TCEs AND CONTENT CREATION

?? TCEs are a relevant and complex aspect of Intellectual Property. In the african context, the acknowledgement, protection and monetisation of TCEs is crucial in the development of sustainable IP practices in Africa. This is due to the evident and deep cultural heritage among african societies.

Overtime, African Intellectual Property Practicioners, have consistently brought up this issue as a focal point in reforming IP practices on the continent.

So what are TCEs and why do they matter to us?

According to a report by WIPO: Traditional cultural expressions, are often the product of inter-generational and fluid social and communal creative processes, they reflect and identify a community’s history, cultural, social identity, and values.

Characteristics of traditional cultural expressions (TCEs)/folklore

In general, it may be said that TCEs/folklore;

?? are handed down from one generation to another, either orally or by imitation

?? reflect a community’s cultural and social identity

?? consist of characteristic elements of a community’s heritage

?? are made by ‘authors unknown’ and/or by communities and/or by individuals communally recognized as having the right, responsibility or permission to do so

?? are often not created for commercial purposes, but as vehicles for religious and cultural expression

?? are constantly evolving, developing and being recreated within the community

From an IP perspective, in this dynamic and creative context it is often difficult to know what constitutes independent creation. Yet, under current copyright law, a contemporary adaptation or arrangement of old and preexisting traditional materials can often be sufficiently original to qualify as a protected copyright work. - WIPO

Efforts to Protect TCEs in Africa

?? Sui Generis Protection Systems:

African countries are exploring sui generis systems tailored to protect TCEs. These systems aim to recognize the unique characteristics of TCEs and provide appropriate legal protection and mechanisms for benefit-sharing.

?? Regional and International Initiatives:

The African Regional Intellectual Property Organization (ARIPO) and the Organisation Africaine de la Propriété Intellectuelle (OAPI) are regional bodies working to harmonize and strengthen IP laws to better protect TCEs.

Internationally, the World Intellectual Property Organization (WIPO) is actively involved in developing frameworks for the protection of TCEs, with significant input from African nations.

?? National Legislation and Policies:

Some African countries have enacted laws specifically designed to protect TCEs. For example, South Africa's Intellectual Property Laws Amendment Act aims to integrate the protection of indigenous knowledge into existing IP frameworks.

Practical Approaches for Content Creators and Stakeholders

?? Community Engagement and Consent:

Content creators should engage with communities, seeking their prior informed consent before using their TCEs. This ensures respect for the community’s rights and fosters mutual respect.

?? Benefit-Sharing Mechanisms:

Establishing benefit-sharing mechanisms ensures that communities are fairly compensated for the use of their TCEs. This could include financial compensation, community development projects, or other mutually beneficial arrangements.

?? Cultural Appreciation and Respect:

Creators and businesses should approach TCEs with cultural sensitivity, striving to appreciate rather than appropriate. This involves understanding the cultural significance of the expressions and ensuring their use is respectful and contextually appropriate.

Case Studies and Examples

?? Maasai Intellectual Property Initiative:

The Maasai community has launched initiatives to protect their cultural symbols and demand compensation from companies that use their traditional attire and imagery without permission.

?? African Fashion and Design:

African designers are increasingly asserting their IP rights to traditional designs, promoting local craftsmanship, and challenging international brands that appropriate African aesthetics without acknowledgment or compensation.

?? Music and Dance:

Efforts are being made to protect traditional African music and dance through documentation and legal protections, ensuring that these expressions are credited and that originating communities benefit from their use.

Can you think of situations where TCEs could be relevant in your own practice?

Much Love,

Analo Kanga ??