The Bata Vs. Salsa Case: A Win For Nigerian Culture?

By Omotayo Awomolo-Enujiugha, MCIArb, FICMC

Want to make a lawyer’s day? Give him/her a legal backing for
his/her convictions. The feeling can be best compared to that
feeling when one finds a functional item that had been lost. This
euphoric feeling would probably have sufficed to describe the state
of affairs at the Pyakasa Customary Court, Abuja, on the
16^th day of February, 2021, when the Intellectual
Property Lawyers Association Nigeria (IPLAN) achieved victory in
the legally fascinating case colloquially known as the Bata vs.
Salsa Case.

The team, which was led by Barr. Folarin Aluko, of Trumann
Rockwood Solicitors, had amidst several challenges, researched on,
investigated, filed and argued the case at the said Court, which
would eventually uphold their arguments that Bata, a dance style
that forms part of the Traditional Cultural Expressions (TCEs) of
the Yoruba people of Nigeria, is the historical origin of the
Latin-American dance style, popularly known as Salsa.

To understand better the comments which follow in this article,
it would be necessary to have the contextual and historical
background that sparks the interest of this commentator on the
case.

Generally TCEs include, artistic creations, textiles, folklore,
folksongs and all creative expressions of a tribe, community or
body of people with a similar heritage, which have been passed down
from generation to generation and which form part of the social,
spiritual and cultural lives of the people. As one can imagine,
this means that it is not property of any one person, but belongs
to the entire community as a heritage. It also means that as mere
artistic expressions, they are seldom written down or in anyway
documented and in most case form some secret practices that are
peculiar to such people. This also means evidence of it or its
existence remains an issue of culture and is usually only disclosed
by persons knowledgeable in such customs.

The above characteristics have made it an uphill task to legally
identify and protect such works without affecting the cultural
heritage of the people. Meanwhile, where unprotected, they filter
out over time and as a result of globalization and digitization,
could be and ore often copied, borrowed or outright stolen, without
due regard, reference or return (this commentators three R’s to the
proper protection and positive exploitation of TCE’s) to the
community owners.

The drive to protect this class of creations leads to the
discussion on Intellectual Property (IP). IP refers generally to
the property rights conferred on persons who have created or
invented something new. It is therefore not a tangible property
right, but an incorporeal right to prevent others from using such
creations and inventions without the authority of the holder of the
property. The scope of each right under IP and which creations or
inventions, popularly known as products of the intellect they refer
to, is usually provided by Intellectual Property Laws (IPL) and IPL
covers certain areas including Copyright for books, songs, poems,
dramas, artworks, movies, dance, broadcasts, and so on. Considering
the scope of intellectual creations that copyright covers as
explained above, it is no wonder that Copyright is considered as an
appropriate means of protecting TCE’s such as the Bata dance
culture of the people of western Nigeria. Whether it is an
appropriate means or not is an argument for another forum, but it
suffices to note that the Nigerian Copyright Act, Cap C18, LFN,
2004 makes provision for the protection of folklore, including
folkdances, under Section 31 (5) of the Act.

The above protection has however done little to solve situations
of misappropriation of TCE’s or breaches of the three R’s that must
necessarily guide any situation of commercial exploitation of such
traditional creations of a people. This stems from many challenges
identified by experts to the protection of TCE’s by Copyright or IP
in general, the lack of adequate cover under the Nigerian law on
copyright, the lack of documentation of TCE’s, the absence of
proper precedent and general lack of awareness even on the part of
the communities of their rights, or their incapacity to address or
challenge any breaches of same even when they are aware.

It is for these reasons that the decision to take up the Bata
Dance and Salsa affinity case is heralded here as a step in the
right direction.

While there may be concerns expressed by learned legal
commentators, IP enthusiasts and experts who now or later may hold
the view that the Customary Court in Abuja lacked the jurisdiction
to adjudicate on the matter in the light of Section 251 of the
Constitution of the Federal Republic of Nigeria, 1999 (as amended),
the case remains a win for TCE’s and IPL development in Nigeria. It
must be understood, by way of allaying the fears of this hallowed
body of experts that this was not an IP or copyright infringement
case simpliciter, neither was it for the enforcement or
interpretation of any of the provisions of any of our IPLs in the
country.

