Intellectual property is an economic instrument that no longer serves the purpose of advancing society.
I. IntroductionIt is established in western or European society that intellectual property rights are an economic instrument. They were instituted for and used to promote the economic exploitation of ownership of things, ideas and concepts. They are arranged to give the creator, inventor or owner exclusive rights over the use and exploitation of their labour or creation for a specified period of time. The aims of the some of the earliest conventions on IP rights, like the
Paris Convention,
[1] were for the commercial exploitation of the subject matter and to ensure that the creator got their just rewards. It is framed as a balance between the rights of the inventor to own and exploit their idea, and the rights of society to encourage creativity and innovation.
But at what cost? On the question of Traditional Cultural Expressions (TCEs), are IP right able to adequately compensate the indigenous cultures who have been exploited for the loss of their sacred dances or secret lore? Are IP rights able to protect these TCEs from exploitation by members not of the culture they belong to? The two functions of IP rights as outlined above, exclusive monopoly and economic exploitation, do not neatly align with TCEs.
What are TCEs? TCEs are 'also called "expressions of folklore",' and they 'may include music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions.'
[2] In short, they are the fabric of a society and a culture. Given the considered content of TCEs, they most often come into conflict with trade mark and copyright laws. While the intrinsic value of traditional knowledge, systems and the rights of indigenous cultures are recognised in instruments such as the
Convention on Biological Diversity 1992,
[3] the
United Nations Declaration on the Rights of Indigenous Peoples,
[4] it is difficult to see how these interests have been upheld in an economic and property sense.
Many traditional cultures and societies do not have a concept of ownership of things that is amendable to intellectual property protection or economic exploitation. Are these traditional cultures interested in the economic exploitation of their TCEs? Is the exploitation of folklore beneficial for the cultures that are exploited? For example, with Moana and Polynesian culture, is this a means of sharing, raising awareness of and preserving a culture, or elements TCEs of that culture, or misinterpreting them, white washing them and exploiting them?
Further, the current intellectual property schema does not provide protection of these things without some method of enforcement, again often costly for exploited indigenous cultures. Who has the economic power to take on the Disney Corporation to protect traditional cultural expression as represented in a movie, or television program? Many countries have instituted or adopted verbiage into their existing IP regimes for the protection of TCEs, but are these measures sufficient, broad and effective? As a global society that is learning and developing, the mechanisms are or are not serving the purpose of advancing society. Is limiting and restricting TCEs the best approach or is there an alternative way of preserving but sharing this knowledge?
II. Intrinsic Value of TCEsOne of the first questions to consider is "What is the value of TCEs?". As noted above and to be discussed below, TCEs have an intrinsic value to the cultural communities. But do they also have a dollar value? Torsen and Anderson note that "TCEs are both cultural and economic assets of the people and communities who are their creators, practitioners and custodians. TCEs can be economic resources that concretely contribute to livelihoods and easing poverty and socio-economic disadvantage for these communities…"
[5] There can be very real value to communities who are successful in defending their rights in TCEs for economic exploitation. The growth of the market for dreamcatchers, traditionally made by the Ojibwe people
[6] and then traded amongst neighbouring nations, have now become not only "pan-Indian" but are now available as jewellery or house décor available at Kmart.
[7] There is an obvious tension between economic exploitation of TCEs and their maintenance of intrinsic value whilst also providing commercial benefit to their community. "Although all communities may not necessarily adopt a proprietary approach to their TCEs, they nevertheless are opposed to the unauthorized use of their TCEs…and all the more so when it is for commercial purposes or is derogatory in nature."
[8] It seems clear to the author that the Objiwe people would probably like some of the money collected by Kmart in the sale of their TCEs. Additionally, that money would be of use to the other Indian Nations who use dream-catchers due to cultural exchange and pre-European trade. As Thorsen and Anderson state, "TCEs are the result of centuries-old cultural exchange, thus making the borders between what is owned by one cultural community, as opposed to another, difficult to determine."
