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indigenous cultures
This
page looks at protection for the cultural expression and
traditional knowledge of Indigenous people (communities
and individuals) in the digital environment.
It covers -
There
are supplementary notes
on indigenous 'authenticity label' or 'origin
mark' schemes in Australia, New Zealand and elsewhere
and on the repatriation
and spoliation of cultural heritage.
boundaries
Western copyright law is ill-equipped to address the needs
(and expectations) of indigenous communities in Australia
and overseas, given its emphasis on limited duration,
fixation and the action of individual authors rather than
collectives.
As one would expect, it is particularly contentious and
debate about particular reforms often embraces wider claims
- such as bio-rights - that rightly or wrongly are highly
unlikely to get off the ground.
Discussion of intellectual property rights or sui
generis protection of Indigenous cultural expression
is complicated by questions about -
- what
is an Indigenous community or an Indigenous people
- the
appropriateness of terms such as folklore and 'ownership'
of stories or styles
- whether
protection should be sought for cultural expression
or more broadly for traditional knowledge
International
law defines Indigenous peoples broadly as
peoples
in independent countries who are regarded as indigenous
on account of their descent from the populations which
inhabited the country, or a geographical region to which
the country belongs, at the time of conquest or colonization
or the establishment of present state boundaries and
who, irrespective of their legal status, retain some
or all of their social, economic, cultural and political
institutions.
international
Among recent international activity a useful starting
point is the WIPO website
on traditional knowledge.
The site reflects the 1998,
1999
and 2001
WIPO Roundtables on Intellectual Property & Traditional
Knowledge and includes the draft report
of the WIPO Fact Finding Mission on Traditional Knowledge,
Innovations & Culture.
Major documents on that site and elsewhere include the
1991
United Nations Draft Declaration of the Rights of
the World's Indigenous Peoples
1993 UN report on the Study of the Protection
of the Cultural & Intellectual Property of Indigenous
Peoples and 1995 Final Report on the Protection
of the Heritage of Indigenous People
1997 African Model Law for the Protection of
the Rights of Local Communities, Farmers and Breeders,
and for the Regulation of Access to Biological Resource
In Relation to International Law and Institutions
(here)
1982 UNESCO-WIPO Model Provisions for National
Laws on the Protection of Expressions of Folklore Against
Illicit Exploitation and Other Prejudicial Actions
1976 Tunis Model Law on Copyright for Developing
Countries
1993 Mana Tangata Mataatua Declaration (here)
in New Zealand
1994 COICA Statement (here)
by the Coordinating Body for the Indigenous Peoples'
Organizations of the Amazon Basin
2002 Johannesburg Declaration on Biopiracy, Biodiversity
& Community Rights (here)
at the Second South-South Biopiracy Summit
1970 UNESCO Convention on the Means of Prohibiting
& Preventing the Illicit Import, Export & Transfer
of Ownership of Cultural Property (here)
1995 Unidroit Convention on Stolen or Illegally
Exported Cultural Objects (here)
studies
Perspectives on that activity are provided by Michael
Blakeney's 1998 paper
on Access to Biological Resources: Domestic & International
Developments & Issues and 1999 paper
Intellectual Property in the Dreamtime – Protecting
the Cultural Creativity of Indigenous Peoples, papers
in Intellectual Property in Biodiversity & Agriculture
(London: Sweet & Maxwell 2001) edited by Blakeney
& Peter Drahos, Catherine Berryman's 1991 article
Toward More Universal Protection of Intangible Cultural
Property, Joseph Githaiga's paper
on Intellectual Property Law & the Protection of
Indigenous Folklore & Knowledge, Robert Paarlberg's
Starved for Science: How Biotechnology Is Being Kept
Out of Africa (Cambridge: Harvard Uni Press 2008)
and The Future Control of Food: A Guide to International
Negotiations And Rules On Intellectual Property, Biodiversity
And Food Security (London: Earthscan 2008) by Geoff
Tansey & Tasmin Rajotte.
