South Africa: Power Dynamics And IP Laws | Is The Balance Fairly Struck By Current IP Legislation?

Last Updated: 11 April 2019
Article by Adams & Adams

Part one of this series by Myriam Christmann was titled The Thorny Issue of Cultural Appropriation and served as an introduction to the topic in general and introduced the idea that the remedy to widespread cultural appropriation could be achieved through carefully-drafted intellectual property laws. This post is an overview of the developments that led to the phenomenon of cultural appropriation and the contrasts that exist between today's dominant culture and minority cultures (when we refer to culture, we are generally referring to an integrated system of symbols, ideas and values that a particular community may adopt or live by).

In my previous post I discussed that although the phenomenon of cultural appropriation is relatively simple, its roots and developments are much more controversial. One particular difficulty that arises in this context is the phenomenon's multidimensional nature, being pervasive into a vast number of creative domains, as cultural influences blend, merge, and synthesise. Since appropriation occurs through the dominance of a subordinate by a dominant culture, what becomes central to the concept of cultural appropriation are relationships of power. Calls to redress the phenomenon thus arise from attempts to address power imbalances consequent of colonisation.

Colonisation has occurred with the rise of modernity, namely the Discovery of the New World and the achievements of the Renaissance and Enlightenment movement with Europe as its centre. Together they built the underlying foundation and the unfolding of the Western civilisation ('the West'). The emergence of the West's achievements, for example, technology, freedom of the individual and equality are often praised to be the greatest in human history. Whilst these achievements are in no way meant to be condemned, the darker sides are often neglected; one of them being the effects of colonisation that are still felt today.

During colonialism the West manifested itself as the superior power, dominating native inhabitants not only by means of cultural assimilation (language, belief, clothes, etc.) but also by means of degradation and dehumanising, physical and psychological violence to the extent of genocide and complete extinction of native and indigenous communities. To put it mildly, the West imposed itself forcefully on every corner of the world. The inflicted wounds on generations of people are still to heal. And it is until today that the aftermath, or rather development of coloniality is extending into our present and future. Indeed, colonialism has not disappeared with the processes of decolonisation, but rather furthered the process where communities and people have been, and are, racialised and gendered socio-economically and politically according to an invented Eurocentric worldview.

And the law is no exception in this regard. The creation and foundation of intellectual property laws as we know them today have been shaped primarily by a Eurocentric worldview.

With the emergence of copyright, the foundation for the creative "Self" was laid down by the Enlightenment movement. While authors like Plato, Aristotle or Confucius regarded themselves as mere vessels and transmitters of ancient knowledge (or even receiving gifts from the muses), the period of Enlightenment and Romanticism liberated the notion of the Individual as the sole creator of an artistic work, thereby reshaping the traditional creative process. Copyright laws aim for the protection of the (individual) author's identity and his/her creative process and not for the creative process that resulted within the traditions of (indigenous) communities.

The same holds true for the law of trade marks, in the sense that "self-realisation" within the realm of the individualisation process is marked by the phenomenon of consumerism – I buy therefore I am. The role of trade marks is hence justified by granting monopolies within the market, in order to indicate the source of origin for the consumer. However, the longing for such self-realisation is most often satisfied by the consumption of material goods without proper consciousness and lacking awareness of the consequences it bears; one of them being cultural appropriation.

Both notions (legal and non-legal) originate from the Eurocentric point of view, yet, the issue increasingly becomes a global one. This is not in itself a problem, but since cultures portray permeable concepts that transcend, develop and grow from each other it would be negligent to assume that the only creative processes that can be protected are those that emanate from an individual self. The problem of that assumption is that the contrasting of two different cultures depends, obviously and necessarily, on the dichotomy of otherness.

Due to the fact that within the Eurocentric standard the world is perceived by means of identity, there is an implication of relational standards. The Self, the "I" opposed to the other. Identity is, however, only represented by an established social order or hierarchy, in which a certain group (or certain groups) is founded as being superior to others. This again results in notions of power relationships reflecting superiority and inferiority embedded in particular identities.

It is for this reason important to understand the value of cultures that are opposed to the Eurocentric view, and what culture actually means to indigenous communities and the world as a whole. The next post will, therefore, be dedicated to elaborate in more detail on indigenous culture, indigenous identity as a human right and the role of intellectual property laws in that regard.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions