Communities and Intellectual Property in Africa: Ownership Openness and
Collaboration
1.1 My presentation examines the meaning of communities and their autonomy
with respect to the intellectual property they produce. Generally I am interested
in the ownership of intellectual property produced by communities because in
many ways the issue of openness and collaboration are closely related to the fact
of ownership.
1.2 One of the unique features of the excellent book Innovation and Intellectual
Property: Collaborative Dynamics in Africa and launched at this event are the
numerous case studies of diverse IP communities ranging from independent
music producers in Egypt; automotive mechanics in Uganda; textile
manufacturers in Ghana; leather product manufacturers in Nigeria; and
traditional healers in South Africa analysed and profiled in different perspectives
brought to the question of ownership openness and collaboration.
1.3 One of the key issues I examine is whether these IP communities own the
intellectual property they produce? Perhaps the appropriate question is whether
our legal systems recognize that communities can own property and further
whether they can own intellectual property? This assertion assumes that we have
a settled understanding of “communities”.
1.4 How do we recognize and valorize communities on an objective? When do we
confer a juridical status on a group of individuals who organize themselves? What
objectives are sufficient to qualify? Do we consider the informal mechanics as
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important as an ethnic group or as important as the Kalula traditional healers who
are from different ethnic groups but organized around traditional medicine?
Contemporary and comparative constitutional design yields three types of
communities: religious linguistic and cultural communities that are considered
worthy of protection. But what really do these terms mean? We are often quite
sure we recognize a religion easily? After all no one would doubt Christianity and
Islam as religions but many would scoff at the suggestion that belief systems
without creed cannon and clergy are really religions. [ aka traditional African
Religions]. We probably will have no problem identifying linguistic communities?
But how do we identify cultural communities if we agree that culture is an
abstraction emanating from beliefs practices values shared understandings and
institutions that give members of a community an identity. We will no doubt
agree that ethnic/indigenous communities are indeed our usual understanding of
a cultural community. If these communities are organized on the basis of blood
descent, are they really much different from other individuals organized around
other social facts such as commercial endeavor? How many of us will agree that
the artisans working in the informal sector in Uganda or the leather shoe
manufacturers in South-eastern Nigeria constitute a juridical community? What
makes a group of people leaving together in a closely knit urban environment less
of a community than members of an ethnic community dispersed throughout a
country? Should we recognize online communities organized around transactions
interest fantasy and relationships? As the internet becomes a cost efficient means
of communication, it is important to understand the challenges for innovation
that arise from interactions in such medium. Are we prepared to recognize online
communities as juridical entities?
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1.7 Another related challenge to the meaning of communities important for IP
collaboration and openness is how we assess the membership of intellectual
property communities in circumstances where individuals and corporate concerns
on account of commercial viability are attracted in a way that challenges the
make-up of communities? From the rooibos community in Northern Cape to the
Adinkrah and Kente producing communities in Ghana ethnic communities who
are engaged in cultural production specific to their geography have drawn in
capital and technology that suggest we rethink the boundaries of communities.
There is it would seem a ‘traditional’ and a ‘modern’ rooibos manufacturing
community that stretch back centuries. To suggest that only the Khoi/San should
be considered the owners of cultural knowledge of rooibos production would be
lo lose sight of the enormous financial cultural and scientific investment into a
product that has become a South African icon. Obviously multiple rooibos
communities have emerged that need more thinking. We may need to ask in this
regard how pure ethnic communities must remain to sustain their legitimacy. We
should be reminded of some of the intractable problems in this area if we
remember the challenges nations encounter in determining who is a citizen or
otherwise.
1.9
I shall now turn to consider whether communities can own property and
also whether they can own communal intellectual property? This question is
important because it would appear that recognition of the ownership of
communities could be related to the incentives for innovation as well as identity
of communities that is important for her members. I suggest also that unless the
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question of ownership is resolved it may be difficult to fully appreciate the
ramifications of openness and collaborations. For example the tendency to
ascribe openness to communities may not fully recognize that such apparent
transactional disposition is out of the abundance of will of the community which
could change in due course.
