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Annual Survey of International & Comparative Law

Abstract

This paper examines three tensions created by the manner in which Ghana’s TCEs are regulated under the Copyright Act. The first tension is the divergence between the context of private rights and communally created works. While one of the fundamental principles of copyright law is to reward specific and identifiable sources of creativity, Act 690 grants copyright in communally created art. There is also divergence between the usual designated duration of copyright and the antiquated nature of most expressions of folklore, including kente and adinkra expressions.

The second tension arises from the fact that the placement of copyright in Ghana’s TCEs in the President as trustee of the whole nation removes from the authoring communities the right to economic reward and moral rights of attribution. The character of balanced intellectual property (IP) systems is articulated by WIPO as systems that “reward creativity, stimulate innovation and promote economic development while safeguarding the public interest.” Removing rewards from the authors of the protected art forms precludes these globally accepted objectives of IP law.

The third tension arises in the law of human rights. Within international law, it is accepted that the right to benefit from the products of one’s creative authorship is a human right. Article 15(c) of the International Covenant on Economic, Social and Cultural Rights, and Article 27 of the Universal Declaration of Human Rights (UDHR)18 provide for this right. Article 31 of the United Nations Declaration on the Rights of Indigenous Peoples recognizes the right of a community of indigenous peoples to control and benefit from their cultural heritage as intellectual property. Furthermore, on the domestic front, Ghana’s Constitution guarantees the right to the free participation in ethnic culture. The state is also prohibited by the Constitution from taking over any interest in property without the payment of fair and adequate compensation.

The issues addressed in this paper are particularly important because TCEs are a significant source of capital and wealth creation for indigenous communities in both developed and developing economies. This provides an impetus for ensuring legal arrangements that bring the greatest economic return to authors.

Cite as: 18 Annl. Survey Int'l. Comp. L. 1 (2012).

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