[9] Again, here, if not the example of dreamcatchers, the example of Maui is illustrative as Maui is an important mythological figure across many Polynesian cultures. To whom should economic benefit or exploitation rights in Maui go to?
So, then the question becomes "Who should benefit from the protection of TCEs?"
Identification of the owners of TCEs can often be difficult. As noted above, they often arise from centuries long cultural exchange and many iterations of the same cultural property can be found. Cultural artefacts are owned by the culture at large, but due to colonisation and imperialism, the members of these cultures can sometimes be difficult to identify. Further, there is tension between the economic value of TCEs and the cultural value from the perspective of cultural sharing. Museums and other cultural institutions have to grapple with the artefacts they have in their possession and the respectful sharing of these in contrast to the ownership of the cultural groups. Vezina remarks on this tension, stating:
cultural institutions lie at the tensed junction of various stakeholders' needs and interests: on the one hand, creators, researchers, scholars, and the broader public wish to access, study, share, use, re-use, and re-create traditional cultural heritage held within the rich and varied collections of cultural institutions. On the other hand, indigenous peoples wish to prevent the misappropriation of their cultures. The difficulty for cultural institutions rests in finding an equitable balance between those eclectic and sometimes conflicting claims and interests.
[10]The duty of these cultural institutions is vexed, given the sensitivities in relation to the exploitation of vulnerable cultures and populations. In light of these competing considerations of notions of ownership, identification of owners and other stakeholders, the focus then turns to whether IP rights can provide appropriate protection to TCEs.
III. IP FrameworksAs existing IP protections such as patents and trademarks give rights that can be assigned, willed, sold, licenced, or otherwise dealt with by the owner, IP rights are necessarily individual rights (either to an individual person or to an individual body corporate). As noted above, traditional knowledge and cultural expressions are not something that are capable of private ownership for several reasons. Firstly, private property rights are assigned to individuals or incorporated entities. Secondly, culture is not static and point in time; and thirdly, that many indigenous cultures do not share the same concept of private property rights as western nations. Under these considerations, it would seem that IP protection is not the appropriate mechanism for protecting TCEs.
Drahos advocates a 'developmental network'
[11] for shared ownership of cultural assets across networks of people, such as cooperatives or associations. Torsen and Anderson note that "As international IP law was born in a very specific cultural context, it does not recognize indigenous or traditional customary laws relating to the ownership and management of cultural knowledge and property."
[12] Certification and collective trademark as well as labels of authenticity have also been used by indigenous communities in, for example, Tonga, Panama and New Zealand to curb the sale of fake traditional creative arts.
[13] In Australia, collective and certification trade mark registrations are available but are infrequently used. Janke notes the imitations on trade mark registration such as the requirement to "be used in the course of trade may not be appropriate for general protection."
[14] In New Zealand, the
Trade Marks Act[15] has been amended to prevent the registration of trade marks that might be considered offensive by a significant section of the community, including Māori.
[16] Any marks that fall under this provision must be reviewed by the Māori Advisory review board before acceptance.
[17] This represents a concrete step forward for a developed nation to protect its TCE. However, this amendment merely prevents the registration of Māori marks, and not the general use without registration, or denial of registration for non-offensive applications. The TCEs and the Māori language are only protected so far as they would be found offensive, not generally protected.
[18] This is one example of a proactive action to protect TCEs from economic exploitation, but also highlights the limitations of registration systems. Trade mark searches of various national registers show very little care for the meaning of trade marks as to indigenous cultures or religions.
[19] In Canada, Indigenous groups are utilising a loop hole to make use of the "official mark" trade mark provisions to protect their cultural expressions. Under the Canadian Trade Mark law, the official mark provisions prohibit registration of trade marks consisting of, or similar to, "any badge, crest, emblem or mark, adopted and used by any public authority, in Canada as an official mark for wares and services."
[20] By holding themselves out as a public authority, Indigenous groups are able to protect their rights under Canadian Trade Mark law and have their words registered under this provision, for example the Snuneymuxw First Nation registered marks for petroglyph rock carvings.
