WIPO Journal - World Intellectual Property Organization

The Juridification of Indigenous Knowledge Systems in Botswana 149
its existing copyright laws so that they would protect traditional music and other works without regard to
originality. Under this approach, an indigenous community could control the use and adaptation of
traditional stories, music or art forms into modern works, requiring payment or possibly prohibiting use
entirely. By requiring originality, Botswana has left traditional stories, music and other works in the public
domain, for modern creators to adapt free of cost or restriction.
The choice to leave traditional, non-original folklore in the public domain represents a choice in favour
of modern creators and cultural evolution. Some of Africa’s most successful popular art draws on ancient
traditions. For example, in South Africa world-renowned artists such as Ladysmith Black Mambazo and
the Soweto Gospel Choir have celebrated and preserved traditional Zulu, Sotho and Xhosa culture by
altering it. In the recent debate over South Africa’s traditional knowledge legislation, such artists have
expressed concern that their artistry might be impeded by a law that gave indigenous property rights over
non-original, widely used rhythms, melodies, songs, dances and other works.
On the other hand, the drafters of Botswana’s Copyright and Neighbouring Rights Act perceived a need
to better protect local artists by broadening protection—particularly to works not yet fixed. Many musicians
and playwrights in Southern Africa have been ripped off for decades owing to a lack of copyright protection
at home and abroad. Artists from abroad have come to Africa, listened to songs of local artists and then
returned abroad and recorded modified versions of these songs passing them off as their own. Music
producers have done the same. They come to Africa and take away with them recordings of songs by an
African artist. When they return to the developed countries they reproduce the songs and make millions
of dollars without paying royalties to the original composers of these songs in Africa. This is piracy. Such
pirated works have raised much concern, particularly in the area of music recordings, as the authors or
producers and other owners of the applicable copyright, together with their nations, have lost considerable
amounts of revenue to copyright pirates.
The Copyright and Neighbouring Act solves these problems by expressly protecting oral, dramatic,
dramatic-musical works with or without accompanying words. Given the fact that Botswana is a party to
the international conventions referred to above, local copyright holders as well as foreign copyright holders
from countries that are party to the conventions are able to enforce their copyright within Botswana, and
local copyright holders are able to enforce their copyright in all other countries that are also party to the
conventions. 21
The oft-told story of Solomon Linda and “The Lion Sleeps” is a sad but real illustration of the problems
faced by many African artists, which motivated the choices made in the Copyright and Neighbouring
Rights Act. Linda wrote “Mbube”, which was adapted into “Wimoweh” and “The Lion Sleeps Tonight”,
one of the most beloved and successful African songs ever. Linda’s story exemplifies the story of many
African artists—innovative adaptation of tradition, accomplished, popular artistry and uncompensated
exploitation.
In the 1930s, Linda and his group, Solomon Linda’s Original Evening Birds, drew on Zulu traditions,
mixing them with Western styles and Linda’s own innovations to create a distinctive and very popular
and enduring new style of music. Their work drew on certain elements of “ancient Zulu performance”—solo
introductions, extended choral sections, and other traditional melodies and conventions. 22 At the same
time, he departed from tradition, for example by introducing a male soprano lead and urbane uniforms
for his group. Linda thus both freely relied upon and adapted tradition as so many artists do.
21 See further, J. Kiggundu, “Intellectual Property Law and the Protection of Indigenous Knowledge” in I. Mazonde and P. Thomas (eds), Issues in
Intellectual Property in the Twenty-First Century (Dakar: Codesria, 2006), Ch.3.
22 See Veit Erlmann, Nightsong: Performance, Power and Practice in South Africa (Univ. of Chicago Press, 1996), pp.63–66.
(2011) 2 W.I.P.O.J., Issue 2 © 2011 Thomson Reuters (Professional) UK Limited