James Boyle's Shamans, Software & Spleen: Law &
the Construction of the Information Society (Cambridge:
Harvard Uni Press 1996) is an important study that critiques
Western notions of authorship. The COICA Statement more
pungently declared that
prevailing
intellectual property systems reflect a conception and
practice that is colonialist ... racist ... and usurpatory.
Patents and other intellectual property rights to forms
of life are unacceptable to indigenous peoples.
Marc Suchman's 1989 'Invention and Ritual: Notes on the
Interrelation of Magic and Intellectual Property in Pre-Literate
Societies' in 89 Columbia Law Review 1264 (PDF)
questions some contemporary pieties, offering a perspective
on claims that IP is both unknown and unecessary in traditional
cultures.
Poor People's Knowledge: Promoting Intellectual Property
in Developing Countries (Washington: World Bank 2004)
edited by J. Michael Finger & Philip Schuler unsurprisingly
argues that "the international community should help
poor people use modern methods to benefit from the commercial
value of traditional knowledge" and aims to chart
"the indigenous knowledge that poor people can commercialise".
It is complemented by Cora Hayden's When Nature Goes
Public: The Making and Unmaking of Bioprospecting in Mexico
(Princeton: Princeton Uni Press 2003), Johanna Gibson's
Community Resources: Intellectual Property, International
Trade & Protection of Traditional Knowledge (Aldershot:
Ashgate 2005) and Michael Brown's Who Owns Native
Culture (Cambridge: Harvard Uni Press 2003).
The international Indigenous Peoples Council on Biopiracy
(IPCB)
includes pointers to some thinking about bio-rights and
debate about Traditional Botanical Knowledge (TBK), Traditional
Zoological Knowledge (TZK) and Traditional Ecological
Knowledge (TEK). Howard Mann's 64 page 1997 Indigenous
Peoples & the Use of Intellectual Property Rights
in Canada: Case Studies Relating to IP Rights and the
Protection of Biodiversity (PDF)
and Jay McGown's 2006 report on biopiracy in Africa (PDF)
illustrate particular issues.
Others are highlighted in Matthew Rimmer's 2003 paper
Franklin Barley: Patent Law & Plant Breeders'
Rights, Graham Dutfield's Intellectual Property
Rights and the Life Sciences Industries: A Twentieth Century
History (Aldershot: Ashgate 2003), Intellectual
Property Rights & Biodiversity Conservation (Cambridge:
Cambridge Uni Press 1998) edited by Timothy Swanson and
Eric Vettel's Biotech: The Countercultural Origins
of an Industry (Philadelphia: Uni of Pennsylvania
Press 2005).
Valuing Local Knowledge: Indigenous People & Intellectual
Property Rights (Washington: Island Press 1996) is
a thoughtful although somewhat idealistic set of 1993
conference papers edited by Stephen Brush & Doreen
Stabinsky.
It is reflected in Beyond Intellectual Property: Toward
Traditional Resource Rights for Indigenous Peoples and
Local Communities (Ottawa: IDRC 1996) by Darrell Posey
& Graham Dutfield
as
entrepreneurs scour the world in search of new commodities,
a voice of dissent is growing and striving to be heard.
That voice belongs to the world's indigenous peoples,
and it is voice that has been ignored long enough. In
Beyond Intellectual Property authors Darrell
A. Posey and Graham Dutfield listen and respond to this
voice
Rosemary Coombe's The Cultural Life of Intellectual
Properties: Authorship, Appropriation & the Law
(Durham: Duke Uni Press 1998) and Intellectual Property
Aspects of Ethnobiology (London: Sweet & Maxwell 1999)
edited by Michael Blakeney have more bite.
Coombe's 1998 paper
Intellectual Property, Human Rights & Sovereignty:
New Dilemmas in International Law Posed by the Recognition
of Indigenous Knowledge and the Conservation of Biodiversity
and 2001 paper The Recognition of Indigenous Peoples’
and Community Traditional Knowledge in International Law
(PDF)
are online. They are supplemented by Ikechi Mgbeoji's
2001 paper
Patents & Traditional Knowledge of the Uses of
Plants: Is a Communal Patent Regime Part of the Solution
to the Scourge of Bio Piracy? and the Handbook (PDF)
on Traditional Knowledge and Intellectual Property:
A Handbook on Issues and Options for Traditional Knowledge
Holders in Protecting their Intellectual Property and
Maintaining Biological Diversity by the American
Association for the Advancement of Science as part of
its Science & Human Rights Program.
