WIPO Journal - World Intellectual Property Organization

150 The WIPO Journal
Linda’s greatest hit was “Mbube”, the first African recording to sell 100,000 copies. 23 “Mbube” is the
Zulu word for lion, and it also came to be the name of the genre of music pioneered by Linda. Unfortunately,
like so many African musicians, Linda enjoyed limited benefits from his work. Although he relied on his
fame to get work as a performer, he ultimately died a pauper in 1962, leaving behind four children and a
family too poor to afford a headstone for his grave. 24
Although Linda enjoyed little benefit from “Mbube”, others did. Its melody is the central theme in the
hit songs “Wimoweh” and “The Lion Sleeps Tonight”. Pete Seeger, of the US folk group The Weavers,
obtained a recording of “Mbube” in the 1950s. He re-worked it into “Wimoweh”, which was later adapted
into “The Lion Sleeps Tonight”. These adaptations have been big hits for many artists, played frequently
for decades, translated into multiple languages and used in at least 15 movies and musicals, including
Walt Disney’s The Lion King. Until recently, none of these adaptations acknowledged Linda’s authorship
or paid him or his family a cent, despite “Mbube” generating millions in earnings. Finally, in the late
1990s, a Rolling Stone article told the story of the injustice done to Linda, and the publicity and a celebrated
court case resulted in some compensation to Linda’s descendants. 25
Solomon Linda’s story helps illustrate the needs of African musicians that Botswana’s Copyright and
Neighbouring Rights Act attempts to address. They need access to their cultural traditions to create vital
works that appeal to local consumers by drawing on the familiar while innovating. But they also need
their interests protected from uncompensated exploitation. The Act seeks to address this need by protecting
a broad category of works, even if unfixed, while limiting protection to original works, thus allowing
adaptation of traditional works.
The protection of IKS under the Industrial Property Act 2010
Botswana has now embarked on the second stage of the juridification process by conferring protection
on IKS of an industrial nature (food, medicine, agriculture, etc.) and geographical indications 26 in the
Industrial Property Act 2010, which has been enacted by Parliament and will come into force shortly. The
Act treats IKS as a separate subject-matter for intellectual property protection, with its own definitions,
rights and limitations.
Definition
The Industrial Property Act 2010 defines Traditional Knowledge as follows 27 :
“An idea, knowledge, practice use or invention, written or unwritten which may be associated to
biological diversity, is a cultural, traditional or spiritual belief or value of a group of people.”
This is a very wide definition that effectively covers all forms of IKS of an industrial nature that might
need protection in Botswana. Most significantly it protects unwritten IKS.
23 Simon Broughton, Mark Ellingham and Jon Lusk, The Rough Guide to World Music: Africa and the Middle East, Vol.1 (2006), p.358.
24 See Owen Dean “The Return of the Lion” (2006) WIPO Magazine 8. See also http://www.spoor.co.za. See further, D. Wassel, “From Mbube to
Wimoweh: African Folk Music in Dual Systems of Law” (2009) 20 Fordham Intell. Prop. Media and Ent. L.J. 289.
25 See Wassel, “From Mbube to Wimoweh: African Folk Music in Dual Systems of Law” (2009) 20 Fordham Intell. Prop. Media and Ent. L.J. 289.
26 See Industrial Property Act 2010 ss.91–99 (Pt X). Geographical indications are a very effective method of protecting IKS products from a particular
country or region of a country. See further, Kiggundu, “Intellectual Property Law and the Protection of Indigenous Knowledge” in Issues in Intellectual
Property in the Twenty-First Century, 2006, p.32.
27 Industrial Property Act 2010 s.2.
(2011) 2 W.I.P.O.J., Issue 2 © 2011 Thomson Reuters (Professional) UK Limited