INTRODUCTION
Folklore protection continues to be a subject of international, regional, national, and scholarly debate. At the basic level, the debate centers on three main issues: (1) whether folklore should be protected; (2) if the answer to the first issue is in the affirmative, then the next question is which aspects of folklore should be protected; and, finally; (3) how it should be protected. These questions have been part of the focus of the World Intellectual Property Organization (WIPO) over the past few decades. The WIPO's initiatives include drafting model lawsFootnote 1 and model provisionsFootnote 2 jointly with the United Nations Educational, Scientific, and Cultural Organization (UNESCO); conducting fact-finding missionsFootnote 3; and ongoing attempts to draft an international treaty in this area.Footnote 4
Attempts to legislate in this area are hampered by the diverse and sometimes opposing angles to this issue. One argument advanced in favor of folklore protection is that it is only fair that the global system affords as much consideration and protection to what traditional communities and some developing countries value (i.e., their folklore) as it does to the intellectual property of developed countries.Footnote 5 Intellectual property refers to creations of the mind; and the main categories for rights in these creations are copyright, patent, industrial designs, and trademarks. From an intellectual property perspective, however, and stemming largely from the origins of the intellectual property system being rooted in western epistemology, the current construction of intellectual property with its eligibility criteria and limited duration is not wholly compatible with folklore protection.Footnote 6 Nevertheless, there is an undeniable similarity between some folklore works and the works protected under the intellectual property law system.Footnote 7
Countries like Ghana and other former colonies whose introduction to the intellectual property system was during the colonial period face numerous obstacles in their quest to protect folklore. This article examines intellectual property and traditional textile protection from an African perspective. Many African countries have traditional textile designs.Footnote 8 The choice of Ghana and the kente designsFootnote 9 is motivated by the fact that the Ghanaian kente design is one of the most well-known traditional designs from Ghana and the African region. Further, it is high on Ghana's list of the folklore it wants to protect. The article uses the kente designs to illustrate the importance of traditional textile designs as well as explore national and regional perspectives on intellectual property protection of traditional designs. There are few studies that address the issue of traditional designs and intellectual property protection internationally as well as from a Ghanaian and African perspective. Thus, this article will contribute much needed analysis in this area. Although there is a great body of literature analyzing the philosophical justifications for intellectual propertyFootnote 10 and why it is or is not suitable for folklore protection, an in-depth analysis of that field is beyond the scope of this article.
Against this background, the first part of the article examines the nature and significance of traditional textiles. Next, it focuses on the kente traditional designs, followed by an examination of unauthorized traditional design commercialization concerns. Then the article analyzes of intellectual property protection of kente designs in Ghana. Next is a discussion of regional perspectives. Finally, the article examines folklore and human rights.
NATURE AND SIGNIFICANCE OF TRADITIONAL TEXTILE DESIGNS
In this section cloth, fabric, and textiles are used interchangeably. Further, because the designs in question are used in textiles, traditional textiles and traditional textile designs are used interchangeably.
Characteristics of Traditional Textile Designs
There are several characteristics distinguishing traditional textile designs from other textile designs. One characteristic of traditional textiles is that they are regarded as having been developed by communities, not by an individual. Although it is not always possible to date when they were created, the relevant community has customarily been producing the textiles for a long period of time, usually dating back several centuries, and may still be producing it. Also, the art of making the textile has been preserved and transmitted from one generation to the next. In addition, even within a country, a particular textile design may be associated with a specific indigenous community or with a particular region of a country. Some types of fabrics and designs may be distinct to a particular ethnic group or region of a country. The requisite knowledge about a textile can identify which part of the country it comes from and even the ethnic group that produces it or is in charge of producing it.
These characteristics apply to what is generally referred to as folklore of which traditional art and design forms a part. One legal writer has described folklore as having the following common characteristics:
• It is passed from generation to generation, either orally or through imitation.
• It is generally not attributable to any individual author or set of authors.
• It is being continually used and developed within the indigenous community.Footnote 11
Although there are various definitions of folklore, this article adopts the definition of folklore in the WIPO-UNESCO Model ProvisionsFootnote 12 unless otherwise stated. The WIPO-UNESCO Model Provisions define folklore or “expressions of folklore” 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 a community.”Footnote 13 The WIPO has also described folklore as a part of traditional knowledgeFootnote 14 while defining traditional knowledge as covering “tradition-based literary, artistic or scientific works; performances; inventions; scientific discoveries, designs; marks; names and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields.”Footnote 15 Thus folklore could be defined as traditional cultural knowledge a definition, which arguably omits scientific knowledge.
