On repatriation: Questions of copyright ownership and management of repatriated cultural heritage materials

In July 2022, the Governments of Nigeria and Germany executed a Joint Declaration regarding the repatriation to Nigeria of ancient Benin bronzes looted during the colonial era. This Declaration constituted part of the efforts by the Nigerian Government to engage foreign governments for the repatriation of various cultural heritage materials to Nigeria. However, in view of the fact that Nigeria is an amalgamation of diverse ethnicities and culture and indigenous peoples, the location, control and management of repatriated cultural heritage materials within Nigeria is one significant bone of contention. In an article published in the Journal of Intellectual Property Law and Practice in October, Desmond Oriakhogba focuses on the failure of the Nigerian Government, provincial government and relevant cultural committees to consider issues around copyright ownership and management relating to these cultural heritage materials – ancient Benin bronzes, especially in view of the large-scale digitization projects that usually precedes repatriation of material cultural heritage to their original sources. To address this issue, he classifies the Benin bronzes as the “traditional cultural expression of the Benin indigenous people, which is protected as expressions of folklore in Nigeria” and directs attention to Nigeria’s Copyright Act, which vests the Nigerian Copyright Commission (NCC) with the right to exercise control, exploit and enforce claims over expressions of folklore in Nigeria.

Oriakhogba’s work is a timely reflection on approaches to navigate the complex terrain of using copyright laws to address issues of ownership, control and management inherent in or arising from repatriated (and/or "should-be-repatriated") cultural heritage materials. His work alludes to important questions about the propriety of embodying ownership and control of cultural heritage materials in a federal government agency (i.e., the NCC) when such materials have historic, cultural, spiritual, social and religious value. Oriakhogba also weighs in on the perennial issue of the classification of cultural heritage materials (are they expressions of folklore? Traditional cultural expressions? Artistic works?) and the implications of any preferred classification. 

Source: britishmuseum.org

The article begins with a reflection of the copyright and related issues arising from the repatriation of the looted Benin bronzes from both national and international perspectives. Oriakhogba encourages the national (Nigeria’s) consideration of South Africa’s approach of involving indigenous communities in the ownership and control of cultural heritage emanating/originating from them. See South Africa's Intellectual Property Laws Amendment Act. From an international perspective, he reflects on the problem of ensuring benefit for indigenous communities when from an IP perspective, the ancient Benin bronzes may not qualify for IP protection in the repatriating countries. International human rights treaties placing ownership of cultural properties on the indigenous communities from where they originate may be a stronger platform to operate from.

Oriakhogba also raises the issue of digitisation that seems to always precede repatriation, the motives behind such digitisation projects, who it benefits and who should lead such projects. Here, digitisation of cultural heritage materials raises its own brand of challenges quite separate from the physical cultural heritage themselves. On this, Oriakhogba shines light on the approaches taken by repatriating governments and entities to post-digitisation ownership and control – University of Aberdeen assigning copyright to the Nigerian government and obtaining a non-exclusive licence, Germany’s collaboration with the Benin Dialogue Group made up of the representatives of the Benin Royal Palace, the Edo State government, the Nigerian Federal Government and European museums housing the ancient Benin bronzes; and the French Government’s proposed open access release of digitised cultural heritage materials. Former GuestKat, Mathilde Pavis and Katfriend, Andrea Wallace have raised issues of control and agency of such digitisation projects in relation to the French Government’s repatriation talks.

Oriakogba provides an overview of the schism between the “governments of Edo State (sub-national), the Nigerian Federation and the Benin Royal Palace led by the Oba of Benin (the Oba Palace is located at the centre of Benin City, Edo State [Province], Nigeria)” and identifies the key points of the controversy and the legal regimes that speak to those points. “Cooperation” and “collaboration” between the government and the relevant indigenous communities on the possession and management of the ancient Benin bronzes are steps that Oriakhogba believes will offer a way forward ahead. [Sorry, "The Crown"]. 

Oriakhogba does believe and argues that the Federal Government of Nigeria is the appropriate entity to exercise control, “including possession and management over the repatriated Benin bronzes as cultural property” in view of the international dimension of the repatriation. Think United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property 1970 (UNESCO Convention); International Institute for the Unification of Private Law (UNIDROIT) Convention on Stolen or Illegally Exported Cultural Objects 1995 (UNIDROIT Convention), the African Union's Charter for African Cultural Renaissance 2006; etc. By extension, the Federal Government should lead the digitisation projects and enjoy the benefits therefrom through the NCC and not the National Council for Museums and Monuments (NCMM) as is currently the case with the Benin bronzes.

This Kat thinks this standpoint – the appropriateness (or otherwise) of the national government’s control of repatriated cultural heritage – is one that requires deeper reflection in view of the proposal at the international level to provide specific copyright limitations and exceptions for libraries, archives, museums and educational institutions. More on this reflection in a follow-on post.

That said, Oriakhogba’s article is one which offers copyright (and IP) enthusiasts an important lens with which to view cultural heritage repatriation efforts as they unfold for Africa and Africans.