Citation:Boatema Boateng, The Hand of the Ancestors: Time,Cultural Production, and Intellectual Property Law, 47Law & Soc'y Rev. 943 (2013)

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943

The Hand of the Ancestors: Time, CulturalProduction, and Intellectual Property Law

Boatema Boateng

In successfully lobbying for the expansion of the copyright protection term,culture industries in the United States have used one of the temporal dimen-sions of intellectual property law to strengthen their control over the circula-tion of cultural goods. There is another less obvious way that time factors intothe regulation of cultural products, and this has to do with the modes oftemporality within which those products are made and their circulation regu-lated. In Ghana, where certain cultural products are protected as "folklore"under copyright law, cultural goods from one kind of temporality enter aregulatory framework that belongs to another. In this article, I examine thesetwo ways of organizing time and argue that differences in ways of conceptu-alizing time also factor into the exercise of power over cultural products.I further argue that the Ghanaian case provides resources for radicallyrethinking intellectual property law.

In 1985, Ghana revised its copyright law and expanded its scopeto include "expressions of folklore," defining the latter very broadlyto include not only oral culture, but also elements of materialculture like adinkra and kente cloth designs. This copyright pro-tection of folklore was retained when the law was again revised in2005. The term "folklore" was also retained although by then, itwas giving way in international discourse to the terms "traditionalknowledge" (for forms of indigenous and local knowledge that havemedicinal and agricultural applications) and "traditional culturalexpressions" (for forms that are primarily aesthetic) in interna-tional discourse. Although adinkra and kente designs are moreaccurately described as traditional cultural expressions in thisscheme, in this article I follow the practice of using traditionalknowledge as shorthand for both of these newer terms, and use theterm folklore when citing the Ghanaian law. I use these terms whilerecognizing that they are problematic in reifying the modernity/tradition divide that I question in this article.

The author is grateful to Brian Goldfarb, Kwaku Korang, and three anonymousreviewers for their comments on previous drafts of this article.

Please direct all correspondence to Boatema Boateng, University of California, SanDiego, CA; e-mail: bboateng@ucsd.edu.

Law & Society Review, Volume 47, Number 4 (2013)© 2013 Law and Society Association. All rights reserved.

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Ghana's copyright protection of adinkra and kente designs andother forms of traditional knowledge is unusual in including cul-tural forms that intellectual property law typically excludes. Theconventional legal view is that those forms of cultural productionbelong in the public domain. As stated in one study, "Traditionalknowledge and folklore have some difficulty enjoying intellectualproperty rights rooted in Western ideas of authorship because itis generally not new or original, but rather ancient material andbased on a body of existing collection rather than individual tradi-tions" (Dusollier 2011: 11). These views persist even though severalscholars have contested them and challenged their use to denyprotection to traditional knowledge while permitting its appropria-tion by groups and individuals from outside the communities thatproduce them (Chander & Sunder; Collins 1993, 2003; Coombe1998; Feld, 2000; Jaszi & Woodmansee, 2003; McLeod 2001, 2007;Posey & Dutfield, 1996; Seeger 2005; Ziff& Rao, 1997).

There is a significant difference between the norms guiding thecreation of some of the works protected as folklore under Ghana'scopyright law, and those guiding the creation of works typicallyprotected by such law. However, this is not one of the differencescited in the quote mentioned earlier, because traditional knowledgeproduction does in fact involve both originality and identifiableindividual creators. A more compelling difference occurs in the waytime is managed in the creation and regulation of cultural work.Adinkra and kente makers identify both living and deceased indi-vidual creators of original designs, but often choose to emphasizethe group as the ultimate author when it comes to the question ofownership rights. Unlike intellectual property law that emphasizesthe demarcation between each creator's work, cloth producersunderscore the connection between them not only in the present,but over time.

In this, adinkra and kente producers are not unlike culturalworkers like book authors, say, who also recognize previous cre-ations through conventions like citation and acknowledgement.However, although these conventions reveal the limits of claims oforiginality in the works typically protected by intellectual propertylaw, they also make such works more amenable to protection. Thevarying emphases on demarcation and connection in the practicesof cultural workers and in the law are differences in the way thattime enters into cultural production. In intellectual property law,the temporal framework of cultural production is not indefinite, asin adinkra and kente production, but clearly demarcated andbroken up. Instead of linking the cultural production of past andpresent creators, intellectual property law establishes clear tempo-ral boundaries around them. Time, in this case, is bound up withthe lives of specific authors.

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In this article I examine the implications of these differing waysof conceptualizing time in relation to cultural work and its intellec-tual property protection. While I have previously explored thesubject (Boateng 2011), this article represents a deeper and morecritical examination of temporality and intellectual property lawthat: engages with studies of temporality both generally and withspecific reference to Africa; considers cultural debt and its manage-ment across different creative spheres; and discusses alternativetemporal arrangements within intellectual property law like moralrights and the paying public domain. I argue that intellectual prop-erty law's exclusion of cultural products like adinkra and kentefrom protection is not so much a function of their inherent differ-ences from book and music recordings as it is a function of thediffering ways that time is managed in their production.

While there have been some studies of time in relation tointellectual property law, such scholarship has focused more on theempirical or "objective" aspects of time and less on the "subjective"dimensions that some scholars refer to as "temporality." Theemphasis is often on the expanding duration of protection and lesson the assumptions about time embedded in the law. Intellectualproperty rights do not only begin at a specific time, but are alsogranted for a specified period, and in recent years the expansion ofthat period has become a matter of concern to scholars and activists,particularly with regard to copyright. In the history of the UnitedStates, the duration of copyright protection has gone from 14 yearsto the author's life plus 70 years.

As several commentators have noted, such extended copyrightprotection delays the entry of culture into the public domain whereit may be freely accessed and used by all (Boyle 2008; Lessig2001; McLeod 2001, 2007). Because it enables copyright holdersto extend their monopoly over their cultural products, time thusbecomes a means by which intellectual property law is used toexercise power over the circulation of cultural goods. In the UnitedStates, the questions over this use of time are often framed ashaving to do with freedom of information and access to culturalgoods in a media-saturated era in which popular culture is not onlyimportant for information and entertainment, but also as a sourceof the signs and symbols that shape the meaning of everyday life. Ina digital age where technological barriers to cultural productionhave been lowered, it is argued that it is also essential for ordinarypeople to have access to the elements of popular culture that largemedia companies seek to control, because these constitute aresource for further cultural production (Boyle 2008; Lessig 2001;McLeod 2007). The expanded duration of copyright protectionthus becomes a hegemonic force limiting the right to produceculture.

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Such discussions of time in relation to intellectual property laware important, but tend to be more common than discussions oftemporality. One exception is Sarah Harding's (2009) discussion oftime and property in relation to broader social questions about theway in which time is conceptualized (e.g., as linear or cyclical).There is even less scholarship on intellectual property law thatengages with the encounter between different temporalities underconditions of globalization, and the implications of that encounter.While this has been the focus of a considerable body of postcolonialscholarship in areas like philosophy (Eze 2008), literary criticism(Korang 2004), gender studies (McClintock 1993), and history(Chakrabarty 2000), it does not appear to feature significantly inlegal scholarship.

The question of temporality underlying different kinds of cul-tural production has received little attention in the debates overtraditional knowledge and intellectual property law, and there ismuch scope for such examination in efforts to gain legal protectionfor those forms of cultural production. This is because temporality,in this context, is often reduced to the binary of tradition andmodernity, with modernity functioning as the default category andtradition as its exception. Further, tradition is perceived as fixed inthe past, and modernity as dynamic and constantly progressingtowards the future. Framed in these terms, traditional knowledgeand "modern" intellectual property law can only be incompatible,and there is little questioning of the underlying assumptions thatproduce this incompatibility. Critically examining the issue throughthe lens of temporality can help to open up both tradition andmodernity in ways that go beyond simple assumptions of differenceby revealing the sources and extent of both their differences andsimilarities.

