1.0. INTRODUCTION
African folklore is more than storytelling, music, dance, and symbols passed down through generations. It encompasses the collective memory, identity, spirituality, and intellectual creativity of a people, or in this case, communities across the continent. In the modern global economy, folklore has increasingly become a lucrative legal resource as global fashion houses, film industries, music producers, and digital content platforms are starting to see the vast potential in the African Heritage. From fashion runways inspired by Maasai beadwork to films adapting African myths, traditional cultural expressions (TCE) are being commodified at unprecedented rates . This raises a fundamental legal and ethical question: Should African folklore be protected primarily as cultural heritage, or exploited as a commercial asset?
As globalization accelerates, African states and communities now face the urgent task of reconciling heritage protection with commercial realities while developing regulatory and legal structures that cater to the uniqueness of TCEs.
This article posits to explore the foundations of African folklore, the shortcomings of conventional intellectual property legal frameworks, emerging international legal structures, case studies of cultural appropriation, and pathways for sustainable protection.
2.0. UNDERSTANDING AFRICAN FOLKLORE AS COLLECTIVE INTELLECTUAL PROPERTY
Folklore is defined as ‘’a group-oriented and tradition-based creation of groups or individuals reflecting the expectation of the community as an adequate expression of its cultural and social identity, its standards and values as transmitted orally, by imitation or by other means.” Folklore is something that is deeply rooted in, and tied to, numerous communities across Africa, with many African countries such as Ghana and the Benin Republic possessing rich and distinct bodies of folklore.
Folklore encompasses traditional knowledge, oral literature, music, rituals, symbols, crafts, and customary expressions transmitted across generations. Recognition of folklore as cultural heritage has been strengthened on the international stage through UNESCO’s Convention for the Safeguarding of Intangible Cultural Heritage (2003), which obligates states to identify, preserve, and promote intangible cultural assets. Unlike copyrighted works with identifiable authors, folklore is typically anonymous, collectively created and maintained by communities over centuries and evolves through participation rather than fixation in permanent form. As a result, the scope of rights in folklore can only be determined with reference to the customary practices of specific communities, rather than through the standard copyright frameworks used in modern intellectual property law.
Seeing as African folklore does not conform neatly to the predetermined standards of modern IP laws, it is excluded from protection, effectively placing it in the public domain. As a result, corporations lawfully reproduce, adapt, and commercialize African cultural expressions without consent or compensation, creating a structural gap and legal vacuum. The vulnerability of African folklore reinforces global inequalities as multinational corporations continue to profit from African cultural assets, while source communities remain economically marginalized. Proper recognition and protection of these creative works is therefore required to ensure corresponding financial benefits follow the exposure African heritage receives.
3.0. COMMERCIALISATION OF AFRICAN FOLKLORE
The global creative economy has generated unprecedented demand for African aesthetics, narratives, and symbolic expressions. This attention is often presented as efforts to diversify creative outputs, yet they frequently operate through appropriation and commodification. Africa’s visibility in these industries is therefore marked by a paradox: while celebrated as a source of cultural capital, the resulting products are often detached from their communities of origin, raising questions of legitimacy, ownership, and the regulation of traditional cultural expressions.
When African folklore is commercialised, profits are captured by multinational corporations and foreign creatives, while originating communities receive little to no compensation. The Masakhane Pelargonium case , for instance, illustrates the struggle against the misappropriation of indigenous knowledge relating to the Pelargonium plant by foreign entities. The case has since become a landmark in the global fight against biopiracy, as it exposed the commercial exploitation of traditional value without adequate recognition of, or benefit-sharing with, the indigenous communities from which such knowledge originated. This imbalance raises critical questions about entitlement, benefit-sharing, and cultural justice.
The commercialization of folklore therefore presents a dual reality, on one hand, it has the potential to support cultural industries and economic development; on the other, it risks transforming heritage into extractive commodities that exclude cultural custodians from meaningful participation in the value chain.
