In October 2010, Yoweri Museveni, the President of Uganda recorded a rap song titled: “Do You Want Another Rap?” as part of his re-election campaign to capture the imagination of young voters. The song was a hit and Museveni re-elected as President. However when Museveni applied for copyright registration of the song, members of the Ankole community filed an objection stating that the song was derived from Ankole folklore which is in the public domain and thus the President cannot assert an exclusive right of ownership over Ankole poems through his rap song. The Registrar of Copyright in Uganda eventually allowed Museveni’s copyright application for registration.
This case triggered Dr. Anthony Conrad K. Kakooza’s academic interest in the area of traditional cultural expressions (TCEs) and whether TCEs should be recognized within the domain of intellectual property (IP) law. Kakooza argues that the communal nature of ownership and difficulty in defining TCEs have contributed to their abuse by all users. In recent years, issues have arisen concerning who can assert a right to define the normative use of a cultural product; or who may give permission to copy a cultural product. The issue of control does not arise when source-community members have exclusive possession of their cultural products and use them in a consensual manner. Rather, conflict may appear in the case of contested or nonconforming use by source-community members or in the case of any use by non-members.
In his talk at Strathmore University on July 9th 2016, Dr. Anthony Conrad K. Kakooza critically examined the present inadequate legal recognition and, ultimately, insufficient international recognition and protection of TCEs as quasi-IP. The current origin-based IP regimes are considered as inadequate in protecting TCEs which are mainly characterized by communal ownership and absence of fixation. This therefore calls for a specific sui generis regulatory mechanism that can address the interests of all stakeholders with a view of effective utilization of TCEs towards socio-economic development. Kakooza concluded his talk by making recommendations on how African countries can reform existing IP regimes to address these quasi-IP related conflicts between individuals amongst themselves, between individuals and communities and between two or more countries.
Dr. Anthony Conrad K. Kakooza received his Doctor of Juridical Science (J.S.D) from University of Illinois at Urbana-Champaign and holds a Master of Laws degree (LL.M.) from Warwick University in the United Kingdom (UK) where he studied International Economic Law which a focus on IP rights enforcement. He is currently the Dean of the Faculty of Law at Uganda Christian University where he has taught IP law since 2003.
In the African context, some of the trans-border quasi-IP related conflicts highlighted in Kakooza’s presentation range from the Agbadza and Gahu traditional drum dances in Ghana, Togo and Benin to the Kente cloth designs of Ghana and Cote D’Ivoire, the ‘Mbube’ song of the Zulu in South Africa that was later sang by Solomon Linda as ‘Wimoweh’ then adapted as ‘The Lion Sleeps Tonight’ in Walt Disney’s movie Lion King, the Kenyan name “Kikoy” registered as a trademark in the UK and successfully opposed by Kenyan Government, Anidjo Makou and Gnonnou Non Kpassou Dogbe songs from Benin.
In his presentation, Kakooza made two key recommendations for linking the ‘mine by right’ to the ‘ours by right’ with regard to quasi-IP. Firstly, the establishment of a ‘Cultural Authority’ to oversee management, enforcement and regulation of TCE and TK usage. It’s membership is crucial with the primary role of fostering negotiated use of quasi-IP through licensing hence controlled cultural evolution and exploitation. Secondly, the adoption of a legislative approach similar to Burundi in addressing quasi-IP conflicts through IP law. Article 260 of the Law relating to Industrial Properties in Burundi states that a local community which occupies both part of the territory of Burundi and part of the territory of a neighbouring country may acquire rights in its quasi-IP and enforce them in Burundi. Of particular interest, it elaborates that if the community’s quasi-IP is also protected in the neighbouring country, the registration and protection of such quasi-IP in the territory of Burundi shall not prevent this same community from acquiring rights in the same quasi-IP and enforcing them in the neighbouring country in question.
The talk was well received with a mixed audience that included students, faculty, IP practitioners and members of the public. For a NERG fellow such as myself, one issue arising from Kakooza’s presentation is the most appropriate legal and regulatory mechanism to control the use of quasi-IP from older generations to the present day so as to determine best practices for the future. The relationship between TK, IP, and innovation has been and continues to be a focal point of Open AIR’s research. The Distinguished Speaker Series at Strathmore University will continue to examine this relationship between IP and innovation with speakers from diverse backgrounds. We are lucky that Dr. Kakooza kicked off what will no doubt be a very successful Series.