Such an examination is important because intellectual prop-erty law is the dominant legal means for regulating the circulationof culture within nation-states and internationally. The law oper-ates to make creative work quantifiable, facilitating both propri-etary claims over, and the commercial exchange of, culturalproduction in an expanding capitalist system in which culturalgoods have gained unprecedented economic importance. Thetemporal mode within which this occurs is not simply one out ofa range of equivalent others for organizing cultural productionand its circulation, but the dominant mode, based on a particularrather than universal mode of organizing time. This is an impor-tant, but often overlooked way that time factors into the operationof the law as a means of exercising power over cultural produc-tion. Yet, in discussions of intellectual property law, and unlikethe duration of protection, that conceptualization is seldomquestioned.

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Against this background, I pose the encounter between tradi-tional knowledge and intellectual property law as one between waysof conceptualizing time. Viewed in this way, the encounter has todo with much more than whether or not certain kinds of culturalproduction and legal frameworks are traditional or modern.Instead, it offers a valuable site for interrogating the naturalizedstatus of "modern" laws and "traditional" cultural production byrevealing the contingency of both. The implications of that contin-gency are most clear when viewed in relation to questions ofmodernity and its global expansion-especially as they have beenraised in postcolonial studies. In this area, scholars from FrantzFanon (1963), through Edward Said (1979) to Dipesh Chakrabarty(2000), have located the social and economic differences betweenworld regions in material and discursive historical processes. In theanalysis of such scholars, the relative status and developmentlevel of different world regions is partly the outcome of a processof dominance whose origins can be traced to the expansion ofWestern European influence around the world and did not stop atterritorial control. Most importantly, for this discussion, this schol-arship shows that in organizing the world into regions that are nowconsidered traditional/developing and modern/developed, suchprojects of dominance have also granted privileged status to certainmodes of temporality and knowledge production.

Locating the examination of the relationship between the tem-poralities of traditional knowledge and intellectual property law inthis context makes it possible to link the question of time, culturalproduction, and intellectual property law to wider debates aboutthe importance of cultural work in relation to ongoing struggles ofpolitical and economic liberation and sovereignty. While postcolo-nial scholars like Kwaku Korang (2004) and Emmanuel Eze (2008)have identified writers as the ultimate cultural workers in thesestruggles, I argue that the work and words of cultural producerslike adinkra and kente makers are just as important in seeking tounderstand, interrogate, and rethink the place of regions likeAfrica in the world under current conditions of globalization. Inpointing to alternative temporalities, such cultural producers alsooffer important conceptual resources for rethinking intellectualproperty law.

Against this background, I consider the following questions:What are some of the ways that time is organized in relation tocultural production? What kinds of claims are supported orenabled by different ways of organizing time? How does a focuson time change the debate on the encounter between traditionalknowledge and intellectual property law? How does this focus pointus to new ways of thinking of intellectual property law and differentkinds of cultural production? The answers to these questions can

948 The Hand of the Ancestors

help to deepen our understanding of an important source of varia-tion in cultural production, and therefore inform legal measuresfor regulating the circulation of cultural goods. Those answers arealso important for expanding the discussion on temporality instudies of the law, postcoloniality, and the philosophy of time.Outside legal studies, these debates have seldom addressed ques-tions of cultural production in relation to intellectual propertylaw and even in legal scholarship, as previously noted, the focushas tended to be on objective rather than subjective time. There-fore while I draw upon scholarship in these areas, I also seek toexpand it.

My main empirical sources are interviews I conducted in Ghanain 1999 and 2000 with government officials responsible for reform-ing and administering intellectual property law, and folkloreexperts who served as advisers in the reform process. In the sameperiod I also obtained life history narrations from adinkra andkente producers as well as producers of other kinds of textiles whodrew upon adinkra and kente designs in their work. AlthoughGhana's copyright laws had protected the work of adinkra andkente makers since 1985, these cultural producers were virtuallyinvisible in the debates around copyright law in the interveningperiod. I therefore sought to find out from them the norms ofauthorship and ownership around the cultural forms they pro-duced. I considered it important to obtain their views in a way thatgave them scope for introducing their own concerns and prioritiesinto the study and found the life histories method well suited to thisgoal. In 2004 I conducted additional interviews with governmentofficials, with artists who draw on adinkra symbols in their work,and with musicians, who are the most visible and active users ofcopyright law in Ghana. In addition to these primary sources, thisarticle is also based upon legal statutes and other secondary data.

In the discussion that follows I first provide background infor-mation on adinkra and kente for readers who are not familiar withthese textiles, and briefly describe the history of their protection inGhana's intellectual property laws. Next, I discuss the concepts oftime and temporality that form the basis of this article, and high-light their political importance as revealed by postcolonial scholar-ship. I then examine the nature of temporality as it occurs inadinkra and kente makers' words and practices. I follow this withan examination of what the organization of time in these areas ofcultural production implies for notions of individuality and creativ-ity as well as cultural debt and originality. I note the similaritiesand differences between the ways that cultural debt is managed indifferent spheres of cultural production, and their relation to intel-lectual property law. I also compare Ghana's copyright protectionof folklore to the paying public domain provisions in some national

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laws. These provisions extend copyright protection in line withspecific national interests, and in ways contrary to the standardtemporal arrangements of intellectual property law. I consider thisvariation as a possible option for the protection of cultural formslike adinkra and kente. I conclude by considering the resourcesthat the adinkra and kente examples might offer for rethinkingintellectual property law and its temporal framework.

Adinkra and Kente in Ghana's Intellectual Property Laws

Adinkra and kente cloth are produced mainly by the Asantepeople who form part of the Akan ethnic group of Ghana and itsneighbor, the Ivory Coast. In the eighteenth and nineteenth cen-turies, the Asante dominated much of the territory that is nowGhana (Wilks 1975). They nurtured adinkra, kente and other arts,creating a strong association between these cultural products andAsante power. That power remains in diminished form within thespace of the modern nation-state of Ghana, because the countryrecognizes indigenous ethno-political groupings, and the constitu-tion establishes a National House of Chiefs composed of the rulersof those groups. As a result of this recognition, the Asante ruler(or Asantehene) continues to be an important figure both in thenational political sphere, and in the production of adinkra andkente. For example, cloth makers identified the Asantehene andtheir communities, rather than the Ghanaian state, as the rightfulowners of their designs. In addition to their association with Asante,adinkra and kente have become important elements of Ghana'snational culture.

Adinkra is made by stenciling symbols onto plain cotton clothusing a black dye made from tree bark. Its primary importance liesin its use for mourning, and it is also significant for the symbols thatare used in its production. Each symbol has a specific meaning thatreflects Asante values and history as well as the more personalvalues and histories of individual cloth makers and stencil carvers.Although it is produced by a specific ethnic group, adinkra has longbeen a hallmark of Ghanaian national culture along with kentecloth and other indigenous cultural forms. Kente, a form of strip-weaving, also features distinctive designs and colors and is associ-ated with wealth and celebration. Unlike adinkra, it is produced bytwo ethnic groups in Ghana, the Asante and the Ewe. While stripweaving is widely practiced beyond Ghana, both Asante and Eweweavers have developed esthetic features that make their clothdistinctive from each other and from forms in other locations (Ross1998). Another important feature of adinkra and kente productionis that they are predominantly male realms. Women produce other

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kinds of less-prestigious cloth as well as the dyes used in adinkraproduction, and are also active in the sale of cloth (Boateng 2011).

