The ‘folkloric copyright tax’ problem in Ghana

In October 1990 Paul Simon followed up his 1986 South African-oriented ‘Gracelands’ album success (which sold 14 million) with another album on the WEA/Warner Brothers label called ‘The Rhythm of the Saints’. This included the song ‘Spirit Voices’ whose melody and rhythm was based on the old Ghanaian highlife song Yaa Amponsah, the name of a beautiful lady dancer of the 1920s.

Being a well meaning and honest person Paul Simon contacted the Ghana Embassy in New York, which advised him to send the US$16,000 royalties then collected (now over 80,000) to the Ghana Copyright Administration that came under Ghana’s quasi cultural ministry, the National Commission on Culture (NCC).

Under its then Director, Dr Mohammed Ben Abdullah, the NCC set up a committee to look at the exact origins of the song Yaa Amponsah which was first recorded by Kwame Asare (Jacob Sam) and the Kumasi Trio in 1928 for the British Zonophone Company (later incorporated into EMI). Indeed, Paul Simon had been advised by Ghanaians in the United States that the Yaa Amponsah was Kwame Asare’s composition and so this American singer had ear-marked the $16,000 for Kwame Asare, via the Ghana Copyright Administration.

However, Kwame Asare died around 1950. Moreover, the general consensus of Dr Abdullah’s committee of experts was that the question of the sole composition of Yaa Amponsah by Kwame Asare was in some doubt, as the song had been around for at least ten years before the 1928 recording and other names appeared as its author.1 Furthermore, complicating the picture is the fact that the guitar two-finger picking technique used by Kwame Asare was taught to him by a Liberian Kru.2 The Liberian Kru (or Kroo) people were long famous as seamen and had been working on European ships from as early as the late 18th century. By the early 20th century they had developed an African guitar plucking technique and associated ‘palmwine’ guitar styles (Fireman, Mainline, Dagomba) that they spread up and down the West and Central African coastline. Indeed, the Mainline and Yaa Amponsah guitar riffs are structurally related and inter-lock with each other.

As a result of all these factors the NCC decided that Yaa Amponsah was a work of anonymous folklore. Consequently in 1991 Paul Simon’s money was used to establish the National Folklore Board of Trustees which (then) had close ties with the Ghana government’s Copyright Administration. The Folklore Board was charged with making an inventory of all of Ghana’s tangible and intangible folkloric works (not just music) and to monitor their commercial use by foreign artists and companies from the industrial nations, which would in future have to seek permission from and pay a fee to the Board.3

This notion that foreign companies and artists should pay for the commercial exploitation of the folklore of a ‘Third World’ country is in line with a series of sensible recommendations made by the World Intellectual Property Organisation (WIPO)4 that, recognising fundamental global inequalities between the developed and developing nations, wanted to create an international modality for protecting and compensating the use of the anonymous folklore of developing nations. In the West itself folklore falls within the public domain and so is free for anyone to use. Obviously, if this freedom included global folklore in the polarised world of North versus South that we have, the industrial nations would be quite free to use and ‘plunder’ the folklore of any developing country at will.

The establishment of the Folklore Board in 1991 also fell in line with the Ghana Copyright Law 110 that the Ghanaian PNDC government enacted in 1985. This places all anonymous works of Ghanaian folklore under the ownership of the state ‘as if it were an individual’, and includes a clause concerning the seeking of permission from and the paying of fees to the government, by persons commercially using local folklore. Unfortunately in the 1985 Bill, what type of person (foreign or Ghanaian) is not stated and it is this ambiguity that led to an unfortunate decision by the Folklore Board in the mid-1990s which I will come to later.

In 1992 I became a member of the Folklore Board and almost immediately I and another Board member, the well known Ghanaian folk-guitarist Koo Nimo (Dr Daniel Amponsah) presented a memo. In it we stated that even though the NCC and Folklore Board had deemed that Kwame Asare (i.e. Jacob Sam) was not the proven composer of Yaa Amponsah, he was, nevertheless, the first to record the song now used by so many Ghanaian musicians. So some sort of recognition for his efforts should be given to him and his family. Koo Nimo and I suggested that the Board organise an annual ‘Sam Week’ that would involve a highlife festival, seminars, workshops and an award for the best highlife musician, promoter and scholar of the year. This suggestion was turned down by the Board whenever we raised the issue.

