Adinkra and Kente in Ghana's Intellectual Property Laws

Adinkra and kente cloth are produced mainly by the Asante people who form part of the Akan ethnic group of Ghana and its neighbor, the Ivory Coast. In the eighteenth and nineteenth centuries, the Asante dominated much of the territory that is now Ghana (Reference WilksWilks 1975). They nurtured adinkra, kente and other arts, creating a strong association between these cultural products and Asante power. That power remains in diminished form within the space of the modern nation-state of Ghana, because the country recognizes indigenous ethno-political groupings, and the constitution establishes a National House of Chiefs composed of the rulers of those groups. As a result of this recognition, the Asante ruler (or Asantehene) continues to be an important figure both in the national political sphere, and in the production of adinkra and kente. For example, cloth makers identified the Asantehene and their communities, rather than the Ghanaian state, as the rightful owners of their designs. In addition to their association with Asante, adinkra and kente have become important elements of Ghana's national culture.

Adinkra is made by stenciling symbols onto plain cotton cloth using a black dye made from tree bark. Its primary importance lies in its use for mourning, and it is also significant for the symbols that are used in its production. Each symbol has a specific meaning that reflects Asante values and history as well as the more personal values and histories of individual cloth makers and stencil carvers. Although it is produced by a specific ethnic group, adinkra has long been a hallmark of Ghanaian national culture along with kente cloth and other indigenous cultural forms. Kente, a form of strip-weaving, also features distinctive designs and colors and is associated with wealth and celebration. Unlike adinkra, it is produced by two ethnic groups in Ghana, the Asante and the Ewe. While strip weaving is widely practiced beyond Ghana, both Asante and Ewe weavers have developed esthetic features that make their cloth distinctive from each other and from forms in other locations (Reference RossRoss 1998). Another important feature of adinkra and kente production is that they are predominantly male realms. Women produce other kinds of less-prestigious cloth as well as the dyes used in adinkra production, and are also active in the sale of cloth (Reference BoatengBoateng 2011).

Adinkra and kente designs first entered into Ghanaian intellectual property law in 1973 with the passage of the Textile Designs (Registration) Decree (Government of Ghana 1973), an industrial property law that excluded the designs of indigenous fabrics from ownership claims by individuals and textile companies registering their designs under the law. When Ghana revised its copyright laws in 1985, it introduced folklore as a protected class of works and included adinkra and kente designs among those works. This copyright protection was based on the United Nations Educational, Scientific and Cultural Organization/World Intellectual Property Organization Model Provisions for National Laws on Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (which were drawn up in 1982 and published in 1985). As previously noted, the protection of folklore was retained when Ghana revised its copyright laws in 2005 as part of a massive law reform exercise to bring copyright and other Ghanaian intellectual property laws into compliance with the Agreement on Trade Related Aspects of Intellectual Property (TRIPS).

As part of this legal reform, the Textile Designs Decree was repealed and replaced in 2003 with a new Industrial Designs Act (Government of Ghana 2003b) that dropped the old decree's exclusion of adinkra and kente designs from ownership claims.Footnote ¹ Ghana also took the opportunity to introduce a new Geographical Indications Act (Government of Ghana 2003a), and included “kente” among protected indications. The intellectual property protection of traditional knowledge in Ghana has therefore gone back and forth between copyright and industrial property laws—at times straddling both spheres, and signaling the difficulty in using such laws to protect traditional knowledge. Of these, the copyright law is the most far-reaching and currently the longest lasting.

In the 1985 law, the rights to adinkra and kente designs and other folklore are vested in the State in perpetuity, the underlying principle being that such folklore is national culture. The definition of folklore also assumes the authors to be “ethnic communities of Ghana or … unidentified Ghanaian authors” (Government of Ghana 1985: 25). Musicians in Ghana, who constitute the strongest group of activists around copyright, have objected strongly to this national ownership of what they consider to be an important creative resource and have described it as a “royalty tax” (COCCA 2004). Musicians and Ghanaian folklore experts have also pointed out that far from being “unidentified” it is often possible to identify both living and deceased creators of folklore.

The 2005 version of the law responds somewhat to this second set of objections by inserting in the definition of folklore and its creators, the words “includes kente and adinkra designs, where the author of the designs are not known” (emphasis added) (Government of Ghana 2005: 31). This seems to limit the recognition of identifiable folklore creators to those responsible for adinkra and kente designs and is silent regarding identifiable creators of the music and oral traditions that musicians might draw from. It also limits state ownership to those instances where the creators are not known and, in excluding the designs of known creators from the category of folklore, tacitly permits individual ownership claims in such cases, in the same way that the law grants such rights to the authors and composers of books and music. In such cases, the term of protection is the author's life plus 70 years.

The copyright laws of 1985 and 2005 signal a more active link between intellectual property law and adinkra and kente designs than was the case with the Textile Designs (Registration) Decree (or with the Geographical Indications Act that only marginally refers to kente). Where the textile designs decree merely prohibited ownership claims over indigenous cloth designs, both copyright laws have spelled out the conditions for these designs' ownership and explicitly identify the State as their default owner. In addition, the decree was a sui generis law aimed at protecting a specific industry. Copyright law, on the other hand is well-established as one of the oldest forms of intellectual property law. It was the first to be given international scope with the 1886 Berne Convention that brought different nations into conformity with its basic precepts in an expanding process that has continued into the TRIPS regime of 1994. Ghana's protection of folklore within this well-established legal form is therefore significant. However, an examination of the temporal norms in the law and in cloth production reveals limits to that protection.

