).
6 Under the laws of Mali, folklore is defined as “any work composed on the basis of elements borrowed from the national heritage of the Republic of Mali.” Ordinance Concerning Literary and Artistic Property (Mali) art. 8 (July 1, 1977).
7 Under the laws of Cameroon, folklore is defined as “all literary, artistic and scientific works produced by various communities and which, passed from one generation to another.” Law No. 82-18 to Regulate Copyright (Cameroon) § 4(viii) (Nov. 26, 1982).
8 Folklore is defined under the laws of the Central African Republic as “all literary and artistic productions created by the national communities, passed on from generation to generation and constituting one of the basic elements of the traditional cultural heritage.” Ordinance No. 85-002 on Copyright (Central African Republic) art. 9 (Jan. 5, 1985).
9 Senegalese law defines folklore as “all literary and artistic works created by authors presumed to be of Senegalese nationality, passed from generation to generation and constituting one of the basic elements of the Senegalese traditional cultural heritage.” Law on the Protection of Copyright (Senegal) art. 9 (Dec. 4, 1973).
10 See, e.g., Copyright Decree (Nigeria) § 28(5) (Dec. 19, 1988).
11 Tom Greaves, IPR: A Current Survey, in Intellectual Property Rights for Indigenous Peoples: A Sourcebook 8-10 (Tom Greaves ed., 1994).
12 Farhana Yamin & Darrell Addison Posey, Indigenous Peoples, Biotechnology and Intellectual Property Rights, 2 Rev. Eur. Community & Int’l. Envt’l. L. 141, 142 (1993).
13 Thus, Nigerian law provides that: “the right to a patent in respect of an invention is vested in the statutory inventor, that is to say, the person, who, whether or not he is the true inventor, is the first to file, or validly to claim a foreign priority for, a patent application in respect of the invention.” Patents and Designs Decree (Nigeria) § 2(1) (1970).
14 See Colvin Golvan, Aboriginal Art and the Protection of Indigenous Cultural Rights, 7 Euro. Intell. Prop. Rev. 227, 227 (1992) (discussing the anonymous creation of aboriginal artwork and the non-celebratory nature of aboriginal artists).
15 See Christine Haight Farley, Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer?, 30 Conn. L. Rev. 1, 4 (1997) ( “Application of intellectual property laws, whose underlying logic is to facilitate dissemination, is fundamentally inappropriate to prevent sacred indigenous images from circulation and re-use.”).
16 Meyer Fortes, Dynamics of Clanship Among the Tallensi 178 (1945).
17 See, e.g., Copyright Law (Ghana) § 2(2)(a) (Mar. 21, 1985).
18 See Kamal Puri, Cultural Ownership and Intellectual Property Rights Post-Mabo: Putting Ideas into Action, 9 Intell. Prop. J. 293, 307-08 (1995) (explaining that Aboriginal folklore derives from complex relationships between generations of people and their land).
19 Paul Kuruk, Protecting Folklore under Modern Intellectual Property Regimes, 48 AM. UNIV. L. REV. 769, 796 (1999).
20 Patent Law (Ghana), P.N.D.C.L. 332, § 3(1) (1992).
23 See Law No. 82-18 to Regulate Copyright (Cameroon) § 6(c) (Nov. 26, 1982).
26 Ordinance No. 85-002 on Copyright (Central African Republic) art.9 (Jan. 5, 1985).
28 For folklore compilations, the fees are split equally between the compiler and the Central African Copyright Office, but for folklore adaptations, 75% of the fees are distributed to the author of the adapted works and 25% to the Central African Copyright Office. See id. art.9.
30 See Law on Copyright and Neighboring Rights (Congo) art. 68-69 (July 7, 1982).
37 See Copyright Law (Ghana) § 5(2) (Mar. 21, 1985).
41 Ordinance Concerning Literary and Artistic Property (Mali) art. 8 (July 1, 1977).
44 Copyright Decree (Nigeria) § 28(1) (Dec. 19, 1988).
47 Id. § 28(2)(a)-(b). If the folklore is used publicly, then it must be “accompanied by an acknowledgement of the title of the work and its source.” Id. § 28(2)(a),
48 When folklore is used for such illustrative purposes, however, the utilization must be compatible with fair practice. See id. § 28(2)(d). The statute also provides, without explanation, that expressions of folklore are not protected against “incidental uses.” See id. § 28(2)(e),
49 Id. § 28 (2) (c).; Id. § 28 (2) (d).
51 See Law on the Protection of Copyright (Senegal) art.1 (Dec. 4, 1973).
56 States party to the Libreville Agreement include: Benin (formerly Dahomey), Burkina Faso (formerly Upper Volta) Cameroon, Central African Republic, Chad, Congo, Cote d'Ivoire, Gabon, Madagascar, Mauritania, Niger, and Senegal. Madagascar has since withdrawn from the Libreville Agreement; Mali and Togo have joined.
57 Kuruk, supra note 19, at 803.
60 Phillepe Descola, Michael F. Brown's Can Culture be Copyrighted?, 39 Current Anthropology 208, 209 (1998).
61 See Andrew Ofoe Amegatcher, Ghanaian Law of Copyright 23 (1996).