Then in 1994, some members of the Board suggested that the folklore tax should not only apply to foreigners but also to Ghanaian nationals.5 They were helped in this idea by the previously mentioned ambiguity in the 1985 Copyright Bill that does not state what sort of person, Ghanaian or otherwise, should pay for folklore.6 These board members also argued that if foreigners had to pay, then it was only right, fair and equitable that Ghanaians should also pay. On that occasion |,7 Koo Nimo, the poet Professor Kofi Anyidoho and one other member of the Board outvoted the idea using a number of arguments – which I have listed below

Objections to applying a folklore tax to Ghanaians

1) One objection was that such a law applied internally to Ghana would stunt the creativity of local artists and interfere with informal interpersonal, oral and informal cultural creativity, including generational cultural adaption. This ‘folk-tax’ would, therefore, be a disincentive for Ghanaian youth to develop their indigenous roots, who being taxed for their own culture would be ever more tempted to turn towards free Western culture.

2) The law of equity argument cannot be applied, as the whole point of the WIPO recommendation in the first place is based on the fact that the world is not a level playing field There are rich and poor nations, and the rich ones are in a technological position commercially to exploit the folklore of developing nations. Indeed, the 1989 WIPO report specifically states (pp. 10-11) that the need for protection should only apply ‘outside the country of origin’.

3) Our third argument against such a folkloric copyright-tax concerned the status of traditional music that cuts across national African national borders; for example between Ghana and the Cote d’Ivoire or Ghana and Togo,8 Which African country would nationally own this shared folklore?

4) The position of the four of us was strengthened by a point that the honorary Chairman of the Folklore Board, Professor J. H. K. Nketia, raised at a public meeting in 1994.9 He pointed out a fourth objection: that a folkloric tax could lead to potential disputes over ownership of cultural property between the central state and local traditional communities.10

In spite of these objections the Folklore Board obtained a majority in 1996 for such a tax11 and an elderly folklorist was placed at the Copyright Administration to check all incoming local commercial cassettes. If they were deemed to be based on folklore, a royalty-tax had to be paid.

As one can imagine this immediately led to unpleasant situations. On one occasion I met a very angry argument at the Copyright Administration office between its officers and a young musician who was releasing a cassette of his local Ga music. He was infuriated as he had been taught these songs by his own grandfather in his family house and could not see why he had to be vetted by and pay the state for what he considered to be family and ancestral information.

In 1997 the government Copyright Administration incorporated the Folklore Board’s ‘folk tax’ recommendations in the draft of a new copyright bill, which clearly states that everyone (Ghanaian as well as foreigners) will have to pay (and get permission) to use folklore commercially.12 Indeed the provisional bill states that Ghanaians who commercially use, sell or distribute Ghanaian folklore or translations, adaptions and arrangements of it without a government permit will be fined and face up to two years in jail.

However, right from the beginning the government Copyright Administration had problems in getting this idea across to the general artistic community. For instance, at one of a series of public meetings that the Copyright Administration organised around 1998 to discuss the proposed new bill, their speaker was booed out of the hall over the folklore clause, as well as other clauses.13 Furthermore, in 1998 the members of the Folklore Board itself were changed, and some of its new trustees also opposed the new folklore tax on Ghanaians. But by then the Copyright Administration’s new bill was already in the pipeline and heading for parliament. The election in Ghana in 2000 halted the controversy for a while, but in early 2001 a group of young musicians who have formed a new copyright collecting organisation called GHASCAP (Ghanaian Society of Composers, Authors and Publishers) also objected to the proposed new bill and even sent their objections in writing to the parliamentary sub-committee concerned when the new bill was first presented in 2000.

Besides GHASCAP and the new Folklore Board, other organisations have recently objected to this proposed ‘folk-tax’ on Ghanaian nationals, namely the Ghana Old Musicians and Artists Welfare Association (GOMAWA) and the Ghana Songwriters and Composers Association (GSCA). Finally in 2002 the National Commission on Culture at meeting in Kumasi also objected to the notion of such a ‘folk-tax’.

As yet the issue between these artistic and cultural organisations and the Ghana Copyright Administration (now under the Ministry of Justice) has not been resolved and the bill has still to be voted on by parliament.
In short, the well meaning intentions of WIPO and the music star Paul Simon have backfired in Ghana, resulting in an attempt to legalise the copyright-taxation of Ghanaians using their own folklore commercially. This will be a disincentive for Ghanaians to creatively use and re-cycle their own traditional cultural resources and may potentiality pit the central government against traditional ethnic groupings of Ghana (and even some of its neighbouring countries) over the ownership of cultural property. The law is a totalitarian one that probably contravenes international conventions on human rights. For how can a democratic state own folklore and ancestral traditions and alienate these from its own people: a democratic state can surely only be a custodian?
So these folkloric clauses in the proposed new bill may touch on matters concerning the Ghana Commission on Human Rights and Administrative Justice (CHRAJ). The following questions are pertinent.

