One aspect of my interest in this article stems from the International Journal of Cultural Property's aim of providing, as Alexander A. Bauer emphasizes, “a vital, international, and multidisciplinary forum for the broad spectrum of views surrounding cultural property, cultural heritage, and related issues.”Footnote 1 And I am further elevated by its mission, which includes the aim of developing new ways of dealing with cultural property debates, which Bauer clearly states. The fundamental issues is that generally the rights of people to their own artistic, historical, and cultural wealth are stated in the articles of the Universal Declaration and other several national declarations,Footnote 2 a system that provides every human being an inviolable worth as an individual. Thus, on one hand, while individual rights are considered to be inalienable rights for the autonomous individual by overemphasizing the exclusive protection of the rights of the individuals, the communal rights concepts, on the other hand, are taken to be inalienable rights for the community by overemphasizing the exclusive protection of the rights of the societies.Footnote 3 And while the individual rights concept empowers the “individual-rights” universally, with no apparent regard to the community to which the individuals belong, the communal right concept overemphasizes the collective or communal rights of the society, with no regard to the individuals who make up the community.
Rights ownership in these two apparently opposing classes are seen either as a “private property” of mutually independent individuals, with economic and social rights—individualism, or a “public property” for a group, with cultural, communal or linguistic rights—communalism.Footnote 4 What I would like to add to this contest is to discuss the Akan “individual-communal” dual-relationship with respect to ownership that embraces these two seemingly unrelated concepts of “rights-ownership,” which have apparently prevailed, especially in Ghana.
THEORETICAL FRAMEWORK
By nature, human beings predate their culture. They create and keep recreating their culture over time through their creative abilities. And from time to time, the culture they designed may take on a new form as the designers rethink their environments anew. The choices they make may depend on many factors, which include the intrinsic motivation, the urge or drive toward changing their environments. The capacity to create and develop new ideas and solutions to old or existing problems is one of their most critical capacities.Footnote 5 In the process of creating and recreating their tradition, they initiate, originate, adopt, or appropriate various forms of innovative ideas: the ideas that suit them and their environments. The generation that succeeds them may retain some aspects of the institutional systems that have been set up, which they consider as a heritage. However, because they may also have some new creative tendencies, they are likely to add to the already existing system without destroying it by reconstructing, redesigning, and reinterpreting what has been laid down for them.
Tradition then becomes, as Coplan expresses, “both a social and a historical process requiring active appropriation, perpetuation, and transformation by members of the community among whom it is shared.”Footnote 6 Culture, which is defined as “customs, ideas, arts, etc. of a particular civilization, society or a social group,”Footnote 7 becomes “a coherent self-contained system of values and symbols, and a set of practices that a specific cultural group reproduces over time.”Footnote 8 These forms of knowledge constitute a cultural heritage, or what Erica-Irene Daes describes as “indigenous heritage,” which encompasses a wide range of intellectual and cultural property of indigenous people.Footnote 9 For Daes, heritage
… is everything that belongs to the distinct identity of a people and which is theirs to share, if they wish, with other peoples. It includes all of those things which international law regards as the creative production of human thought and craftsmanship, such as songs, stories, scientific knowledge and artworks. It also includes inheritances from the past and from nature, such as human remains, the natural features of the landscape, and naturally-occurring species of plants and animals with which a people has long been connected.Footnote 10 The traditional forms of knowledge are considered to be owned by the entire communities, lineages, clans, age, or family-groups to which the individuals belong.Footnote 11
By applying this definition of heritage, the community is considered to have inherited the musical forms or method of making music from their ancestors, which they will transmit to the future generations. However, in addition to providing their own new ideas as individuals, they are guided by the nature, the perpetuation and maintenance of most of the already existing ideas, which they have grown with, and the nurture, a system that helps them keep their traditional knowledge in touch. It is these nature–nurture issues that involve the roles played by both innate capacity and cultural knowledge in any creative activity.
The fact is, as Folarin Shyllon stresses,
Until recently in Africa individual ownership was not a paramount concept. Land, the source of wealth, was corporately owned. The creators of folklore worked in a communal milieu. An author said of the Yoruba that some of the courtyards in the palaces of their Oba (kings) served as the workshops or artists and craftsmen, and the consulting apartments of medicine-men soothsayers, historians, philosophers and other professionals … It was a recognition of a professional's contributions to life and humanity, as a talented person within the kingdom, to be invited to stay within the palace and from there to set about his creative work.Footnote 12
With regard to the works of folklore, according to Shyllon,
it might originate in the mind of one person or another, and it is then nurtured into fullness by passing through the refinement of many minds. As has been observed, indeed, no protected work, literary, artistic or scientific, is of individual origin only it rather draws its inspiration from tradition as well as the social environment of the author.Footnote 13
Rights in such a context are not seen to constitute an owned property only by the individuals, but rather as a shared property owned by both the individuals and the community to which they all hold allegiance.
