Protect Maasai cultural heritage rights

When the Kenyan team walked into the Tokyo Olympics Stadium wearing the Maasai shuka, they did us proud by gallantly showcasing the iconic cultural attire.

This did not only show the rich creative economy that we have in cultural artefacts, but it was a reminder that it is time for us to address the ownership of its intellectual property rights (IPR).

Even though Kenya has a law on IPR, many experts have argued that the existing IPR systems do not provide adequate recognition and protection of cultural products and expressions.

As in the case of the Maasai shuka, we all know that it is a cultural artefact for the Maasai people of East Africa.

Apart from being sold in the various markets as an indigenous artefact from the region, we have never appreciated its value to the economy. By showcasing it on the world stage, our Olympic team helped us to celebrate the rich Maasai cultural heritage which despite its richness is ignored.

Commercial exploitation of cultural artefacts without benefits to the original creators, whose artistic works form an integral part of their cultural heritage, is simply theft.

Many of the creative works in Africa were community assets, rather than individual. It was often and still is difficult to categorise such works as intellectual property in a similar way it happens in the Western world where much of the artistic works are individually owned.

These cultural perspectives of art have in most cases been disadvantageous to African creativity and made the creative economy lose its value despite its rich resources. The sector has also been facing many challenges.

For example, in the 19th century, the colonists stole African art and sold it to European museums as though Africans did not value their creativity. When French president Emmanuel Macron suggested that the French return African art taken during the colonial times, a debate ensued as to who would take care of Africa’s heritage.

The assumptions that Africans have no capacity to manage their own creativity is a slap in the face of those whose ancestors created the works in the first place.

Such is the attitude towards ownership of Maasai community rights where there is continued exploitation of their cultural heritage. Although the Maasai have risen to reclaim their IPR, there are many huddles ahead.

Multinational companies have appropriated this gap to steal community assets through fraudulent IPR registration. A 2018 Financial Times article estimates that “more than 1,000 companies, including Louis Vuitton, Calvin Klein, Ralph Lauren, Jaguar Land Rover and Masai Barefoot Technology, a shoe company, have used Maasai imagery or iconography to project their brand.” The value of the Maasai brand could run into billions of dollars.

In a 2013 research paper, Amy and Christopher Blackwell say that the purpose of copyright is to promote innovation and creativity and that “locking up rights to images of works that by any standard are in the public domain prevents the progress of science”.

Clearly those seeking to patent other people’s creative works have no basis and perhaps that explains why the person who patented the Maasai shuka has never been identified. And the trademark laws in most Western governments don’t make it easier for the Maasai to benefit from their own heritage.

For example, the Lanham Act in the US dictates that trademarks are to be used before they can be registered and have provisions such as recognising trademarks only within specific jurisdictions.

In spite of the many challenges, the Maasai through public intellectual property groups have been pursuing justice for their community rights in the past 15 years. At the same time, they have started to leverage their artefacts to rightfully benefit from their heritage.

What needs to be done in the meantime is to develop an institutional arrangement with proper governance structures for the benefit of the more than two million Maasai people in Kenya and Tanzania.