Elazar Barkan's The Guilt of Nations: Restitution &
Negotiating Historical Injustices (New York: Norton
2000) and Claiming the Stones/Naming the Bones: Cultural
Property & the Negotiation of National and Ethnic
Identity (Los Angeles: Getty 2003) by Elazar Barkan
offer perspectives on international 'reparation' and cultural
repatriation negotiations.
Roger Sandall's sardonic The Culture Cult - Designer
Tribalism & Other Essays (Boulder: Westview 2001)
and Tyler Cowen's Creative Destruction: How Globalization
is Changing The World's Cultures (Princeton: Princeton
Uni Press 2002) are provocative and often insightful about
current fads. Shelly Errington's The Death of Authentic
Primitive Art & Other Tales of Progress (Berkeley:
Uni of California Press 1998) more gently questions some
aspects of authenticity and primitivism.
Thomas Greaves edited Intellectual Property Rights
for Indigenous Peoples: A Sourcebook (Oklahoma City:
Society for Applied Anthropology 1994), an uneven but
valuable collection.
EU banker and politician Jacques Attali's
Noise: The Political Economy of Music (Minneapolis:
Uni of Minnesota Press 1985) is too hermetic for our tastes.
He famously commented that
What
is called music today is all too often only a disguise
for the monologue of power. However, and this is the
supreme irony of it all, never before have musicians
tried so hard to communicate with their audience, and
never before has that communication been so deceiving.
Music now seems hardly more than a somewhat clumsy excuse
for the self-glorification of musicians and the growth
of a new industrial sector
There
is a more accessible coverage of indigenous music
issues in Franco Fabbri's succinct 'Copyright: The Dark
Side of the Music Business' in Music & Copyright
(Edinburgh: Edinburgh Uni Press 1993) edited by Steven
Frith.
Anthony McCann's 1998 paper
on Irish Traditional Music & Copyright: an Issue
of Common Property? offers another perspective. His
2002 thesis
Beyond the Commons - The Expansion of the Irish Music
Rights Organisation, The Elimination of Uncertainty, and
the Politics of Enclosure explores issues in more
detail and includes a wide-ranging 62 page bibliography.
In the US the 1990 Indian Arts & Crafts Act
(IACA),
aimed at protecting Indigenous cultural expression, has
had an uneven reception. The Act's administrators, the
Indian Arts & Crafts Board, characterise it as
a
truth-in-advertising law that provides criminal and
civil penalties for marketing products as "Indian-made"
when such products are not made by Indians, as defined
by the Act.
Its
origins and outcomes - not always as intended - are discussed
in The Arbitrary Indian : The Indian Arts and Crafts
Act of 1990 (Tulsa: Uni of Oklahoma Press 1997) by
Gail Sheffield and in a note
elsewhere on this site. The 1999 US Patent & Trademark
Office report (PDF)
on Official Insignia of Native American Tribes
takes a dim view of the need for special protection for
some cultural expression.
local developments
Michael Blakeney's 1999 paper (PDF)
on Intellectual Property in the Dreamtime - Protecting
the Cultural Creativity of Indigenous Peoples offers
an introduction to developments in Australia, where the
agenda to a large extent is currently being set by Our
Culture, Our Future, a wide-ranging and contentious
report
by Terri Janke on Indigenous intellectual property issues
for the Aboriginal & Torres Strait Islander Commission
(ATSIC).
It was launched in Sydney in September 1999 and built
on documents such as Michael Davis' 1995 Parliamentary
Library research paper
on Indigenous Peoples & Intellectual Property Rights,
which argued that
Indigenous
peoples consider their intellectual property rights
are an integral component of a 'holistic' cultural heritage,
which includes a wider range of subject matter than
can be accommodated within existing intellectual property
laws. Given this, it becomes apparent that a different
system is necessary to protect Indigenous peoples' rights,
and it is for this reason that reforms to existing laws
are best accompanied by the formulation of a new sui
generis legislative arrangement that provides for
community controlled decision-making, and financial
benefits to Indigenous communities for the use by the
wider community of their cultural products, expressions
and knowledge.