However, the term folklore does not have unquestioned universal acceptance, and there are criticisms about the appropriateness of using the term folklore to refer to the cultural heritage and expressions of indigenous and traditional communities. Dissatisfaction with the term centers mainly on its association with rural, lower, disadvantaged, illiterate, or uncivilized societies.Footnote 16 Further, there are some historical negative overtones attached to folklore based on its association with myths, superstitions, and similar terms. In Australia, for example, there is an aversion to the word folklore with a preference for the expressions “traditional knowledge” or “cultural expressions of indigenous peoples.”Footnote 17 Despite this controversy, this work uses the term folklore because that is the term used in the Ghanaian legislation.
Before moving on, the following important points must be made. First, traditional does not necessarily mean old or a lack of novelty,Footnote 18 because works are continually transformed. Second, 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. As one commentator argues, it is an oversimplification or an example of generalizing to state that traditional knowledge tends to be handed over from one generation to the next and does not have a “clearly identifiable individual inventor.”Footnote 19 Similarly, 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 20 Kamal Puri, for example, concludes on this point that it is feasible for there to be an identifiable author, an author who “can be readily identified for the purposes of protection under the copyright system.”Footnote 21
Significance of Traditional Textile Designs
As a part of folklore, traditional textiles have a lot of significance in ethnic communities, a significance that might extend to the country in question. This significance is summarized as follows:
1. They are part of the cultural heritage of the communities. Dr. Erica-Irene Daes, chair of the Working Group on Indigenous Populations, provided a useful definition of heritage:
“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 22
Applying this to the subject of this article, the community has inherited the textile or art of textile making from their ancestors which knowledge they will transmit to future generations.
2. They form a part of and could be a marker of identity.Footnote 23
3. They can be a means of communication and instruction in a community.
4. In some communities, the production of the textiles may be a good source of revenue for the community and the country.
5. The preservation of the textile designs are in effect the preservation of culture and global diversity.
Against this background, the next section examines one traditional textile design: the kente.Footnote 24 The terms kente designs, kente, and kente cloth are used interchangeably.
THE KENTE DESIGNS
The kente cloth is an important part of Ghana's cultural heritage. Although the kente's exact origin is unknown, kente designs clearly date back several centuries.Footnote 25 The term kente has its roots in the term kenten, meaning basket. This name was given to the cloth because it resembles the woven designs of a basket. Kente is a handwoven cloth woven on a horizontal treadle loom.Footnote 26 The art and knowledge of kente weaving has been practiced for centuries in Ghana and passed from one generation to the next. The cloth is traditionally woven by the Ewe and Asante ethnic groups.Footnote 27 The Asante cloth is woven in the villages near Kumasi and around Bonwire and Ntonso; and the Ewe Kente is woven around Kpetoe, Denu, Wheta, and Agbozume in the Volta Region of Ghana. Although these ethnic groups produce similar kente cloth, the differences in the cloths made by these two ethnic groups are in the weaving styles.Footnote 28 Kente weaving tends to be a family business.Footnote 29
However, the fact that folklore tends to be communally produced does not negate the possibility of identifying an individual's contribution to the creation. With respect to kente weaving, Betsy Fowler writes about a Ghanaian artist who produces kente designs used to mark events in tribal life.Footnote 30 Examples like these are evidence of the fact that, even under the communal umbrella, there is a degree of individual creativity; and in some cases some individuals can be identified for the designs they create.
