Boatema Boateng
In protecting culture, intellectual property (IP) laws appear to stand apart from culture. However, cultural and legal scholars have shown that IP laws are in fact cultural in reflecting very particular ideas about what kinds of work can be protected legally (Coombe, 1998; Oguamanam, 2004; Boateng, 2011a and b; Anderson, 2013). As a result, and as critical scholars of IP law have shown, such laws operate unequally towards different kinds of knowledge and culture (Boyle, 1996; Posey & Dutfield, 1996; Aoki, 1998; Coombe, 1998; McLeod, 2001; Jaszi & Woodmansee, 2003; Seeger, 2005; Boateng, 2011a and b; Anderson, 2013). Originally designed to regulate the cultural production of European nations, IP laws were given international scope through conventions that drew increasing portions of the world into their norms. At the time that those laws were conceived and also when their scope was first extended beyond European national borders in the late nineteenth century, Indigenous peoples, along with much of what is now considered the “Third World,” were under European colonial control. In the middle of the twentieth century the global political order changed considerably, giving greater sovereignty to some of those subject peoples. Yet the cultural production of Indigenous and Third World peoples remains subjugated within IP laws and the conceptions of knowledge and culture on which those laws are based.
Although my discussion is mainly of nations in the Third World, I also refer to Indigenous peoples. There are similarities in the issues that arise around the culture of Third World nations and Indigenous peoples. However, it is important to underscore the important differences between the two groups. Most Third World nations share with Indigenous peoples a history of colonization by Europeans through either “indirect” colonization (like Ghana) or settler colonization (like the United States). Where European colonizers did not settle in significant numbers in the territories they controlled, national independence transferred the state and national sovereignty to the original inhabitants of those territories. It must be noted, however, that the state in such nations does not always represent the interests of all its people, some of whom may be marginalized in ways similar to Indigenous peoples in settler territories.
In those territories, independence meant autonomy for settlers from their European nations of origin. In the US, for example, independence meant British settlers wresting control of the state from the British kingdom. For the Indigenous people whose territory had been seized by those settlers, settler-led independence did not translate into independence for them. Rather it meant continued subjugation that Indigenous peoples still experience in many forms in the present – not only in the United States but also in nations like Canada, Australia, and Brazil. Despite their shared history of colonization, and the similarity in the consequences of colonization for their cultures, Indigenous peoples in settler societies do not share Third World countries’ status of nation states with full membership in international organizations. That status is contingent on full sovereignty as nation states and enables members to shape international policy and law, including intellectual and cultural property laws. Although Indigenous peoples have long insisted that such organizations pay attention to their interests, the final outcomes are decided by member nations.
It is also important to explain my use of the term “Third World” despite its Cold War connotations of a hierarchy of a democratic/capitalist Western European and North American First World, a socialist/communist Second World, and a Third World of mostly former colonies (many of which also identified as politically “non-aligned” with members of the First and Second Worlds). I do not use the term “Third World” in an endorsement of the relegation of those regions of the world and their people to third place behind Western nations and the former communist bloc. Rather, informed by some postcolonial scholarship, I use it to signal the structural location of the Third World in global arrangements of power established during colonization. I also use the more current term “global South” interchangeably with “Third World.”
In this chapter, I argue that the unequal treatment of different kinds of knowledge and culture in IP laws is a result of the cultural specificity of those laws. It is also a result of the processes by which IP laws attained the status of universal norms. Those processes are bound up with the history of empire and colonization that created structures of dominance over today’s Indigenous and Third World peoples – or the people of the global South. I further argue that significant elements of those structures and their underlying premises remain and help to account for the current place of Indigenous and Third World knowledge and culture in IP law. As a result of those structures and premises, IP laws locate the knowledge and culture of people of the global South outside art and science – forms of cultural production granted protection under copyright and patent laws. That exclusion leaves Third World and Indigenous knowledge and culture vulnerable to appropriation (Boateng, 2011a and b; Anderson, 2013).
In this chapter I adopt a critical perspective that is materialist in paying attention to structures of power. I am also attentive to the cultural dimensions of power. My approach is informed by the insights of African feminist scholars like Amina Mama (1997) and Desiree Lewis (2004) who have noted the problems with European and North American knowledge production about Africa in the past as well as the ways that external agendas and priorities continue to shape African knowledge production. My analysis also draws on the work of African philosophers and literary scholars like Emmanuel Eze (2008) and Kwaku Korang (2004), who have noted how European conceptions of history and modernity placed African people outside both.