[21]Most IP registration systems require the work to be in some kind of tangible form, which can make recording and registering each instance of a TCE to be long and difficult. Franklin suggests that:
Instead of a complex and time-consuming process of having to clear rights item by item, a better approach would be an exception to copyright law that would permit indigenous peoples to include these works in their traditional digital library, regardless of the copyright holder.
[22]There are also restrictions on the WIPO ideal of TCEs where there exists the idea that the expression must be "the concrete product of intellectual activity; it must be characteristic of the community's social identity; and it must be part of the community's heritage."
[23] This places limits on what would be considered TCEs under this definition and therefore available for protection.
The limits on the protection mechanisms can also be seen in the examples of attempts for enforcement. The reality of IP registration systems and regimes require creative and imaginative enforcement strategies in order to ensure that the rights claimed fit under the existing regimes.
IV. Examples of TCEs and ProtectionOne example of TCEs is the use of a sample of traditional Amis
[24] song in the 1996 Olympic Games song, 'Return to Innocence.'
[25] The traditional Amis song, 'Jubilant Drinking Song' was originally recorded as part of an effort to preserve Amis culture and was then reproduced in various compilations of traditional music and then later used by Enigma, a German music group, in their song which became the anthem of the 1996 Olympic Games. 'Return to Innocence' stayed for thirty-two weeks in the Billboard magazine's Top 100 chart and eventually more than six million copies of the album were sold.
[26] The original performers, the Kuos, Kuo Ying-nan and Kuo Hsiuo-chu, had no idea that their music was being heard around the world, and they were disappointed that their culture was not attributed or recognised for their music. A lawsuit was filed in a US District Court in 1998 however the case settled out of court.
[27] The outcome of the case was that the two performers were credited as the legal authorised copyright owners of the song. However, the Kuos believed that the recognition should go to the Amis, and not just themselves. Amis provincial assemblyman Lin Chen-er explained the outcome of this lawsuit, "This is about protecting the cultural heritage of the whole [Amis] tribe, Palang ('Jubilant Drinking Song') is a song almost every Ami[s] can sing."
[28] It was hoped that the lawsuit would generate interest the in the Amis culture and help prevent it from disappearing altogether.
[29]In the suit, the lawyers for Capitol-EMI tried to argue that because the 'Jubilant Drinking Song' was a traditional folk song, it was part of the public domain.
[30] Ultimately, the question was not tried at law as the matter settled, but Seeger noted that:
The copyright law in force today is based on a number of cultural presuppositions...the law is based on the concept of individual creativity . . . based on the idea that an individual should receive compensation . . . after which the idea may be used by anyone without paying a royalty . . . the law leaves somewhat unclear the status of arrangements of 'traditional' songs.
[31]It is clear that the tensions noted about between individual ownership under copyright law and collective ownership in traditional cultures was not resolved to any degree. Whilst the outcome of the suit was a great outcome for the Amis, it does not set a legal precedent, but more simply a moral one. Because the original performers on the recording were able to take action, that particular instance of Amis culture was able to be protected.
Similarly, the case of t-shirts depicting Australian indigenous rock art which were prevented from production due to copyright infringement was made not on the basis that the art was sacred or important to the Indigenous communities, but rather because they were taken from photographs of the rock art published in 1973.
[32] The enforcement action was taken because it was determined that due to the remote location of the rock art sites, and the restrictions from public access, it was considered that the t-shirt producer was utilising the photographs as source material and not the original rock art.
[33] The creator of the original works was unknown and long since deceased, but the Aboriginal communities were able to claim copyright with the support of E.J. Brandl's widow, Dr Brandl.
[34] Again, the matter settled through negotiation and without a conclusive legal decision.
While the case of
M*, Payunka, Marika & Others v Indofurn Pty Ltd (1994) 54 FCR 240 is one case where the copyright of the Indigenous creators was upheld by a court of law, Kirby J noted later that:
Difficulties with extending Australia's intellectual property law to the styles and nuances of the artistic creations of Aboriginal and other indigenous people of Australia suggest that there may be a need to look specifically at the express adaptation of that law to the needs of indigenous peoples so that the law can respond to the problem and not simply impose its view of what the problem is upon all people uniformly.