This was more importantly, an opportunity to allow our cultural
and customary laws draw their own nexus to the existence of this
culture and how it has led to the creation of this whole other
creative enterprise and creation. To put it in context, if we
cannot protect it and challenge it, then at least we can recognize
it and create awareness by way of precedent on the need to protect
TCEs.

This commentator posits that there are some benefits and notable
points for Nigeria from this win:

1. The win acts as precedent (even if only permissible in certain
   aspects) for the nexus between the two dance cultures and this
   could be used in making a case for asserting any rights on a more
   national scale.
2. The win serves as a boost to the culture of the people and
   awareness of the need to protect their heritage.
3. The win creates a backdrop for the nation to consider the use
   of Customary Courts to serve as courts of first instance in the
   documentation and protection of TCE’s. The likelihood of the
   creation of a sui generis (unique) set of rules, though
   borrowing from IP principles but based on and responsive to the
   culture and practices of the people becomes more apparent
   here.
4. The win serves as a statement on the need again for judicial
   activism, as case law is again acknowledged as part and parcel of
   the judicial system in Nigeria.
5. The win serves as documentation of the culture and expert
   opinions therein become public records that could be used in other
   fora.
6. The general need to revisit IP laws and continue the focus on
   protection of TCEs is a major take home for government.

In all, this commentator applauds the effort of the legal teams
both for and against the arguments, applauds the Customary Court
Pyakasa, Abuja, for its initiative, urges the government to
continue its moves to find a lasting solution to the protection of
TCE’s in Nigeria and looks forward to following up with the case,
if it goes on appeal or if further steps are taken to push the
narrative hopefully in the near future.

Written By Omotayo Awomolo-Enujiugha, MCIArb, FICMC,
cathawomolo@gmail.com

By Omotayo Awomolo-Enujiugha, MCIArb, FICMC

Want to make a lawyer’s day? Give him/her a legal backing for
his/her convictions. The feeling can be best compared to that
feeling when one finds a functional item that had been lost. This
euphoric feeling would probably have sufficed to describe the state
of affairs at the Pyakasa Customary Court, Abuja, on the
16^th day of February, 2021, when the Intellectual
Property Lawyers Association Nigeria (IPLAN) achieved victory in
the legally fascinating case colloquially known as the Bata vs.
Salsa Case.

The team, which was led by Barr. Folarin Aluko, of Trumann
Rockwood Solicitors, had amidst several challenges, researched on,
investigated, filed and argued the case at the said Court, which
would eventually uphold their arguments that Bata, a dance style
that forms part of the Traditional Cultural Expressions (TCEs) of
the Yoruba people of Nigeria, is the historical origin of the
Latin-American dance style, popularly known as Salsa.

To understand better the comments which follow in this article,
it would be necessary to have the contextual and historical
background that sparks the interest of this commentator on the
case.

Generally TCEs include, artistic creations, textiles, folklore,
folksongs and all creative expressions of a tribe, community or
body of people with a similar heritage, which have been passed down
from generation to generation and which form part of the social,
spiritual and cultural lives of the people. As one can imagine,
this means that it is not property of any one person, but belongs
to the entire community as a heritage. It also means that as mere
artistic expressions, they are seldom written down or in anyway
documented and in most case form some secret practices that are
peculiar to such people. This also means evidence of it or its
existence remains an issue of culture and is usually only disclosed
by persons knowledgeable in such customs.

The above characteristics have made it an uphill task to legally
identify and protect such works without affecting the cultural
heritage of the people. Meanwhile, where unprotected, they filter
out over time and as a result of globalization and digitization,
could be and ore often copied, borrowed or outright stolen, without
due regard, reference or return (this commentators three R’s to the
proper protection and positive exploitation of TCE’s) to the
community owners.

