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Indigenous/Traditional Knowledge & Intellectual Property

II.  Examples of Use and Misuse of
       Indigenous Knowledge

2.1 AVEDA and ownership of the word ‘Indigenous’

2.1.1   In 2006, the cosmetics corporation AVEDA released a range of skin care products under the name ‘Indigenous.’ As part of the process of marketing the new ‘indigenous’ line of products, AVEDA trademarked the word ‘Indigenous.’ This provoked a strong negative reaction from indigenous groups around the world. People were offended that such a significant word, politically uniting historically marginalized and excluded groups of peoples throughout the world, could be isolated and utilized by a cosmetics company for the purpose of economic profit.

AVEDA Indigenous product line2.1.2   Following lobbying and discussions, AVEDA decided to drop the “Indigenous“ product line and discontinue the trademark, even though they were under no legal obligation to do so. [21] AVEDA was encouraged to appreciate that using the word ‘Indigenous’ on a commercial product in order to derive a market advantage was disrespectful to indigenous peoples who have struggled for recognition and rights.

2.1.3   In an effort to demonstrate a newfound sensitivity to the ethical issues that indigenous people had raised with the corporation and extending this to recognize that indigenous people have rights to be involved and derive benefit (financial or otherwise) for any sharing of information/knowledge regarding processes, properties and use about plants that might be utilized in products, AVEDA has established a range of partnerships with indigenous groups in Australia and the Americas. In one instance it has formulated a benefit-sharing agreement between the Katkabubba community from Wiluna in Western Australia and Mount Romance, the exporter of sandalwood oil. [22] The agreement operates under an accreditation protocol established by the Songman Circle of Wisdom, an Australian not-for-profit organization established by Aboriginal elders, whereby the Katkabubba Aboriginal community is paid for using land and knowledge to source the sandalwood for AVEDA products. [23]

2.1.4   AVEDA also established an NGO (Tribal Link Foundation) that funds participation by indigenous people at the UN Permanent Forum on Indigenous Issues and other contexts where indigenous people are negotiating intellectual property rights. [24]

2.2 Registration of batik designs in Indonesia

2.2.1   Historically, the Indonesian batik artistic community has been based in Solo, Java. The Indonesian government considers batik to be a traditional art form and over the last five years has been working on developing new legislation to protect the ‘Traditional Arts.’ [25] Batik is considered a traditional practice because designs and knowledge have been passed down for centuries from generation to generation and the designs are infused with stories, histories and meaning not readily apparent or transferable to outsiders or those that purchase the batik cloth. Families are responsible for specific designs and practices. Who may use these, and for what purpose(s), has traditionally been negotiated within the batik community.

Indonesia batikmark2.2.2   The current efforts to develop new legislation to protect Indonesia’s traditional arts are in response to the increased reproduction of the batik styles in other regions within Indonesia and in other neighboring countries. The artists themselves are worried about the reproduction of their designs by outsiders who don’t know the meanings or significance of certain designs. [26]

2.2.3   In order to protect the traditional batik designs from misuse and misappropriation, the local government in Solo has developed a design patent program for the traditional designs. This means that thousands of batik motifs will be registered at the local government office. For the designs to be used by the batik makers as well as others, permission will need to be obtained from the government office. [27]

2.2.4   This is a defensive intellectual property strategy. The design patent framework serves as a preventative mechanism for unauthorized use of batik designs. To register the traditional designs there is a fee charged. ‘Ownership’ of the traditional design upon registration is then assigned to the company or family of producers who have registered the motif. However, not all the batik designers can afford this fee, or the accompanying fee for using the registered design.

2.2.5   An unintended effect of this strategy is that many smaller producers are being marginalized from the industry that enables their livelihood. [28] The registration process privileges some producers over others and thus also establishes new hierarchies within the community. The registration process, as a very specific form of regulation, creates more forms of bureaucracy and imposes different kinds of social ordering within the community because of the new conditions of access that are required to maintain batik practice.

2.3 Traditional knowledge and Bikram Yoga

2.3.1   Bikram Choudhury is the founder of a yoga technique known as Bikram Yoga. Instructors across the United States must obtain a license from him in order to teach the yoga sequence found in Bikram Yoga and/or to call a yoga studio Bikram Yoga.

2.3.2   Bikram Choudhury has aggressively enforced claims of copyright and trademark protection – including the claim that the sequence of asanas in Bikram’s Beginning Yoga Class constitutes his copyright. Many yoga practitioners object to the idea that Choudhury can have exclusive control over a series of postures derived from Indian traditional knowledge and practices.

