The sui generis and intellectual property protection of expressions of folklore in Africa
Abstract
This thesis articulates an optimum framework for the protection of expressions of
folklore in Africa using a number of African countries – South Africa, Kenya,
Ghana and Nigeria as case studies. This thesis argues that the existing sui
generis and intellectual property rights protection in African countries are grossly
inadequate in protecting expressions of folklore in these countries.
An optimum framework for the protection of expressions of folklore would
constitute a combination of the positive and negative protective model elaborated
and implemented through a human and people's rights framework that recognises
that communities that produce expressions of folklore should own and control
how their intellectual property is protected.
While a positive protective model explores how intellectual property rights such as
copyright, trademarks, designs and performances may protect expressions of
folklore through the endowment of such rights on communities, negative
protective models examine how state and national competent authorities protect
expressions of folklore on behalf of communities.
An optimum framework for the protection of expressions of folklore recognises
that regional and international perspectives are critical for the protection of
folklore in third party countries and expressions of folklore that occur in
contiguous countries. A regional perspective is important for Africa countries
because of two regional intellectual property organisations in Africa (ARIPO –
African Regional Intellectual Property Organisation) and OAPI (African Intellectual
Property Organisation) that have established minimum standards for the
protection of expressions of folklore. Norm setting and standards in international
organisations such as WIPO (World Intellectual Property Organisation); UNESCO
(United Nations Educational Cultural and Scientific Organisation); and the WTO (World Trade Organisation) significantly impact the protection of expressions of
folklore in Africa.
A human and peoples' rights framework explores how national and regional legal
systems in Africa recognise entitlements of communities in the protection of the
expressions of folklore they produce. In this regard, the normative framework of
communities in terms of their customary law is also explored.
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- Law [834]