PROTECTING TRADITIONAL CULTURAL EXPRESSIONS AS INTELLECTUAL PROPERTY ASSETS BY HON. OLOWO OJO AJIBOYE

 

PROTECTING TRADITIONAL CULTURAL EXPRESSIONS AS INTELLECTUAL PROPERTY ASSETS BY HON. OLOWO OJO AJIBOYE[1]

Abstract

Traditional cultural expressions (TCEs) are sitting on a gold mine worth in the latest estimation, billions of dollars. Yet they remain untapped particularly in undeveloped countries like Nigeria. The principal cause of this is all round ignorance. Ignorance is synonymous with darkness and with darkness comes inaction, or the pretence of action. With darkness comes fraud and thievery and their accompanying agents of intellectual property poachers or exploiters. As a consequence, little or no effort is put in place by the people or agencies concerned to recognise the economic importance of TCEs as intellectual property assets and to protect and enforce them as such for the benefit of the source communities and for the nation. This lapse has given rise to cultural appropriators or intellectual property thieves to plunder cultural intellectual property assets worth billions of dollars outside the shores of this country for their own commercial gains to the detriment of the progenitors. The Timbuktu group’s recent attempt to appropriate the word ‘Yoruba’ as its creation further reinforces concerns as to the state of our TCEs and what can be done to protect them from being stolen, exploited or appropriated by external or internal forces for mere economic gains and self-aggrandisements. This Paper therefore interrogates the concepts with a view to evolving practical mechanisms for protecting our traditional cultural expressions to retain their unique identities in today’s fast fusing and globalising world.

Introduction

Recently, the world was taken aback when light fell on sad reality that a UK based fashion house owned by two British nationals had trademarked the word ‘Yoruba’ with the UK Intellectual Property Office in 2015, thus conferring on them the exclusive usage and monopoly of the word for all intents and purpose, to the exclusion of any other person(s) or entity. This generated outrage in the social media space and among intellectuals when the application of a British citizen of Nigerian origin before the UK Intellectual Property Office for the use of the name ‘Yoruba Stars’ to incorporate her UK business was met with stiff objection by the UK company who had earlier trademarked the name. The outrage has since led to an apology and withdrawal of the objection. The incident raised questions as to the proprietary or otherwise of the trademark approvals to a private company in respect of the collective symbol, name and heritage of the Yoruba people by the UK Intellectual Property Office under the UK Trade Mark Act, for purely commercial reasons even to the exclusion of the people who own the symbol in flagrant disregard to the provisions of the Act.  The incidence has also raised concerns as to the state of our traditional cultural expressions in the 21^st century and what can be done to protect them from being stolen, exploited or appropriated by external or internal forces for mere economic gains and self-aggrandisements.  

Protecting traditional cultural expressions is preventing them from undue exploitation, fraud, appropriation or misappropriation from the enemies of the system, either from within or from without. Protecting traditional cultural expressions also entails preserving them from extinction that is, keeping their sanctity by ensuring they are duly passed down from generation to generation in a recurring, never-dying cycle of life.  The customs or traditions of a people cannot be owned. Community cannot be owned by singular individuals. Customs and traditions are running communal streams or wells, from which all in the community, kindred or place drink to their satisfaction and preserved for future generations; a pride of place to which no one person or business entity can lay sole claim to for profit.

Customs was duly defined by the highest Court in Nigeria as the mirror of the culture of the people.[2] It reflects the core essence, values, expressions and aspiration of a people. It is the very soul of a people. It could be abstract, that is, in the mind (emotional, logical, ethical or psychological reasoning) or it could be physical or tangible as expressed in language, dressing, laws, dances, arts etc. Take away the customs of a people, their traditional cultural expressions, they start dying away, in gradual descent.

 It has been argued that Africa started dying away with the advent of colonialism on her shores. The very first object of attack on the African people by Colonialist and imperialist powers, was her cultural, traditional belief system, aimed at removing our self-worth and in place infuse a code of inferiority on the African mind. Africans were made to believe that they are inferior to the Europeans in everything. That mentality still exists till date, hence we are where we are today.