Kente designs have a lot of symbolism and significance in Ghana. Kente patterns are unique, and each has its own name. In addition, kente cloths have rich vibrant colors. Colors are very symbolic in Ghana; consequently, the colors for the cloths are chosen according to the story or message the cloth is meant to communicate.Footnote 31 The complex and intricate designs in kente cloths have deep symbolic meanings. The key thing is that the kente cloth is more than just a cloth:
Kente cloth came to represent the history, philosophy, ethics, and moral values in African culture…. In a total cultural context, kente is more important than just a cloth. It is a visual representation of history, philosophy, ethics, oral literature, moral values, social code of conduct, religious belief, political thought and aesthetic principles.Footnote 32
Under Akan traditional protocol, kente is reserved for important occasions. A ceremonial cloth, the kente was originally reserved for royalty and worn during important occasions and ceremonial events.Footnote 33 With time, its use spread to nonroyals. However, its value as a ceremonial cloth has not decreased; it is still reserved for important occasions such as weddings, naming ceremonies, and state functions:
In many cases the use of Kente has a sacred intent. It may be used as a special gift during such rites and ceremonies as child naming, puberty, graduation, marriage, and soul-washing. It may also be used as a symbol of respect for the departed souls during burial rites and ancestral remembrance ceremonies. Its significance as a symbol of prestige, gaiety and glamour is evident during such community celebrations as festivals and commemoration of historical events, when people proudly wear the best of their Kente Cloths to reflect the spirit of the occasion.Footnote 34
Its importance in Ghanaian society is seen in the fact that in 1960 Ghana presented the United Nations with the largest known Kente cloth on record.Footnote 35
With Ghana having more than 70 diverse ethnic groups, one might question how the folklore produced by two ethnic groups is regarded as the folklore of the country as a whole. In Ghana's response to a WIPO Questionnaire in 2001, Ghana's assistant copyright administrator mentioned that expressions of folklore in Ghana are regarded as the cultural heritage of Ghana and the property of the source community.Footnote 36 Thus, folklore is supposed to be a unifying factor and give these diverse groups a common heritage as Ghanaian citizens. China expressed a similar sentiment in a document submitted to WIPO in 2002 where Chinese folklore is referred to as “just like a shining treasure house that symbolizes national unity and bridges China with the world.”Footnote 37
While mentioning the significance of kente to Ghana, it is noteworthy that kente use is being adopted in other parts of the world. For example, African Americans in the United States have adopted it to signify their identity and ties to Africa.Footnote 38 However, and as is described in the following text, the production and use of kente in other parts of the world is a controversial issue.
UNAUTHORIZED TRADITIONAL DESIGN COMMERCIALIZATION CONCERNS
Indigenous and traditional communities are becoming increasingly concerned about how to preserve their culture from commercial exploitation by outsiders.Footnote 39 Several factors have contributed to this situation including new technologies; globalization, a consequence of which is increased contact with foreigners; and the recognition of the potential economic value to be derived from commercializing traditional art. However, unauthorized exploitation can harm the community in various ways. One legal scholar commenting on the unauthorized commercialization of indigenous artworks states that “[g]iven this special place of art in the indigenous community, one can appreciate the additional harm caused by the unauthorized reproduction of artworks. Use of these images by outsiders violates many of the principles governing the use and creation of art.”Footnote 40 Because of the exploitation, traditional communities are trying to find ways to protect and preserve their culture.
Ghana is becoming increasingly concerned about the appropriationFootnote 41 and unauthorized commercialization of kente. One Ghanaian copyright official stated that this illicit exploitation is conducted especially in the United States and Asia.Footnote 42 These imitations tend to be mass produced by factories, whereas the original and authentic Ghanaian kente is locally handmade, more expensive, and of a superior quality. In addition, imitations of kente are readily available in foreign markets such as in the United States. Ghana also has to deal with regional compliance because it appears that other African countries may be producing and marketing kente imitations.Footnote 43 If these practices are not arrested, they could result in Ghana losing this aspect of its culture.Footnote 44
The cultural appropriation of the kente cloth could be injurious to Ghanaian culture in several ways. As stated in the previous section, Ghanaians have woven the kente cloth for centuries. The people making unauthorized reproductions of the cloth in Asia and the United States are depriving Ghanaians in Ghana of a means of livelihood. They are tapping into a market to which they are not entitled. There is also the danger of these textiles being exported to Ghana and competing with Ghana's local industry. Economic history shows that unfair competition from imported products has the capacity to kill a local industry. Furthermore, this cloth is prestigious and symbolic in Ghana, worn on special occasions. Worn and used out of its cultural setting, there is the danger that this cloth will be devalued and become commonplace. Moreover, the cloth may be inappropriately used because the wearer does not attach as much meaning to it as does the Ghanaian.Footnote 45 One Ghanaian scholar observed that “something that is sacred in one country, should not be used as a table cloth in another.”Footnote 46
As Boateng observes on this point:
The use of kente for items like umbrellas, beach balls, and furnishings is considered to degrade a cloth that is normally reserved for ceremonial use.