In tracing the history of the location of the global South in structures established during the colonial period I also situate the knowledge and cultural production of the South within the same historical and political context. Further, by drawing attention to the location of the South and its cultural forms in the current global order, I show the continuity in the logics underpinning the past history and present reality of the South, including its location in IP and cultural property regimes. I argue that despite the wave of mid-twentieth century decolonization, there has been little change in the status of most former colonies in the global economy.
I first outline the shift from direct economic, military and political dominance of colonial territories to less direct forms of dominance in the second half of the twentieth century. I then briefly outline the history of IP laws, focusing on their cultural specificity. I place that history in the context of the history of direct and indirect dominance of the global South during and after colonization. I also discuss the increasing importance of IP in the regimes through which dominance occurs as knowledge, information, and culture have become important economic commodities. I also outline the history of cultural property (CP) laws as an additional site for the protection of culture. I undertake a comparative analysis of the discourses of CP and IP laws for what they suggest about different kinds of culture.
I argue that the purported differences between the cultural production of people of the global South, on the one hand, and members of industrialized societies, on the other, are not so much qualitative or intrinsic as a function of their location in different regimes of cultural production. I therefore use the same terminology to refer to all kinds of cultural production rather than following the convention of using adjectives like “Indigenous” and “traditional” to refer to the cultural production of Indigenous and Third World people. Such adjectives have the effect of placing different kinds of knowledge and cultural production in an unequal relationship, reinforcing the structural inequities between the people who produce them.
I further argue that the cultural contingency of IP laws not only makes them unsuited to the protection of Indigenous and Third World knowledge and culture, but also sets a precedent for considering alternative or additional conceptions of culture that reflect more fully the wide range of cultures of property that exist among all the different groups that constitute the global community. I also argue that assuming an easy fit between the culture of the global South and cultural property laws reflects the same conceptions of knowledge and culture that are used to exclude the culture of the South from IP law. Therefore, rather than providing an alternative or supplement to the protection offered by IP laws, cultural property laws simply marginalize the cultural forms they protect.
I locate the case of Ghana in this historical and legal context as I discuss Ghana’s efforts to protect the culture of Ghanaian peoples – that is, the people of the different ethnic groups that make up the nation of Ghana. In protecting locally produced culture as national culture, the Ghanaian state does not always represent the interests of all its citizens. Those citizens sometimes contradict the state as they identify individuals, communities, and ethnic groups as the rightful custodians of the culture that they produce (Boateng, 2011a and b). Bearing those contradictions in mind, I critically examine Ghana’s protection of its people’s culture and consider the implications of its use of the different legal and policy frameworks of IP and CP to protect different kinds of culture. I also consider what are some of the cultures of property that Ghanaian peoples offer for rethinking and expanding the options provided by intellectual and cultural property laws.
In order to understand the place within IP law of the knowledge and culture of the peoples of the global South, it is important to situate the law in the historical processes through which such nations and peoples came to occupy their current location in the global order. Starting in the fifteenth century with the innovations that made transoceanic travel possible, European states began to take control of the lands and people that they encountered through those journeys in a process of colonization that continued into the early twentieth century. Although that colonization was undertaken by different European powers including Spain, Portugal, Britain, France and the Netherlands, there was little variation in its underlying logics. Those logics included the expansion of European imperial territories, the conversion of “heathens” to Christianity, and views of land use that deemed unexploited land to be “terra nullius” or empty, even when it was occupied and its resources used by its original inhabitants (Whitt, 2009). The concept of terra nullius was important in justifying settler colonization in which Europeans took over the lands of Indigenous peoples across the Americas and also in Australia, New Zealand and Southern Africa.
An important additional justification for settler colonization came from the invention of theories of race that placed Europeans at the top of a hierarchy of the different races they encountered (Omi & Winant, 1994). The invention of race harnessed “science” to ongoing projects of empire and was used to justify centuries of enslavement in which millions of Africans were forcibly transported to the Americas to work on plantations established by European colonizers. Toward the end of the nineteenth century, with the official end of slavery and the need for raw materials to feed industrialization, European powers met in Berlin from 1884 to 1885 and divided the continent of Africa among themselves. As with the colonies established earlier in Asia and the Americas, the economic focus in African colonies was on resource extraction and colonial economies were structured toward these ends. As a result, local African populations shifted from agricultural production for local food needs to “cash crops” for export.