According to Harri Englund and Francis B. Nyamnjoh, Africa's contact with Western ideas of modernity is marked by a crusade to substitute cultures that emphasized interdependence between the individual and his or her community with neoliberal notions of individual autonomy. Such history notwithstanding, culturally informed ideas of modernity in African have shown remarkable resilience and have continued to resist invitations to see individuals and their customary social structures as passive and easily detachable from one another to be manipulated into compliance with the expectations of proponents of liberal democratic ideas.Footnote 14 In Africa, as Englund and Nyamnjoh strongly claim,
Wealth in people sustained a logic of value that was clearly different from the logic of accumulation in a capitalist sense…. Its particular historicity involved a specific form of personhood for which “freedom” lay not in a withdrawal into a meaningless and dangerous autonomy but in attachment to a kin group, to a patron, to power…. “Freedom” was “belonging” rather than “autonomy.”Footnote 15
The ideas brought into the process of music making would be known to be, first and foremost, the source of the musicians' ideas,Footnote 16 and, second, the product of their culture. They combine the musical materials through the influence of the patterns of, first, their own behavioral initiatives, which they have been born with, and, second, their cultural knowledge, which they have learned as members of the society.Footnote 17 They are seen to work within a tradition in which certain stylistic features, such as musical formulas, idioms, and dialects are consciously or subconsciously learned, absorbed, and stored in their memory to be called upon in certain contexts.Footnote 18 Their human creative tendencies reveal both the innate capacity (the personality/individuality) and the culturally acquired knowledge within the communal structure.
This kind of dual relationship is therefore fundamental to our understanding of the legal principles in the Akan tradition, which I discuss in this article. I aim to explore the dual-relationship concept of right ownership, exemplified in the Akan music tradition, as a conceptual and contextual framework in addressing the prevailing issues. Because forms of knowledge and practices in such tradition generate the process of sharing, they help in providing a kind of joint relationship between the individuals and their community with respect to ownership. I begin by broadly providing the ethnological framework under which the Akan concept of ownership is totally grounded. Then I discuss the current trends of ownership as we witness today in the country Ghana, which have apparently separated the traditional musicians from their communal orientation in terms of ownership.
THE AKAN SOCIAL, POLITICAL, AND CULTURAL SYSTEMS: AN ETHNOLOGICAL PERSPECTIVE
Geographical Perspective
The Akan ethnic group is one of the large linguistic groups in West Africa to occupy the portion of southern Ghana and southeastern Ivory Coast that is bounded by the Volta River in the east and the Komoe (Comoe) River in the west, and the Guinea Coast in the southern boundary and the Black Volta River northern boundaries. However, because this article focuses specifically on the Eastern Akan, my discussion is based on those in the Republic of Ghana.
As the predominant group in Ghana, the Akan occupy most of the southern half of the country, an area estimated to be one-half of the 92,000 square miles of Ghana's territory.Footnote 19 Their northern boundary is upper course of the Volta River, while their southern boundary is the Gulf of Guinea; in the east, their boundary extends to the western part of the Volta Region, while in the west, it stretches to the southern corner of the Ivory Coast (Cote d'Ivoire). They occupy six out of the ten regions of the Republic of Ghana. They are sole occupants of the Ashanti, Brong-Ahafo, Central and Western regions, and constitute the majority ethnic group in the Eastern region and roughly one-third of the population of the Volta region.Footnote 20
The Traditional Systems
Generally, in the Akan society, what stands as an atomic structure is the family, from which the concept of community stems. The concept of family, to the Akan, is an extended one, constituting a social unit, which Max Assimeng defines as “a universal, social phenomenon and the basic centre of emotional expression and of social organization…. It is the main source of perpetuation of the race, and the first point of contact in the process of socialization.”Footnote 21 The family becomes the center from which a person or an individual derives his or her sense of identity and sense of belonging, as well as a connection to an ancestral root. As a result, the family is fundamentally a social structure, governed by a system—a kinship system—that defines lineage relations: Each person (an individual) lives in a relationship with a kin (the “atomic” or smallest communal group), connected to an ancestral root, which crosses over several generations back into history.
Thus, from the Akan perspective, the family is a corporation,Footnote 22 which joins the individuals with their community. And under the social system, this family structure reflects the following binary positions of a person (onipa): first, a person (onipa) is “something” that one is born with—his or her natural birth as a human being, who is a possessor of okra (the platonic soul); and second, a person (onipa) is “something” that one achieves through his or her social development (matrilineal–patrilineal relationship)—his or her attainment of a certain status in the community, by growing to be a member of the society and having a relationship with the community.Footnote 23 What guide the community are certain political systems that are generally organized according to this principle of kinship, which is controlled and governed by the above family structure, a system that is made in such a way that a lineage of those who were descended from the same ancestry formed the basic political unit.Footnote 24 And under these systems lie the germs of their legal systems, which are made to govern the extended family or the entire societies.Footnote 25
Such law in the earliest stage of its existence, according to John Mensah Sarbah, “represents nothing more than the will or conviction of a community, whereby a given rule is adopted by common consent to govern the conduct of its member in their relations with each other.”Footnote 26 He claims, “It is universally admitted that where there is an assemblage of persons united together for common purposes or ends, there must be some notion of law.”Footnote 27 And it is within this context that the individual–communal relationship is fully established. What generates regard for personal rights under this law in such a society is the notion of respect for human dignity, which they see as a natural or fundamental attribute of the person—the individual as a human being. And what generates a notion of moral rights, linked with the notion of innate or natural rights, are the concepts of human dignity, intrinsic value, and equal moral worth, which provide every person in the society an entitlement to an equal measure to a certain basic respect.Footnote 28
With regard to the first—the individual—they fundamentally understand such rights as that which belong primarily and irreducibly to the individual, because they see the individual as an inherently valuable being who is naturally endowed with certain basic rights. The individual is considered to have both descriptive and normative characteristic, which endowed him or her with rights as well.Footnote 29 These right systems provide a means of expressing his or her talents, capacities, and identity in the society. They are systems that enhance the cultural development and success of the community by allowing a free rein for the exercise unique qualities and dispositions of his rights.Footnote 30
Therefore, a person's most cherished positive rights that either reflect his or her individual's fundamental values, or support his institutional authority in the Akan societies are as follows:
• The right as a baby to be nursed by the mother and trained and instructed during his early stage of life by the father
• The right as an adult to a plot of land from the ancestral holdings
• The right as an adult to self-government
• The right to have a say in the enstoolment of their chiefs or the elders
• The right to participate in the shaping of governmental policies, to freedom of thought and expression in all social, political, religious, and metaphysical matters
• The right to trial before punishment
• The right to remain at any locality or to leave.Footnote 31
However, with regard to the second—communal—the Akan societies also value the community as a whole, because “the individual is not considered to be removed from his other characteristics but is taken as a whole and is taken within his community,”Footnote 32 he or she forms part of the community. Thus, although he or she is a human being by nature, he is also a communal being by nurture. And he or she only finds his worth within the community to which he or she relates in terms of obligations and duties.Footnote 33
This shows how individuals are bound to their community. For example, as my grandmother told me about the Akan belief system, “one cannot be an Akan simply because he speaks an Akan language (since everybody can learn and speak the Akan language); one rather considered to be an Akan because he behaves like an Akan in terms of character, and also abides by the rules in the tradition.” Furthermore, as she claims, “a child does not give birth to himself or grow by his own decisions. He is simply born into a family from which he draws all his aspirations, knowledge, and experience.”Footnote 34 All these inform the relationship a child has with his or her family, community, or society, and not just an autonomous individual with no relationship with the community.
