Balancing Rights: Copyright on African Heritage


It has been two years since the historic Jagger Library of the University of Cape Town was struck by a massive wildfire. As a result, a huge amount of the collection, which houses numerous important African works, was lost. This deprivation of African heritage probes serious questions about preservation, since digitization of the material could have circumvented their complete loss. Quoting Kawooya’s statement during the panel After the Fires: Digitising our Heritage; ‘With our current tools of technology, heritage should be able to be preserved. Why are we not doing it?’

Apart from the general time and costs digitization requires, one major bump in the road is copyright law. With its twists, turns, clauses and prohibitions, the world of intellectual property right seems, and I would argue just is, very daunting. While sources on what copyright entails and how to manage its regulations stretch far, a well-functioning protocol is still absent. Specifically for actors working in the field of African Heritage, there are crucial considerations to make in order to maintain a decolonial practice. Hence, the question stands: How can practitioners balance creators rights with public interest in the field of African Heritage?

To understand the sensitivities surrounding copyright in the African context, we first must reconsider how the concept came into being. Although the term copyright itself started being used much later, there is a consensus that its first form resides in the book privileges of 15th century Europe. Initiated in France, ownership rights were given to authors, publishers, and printers in order to safeguard their work. Authorship was however not a requisite to ownership and as a result publishers monopolized new and existing works (Khan, 2008). Intellectual property was thus historically substantiated by commercial and individualistic values, a legacy that is very much present in current day copyright law. So how does one rightfully apply copyright regulation regarding communally created work, traditional knowledge (TK) and traditional cultural expressions (TCE)?  How does one go about work that was never created for a commercial purpose?

The issues that rise with these questions are not new. Difficulties surrounding ownership of folklore were brought up in the years leading up to the revision of the Berne Convention in 1967. As countries of the Global South were considering signing, including the Independent Republic of Kenya, there was a big concern about the applicability of this 18th century European Copyright laws. Were these laws truly universal? (Breemen, 2018, p. 51). While the Convention adopted a clause for ‘unpublished works where the identity of the author is unknown,’ folklore was not included in the eventual document. Until this day, an international legal regulation for TCEs and TKs has not been installed, leaving a lot of issues surrounding African Heritage preservation, ownership, and distribution up for debate(Breemen, 2018, p. 54).

It just requires a quick glance at heritage theft and cultural exploitations across Africa to recognize the value of ownership rights. Think for example of the Louis Vuitton summer collection of 2012. A line that was completely inspired by the Shuka cloth of the Maasai, yet the ethnic group did not see a penny of the collection’s earnings. Judy Hermans, member of South-African parliament, stated, copyright law is vital to ensure the ability to ‘bear the fruit of our own creativity.’ Yet, should we commercialize every cultural aspect in order to reach this goal, and who will bear this fruit ? Will it be major corporations, nations, or the actual creators of the expression?

Going back to the balancing board, we must consider the public character of intellectual property. Culture is first and foremost a collective good. Africa’s rich heritage would have never been able to develop without cultural exchange, inspiration, adaptation and co-creation. Good access to African heritage sources furthermore creates more opportunities for researchers, making sure African perspectives are globally represented. Copyrighting stands in immediate contrast to these goals, as creators’ permission is required for almost all handlings of the product. Especially when digitizing heritage, copyright legislation inevitably slows down the process. Creating a deceleration that can become vital. In Kenya, we have seen this with the fire burning down the African Heritage House in 1976. More recently we saw it again with the destruction of the Jagger Library, both reminding us of the fragility of the continent’s heritage.

Should we then provide clauses in copyright legislation that allow us to preserve our heritage faster? Should we be installing regulations that are technologically flexible, leaving the next generations with less bureaucratic inconvenience? While these are pivotal questions in the debate, we must stay wary of preserving without creating public accessibility. Questioning copyrights relation to African heritage therefore remains a constant battle between pros and cons. Copyright and Heritage practitioners thereby being not clearly friends, not clearly foes (Belder, 2010, p. 213).

As long as African nations struggle to incorporate African forms of knowledge, ownership, and creation into their intellectual property legislation, the responsibility remains in the hands of the practitioner. If we want to conduct an ethical heritage practice that breaks historically shaped structures of inequality, we need an open dialogue and critical lens on matters such as copyright.

Anouk Boer

You can listen to the entire After the Fires: Digitising our Heritage panel at the Right to Research convening here:

Helpful Sources for Heritage Practitioners in Kenya

By Anouk Boer –  Heritage and Memory Studies Specialist

Leave a Reply

Your email address will not be published.