Adinkra and kente designs first entered into Ghanaian intellec-tual property law in 1973 with the passage of the Textile Designs(Registration) Decree (Government of Ghana 1973), an industrialproperty law that excluded the designs of indigenous fabrics fromownership claims by individuals and textile companies registeringtheir designs under the law. When Ghana revised its copyright lawsin 1985, it introduced folklore as a protected class of works andincluded adinkra and kente designs among those works. This copy-right protection was based on the United Nations Educational,Scientific and Cultural Organization/World Intellectual PropertyOrganization Model Provisions for National Laws on Protection ofExpressions of Folklore Against Illicit Exploitation and OtherPrejudicial Actions (which were drawn up in 1982 and published in1985). As previously noted, the protection of folklore was retainedwhen Ghana revised its copyright laws in 2005 as part of a massivelaw reform exercise to bring copyright and other Ghanaian intel-lectual property laws into compliance with the Agreement on TradeRelated Aspects of Intellectual Property (TRIPS).

As part of this legal reform, the Textile Designs Decree wasrepealed and replaced in 2003 with a new Industrial Designs Act(Government of Ghana 2003b) that dropped the old decree's exclu-sion of adinkra and kente designs from ownership claims.' Ghanaalso took the opportunity to introduce a new Geographical Indica-tions Act (Government of Ghana 2003a), and included "kente"among protected indications. The intellectual property protectionof traditional knowledge in Ghana has therefore gone back andforth between copyright and industrial property laws-at timesstraddling both spheres, and signaling the difficulty in using suchlaws to protect traditional knowledge. Of these, the copyright law isthe most far-reaching and currently the longest lasting.

In the 1985 law, the rights to adinkra and kente designs andother folklore are vested in the State in perpetuity, the underlyingprinciple being that such folklore is national culture. The definitionof folklore also assumes the authors to be "ethnic communitiesof Ghana or ... unidentified Ghanaian authors" (Government ofGhana 1985: 25). Musicians in Ghana, who constitute the strongestgroup of activists around copyright, have objected strongly to thisnational ownership of what they consider to be an important cre-ative resource and have described it as a "royalty tax" (COCCA

The terms "Decree" and "Act" in the names of these laws are an indication of thedifferent governments that passed them. Laws passed under one military regime weretitled decrees while under another, they were referred to as laws (as in the case of the 1985copyright law). In the current civilian system of rule, laws are referred to as acts. Precedinglaws retain their titles and legitimacy unless they are repealed.

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2004). Musicians and Ghanaian folklore experts have also pointedout that far from being "unidentified" it is often possible to identifyboth living and deceased creators of folklore.

The 2005 version of the law responds somewhat to this secondset of objections by inserting in the definition of folklore and itscreators, the words "includes kente and adinkra designs, where theauthor of the designs are not known" (emphasis added) (Government ofGhana 2005: 31). This seems to limit the recognition of identifiablefolklore creators to those responsible for adinkra and kente designsand is silent regarding identifiable creators of the music and oraltraditions that musicians might draw from. It also limits state own-ership to those instances where the creators are not known and, inexcluding the designs of known creators from the category offolklore, tacitly permits individual ownership claims in such cases,in the same way that the law grants such rights to the authors andcomposers of books and music. In such cases, the term of protectionis the author's life plus 70 years.

The copyright laws of 1985 and 2005 signal a more active linkbetween intellectual property law and adinkra and kente designsthan was the case with the Textile Designs (Registration) Decree (orwith the Geographical Indications Act that only marginally refers tokente). Where the textile designs decree merely prohibited owner-ship claims over indigenous cloth designs, both copyright laws havespelled out the conditions for these designs' ownership and explic-itly identify the State as their default owner. In addition, the decreewas a sui generis law aimed at protecting a specific industry. Copy-right law, on the other hand is well-established as one of the oldestforms of intellectual property law. It was the first to be giveninternational scope with the 1886 Berne Convention that broughtdifferent nations into conformity with its basic precepts in anexpanding process that has continued into the TRIPS regime of1994. Ghana's protection of folklore within this well-establishedlegal form is therefore significant. However, an examination of thetemporal norms in the law and in cloth production reveals limits tothat protection.

Organizing Time

Philosophers of time generally distinguish between two dimen-sions and refer to these as "time" and "temporality." Time com-prises those features that are more or less self-evident and factual,for example, the observable cycles of night and day, seasons, andyears. In other words, "universal time, clock time or objective time"(Hoy 2009). Emmanuel Eze (2008: 28) makes a related distinctionbetween "history as (scientific) records of facts about the past,

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versus history as a source of wisdom about the meaning of time."Temporality thus has to do with the meanings given to the empirical"facts" of time and refers to "the manner by which past, present andfuture are coordinated" (Carvounas 2002: 2), or "time as it mani-fests itself in human existence" (Hoy 2009: xiii). Across these char-acterizations, the essential difference is one between dimensions oftime that are deemed to be factual, objective, and scientific, andthose that are viewed as subjective and have to do with qualities likemeaning and wisdom. While "objective" time may be universal, asnoted by Hoy, temporality, in being "subjective," is socially andculturally variable.

It is clear that both objectivity and subjectivity can be chal-lenged in relation to time. For example, while most societies mayagree that time passes in years, they do not agree on the number ofmonths in a year or the point at which a year begins. Further, thetwo dimensions of time interact with each other. Thus, whilemaking a distinction between "physical and social time," EspenHammer (2011: 17) rejects "an opposition between objective, physi-cal time and the subjective or illusory time of the everyday." Againstthis background, any discussion of the way that time is organized is,in effect, a discussion of temporality and, in this article, multipletemporalities. Temporality, then, is neither neutral nor universal,but represents the active organization and management of time fordifferent purposes in different contexts. Temporality is also the siteof different crises, a key one being the advent of modernity-thehistorical period inaugurated by the Western Enlightenment.

In one important discussion of different modes of time, Bene-dict Anderson notes that the modern nation emerged in WesternEurope when notions of time as sacred and circular, gave way tosecular and linear conceptions of time. He states that in medievalEurope, there was no sense of a radical separation between past andpresent. Rather, events occurred in a recurring cycle organizedthrough religion. Anderson argues that the nation emerged partlyas means of restoring the sense of certainty and belonging that wasundermined when linear conceptions of time replaced the reassur-ing cycles of sacred time (Anderson 1991). Intellectual propertyprotection also emerged during this period as a product of theEnlightenment and, more specifically, developments like the inven-tion of the printing press and the radical shift from the view ofcreativity as dispersed among people and across time, to creativityas the result of individual inspiration.

In making a distinction between two modes of temporality anddiscussing the political form that emerged partly as a result of thetransition from one mode to the other, Anderson leaves unresolvedtwo issues. The first is the extent of the distinction between the twomodes, and the extent of replacement of one mode of time with the

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other. Rather than a complete substitution, it can be argued thatone mode of time became dominant without entirely replacing theother, and although Anderson discusses simultaneity within each ofthe two temporal systems, he does not address their simultaneitywith each other. The second issue is the hegemonic operation oflinear time as it spread from Western Europe to the rest of theworld functioning, in Dipesh Chakrabarty's words, as .. . an impe-rious code that accompanied the civilizing process" (2000: 93).Although European imperial expansion is an important element inAnderson's discussion of the spread of the nation and nationalism,he reports this as a fact rather than a problem of history.

These issues are taken up by Chakrabarty and other postcolo-nial scholars who move us away from a simple view of one mode oftime being replaced by another, and insist on attention to thesimultaneous existence of multiple temporal modes and the politi-cal processes and structures that link these to each other. Followingfrom their insights European imperial expansion can be viewed asthe hegemonic and hierarchical "spatialization" of linear/seculartime (McClintock 1993). This mode of time was also at the heartof the idea of a universalized history ("the time of history") thatrelegated other modes ("the times of the gods") to its margins(Chakrabarty 2000). Along with the hierarchical nature of temporalspatialization, this set of arrangements settled the question of thesimultaneous existence of different modes of time by ranking onemode over all others (Chakrabarty 2000; Frow 1997; Korang 2004;McClintock 1993). The process of marginalization was also domes-ticated and gendered, with the result that women and colonizedpeoples came to occupy the space of culture and tradition, asopposed to the space of a rational modernity (McClintock 1993).