The three decades immediately following WWII saw a wave of decolonization as nations in large parts of Africa and Asia successfully gained independence from European colonial powers. By then most settler-colonies had become independent nations in struggles led by the descendants of settlers who sought and gained autonomy from their respective imperial powers. As noted earlier, independence in those colonies meant continued rule by the descendants of Europeans and made little difference to the sovereignty of Indigenous people. In colonies that experienced indirect rule, however, independence took the form of the transfer of the colonial state to Indigenous populations, and the conversion of those colonies into modern nation states. This was the process by which the British colony of the Gold Coast became the independent nation of Ghana.
In many instances, independence in territories that experienced indirect colonization has turned out to be nominal, as those territories have labored under the weight of adverse global economic arrangements established under colonization. Many have continued as producers of primary goods designated for extraction based on the needs of former colonial powers and of the US, which emerged from World War II as the leading world power. Although a number of independent nations tried to shift the base of their economies from primary products to industries producing finished or semi-finished goods, few have been successful and, for the most part, colonial economic structures remain in place – especially in Africa. In Ghana, primary goods from the agricultural and mining sectors account for a significant portion of the economy, although services have replaced agriculture as the largest sector (World Bank). The high dependence on primary agricultural and mineral goods has made nations like Ghana vulnerable to market fluctuations in the prices of those goods, and several have foundered economically.
These developments have been exacerbated by struggles over the state by competing political actors including the military. In Ghana, Kwame Nkrumah, the country’s first head of state, was deposed in 1966 in a military coup that some claimed was backed by the CIA (Grundy, 1968). Apart from his importance as a nationalist leader, Nkrumah was notable for identifying post-independence economic subjugation by colonial and other external powers as “neo-colonialism.” He was also a proponent of socialism in a period marked by Cold War tensions between the US and Soviet Union. However, his significant failings as a national leader cannot be discounted as a factor in his downfall.
The military overthrow of Nkrumah was the beginning of almost three decades of military rule briefly punctuated by two civilian governments whose terms were cut short by military coups. Until the first transfer of power from one civilian government to another in 2002, therefore, changes in government in Ghana occurred mostly without the consent of the governed. With the combination of Nkrumah’s increasingly autocratic rule by the time of his overthrow, and arbitrary rule by unaccountable military governments, the custodians of the postcolonial Ghanaian state bear some responsibility for the country’s adverse fortunes since independence. The external factors outlined earlier are unquestionably important in understanding the position of Ghana and other Third World nations in the current global order. However, as Abebe Zegeye and Maurice Vambe have warned, it is important not to gloss over or romanticize the shortcomings of African states like Ghana (2006).
As a result of this history, and as several postcolonial scholars have observed, the European dominance of colonized peoples did not come to a complete stop with the end of formal colonization. Rather, such scholars argue, that dominance has continued in what some, following Nkrumah, characterize as neo-colonialism or (as Jacqui Alexander calls it) “flag independence” (Alexander, 1994). In the period since the end of World War II, the United States has emerged as the leading global power, and a number of scholars have characterized its post war position in the global order as an imperial one (Loomba, 1998).
Operating in tandem with the history of physical dominance and resource extraction during and after the colonial era is the cultural history that elevated European systems of knowledge and cultural production over those of subject peoples around the globe. The colonial period coincided with the rise of systems of knowledge production in Europe that came to be known as the “Enlightenment.” The Enlightenment inaugurated “modern science” in which knowledge was based on observation and measurement rather than on religious authority, as had previously been the case. Alongside subjects like physics and botany, scholars of the period sought to account for the inhabitants of the territories that were being colonized by European powers.
Colonial knowledge production served primarily to establish those societies’ difference from, and inferiority to, Europeans in scholarship that supported the colonial project. Subject peoples in the Americas, Africa, and parts of Asia were deemed “primitive,” “barbaric” and “savage” and their cultural artifacts were desecrated, stolen as curios and relocated to museums in European capitals. In addition, colonizers dismissed as “superstition” the knowledge of local communities in African and other territories (Zegeye & Vambe, 2006).
The new modes of European knowledge production combined with the spread of empire to render those systems of knowledge production hegemonic, and European educational systems were imposed in place of Indigenous ones. Drawing on Michel Foucault’s insights into the operation of knowledge as a mechanism of power, Michael Doxtater has described these processes by which Europeans devalued and displaced local modes of knowledge production as “colonial-power-knowledge” (Doxtater, 2004). That colonial-power-knowledge has been the target of critical scholarship in Indigenous studies. Scholars in this area have therefore drawn attention, and sought to restore value, to Indigenous modes of knowledge production (Doxtater, 2004; Smith, 2005; Million, 2009; Zegeye & Vambe, 2006).
