Wednesday, 26 June 2013

Indigenous Art/Culture, Tourism and the Law – Global Trends, Options and Challenges: A Conference Report on all things IP-related (3)

At the Travel & Tourism Law Committee (7th Annual Business Law Conference of the Section on Business Law ), Professor Uche Ewelukwa
Professor Uche Ewelukwa
stated that tourism, whilst offering several advantages, posed serious threat to cultural property. She cited the cases of Indiana Jones and the Kingdom of the Crystal Skull, Tribal-inspired Prints, Hoodia and Southern Africa, Swartzier Madagascariensis – Zimbabwe, Nok Terracotta pieces etc. as examples of the misappropriation of traditional knowledge and other forms of cultural property by the tourism industry.

As options for the protection of cultural property, Professor Ewelukwa makes the following suggestions: use of current intellectual property framework; use of customary law frameworks; implementation of sui generis legislation or an “authentication model” (similar to the system of collective marks and certification marks); use of private law solutions (e.g.  contracts, knowledge databases and registries); use of complementary laws (e.g. moral rights and unfair competition law) etc.

Against arguments that the extension of IP to traditional knowledge/cultural property will lead to shameless commercialization, move cultural property from the public domain to the private domain, and ultimately stifle creativity and improvement of the said property since the public will be denied access, Professor Ewelukwa opines that indigenous groups have successfully brought copyright infringement action against those who sought to make and/or sell products that incorporated aboriginal designs as exemplified in the case of The Navajo Nation v. Urban Outfitters Inc. et al (Case number 1:12-cv-00195).


Professor Ewelukwa concluded by stating that there are several questions which Africans and Nigerians must ask viz: What are the IP needs and expectations of holders of traditional knowledge/cultural property? Is the current intellectual property system adequate to protect the existing cultural property? Are there any other regimes of protection outside the current IP regime? Are we using the flexibilities in TRIPS to protect TKs? What about regional norms? Why is it that only a handful of African countries have ratified the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore?

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