Janke's
report followed the 1996 report
by Justice Elizabeth Evatt on her Review of the Aboriginal
and Torres Strait Islander Heritage Protection Act 1984.
Other reports suggested that legislation was needed to
address issues such as
i)
community ownership of works and management of rights
according to tradition, with for example permission
for use of a work being sought from clan or group elders
rather than the individual artist, as the group has
ownership of IP embodied in that work
ii) community interests in the reproduction or public
disclosure of sacred objects, as some works may only
be viewed by men or those who have reached a designated
level of initiation
iii) protection of works such as rock art that are outside
copyright protection because of their age but have special
significance for a specific clan or group
iv) protection of oral traditions to protect transient
forms of art such as body painting and stories and dances
that have never been writter or recorded.
Our
Culture, Our Future reflected disputes such as the
'Carpets Case', discussed in Michael Blakeney's paper
(txt)
on Milpurrurru & Ors v Indofurn & Ors: Protecting Expressions
of Aboriginal Folklore Under Copyright Law, Elizabeth
Coleman's Aboriginal Art, Identity & Appropriation
(Aldershot: Ashgate 2005) and Maree Sainsbury's Moral
Rights & their Application in Australia (Leichhardt:
Federation Press 2003).
A Government response is likely to reflect the more restricted
Stopping The Rip-offs discussion paper from the
federal Attorney-General's Department and Department of
Communications, Information Technology & the Arts.
Overseas points of reference are the Canadian Government's
1999 Intellectual Property & Aboriginal People:
A Working Paper (PDF)
and 2002 A Community Guide to Protecting Indigenous
Knowledge (PDF).
On 4 December 2000 Australia's long-awaited Copyright
Amendment (Moral Rights) Bill - discussed here
- was passed by Parliament. Amendments proposed by Senator
Aden Ridgeway for the protection of indigenous cultural
expression were unsuccessful.
However, in what sometimes seems like an interminable
process of review the government indicated that it will
"consult with appropriate indigenous peak bodies
as part of this process, and announce as soon as practicable
a package of measures to protect indigenous arts and cultural
expressions."
In September 2003 the new Communications, IT & Arts
minister (and former Attorney-General) announced that
it was heading towards stronger protection - apparently
based on moral rights - for Indigenous cultural expression
and knowledge.
A brief chronology of Australian developments regarding
Indigenous IP issues is here.
The Aboriginal & Torres Strait Islander Library and
Information Resources Network (ATSILIRN)
has developed eleven Indigenous intellectual property
protocols to
guide
libraries, archives an information services in appropriate
ways to interact with Aboriginal and Torres Strait Islander
peoples ... and to handle materials with Aboriginal
and Torres Strait Islander content.
They
are complemented by the 2001 Valuing Art, Respecting
Culture - Protocols for working with the Australian Indigenous
visual arts & craft sector (PDF),
a 102 page document by Doreen Mellor & Janke.
Among advocacy organisations the National Indigenous Arts
Advocacy Association (NIAA)
was prominent, with plans - now embroiled in that organisation's
apparent collapse - for an ambitious authenticity label
that would feature DNA
samples and support for droit
de suite.
Questions about authenticity labels or indigenous origin
marks are explored in a supplementary authenticity
label note elsewhere on this site. That note considers
the Toi Iho mark for Maori arts and crafts and proposals
for authenticity marks for Aboriginal and Torres Strait
Islander cultural expression.
Particular Australian cases regarding Indigenous intellectual
property, eg the 'Banknote' and 'Carpets' cases, are highlighted
here.
repatriation
This site features a multi-part note
on the identification and repatriation of indigenous cultural
heritage and remains, including a discusson of key agreements
such as the 1970 UNESCO Convention on the Illicit
Import, Export & Transfer of Ownership of Cultural
Property and the 1995 Unidroit Convention on
Stolen or Illegally Exported Cultural Objects.
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