Protecting reggae – Cultural heritage needs IP

A few days ago news spread that well-known musical genre reggae, which originated in the beautiful island of Jamaica, would be protected by the UN. Katfriend Natalie Corthésy (The University of the West Indies at Mona) explains what happened in detail and reflects on the implications thereof.

Here’s what Natalie writes:

“BIG UP!” This popular Jamaican expression used to congratulate someone for achieving success, is an appropriate toast to reggae fans all over the world. At long last, reggae, a musical genre which originated in Jamaica, has been added to the United Nation’s list of International Intangible Cultural Heritage of Humanity list. The protected list was created in 2008 and came about as a result of the 2003 UN convention for safeguarding intangible cultural heritage. Its aims are to ensure respect for communities, groups and individuals involved in the listed activity, to raise awareness and encourage appreciation of those activities nationally and internationally.

Led by Jamaica's Minister of Culture and Entertainment, Olivia "Babsy" Grange, the Jamaican delegation that attended the UN meeting to confirm the inscription of reggae to the list, were the embodiment of the classic reggae song “Reggae Ambassadors” performed by the legendary reggae band, Third World. For those Kats who are less familiar with the lion sound of reggae, you can listen to it here. Note also the concise summary of reggae’s rise to international significance highlighted by the BBC in its feature story “Reggae has been added to a list of international cultural treasures which the United Nations has deemed worthy of protecting and promoting”, 29, November 2018, accessible here. 

So what does this mean for the owners of trade marks like this?

First things first. Is there a proprietary interest in reggae? If so, who owns it? If no one owns it, can objections be justifiably raised to its privatization through trade mark registration?

The second difficulty is perhaps more of an ethical kind: to the extent that reggae is also synonymous with the Rastafarian religion, Jamaica being the place where both originated, should signs considered disparaging of reggae and Rasta be refused trade mark registration? That is, can the UN’s aim to raise awareness and encourage appreciation of the contribution of reggae to world cultural heritage, have any substantive effect, if a sign that is disrespectful of the Rastafarian community or Jamaican musicians involved in the reggae music industry, is entered on the trade mark register? At least in Jamaica, this has not been left to guess work. The Jamaica Intellectual Property Office which has national responsibility for the registration of trade marks has implemented special rules to pre-empt this by issuing a Practice Notice Re: Traditional Knowledge and Traditional Cultural Expressions based on section 11(4) of the Trade Marks Act 1999, accessible here.

So a sign like the one below would unlikely meet muster for registration in Jamaica.

This brings us to the third hurdle, which is no doubt, the highest to jump: reciprocity. The deference shown to protecting reggae in Jamaica is unlikely to be mirrored worldwide. The intricacies of this challenge can be seen playing out at WIPO’s Standing Committee on Trade Marks, Geographic Names and Domain names (SCT) and the ongoing discussions concerning international IP protection of country names. [See my commentary on this issue here].

Despite Jamaica’s proactive approach to protecting reggae at home and abroad and its vibrant advocacy at the SCT in support of heightened IP protection of country names, there is no universal consensus that a good which inures to the benefit of the international community should, or should not, be free for use by all. Arguably, the recognition by the UN of reggae music as a world cultural gem is an admission on the part of its progenitors that reggae is Jamaica’s gift to the world.

Nevertheless, no one can take issue with sending out a “BIG UP!” to the international king of reggae, Jamaica’s reggae icon, the Honourable Robert “Bob” Nesta Marley. Marley’s heirs have figured out the maverick of how to leverage his timeless reggae legacy in this collaboration with Ben & Jerry. Though it might ire the wrath of those reggae fans who may fail to see the connection between ice cream and the music’s "contribution to international discourse on issues of injustice, resistance, love and humanity underscores the dynamics of the element as being at once cerebral, socio-political, sensual and spiritual" as UNESCO pointed out, it is some comfort to know that the proceeds of ice-cream sales are destined to aid a charitable cause.

Other cultural traditions which made the list include a Mongolian camel-coaxing ritual, dry stone walling in European countries such as France, Greece and Italy, and Egyptian puppetry.