By Maama Adjoa Enyimnyam

• Jun 21, 2024
• 0 Comments

Folklore and Ethnic Expression

Folklore exists across the globe in many facets as a way to pass down core beliefs and values, customs, traditions and, sometimes myths. Folklore can be many things, a simple story, musical instrument, drawing, handicraft or even melody.[i]The Merriam-Webster dictionary defines folklore as the traditional customs, tales, sayings, dances, or art forms preserved among a people[ii]

Folklore is also defined by the Collins dictionary as the traditional stories, customs, and habits of a particular community or nation; or the unwritten literature of a people as expressed in folk tales, proverbs, riddles, songs, etc.[iii]

Under the Copyright Act 2005 of Ghana (Act 690), folklore is defined as the literary, artistic and scientific expressions belonging to the cultural heritage of Ghana which are created, preserved and developed by ethnic communities of Ghana or by an unidentified Ghanaian author, and includes kente and adinkra designs, where the author of the designs are not known, and any similar work designated under this Act to be works of folklore

Though the term folklore is not explicitly defined by the United Nations Educational, Scientific and Cultural Organisation (UNESCO) or the World Intellectual Property Organisation (WIPO), the term “Expressions of Folklore” is mentioned and defined in the Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions (hereinafter referred to as the Model Provisions) jointly developed by the two organisations. Under Section 2 of the Model Provisions, “expressions of folklore” are described as,

(a) productions consisting of characteristic elements of the traditional artistic heritage developed and maintained by a community of [name of the country] or by individuals reflecting the traditional artistic expectations of such a community, in particular: verbal expressions, such as folk tales, folk poetry and riddles; musical expressions, such as folk songs and instrumental music; expressions by action, such as folk dances, plays and artistic forms or rituals;

whether or not reduced to a material form;

and

(b) tangible expressions, such as: productions of folk art, in particular, drawings, paintings, carvings, sculptures, pottery, terracotta, mosaic, woodwork, metalware, jewellery, basket weaving, needlework, textiles, carpets, costumes; musical instruments; architectural forms.

The Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore within the framework of the African Regional Intellectual Property Organization (ARIPO) of which Ghana is a member, further defines expressions of folklore thus,

“Expressions of folklore” are any forms, whether tangible or intangible, in which traditional culture and knowledge are expressed, appear or are manifested, and comprise the following forms of expressions or combinations thereof:

(a) verbal expressions, such as but not limited to stories, epics, legends, poetry, riddles and other narratives; words, signs, names, and symbols;

(b) musical expressions, such as but not limited to songs and instrumental music;

(c) expressions by movement, such as but not limited to dances, plays, rituals and other performances; whether or not reduced to a material form; and

(d) tangible expressions, such as productions of art, in particular, drawings, designs, paintings (including body-painting), carvings, sculptures, pottery, terracotta, mosaic, woodwork, metal ware, jewelry, basketry, needlework, textiles, glassware, carpets, costumes; handicrafts; musical instruments; and architectural forms;

Simply put, folklore is a form of ethnic or cultural expression.[iv] Ethnic expression has been described by UNESCO as expressions which result from the creativity of individuals, groups and societies, and that have cultural content.[v] Since Folklore is a form of cultural expression, it is an ever-growing lore because culture is fluid and evolves. Ethnic expressions, also known as traditional cultural expressions often show the following characteristics,

1. It should be in a form capable of expression[vi];
2. It should form part of the identity and heritage of a traditional or indigenous community[vii];
3. It should be passed down from generation to generation[viii] either by verbal transmission or by imitation.[ix]
4. It is continuously utilised, circulated, evolved and developed within the community for many years
5. It should be created/developed and maintained by the community from whence it originates or individuals, known or unknown, within said community.[x]

The expression of folklore may be tangible (dances, sculptures, woven fabrics, jewellery, needlework etc), intangible (stories, proverbs, symbols, folktales) or a mix of both. A mix of the tangible and intangible elements of folklore would be illustrated in the publication of folklore using traditional characters and designs or in certain traditional dances aimed at depicting the history of a particular tribe or group. Due to the nature of folklore, it is impossible for it to be rigid or even be limited to a particular geographical space. Culture is fluid and spans many generations, likewise, folklore is intergenerational, flowing between generations and showcasing creativity through the centuries. The question that arises then, is what forms of folklore are afforded copyright protection?

