African Intellectual Property Jurisprudence

The (heightened) advocacy for AI to have the capacity and privileges of humans and or a person in having legal, including economic rights of owning-authorship of an invention/creative work has just been around us for just less than a decade. Meanwhile, indigenous and or Traditional peoples (humans/persons) of the Global South, including some in the North Americas, Australia and certain geographical sections of Europe who, have been creating arts, songs, medicine, forms of entertainment, inventions, performing music/songs, oral poetry and the likes have been begging for their creations and inventions to be legally recognized and protected and granted economic benefits for longer than three decades. The recognition and protection of these indigenous creations is not just a matter of justice but a call to action for all of us. AI advocates and its corporate backers have made AI legal personhood the focus of humanity.

Intellectual property’s core and classic objective was (and is) rooted in equity and justice. Justice is that one ought to be rewarded for their entrepreneurial work or efforts or sweat or solving that could solve problems or create benefits to society. About ‘equity’? It is morally innate and as a means of balancing mischiefs and hardships created organically by humanity or tangentially bestowed upon humans by circumstances not of their making- the ‘right’ and or ‘proper’ things ought to be done. However, the effluxion of time, technology, politics and ideological suasions have reorganized the arcane goodness of humanity, especially with the contending economic and profit nature of universal realities.

Sub-Saharan Africa for long has been exploited by forces outside of her hemispheres for economic advantages, which came about through circular commercial-economic advantages of first-in-the-scene. For example, it took more than three decades for the world to agree on an international regime for traditional knowledge and genetic resources, which are largely a competitive advantage tool of the Global South and Sub-Saharan Africa. African indigenous creative and innovation works traditionally have always been rewarded, enforced and promoted through its customary law jurisprudence. There had always existed African IP jurisprudence though either deliberately or unwittingly unrecognized. These regimes had a strong influence on substantive and procedural justice rooted in the norms and ethos of its people transmitted from one generation to the other. From the west of Sub-Saharan Africa to the east and its Southern tips, Africans expressed their creative crafts and art, including its unique inventions that embody tribal identities, spiritual cohesion and socio-economic development.

This TALK analyses ‘Justice’ from an African jurisprudential perspective. It conceptualizes the amorphous and contentious knots and attempts to untie some unassuming assumptions that substantive and procedural justice ought to be exclusively measured from Anglo-western perspectives. The United Nations Sustainable Development Goals (SDG) are coated with the principles of equity, justice and fairness. However, does global humanity reflect on how the concept of justice implicates the creations and innovations of the indigenous and traditional peoples of Africa and the Global South? The need for equitable IP frameworks is urgent and cannot be overstated.

Episode Transcript

(00:00):
Let me time myself.

(00:04):
Okay, it's a short one really.
I'm going to veer a little bit off what we are doing here.
I'm a jurisprudence person, so I'm trying to look at this problem from that perspective.
You've seen my topic there, what I'm talking about.
I'm looking at it from an interdisciplinary aspect/angle,

(00:26):
being a professor of criminal justice and also IP.
I'm trying to borrow, so to say, from the criminal justice world
to see how we can give visibility to what I call African IP jurisprudence.
Because I have discovered in my research that what is really going on,

(00:49):
especially, I'm a little bit biased being from the global south,
so, the northern hemisphere kind of, they have a competitive advantage
in terms of IP management asset monetization,
but we are catching up from this part of the world.
But I discovered that we actually have more human resources, more experts,

(01:13):
but we are still suffering from what I call the "Western hypnotism,"
which is that the= foreign IP jurisprudence that is the best jurisprudence.
But if you look at it very well, we actually sold them IP.
Like Fela (Anikulapo Kuti) said, you can't dash me human rights, yes, you can't dash me IP too.
because if you did the research about how we protect our creativity, innovations,

(01:42):
you will see that our forefathers had a way to protect the secret of Nsibidi
the secret of Ekpo masquerade, the secret of Eyo masquerade.
And those are all the cultural and traditional methods that nobody gave us,
we gave ourselves. So why don't we now put more visibility as professionals

(02:05):
and as scholars?
Why don't we do more of this advocacy so that they will accept and recognize?
Okay, now coming to the beast in the room,
in less than 10 years, artificial intelligence is about to be given legal rights.

(02:27):
It took people like Professor Chidi and the rest of the crowd
more than 30 years for the world to recognize our traditional knowledge.
But the way it's going now, I wouldn't be surprised if next year,
they will now say, let's do a treaty, let's have a diplomatic conference

(02:48):
so that AI can have all the legal rights like humans.
So why should that be if it's taking too long for them to recognize
that we've been using IP before civilization started from Africa?
We know that. For a long time, we've been using this, our IP, for developmental purposes.

(03:11):
So if we will key into what the United Nations is saying,
the sustainable development goals, especially I think goals 16,
16 or 19, goals 9, especially goals 16 that talks about justice.
The justice of the case is that for too long, they've misappropriated,

(03:36):
they've put us in the back burner, they failed to recognize
how effective the African IP jurisprudence is.
So nobody's going to do that just for us. We're going to energize the advocacy.
We're going to, not like my friend said, we have to feel it in the street.

