From preservation to commodification of culture: interrogating the nature of protection accorded to cultural property under the intellectual property regime in Africa

The cultural heritage of a nation is valuable as a source of social and cultural identity, contributing to the uniqueness of a group, while also facilitating cultural exchange and global creative diversity. Where effectively harnessed, cultural heritage contributes to the economic well-being of societies. New possibilities for exploitation and commercialization have been heightened by the emergence of advanced technological processes in diverse fields; in this way, aspects of cultural heritage have become marketable products and commodities that are bought and sold in global markets. These developments have necessitated a shift from a strict adherence to the preservation and safeguarding of culture in its authentic cultural context to a more liberal approach which facilitates development and trade. The imperative of a different approach is dictated by the need to improve the legal position of custodians of cultural expressions, knowledge and practices. This paper highlights the challenge of identifying a system most suitable to do this and examines the evolution of protection systems of cultural property under African regional protection systems, in contrast to evolving international regimes for the protection of traditional cultural expressions (TCEs) and traditional knowledge (TK). The paper further interrogates the extent to which the existing framework of the Nigerian intellectual property system safeguards protection of cultural rights, and draws lessons from other jurisdictions to strengthen the position of owners of TK and TCEs to benefit better from the exploitation of their culture. Notes, ref. [ASC Leiden abstract]