It is at this point, where for African Americans kente is “anything you want it to be,” that the issue of globalization becomes most pertinent, for the kente in question is usually not the hand-woven product that is only obtainable from Ghanaian craftsmen, but imitations thereof. Within the global economy, sophisticated communications and reproduction technology give an advantage to producers who have the resources to quickly access market information and turn it to their advantage. Thus East Asian and other producers (some within Africa) undercut indigenous producers of kente, adinkra, and other handmade textiles. Their ability to profit from this is partly due to consumers' acceptance of their imitations. The relationships between African Americans and Ghanaians around cloth are thus mediated by these third parties, to the disadvantage of the original producers.Footnote 47
In sum, the examination in this section established Ghanaian concerns about the unauthorized production of kente designs regionally and internationally and about the need to find a solution to this issue.
INTELLECTUAL PROPERTY PROTECTION
As mentioned earlier, although there is an undeniable similarity between the subject matter of folklore and intellectual property works, there are difficulties in attempting to incorporate folklore into the existing intellectual property law categories. These difficulties stem from two main facts: (1) that the intellectual property law system, being a western construct, was not designed for folklore protection; and (2) currently, folklore does not fit neatly into the eligibility criteria for intellectual property protection. In fact, some scholars have questioned the wisdom of traditional communities using the intellectual property law system to protect folklore because in doing so, they might have to define or redefine themselves through an alien lens. Nevertheless, there are two main reasons for the intellectual property law system attraction: (1) the similarity between intellectual property works and folklore, as mentioned earlier in this section, and (2) the fact that the intellectual property law system is reasonably well established. Thus, from the point of view of a society trying to protect its cultural heritage, it is more advisable to use the current intellectual property law system as a protection tool while waiting for an international agreement in this area, as opposed to taking no action.
The section continues by examining Ghana's use of the intellectual property law system to protect its traditional textile designs, as a case study of the African situation.
International Intellectual Property Landscape
Ghana's international intellectual property relations can be grouped into two periods: pre-independence and the post-independence era. Like many former British colonies,Footnote 48 Ghana's introduction to the intellectual property system came from Britain. For example, Ghana's first copyright legislation was a British statute, the Imperial Copyright Act of 1911,Footnote 49 which came into force in 1912 and was applicable to the whole of the British Empire. Thus, as is the case with other former African colonies, the introduction of the intellectual property law system into Ghana did not take into consideration the differences between Ghanaian society, culture, communal nature, and values on the one hand and that of Britain on the other.Footnote 50
Likewise, some international treaties to which Britain was a party were applied to Ghana. For example, Britain adhered to the Berne Convention for the Protection of Literary and Artistic Works (the Berne Convention) 1886 for itself and its colonies and possessions. However, since independence, Ghana has signed and ratified some of the international intellectual property agreements in its right.
Ghana's international obligations have grown since independence. First, from August 22, 1962, it became bound by the Universal Copyright Convention (UCC) 1952 and its protocols 1 and 2. Second, Ghana ratified the Berne Convention in 1991. Thus, until 1991 when Ghana ratified the Berne Convention, the UCC played a dominant role in Ghana's international copyright obligations. This is clear from the fact that Ghana's first two post-independence copyright legislation, the Copyright Act, 1961 (Act 85), and the Copyright Law, 1985 (P.N.D.C. Law 110), are silent on the Berne Convention but mention Ghana's obligation to protect works of UCC parties.Footnote 51 In 1976 it became a member in its own right of the Paris Convention for the Protection of Industrial Property.Footnote 52
Ghana's international obligations have expanded even further since the 1990s. Ghana became a World Trade Organization (WTO) member on January 1, 1995, and was bound to implement the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement)Footnote 53 from January 1, 2000.Footnote 54 Ghana signed the WIPO Copyright Treaty (WCT) on May 23, 1997, and is reported as having played a leading role in its conclusion.Footnote 55 Ghana ratified the WCT on August 18, 2006, and the WCT entered into force in Ghana on November 18, 2006.Footnote 56 Ghana has also signed the Convention on Biological Diversity (CBD), is a party to it, and has ratified it.Footnote 57 The Patent Cooperation Treaty (PCT)Footnote 58 entered into force in Ghana in February 1997, and Ghana became a signatory of the Patent Law Treaty (PLT)Footnote 59 on June 2, 2000.