Section 1 of Act 690 answers this question and states that a work is eligible for copyright protection so long as said work is an original created by a Ghanaian or a person ordinarily resident in Ghana, in a fixed medium and falls into any of the categories below,

1. literary works,
2. artistic works,
3. musical works,
4. sound recordings,
5. audio-visual works,
6. choreographic works,
7. derivative works, and
8. computer software or programmes.

From the above, expressions of folklore that would be eligible for copyright protection would include dances, songs, traditional music compositions, symbols, stories, woven fabrics, jewellery and sculptures, to mention a few.

The Rationale for Protecting Folklore under Copyright Law

To prevent exploitation and maintain the balance between the private interests of the ethnic group from which the folklore originates and the national identity that has since cloaked said folklore, many countries worldwide vest the copyright in folklore in the State for and on behalf of the citizens of said State.[xi]

According to Paul Kuruk[xii], some of the reasons behind the protection of folklore include,

1. The fear that indigenes may be short-changed or even harmed.
2. Degradation of cultural items to the extent that said items are placed and used outside of their cultural and traditional setting
3. Loss of cultural items to alien communities and museums
4. The need to protect and preserve folklore from foreign cultural influences
5. The need to enhance the revenue gaining power of indigenes and the State as a whole by giving indigenes and the State more control over the use of said folkloric works.

In line with similar reasoning, the Convention on the Protection and Promotion of the diversity of Cultural Expressions states in its preamble, that because cultural diversity forms a common heritage of humanity, it should be cherished and preserved for the benefit of all. The objectives of the Convention[xiii] as regards the protection of folklore are to,

1. Protect and promote the diversity of cultural expressions;
2. Create the conditions for cultures to flourish and to freely interact in a mutually beneficial manner;
3. Encourage dialogue among cultures with a view to ensuring wider and balanced cultural exchanges in the world in favour of intercultural respect and a culture of peace;
4. Foster interculturality in order to develop cultural interaction in the spirit of building bridges among peoples;
5. Promote respect for the diversity of cultural expressions and raise awareness of its value at the local, national and international levels;
6. Reaffirm the importance of the link between culture and development for all countries, particularly for developing countries, and to support actions undertaken nationally and internationally to secure recognition of the true value of this link;
7. Give recognition to the distinctive nature of cultural activities, goods and services as vehicles of identity, values and meaning;
8. Reaffirm the sovereign rights of States to maintain, adopt and implement policies and measures that they deem appropriate for the protection and promotion of the diversity of cultural expressions on their territory;
9. Strengthen international cooperation and solidarity in a spirit of partnership with a view, in particular, to enhancing the capacities of developing countries in order to protect and promote the diversity of cultural expressions.

Who Owns the Copyright in Folklore?

Although folklore is often recognised as originating from and belonging to a specific social group, to prevent the exploitation of folklore and protect cultural heritage, many countries worldwide vest the copyright in folklore in the State for and on behalf of the citizens of said State. Copyright protection is generally granted to create a balance between public and private interests.

There are two broad categories of rights protected under copyright law, i.e., moral and economic rights.  Moral rights pertain to the right to be recognised as the author of a protected work and prevent the distortion and the mutilation of the author’s work in a manner that is prejudicial to the author or violates their integrity. Under Article 6bis of the Berne Convention, moral rights are independent of the author’s economic rights and cannot be transferred.[xiv] Article 6bis (1) provides,

“Independently of the author’s economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honour or reputation.”

Per the provisions of section 4 of Act 690, expressions of folklore are protected against (a) reproduction, (b) communication to the public by performance, broadcasting, distribution by cable or other means, and (c) adaptation, translation and other transformation. These rights are vested in the President on behalf of and in trust for Ghanaians in perpetuity.[xv] Since moral rights exist in perpetuity and cannot be transferred, the moral rights to folklore continue to be vested in its author(s) and/owner(s) – where owners could be an individual or the entire ethnic group as folklore is based mainly on ethnic culture. For this reason, acknowledgment is oft given to the individual credited with its creation or the ethnic group from which the folklore hails. This acknowledgement is demonstrated in Sections 10 and 16 of The Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore which acknowledges that folklore and traditional knowledge may be distinctly associated with an ethnic group and/or held by an individual.

