The Cultural Divide: traditional cultural expressions and the entertainment industry in developing economies.

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This study addresses a number of pertinent issues concerning Traditional Cultural Expressions (TCEs), specifically in relation to what they are and the dilemma surrounding ownership vis-à-vis custodianship in an environment that is biased towards protection of Intellectual Property Rights. The present inadequate legal recognition and, ultimately, insufficient international recognition and protection of TCEs has orchestrated the misappropriation of such works for the benefit of the entertainment industry and other economic sectors as well. The biggest underlying issue therefore is – whether TCEs should be recognized within the domain of Intellectual Property Rights. The fact that TCEs are considered as part of the public domain raises a key issues as to how they can be protected so as to serve the interests of ethnic communities, States, as well as the users of the TCEs. The claim made in this study is that because of the communal nature of ownership and difficulty in defining TCEs, this has contributed to their abuse by all users. The current origin-based I.P regimes are considered as inadequate in protecting TCEs which are mainly characterized by communal ownership and absence of fixation. This therefore calls for a specific sui generis regulatory mechanism that can address the interests of all stakeholders with a view of effective utilization of TCEs towards socio-economic development. On the regulatory scene, the study looks at International Instruments, Regional Treaties as well as select National Laws from Africa in evaluating the current adequacy of protection offered to TCEs. In this evaluation, it points out key principles that amount to protection of TCEs and scrutinizes their inclusiveness in the current regulatory mechanisms. The study also relies on multiple case studies to show the extent of TCE appropriation in different parts of the world. It brings in empirical findings drawn from field research, mainly in Uganda, to highlight stakeholder perspectives on various matters pertaining to the use of TCEs and how they can be used to generate socio-economic development. These findings, supported by theoretical arguments derived from secondary data, support the general claim made in this research over the need for a sui generis regulatory system over TCEs. Some of the fundamental concerns for TCE Custodians include preservation of their cultural values in the TCEs; entitlement to part of the royalties generated from usage; and the right of attribution. As such, the general recommendation presented for the realization of effective TCE usage, is an equal-based partnership between TCE Custodians and State Agencies. Under this arrangement, the right of self-determination by the Custodians is balanced out with State involvement in management and enforcement of TCE property rights. It is generally hoped that this study can be used as an impetus for further research in the development of sui generis policy and regulatory frameworks in the appreciation of Traditional Cultural Expressions in developing economies.
The is a dissertation submitted in partial fulfillment of the requirements for the degree of Doctor of the Science of Law in Law in the Graduate College of the University of Illinois at Urbana-Champaign, 2014.
Intellectual property - Cultural aspects - Developing countries, Intellectual property and culture, Traditional culutural expressions and Intellectual property - Developing countries