An additional challenge that engages with both the simultaneityof different temporal modes and the hegemony of linear time hascome from science studies. In his highly influential book, We HaveNever Been Modem, Bruno Latour (1993) critically examines theproblems raised for knowledge production by a modernity whosehegemony depends on limited and limiting conceptions of scienceand of time. In interrogating the temporality of modernity, Latourargues that the idea of a linear, constantly progressing modern timeonly works by denying that modernity in fact operates through thedenial of constant returns to the past. He notes that the time ofmodernity does not constantly move forward in a line as commonlyclaimed, but repeatedly spirals back in time. As I argue in the nextsection, this is very similar to the mode of temporality in adinkraand kente production.

A number of the postcolonial scholars mentioned above havedrawn attention to the role of cultural workers in responding tothe crisis wrought by the colonial encounter and its aftermath.

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Discussing possible responses to this crisis in the context of Africa,Kwaku Korang describes the task facing cultural critics partly asone of identifying an alternative Africa by "remov[ing] it fromontological and epistemological confinement in the ethnic past andbring[ing] it into the purview of a temporality that is worldly ... anAfrica that is competitive with respect to History" (Korang 2004: 49).Similarly, Emmanuel Eze speaks of the colonial encounter as thecause of a historical rupture-"a disabled tradition, a broken time"and suggests that African writing is a possible site of healing.

In making the distinction mentioned earlier between history asfact (and therefore as scientific) and history as meaning (and thus aswisdom), Eze states, "whereas fiction may be an unreliable guide tothe first form of history, it is a privileged place for the discoveryof the second idea: the African fiction allows one . .. to extend theproblem of truth in history from questions about recovered facts ofthe past to the issue of tradition as itself a form of historical expe-rience" (Eze 2008: 28). He dismisses the spatial and hierarchicaldistribution of tradition and modernity between periphery andcenter arguing, instead, that the question is one of tradition in bothlocations, and whether that tradition is broken or whole.

The questions Eze poses about tradition are important ones,but must be balanced with the compromised integrity of the Africantradition that must be restored in his analysis. Tradition in Africahas historically been open to manipulation in ways that have some-times been self-serving, for example, with regard to gender (Mama1997; Nzegwu 2006) and must therefore be open to interrogationas a site of recuperation. In addition, while intellectuals, and espe-cially writers, are central in both Korang and Eze's analysis as thecultural workers who must undertake the task of temporal restora-tion in Africa, this obscures the potential contributions of less-privileged cultural workers in Africa and beyond whose practicespoint to alternative temporalities. The same argument can be madefor the understanding of time that is embedded in the productionof adinkra and kente cloth. Given the lessons offered by the prac-tices of cultural producers like those who make adinkra and kentein Ghana, the work of temporal restoration cannot depend exclu-sively on intellectuals and writers, as suggested by Korang and Eze.

In looking at the work of adinkra and kente producers, I seekto pick up where Korang leaves off when he states, "I cannot offeran in depth look at the 'native' resources that are at hand formarginal [postcolonial] intellectuals and the specific forms in whichthese resources figure in their anticolonial resistances" (Korang2004: 40). Adinkra and kente might be construed as examples ofsuch "native resources," and as distinctive cultural goods they haveplayed important roles in Ghanaian anticolonial struggles and cul-tural nationalism. However, I go beyond a view of adinkra and

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kente and similar products as mere resources for anticolonial intel-lectual cultural production. Rather, they constitute a site of alter-native (or "competitive") temporalities in their own right, and thecultural workers who produce these fabrics point to those tempo-ralities in their words and practices. As such, those workers shouldbe seen as important partners in the ethical and cultural projectidentified by Korang, in which "The African ... looks towardhis/her normative reinvention as a worldly subject of equality (orsubject of equal ethical desert)" (Korang 2004: 42).

As an intellectual claiming that this "normative reinvention"occurs in the work of adinkra and kente producers, I am mindful ofthe pitfalls implied in Anthony Appiah's juxtaposition of ordinaryAfricans engaged in their daily productive/creative activities, withAfrican intellectuals who interpret those activities for Europeanand North American audiences (Appiah 1992). There are however anumber of possible alternatives to this view. These include AntonioGramsci's concept of "organic intellectuals" who align themselveswith ordinary people and use their privilege against the ideology ofthe ruling class (Hoare & Nowell Smith 1971). In another alterna-tive, some black feminists argue that black women's historical lack ofprivilege in the United States has given them an "outsider-within"status that provides them unique insights into the nature and limitsof domination by the ruling white class (Collins 2000).

Noting black women's exclusion on the basis of race from whitefeminist thought, on the basis of gender from black social andpolitical thought and on both grounds from mainstream scholar-ship in the United States, Collin states, "prevented from becomingfull insiders in any of these areas of inquiry, Black women remainedin outsider-within locations, individuals whose marginality pro-vided a distinctive angle of vision on these intellectual and politicalentities" (Collins 2000: 12). In sum, both the possession of privilegeand its lack can offer access to knowledge that might typically eludethe powerful.

In this specific case, the alternative to Appiah's dim view of therelationship between ordinary and intellectual Africans comesfrom the life histories method, and also from the power dynamics ofmy interactions with adinkra and kente producers. An importantgoal of the life histories method used in obtaining adinkra andkente producers' views is to minimize the inequality between"researcher" and "informant" (or "research subject"), and to viewthose who give narrations as partners in knowledge production. Inmy case, this was often an easy task because a number of factorsusually combined to give adinkra and kente producers greaterpower in the relationship. One of those factors was my gender (inthe context of male-dominated cloth production). Another factorwas the life histories method itself, which some cloth producers saw

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as misguided in its emphasis on their individual lives rather thanthe history underpinning their work. Interestingly, in expressingthis disapproval, they also emphasized the temporality that is thefocus of this discussion.

These power dynamics and the method used demonstrate thepossibility of productive engagement between Appiah's ordinarypeople and mediating intellectuals based, in this case, on attentive-ness to Ghanaian adinkra and kente makers' negotiation of thetemporal challenges of the postcolonial encounter. (That engage-ment is a feature of Appiah's own work when he acknowledges andnegotiates the implications of his location in multiple worlds ofethnicity, nationality, and class.) Such attentiveness may be easierfor those who bring less privilege from a male-dominated academyto an encounter with predominantly male Asante cloth producers,but Gramsci's framework suggests that it is not impossible for thoseburdened with such privilege. Against that background, I view myrole first as one of reporting and amplification; I seek to bring whatI learned from cloth producers into conversation with widerdebates on temporality and the law with full recognition that anydiscovery that follows from this is the result of both cloth producers'insights and mine.

Specifically, cultural workers like adinkra and kente producersare important partners in the work of temporal restoration in atleast two ways. First, they point to a mode of temporality that isdifferent from the hegemonic linear time of modernity. However,rather than exemplifying the static temporality ascribed to tradi-tion, their words and practices indicate a dynamic temporalitywhose true difference from modernity is in how it deals with thepast rather than simply being stuck in that past. The intellectualproperty protection of adinkra and kente producers' work movesthe difference from the level of theoretical abstraction to the prac-tical implications of different temporalities for cultural workers.Therefore a second contribution of adinkra and kente producers isto show how in emphasizing one temporal mode, intellectual prop-erty law privileges one set of cultural workers over another eventhough the differences between their creative practices may not beas wide as claimed. In this, they provide a basis for interrogatingthe temporal bases of the law both in its modified form in Ghana,and at the wider international level of regulatory norms likeTRIPS.