Organizing Time

Philosophers of time generally distinguish between two dimensions and refer to these as “time” and “temporality.” Time comprises those features that are more or less self-evident and factual, for example, the observable cycles of night and day, seasons, and years. In other words, “universal time, clock time or objective time” (Reference HoyHoy 2009). Reference EzeEmmanuel Eze (2008: 28) makes a related distinction between “history as (scientific) records of facts about the past, versus history as a source of wisdom about the meaning of time.” Temporality thus has to do with the meanings given to the empirical “facts” of time and refers to “the manner by which past, present and future are coordinated” (Reference CarvounasCarvounas 2002: 2), or “time as it manifests itself in human existence” (Reference HoyHoy 2009: xiii). Across these characterizations, the essential difference is one between dimensions of time that are deemed to be factual, objective, and scientific, and those that are viewed as subjective and have to do with qualities like meaning and wisdom. While “objective” time may be universal, as noted by Hoy, temporality, in being “subjective,” is socially and culturally variable.

It is clear that both objectivity and subjectivity can be challenged in relation to time. For example, while most societies may agree that time passes in years, they do not agree on the number of months in a year or the point at which a year begins. Further, the two dimensions of time interact with each other. Thus, while making a distinction between “physical and social time,” Reference HammerEspen Hammer (2011: 17) rejects “an opposition between objective, physical time and the subjective or illusory time of the everyday.” Against this background, any discussion of the way that time is organized is, in effect, a discussion of temporality and, in this article, multiple temporalities. Temporality, then, is neither neutral nor universal, but represents the active organization and management of time for different purposes in different contexts. Temporality is also the site of different crises, a key one being the advent of modernity—the historical period inaugurated by the Western Enlightenment.

In one important discussion of different modes of time, Benedict Anderson notes that the modern nation emerged in Western Europe when notions of time as sacred and circular, gave way to secular and linear conceptions of time. He states that in medieval Europe, there was no sense of a radical separation between past and present. Rather, events occurred in a recurring cycle organized through religion. Anderson argues that the nation emerged partly as means of restoring the sense of certainty and belonging that was undermined when linear conceptions of time replaced the reassuring cycles of sacred time (Reference AndersonAnderson 1991). Intellectual property protection also emerged during this period as a product of the Enlightenment and, more specifically, developments like the invention of the printing press and the radical shift from the view of creativity as dispersed among people and across time, to creativity as the result of individual inspiration.

In making a distinction between two modes of temporality and discussing the political form that emerged partly as a result of the transition from one mode to the other, Anderson leaves unresolved two issues. The first is the extent of the distinction between the two modes, and the extent of replacement of one mode of time with the other. Rather than a complete substitution, it can be argued that one mode of time became dominant without entirely replacing the other, and although Anderson discusses simultaneity within each of the two temporal systems, he does not address their simultaneity with each other. The second issue is the hegemonic operation of linear time as it spread from Western Europe to the rest of the world functioning, in Dipesh Chakrabarty's words, as “… an imperious code that accompanied the civilizing process” (Reference Chakrabarty2000: 93). Although European imperial expansion is an important element in Anderson's discussion of the spread of the nation and nationalism, he reports this as a fact rather than a problem of history.

These issues are taken up by Chakrabarty and other postcolonial scholars who move us away from a simple view of one mode of time being replaced by another, and insist on attention to the simultaneous existence of multiple temporal modes and the political processes and structures that link these to each other. Following from their insights European imperial expansion can be viewed as the hegemonic and hierarchical “spatialization” of linear/secular time (Reference McClintockMcClintock 1993). This mode of time was also at the heart of the idea of a universalized history (“the time of history”) that relegated other modes (“the times of the gods”) to its margins (Reference ChakrabartyChakrabarty 2000). Along with the hierarchical nature of temporal spatialization, this set of arrangements settled the question of the simultaneous existence of different modes of time by ranking one mode over all others (Reference ChakrabartyChakrabarty 2000; Reference FrowFrow 1997; Reference KorangKorang 2004; Reference McClintockMcClintock 1993). The process of marginalization was also domesticated and gendered, with the result that women and colonized peoples came to occupy the space of culture and tradition, as opposed to the space of a rational modernity (Reference McClintockMcClintock 1993).

An additional challenge that engages with both the simultaneity of different temporal modes and the hegemony of linear time has come from science studies. In his highly influential book, We Have Never Been Modern, Reference LatourBruno Latour (1993) critically examines the problems raised for knowledge production by a modernity whose hegemony depends on limited and limiting conceptions of science and of time. In interrogating the temporality of modernity, Latour argues that the idea of a linear, constantly progressing modern time only works by denying that modernity in fact operates through the denial of constant returns to the past. He notes that the time of modernity does not constantly move forward in a line as commonly claimed, but repeatedly spirals back in time. As I argue in the next section, this is very similar to the mode of temporality in adinkra and kente production.

A number of the postcolonial scholars mentioned above have drawn attention to the role of cultural workers in responding to the crisis wrought by the colonial encounter and its aftermath. Discussing possible responses to this crisis in the context of Africa, Kwaku Korang describes the task facing cultural critics partly as one of identifying an alternative Africa by “remov[ing] it from ontological and epistemological confinement in the ethnic past and bring[ing] it into the purview of a temporality that is worldly … an Africa that is competitive with respect to History” (Reference KorangKorang 2004: 49). Similarly, Emmanuel Eze speaks of the colonial encounter as the cause of a historical rupture—“a disabled tradition, a broken time” and suggests that African writing is a possible site of healing.

In making the distinction mentioned earlier between history as fact (and therefore as scientific) and history as meaning (and thus as wisdom), Eze states, “whereas fiction may be an unreliable guide to the first form of history, it is a privileged place for the discovery of the second idea: the African fiction allows one … to extend the problem of truth in history from questions about recovered facts of the past to the issue of tradition as itself a form of historical experience” (Reference EzeEze 2008: 28). He dismisses the spatial and hierarchical distribution of tradition and modernity between periphery and center arguing, instead, that the question is one of tradition in both locations, and whether that tradition is broken or whole.

