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Monday, July 26, 2010

Protection of traditional knowledge in Uganda


A paper presented during International advanced training course on Intellectual Property Rights (IPR) for NAM and other developing countries, New Delhi India (12th to 17th July, 2010)

Title: Protection of traditional knowledge in Uganda

Author: Stephen Rwagweri Atwooki

Affiliation: Engabu Za Tooro
P.O Box 886, Fort Portal, Uganda
Tel: +256-772-469751
Email:engabuzatooro@gmail.com, engabuzatooro@infocom.co.ug
Facebook: Engabu Za Tooro
Blog: www.engabuzatooro.blogspot.com




Abstract
Uganda has diverse and rich traditional knowledge, covering socio-economic aspects of life like music, folklore, apprenticeship, handcraft, production, medicine, etc.
The modern civilization had threefold effects on the traditional knowledge; Some forms of traditional knowledge steadily disappearing, some remaining static and some prevailing through adaptation and integration in modern knowledge.
The Copyright and Intellectual Property rights laws in Uganda stem from the British Copyrights laws and Intellectual Property regimes. As a result, these laws are based on western modes of authorship and ownership and could not recognize Ugandan traditional forms of knowledge like oral traditions and folklore.
Traditional knowledge and Folklore in Uganda is not protected. The technical explanation is that traditional knowledge and folklore doesn’t meet the established international standards and criteria of copyright protection which define what, how and who can be protected and for how long. This has been just an intellectual debate among the lawyers and scholars of copyright law. The traditional knowledge sector itself is not developed to generate organized and sensitized practitioners to participate in the debate and generate demand for protection.
The production, presentation and distribution of different forms of traditional knowledge is not organized and developed to secure themselves for protection. Actors in traditional knowledge sector like cultural and traditional institutions and civic groups are not sensitized, organized and coordinated enough to pursue a common mission of organizing the sector and securing protection.
Some forms of traditional knowledge increasingly get threats of extinction due to failure to be relevant in the contemporary life, failure to cope with effects of high-tech modern communication, emerging hostile beliefs and value systems and imported forms of entertainment.
As traditional knowledge sector attempt to pursue protection, challenging questions emerge. Such questions include the definition of public domain, how rights are shared between original author and the one who re-invests and makes folklore relevant today? How to reconcile need for originality and need for adaptation?
It is recommended that Uganda first focus on programmes to re-invent and organize traditional knowledge so that it can meet some standards for protection and a study be undertaken of possibility of evolving a unique regime for protecting traditional knowledge.
Programmes of research, documentation and digital data systems for Uganda’s traditional knowledge should be developed like it has been done in India and South Africa.