(03:58):
We have so many doctrines now, although we have little doctrines
in terms of published articles in highly impacted publications,
we should be doing that more. We should be publishing in Q1s on this, our own.
So that when we get to that stage, we're going to negotiate, we're about to negotiate, I'm sure,
the TCE, the cultural expressions and the rest, the other side of the creativity fritties,

(04:27):
then we should be able to come forward with measurable and tangible statistics
that yes, this kind of IP is actually an IP too, you know, because the expressions we make,
like they came to South Africa and stole Lion King,
and if you read what I read sometime, Wakanda is mostly made from our history,

(04:50):
and nobody paid a dime to Uganda, to Nigeria, to Kenya.
They made a lot of millions from Wakanda movies, you know,
and if you look at that movie very well, there's a lot that came,
almost 80% of the content came from our story.

(05:12):
So even the pictures, the costumes, even though they tried to do some tricks on the costumes, you know,
but if we do things that are realistic, if we go on advocacy,
if we use the platform of the African continental free trade, remove the barriers that we have,

(05:36):
why should I be having visa to go to Ghana?
Why should I be having visa to go to Uganda?
I'm a Nigerian, okay, yeah, at least I have a Nigerian passport, okay?
So I shouldn't, what Wakanda is doing is very great, I just walk in here, I just walked in,
show them my Nigerian passport, that's what all African countries should do.

(05:58):
And now, what are the incentives?
I suggested, the paper that is coming out, that we should realize that every country in Africa is a separate entity.
So we should think about incentive for every country.
Political incentive, why should Nigeria allow people from Niger?

(06:19):
Nigeria has a lot of oil, Nigeria has a lot of economy base, why should they allow countries that they think
don't have the capacity like them to bring free trade or free goods into their country?
So they should be some kind of thinking about those incentives so that we can stop being abstract.

(06:40):
Our gentleman, Mr. Desire, said something very well, we don't have no regime because we are not being practical in our negotiations.
So I think at this stage, I thank you for coming here, we should come out with some tangible, measurable declarations here,
and we should take it from the classroom, from the bottom, into the political fields.

(07:02):
We should tell these politicians that IP is even more worthy than oil and gold.
Thank you.
Thank you.
Because the last time I did more research, I know it would be...

(07:27):
Yeah, because I limited myself so I didn't go deep down.
So there is this concept in criminal justice that has now become kind of visible, what they call just transition,
which is an element of restorative justice.

(07:48):
So the advocates of just transition mostly are propagating, especially when we are switching now to new economies,
like we are talking about environmental issues now.
Now we are looking at switching economic powers and economic forces and derivatives.
If you want, for example, if you want an oil producing country to now go into climate changes, compliant economy,

(08:17):
you have to give them something, okay?
You have to make sure that they are restored restoratively, a subset of criminal justice, restorative justice.
You have to give them something so that their developmental status will be maintained.
So when you look at where we are as a continent, when you look at where we are as a continent,

(08:42):
now I would call it reverse transitional justice.
Now we as a continent, as a people, indigenous people of Africa,
we have produced, we have given the world so much in terms of innovation, in terms of creations.

(09:05):
And now they are coming with AI.
So I'm countering it with this element of now trying to make a machine displace me as a person.
And you know that IP was made for man and woman and not for machines.
So all the jurisprudence, all the regimes of IP specifically as we mentioned, the patent treatment, all of that,

(09:33):
it said person, human.
You know, I've done research of about six countries.
The words are there, it's for a person or human.
So now you want a machine to have the legal benefits and derivatives of, for example, copyright?
Because there's a force, there's a power, which I'll say is a commercial power, is the corporate western hemisphere.

(10:00):
Just like because of Disney, they move the years of copyright from 50 to 70 to protect their interests.
So see, there's a lot of injustice that's been going on.
So now you have to, when we are making this our case, we have to look from, I think from the developmental justice,

(10:24):
AKA you got to restore us back to where we are.
You've taken so much.
Maybe we cannot put figures to it.
Like I mentioned the issue of Wakanda.
It might be legally difficult for you to prove it in the court of law, because they will tell you- "idea/expression" dichotomy, "idea/expression dichotomy." "Public Domain"
They will always bring some abstract legal construct to defeat you in court.

(10:50):
But if you develop your own jurisprudence, so it's a counterforce, a geopolitical and geo-legal thing.
Our politicians, our sovereigns in each country, when they go to all these organizations,
lie the AU (African Union), United Nations, and when we are negotiating all these economic treaties, we should have a voice.

(11:14):
And we are powerful enough, we are rich enough, we have a lot of intelligent leaders now,
even though some of them, they got there by funny means.
That's another story.
But when we are making this our argument that we want to have a synergy, I like that word,
because the word ecosystem used frequently in this conference is tricky.

(11:37):
I think if we want to have a seamless trade, from Mali to Uganda, from Nigeria to Morocco,
now we should be able to have our strategy, our "weapons", our laws, that whether anybody likes it or not,

(11:58):
because you have to present it, you have to package it.
You have to say, this is law.
I mean, this idea of, it's an idea, it is a corporate thing, it was passed from generation to generation,
then it cannot be enforced.
But what is that mechanism that maintain the quality of that expression from my great-grandfather passed on from their time to this present day?

(12:28):
That is IP.
There are some mechanisms, there are some creativities that would make the song, that was sung about 200 years ago,
and that song is still relevant today.
And don't forget that we are adding our own indigenous rhythms and Syntex to all these creations.

(12:49):
So, we have it.
So that's what I'm saying, it's developmental justice.
It comes from that specific background for negotiation or whatever viewpoint you want to look at.
Thank you so much for your time.