The questions Eze poses about tradition are important ones, but must be balanced with the compromised integrity of the African tradition that must be restored in his analysis. Tradition in Africa has historically been open to manipulation in ways that have sometimes been self-serving, for example, with regard to gender (Reference Mama, Imam, Mama and SowMama 1997; Reference NzegwuNzegwu 2006) and must therefore be open to interrogation as a site of recuperation. In addition, while intellectuals, and especially writers, are central in both Korang and Eze's analysis as the cultural workers who must undertake the task of temporal restoration in Africa, this obscures the potential contributions of less-privileged cultural workers in Africa and beyond whose practices point to alternative temporalities. The same argument can be made for the understanding of time that is embedded in the production of adinkra and kente cloth. Given the lessons offered by the practices of cultural producers like those who make adinkra and kente in Ghana, the work of temporal restoration cannot depend exclusively on intellectuals and writers, as suggested by Korang and Eze.

In looking at the work of adinkra and kente producers, I seek to pick up where Korang leaves off when he states, “I cannot offer an in depth look at the ‘native’ resources that are at hand for marginal [postcolonial] intellectuals and the specific forms in which these resources figure in their anticolonial resistances” (Reference KorangKorang 2004: 40). Adinkra and kente might be construed as examples of such “native resources,” and as distinctive cultural goods they have played important roles in Ghanaian anticolonial struggles and cultural nationalism. However, I go beyond a view of adinkra and kente and similar products as mere resources for anticolonial intellectual cultural production. Rather, they constitute a site of alternative (or “competitive”) temporalities in their own right, and the cultural workers who produce these fabrics point to those temporalities in their words and practices. As such, those workers should be seen as important partners in the ethical and cultural project identified by Korang, in which “The African … looks toward his/her normative reinvention as a worldly subject of equality (or subject of equal ethical desert)” (Reference KorangKorang 2004: 42).

As an intellectual claiming that this “normative reinvention” occurs in the work of adinkra and kente producers, I am mindful of the pitfalls implied in Anthony Appiah's juxtaposition of ordinary Africans engaged in their daily productive/creative activities, with African intellectuals who interpret those activities for European and North American audiences (Reference AppiahAppiah 1992). There are however a number of possible alternatives to this view. These include Antonio Gramsci's concept of “organic intellectuals” who align themselves with ordinary people and use their privilege against the ideology of the ruling class (Reference Hoare and SmithHoare & Nowell Smith 1971). In another alternative, some black feminists argue that black women's historical lack of privilege in the United States has given them an “outsider-within” status that provides them unique insights into the nature and limits of domination by the ruling white class (Reference CollinsCollins 2000).

Noting black women's exclusion on the basis of race from white feminist thought, on the basis of gender from black social and political thought and on both grounds from mainstream scholarship in the United States, Collin states, “prevented from becoming full insiders in any of these areas of inquiry, Black women remained in outsider-within locations, individuals whose marginality provided a distinctive angle of vision on these intellectual and political entities” (Reference CollinsCollins 2000: 12). In sum, both the possession of privilege and its lack can offer access to knowledge that might typically elude the powerful.

In this specific case, the alternative to Appiah's dim view of the relationship between ordinary and intellectual Africans comes from the life histories method, and also from the power dynamics of my interactions with adinkra and kente producers. An important goal of the life histories method used in obtaining adinkra and kente producers' views is to minimize the inequality between “researcher” and “informant” (or “research subject”), and to view those who give narrations as partners in knowledge production. In my case, this was often an easy task because a number of factors usually combined to give adinkra and kente producers greater power in the relationship. One of those factors was my gender (in the context of male-dominated cloth production). Another factor was the life histories method itself, which some cloth producers saw as misguided in its emphasis on their individual lives rather than the history underpinning their work. Interestingly, in expressing this disapproval, they also emphasized the temporality that is the focus of this discussion.

These power dynamics and the method used demonstrate the possibility of productive engagement between Appiah's ordinary people and mediating intellectuals based, in this case, on attentiveness to Ghanaian adinkra and kente makers' negotiation of the temporal challenges of the postcolonial encounter. (That engagement is a feature of Appiah's own work when he acknowledges and negotiates the implications of his location in multiple worlds of ethnicity, nationality, and class.) Such attentiveness may be easier for those who bring less privilege from a male-dominated academy to an encounter with predominantly male Asante cloth producers, but Gramsci's framework suggests that it is not impossible for those burdened with such privilege. Against that background, I view my role first as one of reporting and amplification; I seek to bring what I learned from cloth producers into conversation with wider debates on temporality and the law with full recognition that any discovery that follows from this is the result of both cloth producers' insights and mine.

Specifically, cultural workers like adinkra and kente producers are important partners in the work of temporal restoration in at least two ways. First, they point to a mode of temporality that is different from the hegemonic linear time of modernity. However, rather than exemplifying the static temporality ascribed to tradition, their words and practices indicate a dynamic temporality whose true difference from modernity is in how it deals with the past rather than simply being stuck in that past. The intellectual property protection of adinkra and kente producers' work moves the difference from the level of theoretical abstraction to the practical implications of different temporalities for cultural workers. Therefore a second contribution of adinkra and kente producers is to show how in emphasizing one temporal mode, intellectual property law privileges one set of cultural workers over another even though the differences between their creative practices may not be as wide as claimed. In this, they provide a basis for interrogating the temporal bases of the law both in its modified form in Ghana, and at the wider international level of regulatory norms like TRIPS.

