The Positive Protection of Traditional Cultural Expressions by Intellectual Property Rights in Africa

Abstract

This chapter critically evaluates the positive protection of traditional cultural expressions by examining how folklore is protected by intellectual property rights in African states, including South Africa, Nigeria, Ghana and Kenya. The protection of traditional cultural expressions by intellectual property rights is generally considered as positive protection if its primary objective is to endow proprietary rights on the creators of traditional cultural expressions, usually but not exclusively, on communities of origin, to exploit the traditional cultural expressions through determining how and when third parties will have access to their traditional cultural expressions. Since all African states recognise intellectual property rights, two broad possibilities—albeit loosely understood—exist in this regard. The first possibility is the use—especially through judicial interpretation that some traditional cultural expressions can be protected by some or all intellectual property rights. The second group consists of states that through recent legislation recognise new rights protecting traditional cultural expressions as intellectual property rights. In line with this broad framework, this chapter is organised as follows. In the next part, an overview of the protection of traditional cultural expressions in certain African states is undertaken. The intellectual property rights framework in these states suggests that traditional cultural expressions can be protected by all or some of the rights. In the third section, a consideration of recent legislative reform in South Africa and Kenya reveals how traditional cultural expressions can be protected by rights of the use of intellectual property rights to protect traditional cultural expressions. With respect to South Africa, it is to be noted that on 6 September 2013, South Africa achieved a milestone by using the MMA to restrict the use of the words: ‘Rooibos; Red Bush; Rooibostee; Roosibos Tea; Rooitee and Rooibosch’ in connection with any trade, business, profession or occupation or in connection with a trademark, mark or trade description applied to goods by unauthorised third parties. In addition, the dual-track engagement through, on one hand, IPLAB 2011 and, on the other hand, the Draft Protection of Traditional Knowledge Bill yielded IPLAA 2013, which came into force on 10 December 2013. In Kenya, the PTKCE 2016, which came into force on 26 September 2016, represents what may appear unorthodox in the protection of traditional cultural expressions.