Elise Steegstra
SPIRITUALITY FOR SALE
CAN IP RIGHTS BE USED FOR THE PROTECTION OF INDIGENOUS SACRED RITUALS AND CONSERVATION OF THEIR ASSOCIATED PLANTS?
I Introduction
Indigenous communities around the globe have had their spiritual Traditional Knowledge (TK) taken by New Age spiritualist and exploited for profit. This includes sacred rituals, and the use of sacred plants as medicine. Can Intellectual Property rights and laws be used for the protection of these rituals and TK; for the conservation of related plant matter; and for the restoration or reparation to those exploited Indigenous Communities?
Different types of plant matter (for example, white sage and Palo Santo, which is a fragrant wood, in the Americas,[1] frankincense, being the sap from a frankincense tree, in India and the Middle East[2]) which have cultural or spiritual significance for Indigenous people in those locations have been appropriated and used in Western or New Age spiritual practices to the point where they are now endangered or critically over-harvested. One issue is not just that these sacred medicines are being over harvested; it’s that they are being harvested not for their medicinal components, if any, but for their metaphysical properties. Often the way of using for distilling these plants for the medical properties is entirely different from how these plants are being commercialised. The belief in the transference of the mystical properties is encouraging bad actors to over-harvest for a growing audience in spiritualists and Instagram influencers.
I Introduction
Indigenous communities around the globe have had their spiritual Traditional Knowledge (TK) taken by New Age spiritualist and exploited for profit. This includes sacred rituals, and the use of sacred plants as medicine. Can Intellectual Property rights and laws be used for the protection of these rituals and TK; for the conservation of related plant matter; and for the restoration or reparation to those exploited Indigenous Communities?
Different types of plant matter (for example, white sage and Palo Santo, which is a fragrant wood, in the Americas,[1] frankincense, being the sap from a frankincense tree, in India and the Middle East[2]) which have cultural or spiritual significance for Indigenous people in those locations have been appropriated and used in Western or New Age spiritual practices to the point where they are now endangered or critically over-harvested. One issue is not just that these sacred medicines are being over harvested; it’s that they are being harvested not for their medicinal components, if any, but for their metaphysical properties. Often the way of using for distilling these plants for the medical properties is entirely different from how these plants are being commercialised. The belief in the transference of the mystical properties is encouraging bad actors to over-harvest for a growing audience in spiritualists and Instagram influencers.
Further, the specific Indigenous rituals that accompany use of these plants are also being replicated and exploited for profit by non-Natives often without fully understanding the meaning and significance of their spiritual meaning. Additionally, these rituals are being appropriated for commercial use without the consent or approval of the traditional Owners, and without any intention or consideration given to returning any profits to the communities that have been exploited. Many a ‘witch shop’ or Etsy seller has on offer a “smudge bundle” made up of white sage.[1] Even cosmetic brands offer smudge bundles of Palo Santo or white sage for sale.[2] Smudging is a specific type of Native American smoke ritual, which is as distinct and separate as the Australian Indigenous Smoke Ceremonies or ancient Celtic Saining rituals. The use of these terms in commercialisation of sacred medicines implies that these rituals are available for use by everyone and available for sale.
First, we will examine some of the ways that Indigenous people use plants as “sacred medicines” and the ways these sacred medicines are being exploited by modern consumerism. Then, consideration will be given to the ways that intellectual property rights could be used to prevent these sacred medicines from over-commercialisation and over-harvesting, as well as protecting the accompanying rituals from exploitation. Are the existing IP regimes sufficient for adequate protection for these Indigenous communities or are there additional measures that should be included to ensure that these sacred plants and rituals are preserved and protected?
II Plants as sacred medicine
Many different Indigenous cultures around the world have plants that are sacred in their cultures. Often there are specific ways of using these plants to access the spiritual properties. Sometimes these spiritual rituals also access or activate medical properties in the plants as well, which may add further to the metaphysical properties in those cultures.
For example, there are anti-inflammatory compounds in essential oils derived from Palo Santo wood,[3] which may provide beneficial therapeutic treatments, but this is entirely different from using the wood as a spiritual incense or for a smoke ceremony. Essential oils are extracted through a process of woodchip steaming and condensation, rather than burning or smoking, which would not extract the oil.[4] Similarly, anti-microbial extracts have been found in some of the plants used by Aboriginal Australians in their smoke ceremonies.[5] Many plants have specific properties that may be activated by burning or smoking, but they are often more used for spiritual purposes, which are then co-opted by other entities.
For example, the specific term ‘smudging’ has been co-opted by new Age spiritualities like Wicca. There are now many people of European descent advising and advertising smudging ceremonies on the internet. The use of these terms in commercialisation of sacred medicines implies that these rituals are available for use by everyone and available for sale. Some of these rituals even form part of educational courses, and are not even conducted by Indigenous peoples.[6] Writers on this subject note that:
There are also nonnatives who purport to interpret Native American spiritual and healing beliefs and practices to a lay, nonnative audience while eschewing the distortions and co-optation of native ideas so prominent in the New Age movement…[7]
The exploitation of Native spirituality is wide-spread. Lisa Aldred notes that “…as products of the very consumer culture they seek to escape, these New Agers pursue spiritual meaning and cultural identification through acts of purchase.”[8] Spirituality has been reduced to a consumer product. Non-natives continue to use and abuse the spiritual practices without reference to the original creators of these rituals. Aldred goes on, “The purchaser can drink up the sacredness of Native American spirituality while creating the right ambience with the scent of sage smudge sticks and the proper New Age music evoking the proper locale.”[9] Smudging, white sage and other Native American items are used as props for a hodgepodge spirituality.