Can copyright kill rather than foster creativity?

The ultimate purpose of copyrighting (and patenting) is to individualise and protect tangible and intangible invention and thus encourage competitive innovation. The Ghanaian folk-tax shows how this noble aim can be distorted when a large-scale organisation, such as the state, becomes the property owner of ideas and information. Similarly, but on an international scale, we see today giant monopolistic multinational agrochemical companies copyrighting genes and creating genetically modified foods. This will centralise seed production and replace the creative input of peasant farmers who have gradually, over the last ten thousand years or so, developed the foodstuffs that we enjoy today. The creative onus will be on the big companies rather than small-scale farmers, with all the possible catastrophic consequences of such agricultural centralisation.

Is copyright becoming too pervasive?

There are three domains of musical copyright. Firstly there are works composed and authored by known individuals, which are protected for their lifetime and a fixed number of years (now 70) after their death. When this period elapses the work falls into the second ‘public domain’ and so is free for anyone to use. Thirdly, there are anonymous folkloric works that are automatically within the free public domain as they have no known authors to collect royalties.

In the case of Ghana we have seen that folklore has become taxable for Ghanaian nationals: indeed there have even been hints that the public domain may later be taxed as well.14 This would enlarge the governmental Copyright Administration’s bureaucratic control to all three areas of artistic works, leaving no cultural space in Ghana for Ghanaian nationals to freely develop and re-cycle their own culture. The idea of nationalising the culture of developing nations (vis-à-vis exploitation by developing nations) seem laudable enough. However, as we have seen in Ghana this can ‘backfire’ and easily lead to uncontrolled bureaucratic penetration of government copyright organisations into areas of national creative life that they have no right to be.

Is copyright protection becoming too long?

Originally the copyright protection of an artistic (or intellectual) idea was 25 years after the death of the author. This was extended to 50 years during the 1960s and recently to 70 years. As has been noted in the case of the Ghanaian song ‘Yaa Amponsah’, posthumous copyright protection can create problems in a society with living and evolving traditional and collective performance practices. Yaa Amponsah is at one and the same time the property of the family of the late Kwame Asare/Jabob Sam (who first recorded it in 1928) and a template upon which much local highlife music has been and is being based. Kwame Asare died in 1950, so the family can now, through the courts, claim ownership of this work until the year 2020 and put any further evolution of this song on hold. Indeed they could even retroactively sue any artist who has ever used this song in the past.

One can compare this ridiculous situation to a possible scenario in the United States concerning let us say the twelve-bar blues, which is the basis of thousands of American songs. Let us suppose that this musical pattern, which evolved around 1900, were to be suddenly be copyrighted by an African-American family that had proof that one of its members had invented it. Furthermore, suppose that inventor had, like Kwame Asare, died in the 1950s, so that the posthumous copyright is still in operation. Then the family in question could claim private ownership over this now ubiquitous blues pattern and sue anyone in the world who has commercially used it over the last century.

If one adds the active artistic life of a composer (say up to 50 years) to the 70 years of posthumous protection, one sees that artistic works are fixed now for over a century, which is four to five generations. This is absurdly long, especially in our era of rapid and accelerating technological and social change. In this context it should also be noted that the patent on a physical invention only last 25 years from its patenting. This encourages any discoverer of a useful invention quickly to develop it commercially. At the same time it gives inventors time to make their money, but not too long as to slow down other refinements of their inventions, which others can patent later. In other words the 25 year limit is not considered by industry as too long as to slow down technological development. One can imagine the incredibly slow speed of industrial development arising from the patent of an industrial design lasting, like copyright, until 70 years after the death of the inventor.

Turning back to copyright which deals with non-material inventions such as music15 and in the light of all that has been stated above, I believe posthumous protection should be reduced. Maybe not as far as in the patenting of physical inventions, but at least to only 25 years (or at the most 50) years after the death of a author, so that his or her children and maybe grand-children can benefit from their labours. If the 70 year posthumous protection is maintained and even extended again,16 so that artistic and cultural ideas are individually fixed for centuries at a time, this could negatively effect the re-cycling of culture that occurs every 25 years or so through natural generational change. Indeed, the absurd situation could even arise of the copyrighting of language itself: that is of the new words and expressions created by known individuals.

