Intellectual property refers to creations of the mind, inventions, literary and artistic works, and symbols, names, and images used in commerce. Intellectual property is divided into two categories, which are industrial property that includes patents for inventions, trademarks, industrial designs, and geographical indications, and copyright. Copyright covers literary works such as novels, poems, and plays, films, music, artistic works such as drawings, paintings, photographs, and sculptures, and architectural design. Rights related to copyright include those of performing artistes in their performances, producers of phonograms in their recordings, and broadcasters in their radio and television programmes.
While there is not yet an accepted definition of Traditional Knowledge (TK) at the international level, it can be said that TK is knowledge, know-how, skills, and practices that are developed, sustained, and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity, and includes traditional cultural expressions (TCEs). A tradition is a belief or behaviour passed down within a group or society with symbolic meaning or special significance, with origins in the past. It means whatever information follows is known only by oral tradition, but is not supported, and perhaps may be refuted by physical documentation, by a physical artefact, or other quality evidence. It is presumed that at least two transmissions over three generations are required for a practice, belief or object to be seen as traditional.
Culture, on the other hand, is the beliefs, values, mindsets, and practices of a group of people. It includes the behaviour pattern and norms of that group, the rules, the assumptions, the perceptions, the logic, and reasoning that are expressed and are specific to a group. Traditional knowledge and traditional cultural expressions are properties; they involve innovations and need to be protected under intellectual property through patents, copyright, or any other form in which the particular traditional knowledge and traditional cultural expression fall.
For such a tradition and practice to be patented, there must be three key elements: novelty, not obvious, and orally or practically disclosed by the community or whoever is claiming ownership. For novelty, the invention must be new. In TKs and TCEs, novelty is assessed by comparing the invention with prior art. Prior art is proved by either published, publicly used, or known by the members of the community claiming it, and must have been orally and or practically disclosed by the person or community claiming it. It must be secret information only known and practiced by that community.
Inventive step (non-obviousness). The invention must not be evident or obvious to a person skilled in the relevant field or technology based on what is already known in that field or another technological field. The invention must be capable of being produced or used in any kind of industry or be able to provide a practical benefit. ”Invention of tradition” is when a new practice or object is introduced in a manner that implies a connection with the past that is not necessarily present.
History of Ankole cattle
For some 6,000 years, a group of very similar cattle with long horns have played a role in the lives of African tribes. Various breeds of cattle were mixed through generations as humans moved across the African continent, until the distinctive Sanga breed was produced. Sanga cattle are the background type for many of the individual breeds now available. One of the oldest breeds of these is Ankole cattle, which are deemed as cattle of kings.
Ankole cattle and other artefacts play important roles in the lives of the African tribes. The herds are a sign of wealth within the tribe, are milked for milk and to make yogurt and other milk products. The cows provide status for a man within the Ankole tribe, his wealth is measured by the number and quality of cattle he owns, and they are used as bride wealth (Enjugano). It is noteworthy that there is a secret knowledge and process involved in coming up with the Ankole cows. These cows have long horns with different colours and shapes, which need to be protected by intellectual property through TKs and TCEs. The most important process involved in ensuring a variety of Ankole cows is through a strict selection of the bull for a particular kraal (Okubikira).
Okubikira is the process of selecting the type of cows you want to have in future, in terms of colours, the type of horns the cows will have and sometimes cows without horns (Enkungu). For a herdsman, to select the bull (Enumi Yokubikira), he considers many factors, including the bull’s lineage such as its mother, grandmother, great grandmother, its father, great grandfather, up to its great, great, grandparents. The trace of the lineage helps the kraal owner to know the ancestries, the colour he wants, should it have dots (Obugondo), Kiremba, Muraraa, Kyasha, Mpuga, Kiroko, Nshanga, Bihogo, Mbindi, Mayenje, Ngabo, Baraasi, or other colours, and whether they have horns (Amihembe), no horns (Enkungu). If he wants horns, should they be pointing to each other (Ekikome), be pointed in different directions (Ekitaraa), be pointing down (Orukondo) or should the left horn be slightly below the right horn (Ekimosho)?
It is after the initial process of Okubikira, that the kraal owner goes for the second process known as Okuchoka, which is the selection of cows with the same design (Ibaara), with or without horns (Enkungu). It is on such and more processes used to determine features of an Ankole cow that need to be protected through TK and TCEs.
The Ankole cows were imported to Germany as zoo specimens in the early 20th Century, spread to other European, and American zoos. In 2016, the total number of the Ankole breed in Europe and America was thought to be approximately 1,500 heads, of which 80 percent of them are in USA and are used for tourism and trade show exhibitions to generate financial benefits.
Mr Cyril Ramaphosa, South Africa’s president, published a book titled Cattle of the Ages: Ankole Cattle in South Africa. He sells a copy at between $54 (Shs192,000) and $86 (Shs 307,000) on Amazon. Mr Ramaphosa, the American and European companies, however, do not remit the above financial benefits to the Banyankole Community.
In conclusion, Banyankole with long-horned cattle should unite, register their TK and TCEs in long-horned cattle, protect their identity, culture and claim financial benefits from those receiving financial benefits from their heritage, stop them from further abuses.