The effort to solidify the enforceability of click-wrap licenses throughout the nation had failed.
Case Study #3: Copyright Law and Folklore
Seeking Greater Protection for Traditional Knowledge
As we saw in Module 8, many indigenous groups view cultural knowledge and ancient expressions in myths and artwork to be collectively owned and safeguarded. They have sought strengthened intellectual property rights for TCEs and other forms of traditional knowledge at both the international and national levels. Their major grievances are absence of sufficient remuneration for commercial use of indigenous expressions, widespread disregard for indigenous communal rights, misrepresentation of sacred indigenous cultural elements, and unauthorized publication of sensitive information and folklore.
Mobilization of Indigenous Communities
WIPO’s 1998-1999 Fact Finding Missions
The United Nation's World Intellectual Property Organization reacted to the growing pressure from indigenous groups -- and from the national governments of the countries in which those groups were located -- by designing nine fact-finding missions covering twenty eight countries to determine the expectations and IP needs of the groups. Indigenous representatives informed WIPO officials about the obstacles to protecting their local intellectual property practices, the difficulty of documenting sacred elements of their cultures, and their struggles to curb misappropriation of indigenous expressions by American entertainment industries.
WIPO collated the respondents' assessments of specific national regimes and published a report. Some respondents favored national public royalty systems for the appropriation of indigenous cultures. Others disapproved of any system for selling access to folklore. Some favored government documentation of indigenous folklore, but others felt that that would facilitate misappropriation by providing a convenient catalog for companies seeking new cultural symbols to commoditize.
WIPO also collected local perspectives on how best to organize indigenous populations around intellectual property reform. Some suggested that local customary norms would have to adopt some of the principles of copyright law in order to take advantage of copyright protection. Others called for education/awareness programs, stronger restrictions on public access to their folklore, collective drafting of regional model laws, public funds for legal aid, or more prolonged efforts to clarify existing legal rights for indigenous communities.
Set forth below is a collection of indigenous declarations defining and seeking protection for traditional knowledge.
The Mataatua Declaration, New Zealand, 1993
One of the most notable expressions of these grievances was the Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, forged after a conference in June of 1993. The conference was hosted by the nine tribes of Mataatua in New Zealand. Over 150 delegates from fourteen countries attended.
The Declaration proclaimed that indigenous groups were the exclusive owners and primary beneficiaries of indigenous knowledge and folklore, and that all forms of misappropriation, whether discriminatory depiction or commercial exploitation, "must cease."
The Declaration provided suggestions for indigenous groups across the world, which was an essential element to mobilizing a globally dispersed political base. In a section labeled "Recommendations," indigeneous groups were instructed to define their own intellectual property practices and develop a code for external users to observe which included sanctions for misuse.
The Declaration also demanded that individual national governments recognize indigenous groups as the keepers of their cultural expressions and legally recognize multi-generational, cooperative, collective ownership over culturally significant items.
Kari-Oca Declaration and the Indigenous People's Earth Charter, 1992
At a meetings in Brazil and Indonesia in 1992, indigenous groups from Asia, Africa, Europe and the Pacific promulgated the Kari-Oca Declaration and the Indigenous People's Earth Charter. The section on culture, science and intellectual property, declares that:
- Material culture is being used by the nonindigenous to gain access to our lands and resources, thus destroying our cultures.
- Most of the media at this conference were only interested in the pictures which will be sold for profit. This is another case of exploitation of indigenous peoples. This does not advance the cause of indigenous peoples.
- As creators and carriers of civilizations which have given and continue to share knowledge, experience, and values with humanity, we require that our right to intellectual and cultural properties be guaranteed and that the mechanism for each implementation be in favour of our peoples and studied in depth and implemented. This respect must include the right over genetic resources, genebanks, biotechnology, and knowledge of biodiversity programs.
- We should list the suspect museums and institutions that have misused our cultural and intellectual properties.
- The protection, norms, and mechanisms of artistic and artisan creation of our peoples must be established and implemented in order to avoid plunder, plagiarism, undue exposure, and use.
- When indigenous peoples leave their communities, they should make every effort to return to the community.
- In many instances, our songs, dances, and ceremonies have been viewed as the only aspects of our lives. In some instances, we have been asked to change a ceremony or a song to suit the occasion. This is racism.
- At local, national, and international levels, governments must commit funds to new and existing resources to education and training for indigenous peoples, to achieve their sustainable development, to contribute and to participate in sustainable and equitable development at all levels. Particular attention should be given to indigenous women, children, and youth.
- All kinds of folkloric discrimination must be stopped and forbidden.
Santa Cruz de la Sierra Statement on Intellectual Property, Bolivia, 1994
The Coordinating Body of the Indigenous Peoples of the Amazon Basin (COICA) organized the International Consultation on Intellectual Property Rights and Biodiversity held at Santa Cruz de la Sierra, Bolivia in September 1994. The COICA Statement echoed the self determination theme of the Mataatua Declaration. It declares that
"For members of indigenous peoples, knowledge and determination of the use of resources are collective and intergenerational. No ... individuals or communities, nor the Government, can sell or transfer ownership of [cultural] resources which are the property of the people and which each generation has an obligation to safeguard for the next."