Introduction
Uganda
Uganda is a landlocked East African country with a land area of 241,039 square kilometers and a population of 30 million people. The country’s GDP per capita stands at US $ 470.
Engabu Za Tooro
Engabu Za Tooro is a Ugandan non governmental organization promoting research and documentation of traditional knowledge and folklore. It is also accredited to WIPO’s Intergovernmental committee on intellectual property and genetic resources, traditional knowledge and folklore.
The organization is currently establishing a cultural centre to be an epicenter of traditional knowledge research and documentation and digital database development.
Why concern with Traditional Knowledge
Majority of indigenous and grassroots population in Uganda still rely on traditional knowledge for information and livelihood. Traditional knowledge inform scientific innovation. Therefore, there is need to give traditional knowledge its appropriate recognition.
The state of traditional knowledge in Uganda
Like any African society, Uganda has a rich and diverse stock of traditional knowledge in all human sectors like medicine, music, production, folklore, dance, apprenticeship and craftsmanship.
Uganda also has traditional and cultural institutions mandated to safeguard and perpetuate the traditional knowledge. Historically, Uganda had five major Kingdoms that included Bunyoro, Buganda, Ankole, Tooro and Busoga and chiefdoms in several parts of the country. These institutions traditionally had political and administrative powers which led to collision with colonial and post colonial central governments leading to their abolition in 1967. There was a three decade gap and then they were re-instated in 1993 as symbols of history and mandated to promote people’s cultural heritage.
However, most of these institutions to date have not moved beyond superficial mobilization to visible programmes that incarnate and build on people’s traditional knowledge. They are more often constrained by lack of funding and lured by political expediency.
We note that despite weaknesses and limitations, there are some emerging programmes in some kingdoms that build on, and promote traditional knowledge; examples are the Burungi Bwansi, Senga and Ekisakate programmes by Buganda Kingdom.
In Uganda there are some traditionalists and development workers who have organized themselves in regional and national associations to safeguard and promote some form of traditional knowledge.
These include;
§         The traditional herbalists who organized themselves into Buganda Nedaggala lyaayo
§         Performers of traditional dances and folklore who organized into Uganda Development Theatre Association (UDTA).
§         The community and private museum operators who have organized themselves into the Uganda Community Museums Association (UCMA)
§         Promoters of indigenous languages who have organized as Society for Advancement of Ugandan Languages (SAUL).
According to the mapping exercise done in 2007 by Cross Cultural Foundation of Uganda (CCFU), 23 organizations and projects in the country were using indigenous or traditional knowledge in development interventions in different socio-economic areas. One example of such project is Engabu Za Tooro in Western Uganda which creatively uses an indigenous tradition of an ancient Tooro heroine – Koogere – to promote women participation in development.
CCFU went ahead to network such initiatives for information exchange and capacity building. However, these efforts need to be consolidated and coordinated by networks to build a shared vision and a voice.
The threat of extinction of forms of traditional knowledge
Some aspects of traditional knowledge and folklore are facing threats of extinction. Many unique forms of traditional knowledge of minority communities with rich cultural diversity are endangered. Such forms include folklore and indigenous languages.
The threat, in the first place, is caused by the failure of some forms of traditional knowledge to adapt to the changing environment. This is actually the failure of the owners of the traditional knowledge to re-invent it so that it remains relevant in the changing circumstances. Duncan Smallman Edinburg argues that “a language survives only when it changes with the times.” Of course language is the custody of people’s traditional knowledge.
The second source of threat is the sophiscated modern communication technology. How do oral forms survive and remain valid in a high tech world in which communication is effected through email and cell phones?
The third source of threat comes from the mighty of imported forms of entertainment. Uganda like many other developing countries is often a dumping ground for a lot of undesirable forms of entertainment mainly from the West. These are packaged to be attractive especially to the youth. They eventually dominate the industry and the space, displacing traditional expression which is often not repackaged to be equally attractive.
The fourth source of threat is emerging beliefs and values that condemn some forms of traditional knowledge one by one. Many of these beliefs originate from, or are influenced by the colonial euro-centric mentality which used to blindly condemn anything indigenous and African as primitive and undesirable. So in most cases the judgment and condemnation of some forms of traditional knowledge, by the adherents of such beliefs and values, is subjective and based on prejudices.
In western Uganda, there is a religious sect which emerged only a few years back and it has condemned the local tradition and practice of pet names. It considers such, as satanic and calls their followers to condemn them. The pet name tradition is very rich and unique traditional heritage that is known to be found among only three communities in the whole world.
The law against witchcraft in Uganda which was drafted by foreign experts condemns some important aspects of people’s traditional heritage.
The response of the population about the threat of extinction of traditional knowledge has ranged from indifference to despair.
Intellectual Property rights laws in Uganda
It is important to note the different components of intellectual property rights and how they are covered by Ugandan legal system. The intellectual property rights components include; patent, copyrights, trade marks, designs, geographical indicators, integrated circuits and plant variety.
Uganda has patent (Amendment) Act 2002 for patent, copyright and Neighboring Rights Act, 2006 for copyright, the Trade Mark Act cap 217 laws of Uganda for trade mark, (Chapter 218, protection), laws of Uganda 1937 for industrial designs and draft plant variety protection bill which is presented before parliament.
Uganda has no any law covering geographical indication and integrated circuits.
Uganda is a member of the following international instruments; ARIPQ, PCT and WTO.
Uganda is not yet a member of Berne, Budapest, Madrid protocol, Strasburg UPOV and Paris Convention.
The government policy support to develop traditional knowledge has included;
·        Restoration of cultural institutions. However a question mark remains because they are disempowered to take on their natural and constitutional roles.
·        Setting up the Uganda national policy on culture which is facing a challenge of implementation due to lack of political will and budgetary support.
·        The policy on use of vernacular language at lower level of instruction (lower primary school level).
·        The development of the draft policy on traditional and complementary medicine.
·        Creation of a policy environment that allows the private investment in traditional knowledge and cultural sector.

At the same time, this support is inadequate;
·        The whole of culture sector has only 0.03 percent of the Uganda national budget
·        Culture is only a sub-department in the ministry of Gender, Labor and Social Development
·        Uganda has no national council on Arts and culture for policy support to the sector
·        Government has not invested in culture and heritage. There is only one national museum and national theatre built in the colonial era in the Capital City of Kampala.
·        The relevant international conventions like the 2005 UNESCO Convention on protection and promotion of diversity of cultural expression isn’t ratified.

This situation reflects government’s limited appreciation of the role traditional knowledge and heritage can play in national development. This also shows that the sectors itself is not organized and developed enough to package serious demands on the policy agenda and engage government