Domestic Intellectual Property Regime
During the past decade, Ghana has embarked on an ambitious plan to expand its intellectual property law regime partly in an attempt to meet its TRIPS obligations. During the past decade, Ghana has drafted bills for parliament's consideration in several areas. The bills either revise existing intellectual property legislation, in areas including copyrightFootnote 60 and patents, or aim to introduce legislation in areas hitherto not provided for, such as geographical indications and layout (topographies) of integrated circuits. Some new laws that have been passed include the Copyright Act, 2005 (Act 690),Footnote 61 and the Trademarks Act, 2004 (Act 664).Footnote 62
Kente and Traditional Designs Protection
Copyright plays a prominent role in Ghana's intellectual property system; since independence Ghana has passed more copyright than other intellectual property legislation. However, folklore protection in formal legislation began not with the intellectual property system but with textile legislation in the 1960s and 1970s such as the Textile Designs (Registration) Decree, 1973 (N.R.C.D. 213),Footnote 63 which forbade the registration of textile designs “if the design is substantially made up of well-known indigenous traditional motifs” (section 2(2)(d)). The Industrial Designs Act of 2003 (Act 660) repealed and replaced this decree. The Copyright Law, P.N.D.C. Law 110 of 1985,Footnote 64 with its folklore protection provisions, marked the beginning of a relationship between folklore and Ghana's intellectual property system. The introduction of folklore protection into Ghana's intellectual property system can be regarded as an indication that Ghana was beginning to think about which of its resources and cultural heritage were important and worthy of protection. P.N.D.C. Law 110 was repealed with the passage of the Copyright Act, 2005 (Act 690).Footnote 65
Copyright Protection Under Act 690
Ghana's copyright legislation, Act 690, specifically protects folklore. Other African countries protect folklore under formal legislation such as Ivory Coast in 1978, Nigeria in 1992,Footnote 66 and Togo in 1991. These efforts are not surprising in view of international initiatives and model laws exploring the relationship between folklore and intellectual property such as the Tunis Model LawFootnote 67 and the WIPO-UNESCO Model Provisions.Footnote 68 As WIPO has observed, although these two international initiatives are not binding, they have influenced the development of national laws on folklore protection.Footnote 69 Another reason from the Ghanaian perspective is the similarity between intellectual property law and control of folklore under customary law principles.Footnote 70 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
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 as literary works, artistic works, musical works, sound recordings, audiovisual works, choreographic works, derivative works, and computer software or programmes (Act 690, s. 1. (1))
• Folklore
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,Footnote 72 these eligibility criteria do not apply to folklore.Footnote 73
With the traditional works, authors have economic and moral rights in their works. Works of individuals are protected during the author's life and for 70 years after the author's death. The term of protection is 70 years from the time the work was made or first published for other works such as those of a body corporate.Footnote 74 Moral rights exist in perpetuity, however. Act 690 also provides for permitted used of works.
It is an infringement for a person to deal with a copyright protected work in a manner that adversely affects the author's economic or moral rights. The civil sanctions for copyright infringement include injunctions and damages for the infringement while the criminal sanctions include fines and prison terms. Parties also have the option of negotiating a settlement of a dispute (Act 690, s. 48).
Act 690: Folklore Copyright Provisions
Under Act 690 (s. 76) folklore
means 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, and includes kente and adinkra designs, where the author of the designs are not known, and any similar work designated under this Act to be works of folklore.
The protection of folklore under copyright in Ghana originated with the former copyright legislation, the Copyright Law, 1985 (P.N.D.C. Law 110). Although these two pieces of legislation had similar definitions of folklore, the main difference between the two definitions is that under Act 690 kente and adinkra designs are specifically mentioned in the legislation as works of Ghanaian folklore.Footnote 75
Folklore protection under Act 690 has the following main features. The act protects folklore against reproduction, “communication to the public by performance, broadcasting, distribution by cable or other means” and against “adaptation, translation and other transformation” (Act 690, s.4.(1)), whereas folklore rights are vested in the president “on behalf of and in trust for the people of the Republic” (Act 690, s.4.(2)). The perpetual duration the act grants to works of Ghanaian folklore (Act 690, s.17) means that such works will never be part of the public domain.Footnote 76 Act 690 establishes a National Folklore Board (Act 690, s. 59) whose duties are to maintain a register of Ghana's folklore and to “promote activities for the dissemination of expressions of folklore within the Republic and abroad.”Footnote 77 People who want to use folklore for uses that fall outside the permitted uses in section 19 must obtain the National Folklore Board's prior consent and pay a fee (Act 690, s. 64(1)).Footnote 78 Such fees are to be paid into a fund, which is to be established by the minister with the accountant general's approval and managed by the National Folklore Board for the purposes of preserving and promoting folklore and promoting indigenous arts (Act 690, s. 64(3)(a) and (b)). Offences under the Copyright Act concern the sale or distribution of imported works of Ghanaian folklore without the written permission of the National Folklore Board (Act 690, s. 44).Footnote 79 At present, Ghana's copyright legislation does not protect foreign folklore.
