PICTURE: Cultural products should be patented to protect local people and communities from cultural theft by third parties.
IN the previous episode, we looked at the similarities and differences of patent, copyright and trademark and how communities and people have failed to patent their cultural products. In this article, we want to answer if communities can patent their culture for tourism purpose. Cultural products like music, medicine, dances, art, craft, food, folklore, traditional knowledge and names, are marketable to cultural tourists and can be regarded as some of a community or a people’s social identity. These products are handed down generations. Elderly people of society habitually expect the young generation to guard against their culture the way inventors guard against their products by officially obtaining legal patent rights from sovereign states. Communities don’t acquire legal protection of their products, but educate their off-springs to safeguard their culture.
Due to lack of patent rights, third parties usually derive new products without prior consent from unpatented cultural products. The “new inventions” are then patented, copyrighted or trademarked. The main problem lies with the lack of a cultural product protection framework even at international level up to this day.
During the Twenty Session of Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) held in Geneva in July 2014, World Intellectual Property Organisation suggested that it was essentially important for indigenous people and local communities to have scientific value of their traditional knowledge system.
IGC laid out objectives that include affording indigenous people or communities with legal and practical means to prevent the misappropriation of their traditional knowledge (agriculture, environment, medical knowledge, traditional lifestyles, natural resources and heritable resources).
It also outlined that it is vital to promote the equitable sharing of benefits arising from their use with prior informed consent or approval and involvement. The local people or communities are expected to use the traditional knowledge in a manner that respects the cultural norms, morals and practices of the beneficiaries. In that aspect, tourist would keep pouring.
Zimbabwe has a government arm responsible for culture; ministry of Rural Development, Preservation and Promotion of Culture and Heritage. Since the country has still to acquire a National Culture Policy, it should at least consider incorporating the issue of patents and cultural theft. Guided by the IGC proposal, the ministry should at least help people and communities fight against cultural theft. The indigenous people and communities should be empowered to enjoy the benefits of their creativity. If anybody wants to utilize such, s/he should partner the responsible community or people. The authority should curb communities losing to third parties due to the lack of legal framework. We should learn from a local case.
In preceding years, the practice of circumcision was taken as valuable to certain people; especially those linked to Jewish tradition like the VaRemba and also the VaTsonga. The cultural product was never patented. Present day, health institutions are racking in millions if not billions of dollars in the name of the circumcision.
They claim that the practice is healthy. As the norm with most third parties, they didn’t partner the originators of the practices. Instead, they even claimed that the native people are doing it “unsafe” and should practice their tradition using surgical methods which are “safe” and “smart.”
Culture can be patented for tourism. Cultural tourists tend to enjoy experiencing undiluted culture at the source. It is possible that people and communities that have cultural products which cultural tourists take pleasure in can patent their culture. Patenting prevents cultural dilution due to cheap imitation by some third parties.
The protection can only make sense if we consider practices that have not already been misappropriated. Reversing misused traditional knowledge might be an uphill task or even a non-starter unless a global legal framework gets into effect. The only hope for patenting culture lies with the Intergovernmental agreement on the issue.
In the article, we mentioned VaRemba people as pacesetters of circumcision. What other cultural tourism products do they offer? The forthcoming article shall discuss the issue.