WIPO defines traditional knowledge as " tradition-based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields.“ The term, "tradition-based" in this case refers to creations, innovations, and cultural expression which have been transmitted from generation to generation. Traditional Knowlede is the part of cultural identity of indigenous communities. It provides the ways by which human society can survive in current hostile environment. Intertwined within practical solution, they transmit history, beliefs, aesthetics, ethics and traditions of particular people
Traditional Knowledge embraces traditional cultural expressions within its ambit, and includes distinctive signs and symbols associated with traditional knowledge such as information on the use of biological and other medical treatment, literature, dance, folk lore, songs, Tales, Designs, Handicraft, Ceremonies and many other artistic expressions. However Traditional Cultural Expressions may be considered as the forms in which traditional culture is expressed which form part of the identity and heritage of a traditional or indigenous community which are passed down from generation to generation.
TK comprises of knowledge which has been developed in the past but which continues to be developed. TK is not static, it evolves and generates new information as a result of improvement to changing circumstances
The context of TK varies differently, TK maybe codified i.e formalised for example Textile designs. A great part of TK is non-codified such as folk, indigenous medicine which is based on trial and error and to successive generations through oral tradition. TK maybe possessed by individuals by some members of a group e.g healing practices and rituals and it maybe possessed by all members of a group e.g the knowledge on herbal home remedies which is held by millions of elders
Why Should Traditional Knowledge be Protected?
⦁ The loss of the life style of their traditional knowledge
⦁ Lack of respect for traditional knowledge and the holders of traditional knowledge
⦁ The misappropriation of traditional knowledge.
⦁ Equity consideration
⦁ Conservation of the environment, biodiversity and sustainable agricultural practices
⦁ To raise the profile of the knowledge and the people entrusted in it both within and outside the communities
⦁ Prevention of appropriation by unauthorized parties or avoiding "bio-piracy"
Benefits of Protecting Traditional Knowledge
Traditional Knowledge helps to. As a result, traditional knowledge:
- recognises the knowledge, innovations, and practice of indigenous and local community around the world.
- reflects community interest as some community depends on their traditional knowledge for survival.
- encourages preservation of knowledge and practice orally passed from one generation to another in a locality.
How did Black Panther Infringe on the Kente as a kind of Traditional Knowledge
⦁ Is the fabric a traditional knowledge?
⦁ How was the fabric used and what was it used for?
⦁ How has its usage contributed to infringement?
⦁ Addressing divergent perspectives towards TK infringement.
Using a traditional knowledge, belonging to a distinct ethnic group or a particular country is normally not an infringement; Unless it contains 3 essential elements that if at least, one isn’t followed, vitiates (nullifies) the extent to which it was being used. They are:
- Consent/ Permission
- Credit
- Compensation
Section 63 of The Copyright Act empowers the Ghana National Folklore Board, (a body under Ministry of Culture and Tourism) “to preserve and monitor the use of expressions of folklore in the Republic. Also, anyone who intends to use folklore for any purpose, other than as permitted. Under section 19 of this Act (which covers permission for the use of kente by individuals and for public interests purposes such as training, education, news reporting etc.), is required to apply to the Board for permission in the prescribed form and the person shall pay a fee that the Board may determine”.
Being the fact that the Fabric is a Traditional Cultural Expression (TCE) under folklore; These Conclusions could be drawn as:
- Tchalla, the main character wore it.
- It was for adaptation in public domain and for commercial purposes
- No permission sought for the use from the Ghanaian National Folklore Board
- No credit given to the Ghana people especially Ashante and ewe tribe in particular
- Neither was Ghana compensated after the bid to gain consent and credit had been exhausted.
Is the Fabric a Traditional Knowledge?
Traditional knowledge present respect, power and responsibility. The dress has to be earned, gifted to a leader in whom the community has placed their trust. When it becomes a cheap commodity anyone can buy if not; all of its cultural expressions. The Scope of TK is so wide that it covers folklores, Innovations ,Agricultural patterns, etc.
Section 76 of the Ghana Copyright Act provides on "folklore" meaning
“The literary, artistic and scientific expressions belonging to the cultural heritage of Ghana which are created, preserved and developed by ethnic communities of Ghana or by an unidentified Ghanaian author, and includes kente, and adinkra designs, where the author of the designs are not known, and any similar work designated under this Act to be works of folklore;"
Thus, by implication, Kente Design is a Folklore .
The Use of the Kente Fabric in Black Panther
The movie used popular Ghanaian designs like kente which T’Challa, the Black Panther wears in one of the scenes. Kente is made by a kind of strip-weaving, which features distinctive designs and colours. It is usually associated with wealth and celebration. The Kente clothe is produced by two ethnic groups in Ghana - the Asante and the Ewe. Kente is also protected as “folklore” under Ghana’s Copyright Act 2005 with the rights vested in the President on behalf of the people of Ghana." - (IPKitten)
As for its usage, it was used on a commercial large scale purpose and adaptation in public domain; with the purpose of making profit .This was seen in its successful record sales in box office
Read: The Legal Side to Understanding Company Liquidation
Is a traditional knowledge usable for commercial purposes and public communication and adaptation?
⦁ Was the traditional knowledge used for reasons in section 19?
⦁ Was there due permission of use applied for and granted by the Ghana National Folklore Board?
⦁ The Ghana National Folklore Board, which is under the Ministry of Tourism, Arts and Culture is empowered by section 63 to preserve and monitor the use of expressions of folklore in the Republic.
⦁ Section 19 of this Act covers permission for the use of kente by individuals and for public interests purposes such as training, education, news reporting etc.
⦁ Section 4 provides for kente and other expressions of folklore from reproduction, communication to the public, adaptation and other transformation.
What of Section 19 (f) of the Ghanaian Copyright Act ?
(f) the reproduction of works of art or architecture in an audio-visual work for cinema or television or in a broadcast by television and the communication to the public of any of those works of art or architecture if those works are:
(i) permanently located in a place where they can be viewed by the public, or
(ii) included in an audio-visual work for cinema or television only by way of background or as incidental to essential matters represented,
Conclusion
It is obvious from all these that the use of the kente design and fabric is an infringement on the indigenous and traditional knowledge of the people of Ghana. Generally, traditional knowledge should be protected since it's the heritage of a particular community. It shouldn't be seen as falling in the public domain. This is also unacceptable because knowledge is not rendered traditional due to antiquity but due to the fact that it has been developed, sustained and passed on within a traditional community, and is passed between generations.
Prior informed Consent must be obtained and there must be proper recognition of the rights of the original traditional knowledge holders. Also, government in each jurisdiction should put measures in place to prevent the unauthorized acquisition of rights by third parties over traditional knowledge. This can be done through a sui generis system of protection.
⦁ Recognition of value and promotion of respect for traditional knowledge systems.
⦁ Misappropriation of traditional knowledge and other unfair and inequitable uses.
⦁ Protection of tradition based creativity and innovation- to ensure preservation of traditional practices and cultures
⦁ Support of traditional knowledge systems and empowerment of traditional knowledge holders.- government, NGOs should support both financially and morally to ensure development. TK can help solve unsolved problems and help in advancement of the society
⦁ Promotion of equitable benefit sharing from use of traditional knowledge.
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