Such conception of human dignity, therefore, does not compel the recognition of rights only in an individualistic context, but also in a communal setting. It is a setting in which, according to Gyekye, the individuals are bound up with the communities they belong to, and the social and political roles they occupy. Furthermore, because by the Akan concept, the individual autonomy cannot exist outside the social environment in which he or she is raised; and, as Gyekye puts it, “because the individual rights are relative to the social context in which they function,” the individual rights, personal freedom and well-being are known to be only possible within the community.Footnote 35
Thus, although the individual in the community has rights, as Gyekye points out, his or her rights are only exerted and consummated within the social framework, and are tallied with the social responsibilities. As such, because these individual rights are not absolute, but relative to the social context in which they function, such rights are known to be meaningful only within the context of the society.Footnote 36 The individual rights, personal freedom, and well-being, then, are only possible within the community, where the individuals are inevitably embedded in particular historical practices and relationships. The individual autonomy thus cannot exist outside the social environment that provides meaningful choices and support the development of the capacity to choose among them.Footnote 37
The Akan legal systems may be similar to what Karl Marx describes about the Jew legal systems: “These rights of man are, in part, political rights which can only be exercised in community with others. Their content is participation in the community and specifically in the political community …” And as he stresses, “Liberty” therefore, “is the power which man has to do everything that does not harm the rights of others.”Footnote 38
But there are fundamental questions regarding the relationship between the individual and the community: What do these individual musicians give as contributors to the community, and what do they also gain as receivers from the community? And how does this individual–communal structure relate to Akan traditional musicians who, although bring their own ideas into the system, still work within the constraints imposed by the artistic parameters of their culture? To answer these questions is to provide the underlying structure of the Akan musical tradition and the roles that these musicians play in the community.
THE AKAN MUSIC TRADITION
The Akan tradition, like any African tradition, is generally a communal tradition where contexts are created for the sharing of experiences, as well as the expression of sentiments, that are brought together for occasions. Such occasions provide the opportunity for members of the same group or community to come together for the enjoyment of any kind of collective activities that bring people together “who share a common habitat and live in a corporate life base on common institutions, common local traditions, and common beliefs and values.”Footnote 39 It provides the members an opportunity to share their creative experience and participate in music as an avenue for the expression of groups' sentiments. Thus, there is a strong social cohesion in such community where members are bound by a network of social relations. It provides a multiple role relative to the community by encouraging members' involvement in collective behavior or communal participation.Footnote 40 It brings people together to share, participate, and contribute to the development of ideas within the indigenous community—ideas that can be preserved and transmitted or passed from generation to generation, either orally or through imitation.
Music making in such context becomes essentially a community experience, where people get together to share and contribute to the growth and maintenance of the music tradition. The reason is, as J. H. Kwabena Nketia describes, music making is generally organized as a social event, with public performances taking place on social occasions. And it is a context in which various types of music associated with different activities are brought into display. Such art of music making is not totally attributed to an individual or a set of individuals who might have originally initiated the ideas of composing, except that they would be highly respected for their contribution to the community. It is a context where individual musicians are brought in to display their gifts and talents. The songs are made for the community in which the individual musicians are found. And although it is not always possible to date when certain types of songs, such as folk songs, were composed and who might be the composer, such songs allowed to be used, preserved, and transmitted from generation to generation.
There are several characteristics that distinguish each traditional musical type from the other, and even tell which part of the Akan subcultural areas such song can be found. For example, while nnwonkoro is mostly practiced by the Akans who are Asante, Akyem, and Kwawu, the osoode is practiced more among the Akans who are Akuapim and the Fanti, all of whom are Akan. Thus, those composers born in these areas are affected by the traditional nature of such songs. In other words, each song can tell where the composer is coming from, and how he or she gained such experience of composing such type of songs know by the community.
