Rethinking Ghana’s Folklore Board’s Bid to Sue Black Panther Producers for Using Kente Without Authorisation.

Folklore according to the Copyright Act, 2005 (Act 690)^[1], means, “the literary, artistic and scientific expressions belonging to the cultural heritage of Ghana which are created, preserved and developed by ethnic communities of Ghana or by an unidentified Ghanaian author, and includes kente and adinkra designs, where the author of the designs is not known, and any similar work designed under the Act to be work of folklore” 

The very nature of the creation and authorship of folklore in Ghana is traditionally communal. Thus Act 690 per its section 4(2) vests the rights of folklore in the President on behalf of and in trust for the people of Ghana. This then informs the statute’s subsequent creation of the National Folklore Board (NFB) under section 59 to inter alia administer, monitor and preserve the use of expressions of folklore. 

The recent use of Ghana’s famous and celebrated traditional fabric, the kente, in some scenes of Marvel studios production of the record-breaking film the “BLACK PANTHER” without the appropriate permission did spark concerns and agitation by the NFB to institute a legal action against the movie producers.

But the real question is which law is the NFB drawing its source of authority and capacity to sue from? And which court will be seized with jurisdiction to hear this case?

Section 64 of Act 690 requires that a person who intends to use folklore for any purpose other than as permitted under section 19^[2] should apply to the NFB for permission in the prescribed form and that person shall pay a fee that the Board my determine. Clearly, the producers of the Black Panther did not seek permission from the NFB before featuring the piece(s) of kente cloth in the movie. Given however that there is currently no international protection of Traditional Cultural Expressions, which in this case would include Folklore, where would the legal suit commence? The complex and intricate designs and the very symbolic nature of the kente as identifying Ghanaian culture called for its unique protection among other Traditional Cultural Expressions as Folklore under Act 690. We must however, not lose sight of the fact that Ghana’s Copyright Act, is primarily territorial. The very wording of Section 63(c) attests to this fact and states that “the Board shall (c) preserve and monitor the use of expressions of folklore in the Republic”. 

The Copyright laws of Ghana does not transcend beyond the territorial jurisdiction of Ghana to the United States of America. That is to say that provisions in national legislation on folklore protection are insufficient to ensure compliance oversees.^[3] Folklore rights in Ghana exist in perpetuity.^[4] What this means is that the rights will never be part of the public domain.^[5] The USA, on the other hand, does not recognize folklore protection in their federal laws. On the contrary, they recognise the dissemination of expressions of folklore as in the case of the kente as work in the public domain and therefore free for the taking.^[6] This makes one wonder, which law(s) will the NFB evoke to enforce the right against Marvel Studios?  Granted that the first question is answered in the affirmative in favour of Ghana, which court will have jurisdiction to determine the matter? Will it be the Ghanaian court which is seised with jurisdiction to enforce its laws? Will the dictates of the Ghanaian civil procedure rules^[7] support Marvel Studio being sued as a defendant in Ghana?^[8]

Granted that it does, how would the judgment be enforced where need be against the defendants when judgment recognition law largely is determined at the state rather than the federal level?^[9] Does Ghana have a reciprocal enforcement of judgment agreement with the state concerned? Short of answering and filling these gaps it is my humble opinion that the rights and powers given the NFB to protect folklore will for now remain otiose in international enforcement. 

In the spate however of growing abuse and misappropriation of Ghana’s Folklore(s) as noted by the director of NFB, in respect of several other folklore expressions^[10], it is now time for the nation to pay attention to the protection and enforcement of IP rights in Ghana. On the international platform, WIPO has led the exploring of international efforts in protecting traditional cultural expressions and intellectual property via IP protections^[11].

Ghana must prominently work in tandem with regional bodies to push for the international protection for Traditional Cultural Expressions. This is a major structural gap in international law and only a multilateral solution can adequately augment the efforts made by national and regional legislations to address the specific problems facing the protection of Traditional cultural Expressions.^[12]

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^[1]Section 76

^[2]Section 19 of Act 690 provides generally for permitted uses of copyright works 

^[3]Asmah, J., “Historical Threads: Intellectual Property Protection of Traditional Textile Designs: The Ghanaian Experience and African Perspective” (2008) International Journal of Cultural Property (2008) 15:271-296. Available at http://www.cambridge.org/core/terms.https://doi.org/10.1017/S0940739108080168. <Accessed on 6^thSeptember, 2019>

^[4]Section 17 of Act 690

^[5]See n (3)

^[6]Authors, Press News and More. Questions and Answers with Boatemaa Boateng, on her book “Examining Ghana’s use of intellectual property law to protect adinkra and kente fabrics”. University of Minnesota Press Blog. Posted on April 27. 2011.<Accessed on 6^thSeptember, 2019>

^[7]High Court (Civil Procedure) Rules, 2004. (CI 47).

^[8]Order 3 r. 5 “all other causes or matters shall be commenced in the Region in which the defendant resides or carries on business”

^[9]Band, Ronald A., New Challenges in the recognition and Enforcement of Judgments (September 7, 2018). Forthcoming in The Continuing Relevance of Private International Law and Its Challenges (F. Ferrari & Diego P. Fernandez Arroyo eds., Elgar, in print); U. of Pittsburgh Legal Studies Research Paper No. 2018-19. Available at SSRN: https://ssrn.com/abstract=3246053<Accessed on 9^thSeptember, 2019>

^[10]GhanaWeb, “Ghana to sue producers of Black Panther movie”. Entertainment of Friday, 24 May 2019. Available at http://ghanaweb.com. <Accessed on 9th September, 2019>

^[11]The Thirty- Fourth Session on WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGG). Geneva, Switzerland from June 12 to June 16, 2017. Available at http://www.wipo.int<Accessed on 9^thNovember, 2019>

^[12]Jaszi, P. “Protecting traditional cultural expressions- some questions for lawmakers”, (2007) August, WIPO MAGAZINE. Available at http://www.wipo.int.>article_0002<Accessed on 8^thSeptember, 2019>