Why should Western New Age spiritualists, academics and other communities be able to profit from American Indian rituals when the Native Americans were banned from performing these same rituals for decades? In an attempt by the American Governments of the time to eradicate the Indigenous populations, many Native traditions and rituals were outlawed commencing with the Code of Indian Offense of the 1883[10] through to the passage of the American Indian Religious Freedom Act of 1978 [11]. Even then, Indigenous groups were not necessarily permitted to perform sacred acts or have any particular protection for sacred sites. The case of Lyng in the Supreme Court[12] concluded that the American Indian Religious Freedom Act of 1978 did not protect tribal sacred sites. Further, the Court also determined the AIRFA was merely a statement of policy without any means of judicial enforcement. Following that decision, the legislation is now only a toothless legislative ‘statement’ without any real force. This decision follows similar reasoning to other decisions like, NW Indian Cemetery Protective Ass’n v. Peterson[13] and Bear Lodge Multiple Use Ass’n v. Babbitt.[14]
Some Indigenous Nations hold that misuse of these sacred medicines will not be spiritually effective. And further, “many Native Americans have been offended by the mockery these bastardized versions make of their sacred ceremonies.”[15] The Southwestern American Indian Movement (AIM) Leadership Conference stated in 2000, that “[T]he attempted theft of Indian ceremonies is a direct attack and theft from Indian people themselves.”[16]
Western perspectives often do not see spiritual things as those that should be granted protection from exploitation. Gary Snider, a poet who won literary awards for writing from the persona of a Native American shaman said, “Spirituality is not something which can be ‘owned’ like a car or a house. Spiritual knowledge belongs to all humans equally.”[17] This statement implies that something has to be a “real property” before any request that it be respected as private or closed can be recognised.[18] This is a problematic position for Western and colonialist perspectives to hold as it suggests there is no ‘real’ value in spiritual knowledge, whereas the entire New-Age spirituality industry suggests otherwise. This perspective further highlights to two issues then for the adequate protection of the spiritual plants and sacred medicines of Indigenous peoples. The first is protecting the plants from exploitation and profit; the second is protecting their sacred rituals from exploitation and profit, made particularly difficult if governments and people do not see the inherent value in these spiritual practices.
III Regimes for Protection Endangered Species
International instruments, like the United Nations Declaration on the Rights of Indigenous Peoples’[19], the Convention on Biological Diversity[20] and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising out of their Utilisation to the Convention on Biological Diversity[21] already set out principles and guidance on how biological diversity and the rights of Indigenous peoples can be preserved. For example, the UNDRIP preamble states “Recognising that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment”, highlighting the importance of traditional practices and environmental management.
The Permanent Forum on Indigenous Issues is one body that looks into these issues on behalf of the Commission of Human Rights. The Permanent Forum has a mandate to “discuss indigenous issues within the mandate of the Council relating to economic and social development, culture, the environment, education, health and human rights”.[22] During the Second Session of the Forum:
Many indigenous representatives expressed grave concern over bio-piracy and genetic engineering, and called for the protection of genetic resources and a moratorium on bio-prospecting. The protection of traditional knowledge and indigenous intellectual property was a high priority for indigenous peoples and could be coupled with free, informed and prior consent.[23]
However, these international instruments are voluntary, non-binding and lack little enforcement mechanisms or penalty regimes. As such, these instruments are not currently capable of being a shield or a sword in defence of Indigenous peoples’ rights. Neither can they be relied upon for environmental protection. The measures introduced by such treaties are either not implemented or implemented in a weakened form due to resistance from Western countries and other governmental influences.
National protection regimes are not much more effective, unless the Government of that country sees the need to provide such protections. For example, Plant Breeders’ rights in Australia[24] protect the commercialisation of new varieties of plants. However, Plant Breeders’ Rights are not available to many sacred plants because these are not new varieties of plants but existing and traditional plants.[25]
Similarly, in India, the Protection of Plant Varieties and Farmers' Rights (PPVFR) Act 2001,[26] provides recognition and benefit-sharing for traditional, rural and tribal communities. This legislation offers monetary compensation for those who identify traditional plants and their properties. However, this compensation is of a limited nature, both in the number of grants made annually and amounts awarded.
Thirdly, many current ideas for protection focus on access and benefit-sharing, like those contained in the Convention on Biological Diversity.[27] These tend to downplay the social and cultural value of Traditional Knowledge for holders and their communities themselves and overlook the significance to local people’s lives. This significance will often outweigh any potential monetary value that may arise from its translation into biotechnological knowledge inputs.[28] This perspective can be seen in the discussion above about the significance of the particular plants that are the subject of this essay.
Further, traditional ways of protecting and enforcing IP rights, like patents or trade marks are not necessarily applicable in this context. There is a lack of an inventive step or a new application to use of these plants, as they form part of a traditional and spiritual usage. Similarly, the plants and rituals are not being used as an indicator of origin nor as a symbol or sign. Geographical Indicators may be one avenue to address, but this is complicated by the issue that not all traditional groups in the same areas use the plant matter in the same way, so a Geographical Indicator would only indicate the origin, not restrict the uses of the plants. Alternatively, a Customs’ Notice regime, which prevents the importation of goods that infringe a trade mark, could be adapted for use for protecting sacred medicines. This, however, would still require some form of registration, and a lot of government buy-in to enforcement of any regime.
IV Take Down Regimes?
The Creative Heritage Project[29] is one of a number of responses from WIPO to preserve and record traditional cultural expressions. However, this type of project requires the recording of the particular Traditional Cultural Expressions, which is not a great solution for protecting sacred rituals from outsides. This project is more focussed on the preservation of TCE rather than the protection of TCE.
One alternative may be to consider a regime similar to the copyright takedown regimes introduced in response to the development of the internet and the growing use of the internet to upload and share copyrighted material.
Many countries have attempted to address online copyright infringement by providing clear guidance to Internet Service Providers (ISPs) about their legal obligations. These regimes generally provide some limitation of liability for the ISPs from copyright action so long as they comply with their obligations under these ‘safe harbour’ regulations. For example, in the United States, the Online Copyright Infringement Liability Limitation Act,[30] as part of the Digital Millennium Copyright Act[31] provides a method for content producers to request that ISPs remove copyright infringing material. ‘In enacting the OCILLA, the US Congress mainly intended to achieve two purposes: one is for limiting the liability of ISPs for copyright infringement; the other is for protecting intellectual property from unauthorized online distribution.’[32] Content creators must ask the ISPs to “takedown” material that has been uploaded and which they believe infringes their copyright. The ISPs must take down the offending material and issue a notice to the uploader, who may dispute the takedown notice.
In a similar fashion, in Europe, the basis for notice and takedown procedures under EU law is article 14 of the Electronic Commerce Directive.[33] Only some countries in Europe have enacted further statutory regulations, so Europe differs from the US in legislative weight. A Directive sets out the legislative goal, but it is left up to each individual country to achieve. France’s Loi relative à l'économie numérique[34] is one implementation of this directive.
The purpose of these regulations is to ‘incentivize cooperation between copyright owners and service providers, burdens for each party had to be reasonably proportional and adequately tailored to reflect the various functions of different service providers.’[35] Such incentivisation of cooperation could also be adapted for the benefit of Indigenous communities, if they were able to flag material as infringing on their spiritual rituals and beliefs. These affected communities would have such material removed from the general public until a determination can be made about the provenance of the traditional knowledge, and adequate reparations to the traditional owners, including destruction or return of the plant matter, and deletion of the information about their rituals.
Unfortunately, a lot of schemes for the protection of intellectual require registration. Additionally, ‘safe harbour’ regimes only takedown the offending material, they do not prevent the generation of it, so a regime like this would not prevent New Age spiritualists from exploiting the information. It would, however, prevent them from profiting from sharing it, as such a regime could be applied to both publications and sales of infringing material. Ultimately, any system for protecting Traditional Knowledge and Traditional Cultural Expression should be low cost for the Indigenous communities who would need to access the scheme.
