Protecting our Rights: Intellectual Property versus Cultural Appropriation – Part 2

Since the writing of the first part of this article on June 21, a few developments have emerged in the “J’ouvert Rum” story. Trinidad ad Tobago-born Nicki Minaj, used her platform to ask Michael B. Jordan to change the name of the rum from “J’ouvert” and Jordan himself, released a statement on his Instagram reading in part, “…our intention was never to offend or hurt a culture (we love and respect) & hoped to celebrate & shine a positive light on, last few days has been a lot of listening. A lot of learning & engaging in countless community conversations…”. He apologised and then confirmed that he and his business partners were “…in the process of renaming [the brand]…”.

Additionally, the situation has opened up myriad conversations all over various social media platforms, ranging from the historical origins of “J’ouvert” (Grenada? Trinidad and Tobago? The French countries of Martinique and Guadeloupe?) and pre-Lenten carnival in the Caribbean, to whether citizens of Caribbean countries should be upset at all as it was “just business”. One of the major points also emanating from this discussion is that much of this history is not well known to the general public, even to those who regularly participate in these festivals. This is not to say that it has not been documented because in some of the online discussions, academic sources are mentioned. Neither is this meant to be a debate on origins as that is not the point of this article.

Again, as noted on Monday, Jordan and his partners were not incorrect from an intellectual property law standpoint by registering the trademark for use in the USA and specifically for certain types of alcoholic beverages. As stated, this was not the first trademark registration for the word at the United States Patent and Trademark Office. However, much of the backlash came from the description of the word in the trademark application and the reference to and representation of Trinidad and Tobago on the PR box which was shown on social media. Other critics were concerned that this, combined with Jordan’s A-List status, could eclipse the historical meaning of the cultural celebrations over time depending on the product’s popularity. Whether this would have happened, we will never know.

In the context of Barbados, where I am from, we may not have a dog in this fight, as our “Foreday Morning” celebrations have not been around anywhere near the amount of time that the “J’ouvert” celebrations have been, even though, the execution is quite similar. However, I can only imagine if someone had sought some sort of intellectual property protection for a product named “Foreday Morning” with little to no reference to its meaning in Barbados. Bajans would have eaten them alive via social media! In fact, one does not have to travel too far down the internet hole to find 2 examples of misrepresentation of Barbadian food and culture.

The first was the international media coverage of Rihanna’s participation in the annual Crop Over festival in 2011, which was clear that little to no research was done on the festival and its history. Then more recently, a Sandals Resorts blog entitled, “28 Popular Foods & Drinks You Must Try When in Barbados” misrepresented traditional Bajan dishes and faced enormous backlash on Twitter from angry Barbadians. While many of the photos were quickly changed, presumably due to the online response, the following photo of so-called “Fish Cakes” remains as of the date of this writing.

These are NOT Bajan Fishcakes and they are not served with rice

From an intellectual property law standpoint, to answer the many questions which have surfaced about the best way to protect aspects of Caribbean cultural heritage and traditions, apart from Trademarks, Patents, Geographical Indications and Copyright, there is Traditional Knowledge. According to the World Intellectual Property Organization (WIPO), Traditional Knowledge is defined as “…knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.”

It is important to note that while a definition of Traditional Knowledge (TK) has not yet been agreed to at the international level, it can be said that in a “general sense it embraces the content of knowledge itself as well as traditional cultural expressions, including distinctive associated signs and symbols. It refers to knowledge resulting from intellectual activity in a traditional context and includes know-how, practices, skills and innovation. Traditional knowledge can be found in a wide variety of contexts, including: agricultural, scientific, technical, ecological and medicinal knowledge as well as biodiversity- related knowledge.” (WIPO)

WIPO also advises that innovations based on TK may benefit from the Intellectual Property protection referred to above and in Part 1 of this article or be protected as a trade secret or confidential information. However, traditional knowledge, i.e. that which has ancient roots and is often oral – is not protected by conventional Intellectual Property systems.

This could be a route for many Caribbean countries to explore, particularly seeing that there is consideration of “Traditional Cultural Expressions” (TECs), and WIPO states that TCEs, also called “expressions of folklore”, may include music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions. “TCEs are integral to the cultural and social identities of indigenous and local communities, embody know-how and skills, and transmit core values and beliefs. Their protection is related to the promotion of creativity, enhanced cultural diversity and the preservation of cultural heritage. ” (WIPO)

There is much information to be found via WIPO on this subject and it should be noted that some countries around the world have enshrined such traditions into their domestic law. However, with regard to international law, WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore is in the process of negotiating international legal protection of TCEs. According to the information provided, to date, no Caribbean countries have made submissions to the committee.

In the meantime, when this firestorm loses its power and another topic pops up to engage everyone’s attention, what will we do? Barbados has been undergoing the process to register a Geographical Indication for “Barbados Rum”, considering that the country is known as the “birthplace of rum” and because of this, it was agreed to establish the process on an international level of how it is made. According to Raphael Grisoni, Managing Director of Mount Gay Distilleries, “…Establishing a Geographical Indicator for Barbados Rum will help us build a stronger value-proposition and keep the financial benefits of that added-value here in Barbados.”

Considering the potential for arguments as to who invented what and when in relation to other forms of cultural expression in the Caribbean, it is recommended that such ventures be dealt with at the regional level, with the involvement of the appropriate stakeholders (e.g. cultural and historical practitioners). Our history is rich and in many instances, it is shared, thanks to hundreds of years of movement of our people among our countries. Again, if we don’t seek to protect it, someone else will.

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