Indigenous Music Goes Digital: Reconciling Culture and the Law

Abstract

This study examined the contesting legal and cultural sensitivity binary surrounding the digitisation of indigenous music in South Africa. The Delphi technique was used to determine if there is any pattern or consensus around these issues. Questionnaires emailed to indigenous music collectors, indigenous music donors and various researchers in this field collected information on the intersection of intellectual property rights (IPR) and customary law in local digitisation initiatives. A review of relevant literature was also conducted to trace related trends in similar projects. The findings of the study show that, from a legal and cultural perspective, developing an ethical professional practice during the course of collecting and aggregating indigenous materials on the internet should involve managing a range of risks associated with breaches of both indigenous customary law and Western IPR. This risk should be managed through various sets of disclaimers, warnings, and other mechanisms for withdrawal of indigenous materials which stakeholders may contest. The study recommends that certain aspects of indigenous knowledge never enter the public domain (as prescribed by customary law) and remain protected as such in perpetuity.