Bikram Yoga postures2.3.3   Choudhury first registered the copyright for Bikram’s Beginning Yoga Class in 1979 and subsequently filed copyrights for various books, audiotapes and videotapes. In 2002 Choudhury filed for copyright for the yoga sequence itself – claiming that the US Copyright Office acknowledges his exclusive right to the distinct series of postures and breathing exercises comprising the sequence. While Choudhury recognizes that asanas generally are in the public domain, he claims that his sequence constitutes a copyrightable compilation of material. Choudhury’s argument is that he has exerted specific skill and labor in the selection and assemblage of the asanas into a specific sequence.

2.3.4   In 2005 the United States District Court for the Northern District of California heard a case – Open Source Yoga Unity v. Bikram Choudhury – testing these claims. [29] Open Source Yoga Unity (OSYU) filed for a declaratory judgment seeking an order that Choudhury does not have enforceable rights or trademark rights because individual yoga asanas constitute functional information rather than expressive creative content. The Court denied motions from both sides for summary judgment thus leaving questions of trademark invalidity, whether the sequence is in the public domain, the copyrightability of the sequences and the proper publishing date, unresolved. The case was later settled by the parties with no disclosure regarding the details of the settlement. Choudhury is still free to take legal action against other yoga practitioners and trainers in the United States.

2.3.5   There is current lobbying from government representatives in India to mount an effective legal challenge against Bikram Yoga arguing that the copyright in yoga asana sequences constitute a misappropriation of traditional knowledge unique to India. In India there is a large-scale effort to catalog the estimated 1500 asanas in order to prevent cases like this in the future.

2.4 Genetic information, databases of DNA and the Genographic Project

2.4.1   The Genographic Project (the “Project”) was launched in 2005. Funded by National Geographic, IBM and the Wiatt Family Foundation, it is a five-year project that seeks to resolve genetic issues concerning the origins of human diversity. As part of the Project, it is estimated that DNA from over 100,000 indigenous people around the world will be collected.

2.4.2   There are no uniform laws relating to genetic databases and bio-banks in a majority of countries including the United States, Canada, the United Kingdom, South Africa and Australia. [30] With no legal controls, the general approach across different jurisdictions is that control of DNA samples rests with the person who controls the database.

Genographic Project2.4.3   The National Congress of American Indians established Resolution REN-08-030, which calls for the cessation of the Project. This includes a halt in the collection of samples from indigenous communities until clear guidelines and codes of conduct for research with indigenous people through the Project, and the long-term storage of these samples, are established. [31] Further concerns relate to the responsibility of researchers when working with indigenous peoples, indigenous communities’ rights to control, develop and derive benefit from any research in which they are involved, the likely change over time in the value of the collected genetic information, and the ownership of and future access to the genetic databases. [32]

2.4.4   The current dispute over the return of blood samples taken from the Yanomami people between the 1960s and the 1990s in Northern Brazil, which are currently held in three different universities in the United States, serve as an important reminder about the problems that can emerge over time from the collection of genetic information. In this case there are issues about prior-informed consent, the conflict between scientific collecting rationales and indigenous knowledge systems, and the danger of returning unstable blood samples – and the possibility that these samples have been swapped and/or contaminated through other forms of testing. [33]

2.4.5   As the value of genetic material and the conditions of ownership and access to data and the management of databases change, this area can be expected to produce contestation in the future.

2.5 San/Hoodia case and access and benefit-sharing

Hoodia plant2.5.1   The San are an indigenous group of about 100,000 people based mainly (but not exclusively) in Botswana. From the 1930s, anthropologists have documented the use of the Hoodia plant by the San people as a natural appetite suppressant.

2.5.2   In 2001 the Council for Scientific and Industrial Research in South Africa filed for several international patents on the Hoodia plant. The San were not involved as stakeholders, or acknowledged as the originators of the knowledge that led to the patents. The CSIR argued that it was difficult, if not impossible, to identify who the owners of the indigenous knowledge were when it was so widely shared.

2.5.3   Following pressure from key advocates working with the San, a benefit-sharing agreement was negotiated in 2003 between the San and the CSIR. The agreement included provisions that the San would receive a portion of royalties (6%) from any successful commercialization. The negotiation of the benefit-sharing agreement was difficult and presented numerous problems, including the translation of complex conceptual as well as practical information regarding patent and scientific knowledge and ethical means for establishing new decision-making processes within the San communities that could address ownership and control of traditional knowledge.

