The Bata vs. Salsa Case: A Win for Nigerian Culture?

A Commentary by Omotayo Awomolo-Enujiugha, MCIArb, FICMC

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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.