The arts, Africa and economic development: the problem of intellectual property rights.

• Author: Kabanda, Patrick
• Position: Special Issue: Cultural Economies and Cultural Activism

INTRODUCTION

Poor People's Knowledge, a collection of case studies published in 2004 by the World Bank and Oxford University Press, reported that culture and commerce can and do complement each other, particularly within the contexts of development (Finger and Schuler, 2004). Citing examples, such as the World Bank's Africa Music Project and traditional African crafts, the collection authors suggest that if developing nations can promote intellectual property rights [IPRs], they can also increase both revenues and earnings from their peoples' traditionally exponential cultural innovation, knowledge and creative skills. Working with several African governments, the World Bank has, for one, recommended the establishment of relevant policy and legal reforms to help develop Africa's local, regional and national music industries. This article will explore the implications of supporting Africa with the international IP regime. From research that started in 2011, I will charter the conceptual and cultural-political issues of IP for the African continent's creative producers. (1)

In industrialised countries, artists, writers, inventors, and others who create 'intellectual property' are ascribed a legal identity and so widely benefit from intellectual property rights in terms of both monetary contributions to their countries' economies and professional credibility in terms of the value of their national-economic role. The economy of IPRs has been attributed to factors such as strong legal systems and infrastructure, as well as a robust professional class and civil society. And while African countries indeed have immense cultural resources, creative energy and countless cultural producers, intellectual property law and enforcement is weak. Artistic creations in Africa--from music and literature, to dance, film, and the visual arts--are, by and large, not subject to strict protocols or processes of commodification and ownership, but are shared freely, in part due to a traditional understanding that 'knowledge' itself has communal ownership.

The free exchange of knowledge has helped Africans, from Cairo to Cape Town, and from Dakar to Dar es Salaam, to learn from each other. On the other hand, the lack of reward for knowledge-based products often stymies investment, professionalisation, innovation and marketing, generating the "monkey see, monkey do" phenomenon in the arts and other sectors, particularly pervasive from Kampala to Cairo and from Lagos to Lilongwe, for example. Among other disadvantages, African knowledge products, ideas and artistic forms, bleed beyond Africa and we can find them available 'for free' and thus often adapted for other's copyrighted material, enabling others to profit from African artistic creativity. Yet, if the transmission of culture or transfer of knowledge moves in the opposite direction--from the USA to Africa, for example--there are no shortage of international agencies or legal representatives that remind African nations to obey international intellectual property regime and its laws. Based on empirical research on this topic, as well as interviews with two leading experts involved in the World Bank Africa Music Project, this study will examine the relationship between the arts, IRPs and economic development. I will argue that if African countries can institute and enforce intellectual property rights, the African continent could more effectively use culture for economic development without exposing its culture to forms of international market commodification. African culture could be monetised and play an 'economic' role, without simple becoming a product for sale on the international market for cultural goods or services.

Properties of Intellectual Property

Legal scholar Robert P. Merges argued in 2011 that intellectual property today is like the character of the "chaotic, sprawling mega cities in the developing world ... [such as] Mexico City, maybe, or Shanghai" (Merges, 2011: 1). It's an odd juxtaposition, but Merges suggests that the order and regulation required for Intellectual Property is not antithetical to the seeming chaos or confusion that accompanies emergent global economic activity (the vast portion of it taking place in today's rising metropolises). Rather, IP, like urbanisation, can locate order in dynamism. In his book, Driving Innovation: Intellectual Property Strategies for a Dynamic World, Michael A. Gollin suggests that Intellectual Property [IP] can be defined at least five different ways and that even people experienced in IP may be unfamiliar with all its available manifestations (Gollin, 2008: 22). By way of introduction, we must consider his definitions:

(i) IP (for a dictionary approach) "... is something intangible, created by the use of mental ability, to which legal rights attach." Such legal rights, of course, have been associated with property ownership since Roman times.