The courts in the United Kingdom also played a role in such pillory, particularly in their assessments that some of our African customary laws are as a matter of fact inferior to their own civilised notion of law. In Re: Southern Rhodesia[3], Lord Summer as far back as 1919 stated thus:

‘’Some tribes in Africa are so low in the scale of social organisation, that their usages and conceptions of rights and duties are not to be reconciled with the institutions or legal ideas of civilised society.’’

This dangerous attack especially from a very revered Jurist on the very core of a people is still being replicated today and is very fresh in the minds of neo-colonialists like Timbuktu Global, the infamous U.K based fashion house, which describes Timbuktu, a city in present day Mali which hitherto was a major trading, cultural and historical hub in pre-colonial West Africa,[4] in their words as ‘… a fictional location which literally means ‘the middle of nowhere’, a location which has intrigued mankind for centuries.’’[5] Such misinformation! a fraudulent distortion of established historical fact. The same group seeing no reprimand for its criminal attempt at cultural appropriation and annexation of the word ‘Timbuktu’ for economic gains further dared to annex the name ‘Yoruba’ and by extension the rich cultural heritage of the nearly 60 million Yoruba people found predominantly in Nigeria and indigenously in over 15 other nations of the world, in Africa, the Americas and the Caribbean[6], purely for its capitalistic, imperialistic greed. It is clear that they persisted in this trend because they believe we are so daft and dumb to understand the consequence or severity of their act to our socio-economic and socio-cultural life and as such will likely not put up a fight.

Traditional Cultural Expressions

The World Intellectual Property Organisation defined TCEs also called Expressions of Folklores as follows: the form in which traditional culture is expressed forming part of the identity and heritage of a traditional or indigenous local community and passed down from generation to generation which are integral to the cultural and social identities of indigenous and local communities, embodying the know-how and skills and transmit core values and beliefs.[7] The definition was broken down to include dance, music, designs, music, names, signs and symbols, performances, ceremonies, architectural forms, handcrafts and narratives, folklores, dressings, arts and artefacts, language, native songs and many other artistic and cultural expressions which belong to and are indigenous to a particular community forming part of their identity or heritage having been passed down and transmitted from generation to generation.

TCEs were categorised into four broad categories as to their tangibility or intangibility thus:

(i)              ‘‘Verbal expressions, such as folk tales, folk poetry and riddles;

(ii)            Musical expressions, such as folk songs and instrumental music;

(iii)          Expressions by action, such as folk dances, plays and artistic forms or rituals;

Whether or not reduced to a material form; and

(iv)           Tangible expressions, such as:

a)     production of folk art, in particular, drawings, carvings, paintings, sculptors, pottery, terra cotta, mosaic, metalware, jewelry, basket weaving, needle works, textiles, carpets, costumes;

b)     musical instruments;

c)     Architectural forms.’’ [8]  

TCEs under the Nigerian legal parlance, is referred to as expression of folklore. Section 28(5) of the Copyright Act[9] where ‘folklore’ was copiously defined to mean: ‘‘a group-oriented and tradition-based creation of groups or individuals reflecting the expectation of the community as an adequate expression of its cultural and social identity, its standards and values as transmitted orally by imitation or by other means including folk poetry, folk riddles, folk songs and dances, folk plays, folk arts, drawings, carvings, woodwork etc but excluding architectural forms as captured in Section 2(iv)(c) of the Model Provision for National Laws on the Protection of Expression of Folklore Against Illicit Exploitation and Other Prejudicial Actions.[10]

From the foregoing, TCEs could be seen to have some distinct characteristics. First, they are expressions which reflect the unique cultural identity of a people. Second, they are developed by the indigenous community, persons or group within the community to reflect their artistic expectations. Third, they do not have defined authors. This means that they are made over time, giving their age, it is difficult to trace the particular authors. Fourth, they do not have commercial purpose or in the least are not intended towards any commercial purpose. The principal aim of TCEs is to spotlight or exude the unique inner wealth of creativity to be preserved for posterity without the intendment of sale for profit. It is this characteristic that makes them susceptible to illicit exploitation, hence needing protection. Fifth, TCEs are always in development, which means they adapt to the current state of society for example, dances, chants etc. They are dynamic as the culture they project. Culture of a people is not static. It evolves as the people evolve. In Lewis v. Bankole[11] the characteristic dynamism and adaptability of customs and all that goes with it was aptly captured by Osborne, CJ thus: ‘‘One of the most striking features of West African (indeed most African native laws and customs[12]) is its flexibility: it appears to have been always subject to motives of expediency and it shows unquestionable adaptability to altered circumstances without entirely losing its character.’’ Sixth, they are tangible and intangible. Seventh, they are transmitted, which means they are passed down from generation to generation. Cultural expressions that do not succeed another generation cannot be characterized as TCEs.         