The Hand of the Ancestors

The issue of temporality emerged in adinkra and kente pro-ducers' life history narrations in a number of ways. As noted in the

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previous section, they raised it through their views on the lifehistory method. Temporality also emerged in cloth producers' fre-quent references to "elders" and "ancestors," and they appeared todo this for a number of reasons. In some cases, they were simplystating a fact about the practice of cloth production. For example,the regulations around the weaving of kente cloth for theAsantehene, "in the time of the elders ... they would say if youstepped across it [the cloth while it was being woven], such and suchwould happen to you." In other cases, they sought to highlightcloth and cloth-making as aspects of a distinctive heritage "weaving,it is my heritage, my ancestors' heritage." Thus, although the aim ofthe study was to find out about their views and practices on clothproduction and knowledge transmission, cloth makers were ofteninsistent on locating those practices within a specific history, andthey did this most often by reference to the ancestors and elders.

One of the functions of this emphasis on the heritage of adinkraand kente is simply to mark these fabrics as traditional, and toemphasize the distinctiveness of that tradition. In doing so cloth-makers participate in the broader nationalist project of establishinga distinguished cultural origin for Ghana while also emphasizingthe distinctiveness of Asante culture. As Anne McClintock (1993)has argued, this nationalist use of culture relegates responsibilityfor marking the cultural roots of the modern nation-state to womenand other groups who have little influence within the political spaceof the nation. It can therefore be argued that in emphasizingtheir role as custodians of important elements of Ghanaian culture,cloth-makers reinforce their marginality in that space. In so doing,however, they also point to their operation in a mode of temporalitythat is different from that of intellectual property law.

Apart from positioning adinkra and kente as distinctive culturalgoods, cloth makers' references to the ancestors also point to theconnection between the living and the dead in Akan society. Thedead do not belong only in the past, but continue to feature inthe present, and one of the ways they do this is by bearing witness tothe actions of the living especially on important occasions when theyare formally invoked with libations poured in their honor (Boateng2011: 40). This close relation between the dead and the living is notlimited to the Akan people of Ghana, but occurs in other parts ofAfrica. For example, Elisha Renne (1995) notes a similar relationshipbetween the living and the dead among the Bunu people in Nigeria.

The transfer of knowledge is one of those occasions judged tobe of such importance that the ancestors must be invoked when itoccurs. This does not only demand that they bear witness to thetransfer, but also calls the attention of the living to the ancestors'role in producing the knowledge being transferred. One adinkramaker explained the practice with these words:

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The ancestors say, after all, that when a person dies their tonguedoes not rot. Now, if the person's body has rotted, how will theirtongue not rot? It is the words that they spoke and left behind thatdo not pass away that we express by saying that when a persondies their tongue does not rot.'

The invocation of ancestors thus refuses an absolute demarca-tion between the cultural production of the living and the deadand while such demarcation certainly occurs, it is frequentlyde-emphasized by cloth producers in order to draw attention to thework of the ancestors. For example, one kente weaver referred tonew designs that he created and yet at another point in his narra-tion stated,

The designs, now, all of those we are making, when you look intoit, our ancestors established them. Ours, it is just little bits that weadd onto it. Our ancestors did the work for a very long timeindeed. So if anyone says that he is designing a cloth and when hefinishes it he says, "as for this I sat down and made the cloth to theend without the hand of our ancestors being in it he is lying, it isnot true.

While these words seem to bear out claims of traditional knowledgeas unoriginal, it also indexes the importance of the ancestors' workas an important basis for new creations. Another adinkra makeralso spoke of the creation of new designs with some ambivalence.He viewed them as the outcome of a natural process of individualinspiration in terms very similar to those of the "Romantic author"at the heart of copyright law (Haynes 2005; Rose 1993). However,he seemed to see such new designs almost as a dilution of the elders'work when he stated:

[With] God too, it is a vision. If He gives it to you and you carveyour design and use it, we cannot ask why have you carved a newone and mixed it in with the others. That is why some have beenadded to it. But the ones that are here that we know are from ourelders, as soon as we see them we recognize [them]. With some ofthem it is even over 100 and something years since they werecarved, meaning that it was the elders' fathers who gave it to themand left.

This cloth producer was from Asokwa, a community whose status asthe first site of adinkra production in Asante has been considerably

2 This and all other cloth makers' quotes are from life history narrations conducted bythe author in the adinkra and kente producing communities of Asokwa, Ntonso, Bonwire,and Adanwomase in Ghana in 1999 and 2000.

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undermined by the emergence of another center, Ntonso. Asokwadoes not appear on official maps produced by the nationalTourism Board, indicating various tourist attractions. Rather it isNtonso that is promoted on such maps as a center of adinkraproduction. The Asokwa cloth maker's insistence on the superi-ority of his elders' designs was therefore also an insistence on hiscommunity's pre-eminence and continuing relevance. It was alsoan example of the importance of the community in ownershipclaims about cloth. However, even at the newer center of Ntonso(location of the cloth producer who quoted the proverb, "thetongue does not rot"), the emphasis on the elders was equallystrong.

Words like those quoted from these three cloth producerspoint to the continuity of the creative processes of adinkra andkente production across time. Together with the broader socialcontext of ancestor veneration, they denote a conception of timewithin which the distinction between past and present is a fluidone. Death, which often functions as one of the strongest demar-cations between past and present, does not operate so definitivelyin this scheme, and not only do the past actions of the dead con-tinue in significance, but their present action is also important.While the physical actions of the dead may remain in the past,therefore, ritualized acts of remembrance ensure their continuedsymbolic participation in the present by demanding and expect-ing that participation.

In the case of adinkra and kente production, this emphasis onthe continued activity of the dead in the present can be read as anunderstanding of creativity as occurring across time. Cloth makerscontinuously introduce new designs into the repertoire of designsthat make up adinkra or kente and in some cases claim these astheir own individual work. For example, cloth producers place a lotof importance on the right of an individual to name his designs,and there has been a move in one cloth-producing communitytoward formal recognition of that right (Ross 1998). This is anindication of the importance of individual authorship for clothproducers. However their designs have little meaning withoutthe creative work of the ancestors. "The hand of [the] ancestors"therefore continue to operate in the creative work of living clothproducers.

Rather than viewing this continuity simply as a manifestation ofa static tradition in the circular/ritual temporality identified byBenedict Anderson as the precursor to the linear/secular time ofmodernity, it must be read as an alternative mode of temporality.This is evident when one takes into account cloth producers'constant claims of ongoing creativity and change in adinkra andkente production alongside their narratives of the ancestors. Those

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changes have occurred both in the form and content of the fabrics,and some of the most important have been responses to historicalshifts such as the introduction of mass-produced fabrics and yarnsfirst from European, then Ghanaian and most recently Chinesefactories. These have widened the range of both colors and yarnsused in cloth production.

The symbolism of both fabrics has also expanded in response tomoments such as the defeat of the Asante by the British in 1901 andthe exile of the Asante ruler and his court to the Seychelles islands(with the kente design, ohene aforo hyen or "the king has boarded aship"), and the marriage of Ghana's nationalist leader, KwameNkrumah, to his Egyptian wife, "Madam Fathia" (Fathia fataNkrumah, "Fathia is fit for Nkrumah"). With the pervasiveness ofChristianity, adinkra makers have included the cross among theirdesigns, and they have also appropriated the Mercedes Benz logoas a virtual and more accessible form of the wealth represented bythe prestigious automobile (Arthur 1999/2001).

Given this constant change, individual innovation, and ances-tral narratives, the temporality of adinkra and kente productioncan be seen as one that differs from the "modern" temporalitywithin which intellectual property law is embedded. This is notbecause it is focused on an unchanging past, but rather because it isnot as insistent on a strong break between past and present. There-fore, instead of Anderson's contrast between circular and lineartemporalities, temporality here can be viewed as conceiving of timein a spiraling motion similar to that claimed by Latour (1993) formodernity.