V Conclusion
So, can intellectual property law be used to protect indigenous cultures from exploitation by people who do not see any intrinsic value in the sacredness of their information? If the traditional Western view is taken, that only concrete forms have value and can be protected, then many of these cultures are stuck with no way of defending their sacred rituals and plant knowledge. Similarly, if the goal of protecting biodiversity and traditional plant knowledge is for the future medical or agronomical exploitation of the plants, then some communities who are not interested in financial compensation for their deeply held spiritual beliefs will stay far away from any scheme that requires them to reveal this knowledge. Better the knowledge dies out, than the information be misused by colonisers. Only in the last 50 years have steps been taken to engage with Indigenous communities and consider how to use Intellectual Property rights to assist them in their requirements. And very little tangible progress has been made.
On the other hand, some of this information is now so widespread that it is very difficult to contain or repair. Western spiritualists have been appropriating Traditional Knowledge for centuries, from each different part of the globe as colonisation took over. Indigenous people were relegated to ‘savages’ or ‘tribes’; forbidden from using their own Traditional Knowledge; whilst spiritualists exploited it for profit and ‘mysticism’. After years of exploitation, some people see little value in attempting to restore ownership of these highly sacred rituals to the Native peoples they belong to. Similarly, some people see that these have now been adopted into other cultures. For example, regarding the Indian Protection of Plant Varieties and Farmers' Rights Act[36], “Where does traditional knowledge end if, for example, anything done to or with turmeric (or some other product deemed to be a national heritage) by non-Indians is deemed to be misappropriation?”[37] These considerations compound an already complex issue. However, ultimately, when looking at the value of sacred rituals and sacred plant matter to Indigenous cultures, often their value is incalculable.
It is beholden on governments to step up and take accountability for the damage that has occurred during colonisation and restore the rights to this sacred knowledge to the different groups affected. Further attempts to reach a more binding international agreement must be pursued. Unfortunately, some current government do not have much appetite for acknowledging the exploitation that has occurred under their aegis during colonisation, and are still actively engaged in the destruction of Indigenous cultures and plant matter. Until there is a reckoning with our colonial pasts, there can be no meaningful protection for Indigenous spiritual rituals and sacred plants.
VI Bibliography
A Articles/Books/Reports
Aldred, L., “Plastic Shamans and Astroturf Sun Dances: New Age Commercialization of Native American Spirituality.” (2000) 24(3) American Indian Quarterly, 329-352
Avery C., “Native American medicine: traditional healing” (1991) 265(17) The Journal of the American Medical Association, 2271–2273
Churchill, Ward, Fantasies of the Master Race (Common Courage Press, 1996)
Clark, Steve, “Beautiful, aromatic white sage is now endangered with its trendy use in burning smudge sticks” Conejo Open Space Foundation, 16 October 2020, accessed at: <https://cosf.org/news/beautiful-aromatic-white-sage-is-now-endangered-with-its-trendy-use-in-burning-smudge-sticks/> on 2 December 2020
Hultkrantz, Åke, Shamanic Healing and Ritual Drama: Health and Medicine in Native North American Religious Traditions (Crossroad, 1992)
Johnston, S. L., ‘Native American Traditional and Alternative Medicine’ (2002) 583(1) The ANNALS of the American Academy of Political and Social Science, 195–213
K, Adrienne, ‘Sephora’s “Starter Witch Kit” and Spiritual Theft’ Native Appropriations 5 September 2018; accessed at <http://nativeappropriations.com/2018/09/sephoras-starter-witch-kit-and-spiritual-theft.html> accessed on 12 December 2020
Mercurio, B. ‘Internet Service Provider Liability for Copyright Infringements of Subscribers: A Comparison of the American and Australian Efforts to Combat the Uncertainty.’ (2002) 9(4) Murdoch University Electronic Journal of Law, [online] available: [http://www.murdoch.edu.au/elaw/issues/v9n4/mercurio94nf.html]
Pichler, Paige, “The Unsustainable Truth Behind Burning White Sage and Palo Santo” Eco Age Magazine 28 January 2020, accessed at: <https://eco-age.com/magazine/burning-white-sage-and-palo-santo-unsustainable/> on 1 December 2020
Ruiz, Irene Banos, “The disappearing frankincense forests” Deutsche Welle, 28 December 2016, accessed at: <https://p.dw.com/p/2UvWU> on 1 December 2020
Sadgrove NJ, Jones GL, Greatrex BW. ‘Isolation and characterisation of (-)-genifuranal: the principal antimicrobial component in traditional smoking applications of Eremophila longifolia (Scrophulariaceae) by Australian aboriginal peoples.’ (2014) 154(3) Journal of Ethnopharmacology 758-66
Searles E. (2020) ‘The Smell of Smudge, the Work of Smoke: Reenacting Native American Ritual in an Anthropology Course.’ In Frese P., Brownell S. (eds) Experiential and Performative Anthropology in the Classroom (Palgrave Macmillan, 2020) 101-116
Smith, Stephen, Sergio Lence, Dermot Hayes, Julian Alston and Eloy Corona “Elements of Intellectual Property Protection in Plant Breeding and Biotechnology: Interactions and Outcomes” (2016) 56(4) Crop Science 1401
Tian, YiJun ‘WIPO Treaties, Free Trade Agreement and Implications for ISP Safe Harbour Provisions (The Role of ISP in Australian Copyright Law)’ (2004) 16 Bond Law Review 197-217
Vasudeva, Vikrants Narayan, ‘The Notice and Takedown Procedure Under Copyright Law: Developing a Measured Approach,’ (2011) 13 The University of Notre Dame Australia Law Review, 193-222
Waller, Tomás, Mariano Barros, Juan Draque& Patricio Micucci, ‘Conservation of the Palo Santo tree, Bulnesia sarmientoi Lorentz ex Griseb, in the South American Chaco Region’ (2012) 15 Newsletter of the Medicinal Plant Specialist Groupof the IUCN Species Survival Commission 4-9
B Cases
Bear Lodge Multiple Use Ass’n v. Babbitt, 175 F. 3d 814 - Court of Appeals, 10th Circuit (1999)
NW Indian Cemetery Protective Ass’n v. Peterson, 565 F. Supp. 586 - Dist. Court, ND California (1983)
Lyng, Secretary of Agriculture, et al. v. Northwest Indian Cemetery Protective Association et al. 485 U.S. 439 (1988)
C Legislation
1 Australia
Plant Breeder's Rights Act 1994 (Cth)
2 India
Protection of Plant Varieties and Farmers' Rights (PPVFR) Act 2001, Act No. 53 of 2001
3 European Union
Electronic Commerce Directive, 2000 (Europe) Directive 2000/31/EC
4 France
Loi relative à l'économie numérique, Law n. 2004-575 of June 21, 2004
5 United States
American Indian Religious Freedom Act of 1978, Public Law No. 95-341, 92 Stat. 469 (Aug. 11, 1978)
Code of Indian Offenses of 1883 Department of the Interior, Office of Indian Affairs (1883)
Online Copyright Infringement Liability Limitation Act of 1998, 17 USC §§ 512
Digital Millennium Copyright Act of 1998, 17 USC §§ 101, 104, 104A, 108, 132, 114, 117, 701
D Treaties
The Convention on Biological Diversity, opened for signature 5 June 1992 (entered into force 29 December 1993)
Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising out of their Utilisation to the Convention on Biological Diversity, adopted 29 October 2010 (entered into force 12 October 2014)
United Nations Declaration on the Rights of Indigenous Peoples, adopted on 13 September 2007
The WIPO Copyright Treaty, opened for signature 20 December 1996 (entered into force 6 March 2002)
E Other
Office of the High Commissioner for Human Rights, Resolutions and Decision of the Economic and Social Council, E/RES/2000/22
World Intellectual Property Office, Creative Heritage Project: IP guidelines for digitizing intangible cultural heritage (Geneva, 2007)
Footnotes
[1] Etsy search for “smudge bundle” search results, accessed at <https://www.etsy.com/search?q=smudge%20bundle> accessed on 30 November 2020.
