Legal Frameworks for Protecting Traditional Cultural Expressions in West Africa

SUMMARY

The African Affairs Committee (Elizabeth Barad and Jason Spears, co-chairs)’s latest report, “Legal Frameworks for Protecting Traditional Cultural Expressions in West Africa,” describes the current state of the law with respect to copyright and other protections for traditional cultural expressions (TCEs) in West Africa. The existing legal framework—which includes copyright law, performers’ rights statutes, and other statutes that place stewardship in the hands of national governments (e.g., requiring prior authorization from designated government offices and payment of royalties to the government), along with two treaties among multiple African nations (which also involve policing by national governments and the payment of royalties to administrative bodies)—does not sufficiently protect the rights of indigenous communities over their cultural works and traditions from misuse or exploitation by others. The Committee argues that traditional communities would be better served by the development of a robust but focused tort-like remedy against exploitative or highly prejudicial uses of their TCEs, which would allow those communities to exercise a degree of self-determination over the use of their TCEs and direct financial remuneration to those communities most affected by misuse of their cultural works and traditions.

The purpose of the report is to find a mechanism which can protect TCEs when existing law does not offer any remedies for their infringement. This report suggests that West African legislatures grant traditional communities a tort-like remedy against exploitative or prejudicial uses of TCEs.