The Hand of the Ancestors

The issue of temporality emerged in adinkra and kente producers' life history narrations in a number of ways. As noted in the previous section, they raised it through their views on the life history method. Temporality also emerged in cloth producers' frequent references to “elders” and “ancestors,” and they appeared to do this for a number of reasons. In some cases, they were simply stating a fact about the practice of cloth production. For example, the regulations around the weaving of kente cloth for the Asantehene, “in the time of the elders … they would say if you stepped across it [the cloth while it was being woven], such and such would happen to you.” In other cases, they sought to highlight cloth and cloth-making as aspects of a distinctive heritage “weaving, it is my heritage, my ancestors' heritage.” Thus, although the aim of the study was to find out about their views and practices on cloth production and knowledge transmission, cloth makers were often insistent on locating those practices within a specific history, and they did this most often by reference to the ancestors and elders.

One of the functions of this emphasis on the heritage of adinkra and kente is simply to mark these fabrics as traditional, and to emphasize the distinctiveness of that tradition. In doing so cloth-makers participate in the broader nationalist project of establishing a distinguished cultural origin for Ghana while also emphasizing the distinctiveness of Asante culture. As Reference McClintockAnne McClintock (1993) has argued, this nationalist use of culture relegates responsibility for marking the cultural roots of the modern nation-state to women and other groups who have little influence within the political space of the nation. It can therefore be argued that in emphasizing their role as custodians of important elements of Ghanaian culture, cloth-makers reinforce their marginality in that space. In so doing, however, they also point to their operation in a mode of temporality that is different from that of intellectual property law.

Apart from positioning adinkra and kente as distinctive cultural goods, cloth makers' references to the ancestors also point to the connection between the living and the dead in Akan society. The dead do not belong only in the past, but continue to feature in the present, and one of the ways they do this is by bearing witness to the actions of the living especially on important occasions when they are formally invoked with libations poured in their honor (Reference BoatengBoateng 2011: 40). This close relation between the dead and the living is not limited to the Akan people of Ghana, but occurs in other parts of Africa. For example, Reference RenneElisha Renne (1995) notes a similar relationship between the living and the dead among the Bunu people in Nigeria.

The transfer of knowledge is one of those occasions judged to be of such importance that the ancestors must be invoked when it occurs. This does not only demand that they bear witness to the transfer, but also calls the attention of the living to the ancestors' role in producing the knowledge being transferred. One adinkra maker explained the practice with these words:

The invocation of ancestors thus refuses an absolute demarcation between the cultural production of the living and the dead and while such demarcation certainly occurs, it is frequently de-emphasized by cloth producers in order to draw attention to the work of the ancestors. For example, one kente weaver referred to new designs that he created and yet at another point in his narration stated,

While these words seem to bear out claims of traditional knowledge as unoriginal, it also indexes the importance of the ancestors' work as an important basis for new creations. Another adinkra maker also spoke of the creation of new designs with some ambivalence. He viewed them as the outcome of a natural process of individual inspiration in terms very similar to those of the “Romantic author” at the heart of copyright law (Reference HaynesHaynes 2005; Reference RoseRose 1993). However, he seemed to see such new designs almost as a dilution of the elders' work when he stated:

This cloth producer was from Asokwa, a community whose status as the first site of adinkra production in Asante has been considerably undermined by the emergence of another center, Ntonso. Asokwa does not appear on official maps produced by the national Tourism Board, indicating various tourist attractions. Rather it is Ntonso that is promoted on such maps as a center of adinkra production. The Asokwa cloth maker's insistence on the superiority of his elders' designs was therefore also an insistence on his community's pre-eminence and continuing relevance. It was also an example of the importance of the community in ownership claims about cloth. However, even at the newer center of Ntonso (location of the cloth producer who quoted the proverb, “the tongue does not rot”), the emphasis on the elders was equally strong.

Words like those quoted from these three cloth producers point to the continuity of the creative processes of adinkra and kente production across time. Together with the broader social context of ancestor veneration, they denote a conception of time within which the distinction between past and present is a fluid one. Death, which often functions as one of the strongest demarcations between past and present, does not operate so definitively in this scheme, and not only do the past actions of the dead continue in significance, but their present action is also important. While the physical actions of the dead may remain in the past, therefore, ritualized acts of remembrance ensure their continued symbolic participation in the present by demanding and expecting that participation.

In the case of adinkra and kente production, this emphasis on the continued activity of the dead in the present can be read as an understanding of creativity as occurring across time. Cloth makers continuously introduce new designs into the repertoire of designs that make up adinkra or kente and in some cases claim these as their own individual work. For example, cloth producers place a lot of importance on the right of an individual to name his designs, and there has been a move in one cloth-producing community toward formal recognition of that right (Reference RossRoss 1998). This is an indication of the importance of individual authorship for cloth producers. However their designs have little meaning without the creative work of the ancestors. “The hand of [the] ancestors” therefore continue to operate in the creative work of living cloth producers.

Rather than viewing this continuity simply as a manifestation of a static tradition in the circular/ritual temporality identified by Benedict Anderson as the precursor to the linear/secular time of modernity, it must be read as an alternative mode of temporality. This is evident when one takes into account cloth producers' constant claims of ongoing creativity and change in adinkra and kente production alongside their narratives of the ancestors. Those changes have occurred both in the form and content of the fabrics, and some of the most important have been responses to historical shifts such as the introduction of mass-produced fabrics and yarns first from European, then Ghanaian and most recently Chinese factories. These have widened the range of both colors and yarns used in cloth production.

The symbolism of both fabrics has also expanded in response to moments such as the defeat of the Asante by the British in 1901 and the exile of the Asante ruler and his court to the Seychelles islands (with the kente design, ohene aforo hyen or “the king has boarded a ship”), and the marriage of Ghana's nationalist leader, Kwame Nkrumah, to his Egyptian wife, “Madam Fathia” (Fathia fata Nkrumah, “Fathia is fit for Nkrumah”). With the pervasiveness of Christianity, adinkra makers have included the cross among their designs, and they have also appropriated the Mercedes Benz logo as a virtual and more accessible form of the wealth represented by the prestigious automobile (Reference ArthurArthur 1999/2001).

