At the
Travel & Tourism Law Committee (7th Annual Business Law Conference of the Section
on Business Law ), 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.
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| Professor Uche Ewelukwa |
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?