The prevailing factor underlying this system of performance is that, because community life in the Akan, as well as African, societies generally places much more emphasis on communal musical activities than on an individual activity, such individual expressions become a part of the community experience only when they take place in social context. Traditional approach to music making becomes a part of institutional life of the communities.Footnote 41
By using the aforementioned ethnological principles that govern the Akan music tradition, I have duly provided a good background for understanding the relationship between the individual musicians and their community in terms of ownership. And much can be deduced from all these perspectives: The musicians are individuals who bring their own source of ideas but share and exchange with other members of the community. They contribute tremendously as members of the society (individualistic), but also gain through their social interactions with peer groups (communalistic). It is a kind of give-and-take process. Therefore, although by nature they are persons who possess essential attributes, they are also by nurture, social or communal beings who are tightly joined to the societies.Footnote 42 It is this nature–nurture attribute—a kind of individual–communal joint relationship—that positions these members in a vital relation with their societies.
One thing to note is that, because music making tends to be a shared activity—an activity that is shared by all members of the society through an individual–communal participation—what is gained is not totally owned only by either the musicians or the community. It becomes a shared property that places the individuals' rights in a joint relationship with their community's rights. Their rights are known to be relative to the social context in which they function, or meaningful only within the context of their social activities.Footnote 43
Songs that do always originate from the individual musicians are traditionally considered to partly belong to the entire community. They become a shared property for both the individuals who compose them and the community to which they all belong. The individuals are not seen as people who totally own the songs without respect for the society from where they also gained their experience. Also, the community would not totally own the songs without respect for the individuals who originally contributed to the process.
The Akan community see all those new forms coming into the traditions as that which has come to form part of and could be a marker of their identity. To them, the preservation of all these musical forms or systems are in effect the preservation of their own cultural identity as a whole.Footnote 44 The knowledge and experience of composing the music is considered traditional knowledge or cultural expression, which have been acquired from the indigenous people in the society.
THE CURRENT TRENDS OF RIGHT OWNERSHIP IN MUSICAL PRODUCTION
Historical Perspective
African societies have had, and continue to have, the notion of law, and by extension, the concept of human rights. For a long time these societies have had strong centralized political systems and more advanced body of legal principles and judicial techniquesFootnote 45 that governed the societies, which constitute the customary law. Their laws were, as Eze clearly emphasizes, “sources that [were] constituted of customs, judicial precedents, legislation, laws of natural morality and of nations, good morals and equity.”Footnote 46 Many scholars have thoroughly discussed the relationship between the modern intellectual protection of cultural heritage and the customary law with its group ownership and how the two systems reconcile. For example, as Kamal Puri has analyzed the traditional systems in relation to intellectual property protection of Aboriginal cultural heritage in Australia, “it is not always easy to reconcile Aboriginal customary law with its group ownership with the Anglo-Saxon legal system with its personal rights and an individual artist's intellectual property.”Footnote 47
According to Folarin Shyllon,
in many developing countries, the history of copyright legislation starts at the time when the former colonial powers, like France and the United Kingdom, extended their national legislation to their colonies, protectorates or dependent territories … (laws that) became the first laws in several developing countries including Africa. Thus, most states in Africa reached independence with copyright legislation inherited from colonial governments. The European concept of copyright involves … an identifiable author, originality and limited protection period.Footnote 48
This can also happen in respect to the relationship between the British legal system brought to Ghana the traditional legal system it came to meet; because, as Adewopo stresses, “the introduction of the intellectual property law system into Ghana, as is the case with other former African colonies, did not take into consideration the difference between Ghanaian society, culture, communal nature, and value on the one hand and that of British on the other.”Footnote 49
According to Asmah, “Like many former British colonies,Footnote 50 Ghana's introduction to the intellectual property system came from Britain. For example, Ghana's first copyright legislation was a British status, the Imperial Copyright Act of 1911,Footnote 51 which came into force in 1912 and became applicable to the whole of the British Empire.Footnote 52 Ghana has been using the intellectual property system as one of its tools to protect folklore.”Footnote 53 Before Ghana obtained its independence from British Colonial rule on 6 March 1957, the law practiced in the then jurisdiction was fundamentally English law, with just few modifications and amendments as were provided under status to suit local conditions at that time. In addition to any other jurisdiction conferred by the ordinance or other ordinances of the then Gold Coast Legislature, it was to possess and excise, within the limits of and subject to the Ordinance, all of the jurisdiction, power and authorities vested in the High Court of Justice in England. Thus at the time that the country was under British Colonial administration, copyright matters were governed by the Copyright Act 1911 of the United Kingdom and the Copyright Ordinance.Footnote 54
In 1961, Ghana enacted its own Copyright Act of 1961,Footnote 55 which became the second major piece of copyright legislation in country. The act was, to a large extent, a reenactment of the then existing law in the United Kingdom. Thus, although English authorities ceased to be binding since independence, the English traditions, rules, practices, and procedures were largely followed. In 1985, the government of the day—Provisional National Defense Council (PNDC)—enacted the copyright Law, which became the third major piece of copyright legislation in Ghana. This brought in some new structural forms to be added to the existing ones.Footnote 56 Ghana's first two postindependence copyright legislations are the Copyright Act, 1961 (Act 85), and the Copyright Law, 1985 (PNDC Law 110).