Given this constant change, individual innovation, and ancestral narratives, the temporality of adinkra and kente production can be seen as one that differs from the “modern” temporality within which intellectual property law is embedded. This is not because it is focused on an unchanging past, but rather because it is not as insistent on a strong break between past and present. Therefore, instead of Anderson's contrast between circular and linear temporalities, temporality here can be viewed as conceiving of time in a spiraling motion similar to that claimed by Reference LatourLatour (1993) for modernity.

However, while circling back to the past, it also circles out and forward; instead of repeatedly separating time into past and present, the past overlaps with the present. Cultural production in this framework remains current by responding to changes over time while retaining its legitimacy by invoking the past. If, as Latour suggests, claims of modernity's continual, linear, movement away from the past in fact erase or at least obscure its repeated returns to that past, what an examination of temporality in adinkra and kente production reveals is that the difference between the two temporal modes lies in that erasure rather than in any inherent differences. It is not a difference in kind, but in what is emphasized and what is obscured. Even more importantly, in revealing the limits of these temporal differences, the similarities also call into question the intellectual property arrangements that give form to the time of modernity, and in doing so deny protection to works like adinkra and kente. Those questions are even stronger when one takes into account the practices of those whose creative work is protected under intellectual property law.

Originality, Cultural Debt, and Legal Temporalities

Intellectual property law sharply delineates the beginning and end of copyright and other protections. The combination of the copyright symbol, author's (or publisher's) name and date fixes the protected work at a particular point in time and sets it apart from the work of other authors. Where adinkra and kente producers acknowledge the links between their work and that of past cloth producers through the frequent references to the ancestors, intellectual property law severs those links in the forms of creative work that it typically protects. In the process, the law erases the social contexts of creative work in its conceptualization of the creative process, and makes little accommodation for creative sources such as prior or overlapping lives (those of creators and their past and present influences). It also selects one point in time, the date of publication, from all others in the creative process and privileges both that date and the act of publication.

While this aspect of the law can be understood as a direct outcome of its origins in print culture and the imperative to distinguish individual publishers' and authors' work from each other, it is important to recognize that need as part of the wider shift from one mode of organizing time to another. It is also linked to the advent of liberal political thought and its emphasis on the individual. Intellectual property law therefore gives concrete expression to the linear time of “modernity” that sharply demarcates past from present, and to liberal individualism. It is important to note, however, that in separating the work of each creator's work from that of others, the law effects a stronger demarcation than may exist in practice. An examination of the ways that cultural workers manage cultural debt can further clarify differences in the management of time in different realms of cultural production.

One of the responses to the extension of the copyright term in the United States and the increasingly stringent restrictions placed on the use of protected work has been the observation that all creative work is intertextual—that is, it draws on previous work (Reference McLeodMcLeod 2001; Reference Seeger and GhoshSeeger 2005). Creative workers, the argument goes, should therefore be permitted easier access to protected work by limiting rather than extending the term of protection (Reference LessigLessig 2001; Reference McLeodMcLeod 2007). Apart from its implications for the duration of protection, the element of intertextuality undermines claims of originality as a basis for intellectual property protection in the first place and shows that the extent of originality in cultural work in the case of books and music recordings may not be that different from its extent in the production of adinkra and kente. As noted in the previous section, the notions of individual inspiration and creativity at the heart of the idea of the “Romantic author” that has been influential in copyright law since the late eighteenth century, also occur in adinkra and kente production.

In the case of adinkra and kente, the cultural debt involved in creative work and the limits it sets on claims of originality are obvious because in both cases, producers are open about their reliance on what has gone before. However, creative workers in a number of legally protected areas similarly acknowledge the “hand of the ancestors” in their work. In academic writing, for example, norms of citation ensure recognition of the work of previous scholars. This is also true of nonfiction and may even occur in certain kinds of fiction.Footnote ³ Apart from such citation, writers across genres also document the contributions of others in the acknowledgement sections of their books. These examples suggest that the legal separation of past from present does not fully reflect the actual practices of the cultural producers whose work enjoys protection under the law.

It could be argued that in emphasizing the links between their work and that of past creators, adinkra and kente producers' practices are no different from these ways of managing cultural debt and therefore that temporality in adinkra and kente production is no different from temporality in writing (or, for that matter, in cultural forms like music recordings and films that also feature acknowledgement of prior work). If there is indeed no difference, then adinkra and kente should be as eligible for intellectual property protection as are books, music recordings, and films. However, earlier creations are acknowledged in these cultural products in ways that allow for the claims of individual originality that are important for intellectual property protection.

In the case of such works, the management of cultural debt maintains a clear distinction between the new work and its sources in previously existing work. By listing each individual whose work is cited, it separates out what is original from what already exists. In the case of adinkra and kente producers, on the other hand, the acknowledgement of prior work is so central to the cultural form that such separation risks diminishing the value of new creations. While some cloth producers have sought recognition of their individual authorship of designs, they also emphasize the links between their work and that of previous generations. Therefore, while novelists, scholars, and adinkra and kente producers may all admit to the limits of their originality by acknowledging their debt to previous creators, the conventions by which they do so vary in ways that align or distance them from the temporality of the law.

An interesting example that bridges the management cultural debt in the case of adinkra and kente on the one hand and books and music recordings on the other, can be found in folk music in the United States. Like adinkra and kente production, this has its origins in temporally indefinite practices of authorship with strong links between deceased and living creators (Reference McLeodMcLeod 2001; Reference Seeger and GhoshSeeger 2005). With folk music's conversion into a genre in the music recording industry, individual compositions began to be severed from their contexts in the work of previous artists. The material benefits from this transition went not to communities or even to artists, but to music producers (Reference McLeodMcLeod 2001). Similar observations have been made regarding the commodification of African-American blues music (Reference McLeodMcLeod 2001; Reference SpringerSpringer 2007).