However, while circling back to the past, it also circles out andforward; instead of repeatedly separating time into past andpresent, the past overlaps with the present. Cultural productionin this framework remains current by responding to changes overtime while retaining its legitimacy by invoking the past. If, asLatour suggests, claims of modernity's continual, linear, move-ment away from the past in fact erase or at least obscure itsrepeated returns to that past, what an examination of temporalityin adinkra and kente production reveals is that the differencebetween the two temporal modes lies in that erasure rather thanin any inherent differences. It is not a difference in kind, but inwhat is emphasized and what is obscured. Even more importantly,in revealing the limits of these temporal differences, the similari-ties also call into question the intellectual property arrangementsthat give form to the time of modernity, and in doing so denyprotection to works like adinkra and kente. Those questionsare even stronger when one takes into account the practices ofthose whose creative work is protected under intellectual prop-erty law.

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Originality, Cultural Debt, and Legal Temporalities

Intellectual property law sharply delineates the beginning andend of copyright and other protections. The combination of thecopyright symbol, author's (or publisher's) name and date fixes theprotected work at a particular point in time and sets it apart fromthe work of other authors. Where adinkra and kente producersacknowledge the links between their work and that of past clothproducers through the frequent references to the ancestors, intel-lectual property law severs those links in the forms of creative workthat it typically protects. In the process, the law erases the socialcontexts of creative work in its conceptualization of the creativeprocess, and makes little accommodation for creative sources suchas prior or overlapping lives (those of creators and their past andpresent influences). It also selects one point in time, the date ofpublication, from all others in the creative process and privilegesboth that date and the act of publication.

While this aspect of the law can be understood as a directoutcome of its origins in print culture and the imperative to distin-guish individual publishers' and authors' work from each other, itis important to recognize that need as part of the wider shift fromone mode of organizing time to another. It is also linked to theadvent of liberal political thought and its emphasis on the indi-vidual. Intellectual property law therefore gives concrete expres-sion to the linear time of "modernity" that sharply demarcates pastfrom present, and to liberal individualism. It is important to note,however, that in separating the work of each creator's work fromthat of others, the law effects a stronger demarcation than may existin practice. An examination of the ways that cultural workersmanage cultural debt can further clarify differences in the manage-ment of time in different realms of cultural production.

One of the responses to the extension of the copyright term inthe United States and the increasingly stringent restrictions placedon the use of protected work has been the observation that allcreative work is intertextual-that is, it draws on previous work(McLeod 2001; Seeger 2005). Creative workers, the argument goes,should therefore be permitted easier access to protected work bylimiting rather than extending the term of protection (Lessig 2001;McLeod 2007). Apart from its implications for the duration of pro-tection, the element of intertextuality undermines claims of origi-nality as a basis for intellectual property protection in the first placeand shows that the extent of originality in cultural work in the caseof books and music recordings may not be that different from itsextent in the production of adinkra and kente. As noted in theprevious section, the notions of individual inspiration and creativityat the heart of the idea of the "Romantic author" that has been

962 The Hand of the Ancestors

influential in copyright law since the late eighteenth century, alsooccur in adinkra and kente production.

In the case of adinkra and kente, the cultural debt involved increative work and the limits it sets on claims of originality areobvious because in both cases, producers are open about theirreliance on what has gone before. However, creative workers in anumber of legally protected areas similarly acknowledge the "handof the ancestors" in their work. In academic writing, for example,norms of citation ensure recognition of the work of previous schol-ars. This is also true of nonfiction and may even occur in certainkinds of fiction.' Apart from such citation, writers across genres alsodocument the contributions of others in the acknowledgementsections of their books. These examples suggest that the legal sepa-ration of past from present does not fully reflect the actual practicesof the cultural producers whose work enjoys protection underthe law.

It could be argued that in emphasizing the links between theirwork and that of past creators, adinkra and kente producers' prac-tices are no different from these ways of managing cultural debtand therefore that temporality in adinkra and kente production isno different from temporality in writing (or, for that matter, incultural forms like music recordings and films that also featureacknowledgement of prior work). If there is indeed no difference,then adinkra and kente should be as eligible for intellectual prop-erty protection as are books, music recordings, and films. However,earlier creations are acknowledged in these cultural products inways that allow for the claims of individual originality that areimportant for intellectual property protection.

In the case of such works, the management of cultural debtmaintains a clear distinction between the new work and its sourcesin previously existing work. By listing each individual whose workis cited, it separates out what is original from what already exists. Inthe case of adinkra and kente producers, on the other hand, theacknowledgement of prior work is so central to the cultural formthat such separation risks diminishing the value of new creations.While some cloth producers have sought recognition of their indi-vidual authorship of designs, they also emphasize the links betweentheir work and that of previous generations. Therefore, while nov-elists, scholars, and adinkra and kente producers may all admit tothe limits of their originality by acknowledging their debt to previ-ous creators, the conventions by which they do so vary in ways thatalign or distance them from the temporality of the law.

' For example, in her historical novel Half of a Yellow Sun, Nigerian novelist,Chimamanda Adichie (2006), provides a list of prior work. She also includes in heracknowledgements a brief description of the use she made of four titles on the list.

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An interesting example that bridges the management culturaldebt in the case of adinkra and kente on the one hand and booksand music recordings on the other, can be found in folk music inthe United States. Like adinkra and kente production, this has itsorigins in temporally indefinite practices of authorship with stronglinks between deceased and living creators (McLeod 2001; Seeger2005). With folk music's conversion into a genre in the musicrecording industry, individual compositions began to be severedfrom their contexts in the work of previous artists. The materialbenefits from this transition went not to communities or even toartists, but to music producers (McLeod 2001). Similar observationshave been made regarding the commodification of African-American blues music (McLeod 2001; Springer 2007).

While some of the value of folk music continues to be in itscontexts of production, including specific communities of origin,its commodification has weakened those links. In comparisonwith adinkra and kente, therefore, the folklore and blues examplesseem to foreshadow the potential future of adinkra and kenteproduction if their copyright protection has the result of severingindividual from communal creativity, and of assigning the rewardsof exploitation to individuals and entities other than the originalproducers. In the Ghanaian case, that entity appears to be theState, which is so far the biggest beneficiary of folklore protectionunder copyright law. Although there have been few instances ofroyalty payment for folklore, these have gone to the State and arejustified on the basis of enabling the State to nurture and supportnational culture.

In organizing culture into discrete temporal units, intellectualproperty law also makes the physical units concerned easily iden-tifiable with individual owners for the purpose of commercial trans-actions in which individual claims are central. A linear concept oftime makes it possible to conceive of a specific point at which thecreative process results in an artifact over which individual owner-ship claims can be made. This makes it easier to settle questionsof who creates cultural products, who owns those products, andunder what conditions others can produce copies of those prod-ucts. It should also be noted, however, that setting specific points intime at which individual ownership begins and ends, helps tobalance such ownership with the view that cultural goods mustcirculate freely in society and therefore must only be individuallyowned for a limited period.

The way that time is organized around adinkra and kenteproduction also supports certain kinds of claims and the exercise ofpower over culture. The view of time as something that is notinterrupted by death enables cloth producers to amplify theimportance of their own work by harnessing it to the work of the

964 The Hand of the Ancestors

ancestors. At the same time cloth producers benefit individuallyfrom producing discrete units of cloth that circulate as commoditiesin the same way that books and music recordings do. Individualsalso introduce new designs and are wary of others copying thosedesigns. However, the commercial exchange of cloth and concernsover the appropriation of designs do not translate into an exclusivedesire to demarcate each design from all others in order to safe-guard the profits that can be made from their reproduction. Ratherindividual claims are held in tension with claims of a long heritageof cloth production.

It can be argued that this is because it is difficult to regulatesuch demarcation and proprietary control. However, it is also dueto the fact that in the commercial circulation of cloth, value residesnot only in the individual design elements or individual units ofcloth, but in their being adinkra and kente, that is in their being aspecific kind of cloth. Additional value may derive from the fact thata piece of cloth is made by a skilled and innovative producer whouses only the best dyes and yarns, but if that innovation strays toofar, it may in fact detract from the value of the cloth. If part of theauthor function, in Foucault's argument, is to indicate the distinc-tiveness of a particular discourse and to show that it "must bereceived in a certain mode and that, in a given culture, must receivea certain status" (Foucault 1984: 107), this is the function that theancestors play in relation to adinkra and kente. While that functionoccurs partly through sharp temporal distinctions in intellectualproperty law, it occurs through a refusal of such distinctions in thetemporal system of adinkra and kente production. This, ratherthan the simple fact of being traditional or modern, is one of thekey differences between intellectual property law and the productsit is designed to protect on the one hand, and products like adinkraand kente on the other.