[2] Adrienne K., ‘Sephora’s “Starter Witch Kit” and Spiritual Theft’ Native Appropriations 5 September 2018; accessed at <http://nativeappropriations.com/2018/09/sephoras-starter-witch-kit-and-spiritual-theft.html> accessed on 12 December 2020.
[3] Tomás Waller, Mariano Barros, Juan Draque& Patricio Micucci, ‘Conservation of the Palo Santo tree, Bulnesia sarmientoi Lorentz ex Griseb, in the South American Chaco Region’ (2012) 15 Newsletter of the Medicinal Plant Specialist Groupof the IUCN Species Survival Commission 4-9, p 5.
[4] Ibid.
[5] Sadgrove NJ, Jones GL, Greatrex BW. ‘Isolation and characterisation of (-)-genifuranal: the principal antimicrobial component in traditional smoking applications of Eremophila longifolia (Scrophulariaceae) by Australian aboriginal peoples.’ (2014) 154(3) Journal of Ethnopharmacology 758-66.
[6] Searles E. (2020) ‘The Smell of Smudge, the Work of Smoke: Reenacting Native American Ritual in an Anthropology Course.’ In Frese P., Brownell S. (eds) Experiential and Performative Anthropology in the Classroom (Palgrave Macmillan, 2020) pp 101-116.
[7] Johnston, S. L., ‘Native American Traditional and Alternative Medicine’ (2002) 583(1) The ANNALS of the American Academy of Political and Social Science, p 208. See also, Cohen, Ken "Bear Hawk." ‘Native American medicine’ (1998) 4 Alternative Therapies p45-57; Peat, F. David, Lighting the seventh fire: The spiritual ways, healing, and science of the Native American (Carol, 1994).
[8] Aldred, L., “Plastic Shamans and Astroturf Sun Dances: New Age Commercialization of Native American Spirituality.” (2000) 24 (3) American Indian Quarterly, p 329.
[9] Aldred, L., “Plastic Shamans and Astroturf Sun Dances: New Age Commercialization of Native American Spirituality.” (2000) 24 (3) American Indian Quarterly, p 334.
[10] Code of Indian Offenses of 1883, Department of the Interior, Office of Indian Affairs
[11] 95-341, 92 Stat. 469 (Aug. 11, 1978) (‘AIRFA’)
[12] Lyng, Secretary of Agriculture, et al. v. Northwest Indian Cemetery Protective Association et al. 485 U.S. 439 (1988)
[13] 565 F. Supp. 586 - Dist. Court, ND California (1983).
[14] 175 F. 3d 814 - Court of Appeals, 10th Circuit (1999).
[15] Aldred, L., “Plastic Shamans and Astroturf Sun Dances: New Age Commercialization of Native American Spirituality.” (2000) 24 (3) American Indian Quarterly, p 333.
[16] Quoted in Aldred, L., “Plastic Shamans and Astroturf Sun Dances: New Age Commercialization of Native American Spirituality.” (2000) 24 (3) American Indian Quarterly, p 335.
[17] Quoted in Ward Churchill, Fantasies of the Master Race (Common Courage Press, 1996), p219.
[18] Aldred, L., “Plastic Shamans and Astroturf Sun Dances: New Age Commercialization of Native American Spirituality.” (2000) 24 (3) American Indian Quarterly, p 349.
[19] United Nations Declaration on the Rights of Indigenous Peoples, adopted on 13 September 2007, (“UNDRIP”).
[20] The Convention on Biological Diversity, opened for signature 5 June 1992 (entered into force 29 December 1993).
[21] Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising out of their Utilisation to the Convention on Biological Diversity, adopted 29 October 2010 (entered into force 12 October 2014).
[22] Office of the High Commissioner for Human Rights, Resolutions and Decision of the Economic and Social Council, E/RES/2000/22.
[23] The same concerns were voiced by indigenous organisations in the Second Session under Agenda Item 4(e) (Culture). See E/C.19/2003/L.2/Add6.
[24] Plant Breeder's Rights Act 1994 (Cth).
[25] Stephen Smith, Sergio Lence, Dermot Hayes, Julian Alston and Eloy Corona "Elements of Intellectual Property Protection in Plant Breeding and Biotechnology: Interactions and Outcomes" (2016) 56(4) Crop Science 1401.
[26] Act No. 53 of 2001.
[27] The Convention on Biological Diversity, opened for signature 5 June 1992 (entered into force 29 December 1993)
[28] Dutfield G. ‘TK unlimited: The emerging but incoherent international law of traditional knowledge protection.’ (2017) 20 The Journal of World Intellectual Property 144–159.
[29] World Intellectual Property Office, Creative Heritage Project: IP guidelines for digitizing intangible cultural heritage (Geneva, 2007)
[30] Online Copyright Infringement Liability Limitation Act of 1998, 17 USC §§ 512 (’OCILLA’).
[31] Digital Millennium Copyright Act of 1998, 17 USC §§ 101, 104, 104A, 108, 132, 114, 117, 701.