The study of the global South has continued to focus on its presumed distance from or proximity to Western Europe and North America, reflecting the interests of the Western academy and the power structures in which it is embedded. With the end of official colonization after the end of WWII, the study of the global South shifted from its overt link with Western dominance. However, the postwar emergence of development studies kept intact colonial epistemologies of Third World inferiority. Growing out of post-WWII theories of “modernization,” and informed by the construction of poverty as a site of scientific intervention in the late nineteenth and early twentieth centuries, development was commonly construed as an evolutionary process in which “developing nations” were encouraged to achieve the conditions of industrialized nations in Western Europe and North America (Escobar, 1995).
Both modernization and development have been challenged based on both their demonstrated failures and their flawed premises that fail to take into account the structural causes of development (Rogers, 1978; Cardoso & Faletto, 1979; Escobar, 1995). The second half of the twentieth century also saw the emergence of postcolonial studies, which has posed important challenges to the eurocentric assumptions of colonial cultural anthropology and development studies. However, modernization has remained a dominant theme in the study of the global South, and the nations of the South are measured by the extent to which they modernize. For the most part, those nations have acquiesced with the imperative to modernize in the terms established by the West. Rather than imagining and establishing radically different ways of ordering social and political life based on Indigenous institutions and norms, nations like Ghana have chosen to adopt and adapt the “modern” forms inherited from colonial powers.
The devaluation of Indigenous modes of knowledge and cultural production from the global South is an important factor in the status of such knowledge and culture in IP law. The first IP laws emerged in Europe at the time that Enlightenment thought was leading to changes in ideas of human subjectivity and science. As a result, where cultural production had been collective and built openly on existing work, copyright laws institutionalized new conceptions of cultural production as individual and original, de-emphasizing links to existing work. IP laws therefore conceived of knowledge, culture and their alienability in ways that were new to Europe and also very specific to European nations. They represented ways of conceiving of knowledge and culture that were by no means universal but culturally specific.
European global dominance – a dominance shared by settler nations like the US, Canada and Australia – led to the globalization of the conceptions of knowledge and cultural production embedded in the IP laws of Western European nations in the eighteenth and nineteenth centuries. Although the laws themselves were not globalized until the late twentieth century (Oguamanam, 2004), their basic precepts were embedded in national laws around the world as former colonies became independent and adopted “modern” laws. For example, in Ghana those laws were simply British colonial laws that were gradually modified to reflect national priorities. However, their underlying premises were often left intact, and this was the case with the IP and CP laws that Ghana inherited from Britain.
These conceptions of knowledge and cultural production have proved inimical to the interests of peoples of the global South in the twentieth and twenty-first centuries. As these peoples have sought protection for their knowledge and cultural production, their ways of producing that knowledge and culture have been held to the standards embedded in IP law, and they have been deemed ineligible for protection by those standards ostensibly because they are not produced according to the individualistic subjectivity and creativity privileged by IP law (Anderson, 2005). In fact, the differences between Western norms of creativity and those in the cultural production of the South are not always as extreme or as absolute as claimed (Boateng, 2011a and b, 2013). Yet, rather than being protected, the culture and knowledge of the global South has been treated as a kind of intellectual terra nullius by external groups and individuals who use them as the basis for “artistic” creations and “scientific” discovery. As I show in the next section, developments in both national and international IP regulations in the late twentieth and early twenty-first centuries have only worsened this problem.
Where colonization operated primarily through the direct control of territories and peoples using military, political and economic force, dominance in the post-WWII era has occurred through both direct and indirect means such as political and economic pressure exerted by the main world powers bilaterally and multilaterally. While feminist political scientists like Marianne Marchand and Anne Sisson Runyan (2011) have identified military power as a feature of US power and a factor of continuing importance in the contemporary world order, economic and political pressure have become key means of exercising power in the global economy. Economic power is exercised bilaterally between nations and also multilaterally through institutions like the World Bank and International Monetary Fund (IMF).
By the 1980s Ghana and several other nations in Africa and beyond were deeply indebted to the World Bank and IMF and subject to conditions imposed by those agencies. Also known as the Bretton Woods institutions, the World Bank and IMF were created after WWII to finance the rebuilding of Western Europe. Towards the end of the twentieth century those institutions’ primary focus shifted, as they became major lenders to former colonies. The 1980s also marked the rise of neoliberal economic policies that identified the market as more efficient and desirable than the state in distributing social goods.
