The story about the use of Ghana kente without consent in the Black Panther movie as narrated in both traditional and social media has drawn the needed interest to the subject of protecting Ghana’s Kente internationally. I must commend the Folklore Board for attempting to “stir the hornets’ nest”. In recent times, the Board has made efforts to create awareness on what constitutes Folklore as well as the duties of the Board. Among others, its duties relate to the collection of royalties for the commercial use of Ghana’s Folklore for and on behalf of the State. This drive is expected to generate much needed income and to curb the abuse and illegal exploitation of Ghana’s Folklore.
One of such exploitation without the relevant authorization from the Folklore Board is the overt use of Ghana’s Kente, adinkra symbols and Asante artefacts in the much heralded movie Black Panther. A simple show of respect by seeking the consent of owners of the Folklore could have avoided this current debate and related embarrassment to the producers of the movie. Again, Ghana would also have received the requite royalties, and I believe Ghanaians would be proud to see such positive exhibition of Ghana Folklore. Remember, it is not only about the money but also respect for the communities that developed, sustained and passed on the knowledge.
On many occasions, we have heard about the commercial exploitation, without consent, of Africa’s traditional knowledge and folklore, and Ghana’s folklore is no exception. It is to curb such unauthorized exploitation and abuse that since the year 2000, there have been on-going negotiations at the World Intellectual Property Organization to develop an international legal instrument which may be binding on member states and protect such rights of predominantly vulnerable states. The delay in the text based negotiations is an indication of how controversial the protection of traditional knowledge and folklore is.
One may ask, why the difficulty in protecting this type of knowledge while all other forms of knowledge have found space for protection under the current intellectual property regime. As WIPO rightly put it, “the current international system for protecting intellectual property was fashioned during the age of industrialization in the West and developed subsequently in line with perceived needs of technologically advanced societies”. Creativity and innovation were rewarded with some form of “monopoly” in its exploitation but for a limited period.
Traditional Knowledge and Folklore on the other hand is a living body of knowledge that is developed, sustained and passed on from one generation to the other. Protection of that type of knowledge could not be limited as it progresses over time. Such endless protection was probably never envisaged and was never catered for in the IP system.
The lack of protection triggered the adverse exploitation and abuse of the “free bundle of knowledge” without due recourse to persons and communities who developed and sustained the knowledge, meanwhile other forms of creativity were being rewarded and encouraged under the IP system. Therefore, it is not surprising that the exploiters of traditional knowledge and folklore are reluctant to see progress made in the negotiations at the international arena.
With such tumultuous battle for the protection of Traditional Knowledge and Folklore at the international stage, what happens to communities whose knowledge is blatantly being abused? Efforts have been made in some jurisdictions including Ghana, to salvage what they can make of their traditional knowledge and folklore. We have heard or read about some success stories from India, South Africa, Panama, Ethiopia, among others. Each story is unique but the bottom line is the abuse and exploitation of the traditional knowledge and folklore of less privileged communities. Their success stories, we are told, also resulted from the key and immeasurable support of Civil Society Organizations. Now let’s turn to Ghana and the current exploitation of the Ghana Kente without the relevant permission of the Folklore Board…
Does Ghana have any form of protection for Folklore?
The closest to any form of international legal regime for the protection of Folklore, where Ghana is concerned, is the ARIPO Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore. Curiously, even though Ghana has been a signatory to the instrument since 2010, the document has not been ratified.
Locally, there is no legislation for the protection of traditional knowledge in general. Fortunately, Folklore, including kente and the adinkra symbols are protected under the Copyright laws of Ghana. Shouldn’t that be enough? Well the law is enforceable only in Ghana. A country cannot impose its laws on other countries. The question therefore arises as to what happens to infringements outside the jurisdiction?
Supposing Marvel Studios infringed on the rights of Ghana in its kente and other folklore, by commercially exploiting the Kente, adinkra and Asante artefacts without consent, how can Ghana enforce its local laws against a business which has no connections whatsoever to Ghana? Are there any other international instruments that could protect Ghana’s kente?