1.10 The concept of ownership explores and affirms social and legal relationships
between objects and persons ranging from the possibility to exclude third parties
to an affirmation of moral rights. A satisfactory arrangement is where a legal
system recognizes what a person or community recognizes. Communities develop
norms that mediate the relationship of members and third parties to objects. It is
satisfactory when a legal system and a community recognizes a relationship
between an object and a person. On the other hand it is also plausible that a
community’s legal order can recognize these relationships even when the state
does not recognize such a relationship. The manner in which the legal orders of
semi-autonomous entities in a State interact with the state legal system is
described as legal pluralism. Strong legal pluralism recognizes the legal orders of
semi-autonomous entities as co-existing often as equals with other legal orders
while weak legal pluralism incorporates different legal orders within a legal
system and often uses the state legal system as a means of recognition and
application of the legal orders of semi-autonomous entities. While the customary
law of ethnic communities in many states interacts with state legal systems in a
strong pluralistic way, other communities interact in an opposite way that leaves
the recognition of their normative orders at the mercy of the state formal legal
system. Obviously the legal orders of non-ethnic communities interact in a weak
pluralistic way with state legal systems. These two means of interaction of IP
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communities has great significance for communal intellectual property. Weak
legal pluralism for IP communities result in a situation where communities are in
most cases not recognized as owners of their intellectual property. Where
because of deep legal pluralism it would appear that communities are recognized
as owners of communal intellectual property other mechanisms come into play to
attenuate the incidents of ownership.
1.11
Two broad categories of African States can be identified in the way they
treat the ownership of communal intellectual property. The vast number of
African states regards communal intellectual property as part of the common
cultural heritage to be managed by the State. In many of these states the juridical
status of communities is doubtful. Across sub Saharan Africa the dismal record of
the protection of expressions of folklore is traceable to this disconnect between
ownership and control.
1.12 The other tiny group of African States in their national constitutions of
recognize communities as legal constructs but seem unable to properly manifest
this recognition. Two examples are sufficient to illustrate this point. First, South
Africa, where the raging controversy over the best way to protect expressions of
folklore is in reality a disagreement on the nature and extent of the ownership of
communal intellectual property. Should we allow communities to exercise acts of
ownership over their intellectual property or should we do that on their behalf.
Even with the recognition of traditional religious and cultural communities in the
1996 South African Constitution as well as an enhanced status of customary law
one gets the feeling of a legal system uneasy about group rights, perhaps for
understandable reasons. Many would agree that except for black ethnic
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communities group rights are seen through an individual prism. The possibility
that laws norms and protocols that govern the interaction of non-ethnic
communities and their intellectual property will not be recognized by the South
African legal system is indeed high. It is doubtful whether communal intellectual
property would qualify as constitutional property in section 25 of the 1996
Constitution.
Our second example is Kenya. Of all the constitutions it can be argued strenuously
that the Kenyan Constitution recognizes group rights and a special place for
communities. First section 11 of 2010 Constitution of the Republic of Kenya
recognizes culture as the foundation of the nation and as the cumulative
civilization of the Kenyan people and nation and requires the State to promote
the intellectual property rights of the people of Kenya. The same section enjoins
parliament to enact legislation first to ensure communities receive compensation
or royalties for use of their cultures and cultural heritage and secondly to
recognize and protect ownership of indigenous seeds and plant varieties, their
genetic and diverse characteristics and their use by communities in Kenya. Article
40(5) further provides that the State shall support, promote and protect the
intellectual property rights of the people of Kenya. What understanding of a
community runs through the constitution? Just as the constitution does not
define culture it does not define communities but recognizes marginalized
communities as inclusive of indigenous peoples, traditional communities, pastoral
persons and communities as well as communities living at the fringe of the
Kenyan society. It would appear that ethnic communities are at the heart of the
meaning of communities. However communities are social constructs such that
ethnic communities organized around blood or descent are not intrinsically more
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important than communities organized around other social facts such as
geographical contiguity, online perspectives and commercial endeavours. There is
no implicit association of culture with ethnicity. In deed the Kenyan Constitution
uses the term ‘cultural communities’ which in some ways begs the question. Be
that as it may one hopes that the emergent legal framework for the protection of
traditional knowledge in Kenya recognizes the corporate status of at least ethnic
communities and puts them at the centre of this protection while the state
continues to be the regulator and arbiter in this field. Are we not able to imagine
the scenario of the nationalization of all intellectual property and the effect on
innovation.
1.16 It is interesting to note that one of the three future scenarios of the Open
AIR project is wireless engagement recognizing the importance of the internet as
the most powerful infrastructure. It is important that African online IP
communities that emerge from this infrastructure should be recognised. Are our
legal systems able to process the intellectual property that emerges from this
community? Are we sure that we will not be no poorer because of the difficulty of
imagining communities as more than ethnic communities? Can these
communities thrive without a recognition of their legal orders and the spectrum
of ownership rights they may seek to exercise. It is clear that communities will
collaborate and be open at least to her members. It is plausible that their
recognition by the state formal systems as semi-autonomous entities would
enhance collaboration and openness
I Thank You
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