While some of the value of folk music continues to be in its contexts of production, including specific communities of origin, its commodification has weakened those links. In comparison with adinkra and kente, therefore, the folklore and blues examples seem to foreshadow the potential future of adinkra and kente production if their copyright protection has the result of severing individual from communal creativity, and of assigning the rewards of exploitation to individuals and entities other than the original producers. In the Ghanaian case, that entity appears to be the State, which is so far the biggest beneficiary of folklore protection under copyright law. Although there have been few instances of royalty payment for folklore, these have gone to the State and are justified on the basis of enabling the State to nurture and support national culture.

In organizing culture into discrete temporal units, intellectual property law also makes the physical units concerned easily identifiable with individual owners for the purpose of commercial transactions in which individual claims are central. A linear concept of time makes it possible to conceive of a specific point at which the creative process results in an artifact over which individual ownership claims can be made. This makes it easier to settle questions of who creates cultural products, who owns those products, and under what conditions others can produce copies of those products. It should also be noted, however, that setting specific points in time at which individual ownership begins and ends, helps to balance such ownership with the view that cultural goods must circulate freely in society and therefore must only be individually owned for a limited period.

The way that time is organized around adinkra and kente production also supports certain kinds of claims and the exercise of power over culture. The view of time as something that is not interrupted by death enables cloth producers to amplify the importance of their own work by harnessing it to the work of the ancestors. At the same time cloth producers benefit individually from producing discrete units of cloth that circulate as commodities in the same way that books and music recordings do. Individuals also introduce new designs and are wary of others copying those designs. However, the commercial exchange of cloth and concerns over the appropriation of designs do not translate into an exclusive desire to demarcate each design from all others in order to safeguard the profits that can be made from their reproduction. Rather individual claims are held in tension with claims of a long heritage of cloth production.

It can be argued that this is because it is difficult to regulate such demarcation and proprietary control. However, it is also due to the fact that in the commercial circulation of cloth, value resides not only in the individual design elements or individual units of cloth, but in their being adinkra and kente, that is in their being a specific kind of cloth. Additional value may derive from the fact that a piece of cloth is made by a skilled and innovative producer who uses only the best dyes and yarns, but if that innovation strays too far, it may in fact detract from the value of the cloth. If part of the author function, in Foucault's argument, is to indicate the distinctiveness of a particular discourse and to show that it “must be received in a certain mode and that, in a given culture, must receive a certain status” (Reference Foucault and RabinowFoucault 1984: 107), this is the function that the ancestors play in relation to adinkra and kente. While that function occurs partly through sharp temporal distinctions in intellectual property law, it occurs through a refusal of such distinctions in the temporal system of adinkra and kente production. This, rather than the simple fact of being traditional or modern, is one of the key differences between intellectual property law and the products it is designed to protect on the one hand, and products like adinkra and kente on the other.

There is an important exception to the law's strict demarcation of past from present, but this is still centered on the lives of individual authors. In its current form, the law projects that present into the future when it grants rights to copyright holders for a specified period after they die. In this sense, therefore, death in intellectual property law—and particularly copyright law—does not delineate the author's life as a cultural producer. With an author's work attracting rights beyond death, it can be said that in this sense and context, as well, “the tongue does not rot.” However the conditions that enable this extension of the life of the author beyond death could not be more different from the conditions that make it possible in the context of adinkra and kente production. In the case of the latter, the extension of the author's life beyond death is an integral part of a wider social order in which all deceased persons continue to be active if only symbolically.

Further, the legal continuation of the author's creative life beyond death is not indefinite and is not intended to make that life an open resource for further creativity by the living, as it is in adinkra and kente production. Rather it is a means of prolonging the extraction of profit from a deceased person's work by those with formal links to the author, and the history of the changing duration of copyright protection shows that this extension of an author's life is explicitly aimed at such prolonged profit extraction, although with relatively little benefit to actual creative persons. Because the rights to such work are held increasingly by institutions rather than actual people and their heirs, the figure of the author and his/her life, function to prolong the corporate extraction of profit from creative work. The extension of time into the future in this case therefore functions in the interests of specific individuals and their families and even more in the interests of institutions, rather than in the interests of an overall system of creative practice.

Another example of the extension of time in intellectual property law that has relevance for traditional knowledge protection is the “domaine public payant” or paying public domain. In this set of arrangements, copyrighted work whose protection term has expired continues to attract fees in a kind of state-run compulsory licensing system. In some national laws, fees are only levied in the case of commercial use and users are also required to “respect the integrity and paternity of the work” (Reference DusollierDusollier 2011). This system has been identified as a possible means of protecting work that is typically held to reside in the public domain, including traditional knowledge.

Although it does not use the language of paying public domain, Ghana's copyright protection of folklore is analogous to this scheme—especially in the 2005 version of the law that excludes work with identifiable authors from the protected category of folklore. It is also clear that some Ghanaians' response to the protection bears out the warning by at least one commentator that the fees levied are likely to be viewed as a tax (Reference DusollierDusollier 2011). In the case of works whose protection has expired, the paying public domain takes on an interesting temporal dimension in extending protection beyond the term specified in copyright law and, in effect, transferring ownership to the State, which continues to levy royalties on it.

