The image is from Etsy

I. Introduction

In 2019, ARIPO published a report on Cultural Festivals & Events around Africa. The report helps in creating awareness and promotion of cultural events and festivals which in many ways benefit the member countries to ARIPO. It is a commendable step in attracting local and international tourism, creating awareness and protection of IPRs in those events.

The report however does not address the pertinent issues on cultural appropriation and recognition and the regimes under which to provide IP protection for the events. In this piece, the author attempts to define cultural appropriation and recognition; the difference between the two; the harms of cultural appropriation to the cultural tangible and intangible heritage and traditional knowledge. The piece concludes by proposing feasible measures and strategies to combat cultural appropriation harms.

II. Defining the terms

a. Cultural appropriation and Recognition

The term ‘appropriation’ has been defined loosely and highly politicised regarding critical cultural studies hence lacking in precision. The Merriam-Webster’s Dictionary offers two definitions of the verb ‘appropriate’ relevant to our current discourse: ‘to take exclusive possession of’’ and ‘to take or make use of without authority or right’. Etymologically, the term is derived from the Latin word appropriare, meaning ‘to make one’s own’ according to Merriam-Webster’s Dictionary. Cultural appropriation can be defined broadly as the use of a culture’s symbols, artifacts, genres, rituals, or technologies by members of another culture. Young, confining his definition of cultural appropriation to arts, and defines the term as the representation of cultural practices or experiences by cultural ‘outsiders’; ‘the use of artistic styles distinctive of cultural groups by non-members; and/or the procurement or continued possession of cultural objects by non-members or culturally distant institution’. Lastly, the often cited definition of cultural appropriation is ‘the taking-from a culture that is not one’s own-of intellectual property, cultural expressions or artifacts, history and ways of knowledge’. Merry asserts that this kind of ‘taking’ is always without the permission of the source community and there is always a power imbalance between the appropriating culture and the source culture.

For the term cultural recognition, Taylor defines as an acknowledgment of the way in which another’s identity is constituted within a single, distinct group cultural structure’. He further notes that the misrecognition of that culture can be a form of oppression as it causes individuals to internalize a demeaning image of their ancestral cultural identity. Proper recognition of cultural practices or the cultural knowledge systems require a keen understanding of culture and its distinctiveness. Cultural recognition is always a precursor to both protection and appropriation of the cultural products. For example, Susan Scafidi notes that before outsiders can appropriate a cultural product, they must first recognize its existence, source community and value.

III. Why is cultural appropriation important to the conversation of cultural practices/heritage?

Identifying cultural practices and heritage should be accompanied by literature or information on appropriation because it is from the latter that the former is put in use. In addition, any improper or wrongful appropriation of cultural practices and heritage can be a source of oppression. From Young’s definition there are many harms likely to result from cultural appropriation such as misrepresentation, assimilation, and loss of economic opportunity. There is also popular criticism on lack of compensation to the source communities for use of their cultural products and the resulting reputational harm from such use. Moreover, offensive or disparaging depiction, careless mimicking of appropriated culture do more harm than good to source communities. This notwithstanding, the loss of economic gains may by its nature be destructive to the religious or cultural use of a cultural product.

Further harm originates from the ontological and social disruption of the source communities. Sharoni argues that due to these harms e.g. misrepresentation, the appropriated cultural products have lost their authenticity and traditional meaning to the dominant culture. This results in total loss of identity by the source community because their being and autonomy is primarily realised in relation to the control of their cultural products.

Taken together, these injustices justify the steps by ARIPO to create awareness of the cultural festivals and events of its member States at the regional level.

IV. What can ARIPO and Other IP related International Organisations Do

The approach to cultural recognition and appropriation should be benefiting to both appropriating culture and source community. Protectionism may bar appropriation efforts and interactions between cultures. The resulting cultural essentialism – the assumption that all members of a category of people share one or several identifiable, defining cultural features – would simply render culture static and non-interactive. Therefore, a middle ground should be achieved. This should emanate from the proper understanding of how cross culture interaction should be conducted.

Many scholars have attempted to ‘positivize’ the term ‘cultural appropriation’ to mean intercultural transfer of knowledge, cultural borrowing etc. The point is that some cultural appropriation may in fact benefit source communities. This is particularly when the appropriating culture uses a source community’s cultural product originally and in an authentic manner abiding strictly with the meaning attached to its cultural product. But how can this be achieved? The author makes the following suggestion in an attempt.

As ARIPO has initiated the process, there is need to create awareness of the existing cultural products such as the cultural festivals and events listed by in the report. This coupled with the creation of rich databases, at national and continental levels, on cultural products detailing their nature, historical significance, original and proper meaning assigned to them. The databases would also contain the product’s value both intrinsic and market and rules of cultural appropriation drafted in consultation with the source community. Creating such knowledge system about cultural products would also enable systematic appropriation with clear methods of compensation.

For the above recommendations to work, ARIPO, national IPOs and other international organisations dealing with IP around cultural products such as traditional knowledge and folklore expressions, would need to jointly develop practical steps on identification and recognition. For instance, each national IPO could ensure all or majority of the cultural events in their country are documented and listed with ARIPO. These efforts could also extend to establish whether the listed cultural events are recognised and protected from cultural appropriation.

V. About the ARIPO Report

Whilst referencing Kenya, based on public notoriety, some of the events and festivals could include:

a. The Lake Turkana Festival: Loiyangalani
b. Mombasa Carnival
c. Africa Nouveau Festival
d. International Camel Derby Festival
e. Maulidi Festival
f.  Shela Hat Contest
g. Lamu Painters Festival
h. The rite of passage, Experience Culture and the Luhya Community, Experience Culture; Kikuyu Bridal Ceremony Roracio

VI. Impact of the report.

The impact of the report is/was to create awareness and promote cultural events and festivals in the ARIPO member States. This would promote tourism, allow promotion of cultural identity and heritage of the people. The overall impact of the report would thus translate into creating employment and contribute to the Country’s GDP.

VII. Conclusion.

Unfortunately, the report does not touch on the issue of copyright protection, cultural appropriation, and recognition in creative industry. The report documents cultural festivals and events with the aim of creating awareness and attract people to the market. The report also communicates that ARIPO considers these events to originate to the specific countries that they are attached to. However, the report should include a statement or provision on cultural appropriation. In fact, one would argue that spotlighting of the events would invite cultural appropriation if there is no effective regime to protect them.