As a condition for securing loans from the World Bank and IMF, several Third World nations were obliged to implement “Structural Adjustment Programs” (SAPs) that mandated such market-centered policies. The combined result of these external and internal factors is that political independence of African and other Third World nations has not been matched by economic independence or advancement. As a result, even though they are full members of international institutions like the UN because of their formal status as sovereign nation states, they have very little influence in the decision making of those institutions. The adverse consequences of that lack of influence are especially evident in the era of the World Trade Organization (WTO).
In the final decade of the twentieth century, the WTO emerged from the Bretton Woods institutions as an important means of coordinating the economic activities of member states and a key site for the exercise of global economic dominance (Aoki, 1998). By the time of its creation, information had become a major component of several national economies in what some identified as a progression from an industrial to an information age. Some of those nations, like the US, grew impatient with the UN-based World IP Organization (WIPO) as a means of safeguarding their economic interests in information. One source of frustration came from the relatively democratic procedures that gave all members an equal say in the organization’s decisions (Ryan, 1996). Prior to the WTO era, individual nations exercised a lot of discretion in the nature and extent of IP protections that they accorded each other’s cultural production (Oguamanam, 2004).
Consequently, the US and other major industrialized nations turned to the international trade arena where the General Agreement on Tariffs and Trade (GATT) was in the process of being reformed. In 1995 GATT was replaced by the WTO and one of the major agreements within the WTO was the Agreement on Trade Related Aspects of IP (TRIPS). Instead of the one-nation-one-vote procedures of WIPO, TRIPS provided the alternative of “linkage-based bargaining” in which bargaining power determined states’ ability to influence decision making (Ryan, 1996). With TRIPS, industrialized nations created IP norms that were legally binding and enforceable in ways that the conventions and agreements of WIPO were not. At the same time, it should be noted that despite its relatively democratic principles, WIPO cannot be viewed as existing apart from and in opposition to the WTO and TRIPS. Rather, as Keith Aoki observed, there has been an interpenetration of the “‘public international institutions’ of the UN with the ‘private’ IMF, World Bank and WTO” (1998: 14).
It is important to note that the linking of IP to trade was not in itself unique or unprecedented, since IP laws have had economic significance from their first inception in national laws. In the words of Chidi Oguamanam, “Chiefly, IPRs are capitalist creations, designed to serve the market economy and advance commercial interests as a matter of priority over cultural sensitivities” (2004: 145). Accordingly, the first international IP agreements, the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886), were enacted by European nations seeking to regulate access to their culture as it began to circulate beyond national borders. IP laws can therefore be viewed as intrinsically bound up with the commodification and economic circulation of knowledge and culture (Bettig, 1996; Oguamanam, 2004).
The advent of TRIPS reinforced this economic function of IP protection. In doing so, it reflected the priorities of the United States in a number of ways. For example, TRIPS makes provision for the patenting of plant material and other life forms (including human biological material). This follows a precedent established in US patent law in 1980 when such protection was first allowed (Aoki, 1998). That precedent was further reinforced by cases such as that of John Moore who unsuccessfully sued the Regents of the University of California for an interest in the lucrative patents derived from his spleen by doctors who treated him at the university’s Los Angeles medical center (Boyle, 1996). In a discussion of such practices in the Third World. Keith Aoki cites an article by Lisa Belkin in the New York Times Magazine in January 1998, reporting the harvesting of samples from people in a number of nations including Saudia Arabia, Ghana and Nigeria (Aoki, 1998: 46).
The provision in TRIPS that globalizes the IP protection of such practices beyond the US law is of particular importance for Indigenous people and local communities in Third World nations. As several critical legal scholars have argued along with Indigenous and Third World scholars and activists, much of the plant life that has become amenable to such protection originates in communities that do not benefit from the protections granted under TRIPS and national laws (Posey & Dutfield, 1996; Oguamanam, 2004). However, the protections are granted not to those communities but to those who can successfully claim to have identified and isolated the key ingredients in such plants and other biological (including human) material. The protections in question cover those methods of identification and isolation. In both the global North and South, the persons whose bodily material is exploited and privatized under such provisions also do not benefit from that exploitation.
