KAMPALA — For a long time, traditional knowledge and traditional cultural expressions were timidly recognised as intellectual efforts worthy of legal protection. Of recent, indigenous peoples, local communities, and some governments have demanded the recognition of traditional forms of creativity and innovation as protectable intellectual property.
Because traditional knowledge is considered as part of the public domain, it raises key issues as to how it can be protected so as to serve the interests of traditional communities, states, as well as the users.
To raise more awareness, the World Intellectual Property Organization (WIPO) and Uganda Registration Services Bureau (URSB) conducted a Traditional Knowledge as Intellectual Property for Economic Development Workshop in Kampala last week. The workshop had participants from Uganda, Kenya, Malawi, Zanzibar, South Africa and Ghana.
The objective of the workshop was to “sensitise, engage and facilitate national dialogue on Intellectual Property (IP) and Traditional Knowledge (TK), Traditional Cultural Expressions (TCEs) and Genetic Resources (GR) as a first step to develop a national policy or strategy on technical knowledge to be integrated into the recently validated national IP policy,” according to the workshop agenda paper.
The country’s National IP Policy was validated in Kampala earlier in the year, and is now awaiting approval from the Uganda cabinet.
WIPO defines TK as a living body of knowledge that is developed, sustained and passed on from generation to generation within a community. It often forms part of a people’s cultural and spiritual identity.
Uganda, according to the Uganda National Culture Policy, is endowed with a rich and diverse cultural heritage, which includes 65 indigenous communities with unique characteristics. The diversity contributes to a wealth of indigenous knowledge, languages, folklore, customs and traditions and products that can be harnessed for development.
Two legislative acts directly address the legislation of TK in Uganda.
According to the Uganda Copyright and Neighbouring Rights Act, TK and folklore are part of works eligible for copyright protection.
The other legislation for TK is mentioned in the Industrial Property Act, Section 21 (8), which calls for a mandatory disclosure requirement for all innovations that seek to be protected, “including any element of traditional knowledge associated or not with those resources.”
Agaba Gilbert, the IP manager at URSB, in his presentation titled, “Intellectual Property and Traditional Knowledge and Traditional Cultural Expressions,” added that TCE works protected by copyright include verbal expressions, musical expressions and expressions by action.
Others are tangible expressions such as productions of art, in particular, drawings, designs, paintings, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewellery, baskets, needlework, textiles, glassware, carpets, costumes; handicrafts; musical instruments; and architectural forms.
The Ugandan law is vague however, according to Anthony Kakooza: “It does not provide for ownership of traditional cultural expressions (TCEs) nor does it state how such works can be identified or how such protection can be implemented”. Kakooza is the dean, Faculty of Law, Uganda Christian University, and a researcher in IP.
“It is also erroneous in ranking TCEs as ‘eligible for copyright’ and yet they lack a clearly identifiable origin; have no defined ownership; and no ascertained duration unlike recognised works of copyright,” Kakooza added.
In the run-up to the 2011 presidential elections in Uganda, presidential candidate Yoweri Museveni released a hip-hop rap song, intended to appeal to youthful voters. The Museveni team went ahead and applied to register the song, ‘You Want Another Rap,’ for copyright protection.
Two members of the public contested the application, stating that: the work is in the public domain free for all to use; the applicant has not made any improvement on the poems; the applicant merely recited the poem as an act of performance; and that the work constitutes public property and the application is an abuse of intellectual property.
Museveni’s counsel countered that the president is only applying to protect his derivative expression “rather than restrict the use of earlier and differently expressed versions.”
This matter is the first legal contestation over property rights in folklore in Uganda, Kakooza said in his thesis titled, “The Cultural Divide: Traditional Cultural Expressions and the Entertainment Industry in Developing Economies.”
One of the challenges faced by developing countries in exploiting their TK and TCEs is inadequate data on these. Such governments, including Uganda, do not have the statistics. Documenting TK and TCEs has emerged as one of the tools which may play a role in impeding further loss of TK, maintaining TK over time, supporting benefit-sharing and, ultimately, protecting TK and TCEs from unwanted uses.
There’s also the challenge of administering TK and TCEs over cross-border communities. Like Uganda, most communities were split up during boundary demarcations by the colonial governments.
Unlike IP, there’s no individual ownership and ascertainable durability in TK and TCEs.
According to Naana Halm, an IP expert and legal researcher, communities need to pinpoint certain aspects of IP protection to protect TK and TCEs on larger scales in order to reach international markets. Halm was presenting a paper titled: “The role of IP in promoting and commercialising products based on TK and TCEs.”
According to Wend Wendland, director, WIPO TK Division, there’s a need to reconcile competing policy objectives. This can be achieved by respecting dignity of indigenous communities, promoting cultural exchange, fostering creativity and the cultural industries, reserving cultural heritage, and propelling socio-economic development of communities.
To address the needs of the different parties, Kakooza advocates for: preservation of culture using an archival base, educational institutions, museums and cultural centres; negotiated use of TCEs over issues such as economic and moral rights, as well as respecting sacred rites; developing a partnership for TCE usage with key partners being the state and traditional communities, and encouraging creative content.
The Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization to the Convention on Biological Diversity (2010), as well as ongoing negotiations within the WIPO Intergovernmental Committee on Genetic Resources and Intellectual Property, Genetic Resources and Folklore (IGC) to design an international instrument(s) for the protection of TK and TCEs, are recent reflections of an explicit commitment by the international community to protect the intellectual rights of indigenous peoples and local communities.