Under Article 12 of the Trade-Related Aspects of Intellectual Property Rights (TRIPS), protection of copyright is for the life of the author and/or rights holder and a minimum of 50 years after the death of said individual, and this applies to economic rights. In line with the TRIPS Agreement, copyright protection under Act 690 is for the life of the author and seventy (70) years after their death.[xvi] Under the Berne Convention, the provisions of Article 6bis (2) of the Convention on the duration of protection state that protection for moral rights should be maintained until the expiration of the economic rights in the work at the very least.[xvii] In a laudable move by the legislative arm, moral rights under Section 18 of Act 690 exist in perpetuity. Section 18 aforementioned reads, "The moral rights of authors under section 6 exist in perpetuity and these rights shall be enforceable by the author, during the lifetime of the author, and after the author's death, by the author's successors whether or not the economic rights vested in the author under section 5 are still vested in the author or the successor in title of the author."

Section 6 of Act 690 further provides,

“In addition to the economic rights referred to in section 5, the author of protected copyright work has the sole moral right

(a) to claim authorship of the work and in particular to demand that the name or pseudonym of the author be mentioned when any of the acts referred to in section 5 are done in relation to the work, and

(b) to object to and seek relief in connection with any distortion, mutilation or other modification of the work where that act would be or is prejudicial to the reputation of the author or where the work is discredited by the act.”

Economic rights, also referred to as rights of exploitation, grant exclusive protection to the holder of the rights concerning the economic benefits in the protected work. They reserve the right to produce, reproduce or perform the work in any manner or form or authorise the above actions. Unlike moral rights, economic rights may be alienated by operation of law and does not always reside in the author of the work. The economic rights to folklore in Ghana are divided between the ethnic community it belongs to and the President for and in trust of the people of Ghana. The rights to folklore and traditional knowledge per The Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore are inherent and any registration is merely of declaratory effect.[xviii] These rights are provided for in Section 5 of Act 690[xix] which states,

"Section 5—Economic rights of authors

The author of any protected copyright work has the exclusive economic right in respect of the work to do or authorise the doing of any of the following:

(a) the reproduction of the work in any manner or form,

(b) the translation, adaptation, arrangement or any other transformation of the work,

(c) the public performance, broadcasting and communication of the work to the public,

(d) the distribution to the public of originals or copies of the work by way of first sales or other first transfer of ownership, and

(e) the commercial rental to the public of originals or copies of the work"

The National Folklore Board

As earlier mentioned, folklore in Ghana is vested in the President for and on behalf of Ghanaians. To ensure effective management of the rights that pertain to Ghanaian folklore, Section 59 of Act 690 establishes a National Folklore Board to[xx];

1. administer, monitor and register expressions of folklore on behalf of the Republic,
2. maintain a register of expressions of folklore at the Copyright Office,
3. preserve and monitor the use of expressions of folklore in the Republic,
4. provide members of the public with information and advice on matters relating to folklore,
5. promote activities which will increase public awareness on the activities of the Board, and
6. promote activities for the dissemination of expressions of folklore within the Republic and abroad.

Per Section 64 of Act 690, save for the permitted uses of folklore under Section 19 of Act 690, an individual is required to register with the National Folklore Board for the use and commercialisation of folklore. This registration may or may not be accompanied by a fee depending on the use of the particular element of folklore in question. For instance, if a person merely wishes to use adinkra symbols as a cover art to a text book, such a use may come without a fee. However, if a person wishes to make and sell adinkra art, that person may be required to pay a fee. In addition to submitting the registration form, the applicant must attach a sample of the product incorporating elements of folklore. If the applicant is a company, then it must attach a copy of its certificate of incorporation, its annual returns and a cover letter bearing the stamp and seal of the company.