Evaluation
Although Ghana and other countries protect folklore in formal legislation, many factors militate against their success in protecting their folklore. There is tension in seeking overseas compliance of customary lawsFootnote 80 as well as in trying to ensure compliance overseas for copyright legislation that protects folklore. As Kamal Puri has analyzed 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 81
In addition to the aforementioned challenges, another contributory factor is the perception that folklore is part of the public domain.Footnote 82 From a strict Western perspective, folklore forms a part of the public domain. However, in other parts of the world, like Ghana, folklore does not form a part of the public domain. There is this struggle between what belongs to the commons and what does not, and this plays out in the folklore area as well.
Writing on the use of kente and adinkra designs, Boateng gave some insight into the commercialization and use of Ghanaian folklore in the United States. She describes a conversation she had with a U.S. vendor in Champaign, Illinois, who was surprised that adinkra symbols have legislative protection in Ghana. The vendor said when the vendor inquired about the copyright implications of using adinkra symbols in her business card in the early 1990s, U.S. officials informed the vendor that this was an item of folklore that was a part of the public domain. This was despite the fact that Ghana's copyright law with its provisions on folklore protection had been in existence for five to six years.Footnote 83 Another scholar mentions the lack of recourse for a Ghanaian artist when J.C. Penney reproduced some of his traditional designs on bedsheets and sold them to the American public.Footnote 84
With copyright in folklore being vested in the Republic of Ghana and with the establishment of a National Folklore Board to administer proceeds from folklore use, it remains to be seen how the proceeds will be administered and whether folklore producers will benefit from the proceeds.Footnote 85 A few solutions that have been identified in other countries include provisions in licences, agreements, and concessions between the owners of the folklore and the potential users.Footnote 86 Writing on the Ghanaian situation in 2004, before the passage of Act 690, Boateng stated that there is a need for the government, with the copyright holder of folklore to be accountable and ensure that producers of folklore benefit from its mass exploitation. She commented further that in the view of some kente and adinkra producers in Ghana, the state is not trustworthy enough as the copyright holder and “the custodian of their interests.”Footnote 87 Although it is too early to evaluate the effect of Act 690 on this issue because the act does not state the formula that will be used in administering the proceeds, this is an area that the government must address in the coming years. This is because international instruments such as the CBD emphasize the importance of benefit-sharing agreements.Footnote 88
In sum, this section establishes how the perception of folklore in some countries as public domain items can enable the infringement of another country's laws. It also shows the difficulty that countries like Ghana encounter when trying to protect their folklore in places where folklore is generally not protected. This is strengthened by the absence of an international agreement and international enforcement in this area. In conclusion and in fairness to this piece of legislation, it is impossible for national legislation alone to resolve this challenge conclusively. The very nature of the challenge dictates a regional and international solution.
REGIONAL PERSPECTIVES
Folklore protection is an important issue in Africa because of the significance of folklore in Africa. As mentioned earlier, some African countries are using intellectual property legislation to protect folklore. Shyllon asserts, “Folklore provisions in post-colonial legislation in the African states must be seen as an attempt to cater for the peculiar needs of these countries whose civilization and tradition are oral.”Footnote 89
One lesson that can be learned from the Ghanaian experience is that alone, provisions in national legislation on folklore protection are insufficient to ensure compliance overseas. The question then remains of what steps countries like Ghana should take to move forward in folklore protection? Is the answer in a regional or international arrangement; and if so, in which order?
