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Copyright © Anthony C.K. Kakooza, 2014 All Rights Reserved Copyright © Anthony C.K. Kakooza, 2014 All rights reserved THE CULTURAL DIVIDE: TRADITIONAL CULTURAL EXPRESSIONS AND THE ENTERTAINMENT INDUSTRY IN DEVELOPING ECONOMIES BY ANTHONY C.K. KAKOOZA DISSERTATION Submitted in partial fulfillment of the requirements for the degree of Doctor of the Science of Law in Law in the Graduate College of the University of Illinois at Urbana-Champaign, 2014 Urbana, Illinois Doctoral Committee: Professor Jay Kesan, Chair Professor Bob Lawless Professor Anna-Marie Marshall Professor Thomas Ulen ABSTRACT This study addresses a number of pertinent issues concerning Traditional Cultural Expressions [TCEs], specifically in relation to what they are and the dilemma surrounding ownership vis-à-vis custodianship in an environment that is biased towards protection of Intellectual Property Rights. The present inadequate legal recognition and, ultimately, insufficient international recognition and protection of TCEs has orchestrated the misappropriation of such works for the benefit of the entertainment industry and other economic sectors as well. The biggest underlying issue therefore is – whether TCEs should be recognized within the domain of Intellectual Property Rights. The fact that TCEs are considered as part of the public domain raises a key issues as to how they can be protected so as to serve the interests of ethnic communities, States, as well as the users of the TCEs. The claim made in this study is that because of the communal nature of ownership and difficulty in defining TCEs, this has contributed to their abuse by all users. The current origin-based I.P regimes are considered as inadequate in protecting TCEs which are mainly characterized by communal ownership and absence of fixation. This therefore calls for a specific sui generis regulatory mechanism that can address the interests of all stakeholders with a view of effective utilization of TCEs towards socio-economic development. On the regulatory scene, the study looks at International Instruments, Regional Treaties as well as select National Laws from Africa in evaluating the current adequacy of protection offered to TCEs. In this evaluation, it points out key principles that amount to protection of TCEs and scrutinizes their inclusiveness in the current regulatory mechanisms. The study also relies on multiple case studies to show the extent of TCE appropriation in different parts of the world. It brings in empirical findings drawn from field research, mainly in Uganda, to highlight stakeholder perspectives on various matters pertaining to the use of TCEs and how they can be used to generate socio-economic development. These findings, supported by theoretical arguments derived from secondary data, support the general claim made in this research over the need for a sui generis regulatory system over TCEs. ii Some of the fundamental concerns for TCE Custodians include preservation of their cultural values in the TCEs; entitlement to part of the royalties generated from usage; and the right of attribution. As such, the general recommendation presented for the realization of effective TCE usage, is an equal-based partnership between TCE Custodians and State Agencies. Under this arrangement, the right of self-determination by the Custodians is balanced out with State involvement in management and enforcement of TCE property rights. It is generally hoped that this study can be used as an impetus for further research in the development of sui generis policy and regulatory frameworks in the appreciation of Traditional Cultural Expressions in developing economies. iii DEDICATIONS To my Father, the later Professor Joseph M.N. Kakooza, for having held me like an arrow, pulled back, pointed towards the bull’s eye and let go. You never lived long enough to see where I would land, but all the same you had faith that I would hit the mark. To my Mother who always believed in me and fanned the wind that propelled me faster towards my mark. Lastly, to my wife, children and siblings – we have journeyed far together, but this is yet a new beginning. iv ACKNOWLEDGMENTS “If I have seen further, it is by standing on the shoulders of giants ” - Isaac Newton (1643 – 1727). It is no easy task writing down all the giants that have given me their shoulders to stand on and enabled me to see this far. I will start by acknowledging and giving my heartfelt appreciation to my thesis advisor Professor Jay Kesan, thus far the very best Law Lecturer I have ever known. Thank you for agreeing to carry me on your shoulders and sharpening my scholarly skills along the way. Your generosity in funding part of my research, and overall passion for my success exceeded my expectations. I will forever cherish my three years under your tutelage inclusive of the fun we had together in Uganda. To my other Doctoral Committee members – Professor Robert Lawless, Professor Anna-Marie Marshall and Professor Thomas Ulen. It is hard to believe that I had the very best of the best agreeing to come on board to guide me in my research. Your respective fields of expertise in Research Methodology; Law and Society; and, Law and Economics, have been the glue that has fastened every corner of this research work together. I am indeed with overwhelming gratitude to you for all the support, guidance and encouragement you rendered along the way leading up to the conclusion of the Study. Thank you too Professor Mark Cole, from the University of Luxembourg for your timely advice and input into my research. I also would not be at this final stage of my work if it wasn’t for the selfless care and support received from the office of Graduate and International Legal Studies at the University Of Illinois College Of Law. My heartfelt appreciation goes out to Dean Charlotte Ku for your kindness and guidance throughout the time of my J.S.D program; to Christine Renshaw whose door is always open and ready for assistance and to Laura Owen for your devotion towards the welfare of all International Students. I appreciate you all. Molly Lindsey, the most diligent and efficient office assistant I have ever come across, thank you for all the support you have rendered me. To Professor Heidi Hurd and Professor Michael Moore – the day you came into my life is marked down as the day my life literary changed for the better. There are never enough words to describe how appreciative I am for everything you have done for me. You guys are the very best. Thank you so much for giving me a fishing rod instead of a fish. You helped me start the first ripple and it is simply amazing how far the ripples have multiplied. v To my family - I owe a great deal of gratitude to my wife Lydia Kakooza. Your support and encouragement warmed my heart and helped to propel me further. The same goes for my J.S.D classmates – Romin Tamanna, Xiaoqi Dai, Carlos Rubio, Kanok Jullamon, Tzu-Te Wen, Carolina Arlota, Aisi Zhang and Runhua Wang. Thank you so much for the encouragement that you have been giving me along the way. It spurred the confidence that built the fire in me to succeed at all costs. To my Ugandan friends, Primah Kwagala – I can never thank you enough for going out of your way in helping to organize my I.P/Folklore Conference in my absence. I could never have pulled it off the way you did and for that, I am forever grateful. To my very good friends Paul Asiimwe and Apollo Kazungu, your support has played a big role in seeing me through. Thank you. To Dean Pamela Tibihikira-Kalyegirra, Faculty of Law, Ugandan Christian University, you too were a giant in your own making. I am grateful for all the strategies and tips you gave me along the way in enabling me fulfill my dream of getting into the J.S.D program and pursuing it through. I am also grateful for your support in hosting the I.P/Folklore Conference in Uganda. You will forever remain one of my dearest friends. To my former students – the young learned friends: Silver Kayondo, Julia Zzabu, Ivannah Walugembe, Chrispus Mutabuuza and Herman Tuhairwe, thank you for your selflessness and organizational skills that helped to pull off a very successful I.P/Folklore Conference in Uganda which formed the pillars of this research. Last but not least, to my contemporaries in the legal profession, friends in the music industry and Ugandan Traditional elders. I am grateful for your support in enabling me to conduct a very smooth and productive field study. This study has everyone one of you written all over it. vi TABLE OF CONTENTS PREFACE ......................................................................................................................................................... ix CHAPTER ONE .............................................................................................................................................. 1 Understanding the Cultural Divide: Traditional Cultural Expressions and modern music .................... 1 1.0 Introduction ................................................................................................................................................. 1 1.1 Background to the Study ............................................................................................................................ 2 1.2 What is the Cultural Divide? .................................................................................................................... 11 1.3 Overall research aim and individual research objectives ..................................................................... 14 1.4 Study methodology ..................................................................................................................................
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