Characteristic of our Traditional Cultural Expressions

Our traditional cultural expressions like all living things are laced with certain characteristics that make them stand out.

First and foremost they are organic, that means it is alive and capable of growth. Obaseki JSC in Oyewumi v. Ogunesan[13]  regarded Customs from the perspective of customary law as the organic living law of the indigenous people of Nigeria regulating their lives and transactions. It is organic in that it is not static; it is regulatory in that it controls the lives and transaction of the people subject to it. They should thus not be regarded as relics, items of the past, old or fading generation only but living sets of growing norms which mirrors the will of the people and which regulates their lives and transactions.

Second, cultural expressions are transmissible, passible from one generation to another. There can be no traditions if cultural norms are not transferred from one generation to another. Thus traditional cultural expressions are traditional and therefore never dying, principally because they are passed down from one generation to another.

Third, customary traditional expressions are terminable, they are capable of dying or going into extinction. There are two ways this can happen: by cultural assimilation or by cultural extinction.[14] While cultural assimilation involves the process of voluntarily taking on the characteristics of a culture by giving up one’s own, cultural extinction entails the annihilation of a culture by internal forces or by external supervening factors. The spread of globalization and the attendant migration of people to economic capitals of the world, America and Europe for economic fortune had resulted in many such immigrants subconsciously giving up their cultural values and being absorbed into the stream of American, western or foreign cultures. In the same vein, cultural extinction may include the loss of language, traditions, habits and customs. Nowaczyk[15] gave an example of the postulations of many scholars which believe that the collapse of the once powerful Mayan culture was not due to deforestation and climate change. The French Colonialist powers implemented the policy of assimilation in French Colonies in Africa aimed at ‘purging’ the ‘Africanness’ out of Africans and in place instilling French values. It was a policy calculated at the complete annihilation of African values from those colonies to ensure the survival of their own. The resilience of Africans in the face of the attack ensured the failure of the policy and led to a complete policy reversal by the French. It is becoming clear that African customs and traditions are increasingly coming under attack from globalisation, and neo-colonial threats of annihilation if drastic steps are not taken to address the situation.

Fourth, our cultural traditional expressions are expressible through various forms and media. The medium of expression could be abstract or physical. Fifthly, they are flexible, adaptable to social changes. Our cultural norms and values are not rigid. They change from time to time to accommodate the changing pattern of the times. It is this feature of our customs that gives it uniqueness, a pride of place among other ways of life obtainable in other climes. One cannot be too rigid as to losing touch with reality.

Sixth, it is identifiable. A custom or traditional expression is tied to respective communities. Each community or people have its own identifiable norms, values, language, music etc that is unique and traceable exclusively to it to the exclusion of all others. It is their heritage to which all claims of originality, credit and right should be accorded. An attempt by a foreign custom or personality to encroach, arrogate or appropriate the cultural values or identity of another to itself is tantamount to cultural appropriation and by implication a theft of cultural intellectual property rights of the progenitors or owners of that cultural expression.

Seventhly, it is plunderable, that is, it is capable of being stolen. The fact still remains that a chunk of African cultural artefacts plundered by Colonialists foot soldiers in the colonial era particularly the Ife and Benin Bronze works are still languishing in museums and private hands in Europe and America, wailing and waiting for their safe return to their ancestral roots. As physical customary traditional expressions can be stolen or plundered, our abstract cultural traditional expressions can be appropriated and exploited as was seen in the Timbuktu saga.

TCEs as Intellectual Assets

The curious question that may arise is whether TCEs with their attendant undeveloped, mostly unwritten form could pass as intellectual assets. The question is important because whether or not they pass as intellectual assets will determine whether or not they could be so enforced and thus protected. In determining this question, it becomes apt to first determine what are intellectual assets or property as the case may be.