[32] Band, J. and M. Schruers (2002). ‘Symposium Copyright Law as Communications Policy: Convergence of Paradigms and Cultures - Safe Harbours against the Liability Hurricane: The Communications Decency Act and the Digital Millennium Copyright Act.’, in 20 Cardozo Arts and Entertainment Law Journal 295, at 303.
[33] 2000 (Europe) Directive 2000/31/EC.
[34] Law n. 2004-575 of June 21, 2004.
[35] Emily Zarins, ‘Notice Versus Knowledge under The Digital Millennium Copyright Act’s Safe Harbors’ (2004) 92 California Law Review, 257, 271.
[36] Act No. 53 of 2001.
[37] Dutfield G. ‘TK unlimited: The emerging but incoherent international law of traditional knowledge protection.’ (2017) 20 The Journal of World Intellectual Property 144–159, p 153.
Initial Foot notes
[1] Steve Clark, “Beautiful, aromatic white sage is now endangered with its trendy use in burning smudge sticks” Conejo Open Space Foundation, 16 October 2020, accessed at: <https://cosf.org/news/beautiful-aromatic-white-sage-is-now-endangered-with-its-trendy-use-in-burning-smudge-sticks/> on 2 December 2020; Paige Pichler, “The Unsustainable Truth Behind Burning White Sage and Palo Santo” Eco Age Magazine 28 January 2020, accessed at: <https://eco-age.com/magazine/burning-white-sage-and-palo-santo-unsustainable/> on 1 December 2020.
[2] Irene Banos Ruiz, “The disappearing frankincense forests” Deutsche Welle, 28 December 2016, accessed at: <https://p.dw.com/p/2UvWU> on 1 December 2020.
First, we will examine some of the ways that Indigenous people use plants as “sacred medicines” and the ways these sacred medicines are being exploited by modern consumerism. Then, consideration will be given to the ways that intellectual property rights could be used to prevent these sacred medicines from over-commercialisation and over-harvesting, as well as protecting the accompanying rituals from exploitation. Are the existing IP regimes sufficient for adequate protection for these Indigenous communities or are there additional measures that should be included to ensure that these sacred plants and rituals are preserved and protected?
II Plants as sacred medicine
Many different Indigenous cultures around the world have plants that are sacred in their cultures. Often there are specific ways of using these plants to access the spiritual properties. Sometimes these spiritual rituals also access or activate medical properties in the plants as well, which may add further to the metaphysical properties in those cultures.
For example, there are anti-inflammatory compounds in essential oils derived from Palo Santo wood,[3] which may provide beneficial therapeutic treatments, but this is entirely different from using the wood as a spiritual incense or for a smoke ceremony. Essential oils are extracted through a process of woodchip steaming and condensation, rather than burning or smoking, which would not extract the oil.[4] Similarly, anti-microbial extracts have been found in some of the plants used by Aboriginal Australians in their smoke ceremonies.[5] Many plants have specific properties that may be activated by burning or smoking, but they are often more used for spiritual purposes, which are then co-opted by other entities.
For example, the specific term ‘smudging’ has been co-opted by new Age spiritualities like Wicca. There are now many people of European descent advising and advertising smudging ceremonies on the internet. The use of these terms in commercialisation of sacred medicines implies that these rituals are available for use by everyone and available for sale. Some of these rituals even form part of educational courses, and are not even conducted by Indigenous peoples.[6] Writers on this subject note that:
There are also nonnatives who purport to interpret Native American spiritual and healing beliefs and practices to a lay, nonnative audience while eschewing the distortions and co-optation of native ideas so prominent in the New Age movement…[7]
The exploitation of Native spirituality is wide-spread. Lisa Aldred notes that “…as products of the very consumer culture they seek to escape, these New Agers pursue spiritual meaning and cultural identification through acts of purchase.”[8] Spirituality has been reduced to a consumer product. Non-natives continue to use and abuse the spiritual practices without reference to the original creators of these rituals. Aldred goes on, “The purchaser can drink up the sacredness of Native American spirituality while creating the right ambience with the scent of sage smudge sticks and the proper New Age music evoking the proper locale.”[9] Smudging, white sage and other Native American items are used as props for a hodgepodge spirituality.
Why should Western New Age spiritualists, academics and other communities be able to profit from American Indian rituals when the Native Americans were banned from performing these same rituals for decades? In an attempt by the American Governments of the time to eradicate the Indigenous populations, many Native traditions and rituals were outlawed commencing with the Code of Indian Offense of the 1883[10] through to the passage of the American Indian Religious Freedom Act of 1978 [11]. Even then, Indigenous groups were not necessarily permitted to perform sacred acts or have any particular protection for sacred sites. The case of Lyng in the Supreme Court[12] concluded that the American Indian Religious Freedom Act of 1978 did not protect tribal sacred sites. Further, the Court also determined the AIRFA was merely a statement of policy without any means of judicial enforcement. Following that decision, the legislation is now only a toothless legislative ‘statement’ without any real force. This decision follows similar reasoning to other decisions like, NW Indian Cemetery Protective Ass’n v. Peterson[13] and Bear Lodge Multiple Use Ass’n v. Babbitt.[14]
Some Indigenous Nations hold that misuse of these sacred medicines will not be spiritually effective. And further, “many Native Americans have been offended by the mockery these bastardized versions make of their sacred ceremonies.”[15] The Southwestern American Indian Movement (AIM) Leadership Conference stated in 2000, that “[T]he attempted theft of Indian ceremonies is a direct attack and theft from Indian people themselves.”[16]
Western perspectives often do not see spiritual things as those that should be granted protection from exploitation. Gary Snider, a poet who won literary awards for writing from the persona of a Native American shaman said, “Spirituality is not something which can be ‘owned’ like a car or a house. Spiritual knowledge belongs to all humans equally.”[17] This statement implies that something has to be a “real property” before any request that it be respected as private or closed can be recognised.[18] This is a problematic position for Western and colonialist perspectives to hold as it suggests there is no ‘real’ value in spiritual knowledge, whereas the entire New-Age spirituality industry suggests otherwise. This perspective further highlights to two issues then for the adequate protection of the spiritual plants and sacred medicines of Indigenous peoples. The first is protecting the plants from exploitation and profit; the second is protecting their sacred rituals from exploitation and profit, made particularly difficult if governments and people do not see the inherent value in these spiritual practices.
III Regimes for Protection Endangered Species
International instruments, like the United Nations Declaration on the Rights of Indigenous Peoples’[19], the Convention on Biological Diversity[20] and the Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising out of their Utilisation to the Convention on Biological Diversity[21] already set out principles and guidance on how biological diversity and the rights of Indigenous peoples can be preserved. For example, the UNDRIP preamble states “Recognising that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment”, highlighting the importance of traditional practices and environmental management.
