In much of the world, the possibility of providing protection for traditional knowledge — indigenous music, stories, dances and even genetic material — is a very lively topic.  Even though such protections are a form of intellectual property right that clearly impacts issues of scholarship and copyright, I have not previously dealt with these discussions in this space.  That is largely because of the great uncertainty I feel about the whole issue of whether such protections are appropriate and what form they should take.

It is not difficulty to find stories of how native peoples have been exploited for economic gain by companies that will appropriate and market traditional knowledge forms — everything from music to medicine.  Such exploitation causes one to think that there is a hole in copyright laws that needs to be filled.  But any attempt to expand the scope of our copyright protections, which already seem to cover too much and last too long, is likely to have a detrimental effect on scholarship.  Thus I find myself caught between warring impulses — respect for the intellectual creations of native peoples  versus the desire to foster widespread knowledge of different cultures .  This latter impulse is a corollary of the general belief that a robust public domain is a good thing overall for all societies.

I was finally prompted to address the topic of traditional knowledge by this announcement that Ghana plans to start enforcing provisions of its 2005 copyright law that create fairly strict protections for “folklore.”  This short blog post led me to look at the Ghana Copyright Act itself to see how it address some of the problems that seem inherent in such protection.

One obvious problem is how to define folklore, which is the term used in the Ghanaian law.  The definition given at the end of the Ghanaian act is very broad and not terribly specific.  Because so many things fall into the category of traditional knowledge, it is important to have clear definitions of the subject matter of protection.  Does “folklore” in Ghana, for example, encompass dance?  What about traditional medicines?  Should such diverse subject matter be treated under the same law as works of authorship?

Another issue is very clearly dealt with by the Ghanaian law — the issue of who owns folklore.  In section 4 of the attached document, the law states that “the rights of folklore are vested in the President on behalf of and in trust for the people of the Republic.”  However noble the intent, this is an assertion of state ownership over folklore, an assertion which is always open to the challenge about whether the state really best represents the interests of all of the varied and ancient peoples who created this wisdom.  Also, because it is the state that holds these rights, the protection of folklore is perpetual.

The protections provided for folklore in Ghana are the same as the copyrights vested in more typical subject matter.  Rights in folklore are also subject to the same set of exceptions as Ghana provides for other content, and these are a pretty good set of user rights (found in section 19).  No permission is needed, for example, for purely private and personal uses, for quotation in another work (as long as attribution is provided), for use in teaching and “public education” and for news reports, including broadcasts.  Many of the uses that would be important to scholars of Ghanaian folklore would be included in these exceptions except for the fact that they are so often limited by the caveat that for the exception to apply the work must have been “made public.”  The problem here is that so much indigenous knowledge may not have been made public in any recognizable way, so scholars of these works may still be forced to seek permission.

To get permission one must apply to a government-run National Folklore Board, established in sections 59-64.  Since this Board will both approve or reject the proposed use and set fees, its potential for skewing research into Ghanaian culture seems tremendous.  The statements made in this longer article about folklore from the Minister of Chieftaincy and Culture  are very frank in saying that the goal of the board is to exploit folklore as an economic asset of the nation and to “repackage” culture as a source of employment.  It seems possible and even likely that those goals could conflict with efforts to study Ghanaian culture and to make its subtleties better known amongst students of Africa around the world.  Would the Board deny permission, for example, for a scholarly work that is critical of aspects of Ghanaian folklore on the grounds that such an evaluation could cause economic damage?

Even as Ghana asserts stepped up enforcement of its rules regarding folklore, South Africa is considering new protections for traditional knowledge or “Indigenous Knowledge Systems,” about which more information can be found here, here and here.  Ghana’ approach is apparently quite unusual, so comparison with the South African proposal can be very instructive.  And finally, a fuller expression of the reservations one might have about all these attempts to restrict use of traditional knowledge can be inferred, I think, from this eloquent celebration of the benefits of Open Folklore Project in the United States.  I am still unsure how to balance the two approaches, but I remain convinced that balance is what is needed.

 

7 Responses to Can we protect “traditional knowledge?” Should we?

  1. Will says:

    This is an important topic, and a very difficult one, but I believe, based on years of working with Indigenous Australian culture, that we must absolutely respect indigenous concepts of what we call “intellectual property.” To say that scholars have a “right” to possess certain kinds of knowledge and to transmit it, publish it, study it, is to violate the very principles of social organizations in cultures where some kinds of knowledge are inherently restricted. Europeans colonized Australia under a concept of property law that said that because the indigenes didn’t “improve” the land by farming and building, they had no right to it. To say that we can usurp their knowledge (which Aboriginal people gloss in English as “law”) and share it against their wishes is a comparable violation of sovereignty. (Sorry if that sounds over the top.) Try Elizabeth Burns-Coleman, Aboriginal Art, Identity and Appropriation (Ashgate, 2005); Jane E. Anderson, Law, Knowledge, Culture: the production of indigenous knowledge in intellectual property law (Elgar, 2009) and for an easier read, Vivien Johnson, Once Upon a Time in Papunya (New South/UNSW Press, 2010).

    I’ve never left a comment here before, but I’ve enjoyed your brilliant work for a long time now. Thanks.

  2. [...] Posted on September 21, 2010 by openedblogger| Leave a comment Kevin Smith has a new post on copyright and folklore in Ghana. From the post: Another issue is very clearly [...]

  3. [...] Intellectual Property, News alerts, Publications, Traditional knowledge Leave a Comment  Can we protect “traditional knowledge?” Should we? Scholarly Communications @ Duke, 15 September [...]

  4. Soul says:

    Firstly, what needs to be interrogated is the perception that indigenous knowledges should be ‘opened up’ for ‘the common good’ (whose public good is it anyway if it is represented beyong the context of the community and thereby exposed to free abuse?) while on the other hand the developed world is busy patenting everything they have, including the knowledge appropriated from suhc indigenous communities. Secondly, one worries as to who actually makes these representations of indigenous knowledges for the ‘common good’, the indigenous people or the self acclaimed knowledge and development experts who intend to make representations of indigenous knowledges on behalf of local communities (thereby perpetuating the various processes by which knowledge generated in interaction with indigenous communities is representated by the ‘other’ in form that do not necessarily align with reality on the ground.

  5. Sally says:

    I never like this argument about balance and the spread of knowledge for the common good. I always like to ask the question, for whose common good? It is never the Indigenous communities who reap any of these benefits but the big drug companies or the recording label or the Governments who seem to benefit from this open sourcing, common good, ” balanced” approach. Meanwhile Indigenous communities live in third world conditions not being able to negotiate in commercial dealings due to their lack of language skills, education, and health caused by poverty. If people would listen to what Indigenous communities want then maybe they would hear that Indigenous peoples do not see any other option other than to protect what is traditionally their knowledge so that they can, if they choose, to participate in the commercial world to improve their living standards.

  6. Ahrash says:

    Interesting news from Ghana. My thinking on this has evolved a bit over the past few years, but I still think a “some rights reserved” approach, negotiated among the interested parties and harmonized as much as possible for international interoperability, is the way to go. You can read further here (http://journals.cambridge.org/action/displayAbstract?fromPage=online&aid=346256), if you have access to the Journal of Cultural Property, or access the draft version here (http://www.alexandriaarchive.org/IJCP%20Article%20FINAL_share.pdf).

  7. [...] my only previous foray into the issues of protection for traditional knowledge, I was quite critical of the legal regime used in Ghana to claim control and profit over the [...]