Indigenous intellectual property

Indigenous intellectual property is an umbrella legal term used in national and international forums to identify indigenous peoples' claims of collective intellectual property rights to protect specific cultural knowledge of their groups.

It is a concept that has developed out of predominantly western concepts of intellectual property law, and has most recently been promoted by the World Intellectual Property Organization, as part of a more general United Nations push to see the world's indigenous, intangible cultural heritage better valued and better protected against perceived, ongoing mistreatment.

Nation states across the world have experienced difficulties reconciling local indigenous laws and cultural norms with a predominantly western legal system, in many cases leaving indigenous peoples' individual and communal intellectual property rights largely unprotected. Therefore, international bodies such as the United Nations have become involved in the issue, making more specific declarations that intellectual property also includes cultural property such as historical sites, artefacts, designs, ceremonies, and performing arts in addition to artwork and literature.

Traditional cultural expressions

The phrase "traditional cultural expressions" is used by the World Intellectual Property Organization to refer to "any form of artistic and literary expression in which traditional culture and knowledge are embodied. They are transmitted from one generation to the next, and include handmade textiles, paintings, stories, legends, ceremonies, music, songs, rhythms and dance."

Traditional cultural expressions can include designs and styles, which means that applying traditional Western-style international copyright laws – which apply to a specific work, rather than a style – can be problematic. Indigenous customary law often treats such concepts differently, and may apply restrictions upon the use of underlying styles and concepts.

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), September 2007

Main article: Declaration on the Rights of Indigenous Peoples

United Nations General Assembly 2003

At the United Nation's General Assembly's 61st session, on 13 September 2007, an overwhelming majority of members resolved to adopt the United Nations Declaration on the Rights of Indigenous Peoples. Regarding the intellectual property rights of indigenous peoples, the General Assembly recognized "..the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies...;" reaffirmed "...that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples...;" and solemnly proclaimed as an agreed standard for member nations around the world:

United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), September 2007

Main article: Declaration on the Rights of Indigenous Peoples

United Nations General Assembly 2003

At the United Nation's General Assembly's 61st session, on 13 September 2007, an overwhelming majority of members resolved to adopt the United Nations Declaration on the Rights of Indigenous Peoples. Regarding the intellectual property rights of indigenous peoples, the General Assembly recognized "..the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies...;" reaffirmed "...that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples...;" and solemnly proclaimed as an agreed standard for member nations around the world:

Article 11: Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.

States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 24: Indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals...

Article 31: Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights."

Organizations working on the issue

The Native American Rights Fund (NARF) has set out several goals around treaty law and intellectual property, with board member Professor Rebecca Tsosie stressing the importance of these property rights being held collectively, not by individuals:

The long-term goal is to actually have a legal system, and certainly a treaty could do that, that acknowledges two things. Number one, it acknowledges that indigenous peoples are peoples with a right to self-determination that includes governance rights over all property belonging to the indigenous people. And, number two, it acknowledges that indigenous cultural expressions are a form of intellectual property and that traditional knowledge is a form of intellectual property, but they are collective resources – so not any one individual can give away the rights to those resources. The tribal nations actually own them collectively.

The Native American Rights Fund (NARF) has set out several goals around treaty law and intellectual property, with board member Professor Rebecca Tsosie stressing the importance of these property rights being held collectively, not by individuals.

The long-term goal is to actually have a legal system, and certainly a treaty could do that, that acknowledges two things. Number one, it acknowledges that indigenous peoples are peoples with a right to self-determination that includes governance rights over all property belonging to the indigenous people. And, number two, it acknowledges that indigenous cultural expressions are a form of intellectual property and that traditional knowledge is a form of intellectual property, but they are collective resources – so not any one individual can give away the rights to those resources. The tribal nations actually own them collectively.

A history of claims and declarations regarding Indigenous Intellectual Property

A number of Native American and First Nations communities have issued tribal declarations over the past 35 years. In the lead up to and during the United Nations International Year for the World's Indigenous Peoples (1993), then during the following United Nations Decade of the World's Indigenous Peoples (1995–2004), a number of conferences of both Indigenous and non-Indigenous specialists were held in different parts of the world, resulting in a number of unified declarations and statements identifying, explaining, refining, and defining "indigenous intellectual property" though these statements have not been found to have legal weight.

Intertribal coalitions in North America

Since the 1970s, Intertribal groups in North American have organized demonstrations against non-Native use of Native American cultural elements; such as the sale of products and services allegedly derived from Indigenous knowledge:

Before ceremonies and ceremonial knowledge were affirmed as protected intellectual property by the U.N. General Assembly, smaller coalitions of Indigenous cultural leaders met to issue declarations about protection of ceremonial knowledge. In 1980, spiritual leaders of the Northern Cheyenne, Navajo, Hopi, Muskogee, Chippewa-Cree, Haudenosaunee and Lakota Nations met on the Northern Cheyenne Reservation in Montana, and issued a resolution that:

These [non-Native] individuals are gathering non-Indian people as followers who believe they are receiving instructions of the original people. We, the Elders and our representatives sitting in Council, give warning to these non-Indian followers that it is our understanding this is not a proper process, that the authority to carry these sacred objects is given by the people...

