Promoting Cultural Heritage, Through Intellectual Property
Intellectual Property as the name suggested is (are) the product(s) of the mind and is a subject of protection like any other property or properties own and enjoy by people, hence it is protection under two main branches of law such as Copyright Law and Industrial Property Law with each of having subject matters for protection.
The Industrial Property Law covered protection of intellectual property rights (IPRs) such as trademark, patent, industrial design, geographical indications, plant varieties among others as per the Industrial Property Act and Regulations, Laws of The Gambia.
Whereas Copyright Law protected intellectual property rights (IPRs) such as literary, scientific and artistic works with players from performing, book or publishing, broadcasting, fashion, advertisement among other industries, including tangible and intangible cultural heritages as folklore and cultural expressions.
This brought to the fore as to what constitute our cultural heritage and measures that were put in place continue to be put in place for their protection at domestic, regional and international level and such were not limited to Berne Convention of 1886, which greatly inspired the 2004 Copyright and the 2018 Copyright Regulations of The Gambia, The UNESCO 2003 Convention for Safeguarding of Intangible Cultural Heritage among others.
The accepted definition given to cultural heritage is that legacy of physical artifacts and intangible attributes of a group or society inherited from past generations, maintained in the present and bestowed for the benefit of future generations. In essence cultural heritage(s) are things and traditions that express the way of life and thought of a particular society and also served as evidence of its intellectual and spiritual achievements. This greatly explained the term “heritage”, which is an embodiment of the notion of inheritance and handing over of something with a duty to preserve and protect it for the benefit and welfare of others, including generations to come.
The two types of heritages tangible and intangible heritages are all protectable under Copyright Laws such as the 1886 Berne Convention for protection of literary, artistic and scientific works, which greatly inspired the 2004 Copyright Act and the 2018 Copyright Regulations of The Gambia, the UNESCO 2003 Convention for Safeguarding of Intangible Cultural Heritage, the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict, which is commonly known as the Hague Convention, referring to movable and immovable property of great importance to the cultural heritage of every person. The 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property with emphasizes on properties, specifically those designated by state as being of great importance, The 1972 UNESCO Convention Concerning the Protection of the World Cultural and Natural Heritage that cited things, objects and natural sites of outstanding universal value as per the James Island now known as Kunta Kinteh Island in The Gambia, The Stone Circles in Wassu among others.
We also have what is called “Natural Heritage” that covered matters as the landscapes, the natural environment, including our flora and fauna all protectable under Copyright Laws as such heritage belongs to the community, the nation and humanity at large, hence the state and communities serve as their custodians for the benefit, interest and welfare of all, especially their communities.
In essence, tangible cultural heritages are physical things that we could touch and see with our eyes and such are not limited to buildings, historic places, monuments, books, works of art, artifacts among others considered to be worthy of preservation for the future. Whereas Intangible Cultural Heritage are those we could not touch, except when they are expressed into a tangible format and such intangible heritages are not limited to our traditions, folklore, language, rituals, songs, music, social practices, drama among others.
Intellectual Property as human rights
The promotion and protection of intellectual property rights (IRPs), including tangible and intangible cultural heritage is affirmed legal provisions at local, regional and international legal instruments not limited to the 1997 Constitution of The Gambia, the 1948 Universal Declaration of Human Rights, African Charter on Human and Peoples’ Rights, International Covenant on Economic, Social and Cultural Rights, International Covenant on Civil and Political Rights among other treaties, protocols and conventions across the globe, confirmed the importance attached to promotion and protection of heritage as stressed in the text of the cited 2003 UNESCO Convention for Safeguarding of the Intangible Cultural Heritage.
This text considered among others, the importance of the intangible cultural heritage as a mainspring of cultural diversity and a guarantee of sustainable development as underscored in the UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore of 1989, in the UNESCO Universal Declaration on Cultural Diversity of 2001, and in the Istanbul Declaration of 2002 adopted by the Third Round Table of Ministers of Culture. The text further considered what it called “the deep-seated interdependence between the intangible cultural heritage and the tangible cultural and natural heritage”.
It also recognized the processes of globalization and social transformation, alongside the conditions they create for renewed dialogue among communities, also give rise, as does the phenomenon of intolerance, to grave threats of deterioration, disappearance and destruction of the intangible cultural heritage, in particular owing to a lack of resources for safeguarding such heritage and aware of the universal will and the common concern to safeguard the intangible cultural heritage of humanity. It further recognizes the important role play by communities, especially indigenous communities, groups and in some cases, individuals, play an important role in the production, safeguarding, maintenance and re-creation of the intangible cultural heritage, thus helping to enrich cultural.
Article 11 of the text outlined the role of state parties in the following; That each state party shall take the necessary measures to ensure the safeguarding of the intangible cultural heritage present in its territory.
Whereas Article stated inventories meant to ensure identification with a view to safeguarding each State Party, who shall draw up in a manner geared to its own situation one or more inventories of the intangible cultural heritage present in its territory. These inventories shall be regularly updated.
Other important Articles were not limited to 14 on education, awareness and capacity building, Article 15 on participation of communities, groups and individuals, Article 17 on the list of intangible cultural heritages in need of urgent safeguarding among others.
By Sanna Jawara, Head of Copyright Office of The Gambia.