Intellectual property refers to creations of the mind, which include inventions, literary and artistic works, designs and symbols, names and images used in commerce.[16] For a breach thereof to occur, the owner must have packaged the work, protected the invention or design as to be conferred originality thereto to the exclusion of any person which may want to reproduce or multiply or appropriate same without the permission of the owner. Section 1(2) of the Copyright Act provides thus: ‘‘A literary, musical or artistic work shall not be eligible for copyright unless-

(a)   Sufficient effort has been expended on making the work to give it an original character;

(b)   The work has been fixed in any definite medium of expression now known or later to be developed, from which it can be perceived, reproduced or otherwise communicated either directly or with the aid of any machine or device.’’[17]   

In the same vein, an artistic work shall not pass for copyright if the work is intended to be used as a model to be reproduced or multiplied by any industrial process.[18]

From the foregoing, it might seem that TCEs do not possess the eligibility of being intellectual assets since they mostly are not reduced into fixed modern medium of expression or are not registered as patents or duly trademarked in the requisite offices concerned.  

However, Section 28(1) recognises TCEs as intellectual assets placing them exclusively under the domain of copyright and as such protected against illicit exploitation and other prejudicial actions injurious to their development and transmission.[19] They are intellectual assets falling within public domain and as such occupy a unique class of intellectual property with unique provisions for their protection and enforcement, clearly distinct from the other classes of intellectual property which principally are made in pursuit of commercial, economic gains or considerations.

Nigeria TCEs and their Pricelessness

Nigeria cultural artefacts from the various ethnic groups in this country: bronze works, metalware, pottery, terracotta, sculptures, textiles, carvings, folk dances, music and costumes etc sit atop a trillion Naira (multi billion dollars) goldmine which remain untapped unbeknownst to us, but, not hidden from the western world, which has for generations unend, surreptitiously looted them. Not surprising though that they are still being looted even in modern times as calls for our looted artefacts languishing in foreign museums gets intensified, while some of the repentant looters are beginning to succumb to the call for restitution.[20] The not too distant data gathered in respect of looted cultural assets belonging to two tribes in Nigeria was put at 6500 priceless relics worth N313 Billion with the recurring questions of where they are, still reverberates through deaf ears.[21] The worth of these artefacts and the adamance of the looters to returning them reinforce their pricelessness and the failure of the system from protecting them from the looters in the first place. 

Apart from tangible artworks, some other intangible art works forming part of our TCEs have been a subject of appropriation beyond our shores. The prominent Bata dance[22], the origin of which is attributed to the Yoruba people of Southwest Nigeria have seen its adaptation by Salsa, a popular dance form in the Americas, without any credit to Bata or indeed the Yoruba people. While Salsa is sailing on the heels globally in popularity, Bata from which it gets it roots is struggling to attract global recognition. However in a bold step at redressing this anomaly, in Incorporated Trustees of Intellectual Property Lawyers Association of Nigeria v. Black Bones Theatre Kompany[23] held that Bata dance as a medium of communication of beliefs and culture is a traditional cultural expression of the Yoruba people and thus the intellectual property of same and further that it is the root source of salsa.    

TCEs and Intellectual Infringements

TCEs like other intellectual assets are capable of infringements or illicit exploitations. Section 29 of the Copyright Act, posits that the use of TCEs in manners not permitted under the Act without the consent of the Nigerian Copyright Council infringes on the folklore concerned. Infringements on TCEs also include:

i.                 improper exploitation of such expressions;

ii.               The general practice of making profit by commercially exploiting such expressions outside their originating communities without any recompense to such communities.[24]

Section 28[25] shed further light as to infringements from which TCEs are protected against. It provides thus: ‘‘Expressions of folklores are protected against:

(a)   Reproduction;

(b)   Communication to the public by performance, broadcasting, distribution by cable or other means;

(c)   Adaptations, translation and other transformations, when such expressions are made either for commercial purposes or outside their traditional customary context.’’

The permissible exceptions to the provision as encapsulated under Section 28 are on ground of the usage of such expressions by way of fair dealing, utilisation for education, utilisation by way of illustration in an original work of an author so long as such illustration is compatible with fair practice, borrowing of TCEs for creating an original work of an author.

It will constitute an infringement on TCEs to fail to indicate or credit the source of TCEs in respect of printed publications and communication to the public in line with fair practice, by clearly mentioning the community where the expression was derived.[26]

Thus statutory provisions exist for the protection of TCEs but much is still left to be desired as to whether these provisions adequately protect them.