Can folklore be globally ‘free’

Although the practice of treating anonymous works of folklore as freely available for the general public is reasonable within any particular nation, in the international context of North-South inequalities, it can justify the ‘plundering’ of the ‘free’ folklore of the developing nations by the industrial ones. The 1980s WIPO recommendation that ‘Third World’ folklore should be nationalised vis-à-vis the developed nations is, therefore, a right and sensible one.
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This exploitative potentiality of the notion of folklore being a shared and thus free common heritage of humanity has also been used by the modern pharmaceutical, agribusiness and biotechnology industries of the West to gather, refine and patent the diverse animal and plant species of the developing nations without giving them due recognition and reward for their indigenous farming and folk knowledge (remedial properties, techniques, domestication, etc).17 Indeed, various international meetings have been held to try and rectify this situation and create ways of sharing the benefits of these modern ‘refinements’ with their original ‘discoverers’ in the developing nations.18

However, the lesson that should be recalled from the Ghanaian musical example is that if some of the financial benefits of indigenous folk knowledge are finally funnelled by Western nations to a developing nation, will the money get to the local farmers, the hunters, herbalists and traditional communities whose knowledge and ethno-science was tapped? Moreover, will the national funnelling agency of the developing country set up for this purpose subsequently turn on its own people (as in the case of the Ghanaian artistic folk-tax) and demand taxes for the use of these imported refinements: refinements that originally stem back to the folk knowledge of the local communities in the first place? n
This is an edited and modified form of the article ‘Transnational Culture and Ghanaian Music: Copyright Conundrums in a Developing Nation’ presented at the Centre for African Studies, University of Illinois, Colloquium on ‘Transnational Cultural Industries in Africa and Local Sites of Production’, 10 November 2000.

Notes

1. According to the late Beattie Casely-Hayford, Yaa Amonsah was composed by Asante Kwapong, whereas A. T .A. Ofori says that Kwapong arranged it after hearing the melody from an unknown old lady. The Achimota schoolteacher W. E .Ward notated three versions of Yaa Amponsah in his 1927 article in the Music of the Gold Coast journal (Vol. 3, pp. 199-223). On page eleven of the 1929 Zonophone Catalogue of West African Native Artists, Yaa Amponsah (record number EZ 74) is accredited it to Daniel H. Acquah under the direction of George William Aingo.
2. See Highlife Time (1996) page 1.
3. A later similar source of foreign revenue for the Folklore Board was several thousand dollars from the Japanese Victor Company for its use of some Ghanaian traditional material on its 1996 commercial JVC/Smithsonian Folkways Video Anthology of African Music and Dance.
4. For example, its 1989 report on ‘Protection of Expressions of Folklore’.
5. This was triggered by the release of a cassette containing 50% folkloric material by the Cape Coast NGO
6. I suggested an amendment to the Bill that would insert the word ‘non-Ghanaian’ before the clause concerning the folk tax proviso.
7. I had publicly argued against a folklore royalty tax being applied to Ghanaians in a paper I gave on the ‘Problems of Oral Copyright’ at a copyright workshop organised near Accra by WIPO and the Ghana Copyright Administration 9-11 October 1991: later published in Copyright News, January-December 1991, Issue 3, pp. 17-19
8. For example, adowa and kete rhythms are found amongst the Akans of Ghana and neighbouring Côte d’Ivoire, whilst dances like the agbadza and gahu are found in Ghana, Togo and even the Benin Republic.
9. He said this at a talk he gave at a Folklore Conference in Tamale on 19 August 1994.
10. This would also include the music of specific traditional courts, guilds, age-sets, religious and healing cults and so on.
11. This precedent was set when a Ghanaian ceramic artist wrote to ask permission to use indigenous kente designs and adinkra symbols as motifs for his works.
12. The educational use of folklore is excluded from this copyright-tax.
13. Another was that the Copyright Administration should be transferred from the Jurisdiction of the National Commission on Culture to the Ministry of Justice – which in fact later it was.
14. In an article in the Ghana Mirror of 9 July 1995 called ‘Gospel Music and Copyright’, the then Deputy Copyright Administrator Mr B. Bosumpra called for a ‘paying public domain’ in connection with the use of old hymn tunes by Ghanaian gospel groups. Fortunately the problem the Copyright Administration has had in getting the local artistic community to accept a folkloric tax from 1996 nipped this idea in the bud. Even though a paying public domain does not operate in any of the major industrial nations some developing countries (such as Argentina) are considering it.
15. The copyright area also includes, designs, writings, computer software , formulas and other non material inventions
16. One of the arguments for its extension is that the average life of an individual is increasing and so the descendants of a composer have to be protected for longer. This argument could be used to extend the protection period again and again as the average life expectancy (especially in the wealthy nations) increases.
17. This includes the so-called ‘wild’ species whose useful properties by non-industrial communities are nevertheless often based on a form of folk knowledge
18. For instance the 1992 Convention on Biological Diversity and the 1994 Human Rights Declaration on the Rights of Indigenous Peoples.