One law scholar has proposed that a regional solution might have greater success than a “more encompassing global treaty” for folklore protection in Africa.Footnote 90 His proposal is based on a consideration of the differences between African countries on the one hand and developed nations on the other.Footnote 91
In the African context, there is certainly some merit in the establishment of a regional arrangement on folklore. It has already been mentioned that several African countries protect folklore under intellectual property. A regional arrangement on folklore is advisable because it would strengthen these efforts. The case for the regional argument is stronger when it comes to folklore policy making because it gives greater weight to national efforts. There are already several regional organizations in Africa under whose umbrella this issue could be tackled. These include the Economic Community of West African States (ECOWAS)Footnote 92 and in the intellectual property areas the African Regional Intellectual Property Organization (ARIPO),Footnote 93 formed among English-speaking Africa, and the African Intellectual Property Organization (OAPI),Footnote 94 formed among French-speaking Africa. There is also the African Union (AU), formerly the Organization of African Unity.
However, these intellectual property groupings do not establish a common and uniform folklore policy for the region. On March 2, 1977, the OAPI was created by the adoption of a convention signed in Bangui.Footnote 95 The Bangui Agreement was revised on February 24, 1999,Footnote 96 to comply with TRIPS. The OAPI has extensive provisions on folklore protection in its Annex VII.Footnote 97 However, ARIPO does not address folklore.Footnote 98 Since its establishment by the Lusaka Agreement in Zambia on December 9, 1976, ARIPO has adopted two protocols: the Protocol on Patent and Industrial Designs within the Framework of the African Regional Industrial Property Organization (Harare Protocol)Footnote 99 and the Banjul Protocol on Marks.Footnote 100 Moreover, and as the name implies, ARIPO's focus is on cooperation among English-Speaking Africa in industrial property matters. Thus, there is a gap in this area in relation to policy and cooperation in folklore issues.
Another initiative is the African Union Model law for the Protection of the Rights of Local Communities, Farmers and Breeders and for the Regulation of Access to Biological ResourcesFootnote 101 (African Union Model Law), a draft agreement on biological resources. Although the African Union Model Law was drafted in response to the CBDFootnote 102 and article 27.3(b) of the TRIPS Agreement,Footnote 103 it is an example that could be followed with respect to regional folklore policies.
One scholar analyzing African initiatives and the African Union Model Law comments that the “development of national laws based on the model law has been slow even though the idea of the sui generis option has been accepted.”Footnote 104 He continues that this is partly caused by the problem of adapting it to national policy objectives and observes that most Africans are not aware of the existence of this law, nor of international agreements such as the CBD or the TRIPS Agreement. Furthermore, he suggests the following:
National governments and the international community should learn to be more participative, strategically patient and democratic in their decision-making processes. They should ensure that those most likely to be affected by these legislative imperatives not only understand the issues involved, but actually get a fair hearing and participate in the whole process. There is a need for more widespread discussion of the Model Law at national, subregional and regional levels on the continent to more realistically elicit the reaction, support or otherwise of Africa.Footnote 105
Although model laws are nonbinding, the attempt to legislate on a regional basis is commendable; and this initiative is probably expandable into the folklore realm. Likewise, the success of regional policies on folklore protection in Africa will also require education and consultations at the various levels of African society.
Basically, and in view of the differences between the meaning of folklore in the African context and in other parts of the world where folklore might be regarded as part of the public domain, it is advisable that folklore protection form a part of African regional policy. This suggestion is made against the background that African countries have already recognized the importance of cooperation through organizations like ARIPO. However, the most important reason for this suggestion is that it will give national African folklore initiatives a force that the individual countries cannot achieve on their own.
There are three possible ways of addressing this:
1. This could be done under the umbrella of the existing regional intellectual property organizations.
2. A new regional organization could be formed being an amalgamation of the existing intellectual property organizations.
3. A new organization could be formed for African folklore, such as the African folklore organization.
Of these three possible alternatives, the second and third points are a better solution than the first one. It is better that the issue is dealt with by the whole region as opposed to it being settled according to language groupings. Ghana, for example, although an English speaking country, has French-speaking countries as its neighbors.