(ii) Lawyers use IP as a term by which to refer to a variety of legal doctrines, including industrial inventions, innovations and manufactured objects (patents, trade secrets, trademarks) and literary products (copyright).

(iii) In accounting, IP is viewed as a "form of intangible asset."

(iv) In business and management, IP is often understood as a "management tool for converting human capital into value by defining and capturing new knowledge". Gollin cites Patrick Sullivan's description of human resources and a firm's intellectual assets as "intellectual capital."

(v) Unsurprisingly, many scholars maintain the broadest definition of IP, which "... refers to an ethical system that values all that is known. including individual creativity and socially adopted innovations as well as old and collective knowledge. [This interpretation] may go beyond the legal definition to include everything in the public domain." (Ibid: 23)

With such varying definitions, crossing vast tracts of industry, social and cultural life, as Gollin points out, individuals from varying professionals or academic disciplines easily misunderstand each other. Lawyers could misunderstand accountants, business people could misunderstand scholars, vice versa and so on. In this paper, the definition of intellectual property I will maintain is the definition '(ii)', which is the legal framework--of 'IPRs'. I will do this in order to identify a critical and 'political' issue central to international development and the emancipation of Africa as an actor in the global economy.

Today, intellectual property, particularly when discussed in the context of the global creative industries, is perhaps synonymous with the World Trade Organization's (WTO) 'Agreement on Trade-Related Aspects of Intellectual Property Rights' (TRIPS). Negotiated between 1986 and 1994, TRIPS debuted into a multilateral trading system at the Uruguay Round in 1995. (2) The Agreement invited members, including developing states, to enforce IPRs as a means, among other things, of encouraging innovation and the exploitation of the value of the products of innovation. Article 7 adequately articulates the TRIPS' aims:

"The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations". (3)

These aims indeed posses a certain economic logic, but there are many who point out that this Agreement does not begin to address the specific needs of developing countries in relation to IPRs. J. Michael Finger, former Lead Economist and Chief of the World Bank's Trade Policy Research Group, asserts that TRIPS "is about the knowledge that exists in developed countries, about developing countries' access to that knowledge, and particularly about developing countries paying for that access" (Finger and Schuler, 2004: 1). In an interview, Finger added: "TRIPS is about collecting across borders ... [but] if you are a Senegalese musician [for instance,] and your problem is piracy within the local economy, then the TRIPS agreement has no relevance." (4)

While intellectual property rights are consequently often viewed as a Western construct, their origins can historically, with some irony, be traced back to the African continent. Gollin writes that the "roots of intellectual property may be found in the difficult skill of keeping a secret--choosing not to communicate information. The ancient Egyptians' respect for trade secrets is clear from Stele C-14 of Irtisen, a hieroglyphic tablet from 2000 BCE on display in the Louvre museum" (Gollin, 2008: 26-7). In translation, Irtisen, who identifies himself as the chief scribe and artisan of Pharaoh Nebhepetra Mentuhotep of the Eleventh Egyptian Dynasty, "boasts about his extensive knowledge of hieroglyphics ... ink making, magic, weights, sculpture .[and] vows that no one will know these secrets except for him and his eldest son, permission having been given from the divine Pharaoh.Stele C-14, although it relates to a 4,000-year-old political and religious order, has the elements of a modern employee confidentiality agreement ... " (Ibid).

Like Gollin who notes that trademarks also existed in antiquity--"Egyptians branded cattle, Chinese marked their porcelain, and Romans used logos and brand names for stores, lamps, and other products" (ibid: 28). Scholars Christopher May and Susan K. Sell also argue that marking objects was perhaps the first practice of the differentiation and separating of goods, conditions of their designation as intellectual property: "Marks could indicate reliability and the reputation of the craftsman [or] maker as well as origin. Marking to establish ownership long precedes formalized laws to adjudicate disputes regarding ownership" (May and Sell, 2006: 44). Here is May and Sell in their chapter, 'Greek Ideas...