[35]Specifically, oral histories and expressions are unlikely to be suitable for protection under specific regimes as the case of the Amis demonstrates. Only the particular instance of that oral culture that was preserved and recorded was afforded protection, not the underlying ideas behind it.
These various cases demonstrate the limitations on the protections available through registrations systems and under existing IP laws. Rarely does a case of economic exploitation of a TCE neatly fit into an existing IP regime and offer protection through that system. It appears that these IP mechanisms do not serve the purposes of our global society.
V. ConclusionThe various existing IP regimes are unsuited for the protection of TCEs. There is an internal tension and inconsistency between the individual rights granted by IP registrations and the collective rights that indigenous communities often require for the protection of their TCEs. The current system of IP rights grants a limited period of protection to an individual or a group. Whilst collective and certification rights can be given, these are again for a limited period, before allowing properties to form part of the public domain, available for exploitation by everyone. That's almost the point of intellectual property rights, exchanging the knowledge, in the case of patent and designs, in exchange for a monopoly on the property for a limited period to time. TCEs are possibly the exact opposite. They are folklore and expressions that have existed for years and form a central part of an indigenous community and their cultural identity. There are multiple permutations of the TCEs across multiple cultures and each of these expressions experience growth and development in their cultures as they progress. Culture is rarely a static thing that stays crystallised at a point in time, and thus existing IP regimes that require this very type of crystallisation for protection are unsuited and inappropriate for this use. For the purposes of advancing society, these IP regimes do not appear to support the protection of indigenous cultures, nor the economic exploitation or protection from exploitation depending on the wishes of the traditional culture they belong to. As a global society that is learning and developing, the IP mechanisms are not serving the purpose of advancing society. It is neither protecting, supporting nor encouraging dissemination of cultures and ideas because of the lack of ability to provide that protection and prevent the exploitation by others. Traditional cultures are often happy to share and discuss elements of their culture, particularly for their preservation, but are also reluctant to do so, due to the history of cultural appropriate and exploitation for economic purposes. Unfortunately, until the general Western society moves away from hyper-capitalism and the idea that anything and everything is available for exploitation, then there are significant road blocks for IP regimes providing that protection and support.
Intellectual property acknowledges and grants rights of protection to individuals (either real people or bodies corporate). Economic exploitation under capitalism is for individuals. For the advancement of society, a more collective view of IP and of the rights granted under IP regimes is important for the fair and equitable development of the global society.
VI. BibliographyA. Books/Articles/Reports
Antons, Christoph, ed.,
Traditional Knowledge, Traditional Cultural Expressions, and Intellectual Property Law in the Asia-Pacific Region (Kluwer, 2009)
Callison, Camille, Loriene Roy and Gretchen LeChaminant, eds.,
Indigenous notions of ownership and libraries, archives and museums (De Gruyter Saur, 2016)
Chalk, Peter J and Alexander Dunlop, 'Indigenous Trade Marks and Human Rights: An Australian and New Zealand Perspective' (2009) 99(4)
The Trademark Reporter 956, 972.
