Battle is on for ownership of lucrative Maasai rights

Italian tourists join Maasai dancers in a cultural jig. “The Maasai have already been branded like there’s no tomorrow, but they haven’t seen the benefits,” says Duncan Green, senior strategic adviser for Oxfam GB. PHOTO/FILE  DAILY NATION

By CORDELIA HEBBLETHWAITE
Posted  Thursday, May 30  2013 at  05:12

IN SUMMARY

• According to Light Years IP, an NGO which specialises in securing intellectual property rights in developing countries, about 80 companies around the world are currently using either the Maasai image or name.
• If the Maasai “brand” were owned by a corporation, it would be worth more than $10m (about Sh0.5 billion) a year, perhaps even “more”, according to Layton. How much of this the Maasai might be able to claim would be up to negotiation.
• If the Maasai do take control of their brand, large sums of money could suddenly start flowing into the community.

Imagine a Maasai warrior, or a Maasai woman, adorned with beads. It is one of the most powerful images of what has been described as “tribal Africa”.

Dozens of companies use it to sell products—but Maasai elders are now considering seeking protection for their “brand”.

Dressed in a white checked shirt and grey sweater, Isaac ole Tialolo does not come across as a Maasai. The large round holes in his ears—from where his jewellery sometimes hangs—might be a clue, though.

Isaac is a Maasai leader and elder. In the mountains near Naivasha, he lives a semi-nomadic life, herding sheep, goats and, most importantly, cattle.

But Isaac is also chair of a new organisation, the Maasai Intellectual Property Initiative, a project that is beginning to take him around the world, including, most recently, London.

“We all know that we have been exploited by people who just come around, take our pictures and benefit from it,” he says. “We have been exploited by so many things... you cannot imagine.”

Crunch time for Isaac came about 20 years ago, when a tourist took a photo of him without asking for permission, something the Maasai are particularly sensitive about. “We believe that if somebody takes your photograph, he has already taken your blood,” he explains. That is why he was so furious that he smashed the tourist’s camera.

Twenty years later, he is mild-mannered and impeccably turned out, but equally passionate about what he sees as the use—and abuse—of his culture.

“I think people need to understand the culture of others and respect it,” he says. “You should not use it to your own benefit, leaving the community, or the owner of the culture, with nothing. If you just take what belongs to somebody and go and display it and have your fortune, then it is very wrong.”

According to Light Years IP, an NGO which specialises in securing intellectual property rights in developing countries, about 80 companies around the world are currently using either the Maasai image or name.

These include a range of accessories called Masai made for Land Rover; Masai Barefoot Technology, which makes speciality trainers; and high-end fashion house Louis Vuitton, which has a Masai line that includes beach towels, hats, scarves and duffle bags.

“It’s almost certainly the biggest cultural brand in the world,” argues Ron Layton, the founder and head of Light Years IP.

“It ranks right up there. It’s a serious brand. Those companies may be using the Maasai brand in ways that really do enhance their business, so it’s reasonable for the Maasai to say, ‘Well, why aren’t you coming to talk to us? Why aren’t you asking our permission? Why don’t you engage with us?’” says Layton.

But the reality is that there has never been a single, unified Maasai body for companies to approach and seek permission, though that could soon change.

Light Years IP is involved in a niche but growing area of development policy, known as “intellectual property value capture”.

The argument is that intellectual property rules offer the potential to provide a valuable source of income for people in developing countries, who tend to get only a small sliver of the profits made on their goods on the international market.

If the Maasai “brand” were owned by a corporation, it would be worth more than $10m (about Sh0.5 billion) a year, perhaps even “more”, according to Layton. How much of this the Maasai might be able to claim would be up to negotiation.

“It’s time the world sat up and took notice,” says Lord Boateng, a member of the UK’s House of Lords, whose grandfather was a cocoa farmer in Ghana. “It’s an idea whose time has come.”Boateng is on the board of directors of the newly-created African IP Trust, which has taken on the Maasai as one of its first cases.

