Thursday, March 1 -7, 2007
Kente and Adinkra designs are protected
By: B.K. BOSUMPRAH
“KENTE” and “ADINKRA” designs are protected under the Ghana Copyright Act 2005, Act 690.
Adinkra designs fall into the domain of folklore because we cannot identify the individuals who created them. I am not sure if new Adinkra symbols are being created. In the case of Kente, the designs are partly copyright works and partly folklore.
Until the passage of Act 690, Adinkra and Kente designs were expressly omitted from protection under the Textile Designs Registration Law. That law protected textile designs or motifs that were manufactured by G.T.P., Akosombo Textiles, Vlisco etc. otherwise known as Java or wax prints.
In1985 the Copyright Law, P.N.D.C. Law 110 vested works of Ghanaian folklore in the Republic, as if the Republic created the works. Works of folklore were thus vested in the Republic in perpetuity in trust for the people of Ghana.
That law did not directly mention the protection of Adinkra and Kente designs. However, impliedly, P.N.D.C. Law 110, protected Adinkra and Kente designs by definition.
The Copyright Act 2005, Act 690 breaks new grounds by vesting works of Ghanaian folklore in the President in trust for the people of Ghana just like all other heritage or assets of the republic.
The Copyright Act defines folklore as follows: “Folklore means the literacy, artistic and scientific works 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 are not known, under this act, to be works of folklore.
It follows from the definition that works in the area of the arts, sciences and literature are protected by the Copyright Act, that is to say, our proverbs, poems, dirges, Adinkra and Kente are protected. The definition differentiates protection given to works of folklore from the protection of Copyright works.
Works of folklore refer to intellectual creativity that we cannot identify with a particular individual and for which reason such works are identified with particular communities. The Copyright in those works are vested in the President in trust for the people of Ghana, in perpetuity. Copyright is identified with particular individuals. It is protected during the life of the author and 70 years after the death of the author.
You will agree with me from the definition of the folklore that not all Kente designs are works of folklore. “Adwenasa” and other earlier designs many fall into the realm of folklore due to our inability to identify the creators of those designs.
“Fathia fata Nkrumah”, for example,
was designed to honour the
late President Nkrumah.
However, “Fathia fata Nkrumah” for example, was designed to honour the late President Nkrumah. That design if it had not been commissioned by the Republic, the Copyright in the design had to be vested in the designer. The creator of the design gets copyright protection under the Act for the lifetime of the creator of the design and 70 years after the death of the designer.
It is important for any person who creates a Kente design to register his or her design at the Copyright Office. Copyright protection though is without any formality, there are advantages to be obtained for registering the work, that is, the person who registers the work is presumed to be the owner of the work. Registration also provides evidence of the existence of intellectual work.
The Act also establishes a Folklore Board to administer expressions of Folklore. The Board is to be made up of nine members. The Board includes the Copyright Administrator, a nominee of the National Commission on Culture and seven other members appointed by the President in consultation with the Council of State.
All the permitted uses in Copyright such as for research, academic work, teaching are applicable to expressions of Folklore. Section 64 of the Copyright Act requires that where a person wishes of folklore, the person needs the permission of the Folklore Board. On the payment of a fee to be determined by the Board the work can be commercialized.
The proceeds from the commercial use of folklore is to be used to set up a Folklore Fund. The fund is to be used to preserve and promote folklore and to develop the arts generally.
Even though we have the protection of folklore under the law, some countries do not protect expressions of folklore because their folklore is not of so much economic value.
There are international efforts under the auspices of the World Intellectual Property Organisation (WIPO) to protect folklore, genetic resources and traditional knowledge. Until a treaty, if finally concluded, we need to use diplomatic means to ensure that persons who illegally exploit our folklore to stop it or pay us adequate compensation for the use of our folklore.
Individual creators of Kente designs must take advantage of the International Conventions ratified by Ghana such as the TRIPS Agreement, Berne Convention and Universal Copyright Convention to protect the Copyright in the contemporary Kente designs which in their view, others are infringing world wide.
Contemporary Kente designs must be registered in the Copyright Office as evidence of creativity. Albeit contemporary Kente, the designers are entitled to take advantage of the rights that the Act grants to creators of Copyright Works and enforce them against persons who infringe their rights in our outside Ghana.
- B.K. Bosumprah is the Copyright Administrator of Ghana.
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