1. Restaurants and airports named 'Shaka' may soon have to
pay royalties to King Goodwill Zwelithini.
ZULU!©
COPYRIGHTING CULTUREWords: Lizeka Mda
“SAY WHAT?”
“HUH?”
“NOW THERE’S A THOUGHT…”
THESE ARE THE MORE BENIGN REACTIONS
on learning that King Goodwill Zwelithini of the Zulus
is seeking to patent Zulu culture.
The more sceptical immediately assume that this
is some nefarious scheme by the Zulu king to get rich
quickly, at the expense of his subjects.
Few seem aware that there is legislation in South
Africa –intended to protect indigenous cultures – that
could enable Zwelithini to do this.
The Intellectual Property Law Amendment
Act (IPLAA) was signed into law by South African
President Jacob Zuma in 2013, and is intended to
recognise, protect and license various manifestations
of indigenous knowledge as a species of intellectual
property (IP). It does that by amending existing IP
laws: the Performers Protection Act, Copyright Act,
Trade Marks Act and the Designs Act.
The champion of the Zulu patent is lawyer Darren
Olivier, of the Adams and Adams law firm.
“The idea is to recognise, compensate and
incentivise, give money back to people who
create things.”
Olivier says Africa has always been plundered –
for her resources, for her indigenous knowledge, for
her creativity. He sees the Act and Zwelithini’s quest
as opportunities for Africa to get something back.
From Olivier’s point of view, ‘traditional
knowledge’ in Zulu culture refers to, among others,
certain cultural expressions such as pots, baskets
and beadwork, poems, dances, songs, as well as such
things as herbal medicine. It encompasses the royal
greeting “Bayede!” and anything to do with King
Shaka and his descendants.
The new IP Act will make all of these unavailable
for use in commerce as other people’s trademarks.
Transgressors will have to pay royalties to the
traditional community.
The Act is not yet enforced because regulations
still need to be formulated and structures set up to
implement it. This will include creating a traditional
knowledge register that specifies what is protected,
how this would work, who will enforce it, who will
collect the money and who will determine the amount
of money to be paid.
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2. Olivier says they are busy identifying what IP might
belong to the Zulu community, setting up a trust structure
to allow the beneficiaries to be paid out, and a system
through which to apply.
“We are also in the process of identifying people who
are misusing Zulu branding,” says Olivier. “For example,
there are Shaka restaurants, computer games that make
use of Zulu games and fighting techniques, and even a
Zulu rum product. We are waiting for the right time to take
appropriate action. Without this legislation it creates a
free-for-all.”
It is never going to work, according to Dr Owen Dean,
a Western Cape-based specialist in IP law. The Act is “an
exceptionally bad piece of legislation,” he says. “It is ill-
conceived, trying to do something that is impossible.”
His criticism is that under the Act traditional
knowledge will be dealt with under existing statutes,
which are not suited for traditional-knowledge protection.
The existing statutes deal specifically with copyright,
trademark designs, performance protection – all in line
with those of other countries, which means they offer
protection for things that can be protected elsewhere in
the world.
Dean explains that IP under the current statutes refers
to something newly created, and as the inventor you are
given protection for a limited period. When that period
has expired, it becomes free for public use.
Traditional knowledge, on the other hand, has been
around for hundreds of years. You cannot take something
that has been in the public domain already and protect it
using the same instruments as a new invention, according
to Dean. “What we need is totally new legislation that
deals with traditional knowledge,” he says.
The World Intellectual Property Organisation
(WIPO), a UN agency that promotes the protection of
IP throughout the world, has been trying for 10 years to
come up with a formula and system to protect traditional
knowledge, Dean explains. New legislation would have
been based on the WIPO formula.
“We are the only country that has adopted this insane
position that you don’t need new legislation,” says Dean.
He believes the reason the new IP Act is not
operational is because there is no way to make it work.
Who and what a community is is far from clear in the
legislation, he says. And you can charge a royalty only if
you say you own something. “How can Zwelithini own
the word Bayede?” he asks.
“Also, assuming they find someone infringing
copyright … where is the money going to come from
to finance that litigation? This Act is an absolute
minefield!”
Away from the legal arguments is retired Professor
Pitika Ntuli, a cultural analyst, who feels that some
ceremonies, such as the reed dance, are ripe for
patenting.
What we need to think about, he says, is how
communities could realise the benefits of this. “The Act
says a community should form a trust, which requires
the appointment of juristic people, who legally deal
with these issues on behalf of the community.
“The important thing is: how does it translate to
benefiting people? On whose behalf are you doing this?
Who are the beneficiaries?”
This is a difficult question to answer – even for
Darren Olivier. He believes Zulu people can benefit
through their traditional leaders.
But what about urban-based Zulus, who have no
connection to the traditional leaderships?
Olivier concedes that it is complicated, especially
because Zulus live beyond South Africa’s borders. But
he says there is no reason not to use existing cultural
leadership structures, because the king of the Zulus is
recognised in the Constitution as such.
“This is an opportunity for the Zulu community to
use traditional knowledge to create growth, to enhance
job creation and to promote tourism in the same way
the British monarchy uses its fame,” says Olivier.
←
WE ARE ALSO IN THE
PROCESS OF IDENTIFYING
PEOPLE WHO ARE
MISUSING ZULU BRANDING
…
GalloImages/GettyImages/AFP/FILIPPOMONTEFORTE
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