The Structural Framework
Copyright has now come to play a prominent role in Ghana's intellectual property system, as the country has passed more copyright than other intellectual property legislation since its independence.Footnote 57 According to Josephina Asmah, Ghana's international obligations have grown since independence, which have expanded even further since the 1990s through other membership links with several organizations.Footnote 58 And as she claims, an analysis of Ghana's Copyright Act reveals that the act has a dual role because it protects the following:
• the traditional copyright works such literary works, artistic works, musical works, sound recordings, audiovisual works, choreographic works, derivative works, and computer software or programs [Act 690, § 1. (1)]
• folklore,Footnote 59 which under Act 690, is defined as “… the literary, artistic and scientific expressions belonging to the cultural heritage of Ghana which are created, preserved and developed by ethnic communities of Ghana or by an unidentified Ghanaian author …”Footnote 60
According to Asmah, folklore is also defined by the WIPO/UNESCO Model Provisions as “productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community in the country or by individuals reflecting the traditional artistic expectations of such community.”Footnote 61 It is also defined in the UNESCO Recommendation of the Safeguarding of Traditional Culture and Folklore as that whose forms include “language, literature, music, dance, games, mythology, rituals, customs, handicrafts, architecture and other arts.”Footnote 62
Furthermore, the law fundamentally recognizes both economic and moral rights of the owners. Economic rights are, as Hesse clearly describes, “the exclusive rights given to the author of a copyright to authorize others to exploit his work by way of reproducing, translation, adaptation, live performance, broadcast, film and video production, and to receive remuneration.” However, the moral rights, as Hesse claims, are “the rights to disclosure of the work of the public, the right to withdraw a person's work and false attribution,” which simply get into the public domain. And the Republic of Ghana is the trustee for the public of such works, which are deemed to be in the public domain.Footnote 63
The protection of folklore under copyright in Ghana, according to Syllon, “originated with the former copyright legislation, the Copyright Law, 1985.Footnote 64 Folklore, therefore, has no identifiable author; it is not new; and being traditional or customary, it is already in the public domain. As public domain material, it is free for anyone to use and/or distort, a concept that is not conducive to its protection.”Footnote 65 However, Folklore Copyright Provisions, under the Act 690 (§ 76), according to Asmah “is considered to cover the protection of “the literary, artistic, scientific expression belonging to the cultural heritage of Ghana which are created, preserved and developed by ethnic communities of Ghana or by an unidentifiable Ghanaian authors (who) are not know …”.Footnote 66 Although the traditional works must comply with eligibility criteria such as originality, reduction to material form, conditions on the author's nationality, and other publication guidelines, these eligibility criteria do not apply to folklore.Footnote 67
Folklore thus becomes part of the heritage because, as previously mentioned, with respect to Ghana's response to a WIPO Questionnaire in 2001, such expressions of folklore in Ghana are regarded as the cultural heritage of Ghana and the property of the source community.Footnote 68 As Folarin Shyllon also claims, following decolonization in 1960s, many independent African nations saw in folklore own of the means of asserting their cultural identity.Footnote 69
With regard to the relationship between the customary law and Western law, according to Asmah, although Ghana protects folklore in its formal legislation, many factors militate against this success in protecting their folklore.Footnote 70 However, some scholars have actually noticed certain similarities between intellectual property law and control of folklore under customary law principles. As Kuruk stresses, “Intellectual property protection does not mean that customary law principles have been eclipsed; rather intellectual property law protection should be regarded as an addition to or a strengthening of the customary law principles.”Footnote 71
Also because a traditional work is apparently different from folklore, there is the need to also discuss the difference between the tradition music and folk song, respectively. I therefore conclude this section by clarifying these differences between folk song and traditional music, and demonstrate how such differences have apparently created a lot of problems. According to J. H. Kwabena Nketia, “the term ‘Folk song’ has been kept as a convenient designation to distinguished songs in the traditional African idiom which are closely integrated with everyday life from those in the new popular and fine art traditions that have emerged.”Footnote 72 According to him, Miecyslaw Kolinski points out that “on structural grounds, the traditional music of Africa cannot be separated from the main stream of musical expression commonly described as folk songs when it manifests itself in other cultures.”Footnote 73 And Nketia claims, “the term is therefore used … in the broad sense of music perpetuated largely by oral tradition and integrated with a living, surviving or historical pattern of community life.”Footnote 74 As part of folklore, traditional music would have a lot of significance in the Akan ethnic communities, because the songs the composer-performers bring to the communities become part of the cultural heritage of the communities.
However, there has been several attempts to separate folk songs from traditional music, so that for while a folk song, on the one hand, is considered as a song written by a composer who is now not alive (and whose song is now own by the community), a traditional music, on the other hand, is considered as a song written by a composer who is still alive.
THE IMPACT OF THE COPYRIGHT SYSTEMS ON CURRENT TRADITIONAL MUSICIANS
The current legal systems in Ghana define the various benefits associated with ownership of properties; and they provide an access to various benefits and rewards, either for the creative individuals, such as musicians, or for the government or community. Well-organized music industries in the country support the benefits of individual musicians by recording, marketing, and promoting their compositions.Footnote 75 These industrial promotions have turned out to be a glamorous benefit to success and fame, as well as prospects with money and prosperity.Footnote 76 The range of professions that constitute part of the organization of these industries are music producers, such as performers, composers, librettists, and lyricists; performing organizations, such as orchestras, ensembles, groups, and so forth; executive producers, such as agents, managers, and promoters; funding organizations; recording companies, which include publishers and retailers; distributors and marketing personnel; rights collection agencies; and music journalists, who place information in journals and periodicals.Footnote 77 Furthermore, the copyright law protects the creators of copyrighted works as well as those who are involved in the process, such as performers, producers of phonograms, and broadcasting organizations.Footnote 78
With regard to the governmental ownership, the National Commission on Culture in Ghana is a branch that has been put in place by the government to promote cultural properties. These properties include art, music, dance forms, images, performances, oral literature, handicrafts, and other expressions of distinct and distinctive society.Footnote 79 Thus, all traditional songs, for example, whose composers are unknown are referred to as “songs in the public domain,” and considered to be owned by the government, according to the law.Footnote 80 Neighboring rights are, accordingly, fully recognized and protected under the law of Ghana.Footnote 81 And these include all folk songs, as well.
