PICTURE: Although not patented, Chikisa dress identifies the Ndau and Tsonga people. Mrs Shirley Mathonga (left) a fashion designer and her cousin who hail from Chipinge South have commercialised a Ndau cultural product of their origin.
WORLDWIDE, people have been passing on traditional resources like folk music, herbal medicines and remedies, indigenous names, indigenous designs, traditional dances, and traditional knowledge but no-one claims ownership of such. A debate then arises whether people can patent culture the same way inventions are patented by designers.
In order to understand the issue, let’s not confuse patent with copyright and trademark. What are the similarities and differences of patent, copyright and trademark?
A patent can be described as a set of intellectual property rights which are granted by a sovereign state to an inventor or assignee for a limited period of time (between 10 and 20 years) in exchange for detailed public disclosure of an invention. Patentable materials include machines, manufactured articles, industrial processes, and chemical compositions. The aim of patenting is to obtain legal protection against potential infringers, or at least to try to prevent others, from commercially making, using, selling, importing, or distributing a patented invention without prior permission.
A copyright is the exclusive and assignable legal right given to an originator of creative material for its use and distribution. Copyright material includes songs, books, movies, and works of art. Copyright laws vary from country to country. Typically, protection lasts for the life span of the author, plus 50 to 100 years after the author dies.
A trademark is a word, phrase, symbol, and/or design that are legally registered or established by use as representing a company or a product and uniquely distinguishes it from others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. Unlike patents and copyrights, trademarks do not expire after a set term of years. Instead, a trademark can last forever, so long as the owner continues to use the mark in commerce to indicate the source of goods and services.
In Zimbabwe, each people has own cultural creativities. For example, the cultural song “Ku bukalanga ndiko kanyi kwedu” identifies no other people than Kalangas of Tsholotsho the same way Muchongoyo dance identifies the Ndau people of Chipinge and Chimanimani.
We have the Remba people of Mberengwa culturally known for eating meat that is only slaughtered by one of their own, a feat now referred to as Halal in commercial circles. The Tsonga people of Chiredzi and Chipinge who are officially recognised as Shanganis as well as the Remba people are known for their circumcision practice. In such cases, can the Kalanga, Ndau, Remba and Tsonga people apply to the sovereign state to patent their songs, dances, food and practices?
The loophole
Patenting of cultural products has been resisted by some influential people who didn’t find comfort in granting patents even to industrial inventions. They claim that patents leads to monopoly which complicates social development. Has their claim benefitted communities where cultural products originate?
Host communities have nothing to show from their origination. It’s people from outside such communities who tend to capitalise on the unsuspecting natives. A good example is that of maheu. Being an African beverage which is prepared from maize meal and sorghum, maheu has not been a property of any one nutritionist or farmer, group or community. The drink was never owned in the context of private property. Africans have been consuming the traditional drink from time immemorial. Most African communities have been passing the tradition from generation to another.
With no community claiming patent rights, food processing companies jumped to commercialise the maheu drink. They added sugar and milk solids to make it more appealing. The originators of maheu culture themselves are now finding prestige in consuming the modified drink which commercial entities have registered under their trademarks.
It raises the following questions: Is it wrong to say cultural products were and shall remain a heritage which communities pass from generation to generation? Is it being conservative to claim that if one doesn’t originate from a people or community where a culture product emanates, commercialising such a heritage without partnering its originators is cultural theft? The introductory question still remains that since culture is communal, can it be patented for tourism? The forthcoming article shall discuss the question.