There is an important exception to the law's strict demarcationof past from present, but this is still centered on the lives of indi-vidual authors. In its current form, the law projects that presentinto the future when it grants rights to copyright holders for aspecified period after they die. In this sense, therefore, death inintellectual property law-and particularly copyright law-doesnot delineate the author's life as a cultural producer. With anauthor's work attracting rights beyond death, it can be said that inthis sense and context, as well, "the tongue does not rot." Howeverthe conditions that enable this extension of the life of the authorbeyond death could not be more different from the conditions thatmake it possible in the context of adinkra and kente production. Inthe case of the latter, the extension of the author's life beyond deathis an integral part of a wider social order in which all deceasedpersons continue to be active if only symbolically.

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Further, the legal continuation of the author's creative lifebeyond death is not indefinite and is not intended to make that lifean open resource for further creativity by the living, as it is inadinkra and kente production. Rather it is a means of prolongingthe extraction of profit from a deceased person's work by those withformal links to the author, and the history of the changing durationof copyright protection shows that this extension of an author's lifeis explicitly aimed at such prolonged profit extraction, althoughwith relatively little benefit to actual creative persons. Because therights to such work are held increasingly by institutions rather thanactual people and their heirs, the figure of the author and his/herlife, function to prolong the corporate extraction of profit fromcreative work. The extension of time into the future in this casetherefore functions in the interests of specific individuals and theirfamilies and even more in the interests of institutions, rather thanin the interests of an overall system of creative practice.

Another example of the extension of time in intellectual prop-erty law that has relevance for traditional knowledge protection isthe "domaine public payant" or paying public domain. In this setof arrangements, copyrighted work whose protection term hasexpired continues to attract fees in a kind of state-run compulsorylicensing system. In some national laws, fees are only levied in thecase of commercial use and users are also required to "respect theintegrity and paternity of the work" (Dusollier 2011). This systemhas been identified as a possible means of protecting work that istypically held to reside in the public domain, including traditionalknowledge.

Although it does not use the language of paying public domain,Ghana's copyright protection of folklore is analogous to thisscheme-especially in the 2005 version of the law that excludeswork with identifiable authors from the protected category of folk-lore. It is also clear that some Ghanaians' response to the protectionbears out the warning by at least one commentator that the feeslevied are likely to be viewed as a tax (Dusollier 2011). In the caseof works whose protection has expired, the paying public domaintakes on an interesting temporal dimension in extending protec-tion beyond the term specified in copyright law and, in effect,transferring ownership to the State, which continues to levy royal-ties on it.

Yet another example of temporal variation in intellectual prop-erty is the moral rights provision in copyright law. This is theauthor's right to have a say in how the work is used even after theeconomic rights to the work have been transferred-for example,to a book publisher, music producer, or art collector. While thestandard copyright term applies to economic rights, moral rightsvary in duration. In some cases, they end with economic rights, but

966 The Hand of the Ancestors

in others, they exist in perpetuity, with France as the leadingexample of this indefinite term (Dusollier 2011). While the BerneConvention provides for the moral rights of authors, the TRIPSAgreement does not. In this respect, these international agree-ments reflect the legal principles of some of the nations that weremost influential in their establishment-France in the case ofBerne, and the United States, in the case of TRIPS. They also pointto the contingency of the law in being governed by views that areparticular rather than universal. Moral rights reflect the view thatproperty rights in a work are inherent in the author-or are"natural rights" while the view in jurisdictions like the United Statesis that such rights are temporary privileges granted by society asincentives to creativity and innovation (Boyle 2008).

The management of cultural debt in areas other than tradi-tional knowledge, the legal extension of protection beyond theauthor's death, and variations in legal norms (like the paying publicdomain and moral rights) indicate that the temporal arrangementsin the law and in the kinds of cultural work that it governs, recog-nize the continuing significance of creators beyond their lifetimes.However, with the exception of the paying public domain for worksthat have never been protected by copyright, the management oftime in these instances ultimately functions to maintain the focus onindividual creativity. It can therefore be argued that while temporalarrangements in these cases approach those in the production ofadinkra and kente, significant differences remain and place limita-tions on the use of intellectual property law to protect traditionalknowledge. Those limitations are evident in Ghana's use of copy-right law to protect folklore.

At first glance, Ghana's protection of folklore within the well-established legal form of copyright seems like a radical departurefrom the law and its underlying principles. This is certainly true ofGhana's extension of copyright protection to a sphere of culturalproduction that is viewed from a conventional legal perspective asresiding in the public domain. When one takes into account factorslike the legal view of rights bearers as individuals or formallyconstituted groups that have the status of "legal persons," and theperception of traditional knowledge as unoriginal, then Ghana'suse of copyright law to protect folklore is indeed unusual. However,the resulting protection is limited because of a number of factorsincluding closer attention to the State than to the folklore produc-ers' priorities, and constraints posed by some of the principles ofcreativity enshrined in copyright law.

For example, the law only permits ownership claims in accor-dance with principles that exclude groups whose composition andmembership is informal. While allowing claims by formally consti-tuted groups as in mainstream copyright law, it precludes claims on

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the basis of ethnicity, say, or location of production-factors thatare important to cloth producers. While the language of the lawacknowledges ethnic groups as producers of folklore, the Stateassumes ownership of such ethnically produced folklore. Thisreflects a desire to minimize disruptions to national unity fromcompeting claims by different ethnic groups. However it results inownership of designs being limited to the State, individuals, orformally constituted groups (like corporations that have the statusof legal personhood or, in theory, associations of individually iden-tifiable cloth producers).

The law also fragments what it seeks to protect in two ways.First, it separates traditional knowledge into two categories of workby known and unknown creators. The work of unknown creators isowned by the State and protected in perpetuity while the work ofknown creators is individually owned by those creators and subjectto the standard term of the author's life plus 70 years. This is atvariance with temporality as it occurs in cloth producing commu-nities, because the link between creators and their work is indefi-nite. The second source of fragmentation comes from the law'ssilence on the medium in which adinkra and kente designs areproduced and appropriated. By ignoring the medium in whichappropriation is most threatening to the work of adinkra and kenteproducers, the law effects a separation of the designs from one ofthe sources of their greatest value.

As a result of these limitations, the copyright protection oftraditional knowledge in Ghana is so narrow that much of the basicexclusion from intellectual property law remains. This is mostevident when one considers the protection of traditional knowledgein relation to the practices of cultural producers like those whomake adinkra and kente cloth. In adhering more closely to some ofthe basic conceptions of creativity in intellectual property law thanto the conceptions that guide cloth producers, the law undermineswhat it seeks to protect. In effect, therefore, Ghana's use of copy-right law to protect traditional knowledge does not fundamentallychange the conformity of its version of that law to the Westernstandards enshrined in international instruments like the BerneConvention and TRIPS.

Discussion

Cultural workers in different spheres acknowledge the limits oftheir originality. There is considerable variation within national andinternational intellectual property norms in the management oftemporality. Nonetheless, while some acknowledgements of cul-tural debt occur in ways that are compatible with the organization

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of time in intellectual property law, this is not the case with adinkraand kente production. In addition, the available legal variations intemporality are inadequate for the protection of cultural goods likeadinkra and kente. At the same time the very existence of thosevariations demonstrates that the temporal arrangements in intel-lectual property law are malleable. The question that must be posedis why they are only malleable for some interests and not for others?Why does the Berne Convention uphold moral rights while theTRIPS Agreement does not?