As one legal scholar commenting on the African situation from an intellectual property and trade angle has observed:
The ARIPO and the OAPI establish two different systems that do not project the realities of a unified African objective. Perhaps a more effective African intellectual property regime may be pursued through a process of reviewing the existing sub-regional trade initiatives within the African region in order to make the system more workable or indeed introducing intellectual property within the existing sub-regional trading initiative, such as the Economic Community of West African States (ECOWAS).Footnote 106
In addition to the previous recommendations listed, this process might be facilitated if African countries keep a registry of their folklore. For example, Ghana has already instituted this measure, and other non-African countries such as India and China also have registers of their folklore. Some writers have commented that traditional peoples may not want to disclose folklore that is sacred. A determination of whether sacred folklore should or should not be included in the registry is not within the scope of this article. That is for the country in question to decide. However, folklore that can be disclosed should be disclosed as a starting point. With time, the registry could translate into a regional one if future events necessitate such a measure.
During its ninth session (April 24–28, 2006), WIPO's Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) identified some of the recurring issues in discussions on the protection of traditional knowledge as including the nature of traditional knowledge, the description and definition of traditional knowledge, and the identify of the owners and other beneficiaries.Footnote 107 This shows that there are still many questions to be answered before an international agreement can proceed. Thus, having a regional agreement or some policy on these areas would certainly aid international efforts. This does not mean that international efforts should not proceed without a regional agreement, however.
FOLKLORE AND HUMAN RIGHTS
Folklore protection through the human rights framework is regarded as one viable option and arguably better than the use of the intellectual property system.Footnote 108 To what extent is the protection of folklore a human rights issue? Some international documents such as the Universal Declaration of Human Rights of 1948 (UDHR)Footnote 109 and the International Covenant on Economic, Social and Cultural Rights (ICESCR)Footnote 110 recognize rights in intellectual property.Footnote 111 “Today, the right to the protection of interests in intellectual creations is recognized explicitly as a human right in the UDHR, the ICESCR, and many other international or regional instruments.”Footnote 112 The CBD underlines the importance of protecting and preserving traditional knowledge. Although there is some research on this area,Footnote 113 a human rights framework for folklore protection has not been studied in depth; and there is a need for more research in this area. The main question is this: Do countries have a human rights obligation to protect folklore? Although an in-depth analysis of this question is not within the scope of this paper, this section focuses on article 15(1)(b) and (c) of the ICESCR.Footnote 114
Article 15(1) of the ICESCR recognizes cultural rights and intellectual property rights. One author argues that it recognizes cultural human rights.Footnote 115 Nwuache asserts that article 15(1)(b) and 15(1)(c) “constitute the right to intellectual property.”Footnote 116 Haugen argues that although from the wording of article 15(1)(c) this article was meant to apply to individual authors, developments in intellectual property show that it might also apply to minorities.Footnote 117 Yu argues that although the drafters of articles 27 of the UDHR and 15(1)(c) of the ICESCR as well as the general comment number 17 on article 15(1)(c)Footnote 118 may not have had traditional communities in mind, this does not mean that an interpretation of these articles cannot be extended to include collective rights.Footnote 119
In sum, one can therefore conclude that provisions in international documents such as article 15(1) of the ICESCR can cover intellectual creations of communities as well. Based on this analysis, I argue that the protection of folklore, in this case traditional cultural designs, it also a human rights issue.Footnote 120 Considering effective folklore protection as a human rights issue strengthens the case for folklore protection. How countries deal with this issue will vary,Footnote 121 because there are no international regulations on the protection of traditional cultural expressions. However, with the ongoing work of WIPO and other organizations might soon result in an international solution.
CONCLUSION
This article analyzes the protection of traditional textile designs under the intellectual property law system. In focusing on the kente traditional designs in Ghana, the article establishes the importance of these designs to Ghanaian society as well as some of the obstacles in the path of protecting traditional designs. The future of folklore and intellectual property protection in African countries like Ghana will be strengthened by increased regional cooperation. In particular, there is a need for regional policy in this area as opposed to current intellectual property groupings along language lines, groups that reflect Africa's past colonial history and may not work well in the present circumstance. African countries and local communities will have to resolve the issue of equitable benefit sharing of the proceeds from folklore use. This is not an easy task in view of the lack of uniformity among indigenous and traditional communities as well as differences in their relationships with their respective governments. Thus to deal with equitable benefit sharing, the governments must work with the different groups to come to a workable solution within their unique situations.
The article also argues that effective folklore protection requires an international solution. The WIPO and other organizations have already taken various steps in the past few decades to define the relationship between folklore and intellectual property and to draft a treaty in this area. These efforts suggest that an international solution will soon be found.