The drive to protect this class of creations leads to the
discussion on Intellectual Property (IP). IP refers generally to
the property rights conferred on persons who have created or
invented something new. It is therefore not a tangible property
right, but an incorporeal right to prevent others from using such
creations and inventions without the authority of the holder of the
property. The scope of each right under IP and which creations or
inventions, popularly known as products of the intellect they refer
to, is usually provided by Intellectual Property Laws (IPL) and IPL
covers certain areas including Copyright for books, songs, poems,
dramas, artworks, movies, dance, broadcasts, and so on. Considering
the scope of intellectual creations that copyright covers as
explained above, it is no wonder that Copyright is considered as an
appropriate means of protecting TCE’s such as the Bata dance
culture of the people of western Nigeria. Whether it is an
appropriate means or not is an argument for another forum, but it
suffices to note that the Nigerian Copyright Act, Cap C18, LFN,
2004 makes provision for the protection of folklore, including
folkdances, under Section 31 (5) of the Act.

The above protection has however done little to solve situations
of misappropriation of TCE’s or breaches of the three R’s that must
necessarily guide any situation of commercial exploitation of such
traditional creations of a people. This stems from many challenges
identified by experts to the protection of TCE’s by Copyright or IP
in general, the lack of adequate cover under the Nigerian law on
copyright, the lack of documentation of TCE’s, the absence of
proper precedent and general lack of awareness even on the part of
the communities of their rights, or their incapacity to address or
challenge any breaches of same even when they are aware.

It is for these reasons that the decision to take up the Bata
Dance and Salsa affinity case is heralded here as a step in the
right direction.

While there may be concerns expressed by learned legal
commentators, IP enthusiasts and experts who now or later may hold
the view that the Customary Court in Abuja lacked the jurisdiction
to adjudicate on the matter in the light of Section 251 of the
Constitution of the Federal Republic of Nigeria, 1999 (as amended),
the case remains a win for TCE’s and IPL development in Nigeria. It
must be understood, by way of allaying the fears of this hallowed
body of experts that this was not an IP or copyright infringement
case simpliciter, neither was it for the enforcement or
interpretation of any of the provisions of any of our IPLs in the
country.

This was more importantly, an opportunity to allow our cultural
and customary laws draw their own nexus to the existence of this
culture and how it has led to the creation of this whole other
creative enterprise and creation. To put it in context, if we
cannot protect it and challenge it, then at least we can recognize
it and create awareness by way of precedent on the need to protect
TCEs.

This commentator posits that there are some benefits and notable
points for Nigeria from this win:

1. The win acts as precedent (even if only permissible in certain
   aspects) for the nexus between the two dance cultures and this
   could be used in making a case for asserting any rights on a more
   national scale.
2. The win serves as a boost to the culture of the people and
   awareness of the need to protect their heritage.
3. The win creates a backdrop for the nation to consider the use
   of Customary Courts to serve as courts of first instance in the
   documentation and protection of TCE’s. The likelihood of the
   creation of a sui generis (unique) set of rules, though
   borrowing from IP principles but based on and responsive to the
   culture and practices of the people becomes more apparent
   here.
4. The win serves as a statement on the need again for judicial
   activism, as case law is again acknowledged as part and parcel of
   the judicial system in Nigeria.
5. The win serves as documentation of the culture and expert
   opinions therein become public records that could be used in other
   fora.
6. The general need to revisit IP laws and continue the focus on
   protection of TCEs is a major take home for government.

In all, this commentator applauds the effort of the legal teams
both for and against the arguments, applauds the Customary Court
Pyakasa, Abuja, for its initiative, urges the government to
continue its moves to find a lasting solution to the protection of
TCE’s in Nigeria and looks forward to following up with the case,
if it goes on appeal or if further steps are taken to push the
narrative hopefully in the near future.

Written By Omotayo Awomolo-Enujiugha, MCIArb, FICMC,
cathawomolo@gmail.com