Protecting TCEs from Infringements

As earlier noted, TCEs in developing countries unlike their counterparts in the developed world are still developing. They are developing because they are yet to be properly packaged or preserved, as such are not yet in public domain. This accounts for the ease of their illicit exploitation both at the national and transnational level. Protecting TCEs therefore must be ensured holistically from a multilateral perspective and not in piecemeal. On the international stage, TCEs developed in a foreign country are protected in another subject to the doctrine of reciprocity and on the basis of international treaties or other agreements, a chunk of which is regulated by the Berne Convention to which Nigeria is a signatory. Thus the ease of enforcement of the intellectual rights of our TCEs in the event of infringement in any member state is streamlined.  

Protecting TCEs is sacred hence guaranteed under the Constitution, the grundnorm. Section 21(a) thereof[27] states that the State shall as a matter of compulsion, protect, preserve and promote the Nigerian cultures which enhance human dignity and are consistent with the fundamental objectives of as enshrined in the Constitution. This provision by its true intent includes TCEs which fundamentally by definition are products of the rich cultural heritages of the Nigerian people. Section 28 of the Copyright Act, is the principal enactment in Nigeria which guarantees the protection of TCEs.

Protection in this context, which means to cover or shield from exposure, injury, damage or destruction, to maintain the status or integrity of especially through financial or legal guarantees by saving it from contingent financial loss or shield it from infringement or restriction[28], therefore shall be considered in four perspectives: prevention, preservation, promotion and prosecution.

Prevention- this entails putting in place the requisite legal and diplomatic mechanisms to forestall infringements on rights of TCEs on the national, transnational levels and also using the platform provided by non-state actors like the WIPO and the UNSESCO in this regards. On the national level, the Copyright Act laid down requisite provisions for the protection of TCEs, which though is quite inadequate and lacking the needed bite.   

Preservation- ensuring that the right structures and infrastructure are established to ensure that TCEs are properly preserved from damage, decay and unnecessary appropriation and thus enjoy unfettered transmission to successive generations.

Promotion- entails duly putting the necessary mechanisms in place to ensure the continuous growth and development of TCEs within the tribes, cultures and communities in the country.

Prosecution- entails strengthening the existing legal mechanism to guarantee due enforcement of the intellectual rights of TCEs in the face of infringements. In Nigeria, the duty of such enforcements rest solely on the shoulders of the Nigerian Copyright Council, seen as the victim of such infringements and thus vested with the prosecutorial powers thereto.[29]

The question that needed to be asked is: does the Act, offer appropriate bulwark for the protection of our TCEs, along the perspectives of prevention, preservation, promotion and prosecution? From the provisions of Sections 28, 29 and 30 of the Act, one can scarcely answer that in the affirmative. First, protection, enforcement and indeed liability for infringements of TCEs fall exclusively on the Council. Second, TCEs are deemed national as such enforceable only by the Council. Third, immediate owners of the expressions, their communities are bereft of the powers to give or refuse consent for the use or not of their own intellectual assets. Fourth, apart from the barrage of responsibilities the Council has in Section 30, no express duty is placed on the Council for the prevention of the illicit exploitation of TCEs or of their promotion or preservation. This leaves much lacuna as to their due administration, the lacuna which leaves a big gap for the continuous silent illicit exploitation as being witnessed in recent times.

Recommendations

It is trite that a thing in constant development hardly goes into extinction. If protection is to defend from impending attack, then the greatest attack comes from the inside, an implosion which is more devastating than any external attack. A culture, indeed the essence of a people starts dying from the inside, when the owners do nothing to ensure their survival or when they fold their hands and stand aloof watching their core essence, values and tradition eroded down the drain. An attack on their expressions is the first step towards their extinction. Thus, general cultural renaissance should begin especially among the young population to take pride in their cultures. Cultural relics should be constantly put on display to educate succeeding generations on the cultural ingenuity of their forbears and the pricelessness of their cultural identities.

Furthermore, deliberate steps be taken by policy makers, government ministries, agencies and parastatals concerned and the respective communities to fully develop our TCEs and document them into the public domain. When the purpose or creator of a thing is known, abuse or infringement is evitable.