These systems actually came with a more secure position than ever, with more emphasis placed on individual rights to ownership of the creative works. However, although these copyright systems influenced many popular (pop) and traditional musicians, this effect created a depressingly wide division between the two types. Originally, traditional musicians did not have exposure to such opportunities. Meanwhile, pop musicians had opportunities to enjoy and take full advantage of these benefits, by marketing their work, collecting their due rewards, and receiving the protection from the national or regional copyright legislation and agencies.
These systems made a strong impression on the traditional musicians, as they saw themselves left in what Simon Mundy calls “the cold by the new regime.”Footnote 82 They were shifted from the individual–communal joint ownership to what they saw as purely an individualistic right ownership.Footnote 83 By falling prey to these attractive ventures, traditional musicians became obliged to rethink the shared nature of their original works. Traditional music making gradually turned into a kind of controlled activity, which was directly monitored by the individual composers who aimed to own rather than to share with the community. They were deterred from seeing their works as a shared property, as well as being reluctant to accept offers that would not benefit them.
Also, because their interest identified with their own songs and their names attached to the songs, they tried not to allow any contribution from anyone. They tried to arrange almost every aspect of the music, from the melodies and harmonies to the instrumental rhythmic patterns, and so forth. They even began to have their own itinerant groups that would dominate the music-making scene by performing at many functions in their own areas and beyond. They became more convinced to solely own their songs, rather than share with the community, because they felt they had the right, under this system, to claim any benefit that might accrue out of the performances and recordings of their songs. Therefore, whereas in former traditional music making, people creatively contributed and shared their parts in the creative processes, this new system allowed few contributions or sharing in compositions and performances.
In the following sections I provide examples of the discussions I had with some of these traditional musicians. While some fell into this new system, others remained in the traditional system by sharing their work with the community. I selected six songwriters or composers from the great number of composers I interviewed during my research.
SELECTED SONGWRITERS AND COMPOSERS
These six songwriters or composers are grouped into two categories. Under the first category are the three composers who maintained the traditional system by sharing what they have with the community: Ama Oforiwaa, Yaa Asantewaa, and Odie Yaw Bour. Under the second category are the three other composers who were totally influenced by the prevailing trends in terms of ownership of what they have: Attaa Agyeiwaa, Yaa Afrakoma, and Koo Nimo. I therefore give a short background of their experience.
Category #1
Ama OforiwaaFootnote 84
Ama Oforiwaa is a native of Odumasi of Sunyani District of the Borong Ahafo Region of Ghana. She is a composer and singer of the Akan nnwonkoro and adowa, and was among few nnwonkoro composers who really brought advancement and development of the songs in her community. Oforiwaa explains that she was born with the gift as a singer, and started developing her talent at an early age. And although she was not formally trained, much of her experience as a singer of the nnwonkoro and adowa came from the opportunity to listen to others who were specialists of the traditional songs. At an early age, she joined an Nnwonkoro Singing Group, which of course allowed her to advance her talent as a singer, arranger, and composer. She then began composing, arranging, and teaching her own songs, which was initially inspired by the Nnwonkoro Singing Group's need of new songs.
Oforiwaa saw such initiative as a big step to her success as a composer and a singer of the nnwonkoro and adowa, as she could bring and add new ideas to the tradition. Thus, she composed most of the songs the group performed. However, she also became interested in expanding or adding to the list of the already existing traditional songs, which she saw as a commitment to her community. The themes of her songs were based on the prevailing situations circumstances in which she found herself. Some of her songs, such as the one that follows, have been performed in the Akan language and broadcast on radio by the Sunyan Branch of Ghana Broadcasting Corporation
English Translation:
Yaa AsantewaaFootnote 85
Yaa Asantewaa was a native of Foase in the Kumasi District of the Ashanti Region of Ghana. She was a composer and singer of Akan nnwonkoro and adowa who started developing her talent as a singer at an early age. Although she was not formally trained, much of her experience as a singer of the nnwonkoro and adowa, like Ama Oforiwaa, came as a result of her involvement and participation with specialists of the traditional songs. Growing up, her father was a singer, which helped her develop as a singer of traditional songs at a very early age.
Like Ama Oforiwaa, Yaa Asantewaa's interest was to add new songs to the already existing traditional songs, which she saw as a commitment her own society. Asantewaa said that the aim of adding new songs was not to destroy the older ones but rather to enhance and add more excitement to the traditional songs. The themes of her songs, like Ama Oforiwaa, were based on the prevailing situations circumstances in which she found herself. And she was inspired more to bring new songs but to the community. By adding new songs, she wanted to enhance and add more excitement to the traditional music, not to destroy the older ones. One of her Akan language songs was performed at her town, Foase and Kumasi in the Ashanti Region:
English Translation:
Odie Yaw BourFootnote 86
Odie Yaw Bour is a native of Fiapri in the Brong Ahafo Region of Ghana. He started singing at a very early age and also at the time of, as he calls it, “the period of Konkoma”—an Akan popular music-dance type or musical genre, that was in vogue in the early 1920s. Bour is a prolific composer and a singer who also writes other traditional popular musical types such as highlife—an urban music that came as a major response to the challenge of urban ball dancing in the then Gold Coast. Although he claims to get several song lyrics at a stretch from his own memory when composing, and might assume them to be his own, he also sees such outward “inspiration” in selecting the lyrics, as that which also comes from the wise “proverbial sayings” of the elders. He considers himself a singer and an advocate, who is responsible for retelling his ancestors stories: continuity in the tradition.