Drahos, Peter, ‘Indigenous Developmental Networks and the Non-Developmental State: Making intellectual property work for indigenous people without patents’ (2014)
RegNet Working Paper, No. 39, (Regulatory Institutions Network)
Esarey, Ashley, "Loss of Innocence: An Amis Couple Seeks Recognition for their Music,"
Travel in Taiwan, (Vision International Publishing Company, 1995)
Franklin, Jonathan A., "Traditional Cultural Expressions and Cultural Institutions" in Camille Callison, Loriene Roy and Gretchen LeChaminant, eds.,
Indigenous notions of ownership and libraries, archives and museums (De Gruyter Saur, 2016) pp 75-88
Guy, Nancy, “Regaining their Voices: Music, Cultural Ownership, and the Amis’ Copyright Struggle,”
Copyright and Conceptions of Intellectual Property in Cross-Cultural Perspective, (Popular Music Section of the Society for Ethnomusicology, 1999)
Kuek, Chee Ying, 'Protection Of Expressions Of Folklore/Traditional Cultural Expressions - To What Extent Is Copyright Law The Solution?' (2005) 32
Journal of Malaysian and Comparative Law 31
Janke, Terri,
Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions (WIPO, 2003)
Johnston, Basil,
Ojibway Heritage (McClelland & Stewart, 1987)
“Lost in Music,” (4)
Far Eastern Economic Review 158 (1999)
Martinet, Lily, 'Traditional Cultural Expressions and International Intellectual Property Law' (2019) 47(1)
International Journal of Legal Information 6
Robinson, Daniel, Ahmed Abdel-Latif, Pedro Roffe, eds.,
Protecting traditional knowledge: the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resource, Traditional Knowledge and Folklore (Routledge, 2017)
Seeger, Anthony, “Ethnomusicology and Music Law,”
Ethnomusicology 36-3 (1992), 352-53
Torsen, Molly and Dr Jane Anderson,
Intellectual Property and the Safeguarding of Traditional Cultures: Legal Issues and Practical Options for Museums, Libraries and Archives, (WIPO, 2010)
Vézina, Brigitte, "Cultural Institutions and the Documentation of Indigenous Cultural Heritage" in Camille Callison, Loriene Roy and Gretchen LeChaminant, eds.,
Indigenous notions of ownership and libraries, archives and museums (De Gruyter Saur, 2016) pp. 89-106
Widyanti, Yenny Eta, 'The legal instrument of protecting traditional cultural expressions ownership in intellectual property rights law,' (2021) 21(1)
Technium Social Sciences Journal 492
Wong, Victor, “Taiwan Aboriginal Singers Settle Copyright Lawsuit,”
Billboard, July 31, 1999
Zografos, Daphne,
Intellectual Property and Traditional Cultural Expression (Edward Elgar, 2010)
B. Cases
M*, Payunka, Marika & Others v Indofurn Pty Ltd (1994) 54 FCR 240
C. Legislation
1. Canada
Trademarks Act, RSC 1985 (Canada), c T-13
2. New Zealand
Copyright Act 1994 (NZ)
Trade Marks Act 2002 (NZ)
D. Treaties
The Convention on Biological Diversity, opened for signature 5 June 1992 (entered into force 29 December 1993)
Paris Convention for the Protection of Industrial Property, signed on 20 March 1883, entered into force on 7 July 1884.
United Nations Declaration on the Rights of Indigenous Peoples, adopted on 13 September 2007
E. Other
Kmart, "88 Piece Make Your Own Dream Catcher with Journal" <https://www.kmart.com.au/product/88-piece-make-your-own-dream-catcher-with-journal/924313> accessed on 15 October 2021
The Hon Justice Michael Kirby AC CMG, "Protecting Cultural Rights - Some Developments",
United Nations Educational, Scientific and Cultural Organisation, The University of Waikato CNZJ, 12 - 13 October 1998, <http://www.hcourt.gov.au/speeches/kirbyj/culture2.htm>
World Intellectual Property Office,
Creative Heritage Project: IP guidelines for digitizing intangible cultural heritage (Geneva, 2007)
World Intellectual Property Office, "Traditional Cultural Expression", <https://www.wipo.int/tk/en/folklore/> accessed on 17 August 2021
Footnotes:
[1] Paris Convention for the Protection of Industrial Property, signed on 20 March 1883, entered into force on 7 July 1884.
[2] World Intellectual Property Office, “Traditional Cultural Expression”, <https://www.wipo.int/tk/en/folklore/> accessed on 17 August 2021.
[3] The Convention on Biological Diversity, opened for signature 5 June 1992 (entered into force 29 December 1993), Art 7.
[4] United Nations Declaration on the Rights of Indigenous Peoples, adopted on 13 September 200.
[5] Torsen, Molly and Dr Jane Anderson,
Intellectual Property and the Safeguarding of Traditional Cultures: Legal Issues and Practical Options for Museums, Libraries and Archives, (WIPO, 2010) p 14.
[6] Johnston, Basil,
Ojibway Heritage (McClelland & Stewart, 1987)
[7] Kmart, “88 Piece Make Your Own Dream Catcher with Journal” <https://www.kmart.com.au/product/88-piece-make-your-own-dream-catcher-with-journal/924313> accessed on 15 October 2021.
[8] Torsen, Anderson, above n5, p 15.
[9] Ibid, p 19.
[10] Brigitte Vézina, “Cultural Institutions and the Documentation of Indigenous Cultural Heritage” in Camille Callison, Loriene Roy and Gretchen LeChaminant, eds.,
Indigenous notions of ownership and libraries, archives and museums (De Gruyter Saur, 2016) pp. 89-106, p 100.
[11] Peter Drahos, ‘Indigenous Developmental Networks and the Non-Developmental State: Making intellectual property work for indigenous people without patents’ (2014) RegNet Working Paper, No. 39, Regulatory Institutions Network.[12] Torsen, Anderson, above n5, p 14.
[13] Torsen, Anderson, above n5, p 16.
[14] Janke, Terri,
Minding Culture: Case Studies on Intellectual Property and Traditional Cultural Expressions, (WIPO, 2003) p. 43.
[15] Trade Marks Act 2002 (NZ).
[16] Ibid, s 17(b)(ii)
[17] Ibid, s 177-80.
[18] Peter J Chalk and Alexander Dunlop, 'Indigenous Trade Marks and Human Rights: An Australian and New Zealand Perspective' (2009) 99(4) The Trademark Reporter 956, 972. [19] Trade mark searches undertaken by the author for various cultural figures.
[20] Trademarks Act, RSC 1985 (Canada), c T-13, Section 9(1)(n)(iii).
[21] Cited in Janke, Terri, above n14, p. 44.
[22] Franklin, Jonathan A., “Traditional Cultural Expressions and Cultural Institutions” in Camille Callison, Loriene Roy and Gretchen LeChaminant, eds.,
Indigenous notions of ownership and libraries, archives and museums (De Gruyter Saur, 2016) pp 75-88, p.75.
[23] Ibid, p.75.
[24] The Amis are the largest indigenous minority group among aboriginal tribes in Taiwan, People’s Republic of China.
[25] Guy, Nancy, “Regaining their Voices: Music, Cultural Ownership, and the Amis’ Copyright Struggle,” Copyright and Conceptions of Intellectual Property in Cross-Cultural Perspective (Popular Music Section of the Society for Ethnomusicology, 1999).[26] “Lost in Music,” (4)
Far Eastern Economic Review 158 (1999).
[27] Vézina, above n10, p 89.
[28] Esarey, Ashley, “Loss of Innocence: An Amis Couple Seeks Recognition for their Music,”
Travel in Taiwan, (Vision International Publishing Company, 1995).
[29] Wong, Victor, “Taiwan Aboriginal Singers Settle Copyright Lawsuit,” Billboard, July 31, 1999.
[30] Guy, above n25.
[31] Seeger, Anthony. “Ethnomusicology and Music Law.”
Ethnomusicology 36-3 (1992), 352-53.
[32] Brandl, E.J.
Australian Aboriginal Paintings in Western and Central Arnhem Land: Temporal Sequences and Elements of Style in Cadell and Deaf Adder Creek Art (Aboriginal Studies Press, 1973).
[33] Janke, above n14, 101.
[34] Ibid.
[35] The Hon Justice Michael Kirby AC CMG, “Protecting Cultural Rights - Some Developments”,
United Nations Educational, Scientific and Cultural Organisation, The University of Waikato CNZJ, 12 - 13 October 1998, <http://www.hcourt.gov.au/speeches/kirbyj/culture2.htm>.