The Permanent Forum on Indigenous Issues is one body that looks into these issues on behalf of the Commission of Human Rights. The Permanent Forum has a mandate to “discuss indigenous issues within the mandate of the Council relating to economic and social development, culture, the environment, education, health and human rights”.[22] During the Second Session of the Forum:
Many indigenous representatives expressed grave concern over bio-piracy and genetic engineering, and called for the protection of genetic resources and a moratorium on bio-prospecting. The protection of traditional knowledge and indigenous intellectual property was a high priority for indigenous peoples and could be coupled with free, informed and prior consent.[23]
However, these international instruments are voluntary, non-binding and lack little enforcement mechanisms or penalty regimes. As such, these instruments are not currently capable of being a shield or a sword in defence of Indigenous peoples’ rights. Neither can they be relied upon for environmental protection. The measures introduced by such treaties are either not implemented or implemented in a weakened form due to resistance from Western countries and other governmental influences.
National protection regimes are not much more effective, unless the Government of that country sees the need to provide such protections. For example, Plant Breeders’ rights in Australia[24] protect the commercialisation of new varieties of plants. However, Plant Breeders’ Rights are not available to many sacred plants because these are not new varieties of plants but existing and traditional plants.[25]
Similarly, in India, the Protection of Plant Varieties and Farmers' Rights (PPVFR) Act 2001,[26] provides recognition and benefit-sharing for traditional, rural and tribal communities. This legislation offers monetary compensation for those who identify traditional plants and their properties. However, this compensation is of a limited nature, both in the number of grants made annually and amounts awarded.
Thirdly, many current ideas for protection focus on access and benefit-sharing, like those contained in the Convention on Biological Diversity.[27] These tend to downplay the social and cultural value of Traditional Knowledge for holders and their communities themselves and overlook the significance to local people’s lives. This significance will often outweigh any potential monetary value that may arise from its translation into biotechnological knowledge inputs.[28] This perspective can be seen in the discussion above about the significance of the particular plants that are the subject of this essay.
Further, traditional ways of protecting and enforcing IP rights, like patents or trade marks are not necessarily applicable in this context. There is a lack of an inventive step or a new application to use of these plants, as they form part of a traditional and spiritual usage. Similarly, the plants and rituals are not being used as an indicator of origin nor as a symbol or sign. Geographical Indicators may be one avenue to address, but this is complicated by the issue that not all traditional groups in the same areas use the plant matter in the same way, so a Geographical Indicator would only indicate the origin, not restrict the uses of the plants. Alternatively, a Customs’ Notice regime, which prevents the importation of goods that infringe a trade mark, could be adapted for use for protecting sacred medicines. This, however, would still require some form of registration, and a lot of government buy-in to enforcement of any regime.
IV Take Down Regimes?
The Creative Heritage Project[29] is one of a number of responses from WIPO to preserve and record traditional cultural expressions. However, this type of project requires the recording of the particular Traditional Cultural Expressions, which is not a great solution for protecting sacred rituals from outsides. This project is more focussed on the preservation of TCE rather than the protection of TCE.
One alternative may be to consider a regime similar to the copyright takedown regimes introduced in response to the development of the internet and the growing use of the internet to upload and share copyrighted material.
Many countries have attempted to address online copyright infringement by providing clear guidance to Internet Service Providers (ISPs) about their legal obligations. These regimes generally provide some limitation of liability for the ISPs from copyright action so long as they comply with their obligations under these ‘safe harbour’ regulations. For example, in the United States, the Online Copyright Infringement Liability Limitation Act,[30] as part of the Digital Millennium Copyright Act[31] provides a method for content producers to request that ISPs remove copyright infringing material. ‘In enacting the OCILLA, the US Congress mainly intended to achieve two purposes: one is for limiting the liability of ISPs for copyright infringement; the other is for protecting intellectual property from unauthorized online distribution.’[32] Content creators must ask the ISPs to “takedown” material that has been uploaded and which they believe infringes their copyright. The ISPs must take down the offending material and issue a notice to the uploader, who may dispute the takedown notice.
In a similar fashion, in Europe, the basis for notice and takedown procedures under EU law is article 14 of the Electronic Commerce Directive.[33] Only some countries in Europe have enacted further statutory regulations, so Europe differs from the US in legislative weight. A Directive sets out the legislative goal, but it is left up to each individual country to achieve. France’s Loi relative à l'économie numérique[34] is one implementation of this directive.
The purpose of these regulations is to ‘incentivize cooperation between copyright owners and service providers, burdens for each party had to be reasonably proportional and adequately tailored to reflect the various functions of different service providers.’[35] Such incentivisation of cooperation could also be adapted for the benefit of Indigenous communities, if they were able to flag material as infringing on their spiritual rituals and beliefs. These affected communities would have such material removed from the general public until a determination can be made about the provenance of the traditional knowledge, and adequate reparations to the traditional owners, including destruction or return of the plant matter, and deletion of the information about their rituals.
Unfortunately, a lot of schemes for the protection of intellectual require registration. Additionally, ‘safe harbour’ regimes only takedown the offending material, they do not prevent the generation of it, so a regime like this would not prevent New Age spiritualists from exploiting the information. It would, however, prevent them from profiting from sharing it, as such a regime could be applied to both publications and sales of infringing material. Ultimately, any system for protecting Traditional Knowledge and Traditional Cultural Expression should be low cost for the Indigenous communities who would need to access the scheme.
V Conclusion
So, can intellectual property law be used to protect indigenous cultures from exploitation by people who do not see any intrinsic value in the sacredness of their information? If the traditional Western view is taken, that only concrete forms have value and can be protected, then many of these cultures are stuck with no way of defending their sacred rituals and plant knowledge. Similarly, if the goal of protecting biodiversity and traditional plant knowledge is for the future medical or agronomical exploitation of the plants, then some communities who are not interested in financial compensation for their deeply held spiritual beliefs will stay far away from any scheme that requires them to reveal this knowledge. Better the knowledge dies out, than the information be misused by colonisers. Only in the last 50 years have steps been taken to engage with Indigenous communities and consider how to use Intellectual Property rights to assist them in their requirements. And very little tangible progress has been made.
On the other hand, some of this information is now so widespread that it is very difficult to contain or repair. Western spiritualists have been appropriating Traditional Knowledge for centuries, from each different part of the globe as colonisation took over. Indigenous people were relegated to ‘savages’ or ‘tribes’; forbidden from using their own Traditional Knowledge; whilst spiritualists exploited it for profit and ‘mysticism’. After years of exploitation, some people see little value in attempting to restore ownership of these highly sacred rituals to the Native peoples they belong to. Similarly, some people see that these have now been adopted into other cultures. For example, regarding the Indian Protection of Plant Varieties and Farmers' Rights Act[36], “Where does traditional knowledge end if, for example, anything done to or with turmeric (or some other product deemed to be a national heritage) by non-Indians is deemed to be misappropriation?”[37] These considerations compound an already complex issue. However, ultimately, when looking at the value of sacred rituals and sacred plant matter to Indigenous cultures, often their value is incalculable.