Therefore, although Bour may be the sole owner of the songs he composes, feels responsible for contributing to the growth of his society. Anything he produces is for the community. One of his songs became so popular that it was recorded and broadcast by the Sunyani Branch of the Ghana Broadcasting Corporation. It was played all over Ghana as a signature tune for educating drivers to be aware. The lyrics, he says, are his “advice and admonish commercial drivers to be wary of accidents.”
I have outlined the lyrics of another song he sang to me, which is entitled “Yaa Meeyε Bia Akō.”
English Translation:
Category #2
Attaa AgyeiwaaFootnote 87
Atta Agyeiwaa is a native of Bomaa of the Brong Ahafo Region of Ghana. Although she started singing at a very early age, she began as a composer of Akan nnwonkoro traditional songs in 1989. She continued writing her songs in line with the nnwonkoro and adowa musical tradition, like many of Akan traditional songwriters. However, she used sacred texts as the song lyrics instead of secular texts commonly used in the nnwonkoro and adowa traditional songs, and many traditional songs.
As Agyeiwaa began to rise along this line of traditional music, her efforts were immediately recognized by Mr. Adie, the then manager of the Adei Cutlass Company in Kumasi, Ashanti Region. He became interested in producing her nnwonkoro compositions, which was a great opportunity for her as a composer of the nnwonkoro and adowa with a sacred lyric. Her work prompted and encouraged other composers of nnwonkoro and adowa to follow suit.
Unlike the aforementioned composers, Agyeiwaa's songs are not for the community but for her. At the time of my interview, her song “Ghana Adehyeε Mma” was going to be recorded and produced by Mr. Adie:
English Translation:
Yaa AfrakomaFootnote 88
Yaa Afrakoma is a native of Tepa, her mother's hometown, but she grew up in Bomaah, the father's hometown, both in Brong Ahafo Region, Ghana. She is a singer and composer and a star of the Akan nnwonkoro and adowa who has had invitations to many towns in both Ghana's Ashanti and Eastern regions. She started singing the traditional popular music in the 1950s, called “Bosoε,” when she was in her twenties. She then started accompanying her mother to most of the rehearsals of the town Singing Band, “Wobεyε Nipa Dεn,” and she later became a member. This exposure allowed her to advance her talent as a singer, arranger, and composer. She later began composing, arranging, and teaching her own songs, which were initially inspired when the Nnwonkoro Singing Group needed songs. And she has been invited to perform with the group on various occasions.
Afrakoma's effort to also develop as a star singer, like Agyeiwaa, was the opportunity she gained after her performance at a funeral, where she met one Mr. A. K. Brobe, a producer in Kumasi, Ashanti Region, who actually became interested in producing her nnwonkoro compositions. She then began composing several songs on tape recorders, many of in which are for sale. Like Agyeiwaa, Afrakoma's songs are not really for the community but for her. One of her officially recorded songs is “Ōda Mpadua Mu”:
English Translation:
Koo NimoFootnote 89
Koo Nimo (christened as Daniel Amponsah) is a native of Foase in the Ashanti Region of Ghana. He is an eloquent, erudite, and prolific commentator and a composer, whose knowledge and experience as a sociopolitical announcer, stems from his exposure to the Akan oral tradition. He grew up in rich traditional settings that exposed him to all facets of the Akan traditional music culture. He was also privileged to interact with great musicians, poets, and historians at the chief palace. He observed and participated in all the various cultural activities. Such exposures allowed him to continue to develop his gift and talents as a poet, composer, singer, and performer of traditional songs. Guitar is his major instrument. He began creating his own poems and setting them to music.
Koo Nimo's sung tales span a variety of social and cultural themes, which always appeal to both the rural folk and urbanized environments. He is one of the most prolific traditional artists who has composed and recorded several songs in his career as an orator and a musician. Thus, he has a reputation as one of the most important folkloric or traditional commentators in, specifically, the Akan tradition, and generally the Ghanaian. Such exposure has allowed him to advance and expand his knowledge and creativity as a musician and advocator. And as an expert in speech, singing, and guitarist, Nimo practically appears as a griot with his traditional roles as a diplomat, oral historian, genealogist, guardian of history, sociopolitical announcer, praise singer, musician, and public entertainer.
Unlike Agyeiwaa and Afrakomaa, Nimo's songs are made for his society. For financial reasons, none can be used exclusively without permission. One of the he has officially produced is “Ōdōnsō”:
English Translation
(translated by Koo Nimo)
Analytical Framework
Musicians in category #1 clearly wanted to expand or add to the list of the already existing traditional songs. They saw it as a commitment to their role in the development of their community or society. They wanted to add new songs to the existing music to enhance and add more excitement to the musical tradition. Therefore, although they might be the sole contributors to the songs they wrote or composed, they felt responsible for contributing to the growth of their society.
Musicians in category #2 were clearly less interested in adding to the list of the already existing traditional songs. They do not feel committed to the development of their community as a whole. Under this system they feel they have the right to claim every benefit that might accrue from performances and recordings of their songs. Thus, because they own the songs, they only allow people to use formally recorded songs. In other words, their songs cannot be used without permission.
CONCLUSION
Although the current legal systems are successfully established, they have come to overemphasize one of two things:
1. The exclusive protection of the individual musicians' rights, by tending to elevate their interests over the collective interest of the community, disregarding society's role
2. The exclusive protection of the government's rights, by tending to elevate the government's rights with no regard for the individual musicians who may have contributed to the tradition.