The various ethnic blocs in the country should pursuant to Section 823 and 825(1)(b) of the Companies and Allied Matters Act,[30] incorporate trustee for the management, protection, preservation and enforcement of their TCEs.

As a way of preservation of their cultural relics and expressions, cultural blocs should in conjunction with the National Commission for Museums and Monuments establish their own modernised community museums aimed at preserving their TCEs and for the display of their rich cultural heritages to the world, a task which should not be left to the government alone.

Furthermore, Sections 28 and 29 of the Copyright Act should be given more booster either by copious amendments or by extrication from the Act and passed into an act of its own to give it more bite and coverage and to make it conform in form and purpose with the Model law on TCEs.

The respective cultural blocs in the country can as well trademark their unique identities with the requisite office to forestall misappropriation and which will confer on them the locus to enforce same as their intellectual assets. Trademark can be used to identify authentic indigenous arts as was done by the Maori Art Board of New Zealand. If outsiders can derive huge financial profits from appropriating our TCEs, nothing should be in the way of originating communities by way of legal impediments from deriving economic advantage from their own expressions.

Furthermore, the Nigerian Copyright Council should be more proactive in protecting TCEs from illicit foreign exploitations by identifying, arresting and prosecuting internal collaborators. The silence of the Council during the Timbuktu Global Yoruba annexation saga exposes its complacence even in the face one of the greatest threats to a TCE in recent times.  

In addition, the Council should pursuant to Section 30(d) of the Act activate and maintain an operational data bank of TCEs of the various communities and tribes across the country as the Council cannot effectively protect and enforce a right details of which it does not have.

Finally, the use of the media particularly the social media in protecting TCEs cannot be emphasised. It played vital role in exposing the Timbuktu Group’s failed attempt at appropriating Yoruba. It can and should be deployed by the Council and respective communities in educating peoples the world over on the uniqueness of their cultures and their TCEs. Popular education is the best form of enforcing and reinforcing values and by extension protecting TCEs from infringements on the global stage.

Conclusion

It has been established that TCEs are enforceable intellectual assets liable to be illicitly exploited and that they are increasingly coming under attacks of appropriation for commercial gains. It has also been established that TCEs are potential money spinners for the nation and the proponent communities if the recommendations herein made are strictly observed and that the attack are bound not to abate due mainly to the enormous financial gains derivable therefrom, hence the need for communal, cross-cultural, national, multilateral cooperation in protecting them.

REFERENCES

1.     (1971) Jo. of African Law

2.     Re: Southern Rhodesia (1919) AC 211

3.     Rob Picheta, ‘‘British fashion brand accused of ‘cultural appropriation’ for trademarking ‘Yoruba’, CNN Business, Tue, May 25, 2021, updated 6:29AM EDT

4.     Traditional Cultural Expressions- www..wipo.int./tk/en/folklore

5.     Model Provisions for National Laws on the Protection of Expressions of Folklores Against Illicit Exploitation and Other Prejudicial Actions, UNESCO, OMPI/WIPO (1982)

6.     Copyright Act, Laws of the Federation of Nigeria, 2004

7.     Lewis v. Bankole (1909) 1 NLR 100 @ pg 101

8.     Balogun v. Oshodi (1929) 10 N.L.R 36 at p.

9.     Oyewumi v. Ogunesan (1990) 3 NWLR (Pt. 137) 182 @ pg 207

10.  Okonkwo v. Okagbue  & Ors (1994) 9 NWLR (Pt. 368) at p.335.

11.  Nowaczyk, Jason, ‘‘Cultural Assimilation and Extinction: Definitions and Examples’’, 2016, March 4, retrieved from https://study.com/academy/lesson/cultural-assimilation-exctintion-definition-examples-video.html.