The protection of Traditional Knowledge in Uganda
Uganda’s copyrights laws and Intellectual Property Rights stem from the British copyright and ordinance of 1915, the copyright act of 1956 and from its intellectual property regime.
Quoting Okello Ogwang (Sillars, Johannessen and Dipio 2009), Uganda’s legislation on copyrights and intellectual property rights simply customized the British copyright and intellectual property legal regimes and therefore, unable to cover the non-Western intangible artistic and cultural forms like African Oral Tradition. The legislation accord minimal recognition to local and indigenous cultural forms and place high premium to Western models of authorship and ownership.
The 1964 Copyright Act restricted authorship to only cinemography and written works at the expense of oral tradition and intangible folklore forms. The copyright and neighboring rights 2006, under the section work eligible for copyrights, at the end of a long list it remotely mentions “any other work in field of literature, traditional folklore and knowledge.
Unlike in other types of works of Art, the law doesn’t present any details on production, presentation and distribution along which protection of traditional knowledge can be operationalised. It is observed for instance that the commercial and especially advertisement sector in Uganda exploit forms of folklore and oral tradition without any legal or ethical restrain.
The traditional knowledge in Uganda is not protected and there are no efforts yet to that effect. What exist is a one sided debate among the lawyers on whether Traditional Knowledge and folklore can qualify for protection under the copyrights and intellectual property regimes. The lawyers agree that the traditional knowledge doesn’t fit in the criteria and standards set to define who can be protected, what can be protected and for how long it can be protected.
The issues that disqualify traditional knowledge for protection under intellectual property principles are as follows;
1.     Ownership and authorship. While in copyright the author must be clearly known and identifiable, in traditional knowledge it is more often very difficult to identify the author. The creator is not known.
2.     While copyright aim at rewarding and encouraging individual creativity, traditional knowledge emphasize the collective interests and ownership.
3.     The principle of originality also doesn’t stand in the case of traditional knowledge which often is built by cumulative additions by many people of different generations.
4.     While in copyright the work must be written, recorded or reduced to material form, traditional knowledge is more often oral and if it is written it can not have been done by original author.
5.     Equally, the principle of duration as applied on copyright laws cannot be applied on different forms of Traditional Knowledge.
The emerging questions in the protection of traditional knowledge and folklore
In attempt to develop protection of traditional knowledge, there are challenging questions that begin to emerge.
What would be the definition of public domain in the context of African Traditional knowledge and folklore? Such definition should consider the African traditional systems of authorship, ownership, hereditary and intergenerational transfer of information. Who is the author of a piece of folklore which has existed for generations passed on by word of mouth? A piece of art could be created by imaginations of one person exclusively or by collective contributions. One piece may be an anthology of many contributors.
Who should claim authorship of a dying traditional art piece, the initial author or the one who re-invents, adds value and makes it relevant to today’s world? How do we reconcile the need to maintain authenticity and demand to adapt to new circumstances?
What do we do with important forms of traditional heritage being condemned by emerging beliefs and value systems and some forms of traditional knowledge being pirated from one society to another.
Recommendations
It is recommended that first and foremost, efforts should be focused on mobilizing the communities to reclaim the value and vitality of traditional knowledge and re-integrate it in the mainstream development process.
The traditional and cultural institutions in Uganda like the four major kingdoms (Buganda, Bunyoro, Tooro and Busoga) the chiefdoms like Kooki, Rwenzururu, Tien Adhola, Woni Nyachi and traditional clans should be encouraged to focus on their natural mandate of conserving and developing the traditional values and heritage.
The civil society and non governmental organization as facilitators of development should increase their focus on development of traditional knowledge. The role of civil society of building local and international networks, organizing the sector, generating demand for protection and directing public opinion on developing traditional knowledge is clearly missing.
A programme called Traditional Knowledge Development Programme has been conceptualized by practitioners with a mission of mobilizing communities to engage in a conscious process of organizing, re-inventing, securing, protecting and re-constructing traditional knowledge in the contemporary development. The programme shall coordinate and network practitioners from different components in traditional knowledge like folklore, traditional herbs/medicines, indigenous languages and music. It shall build networks for enhancing collective vision and voice in the sector and to catalyze organization development and protection of traditional knowledge.
A study should be carried out to look into the possibility of developing a unique intellectual property regime for the traditional knowledge in Uganda.
A digital database system of traditional knowledge should be developed in Uganda to safeguard against inappropriate use and piracy of Ugandan Traditional knowledge. Model case studies of such systems in developing countries include; Traditional Knowledge Digital Library (TKDL), Council of Scientific and Industrial Research – India and National Indigenous Knowledge Systems Department of Science and Technology, South Africa.
References
  1. Akubu Jeroline (2005). Challenges of current copyright regimes in protecting indigenous knowledge and African traditions. Uganda Law Reform Commission. KampalaUganda
  2. BBC story. The tragedy of dying languages.
  3. BBC, 2009. Saving Native American languages. Available at: http://news.bbc.co.uk/2/hi/americas/7964016.stm
  4. Cross Cultural Foundation of Uganda 2008. Culture in development in Uganda: Experiences and prospects. KampalaUganda.
  5. Interview with James Wasula – Executive Secretary of Uganda Performing Rights Association on 3rd July, 2010 in Kampala - Uganda
  6. Ministry of Labour, Gender and Social development, 2009. Uganda National Cultural Policy. KampalaUganda.
  7. Sillars S, Johannessen L, Dipio D (eds.) 2009. Performing Change. Novus Press, Oslo.
  8. COMPAS endogenous development magazine 2009.
  9. Uganda Copyright and Neighboring Act, 2006

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