“They are not getting value. Their image is being abused,” says Boateng. “The Maasai are an ancient and sophisticated people, they know they are being ripped off and they want this to stop.”

It is not yet certain that the Maasai will choose to pursue intellectual property protection, but Maasai elders like Isaac ole Tialolo want to be sure that the whole community is on board first.

Together with Light Years IP, he has been travelling around Maasai areas holding meetings and workshops. It is a huge task—according to some estimates, there could be as many as three million Maasai in 12 districts spread across a vast swathe of Kenya and Tanzania. So far, they have reached about 1.2 million people.

Once the consultation is complete, and if the Maasai choose to go forward, the plan is to create a General Assembly of Maasai elders, trained in IP, who would act as a legal body specifically on this issue, negotiating with companies via a licensing agent, on a case-by-case basis.

That is the dream, at least. But according to some lawyers, the Maasai case is not especially strong in terms of international property law.

“They are on a sticky wicket with the law,” says Ben Goodger, an expert on international IP law and a partner at the law firm Edwards Wildman Palmer in the UK. IP law, he says, has been designed for new businesses and people creating innovations, and it is not really well-suited to this kind of case.

Patents, for example, would offer little or no protection to the Maasai, because the product or service has to be new. Trademarks could potentially offer a better route. But trademarks are issued on a first-come-first-served basis, and a number of companies have already got trademarks for use of the Maasai name or image.

“It looks to me like they have got some quite powerful opponents,” says Goodger. “Those guys may not just give that up easily.”

The idea of cultures seeking IP protection is not an entirely new one. The Native American Navajo recently brought a case against the clothes company Urban Outfitters for use of their name.

But perhaps the best parallel with the Maasai is the case of Aborigines in Australia who, 15 years ago, secured a voluntary code that governs use of their cultural and intellectual property.

They are useful in creating an industry norm, which can serve as a kind of name-and-shame tool for those who do not sign up.

“That’s very clever. That’s exactly what they should do,” says Bruce Webster, an independent international branding expert.

“Then it’s a proud, ancient people against exploitative Western multinationals—and they’ll win the PR battle absolutely.”

For the moment, the Maasai are not going after any companies, though they have written to a number in cases where they have found the use of their name or image to be particularly offensive.

They are sensitive about the portrayal of their bodies, for example, and they don’t like images of their jewellery used inappropriately.

Each colour of bead has a special meaning. “This, we call it norkiteng,” says Isaac, holding up a circular necklace with threaded beads hanging down from points of the circle. It is given as a gift to a new bride. Used in some commercial contexts, it can seem disrespectful.

“It offends me because they don’t know the meaning... they misuse it,” says Isaac.If the Maasai do take control of their brand, large sums of money could suddenly start flowing into the community.

“The Maasai have already been branded like there’s no tomorrow, but they haven’t seen the benefits,” says Duncan Green, senior strategic adviser for Oxfam GB. He supports the IP campaign in principle, but warns there could be problems without a system in place to ensure the money is used fairly.

It’s an issue the Maasai have thought about. The proposed General Assembly of elders would, it has been suggested, be underpinned by a constitution specifying how the money should be distributed and used.

But for Isaac at least, it is not primarily about the money. “What matters is the respect,” he says. He has hosted a series of live phone-ins in the indigenous Maa language, and the phones have been buzzing.

To Western ears, it might sound counter-intuitive for the Maasai to be hotly debating notions such as intellectual property, copyright and trademarks, such emblems of modern capitalism.

But, says Isaac, though these may not be terms they are familiar with, the Maasai have a strong sense of ownership of their culture and a visceral sense of violation where they feel their image has been misused.

“People are very excited, very excited. They are asking every day, ‘When is it going to happen? When is it going to happen?’ It’s something that is spreading like fire all over the community,” says Isaac.

Ron Layton spoke to The World, a co-production of BBC World Service, Public Radio International and WGBH in Boston.