The first international congress of the International Society of Ethnobiology involving scientists, environmentalists and Indigenous peoples met at Belém, Brazil. They identified themselves collectively as 'ethnobiologists', and announced that (amongst other matters) since "Indigenous cultures around the world are being disrupted and destroyed."

The Kari-Oca Declaration and charter was first affirmed in Brazil in May 1992, and then re-affirmed in Indonesia, in June 2002. Ratifying the document were Indigenous peoples from the Americas, Asia, Africa, Australia, Europe and the Pacific who, at Kari-Oca Villages, united in one voice to collectively express their serious concern at the way the world was exploiting the natural resources upon which indigenous peoples depend. Specific reference is made within the Indigenous Peoples Earth Charter to perceived abuses of indigenous people's intellectual and cultural properties. Under the heading,"Culture, Science and Intellectual Property", amongst other matters, it is asserted: At the Lakota Summit V, an international gathering of US and Canadian Lakota, Dakota and Nakota Nations, about 500 representatives from 40 different tribes and bands of the Lakota unanimously passed a "Declaration of War Against Exploiters of Lakota Spirituality." Representatives affirmed a zero-tolerance policy on the exploitation of Lakota, Dakota and Nakota ceremonial knowledge.

On 18 June 1993, 150 delegates from fourteen countries, including indigenous representatives from Japan (Ainu), Australia, Cook Islands, Fiji, India, Panama, Peru, Philippines, Surinam, United States and Aotearoa (New Zealand) met at Whakatane (Bay of Plenty region of New Zealand). The assembly affirmed Indigenous peoples' knowledge is of benefit to all humanity; recognised Indigenous peoples are willing to offer their knowledge to all humanity provided their fundamental rights to define and control this knowledge is protected by the international community; insisted the first beneficiaries of Indigenous knowledge must be the direct Indigenous descendants of such knowledge; and declared all forms of exploitation of Indigenous knowledge must cease.

Julayinbul Aboriginal Intellectual Property Conference Logo (1993)

The Julayinbul Statement on Indigenous Intellectual Property Rights arose out of a meeting of Indigenous and non-Indigenous specialists, who, at Jingarrba, in north-eastern Australia, agreed Indigenous intellectual property rights are best determined from within the customary laws of the Indigenous groups' themselves. Within the declaration, Indigenous customary laws are (re)named 'Aboriginal common laws', and it is insisted these laws must be acknowledged and treated as equal to any other systems of law:

In 1994 a number of Native American tribal organizations demanded that museums remove certain materials from exhibition and access to the public. They cited the Native American Graves Protection and Repatriation Act (NAGPRA) as the legal basis for these complaints. Their position was that they would only permit such uses selectively and with express permission of the living relatives of the human remains and grave goods the museums wished to exhibit. Vernon Masayesva, CEO of the Hopi Tribe, and a consortium of Apache tribes demanded a number of American museums end all public exhibition of, and access to, materials from their tribal cultures; including "images, text, ceremonies, music, songs, stories, symbols, beliefs, customs, ideas, concepts and ethnographic field-notes, feature films, historical works, and any other medium in which their culture may appear literally, imagined, expressed, parodied or embellished."

In 1994, a regional meeting was held at Santa Cruz de la Sierra, Bolivia where indigenous peoples from the South America's concerned about the way internationally prevailing intellectual property systems and regimes appeared to be favouring the appropriation of indigenous peoples' knowledge and resources for commercial purposes, agreed: In 1995, Indigenous People of Asia met at Tambunan, Sabah, East Malaysia, to assert rights of self-determination, and to express concern about, and fear of, the threat unfamiliar 'western' intellectual property rights systems may pose to them. Also in 1995, Participants from the independent countries and "nonautonomous colonised territories" of the Pacific region met in Suva, Fiji to discuss internationally dominant intellectual property rights regimes, and at that meeting they resolved to support the Kari Oca, Mataatua, Julayinbul, Santa Cruz de la Sierra, and Tambunan initiatives. In particular participants: In 2002, Indigenous people from around the world attended an international indigenous peoples' summit on sustainable development in Khoi-San Territory, Kimberley, South Africa, where they reaffirmed previous declarations and statements (above), and, among other matters, declared that "traditional knowledge systems must be respected, promoted and protected; our collective intellectual property rights must be guaranteed and ensured. Our traditional knowledge is not in the public domain; it is collective, cultural and intellectual property protected under our customary law. Unauthorized use and misappropriation of traditional knowledge is theft.

