Part V of the Copyright and Neighbouring Rights Act 2000 does something most copyright statutes do not: it protects traditional creations that have no identifiable author and no fixed date of creation.
What an expression of folklore is
“Expression of folklore” means a group-oriented and tradition-based creation of groups or individuals reflecting the expectations of the community as an adequate expression of its cultural and social identity, its standards and values as transmitted orally, by imitation or by other means — including:
(a) folktales, folk poetry and folk riddles;
(b) folk songs and instrumental folk music;
(c) folk dances and folk plays;
(d) productions of folk art, in particular drawings, paintings, carvings, sculptures, pottery, terra cotta, mosaic, woodwork, metalware, jewellery, handicrafts, costumes and indigenous textiles.
Copyright under section 4 requires an original intellectual creation with an identifiable author, protected for a term measured from that author’s death or from the making of the work. Traditional material fits none of those requirements: it has no single author, no date of creation, and would long since have fallen out of any term.
Part V therefore sits alongside copyright rather than within it, with its own protected acts, its own exceptions, and its own authorising body. There is no term of protection stated for expressions of folklore — section 17 applies to works, not to Part V material.
Section 30(1) — what is protected against
(a) reproduction; and
(b) communication to the public by performance, broadcasting, distribution by cable or by other means; and
(c) adaptation, translation and other transformation,
when such uses are made either for commercial purposes or outside their traditional or customary context.
Protection bites only where the use is for commercial purposes or outside the traditional or customary context. The two are alternatives, so either is enough.
That is a deliberate design. It leaves communities free to use their own material in the ordinary way — singing, dancing, carving, teaching the next generation, performing at customary occasions — because such use is neither commercial nor outside the traditional context.
What it catches is commercial exploitation — recording a traditional song for sale, mass-producing a traditional design on merchandise, filming a singsing for a commercial release — and decontextualised use, where material with customary significance is taken out of the setting that gives it meaning.
Note that paragraph (b) is expressed more widely than the copyright equivalent: it covers communication to the public by performance, broadcasting, distribution by cable or by other means, which sweeps together several of the distinct rights in section 6.
Section 30(2) — the three exceptions
(a) the use by a person exclusively for his own personal purposes; and
(b) using short excerpts for reporting current events to the extent justified by the purpose of providing current information; and
(c) the use solely for the purposes of face-to-face teaching or for scientific research.
Compare the copyright exceptions in sections 8 to 16. Part V has no equivalent of the quotation exception, no library provision, no public display exception, and no personal importation rule.
The three that exist mirror the pattern in section 25 for neighbouring rights — personal use, current events reporting, and teaching or research — and each is confined by “exclusively”, “short excerpts” or “solely”.
Section 30(3) — naming the source
In all publications and in connection with any communication to the public of any identifiable expression of folklore, its source shall be indicated in an appropriate manner and in conformity with fair practice, by mentioning the community or place from where the expression utilized is derived.
Unlike section 30(1), subsection (3) contains no “commercial purposes or outside the traditional context” qualification. It applies to all publications and any communication to the public of an identifiable expression of folklore.
And it is specific about what must be named: not an author, but the community or place from where the expression is derived. That is the Part V analogue of the author’s moral right of attribution in section 7(1)(a) — attribution to a community rather than an individual.
It matters for publishers, broadcasters, museums, researchers and anyone producing material drawing on traditional designs, songs or stories. Naming the province, district or community of origin is a statutory requirement, not a courtesy.
Sections 30(4) and (5) — who authorises use
(4) The right to authorize the acts referred to in subsection (1), and the terms and conditions of such authorization, shall vest in a competent authority as determined by the Minister for the purposes of this section.
(5) All monies collected in relation to this Part shall be used for purposes of cultural development as the competent authority, on the approval of the Minister, determines.
The authorisation right does not vest in the community that originated the material, nor in any individual. It vests in a competent authority determined by the Minister, which grants permission and sets the terms.
Subsection (5) then directs the proceeds to cultural development. The model is stewardship of a national cultural resource, rather than private property.
Anyone proposing to use traditional material commercially therefore needs to identify the competent authority for the time being and obtain its authorisation. It is not enough to obtain the agreement of a community or of individual custodians — though good practice, and the section 30(3) attribution duty, both point to engaging with the community of origin as well.
Section 31 — the consequences of unauthorised use
A person who, without the consent of the competent authority referred to in section 30(4), uses an expression of folklore in a manner not permitted by that section, is guilty of an offence and shall be liable to the competent authority for damages, injunctions and any other remedies as the Court may deem fit.
Unauthorised use is an offence, and the user is liable to the competent authority in damages and to injunctive and other relief.
Note that the civil liability runs to the competent authority, not to the community — consistent with section 30(4) and (5), under which the authority holds the right and applies the proceeds to cultural development.
Section 31 states no penalty, so the general sentencing powers apply. Compare section 28, which fixes a maximum of ten years’ imprisonment or K100,000, or both, for wilful or grossly negligent infringement for profit — but note that section 28 speaks of infringing a right protected under this Act, and Part V rights are protected under the Act.
Where folklore and copyright meet
| Situation | Which regime |
|---|---|
| A traditional design used commercially | Part V — consent of the competent authority |
| An original collection of expressions of folklore | Copyright in the collection — s 4(1)(b)(iii), if original by reason of selection or arrangement; the underlying folklore stays in Part V — s 4(3) |
| A performance of a traditional song | Section 21 — the section 2 definition of performers expressly includes those who perform expressions of folklore |
| A recording of that performance | Section 22 — the producer’s rights in the recording |
| A new work in a traditional style, created by an identifiable artist | Copyright — an original intellectual creation under s 4; possibly a work of applied art with a 25-year term |
A commercial recording of a traditional song performed by a village group therefore engages three regimes at once: Part V for the underlying material, section 21 for the performers, and section 22 for the recording — and section 30(3) requires the community or place of origin to be named.
Sources
- Copyright and Neighbouring Rights Act 2000 — ss 2, 4, 6–17, 21, 22, 25, 28, 30, 31
Before relying on anything here, read the current text of the Copyright and Neighbouring Rights Act 2000 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.