In sum, as different kinds of information gained in value towards the end of the twentieth century, IP laws became important means of their regulation both nationally and internationally. The US, which in the nineteenth century “was considered to be the ‘Barbary Coast’ of IP” emerged as international IP enforcer-in-chief (Aoki, 1998: 24–25). It led the move to establish international IP regulation primarily as a trade issue structured by the Bretton Woods institutions and was successful in shaping the new TRIPS regime to its national IP norms, reflecting changes in those norms that were new in IP history and mandating them for the rest of the world. If IP norms have been malleable in the hands of the US, allowing the protection of new creative forms (such as software) and previously exempt forms (such as plant, animal and human material), they have proved unyielding in the face of the demands of Indigenous and Third World people for the protection of their knowledge and culture. As I discuss in the next section, a close examination of the bases on which IP norms have expanded and contracted so far suggests that there is scope for expanding them further in the interests of Indigenous and Third World people.
Cultural property laws appear to provide an alternative space for the protection of knowledge and culture from Indigenous peoples and Third World nations. It is worth remembering, however that those laws were not originally conceived with Indigenous peoples and the global South in mind. The first international cultural property convention, the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954), was a direct outcome of the Second World War and a response to the Nazi theft of cultural goods from people – especially Jewish people – in the territories they controlled. The language of the convention also suggests that it was a response to the wartime bombing of immovable cultural property – as much in Cologne, Germany, as in Coventry, England.
As important and necessary as the convention was in signaling the international community’s abhorrence at Nazi cultural appropriation, and regret at both Nazi and Allied destruction of major European cultural sites, it is telling that the parties to the convention did not appear to view the appropriation of Indigenous and other subject peoples’ culture as equally constituting theft and destruction. At the time the convention was signed, most of Africa was still under the colonial control of some of the parties to the convention. However, subsequent conventions governing cultural property have been more inclusive of the kinds of cultural property stolen by colonial powers. Those conventions include the UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (1970), and the UNESCO Convention for the Protection of the World Cultural and Natural Heritage (1972).
The description of cultural property in the 1970 convention includes the kinds of culture taken from Indigenous peoples and Third World nations under colonization, such as “products of archaeological excavations (including regular and clandestine) or of archaeological discoveries; elements of artistic or historical monuments or archaeological sites which have been dismembered; antiquities more than one hundred years old, such as inscriptions, coins and engraved seals; objects of ethnological interest” (UNESCO, 1970: 4). However, even as they acknowledge and provide the basis for both the protection and potential restitution of cultural goods, these descriptions conceive of cultural property in terms of European and North American ideas of science (archaeological discoveries), art and history (antiquities) and conceptions of the human (ethnological interest). They map onto the categories of colonial knowledge production where people deemed as the Other are indistinguishable from their artifacts. If cultural property laws seem better suited than IP laws to the protection of the culture of Indigenous peoples and the global South, the ways that they conceive of culture are as troubling as the exclusions of IP law. In addition, major international cultural property conventions assign cultural property primarily to national rather than sub-national groups like Indigenous peoples in nations such as Australia or ethnic groups in nations like Ghana.
Naomi Mezey (2007) has identified a preservationist tendency in cultural property laws that, contrary to the fluidity and dynamism of culture, render it static and frozen. This is, in part, a result of cultural property’s focus on identifying culture with specific groups of people, and in emphasizing property at the expense of culture. She states, “The paradox of cultural property is that it deals in culture and yet distorts and mummifies culture in its dealings with it. Cultural property not only misses the point, but perpetuates potentially harmful notions about cultures and groups in the name of trying to protect and preserve them” (2007: 2026). Using as her point of departure the controversy that led to the retiring of the University of Illinois’ mascot, Chief Illiniwek, Mezey argues instead for a focus on hybridity and cultural fusion even when, as in the case of Chief Illiniwek, members of a dominant group (white Americans) appropriate the culture of a subjugated group (Native Americans).
Mezey’s discussion does not extend to IP laws, but it is productive to consider those laws in relation to her main objection to cultural property. In Mezey’s argument, the preservationist tendencies of cultural property are invoked ostensibly in the interests of Native Americans, and Native American culture is rendered static in order to prevent the harm from its appropriation in the figure of Chief Illiniwek. It can be argued that IP law operates similarly to fix certain conceptions of what is and is not art and science in ways that exclude Indigenous culture and knowledge from protection (Anderson, 2005). It can further be argued that if cultural property norms were successfully invoked in the case of Chief Illiniwek, IP laws have not been as accommodating of the cultural interests of the global South. In a way, the two sets of law mirror each other while resting on similar conceptions of Indigenous and Third World people. The way that Ghana has used both kinds of law to protect local culture points to IP laws as the pre-eminent regulatory site for the protection of culture.
