Another very interesting and thought provoking post from Tony Kakooza (Sipi Law) in Uganda who has now joined Afro-IPs blogging team:
Deriving Copyright from Folklore:
Uganda’s Hip-Hop President and the battle for cultural ownership.
The
Office of the Registrar of Copyrights in Uganda has been handling a rather
interesting case involving the President of Uganda in what can be seen as a
battle over ownership of culture. The history of this dispute goes back to the
Presidential campaigns in 2010:
In
October 2010, the President employed the music production prowess of Kampala
music artist Richard Kawesa to record a rap song within State House that was
titled: Do you want another Rap? This
was an innovative technique to especially capture the hearts of the young
voters before the looming elections the following year. The rap song achieved
its purpose, with President Museveni taking more than two-thirds of the electoral
vote (approx. 68%) in February 2011.
Conversant
of his Intellectual Property rights and the huge success that would follow the
song (See YouTube video here), the President decided to
register his copyright much to the chagrin of the Ankole community of which he
is a part of. Two senior members of the Ankole Community, Mr. Mwambusya Ndebesa
and Dr. Katono Nzarwa Deo filed an objection to the registration of copyright
in the Registrar’s Office at the Uganda Registration and Services Bureau. The
basis of their objection, briefly, was that the rap song is not original,
having been derived from Ankole folklore which is in the public domain and
constituting public property. The argument was that the poems from which the
song derives, had been recited in the Ankole community for hundreds of years
and thus the President had no right to grab ownership of the poems through his
rap song.
This
matter is highly intriguing for a number of reasons: The Uganda Copyright and Neighbouring Rights Act of 2006 has a flimsy provision for Traditional Cultural
Expressions/Folklore. Section 5 simply lists Traditional Folklore as part of
the works eligible for Copyright protection without any appreciation as to the
underlying differences between Folklore and works of copyright. Secondly, as
this matter raised alarming bells over the appropriation of culture, again we
find ourselves asking – who owns culture
and who controls the means of production
of culture such as through Cultural expressions? There have been on-going
debates on related questions globally for over twenty years and WIPO is still
tussling over the matter through the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore(IGC Committee) with little progress to date.
It
is noteworthy that the very person appropriating cultural expressions in this
matter was the President of Uganda, but would it have made any difference if it
had been someone outside of the Ankole community? Eventually, in her ruling on
the objection to Copyright registration (delivered February 14, 2013), the
Assistant Registrar of Copyright, Ms. Mercy K. Kainobwisho granted the
President’s registration of copyright as a derivative work.
Comment:
Afro Leo wonders how the two draft pieces of TK legislation competing for Zuma's pen in RSA would handle this situation? Would the community (assuming it could be identified) be able to enforce their rights (assuming they could be identified) under each piece of legislation and how would it work? And could it be recorded? It is interesting that President Museveni opted to have the work registered in his own name.
If you are viewing this on the blog (and not via email) you can listen to the Rap (presumably under licence or an infringement exception!) below:
Comment:
Afro Leo wonders how the two draft pieces of TK legislation competing for Zuma's pen in RSA would handle this situation? Would the community (assuming it could be identified) be able to enforce their rights (assuming they could be identified) under each piece of legislation and how would it work? And could it be recorded? It is interesting that President Museveni opted to have the work registered in his own name.
If you are viewing this on the blog (and not via email) you can listen to the Rap (presumably under licence or an infringement exception!) below:
