Indigenous intellectual property

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Indigenous intellectual property is an umbrella legal term used in national and international forums to identify indigenous peoples' special rights to claim (from within their own laws) all the indigenous groups knowledge.^[1]

It is a concept that has developed out of a predominantly western legal tradition, and has most recently been promoted by the World Intellectual Property Organisation, as part of a more general United Nations push ^[2] to see the diverse wealth of this world's indigenous, intangible cultural heritage better valued and better protected against perceived, ongoing thievery.^[3]

Nation states across the world have difficulties reconciling locally indigenous traditions, laws and cultural norms with predominantly western legal systems, effectively leaving indigenous peoples' individual and communal intellectual property rights largely unprotected.^[4]

Declarations regarding Indigenous Intellectual Property

In the lead up to and during the United Nations International Year for the World's Indigenous Peoples (1993)^[5] then during the following United Nations Decade of the World's Indigenous Peoples (1995–2004)^[2] a number of conferences of both indigenous and non-indigenous specialists were held in different parts of the world, resulting in a number of declarations and statements identifying, explaining, refining, and defining 'indigenous intellectual property'.^[6] Declarations and statements from these conferences include:

Declaration of Belem

(Brazil July 1988)

The first international congress of the International Society of Ethnobiology involving anthropologists, biologists, chemists, sociologists, and indigenous peoples at Belem identifying themselves collectively as 'ethnobiologists', announced that (amongst other matters) since "Indigenous cultures around the world are being disrupted and destroyed.":

"Mechanisms [ought to] be established by which indigenous specialists are recognized as proper Authorities and are consulted in all programs affecting them, their resources and their environment"

"Procedures must be developed to compensate native peoples for the utilization of their knowledge and their biological resources"^[7]

Kari-Oca Declaration and Indigenous Peoples Earth Charter

(Brazil, May 1992; reaffirmed in Indonesia, June 2002)

This is a declaration and a charter first agreed in May 1992 by 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.^[8] Under a heading,"Culture, Science and Intellectual Property", amongst other matters, it is asserted:^[9]

"99. The usurping of traditional medicines and knowledge from Indigenous peoples should be considered a crime against peoples .."

"102. 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 mechanisms for each be in favour of our peoples .."

"104. The protection, norms and mechanism of artistic and artisan creation of our peoples must be established and implemented in order to avoid plunder, plagiarism, undue exposure, and use.."^[10]

Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples

(Aotearoa / New Zealand, June 1993)

On 18 June 1993, 150 delegates from fourteen countries, including indigenous representatives from Japan (Ainu), Australia, Cook Islands, Fiji, India, Panama, Peru, Philippines, Surinam, USA and Aotearoa (New Zealand) meeting at Whakatane (Bay of Plenty region of New Zealand): 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; declared all forms of exploitation of Indigenous knowledge must cease.

Under Section 2 of their declaration they specifically ask State, National and International Agencies to:^[11]

"2.1 Recognise that Indigenous peoples are the guardians of their customary knowledge and have the right to protect and control dissemination of that knowledge.'

"2.2 Recognise that indigenous peoples also have the right to create new knowledge based on cultural tradition"

"2.3 Accept that the cultural and intellectual property rights of Indigenous peoples are vested with those who created them."^[10]

Julayinbul Statement on Indigenous Intellectual Property Rights

(Australia, November 1993)

This declaration 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.^[12] 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:^[13]

"..Indigenous Peoples and Nations reaffirm their right to define for themselves their own intellectual property, acknowledging ..the uniqueness of their own particular heritage.."

"..Indigenous Peoples and Nations .. declare that we .. are willing to share [our intellectual property] with all humanity provided that our fundamental rights to define and control this property are recognised by the international community.."

"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."^[10][14]

Santa Cruz de la Sierra Statement on Intellectual Property

(Bolivia, September 1994)

A regional meeting was held at Santa Cruz de la Sierra 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:^[15]

"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."^[15]

Tambunan Statement on the Protection and Conservation of Indigenous Knowledge

(Sabah, East Malaysia. February 1995)

Indigenous people of Asia met at Tambunan, 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. It was agreed:^[16]

"For the Indigenous peoples of Asia, the intellectual property rights system is not only a very new concept but it is also very western........[W]ith [western style] intellectual property property rights, alien laws will be devised to exploit the Indigenous knowledge and [cultural] resources of the Indigenous peoples."

"The [western] intellectual property rights system and the (mis)appropriation of Indigenous knowledge without the prior knowledge and consent of Indigenous peoples evoke feelings of anger, or being cheated"

"Indigenous peoples are not benefiting from the intellectual property rights system. Indigenous knowledge and [cultural] resources are being eroded, exploited and/or appropriated by outsiders in the likes of transnational corporations, institutions, researchers, and scientists who are after profits and benefits gained.."

"For indigenous peoples, life is a common property which cannot be owned, commercialized, and monopolised...Based on this world view, Indigenous peoples find it difficult to relate [western] intellectual property rights .. to their daily lives.."^[16]

Suva Statement on Indigenous Peoples Knowledge and Intellectual Property Rights

(Suva, Fiji, April 1995)

Participants from the independent countries and "nonautonomous colonised territories" of the Pacific region met in Suva 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^[17](above). In particular participants:^[17]

"Reaffirme[d] that imperialism is perpetuated through [western] intellectual property rights systems.."

"Declar[ed] Indigenous peoples are willing to share our knowledge with humanity provided we determine when, where and how it is used: at present the international system does not recognise or respect our past, present and potential contribution.."

"Seek[s] repatriation of Indigenous peoples [cultural] resources already held in external collections, and seek[s] compensation and royalties from commercial developments resulting from these resources"

"..encourage[s] .. governments .. to protest against any General Agreement on Tariffs and Trade provisions which facilitate the expropriation of Indigenous peoples' knowledge and resources..[to instead] incorporate the concerns of Indigenous peoples .. into legislation ..

"[Seek to] Strengthen the capacities of Indigenous peoples to maintain their oral traditions, and encourage initiatives by Indigenous peoples to record their knowledge .. according to their customary access procedures."

"Urge universities, churches, government, non-government organizations, and other institutions to reconsider their roles in the expropriation of Indigenous people's knowledge and resources and to assist in their return to their rightful owners."^[17]

Kimberley Declaration

(Kimberley, South Africa August 2002)

Here indigenous people from around the world attending an international indigenous peoples' summit on sustainable development met on Koi-San Territory, where they reaffirmed previous declarations and statements (above), and, amongst other matters, declared:

"Our 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."^[10]

United Nations Declaration on the Rights of Indigenous Peoples

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.^[18]

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..";^[19] reaffirmed ".. that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples..";^[20] 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."^[21]

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..."^[22]

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."^[22]

Examples of Indigenous peoples defending their intellectual property

Māori

Ka Mate haka

Between 1998 and 2006, the Ngati Toa iwi attempted to trademark the Ka Mate haka and to forbid its use by commercial organisations without their permission.^[23][24] 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.^[25] In 2009, as a part of a wider settlement of grievences, 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...".^[26][27]

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 its appropriation by the Ngati Toa chief Te Rauparaha. When Ngati Toa authorities were asked for evidence that Ka Mate was of Ngati Toa authorship, they were unable to provide any.^[28]

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.^[29]

"Māori" 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".^[30] 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."^[31]

Hopi & Apache Opt Out From American Museums

In 1994 a couple of Native American tribes ordered a number of museums to close their intellectual property to the public. They were backed by the NAGPRA.They would disclose their property only after permission was requested directly to them. Vernon Masayesva, CEO of the Hopi Tribe, and a consortium of Apache tribes demanded a number of American museums the closure of their 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."^[32]

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

References

Notes

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 2007-11-28. 

• DRAHOS, Peter (2001). "The Universality of Intellectual Property Rights: Origins and Development" (DOC). World Intellectual Property Organisation. Geneva. Retrieved 2007-11-28. 

• FARAH, Paolo and CIMA, Elena (2010), "China’s Participation in the World Trade Organization: Trade in Goods, Services, Intellectual Property Rights and Transparency Issues" in Aurelio Lopez-Tarruella Martinez (ed.), El comercio con China. Oportunidades empresariales, incertidumbres jurídicas, Tirant lo Blanch, Valencia (Spain), pp. 85–121. ISBN 978-84-8456-981-7. Available at SSRN.com

• JONES, Peter (2008). "Intellectual Property, Indigenous Peoples, and the Law". Indigenous Peoples, Issues & Resources Website. Retrieved 2010-05-24. 

• UNITED NATIONS GENERAL ASSEMBLY (2007). "United Nations Declaration on the Rights of Indigenous Peoples" (PDF). United Nations General Assembly. Retrieved 2007-11-26. 

• 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 Organisation. Geneva. Retrieved 2007-11-28. 

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

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