4.0. LEGAL FRAMEWORKS PROTECTING AFRICAN FOLKLORE
The present situation does not, however, mean that African folklore is completely unattended to. At the domestic level, several African states have enacted laws recognizing folklore as protected cultural property. International law principles allow countries to amend their law to incorporate the gaps or establish sui generis systems and measures to safeguard their property, an example of such countries being Kenya by enacting the Protection of Traditional Knowledge and Cultural Expressions Act, 2016.
At the international and regional levels, efforts to develop tailored protection mechanisms have also intensified. The World Intellectual Property Organization (WIPO) has advanced negotiations on Traditional Cultural Expressions through its Intergovernmental Committee, proposing legal instruments that emphasize community ownership, prior informed consent, and benefit-sharing obligations. An example is UNESCO-WIPO which gave a model for nations to follow in UNESCO-WIPO Model Provisions for National Laws on Protection of Expressions of Folklore against Illicit Exploitation and other Judicial Actions, 1982.
Despite these frameworks, enforcement challenges remain significant. Weak institutional capacity, limited awareness among communities, jurisdictional difficulties in digital markets, and bureaucratic inefficiencies reduce practical effectiveness. Without strong implementation structures, legal recognition alone remains insufficient to curb exploitation.
5.0. FILLING THE VOID OF FOLKLORE PROTECTION
Effective protection of African folklore and traditional cultural expressions (TCEs) can be achieved only through the adoption of sui generis legal systems specifically designed to address the unique characteristics of these cultural assets. Unlike conventional intellectual property regimes, which are primarily individualistic and time-limited, sui generis frameworks recognize collective ownership, perpetual protection, and customary governance structures, aligning legal protections with the social and cultural realities of indigenous communities. Such systems empower communities to assert control over the use, reproduction, and dissemination of their cultural expressions, ensuring that outsiders cannot exploit these assets without consent and equitable benefit-sharing.
For businesses, these legal frameworks, if put in place, have significant implications. Companies seeking to use traditional designs, music, folklore, or rituals in commercial products or marketing campaigns will need to navigate formalized consent procedures and licensing agreements with the rightful community owners. Failure to obtain permission or to establish fair benefit-sharing arrangements could expose companies to legal disputes, reputational risk, and potential financial penalties. On the other hand, a clear and accessible sui generis system can create predictability and legal certainty, making it easier for businesses to engage ethically and profitably with indigenous knowledge and cultural assets while simultaneously promoting corporate social responsibility and sustainable partnerships.
Communities themselves can develop practical systems to protect and leverage their TCEs. This includes establishing registries or digital repositories of cultural expressions, defining internal governance structures for decision-making on licensing, and creating standardized frameworks for commercial agreements. Such systems can include community councils or boards to oversee approvals, negotiate royalties or benefits, and monitor usage to prevent misappropriation. By combining legal recognition with internal management and oversight, communities can retain control over their heritage, ensure that economic gains from their cultural expressions are equitably shared, and strategically engage with external partners to turn cultural knowledge into sustainable economic and social resources.
Ultimately, sustainable folklore protection is dependent on a consummation of minds between governments, communities, cultural institutions, and private sector committed to ethical commercialization practices.
6.0. CONCLUSION
The debate over African folklore reflects the broader tension between cultural preservation and commercial exploitation. Treating folklore solely as heritage, risks economic marginalization, while commodifying it without safeguards promotes cultural erosion and injustice. A balanced legal approach is therefore essential.
By adopting community-centered legal frameworks, enforcing benefit-sharing mechanisms, and strengthening international cooperation, African states can reclaim ownership of their cultural assets. Protecting folklore is not merely a legal necessity but a moral obligation to preserve identity, dignity, and historical continuity in an increasingly globalized economy.
Christian Anuiukwu is the Sector Head in the Technology, Entertainment, Media & Sports (TEMS) Sector at Stren & Blan Partners, Omonefe Irabor-Benson is a Senior Associate while Stanley Umezuruike, Rebecca Sojinu and Linda Daramola are Associates in the same sector.
Stren & Blan Partners is a full-service commercial Law Firm that provides legal services to diverse local and international Clientele. The Business Counsel is a weekly column by Stren & Blan Partners that provides thought leadership insight on business and legal matters.
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