Authored By: LYNCY TONIQUE OYUGA
Daystar University
Introduction
Music is an important aspect in life as it is not only a form of entertainment, but also a channel that is used to bridge cultural, racial and social barriers around the world.[1] Plato describes it as a medium that gives a soul to the universe, wings to the mind, flight to the imagination, a charm to sadness, and life to everything.[2] Around the world, the music industry is respected and the persons therein bear a task to maintain certain standards in the public eye as people are always watching. In Africa, music is not peripheral as it stands at the center of many cultural and communal ceremonies. It is one of the most outstanding forms of art that people use to express themselves and their emotions. Music in Africa comes in as many forms as there are languages and communities. It is woven into the tapestry of every activity and the global community has taken notice of this. The emergence of various genres of music including; Afro beats, Rhumba, Lingala and Ohangla just to name a few has influenced the music industry in Africa and beyond with the internationally recognized artists borrowing concepts from the said music. Notwithstanding the influence that the African music has had around the world, the return on investment to the African artists does not match the impact and widespread nature of their works.
Legal Framework & Analysis.
Intellectual property refers to creations of the mind. This form of property is protected just as any other form of physical property. Music is categorized into copyright form of intellectual property.[3] The protection of the African music especially under the category of folklore expressions has posed a challenge in terms of ownership since in most cases it was not written down and was simply passed down through word of mouth from generation to generation. Further, the ownership of the songs in most cases could not be attributed to an individual and therefore protection through the copyright regime borrowed from the Europeans was insufficient to cater for the needs of the African communities.[4] Following this gap, there was development of the Swakopmund Protocol on the Protection of Traditional Knowledge and Folklore.[5] This law was developed to create an enabling environment for recognition of the Traditional cultural expressions.
The musical protection and attribution to African music has greatly improved such that instances where phrases from local language are incorporated into compositions, the community affiliated to such is given credit. In recent development, there is the case of Lebohang “Lebo M” Morake v Learnmore Mwanyenyeka which was filed in the District Court for the Central District of California. The matter is yet to be determined however; the defendant was being sued for misrepresenting the meaning of the chant phrase at the beginning of the “Circle of Life” composition in the Lion King movie. The chant is in the Zulu language and was performed by the plaintiff in the matter. It was stated that the action of the Defendant who is a comedian did not only constitute misrepresentation but also watered down the cultural embodiment in the said phrase.
Copyright protects works of originality and that have been affixed into a physical form. The property in music just like in any other property should be protected and respected. The unauthorized use of such material outside of the tradition’s norm constitute a trespass if it is done without the permission of the owners. The defense by the comedian in that matter that the interpretation made in the podcast which went viral was to be comic will not stand since he knew or ought to have known the implications of his actions.
However, there has been a debate as to whether there is need for the Swakopmund Protocol and whether it has had any impact in the protection of these Traditional Cultural expressions. A common argument has been that the intellectual property laws as they were provided sufficient protection of these works and it was not necessary to legislate exclusively on traditional cultural expressions. However, an advancement of such an argument can be categorized as a misguided proposition of ideas. This is because, traditional knowledge and traditional cultural expressions face a unique challenge such as in matters ownership and preservation. This can be clearly seen from the Acts such as the Copyright Act and Industrial Property Act which have actually been enforced in the African countries.
The Protocol therefore should not be seen as a push back to persons who claim to respect Intellectual property. It should be championed as the time for the continent cash on its intellectual assets is right now.
CONCLUSION.
Intellectual property is the oil of the 21st century and therefore should be exploited to give every country a competitive edge in the global economy. The Swakopmund Protocol is simply a mechanism through which Africa can protect its intellectual resources which may not be sufficiently protected under copyright which takes the individualistic approach. Therefore, the attribution to the Zulu community in regards to the chant at the introduction of the “Circle of Life” composition is a step in the right direction. The court should take into consideration not just the misrepresentation by the comedian in the case but also the impact of such action towards the protection of the cultural expression of the people of the Zulu community.
REFERENCE(S):
–‘Voices: A World Forum for Music Therapy’ https://voices.no accessed 29 March 2026
M Butera ‘African Traditional Knowledge and Expressions of Folklore: Rethinking Swakopmund Protocol as a Model Law and Sui Generis System’ (2019) at https://cipit.strathmore.edu accessed 29 March 2026
S Nebgen and W Akbar Entertainment Law: Music (Or, How to Roll in the Rock Industry) (Body Electric Press Arizona 2017)
Swakopmund Protocol on the Protection of Traditional Knowledge and Folklore (2019)
World Intellectual Property Organization ‘Intellectual Property and Music: Harmonizing creativity in Music and Business’ https://www.wipo.int/en/web/music accessed 27 March 2026
[1] World Intellectual Property Organization ‘Intellectual Property and Music: Harmonizing creativity in Music and Business’ https://www.wipo.int/en/web/music accessed 27 March 2026
[2]— ‘Voices: A World Forum for Music Therapy’ https://voices.no accessed 29 March 2026
[3] S Nebgen and W Akbar Entertainment Law: Music (Or, How to Roll in the Rock Industry) (Body Electric Press Arizona 2017)
[4] M Butera ‘African Traditional Knowledge and Expressions of Folklore: Rethinking Swakopmund Protocol as a Model Law and Sui Generis System’ (2019) at https://cipit.strathmore.edu accessed 29 March 2026
[5] Swakopmund Protocol on the Protection of Traditional Knowledge and Folklore (2019)