Permitted Use of Folklore

As mentioned in earlier paragraphs, save for the permitted uses of folklore under Section 19 of Act 690, an individual must register with the National Folklore Board to use elements of folklore, especially for commercialisation purposes. Under the aforementioned Section 19, folklore may be used without registration with the Board, provided that it is compatible with fair use and practice, in the following instances;

1. If the reproduction, translation, adaptation, arrangement or other transformation of the elements of folklore is for exclusive personal use provided the work is public, which in this case would usually be, and the individual is a natural person. An example of this would be weaving kente/fugu to sew one’s personal outfits as happens with traditional celebrations.
2. If the user includes the source or the author in another piece of work, usually literary, including but not limited to newspaper articles, press summaries and periodicals.
3. If the user uses the elements as illustrations in publications, sound broadcasts, and visual recordings for the purpose of teaching and for use in educational institutions and public education
4. If the user uses elements of folklore in articles (including newspaper articles), public commentaries and discourse where a statement of the source of the folklore is stated unless there is an express prohibition on the use of those elements of folklore.
5. If the user is a new medium and the purpose for the use of the folklore is to report fresh news or new information to keep the public abreast with current affairs.
6. If it the work is a cinematic/televised piece and involves use of publicly displayed works, including audio-visual work as a background incidental to the substantive content of the said work.
7. If the work was a political speech delivered in public, a speech delivered during legal proceedings, a lecture, sermon, address or similar work to report current affairs.
8. If the work is meant to be temporary and for the purpose of making a digitally stored work or used in the process of a digital transmission with all the necessary consents and permissions

The Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore though signed by Ghana is yet to be ratified into law. However, this does not mean that it is wholly inapplicable in Ghana, the application of the provisions of the Swakopmund Protocol is presently of persuasive effect and any Court of competent jurisdiction may avert its focus to the Protocol where the need arises. Under the Swakopmund Protocol[xxi], all measures for protection of folklore must be such that,

1. the measures are not restrictive or a hindrance to the regular use, development, exchange, distribution and transmission of the expressions of folklore within the traditional or customary context by members of the community concerned, as determined by customary laws and practices;
2. the measures extend only to uses of expressions of folklore taking place outside their traditional or customary context, whether or not for commercial gain;
3. the measures are subject to exceptions in order to address the needs of non-commercial use, such as teaching and research, personal or private use, criticism or review, reporting of current events, use in the course of legal proceedings, the making of recordings and reproductions of expressions of folklore for inclusion in an archive or inventory exclusively for the purposes of safeguarding cultural heritage, and incidental uses.

According to the commentary on the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and other Prejudicial Actions incidental utilization[xxii] means,

“utilization of any expression of folklore that can be seen or heard in the course of a current event for the purposes of reporting on that current event by means of photography, broadcasting or sound or visual recording, provided that the extent of such utilization is justified by the informatory purpose;

And utilization of objects containing the expressions of folklore which are permanently located in a place where they can be viewed by the public, if the utilization consists in including their image in a photograph, in a film or in a television broadcast.”

Thus, if the use falls within any of the categories above, it is permissible.

Challenges and Recommendations Facing the Protection and Use of Folklore

The protection of folklore does not come without its own unique set of challenges. The author in this part will discuss some challenges and make recommendations to same.

With the increase in migration and the resulting globalisation many cultures are merging.  The fast pace of technological advancements means that the rate at which cultures are being shared across borders is practically at the speed of light. This is reflected most especially in the entertainment scene where sounds are often sampled and interpolated. For instance, highlife[xxiii] which is a Ghanaian sound and genre of music morphed into afrobeats which has taken the world by storm. As of date, there are Korean artistes who are attempting to enter the afrobeats space. Another example is with culinary skills, traditions and practices particularly with the emergence of culture fusion restaurants and eateries. Last but not least is the fashion industry which has become a place for indigenes from different cultures to present their dressing and fashion cultures to the world.  As a result, cultures are fast becoming blended and the line between what is an expression of folklore and what is not is getting blurrier by the day.

One other challenge faced in the protection of folklore is the loss of knowledge. Day in, day out, indigenous practices are being lost as there is no one to pass down the knowledge. Oftentimes, indigenous knowledge is passed down orally. The problem with this arises with the appointment of custodians of that knowledge as many people are leaving their indigenous towns in search of greener pastures. Further, there are often disputes, some of which take over a decade to resolve, on whom to appoint. This makes it difficult for knowledge to be passed down to the coming generation. It is also worthy of note that some of these modes of passing down knowledge are antiquated and thus rouse no interest in the younger generation. Consequently, there is no one to pass the knowledge to at the end of the day and the practice dies.