Yet another example of temporal variation in intellectual property is the moral rights provision in copyright law. This is the author's right to have a say in how the work is used even after the economic rights to the work have been transferred—for example, to a book publisher, music producer, or art collector. While the standard copyright term applies to economic rights, moral rights vary in duration. In some cases, they end with economic rights, but in others, they exist in perpetuity, with France as the leading example of this indefinite term (Reference DusollierDusollier 2011). While the Berne Convention provides for the moral rights of authors, the TRIPS Agreement does not. In this respect, these international agreements reflect the legal principles of some of the nations that were most influential in their establishment—France in the case of Berne, and the United States, in the case of TRIPS. They also point to the contingency of the law in being governed by views that are particular rather than universal. Moral rights reflect the view that property rights in a work are inherent in the author—or are “natural rights” while the view in jurisdictions like the United States is that such rights are temporary privileges granted by society as incentives to creativity and innovation (Reference BoyleBoyle 2008).

The management of cultural debt in areas other than traditional knowledge, the legal extension of protection beyond the author's death, and variations in legal norms (like the paying public domain and moral rights) indicate that the temporal arrangements in the law and in the kinds of cultural work that it governs, recognize the continuing significance of creators beyond their lifetimes. However, with the exception of the paying public domain for works that have never been protected by copyright, the management of time in these instances ultimately functions to maintain the focus on individual creativity. It can therefore be argued that while temporal arrangements in these cases approach those in the production of adinkra and kente, significant differences remain and place limitations on the use of intellectual property law to protect traditional knowledge. Those limitations are evident in Ghana's use of copyright law to protect folklore.

At first glance, Ghana's protection of folklore within the well-established legal form of copyright seems like a radical departure from the law and its underlying principles. This is certainly true of Ghana's extension of copyright protection to a sphere of cultural production that is viewed from a conventional legal perspective as residing in the public domain. When one takes into account factors like the legal view of rights bearers as individuals or formally constituted groups that have the status of “legal persons,” and the perception of traditional knowledge as unoriginal, then Ghana's use of copyright law to protect folklore is indeed unusual. However, the resulting protection is limited because of a number of factors including closer attention to the State than to the folklore producers' priorities, and constraints posed by some of the principles of creativity enshrined in copyright law.

For example, the law only permits ownership claims in accordance with principles that exclude groups whose composition and membership is informal. While allowing claims by formally constituted groups as in mainstream copyright law, it precludes claims on the basis of ethnicity, say, or location of production—factors that are important to cloth producers. While the language of the law acknowledges ethnic groups as producers of folklore, the State assumes ownership of such ethnically produced folklore. This reflects a desire to minimize disruptions to national unity from competing claims by different ethnic groups. However it results in ownership of designs being limited to the State, individuals, or formally constituted groups (like corporations that have the status of legal personhood or, in theory, associations of individually identifiable cloth producers).

The law also fragments what it seeks to protect in two ways. First, it separates traditional knowledge into two categories of work by known and unknown creators. The work of unknown creators is owned by the State and protected in perpetuity while the work of known creators is individually owned by those creators and subject to the standard term of the author's life plus 70 years. This is at variance with temporality as it occurs in cloth producing communities, because the link between creators and their work is indefinite. The second source of fragmentation comes from the law's silence on the medium in which adinkra and kente designs are produced and appropriated. By ignoring the medium in which appropriation is most threatening to the work of adinkra and kente producers, the law effects a separation of the designs from one of the sources of their greatest value.

As a result of these limitations, the copyright protection of traditional knowledge in Ghana is so narrow that much of the basic exclusion from intellectual property law remains. This is most evident when one considers the protection of traditional knowledge in relation to the practices of cultural producers like those who make adinkra and kente cloth. In adhering more closely to some of the basic conceptions of creativity in intellectual property law than to the conceptions that guide cloth producers, the law undermines what it seeks to protect. In effect, therefore, Ghana's use of copyright law to protect traditional knowledge does not fundamentally change the conformity of its version of that law to the Western standards enshrined in international instruments like the Berne Convention and TRIPS.

Discussion

Cultural workers in different spheres acknowledge the limits of their originality. There is considerable variation within national and international intellectual property norms in the management of temporality. Nonetheless, while some acknowledgements of cultural debt occur in ways that are compatible with the organization of time in intellectual property law, this is not the case with adinkra and kente production. In addition, the available legal variations in temporality are inadequate for the protection of cultural goods like adinkra and kente. At the same time the very existence of those variations demonstrates that the temporal arrangements in intellectual property law are malleable. The question that must be posed is why they are only malleable for some interests and not for others? Why does the Berne Convention uphold moral rights while the TRIPS Agreement does not?

The answers to these questions do not lie exclusively in the relative merits of different principles of ownership, but also in who wins out in struggles over those principles (Reference Sell and MaySell & May 2001). That is, they point to the politics of intellectual property law, and that politics includes the primacy of the temporalities of the law in relation to those of products like adinkra and kente. This primacy is a manifestation of the hegemonic expansion of a particular temporal mode as noted by postcolonial scholars. An expansion that has simultaneously devalued the temporalities of local communities in the global South and indigenous communities in both North and South. It is in response to this that scholars like Emmanuel Eze and Kwaku Korang have called for temporal restoration and identified writers as crucial workers in this project.

The preceding discussion has shown that this work of temporal restoration must also occur in the sphere of intellectual property law and its regulation of cultural production. In this sphere, cultural workers like adinkra and kente makers have much to contribute in highlighting alternative temporal modes. In addition, legal variations that grant rights in perpetuity—whether in the area of moral rights or the paying public domain—demonstrate that the distance between the law and traditional knowledge may be exaggerated. The characterization of adinkra and kente as traditional and therefore at variance with intellectual property law, has less to do with the actual differences between the two realms of cultural production that they represent, and more with the structural relations of power established between them through the political dimension of temporality revealed by scholars like Chakrabarty, Eze, and Korang.