It is beholden on governments to step up and take accountability for the damage that has occurred during colonisation and restore the rights to this sacred knowledge to the different groups affected. Further attempts to reach a more binding international agreement must be pursued. Unfortunately, some current government do not have much appetite for acknowledging the exploitation that has occurred under their aegis during colonisation, and are still actively engaged in the destruction of Indigenous cultures and plant matter. Until there is a reckoning with our colonial pasts, there can be no meaningful protection for Indigenous spiritual rituals and sacred plants.
VI Bibliography
A Articles/Books/Reports
Aldred, L., “Plastic Shamans and Astroturf Sun Dances: New Age Commercialization of Native American Spirituality.” (2000) 24(3) American Indian Quarterly, 329-352
Avery C., “Native American medicine: traditional healing” (1991) 265(17) The Journal of the American Medical Association, 2271–2273
Churchill, Ward, Fantasies of the Master Race (Common Courage Press, 1996)
Clark, Steve, “Beautiful, aromatic white sage is now endangered with its trendy use in burning smudge sticks” Conejo Open Space Foundation, 16 October 2020, accessed at: <https://cosf.org/news/beautiful-aromatic-white-sage-is-now-endangered-with-its-trendy-use-in-burning-smudge-sticks/> on 2 December 2020
Hultkrantz, Åke, Shamanic Healing and Ritual Drama: Health and Medicine in Native North American Religious Traditions (Crossroad, 1992)
Johnston, S. L., ‘Native American Traditional and Alternative Medicine’ (2002) 583(1) The ANNALS of the American Academy of Political and Social Science, 195–213
K, Adrienne, ‘Sephora’s “Starter Witch Kit” and Spiritual Theft’ Native Appropriations 5 September 2018; accessed at <http://nativeappropriations.com/2018/09/sephoras-starter-witch-kit-and-spiritual-theft.html> accessed on 12 December 2020
Mercurio, B. ‘Internet Service Provider Liability for Copyright Infringements of Subscribers: A Comparison of the American and Australian Efforts to Combat the Uncertainty.’ (2002) 9(4) Murdoch University Electronic Journal of Law, [online] available: [http://www.murdoch.edu.au/elaw/issues/v9n4/mercurio94nf.html]
Pichler, Paige, “The Unsustainable Truth Behind Burning White Sage and Palo Santo” Eco Age Magazine 28 January 2020, accessed at: <https://eco-age.com/magazine/burning-white-sage-and-palo-santo-unsustainable/> on 1 December 2020
Ruiz, Irene Banos, “The disappearing frankincense forests” Deutsche Welle, 28 December 2016, accessed at: <https://p.dw.com/p/2UvWU> on 1 December 2020
Sadgrove NJ, Jones GL, Greatrex BW. ‘Isolation and characterisation of (-)-genifuranal: the principal antimicrobial component in traditional smoking applications of Eremophila longifolia (Scrophulariaceae) by Australian aboriginal peoples.’ (2014) 154(3) Journal of Ethnopharmacology 758-66
Searles E. (2020) ‘The Smell of Smudge, the Work of Smoke: Reenacting Native American Ritual in an Anthropology Course.’ In Frese P., Brownell S. (eds) Experiential and Performative Anthropology in the Classroom (Palgrave Macmillan, 2020) 101-116
Smith, Stephen, Sergio Lence, Dermot Hayes, Julian Alston and Eloy Corona “Elements of Intellectual Property Protection in Plant Breeding and Biotechnology: Interactions and Outcomes” (2016) 56(4) Crop Science 1401
Tian, YiJun ‘WIPO Treaties, Free Trade Agreement and Implications for ISP Safe Harbour Provisions (The Role of ISP in Australian Copyright Law)’ (2004) 16 Bond Law Review 197-217
Vasudeva, Vikrants Narayan, ‘The Notice and Takedown Procedure Under Copyright Law: Developing a Measured Approach,’ (2011) 13 The University of Notre Dame Australia Law Review, 193-222
Waller, Tomás, Mariano Barros, Juan Draque& Patricio Micucci, ‘Conservation of the Palo Santo tree, Bulnesia sarmientoi Lorentz ex Griseb, in the South American Chaco Region’ (2012) 15 Newsletter of the Medicinal Plant Specialist Groupof the IUCN Species Survival Commission 4-9
B Cases
Bear Lodge Multiple Use Ass’n v. Babbitt, 175 F. 3d 814 - Court of Appeals, 10th Circuit (1999)
NW Indian Cemetery Protective Ass’n v. Peterson, 565 F. Supp. 586 - Dist. Court, ND California (1983)
Lyng, Secretary of Agriculture, et al. v. Northwest Indian Cemetery Protective Association et al. 485 U.S. 439 (1988)
C Legislation
1 Australia
Plant Breeder's Rights Act 1994 (Cth)
2 India
Protection of Plant Varieties and Farmers' Rights (PPVFR) Act 2001, Act No. 53 of 2001
3 European Union
Electronic Commerce Directive, 2000 (Europe) Directive 2000/31/EC
4 France
Loi relative à l'économie numérique, Law n. 2004-575 of June 21, 2004
5 United States
American Indian Religious Freedom Act of 1978, Public Law No. 95-341, 92 Stat. 469 (Aug. 11, 1978)
Code of Indian Offenses of 1883 Department of the Interior, Office of Indian Affairs (1883)
Online Copyright Infringement Liability Limitation Act of 1998, 17 USC §§ 512
Digital Millennium Copyright Act of 1998, 17 USC §§ 101, 104, 104A, 108, 132, 114, 117, 701
D Treaties
The Convention on Biological Diversity, opened for signature 5 June 1992 (entered into force 29 December 1993)
Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising out of their Utilisation to the Convention on Biological Diversity, adopted 29 October 2010 (entered into force 12 October 2014)
United Nations Declaration on the Rights of Indigenous Peoples, adopted on 13 September 2007
The WIPO Copyright Treaty, opened for signature 20 December 1996 (entered into force 6 March 2002)
E Other
Office of the High Commissioner for Human Rights, Resolutions and Decision of the Economic and Social Council, E/RES/2000/22
World Intellectual Property Office, Creative Heritage Project: IP guidelines for digitizing intangible cultural heritage (Geneva, 2007)
Footnotes
[1] Etsy search for “smudge bundle” search results, accessed at <https://www.etsy.com/search?q=smudge%20bundle> accessed on 30 November 2020.