The answers to these questions do not lie exclusively in therelative merits of different principles of ownership, but also in whowins out in struggles over those principles (Sell & May 2001). Thatis, they point to the politics of intellectual property law, and thatpolitics includes the primacy of the temporalities of the law inrelation to those of products like adinkra and kente. This primacyis a manifestation of the hegemonic expansion of a particular tem-poral mode as noted by postcolonial scholars. An expansion thathas simultaneously devalued the temporalities of local communitiesin the global South and indigenous communities in both North andSouth. It is in response to this that scholars like Emmanuel Eze andKwaku Korang have called for temporal restoration and identifiedwriters as crucial workers in this project.

The preceding discussion has shown that this work of temporalrestoration must also occur in the sphere of intellectual propertylaw and its regulation of cultural production. In this sphere, cul-tural workers like adinkra and kente makers have much to contrib-ute in highlighting alternative temporal modes. In addition, legalvariations that grant rights in perpetuity-whether in the area ofmoral rights or the paying public domain-demonstrate that thedistance between the law and traditional knowledge may be exag-gerated. The characterization of adinkra and kente as traditionaland therefore at variance with intellectual property law, has less todo with the actual differences between the two realms of culturalproduction that they represent, and more with the structural rela-tions of power established between them through the politicaldimension of temporality revealed by scholars like Chakrabarty,Eze, and Korang.

That process has not only rendered the temporality of intellec-tual property law dominant, but has also naturalized it, so as torender deficient other modes of organizing time-particularlywhen those modes are viewed as "traditional" or (to borrow a termfrom Bruno Latour) "premodern." This is especially evident whenone looks beyond Ghana to the international regulatory system forintellectual property. Within that system, there is little recognitionof other ways of organizing time and the cultural forms that emergefrom such systems. In this scheme, efforts to protect cultural goods

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like adinkra and kente remain outside a universalized set of ideasabout what can be protected within the law, even though those ideascontinue to change and expand to accommodate particular inter-ests. For example, the principle that genetic material can be pat-ented only dates back a few decades (McLeod 2001). The legalvariations cited in the previous section provide further evidence ofthe law's malleability in response to specific interests in various

jurisdictions.In the case of the temporal frameworks of adinkra and kente

and intellectual property law, the key features discussed so farsuggest that the differences are not the standard (and extreme)ones of linearity versus circularity. As discussed by Anderson(1991), a circular conception of time suggests an aversion andresistance to change. There is thus a constant returning to what isknown and certain. Within such a framework there can be littleinnovation in cultural production, as this breaks the circle. If thereis any circularity in the temporal mode of adinkra and kente pro-duction, however, it is an outward spiraling in which returns andappeals to the past do not close the circle, so that there is alsocontinuous change and adaptation and movement away from theorigins invoked by cloth weavers. This temporal mode also suggestsa linearity that is multiple rather than singular, in which the line ofeach cultural producer's life overlaps with those of past, presentand future lives. It is also a linearity that resists fragmentation intoindividual lives, and into past and present.

Against this background, it is misleading to characterize theencounter between the temporal systems of adinkra and kente andthose of intellectual property law in terms such as sacred/secular;linear/circular, and-above all-traditional/modern. These termsconstruct and emphasize differences while obscuring continuitiesand similarities. Rather than indicating an anterior tradition, there-fore, the temporality of adinkra and kente production points toconceptions of time (and persons) that are informed by values thatdiffer from those underpinning intellectual property law. Thus, asthe discussion on originality in the previous section has shown, thetwo modes of conceptualizing time, and the understanding of cul-tural production that emerge from them, vary not so much inessence as on the bases of decisions about where best to locate theirboundaries. The temporal mode of adinkra and kente productionrefuses to operate, as intellectual property law does, by strippingcultural production of its social and temporal contexts in order touphold the fiction of individual authors and owners.

If one proceeds from the temporality of adinkra and kenteproduction rather than that of the law, then protection must makeit possible to acknowledge the limits of ownership in the wayspracticed by cloth producers. This could include allowing cloth

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producers to protect their designs as expressed in the medium ofcloth. Because the appropriation of cloth designs occurs in a rangeof media, that protection could apply stronger sanctions to appro-priations in cloth than in jewelry, say, or ceramics, especiallybecause cloth producers seem to view appropriation in media otherthan cloth as insignificant. It could also include protection in per-petuity without this automatically translating into nationalization,even though the State could play a role as the ultimate source andguarantor of cloth producers' rights.

The State could also work with cloth producers to establish asystem of recognizing individual rights not through exclusive own-ership of individual designs, but rather in institutionalizing theright to name designs that cloth producers insist upon withoutpenalizing other cloth producers who use those designs. Thiswould recognize individual originality without fragmenting theoverall system of cloth production by reducing it to exclusive claimsover individual designs. If the drafters of the Berne Conventioncould include the moral rights that were so important to them, whynot naming rights over individual designs in the Ghanaian protec-tion of adinkra and kente?

Recognizing individual naming rights while protecting designsand cloth as a whole, rather than as fragmented elements, wouldaccommodate the tension between claims of individual creativityand the importance of an overall system of cultural production asthe source of that creativity's value. Where book producers point toprior work in their footnotes, adinkra and kente producers couldpoint to a registry of individual designs, reserve to themselves theright to draw freely from it, while withholding those rights fromgroups external to their communities-especially those wishing toappropriate their designs for mechanized reproductions that cancompete with their hand woven and hand-stenciled cloth. That is,the protection scheme would recognize individual authorship whilelocating ownership at the level of the community. It could be furtherrefined by granting individual designers the right to exclusive useof their new designs for a limited period analogous to the protec-tion term in copyright but for a much shorter duration in order tomaintain the focus on the overall pool of designs. Such a systemmight be more effectively regulated by indigenous rulers than bythe State-or at least by indigenous rulers in consultation with theState. It would also parallel the distinction between moral rightsand economic rights while temporally inverting it, because indi-vidual rights would be temporary and communal rights would lastin perpetuity.

A key challenge in such an alternative scheme would be indeciding who the holder of ownership rights should be. WhileGhana has been wary of locating those rights in ethnic groups, it is

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clear that neither the State nor individual producers represent auseful alternative. Self-identified communities of cloth producersmight be a possibility, and a naming rights system that also estab-lished the designer's community of residence and practice mighthelp to defuse the rivalries between communities over the author-ship of particular designs. To take the example of Bonwire andAdanwomase, the main centers of kente production, there is rivalrybetween the two, but a system of recognition of naming rights thatalso named the individual creators' communities of origin mighthelp to diminish those rivalries.

These suggestions are not for a sui generis scheme of protectionas such a scheme would only further marginalize adinkra and kentein the space of the law. Rather, they are principles that can easily beaccommodated into intellectual property law if its existing varia-tions are anything to go by. Quite simply, they are suggestions to:expand intellectual property to include additional kinds of author-ship rights (like naming rights) that are important to cultural pro-ducers in different locations; allow for rights in perpetuity withoutnationalization; and allow for ownership claims by self-identifiedgroups whose constitution may be informal, rather than based onliberal principles that assume the individual as the basic unit ofsociety and bearer of legal rights. These could inform the law at thelevel of its broad principles while allowing for the details of theiradministration to vary from one locale to another (e.g., in includingindigenous rulers in the administration of a naming rights systemfor adinkra and kente makers). The most significant obstacle toestablishing such a regime is not in the dubious modernity-tradition divide between different kinds of cultural production, butin the hegemony of modern time. Successfully instituting such alegal regime that incorporated provisions like these would there-fore be an important step in the task of temporal restoration in thesphere of intellectual property law.

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Boatema Boateng is Associate Professor of Communication at the Univer-sity of California San Diego. She works in the areas of critical legal studies,cultural and media studies, and gender studies, and is the author of TheCopyright Thing Doesn't Work Here: Adinkra and Kente Clothand Intellectual Property in Ghana.

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