Māori

Ka Mate haka

Te Rauparaha, alleged composer of Ka Mate.

Main article: Ka Mate

Since the 19th century, Māori-style Hakas have been popularly-used by New Zealanders as a cheer at sporting events; especially for New Zealand national teams. Between 1998 and 2006, the Ngāti Toa iwi attempted to trademark the Ka Mate haka and to forbid its use by commercial organisations without their permission. The Intellectual Property Office of New Zealand turned their claim down in 2006, since Ka Mate had achieved wide recognition in New Zealand and abroad as representing New Zealand as a whole and not a particular trader. In 2009, as a part of a wider settlement of grievances, the New Zealand government agreed to:

"...record the authorship and significance of the haka Ka Mate to Ngāti Toa and ... work with Ngāti Toa to address their concerns with the haka... [but] does not expect that redress will result in royalties for the use of Ka Mate or provide Ngāti Toa with a veto on the performance of Ka Mate...".

However, a survey of nineteenth-century New Zealand newspapers found Ka Mate was used by tribes from other parts of New Zealand, and was generally described by them as being an ancient peacekeeping song, from eras long before the tribal origination claimed by Ngāti Toa chief Te Rauparaha. When Ngāti Toa authorities were asked for evidence that Ka Mate was of Ngāti Toa authorship, they were unable to provide any.

Lego's Bionicle

In 2001 a dispute concerning the popular LEGO toy-line "Bionicle" arose between Danish toymaker Lego Group and several Māori tribal groups (fronted by lawyer Maui Solomon) and members of the on-line discussion forum (Aotearoa Cafe). The Bionicle product line allegedly used many words appropriated from Māori language, imagery and folklore. The dispute ended in an amicable settlement. Initially Lego refused to withdraw the product, saying it had drawn the names from many cultures, but later agreed that it had taken the names from Māori and agreed to change certain names or spellings to help set the toy-line apart from the Māori legends. This did not prevent the many Bionicle users from continuing to use the disputed words, resulting in the popular Bionicle website BZPower coming under a denial-of-service attack for four days from an attacker using the name Kotiate.

Cigarettes

File:Maorimix.jpg

Phillip Morris' L&M Maori Mix cigarettes

In 2005 a New Zealander in Jerusalem discovered that the Phillip Morris cigarette company had started producing a brand of cigarette in Israel called the "L & M Maori mix". In 2006, the head of Phillip Morris, Louis Camilleri, issued an apology to Māori: "We sincerely regret any discomfort that was caused to Māori people by our mistake and we won't be repeating it."

See also

• Biopiracy and Bioprospecting
• Commercialization of indigenous knowledge
• Darrell A. Posey
• Intangible Cultural Heritage
• Intellectual property
• Intellectual property issues in cultural heritage (IPinCH)
• Traditional knowledge
• Cultural appropriation

References

Bibliography

• DODSON, Michael (2007). "Report of the Secretariat on Indigenous traditional knowledge" (PDF). Report to the United Nation's Economic and Social Council's Permanent Forum on Indigenous Issues, Sixth Session, New York, 14–25 May. United Nation's Economic and Social Council. New York. Retrieved 28 November 2007.
• DRAHOS, Peter (2001). "The Universality of Intellectual Property Rights: Origins and Development". World Intellectual Property Organization. Geneva. Archived from the original (DOC) on 2 December 2007. Retrieved 28 November 2007. {{cite web}}: Unknown parameter |dead-url= ignored (|url-status= suggested) (help)
• JONES, Peter (2008). "Intellectual Property, Indigenous Peoples, and the Law". Indigenous Peoples, Issues & Resources Website. Retrieved 24 May 2010.
• UNITED NATIONS GENERAL ASSEMBLY (2007). "United Nations Declaration on the Rights of Indigenous Peoples" (PDF). United Nations General Assembly. Archived from the original (PDF) on 11 February 2009. Retrieved 26 November 2007. {{cite web}}: Unknown parameter |dead-url= ignored (|url-status= suggested) (help)
• WORLD INTELLECTUAL PROPERTY ORGANISATION (2001). "Intellectual Property Needs and Expectations of Traditional Knowledge Holders:". WIPO Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1998–1999). World Intellectual Property Organization. Geneva. Archived from the original on 12 February 2006. Retrieved 28 November 2007. {{cite web}}: Unknown parameter |dead-url= ignored (|url-status= suggested) (help)

External links

• WIPO Database of Indigenous Intellectual Property Codes, Guidelines, and Practices
• Indigenous Peoples and Intellectual Property: Resource Database
• Intellectual property issues in cultural heritage
• Protecting Indigenous Traditional Cultural Expressions