[2] Adrienne K., ‘Sephora’s “Starter Witch Kit” and Spiritual Theft’ Native Appropriations 5 September 2018; accessed at <http://nativeappropriations.com/2018/09/sephoras-starter-witch-kit-and-spiritual-theft.html> accessed on 12 December 2020.
[3] Tomás Waller, Mariano Barros, Juan Draque& Patricio Micucci, ‘Conservation of the Palo Santo tree, Bulnesia sarmientoi Lorentz ex Griseb, in the South American Chaco Region’ (2012) 15 Newsletter of the Medicinal Plant Specialist Groupof the IUCN Species Survival Commission 4-9, p 5.
[4] Ibid.
[5] Sadgrove NJ, Jones GL, Greatrex BW. ‘Isolation and characterisation of (-)-genifuranal: the principal antimicrobial component in traditional smoking applications of Eremophila longifolia (Scrophulariaceae) by Australian aboriginal peoples.’ (2014) 154(3) Journal of Ethnopharmacology 758-66.
[6] Searles E. (2020) ‘The Smell of Smudge, the Work of Smoke: Reenacting Native American Ritual in an Anthropology Course.’ In Frese P., Brownell S. (eds) Experiential and Performative Anthropology in the Classroom (Palgrave Macmillan, 2020) pp 101-116.
[7] Johnston, S. L., ‘Native American Traditional and Alternative Medicine’ (2002) 583(1) The ANNALS of the American Academy of Political and Social Science, p 208. See also, Cohen, Ken "Bear Hawk." ‘Native American medicine’ (1998) 4 Alternative Therapies p45-57; Peat, F. David, Lighting the seventh fire: The spiritual ways, healing, and science of the Native American (Carol, 1994).
[8] Aldred, L., “Plastic Shamans and Astroturf Sun Dances: New Age Commercialization of Native American Spirituality.” (2000) 24 (3) American Indian Quarterly, p 329.
[9] Aldred, L., “Plastic Shamans and Astroturf Sun Dances: New Age Commercialization of Native American Spirituality.” (2000) 24 (3) American Indian Quarterly, p 334.
[10] Code of Indian Offenses of 1883, Department of the Interior, Office of Indian Affairs
[11] 95-341, 92 Stat. 469 (Aug. 11, 1978) (‘AIRFA’)
[12] Lyng, Secretary of Agriculture, et al. v. Northwest Indian Cemetery Protective Association et al. 485 U.S. 439 (1988)
[13] 565 F. Supp. 586 - Dist. Court, ND California (1983).
[14] 175 F. 3d 814 - Court of Appeals, 10th Circuit (1999).
[15] Aldred, L., “Plastic Shamans and Astroturf Sun Dances: New Age Commercialization of Native American Spirituality.” (2000) 24 (3) American Indian Quarterly, p 333.
[16] Quoted in Aldred, L., “Plastic Shamans and Astroturf Sun Dances: New Age Commercialization of Native American Spirituality.” (2000) 24 (3) American Indian Quarterly, p 335.
[17] Quoted in Ward Churchill, Fantasies of the Master Race (Common Courage Press, 1996), p219.
[18] Aldred, L., “Plastic Shamans and Astroturf Sun Dances: New Age Commercialization of Native American Spirituality.” (2000) 24 (3) American Indian Quarterly, p 349.
[19] United Nations Declaration on the Rights of Indigenous Peoples, adopted on 13 September 2007, (“UNDRIP”).
[20] The Convention on Biological Diversity, opened for signature 5 June 1992 (entered into force 29 December 1993).
[21] Nagoya Protocol on Access to Genetic Resources and the Fair and Equitable Sharing of Benefits Arising out of their Utilisation to the Convention on Biological Diversity, adopted 29 October 2010 (entered into force 12 October 2014).
[22] Office of the High Commissioner for Human Rights, Resolutions and Decision of the Economic and Social Council, E/RES/2000/22.
[23] The same concerns were voiced by indigenous organisations in the Second Session under Agenda Item 4(e) (Culture). See E/C.19/2003/L.2/Add6.
[24] Plant Breeder's Rights Act 1994 (Cth).
[25] Stephen Smith, Sergio Lence, Dermot Hayes, Julian Alston and Eloy Corona "Elements of Intellectual Property Protection in Plant Breeding and Biotechnology: Interactions and Outcomes" (2016) 56(4) Crop Science 1401.
[26] Act No. 53 of 2001.
[27] The Convention on Biological Diversity, opened for signature 5 June 1992 (entered into force 29 December 1993)
[28] Dutfield G. ‘TK unlimited: The emerging but incoherent international law of traditional knowledge protection.’ (2017) 20 The Journal of World Intellectual Property 144–159.
[29] World Intellectual Property Office, Creative Heritage Project: IP guidelines for digitizing intangible cultural heritage (Geneva, 2007)
[30] Online Copyright Infringement Liability Limitation Act of 1998, 17 USC §§ 512 (’OCILLA’).
[31] Digital Millennium Copyright Act of 1998, 17 USC §§ 101, 104, 104A, 108, 132, 114, 117, 701.
[32] Band, J. and M. Schruers (2002). ‘Symposium Copyright Law as Communications Policy: Convergence of Paradigms and Cultures - Safe Harbours against the Liability Hurricane: The Communications Decency Act and the Digital Millennium Copyright Act.’, in 20 Cardozo Arts and Entertainment Law Journal 295, at 303.
[33] 2000 (Europe) Directive 2000/31/EC.
[34] Law n. 2004-575 of June 21, 2004.
[35] Emily Zarins, ‘Notice Versus Knowledge under The Digital Millennium Copyright Act’s Safe Harbors’ (2004) 92 California Law Review, 257, 271.
[36] Act No. 53 of 2001.
[37] Dutfield G. ‘TK unlimited: The emerging but incoherent international law of traditional knowledge protection.’ (2017) 20 The Journal of World Intellectual Property 144–159, p 153.
Initial Foot notes
[1] Steve Clark, “Beautiful, aromatic white sage is now endangered with its trendy use in burning smudge sticks” Conejo Open Space Foundation, 16 October 2020, accessed at: <https://cosf.org/news/beautiful-aromatic-white-sage-is-now-endangered-with-its-trendy-use-in-burning-smudge-sticks/> on 2 December 2020; Paige Pichler, “The Unsustainable Truth Behind Burning White Sage and Palo Santo” Eco Age Magazine 28 January 2020, accessed at: <https://eco-age.com/magazine/burning-white-sage-and-palo-santo-unsustainable/> on 1 December 2020.
[2] Irene Banos Ruiz, “The disappearing frankincense forests” Deutsche Welle, 28 December 2016, accessed at: <https://p.dw.com/p/2UvWU> on 1 December 2020.