Quite ironically, the cure to both the loss of folklore and the fast pace at which cultures are merging lies in more technology: digitisation. Communities need to be encouraged to archive their folklore in digital form such that at all times there is a record of said expression of folklore. This would help mitigate the occurrence of folklore losing its inherent nature and value with the migration of persons and transfer of skills across countries. Digital archiving would also ensure that traditional knowledge and folklore is preserved through our generations. There might not always be time for oratories, but a digital file is always on hand when needed. Digital archives would also encourage younger generations to seek out traditional knowledge because it is now easily accessible and in a format that most people can understand.

Another challenge faced in the protection of folklore is the territorial nature of copyright protection vis-à-vis the occurrence of shared cultures particularly across border towns. A perfect illustration of this is the shared language and culture between Ewes from Volta Region in Ghana and Togolese Ewes, and between Ivorians and Nzemas. In section 44 of, Act 690, it is an offence for an individual to sell, offer or expose for sale or distribution in the country copies of (a) works of folklore made in or outside the Republic, or (b) translations, adaptations, arrangements of folklore made outside the Republic, without the permission in writing of the National Folklore Board.

However, with the shared nature of cultural practices across border towns and across groups that for one reason or another are straddled between two countries, would an expression of folklore in a border town like Togo by Togolese Ewes be considered an offence under section 44 because Ghanaian Ewes have a similar or even the same expression of folklore? What would this mean for trade and comity between these towns and groups who share a common ancestry and tradition? Further if a Ghanaian Ewe visits Togo and participates in such an expression of folklore would they be liable criminally under said section 44 upon return to Ghana?  the Ghanaian Ewes criminally violate the Ghanaian law?

Paul Kuruk[xxiv] opines that such an enigma could be resolved by broadening the scope of ethnic communities and ensuring that folklore protection laws take cognisance of shared histories, traditions, cultures and practices across border towns. The author herein agrees with this take and adds that this protection ought to extend to sub-regions under economic and other such trade blocs like the Economic Community of West African States (ECOWAS) and the African Continental Free Trade Area (AfCFTA). This would be in line with the spirit of section 5.4 of the Swakopmund Protocol.

In addition to the sharing of cultures across border towns, there is even the translation of cultures across continents. Unfortunate as the slave trade era is, it has led to the migration of several cultures beyond their homes of origin. For instance, although Ananse is of Ghanaian origin, throughout the Caribbean Islands, there is much folklore pertaining to the same character, but with a variant in the spelling of the character’s name as Anansi, Anancy or Ananci.[xxv] The character Anancy has even travelled from the Caribbean islands to the shores of Costa Rica and has been the subject of many children’s books and publications sold in these countries. Paulette Ramsay puts it this way, “As a central aspect of the African Oral tradition which forms part of Duncan's literary repertoire, Anancy underscores the undeniable links of the Afro-Costa Ricans of West Indian descent to the Caribbean” [xxvi] Another depiction is in the use of the Fon-Ewe deities and vodun practices in Haiti, Jamaica Brazil and Cuba.[xxvii] This occurrence poses a conflict due to the territorial nature of copyright as earlier highlighted, but on a larger scale as it is not just sharing of culture between members of the same ethnic group across two neighbouring countries, but the translation, practice and modification of cultural and ethnic practices across countries that are far and wide apart from each other.

To resolve this challenge, inter-continental comity is required. Countries with shared histories must recognise the various elements of folklore among them. There is also a need for inter-continental and diasporic associations to liaise with each other and ensure that the shared cultures are preserved. One laudable initiative taken by Ghana in this regard is the year of return campaign which encouraged all persons of African descent to make pilgrimage to the country as a form of homage to their African roots. This campaign can be extended to explore the many different ways in which Ghana and the Diasporic community are inter-connected and in regards to ethnic/cultural practices.

CONCLUSION

Folklore is a necessary part of national identity. Though protection of folklore comes with its challenges, a work in progress system for the protection of indigenous people’s rights and culture is crucial for to preserve and maintain the integrity of cultural practices while improving same without fear of said culture being appropriated or dissipated.