One could argue that the UN Declaration on the Rights of Indigenous Peoples may provide some form of protection for the Kente. In that case, Ghana would have to prove that the kente weavers at Bonwire and the producers of the other folklore are indigenous people. Will Ghana also be able to prove that the peoples’ culture is being threatened by the use of kente in attires in the Black Panther movie, considering the fact that Ghanaians are reputed for giving out kente stoles to foreign visitors? This argument will also apply to any resort to the Universal Declarations on Human Rights and Cultural Diversity.
What about existing treaties and conventions? Let’s consider the Berne Agreement for the Protection of Literary and Artistic Works. Kente could be described as anonymous works, that is, work whose author(s) is unknown. Under Article 7(3) of the Berne Convention, such works have a minimum protection of fifty (50) years from the publication date. Some countries protect such works for seventy (70) or more years. Again, even though the Berne Convention has international application, the duration for protection is limited and technically, kente could be deemed to be in the public domain in some jurisdictions. In such jurisdictions kente could be accessible for commercial exploitation by all including Marvel Studios.
A very robust international legally binding instrument is the Agreement on Trade Related Aspects of Intellectual Property Rights under the WTO. Articles 22, 23 and 24 of the Agreement provides for the protection of Geographical Indications (GI). Article 24(9) is to the effect that, so long as the product remains protected as GI in the country of origin, the product remains protected in other member states. In that case, assuming kente were to be protected under GI, it would assume that international protection so long as it remained protected as a GI and such commercial exploitation without consent by Marvel Studios could have easily been enforced. Unfortunately, kente is not protected as a GI in Ghana.
It is rather unfortunate that Ghana enacted its Geographical Indications law in 2003 yet the law has never been implemented. Ghana never passed any Legislative Instrument to implement the law. As it stands now, Ghana is quite vulnerable to the giants of the developed world who blatantly exploit and abuse Ghana’s Folklore. That is not to say that, the use of the kente and other Folklore in the Black Panther movie is an abuse of Ghana’s folklore. One could argue that on the contrary, it promoted Ghana’s kente in the most positive manner. However, it did so without due regard and respect to the owners or creators of the folklore exploited.
What are Ghana’s chances of a successful legal battle against Marvel Studios?
It is a very tricky question but all is not lost. As a Ghanaian, I pray we are able to bring Marvel Studios to the negotiation table but as an IP practitioner, I do have some concerns regarding the legal maneuvering Ghana may need to achieve this purpose. Could Ghana take a cue from South Africa / Disney case in respect of the copyright infringement claim of the Lion Sleeps Tonight? Do you remember the folklore legal battles from other jurisdictions and the role played by Civil Society Organizations? Maybe, it is time for the CSOs to lend a helping hand. CSOs could draw global attention to the commercial exploitation without consent of Ghana’s Folklore and facilitate the course of the case.
Lessons Learnt
Indeed, this is a wake-up call for Ghana to reexamine the intellectual property regime and to direct its attention to areas that are relatively more beneficial to its people. It is rather surprising and unfortunate that, Ghana has not yet embraced some of the international legal instruments directed at benefiting developing and least developed countries such as the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising from their Utilization. The Protocol requires users of genetic resources to share benefits with the source country. A typical example is the use of Ghana cocoa in the production of chocolates in countries such as Japan and Switzerland. Do you remember “Ghana Chocolate” from Japan? It was a topical issue, quite recently, a conversation started by the GIPC.
Additionally, sourcing cocoa from Ghana may result in some benefit sharing under the Nagoya Protocol. Personally, I am not aware of any compensation or benefit received from Japan after over forty years of sourcing cocoa from Ghana for the Ghana chocolate, rather it has blatantly registered “Ghana Chocolate” as a trademark.
Ghana’s cocoa is reputed to be of high quality and could probably be protected as a GI. Again Ghana’s GI law cannot be implemented without the supporting legislative Instrument. What about the Swakopmund Protocol which could at least protect Ghana’s Traditional Knowledge and Folklore at the Regional level? The relevant state institutions can do more for the people of Ghana. They could take a cue from the Folklore Board and take the bull by the horns. It may be a herculean task but it may be worth trying.
Conclusion
In conclusion, I believe any legal action against Marvel Studios and any other multinational company may be quite challenging, considering the current apparent inadequacy of the total body of Intellectual Property laws of Ghana. However, with adequate research, skilled legal persons and support from CSOs, success could be achieved. It will be interesting to follow how this matter progresses. I wish the Folklore Board the very best and I pray they are able to make a positive impact.