That process has not only rendered the temporality of intellectual property law dominant, but has also naturalized it, so as to render deficient other modes of organizing time—particularly when those modes are viewed as “traditional” or (to borrow a term from Bruno Latour) “premodern.” This is especially evident when one looks beyond Ghana to the international regulatory system for intellectual property. Within that system, there is little recognition of other ways of organizing time and the cultural forms that emerge from such systems. In this scheme, efforts to protect cultural goods like adinkra and kente remain outside a universalized set of ideas about what can be protected within the law, even though those ideas continue to change and expand to accommodate particular interests. For example, the principle that genetic material can be patented only dates back a few decades (Reference McLeodMcLeod 2001). The legal variations cited in the previous section provide further evidence of the law's malleability in response to specific interests in various jurisdictions.

In the case of the temporal frameworks of adinkra and kente and intellectual property law, the key features discussed so far suggest that the differences are not the standard (and extreme) ones of linearity versus circularity. As discussed by Reference AndersonAnderson (1991), a circular conception of time suggests an aversion and resistance to change. There is thus a constant returning to what is known and certain. Within such a framework there can be little innovation in cultural production, as this breaks the circle. If there is any circularity in the temporal mode of adinkra and kente production, however, it is an outward spiraling in which returns and appeals to the past do not close the circle, so that there is also continuous change and adaptation and movement away from the origins invoked by cloth weavers. This temporal mode also suggests a linearity that is multiple rather than singular, in which the line of each cultural producer's life overlaps with those of past, present and future lives. It is also a linearity that resists fragmentation into individual lives, and into past and present.

Against this background, it is misleading to characterize the encounter between the temporal systems of adinkra and kente and those of intellectual property law in terms such as sacred/secular; linear/circular, and—above all—traditional/modern. These terms construct and emphasize differences while obscuring continuities and similarities. Rather than indicating an anterior tradition, therefore, the temporality of adinkra and kente production points to conceptions of time (and persons) that are informed by values that differ from those underpinning intellectual property law. Thus, as the discussion on originality in the previous section has shown, the two modes of conceptualizing time, and the understanding of cultural production that emerge from them, vary not so much in essence as on the bases of decisions about where best to locate their boundaries. The temporal mode of adinkra and kente production refuses to operate, as intellectual property law does, by stripping cultural production of its social and temporal contexts in order to uphold the fiction of individual authors and owners.

If one proceeds from the temporality of adinkra and kente production rather than that of the law, then protection must make it possible to acknowledge the limits of ownership in the ways practiced by cloth producers. This could include allowing cloth producers to protect their designs as expressed in the medium of cloth. Because the appropriation of cloth designs occurs in a range of media, that protection could apply stronger sanctions to appropriations in cloth than in jewelry, say, or ceramics, especially because cloth producers seem to view appropriation in media other than cloth as insignificant. It could also include protection in perpetuity without this automatically translating into nationalization, even though the State could play a role as the ultimate source and guarantor of cloth producers' rights.

The State could also work with cloth producers to establish a system of recognizing individual rights not through exclusive ownership of individual designs, but rather in institutionalizing the right to name designs that cloth producers insist upon without penalizing other cloth producers who use those designs. This would recognize individual originality without fragmenting the overall system of cloth production by reducing it to exclusive claims over individual designs. If the drafters of the Berne Convention could include the moral rights that were so important to them, why not naming rights over individual designs in the Ghanaian protection of adinkra and kente?

Recognizing individual naming rights while protecting designs and cloth as a whole, rather than as fragmented elements, would accommodate the tension between claims of individual creativity and the importance of an overall system of cultural production as the source of that creativity's value. Where book producers point to prior work in their footnotes, adinkra and kente producers could point to a registry of individual designs, reserve to themselves the right to draw freely from it, while withholding those rights from groups external to their communities—especially those wishing to appropriate their designs for mechanized reproductions that can compete with their hand woven and hand-stenciled cloth. That is, the protection scheme would recognize individual authorship while locating ownership at the level of the community. It could be further refined by granting individual designers the right to exclusive use of their new designs for a limited period analogous to the protection term in copyright but for a much shorter duration in order to maintain the focus on the overall pool of designs. Such a system might be more effectively regulated by indigenous rulers than by the State—or at least by indigenous rulers in consultation with the State. It would also parallel the distinction between moral rights and economic rights while temporally inverting it, because individual rights would be temporary and communal rights would last in perpetuity.

A key challenge in such an alternative scheme would be in deciding who the holder of ownership rights should be. While Ghana has been wary of locating those rights in ethnic groups, it is clear that neither the State nor individual producers represent a useful alternative. Self-identified communities of cloth producers might be a possibility, and a naming rights system that also established the designer's community of residence and practice might help to defuse the rivalries between communities over the authorship of particular designs. To take the example of Bonwire and Adanwomase, the main centers of kente production, there is rivalry between the two, but a system of recognition of naming rights that also named the individual creators' communities of origin might help to diminish those rivalries.

These suggestions are not for a sui generis scheme of protection as such a scheme would only further marginalize adinkra and kente in the space of the law. Rather, they are principles that can easily be accommodated into intellectual property law if its existing variations are anything to go by. Quite simply, they are suggestions to: expand intellectual property to include additional kinds of authorship rights (like naming rights) that are important to cultural producers in different locations; allow for rights in perpetuity without nationalization; and allow for ownership claims by self-identified groups whose constitution may be informal, rather than based on liberal principles that assume the individual as the basic unit of society and bearer of legal rights. These could inform the law at the level of its broad principles while allowing for the details of their administration to vary from one locale to another (e.g., in including indigenous rulers in the administration of a naming rights system for adinkra and kente makers). The most significant obstacle to establishing such a regime is not in the dubious modernity–tradition divide between different kinds of cultural production, but in the hegemony of modern time. Successfully instituting such a legal regime that incorporated provisions like these would therefore be an important step in the task of temporal restoration in the sphere of intellectual property law.