Ghana’s IP laws began as British colonial laws when the territory was still the British colony of the Gold Coast. The first copyright law, for example, was the Imperial Copyright Act of 1911 (Amegatcher, 1993). This was revised in 1960, 1985 and, most recently, in 2005 with each revision more closely reflecting both national interests and pressure from Ghanaian groups, especially musicians. The country also has industrial property laws that have reflected differing national priorities in the course of Ghana’s history since it gained independence in 1957. For example, for the last quarter of the twentieth century, Ghana’s industrial property laws included a sui generis textile designs registration decree originally aimed at protecting the local textile industry (Government of Ghana, 1973). IP has therefore been an active site of legislation and legal reform throughout Ghana’s history as an independent nation.
By contrast, Ghana has no cultural property laws as such. Rather, it has laws setting up institutions charged with handling issues relating to culture. Those institutions are the Museums and Monuments Board (GMMB) which, according to the Board website was established “in March 1957 – on the eve of Ghana’s independence – as a result of the merger of the then interim Council of the National Museum of the Gold Coast and the Monuments and Relics Commission” (GMMB, 2016). The legal instrument behind the merger was the Museum and Monuments Board Ordinance, a statute of the Gold Goast. In 1969 the Ordinance was repealed and replaced by the National Museum Act, which is still in force. In 1990, the government of Ghana passed the National Commission on Culture Law, establishing a second body charged with responsibility for Ghanaian culture. The Commission served as Ghana’s Ministry of Culture and was eventually replaced by the Ministry of Chieftaincy and Culture and, most recently, by the Ministry of Tourism, Culture and the Creative Arts.1 The law setting up the National Commission on Culture is still in force and gives that body (and its successors) oversight over the Museums and Monuments Board and other institutions including the National Theatre of Ghana, the Ghana Dance Ensemble, and the Bureau of Ghana Languages. Finally, in 2004, the Commission drew up a national cultural policy.
The language of the National Museum Act is evocative of the definitions of cultural property discussed earlier in addressing the sale, export and preservation of “antiquities” and “monuments.” In this, it is reflective of the Eurocentric conceptions of the culture of the South. The National Commission on Culture Law suggests a wider understanding of culture, that includes “the arts” as well as “cultural heritage” and “cultural workers,” while the National Cultural Policy provides more specificity in its discussion of different areas of Ghanaian culture including “the arts” and “heritage assets.” The GMMB website further expands on cultural heritage and identifies key elements of Ghana’s cultural heritage as:
• A varied collection of Forts and Castles, built and occupied by the Portuguese, Dutch, Danes, Swedes, Germans, French, British and Brandenburg-Prussians between the 15th and 20th Centuries
• Ten ancient Asante Traditional Buildings dating from the 17th Century to the early 20th Century
• Mosques in Northern Ghana
• Artefacts such as pots, stools, musical instruments, textiles, clothing, leather works, weapons, tools, carvings, masks, jewellery, ritual dolls
(GMMB, 2016)
Additional elements of that heritage include: “Adinkra symbols, Carved wooden stools, Festivals of the various ethnic groups, Gold weights, Kente cloth, Musical genres such as highlife and hiplife, Traditional and contemporary musical instruments, Traditional dances, Traditional ethnic music” (GMMB, 2016). While these elements of Ghanaian cultural heritage are evocative of some of the definitions and categories of cultural property, they are only indirectly constituted as objects of protection through legally established cultural institutions rather than directly under cultural property law.
The cultural property policy of 2004 defines culture as “the totality of the way of life evolved by our people through experience and reflection in our attempt to fashion a harmonious coexistence with our environment” (NCC, 2004: 9). The policy is also significant in emphasizing dynamism as a feature of Ghanaian culture. It states, culture is “a dynamic phenomenon . . . established by our concept of Sankofa, which establishes linkages with the positive aspects of our past and the present.” Sankofa symbolizes returning to the past to retrieve what has been forgotten, but the 2004 policy states that it also “affirms the co-existence of the past and the future in the present. It therefore embodies the attitude of our people to the interaction between traditional values and the demands of modern technology within the contemporary international cultural milieu” (NCC, 2004: 9).
Significantly, it is in the area of IP law that Ghana has tried to protect cultural forms originating from within its borders. For example, the textile designs registration decree of 1973 included the designs of Indigenous adinkra and kente cloth in its protection. Beginning in 1985, those designs were also protected under copyright law as elements of folklore, which the law defined to include elements of oral and material culture (Government of Ghana, 1985, 2005). In 2003 when Ghana passed a geographical indications law for the first time in its history, it included cultural items like kente cloth in the goods protected by the law (Government of Ghana, 2003).