12.  WIPO- Definition of Copyright- www.wipo.int/about/-ip/en/

13.  Trade Marks Act, LFN 2004

14.  Patent and Design Act, LFN 2004

15.  Geoff Edgars, ‘‘Museum of Fine Arts Returns Eight Artefacts to Nigerian’’, Globe Staff, June, 26, 2014

16.  Nigerian Centenary: ‘‘Where are Nigeria’s About 6,500 Artefacts Worth N313 Billion?, Leadership Abuja, 3/01/2014, all-africa.com/stores/20

17.  Incorporated Trustees of Intellectual Property Lawyers Association of Nigeria v. Black Bone Theatre Kompany, SUIT NO.: FCT/CC/PYS/CM/01/2021

18.  Merriam Webster Dictionary, 2022

19.  Companies and Allied Matters Act, 2020.   

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[1] Hon. Olowo Ojo Ajiboye, Judge, FCT Customary Court, Abuja, Nigeria. Email: olowoajiboye@yahoo.co.uk   

[2] Obaseki JSC, Journal. of African Law, 1971, p. 132

[3] (1919) AC 211

[4] Timbuktu is a city of rich historical and cultural significance. The city is home to the Timbuktu Mausoleum which has spanned centuries and still standing till date, and is designated a world heritage site by the UNESCO. 

[5] As contained in their website. Further see British fashion brand Timbuktu accused of ‘cultural appropriation’ for trademarking ‘Yoruba’, Rob Picheta, CNN Business, Tuesday May 25, 2021, updated 6:29AM EDT

[6] Based on CIA estimation

[7] Traditional cultural Expressions- www.wipo.int./tk/en/folklore/

[8] Section 2, Model Provision for National Laws on the Protection of Expression of Folklore Against Exploitation and Other Prejudicial Actions (1982). This Model became the mother of the various national laws on TCEs currently operational in most countries today. It laid down the legal framework, a model for nations to enact their respective laws against unlawful exploitation of TCEs.    

[9] Laws of the Federation of Nigeria, 2004

[10] Op. cit

[11] (1909) 1 N.L.R 100 at pg 101. See also the locus classicus of Balogun v. Oshodi (1929) 10 N.L.R 36 at p. 50 and Okonkwo v. Okagbue  & Ors (1994) 9 NWLR (Pt. 368) at p.335.

[12] Bracketed in italics for purpose of adumbration

[13] (1990) 3 NWLR (Pt. 137) 182 at p. 207.

[14] Nowaczyk, Jason Cultural Assimilation & Extinction: Definition & Examples, (2016, March 4). Retrieved from https://study.com/academy/lesson/cultural-assimilation-exctintion-definition-examples-video.html.

[15] Op cit.

[16] WIPO- www.wipo.int/about/-ip/en/. The definition which include copyright, trademark, patents, industrial design and trade secrets in reference to as ‘used in commerce’ may imply the exclusion of TCEs since TCEs do not have commercial purpose.

[17] See also Section 2(1) Patent and Design Act, LFN 2004, which provides thus: ‘’Subject to this Section, the right to a patent in respect of an invention is vested in the statutory inventor, that is to say, the person who, whether or not is the true inventor, is the first to file, or validly to claim a foreign priority for, a patent application in respect of the invention.’’ See also Section 5 of the Trade Marks Act, LFN, 2004.

[18] Section 1(3) Copyright Act

[19] This categorisation conversely places TCEs under the permissible exceptions to Section 1(2)(a) and (2) of the Copyright Act owing to their tender evolving nature of development and indeed not intended for any commercial purpose or aim.

[20] Geoff Edgars, Museum of Fine Arts Returns Eight Artefacts to Nigerians; Globe Staff, June 26, 2014

[21] See Nigeria Centenary- Where Are Nigeria’s 6,500 Artefacts worth N313 Billion? Leadership Abuja, 3/01/2014- allafrica.com./store/20.

[22] A prominent Yoruba dance form attributed to Sango the Yoruba god of thunder and lightning, characterised with dance steps with the feet, hands and shoulders, twisting of the waist, bent knees, acrobatic steps and expressive movements, in synchrony with and accompanied by the thundering , thumps and rattling sounds of Bata drums in tribute to Sango but now performed primarily to entertain religious and secular ceremonies 

[23] SUIT NO.: FCT/CC//PYS/CM/01/2021, Judgment of the F.C.T Customary Court, Abuja, Nigeria

[24] Paragraph 4, Introductory Observation, Model Provisions For National Laws on the Protection of Expression of Folklores Against Illicit Exploitation and other Prejudicial Actions, ibid.

[25] Copyright Act

[26] Section 28(3) Copyright Act

[27] The Constitution of the Federal Republic of Nigeria 1999 as amended

[28] Merriam-Webster Dictionary 2022

[29] Section 29, Copyright Act, ibid

[30] 2020