This Rastafarian stands next to a flag bearing the image of late Emperor Haile Selassie at the funeral for the late Dr Vernon Carrington, aka Prophet Gad, in 2005. - Ricardo Makyn/Staff Photographer

According to the World Intellectual Property Organisation, "Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, and images used in commerce." In essence, IP rights "are like any other property rights - they allow the creator, or owner, of a patent, trademark, or copy right to benefit from his own work or investment. These rights are outlined in Article 27 of the Universal Declaration of Human Rights, which sets forth the right to benefit from the protection of moral and material interests resulting from authorship of any scientific, literary, or artistic production".

While there are legal redresses for people whose creations are exploited and pirated, IP rights laws in many countries are quite lax or non-existent. Also, some victims might not be aware of their rights and that they are being exploited. Some are too poor to seek legal representation and to take legal action. Indigenous groups the world over, with their rich cultural heritage, are oftentimes the ones exploited or living in ignorance. As such pirates have been making a killing from the reproduction of their artistic, cultural and creative outputs.

indigenous groups

Here, in Jamaica, there are indigenous groups, notably the Revivalists, Maroons and Rastafarians, who have a rich culture heritage of song, dance, dress, drumming, language, art and craft, etc. They have their own symbols and emblems that are arbitrarily used for commercial purposes. Some members of these groups are cognisant of the uses of these elements for monetary gains, but are not aware of their rights to ownership.

The Rastafarian community in Jamaica is one group that is aware of the need to protect its heritage from commercial exploitation, and is very concerned about the ownership and protection of its intellectual property rights, especially as they relate to The Pinnacle, a Rastafarian settlement in St Catherine.

Located near Sligoville, The Pinnacle is regarded as the birthplace of Rastafarianism, as it was where Leonard P. Howell set up the first Rastafarian village in the 1930s. There was much antagonism towards Howell and the Rasta settlers from the armed forces and there were many raids on the property. Howell was eventually removed by the authorities in the 1950s. He died in 1981.

Millennium Council

Since 2007, the Ethio-Africa Diaspora Union Millennium Council (Millennium Council), which is an umbrella organisation representing the Rastafarian community, has been advocating the legal ownership and possession of The Pinnacle. It is a collective organisation "which is interested in and committed to the preservation of Pinnacle as a Rastafari village/heritage site, for maintaining the cultural integrity as well as advancing the economic sustainability of the Rastafarian community".

Some of the objectives of the Millennium Council are "to secure, protect and manage the intellectual property of the Rastafari community worldwide, for the benefit of the Rastafari community worldwide; and to take all such actions as are necessary and appropriate to prevent the further theft and abuse of the symbols, emblems, music, cultural marks, tangible and intangible heritage of the Rastafari community worldwide".

However, in a letter, dated April 20, the Jamaica National Heritage Trust (JNHT) has informed Ras Howie Wright, acting chairman of the Millennium Council, of its decision to declare The Pinnacle a national monument. The Millennium Council was given 28 days within which to object to the JNHT's intention. The Millennium Council, outlining several reasons and concerns, subsequently forwarded a letter of objection to the JNHT.

One of the bases of the Millennium Council's objection is its concern about the protection and ownership of the Rastafarian community's indigenous intellectual property rights should the JNHT have its way. In the letter to the JNHT, Ras Howie Wright says, inter alia, "Further, the history, culture, heritage and intellectual property of the Rastafari community will inevitably be on display in any such future development of Pinnacle. We are, therefore, concerned that the rights and interests of the Rastafari community in the Pinnacle site may be overlooked or compromised ... .

history

"We are, therefore, also concerned as to the manner in which this history surrounding Pinnacle, the Rastafari community, and the Government of Jamaica is intended to be portrayed by the Government through its declaration and future plans for Pinnacle; that is, whether the Government will seek to portray Rastafari and Rastafari history and heritage in a negative, demeaning, inaccurate or imbalanced manner, or otherwise exploit Rastafari heritage and culture.

"Our concern, therefore, is that in deciding to declare Pinnacle a national monument, the interests of the Government have been and will be prioritised over the interests and rights of the Rastafari community ... On behalf of the Rastafari community, we would like the opportunity to be heard, in keeping with our right to be consulted, in relation to the future of Pinnacle."

In a response to the objection raised by the Millennium Council, The JNHT, through its legal officer, Lisa Grant, does not specifically address the Rastafarian community's intellectual property rights concerns. Grant, however, says, among other things, "The declaration offers legal recognition and protection to the site thereby prohibiting any development which would prejudice the historical integrity of the site. As it stands, the site can be put to any use the present owner desires, and this shall be the case until the site is either declared or acquired." The Millennium Council is concerned about whether "protection" means control.

This could be a legal wrangling, for according to Marcus Goffe, a member of the Rastafarian community and legal adviser to the Millennium Council, "IP laws in Jamaica do not specifically protect indigenous IP rights. (Yet), indigenous IP rights (IP rights of indigenous and tribal communities) are found and well established in international law.

"However, Jamaica's Trademark Act does allow the trademark registrar to disallow registration of trademarks that falsely suggest a connection with persons, institutions and beliefs. This allows for some protection, albeit limited, to the Rastafari community. However, to be effective, it needs some decision to be made as to whether that suggested connection with the community is false or not."

In a recent discussion with The Sunday Gleaner, Goffe said, "We say that any sort of intention to develop this site around a Rastafarian theme definitely would have to consider the intellectual property rights of Rastafarians as to how their community is represented and portrayed, and how money is made off them."

protect heritage

Goffe, a 2007 Chevening scholar, has a Master of Laws degree in intellectual property law from Queen Mary, University of London. At present, he's pursuing PhD studies in intellectual property law. He worked at The Gleaner from 2004-2007 specialising in libel (media law) and intellectual property law. His current research is among the indigenous groups in Jamaica.

Despite the legal hitches, the Millennium Council stands resolute in its efforts to protect the heritage of the Rastafarian community. The JNHT has written to the prime minister about meeting with the Millennium Council, and Public Defender Earl Witter was contacted by the Millennium Council. "We need the support of the international community, so that we can send a strong message to the government and we are still appealing - to see if we can solve it diplomatically. We are capable and ready," Ras Howie Wright declared.

paul.williams@gleanerjm.com