While the protection of culture in Ghana is somewhat vague in the context of the legal and policy provisions that most resemble those of cultural property law, it is much clearer in the provisions of IP law. This seems to reflect the status of IP law as the dominant site of cultural protection especially in the WTO/TRIPS era of the late twentieth and early twenty-first century. This legal choice on the part of Ghana is especially interesting given the view that some of the cultural forms it protects under IP laws are ineligible for such protection. Indeed, Ghana’s copyright protection of adinkra and kente designs seems to confirm that view because the provisions of the law try to fit adinkra and kente to the law rather than fitting the law to local norms of authorship guiding the production of adinkra and kente cloth.
For example, in keeping with Western conventions of copyright protection, Ghana’s law only protects the expressions of kente and adinkra designs and not adinkra and kente cloth per se. However, the designs have their greatest value when expressed in the medium of cloth, and the copyright protection of the expressions alone is therefore inadequate (Boateng, 2011a and b). In addition, when Ghanaian activists protested against the state (rather than individuals or communities) claiming the rights to local culture when such culture was first included in copyright law in 1985, the state’s response was to recognize individual authorship of such culture in the 2005 revision of the law. However, communities and ethnic groups continue to be excluded from holding the rights to such culture. National cohesion has been invoked as a justification for that exclusion, but in privileging the state and individuals over communities, the copyright law imposes norms of authorship that are at variance with the local norms that guide the production of adinkra and kente and other kinds of local Ghanaian culture (Boateng, 2011a and b).
It is clear from these limitations that Ghana’s legal protection of local culture is far from perfect even though at first glance it appears to chart new ground in using IP law to protect cultural forms that are typically held to be ineligible for such protection. By separating designs from the medium of cloth, the law runs the risk of fragmenting what it protects. Similarly, making provision for the authorship rights of individuals but not of ethnic groups and communities also fragments local authorship norms by privileging individual over collective rights even though the authorship of many local cultural forms (including adinkra and kente cloth designs) is both individual and collective (Boateng, 2011a and b).
Ultimately, therefore, Ghana’s copyright protection of local culture reinforces the dominant Eurocentric authorship norms of IP law far more than it challenges them. Similarly, Ghana’s CP policies, especially regarding the cultural heritage listed at the GMMB website, begin with and simply add onto Western conceptions of such property. The cultural policy of 2004 goes a little further in conceiving of culture as dynamic and also in addressing itself to the conditions of cultural production that make dynamism possible. It does this by identifying the promotion of the arts (including “traditional arts”) as one of its goals and, unlike the GMMB, it distinguishes between the arts and “heritage assets”. The discussion of those heritage assets returns to the language of some international CP conventions in emphasizing recovery of stolen heritage assets. When it comes to culture conceived as “heritage,” therefore, the national cultural policy comes closer to the GMMB and is also suggestive of international CP norms.
Ghana’s IP protection of local culture stops well short of a radical interrogation or reimagining of culture that goes beyond the simple preservation of the end products of cultural processes to consideration of the conditions of cultural production that might offer new insights for legal norms of protection. CP, as implied in the GMMB’s category of “cultural heritage” and the cultural policy’s “heritage assets” also does not appear to go much beyond Western conceptions of such property. In both IP and CP (to the extent that Ghana has CP laws and policies), local and indigenous culture are ultimately fixed in ways that continue to be dominated by Western norms of culture and its protection. That fixing occurs through IP laws that uphold the convention of the individual or corporate/state author and owner of cultural production while CP policy fixes culture by conceiving of it in terms of antiquity and heritage.
When it comes to IP and CP, therefore, there seems to be a reluctance on the part of Ghanaian lawmakers and some policymakers to go far beyond the conceptions of culture and property embedded in Western IP and CP laws. Some of that reluctance may be a function of Ghana’s paradoxical situation as a society that seeks simultaneously to assert its modernity through laws that stay close to Western standards, while asserting its distinctiveness through cultural processes and products that have long been deemed non-modern. In resolving that contradiction, Ghana has so far tended to come down on the side of the cultures of property embedded in Western IP and CP frameworks in a kind of ongoing cultural neocolonialism. However, the cultural policy of 2004 disrupts this somewhat in making a distinction between arts and heritage assets. In making that distinction, it provides a potential basis for reimagining the protection of local culture in ways that incorporate Indigenous and local norms.
1 I am grateful to Zagba Oyortey, Director of the Ghana Museums and Monuments Board, for pointing out these changes.
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