"Work must be conducted on the design of a protection and recognition system which is in accordance with ... our own conception, and mechanisms must be developed ... which will prevent appropriation of our resources and knowledge."
"There must be appropriate mechanisms for maintaining and ensuring the right of Indigenous peoples to deny indiscriminate access to the [cultural] resources of our communities or peoples and making it possible to contest patents or other exclusive rights to what is essentially Indigenous."
Julayinbul Statement on Indigenous Intellectual Property Rights, Australia, 1993
The Conference on Cultural and Intellectual Property held at Jingarrba adopted the Julayinbul Statement on Indigenous Intellectual Property Rights. The declaration reaffirms the right of Indigenous Peoples and Nations "to define for themselves their own intellectual property, acknowledging ... the uniqueness of their own particular heritage ...." It states that "Aboriginal intellectual property, within Aboriginal Common Law, is an inherent, inalienable right which cannot be terminated, extinguished, or taken ... Any use of the intellectual property of Aboriginal Nations and Peoples may only be done in accordance with Aboriginal Common Law, and any unauthorised use is strictly prohibited."
Action by Indigenous Groups to protect TK
In addition to agitating for legal change, indigenous groups have recently begun to act -- sometimes on their own, sometimes with the aid of other organizations -- to protect their traditional knowledge. Some examples follow.
Training about IP Rights and Technology Uses
In 2008, two members of a Maasai community from Laikipia, Kenya and an expert from the National Museums of Kenya traveled to the American Folklife Center (AFC) and the Center for Documentary Studies (CDS) in the United States for intensive, hands-on training in documentary techniques and archival skills necessary for effective community-based cultural conservation. WIPO provided IP training. In August 2009, WIPO provided the Maasai community in Kenya with digital technology to record their cultural heritage. WIPO trained attendees, providing them with requisite technical skills, a digital camera, sound recording equipment and a laptop to document and digitize their cultural heritage on an on-going basis.
Contracting IP Rights at The Garma Festival, Gulkula, Australia
The Garma Festival is a celebration of the Yolngu cultural inheritance. Regarded as Australia's most significant Indigenous cultural exchange event, the Garma Festival attracts clan groups from northeast Arnhem Land, as well as representatives from clan groups and neighbouring Indigenous peoples throughout Arnhem Land, the Northern Territory and Australia. Garma is organised by the Yothu Yindi Foundation, a not-for-profit Aboriginal charitable corporation. All attendance fees and other revenues received go to the operation of the Foundation's programs and projects, such as Garma, to achieve the following outcomes:
- Encouraging and developing economic opportunities for Yolngu through education, training, employment and enterprise development
- Sharing knowledge and culture, thereby fostering greater understanding between indigenous and non-indigenous Australians
- Nurturing and maintaining of Yolngu cultural traditions and practices
Garma Festival organizers require that attendees sign the General Authority to Make a Record of the Festival contract if attendees seek to take photographs or make any other recording of the event. It is inappropriate to take any photographs of Yolngu without first seeking the permission of a senior elder.
Seeking Consent from the Sto:lo Nation for use of Cultural Heritage
Sto:lo Nation Heritage Policy requires users of Sto:lo Nation cultural heritage to seek consent from the Nation and to give proper attribution. It prohibits users from misrepresenting their affiliation with Sto:lo Nation. The policy allows for the fair use of excerpts of cultural heritage (except for property that is confidential, secret, or private) if the heritage is used for educational, informational, commentary, or purposes other than profit, as long as the Stó:lo owner is properly referenced. Prior consent is still encouraged for this use, but is not required.
Using Trademarks to protect TK
The Gab Titui Cultural Centre, Thursday Island in the Torres Strait Islands, Australia, is a public keeping place for historical Islander artifacts and traditional and modern art. It has registered a trademark for Torres Straits cultural material. (AU Trade Mark number 994221)
The Silver Hand Program in Alaska, US, uses the Silver Hand Logo and tag to promote authentic Alaskan Native art made in the state. A permit to use the tag is awarded for two years from the date issued and must be renewed every two years to remain active. Only full-time residents of Alaska over the age of 18, who can verify Alaska Native tribal enrollment and who produce art exclusively in the state, are eligible for the seal. Only original artwork, not reproductions, may be identified with the Silver Hand seal.
In 1999, the Pauktuutit Inuit Women’s Association of Canada sought to protect their intellectual property rights in the amauti, a traditional Inuit women's parka. The effort was provoked by a visit to the western arctic by a representative from Donna Karan, NY, a fashion designer, who was seeking inspiration for the 2000 fashion line. The Pauktuutit Inuit Women's Association mobilized a media and letter writing campaign to prevent what they saw as a misappropriation of Inuit culture. The plan to protect the amauti involved three stages. First, they sought the thoughts and opinions of the key stakeholders — Inuit clothing producers. This was completed in May 2001 at a workshop in Rankin Inlet, Nunavut. The second stage involved developing a national inventory or registry to recognize all the seamstresses and designers and to document regional variations in designs. The third stage envisioned an association of manufacturers who will share a trademark or mark of authenticity that will guarantee consumers that they are buying true handcrafted products. As of Feb. 18, 2010, no trademark mentioning Amauti was located on the Canadian Intellectual Property Office Trademark Database, but the project appears to be ongoing.