The Swakopmund Protocol and the Communal Ownership and Control of Expressions of Folklore in Africa

• Published date: 01 November 2014
• Author: Enyinna S. Nwauche
• Date: 01 November 2014
• DOI: http://doi.org/10.1002/jwip.12027

The Swakopmund Protocol and the Communal

Ownership and Control of Expressions of Folklore

in Africa

Enyinna S. Nwauche

Faculty of Law Rhodes University Grahamstown South Africa,

This note reviews the extent to which the Swakopmund Protocol for the Protection of Traditional Knowledge and

Expressions of Folklore, adopted by the African Regional Intellectual Property Organisation (ARIPO), conceives of

the role of communities in the management of expressions of folklore.

Keywords Africa; expressions of folklore; geographical indications; trademarks

This note reviews the extent to which the Swakopmund Protocol for the Protection of Traditional

Knowledge and Expressions of Folklore

1

, adopted by the African Regional Intellectual Property

Organisation (ARIPO)

2

, conceives of the role of communities in the management of expressions of

folklore. A fundamentalchallenge of normative frameworks for the protection of expressions of folklore,is

the role of communities in their managementwhich arises from a disassociation of ownership from control

of expressions of folklore. This paper argues that the normative framework of the Swakopmund Protocol

may be of little effect because even though the Protocol has made significant strides by recognizing the

ownership of communities of their expressionsof folklore, the control of third party use of expressions of

folklore is still endowed on ARIPO States and their national competent authorities. To reverse this

possibility it is important that ARIPO States in their domestication of the Swakopmund Protocol ensure a

significant involvement of communities in the control of third party use of expressions of folklore.

The Swakopmund Protocol is a sui generis standard setting initiative of ARIPO, which had hitherto

been engaged in standard setting specifically designed towards the creation of an intellectual property

market of member States.

3

The Protocol elaborates the objectives of ARIPO which is articulated in Article

III of the Lusaka Agreement

4

to include the promotion of the harmonization and development of the

intellectual property laws, and matters related thereto, appropriate to the needs of its members and of the

region as a whole.

5

Unlike other ARIPO Protocols on industrial property - the Harare Protocol on Patents

and Industrial Designs

6

and the Banjul Protocol on Marks

7

- the Swakopmund Protocol lays down

minimum standards in broad norms for State Parties to follow. While the Harare and Banjul Protocols

enable third parties to obtain and exercise industrial property rights - patent designs and trademarks -

within the ARIPO States through the grant of ARIPO patent designs and trademarks, there are no rights

granted by ARIPO pursuant to the Swakopmund Protocol. Accordingly the domestication of the Protocol

is of significance since the enhancement of community control of third party use of their expressions of

folklore could be enhanced by national legislation.

It must be remembered that the Swakopmund Protocol articulates a regional normative standard in the

protection of expressions of folklore against the background of extant national frameworks for the

protection of expressions of folklore in Member States. At the adoption of the Swakopmund Protocol in

2010, a number of ARIPO States had extant legislative frameworks that protect expressions of folklore

largely through and within copyright and neighboring rights legislation. Two groups of States are

discernable with respect to their protective framework. The first group consists of States that vest

ownership of expressions of folklore in the State or national institutions such as Mozambique

8

, Ghana

9

,

©2014 John Wiley & Sons Ltd 191

The Journal of World Intellectual Property (2014) Vol. 17, no. 5–6, pp. 191–201

doi: 10.1002/jwip.12027