In short, the systems have been tailored toward either individual or government needs. Either the individual musician or the government is legal owner of the property.
Thus, for while the first—individual rights—deemed inalienable rights that empower the autonomous musician universally, the second—communal rights—however, are considered inalienable rights that empower the collective rights of the community/government. And those who claim ownership are those who benefit under such a system, a process that naturally removes the individuals from their own communal orientation in terms of joint ownership. Such extremely divergent interests have unfortunately placed the two existing systems in opposition to one another, where either the individuals are owners or the government is owner, but individuals and the society are never co-owners.
Therefore, the questions that need to be answered are whether the protection of these products, as expressed by these individuals and their community, should just overemphasize rights that fall only on the individual musicians, without regard to the community to which they belong, or the community, without regard to the individual musicians who express those qualities. That is, should there be an emphasis only on the inalienable rights of the autonomous individual musicians, with no value for their society's contribution to such development, or an emphasis only on the inalienable rights of the community, with no value for the individual musicians' talents, gifts, and experience. How then does this dual-relationship concept of rights system contribute to the solving of these prevailing issues? And what role do the individual musicians and the community play in all these processes of contributing to the growth of the society?
The answer is quite simple. As Josephina Asmah clearly illustrates:
traditional does not necessarily mean old or a lack of novelty, because works are continually transformed. Therefore, with regard to the individual musicians' contribution to the growth of the tradition, the fact that these works are generally regarded as originating from a community does not mean that the contributions of specific individuals cannot be recognized.Footnote 90
Furthermore, as one commentator argues, “it is an oversimplification or an example of generalizing to state that traditional knowledge, which tends to be handed over from generation to the next and does not have a ‘clearly identifiable individual inventor.’” Although in traditional communities works tend to be created by groups, it is possible for individuals in the community to be singled out for their exceptional talent or recognized as creators.”Footnote 91 It is feasible, as Kama Puri claims, for there to be an identifiable author who “can be readily identified for the purposes of protection under the copyright system.”Footnote 92
Also, with regard to the community's contribution to the growth of the tradition, the fact that these works were created and developed by the individual musicians does not mean that the community's contributions to this growth cannot be recognized. Such traditional forms of knowledge, or cultural identity, gained by these musicians are considered to be owned by the entire communities, lineages, clans, age, or family groups to which the musicians belong. These forms of knowledge are systems that govern all the structures for communal participation; and they are systems that constitute a cultural heritage that most African societies naturally value and respect.
With respect to the roles played in musical performance, it can be deduced that the ideas brought into the process of the music making would be known to be, first and foremost, the source of the musicians' ideas, and, second, the product of their culture. The musicians worked within a tradition in which certain stylistic features, such as musical formulas, idioms, and dialects, were consciously or subconsciously learned, absorbed, and stored in their memories and called upon in such contexts. Because music making in such context is always revealed as a shared activity—an activity that is shared by all members of the society through an individual–communal participation—what is gained owned by both the musicians and the community. They all form a part of, and could be makers of, their identity, and also can be means of communication and instruction.
Songs that do always originate from the individual musicians are traditionally considered as belonging to the entire community. They become a shared property for both the individuals who compose them and the community to which they all belong. The individuals do not totally own the songs without respect for the society from which they also gained their experience, nor does the community totally own the songs without respect for the individuals who originally contributed to the process. They see all these new forms coming into the tradition as having come to form part of, and could be a marker of, their identity; because to them, the preservation of all these musical forms or systems are in effect the preservation of their own cultural identity as a whole. They see the musicians' composing knowledge and experience as that having been acquired from the indigenous society in which they find themselves.
One fact is the knowledge of composing the nnwonkoro or adowa songs, for instance, is acquired from the tradition. The individuals have every right to add new ideas, however, for the songs to be nnwonkoro as the community knows, it must fall within the traditional way of composing such a song (such as the melodic forms, rhythmic structures, call-and-response format, etc.) so that it can be truly nnwonkoro. The same happens when one wants to write songs, whether they are adowa, osoode, kete, or adenkum. The songs musicians bring to the community become part of the society's cultural heritage as they become good source of revenue for both the individual musicians and the community. And the preservation of these musical forms are in effect the preservation of their culture.
All these processes of creativity also call for audience participation. Because such collective participation is a process in which the musicians become bound up with the community's involvement, as well as the social and political roles that they occupy, the dual relationship in owning compel the recognition of rights for the individuals as well as the community. Because, by the Akan concept, the individual autonomy cannot exist outside the social environment in which he or she is raised, the musicians' rights, personal freedom, and well-being are relative to the social context in which they function, and are known to be only possible within the community. Also, because their rights are tied to those they have come to inherit from the community and have been considered as a cultural heritage, such rights are not seen to constitute an owned property only by the individual musicians. Instead they are considered a shared property owned by both the individuals and the community as a whole. Ownership becomes fundamentally governed by the community, within which the individuals find themselves.
Therefore, although the traditional musicians in the community have personal rights, their rights are tallied with social responsibilities and are only brought to bear and completed within the social framework. As such, because their rights are not absolute, but relative to the social context in which they function, such rights are known to be meaningful only within the context of their society. Rights ownership then becomes an entitlement that everyone in the community has, first, by the fact that he or she is a human being, and second, by virtue of being a member in a lineage. It becomes a shared property that places the individuals' rights in a joint relationship with their community's rights. The musicians' rights are known to be relative to the social context in which they function, or meaningful only within the context of their social activities.