2.5.4   In December 2008, the company Unilever, which had received a license to advance the Hoodia patent, suspended its development project. It is not clear if there will be any benefit for the San now that development has been suspended. The example illustrates the opportunity for indigenous people to enter into agreements where there is the possibility of generating economic benefits. It also highlights the practical and conceptual challenges for indigenous people to negotiate rights when the framework for negotiation is biased toward the dominant industry party, when there is limited legal advice available, and when this kind of negotiation challenges already existing authority and governance structures within the communities themselves. [34]

2.6 The Bugis creation story and the theater production I La Galigo

I La Galigo2.6.1   I La Galigo is a music theater production developed in 2002 that draws upon the epic creation myth Sureq Galigo of the Bugis people in South Sulawesi, Indonesia. Between 2004 and 2008, I La Galigo toured internationally in France, Spain, the United States, Indonesia, The Netherlands, Australia and Italy. [35]

2.6.2   The production consists of a cast of fifty-three musicians and dancers mostly from Sulawesi and Bali, Indonesia. The music for the stage work draws from traditional Buginese styles, utilizing traditional instruments, but also has other instruments and contemporary music forms added. The work is profoundly important to the Bugis people and has stimulated extensive cultural pride and re-invigorated cultural practices such as reading and writing Buginese.

2.6.3   With the adaptation and transposition of the oral Bugis story into a stage production, various new intellectual property rights (for example, copyright, performers’ rights) have been established. These rights are not held by the Bugis people, but rather are held by Indonesian individuals and foreign nationals who adapted and produced the stage production and musical score.

2.6.4   Unfortunately I La Galigo has not been performed in South Sulawesi where the majority of the Bugis people live. The Bugis community suffers from extreme economic disadvantage and there is frustration that not only has no performance occurred within the community from where it originally derives and has significant cultural significance, but that there has been no direct economic return for the Bugis people. That intellectual property rights do not vest with the community is now also a fundamental concern for many Indonesian governmental representatives. [36]

2.7 Lego and the use of Maori names

2.7.1   In 2001, Lego launched a new range of action figures called the Bionicle. Bionicle involves a group of imaginary inhabitants of the island of Mata Nui who are under the power of an evil beast called Makuta. In the storyline, Lego used a mix of Polynesian words – including several Maori words.

2.7.2   On behalf of three Maori groups, a New Zealand lawyer wrote to Lego objecting to the use of the Maori words. The lawyer argued that the use of the words constituted a serious trivialization of Maori culture, especially when names that have spiritual significance were being used.

Lego Mata Nui2.7.3   Initially Lego rejected the complaint. However, following negative publicity, a representative went to New Zealand to meet with the Maori groups. Following the meeting, Lego agreed that it had acted improperly and dropped the use of the word Tohunga. It also agreed to not use Maori names in future versions of the toys.

2.7.4   Representatives of Lego and the Maori groups met to discuss the development of a self-regulating code of conduct for toy manufacturing companies. The possibility of Maori authorizing Lego to produce a line of Maori designs and symbols was also discussed. However, for multiple reasons, the code of conduct did not proceed and there remain no guidelines or codes of conduct for industry engagement with Indigenous communities. [37]

Notes

21 See the statement on discontinuation of ‘Indigenous’ product line and trademark. Press Release, Aveda, Aveda Announces Discontinuation of Indigenous Product Collection (04 November 2003), available at http://aveda.aveda.com/about/press/indigenous.asp [last accessed 13 January 2010].

22 Dora Marinova & Margaret Raven, Indigenous Knowledge and Intellectual Property: A Sustainability Agenda, 20 J. Econ. Surv. 587 (2006).

23 Songman Circle of Wisdom Indigenous Plant Certification Protocol, available at http://www.atns.net.au/agreement.asp?EntityID=2882 [last accessed 13 January 2010].

24 Tribal Link Foundation, http://www.tribal-link.org/ [last accessed 13 January 2010].

25  Traditional Culture: A Step Forward for Protection in Indonesia (Peter Jaszi ed., 2009).

26 Ibid.

27 Charles Knobloch & Dewi Savitri Reni, Using Batikmark as a First Step to Extend Protection of Indonesian Javanese-batik Patterned Textile in Foreign Countries, Arnold & Knobloch, L.L.P., Feb. 5, 2009, http://www.usptclaw.com/pdfs/Batikmark_Article.pdf [last accessed 13 January 2010].

28 This was raised frequently in a series of interviews with batik practitioners. See Traditional Culture, supra note 25.

29 Open Source Yoga Unity v. Choudhury, 2005 U.S. Dist. LEXIS 10440, 2005 WL 756558, 74 U.S.P.Q.2d (BNA) 1434 (N.D. Cal. 2005).

30 Only Iceland and Estonia currently have laws relating to the ownership and governance of genetic databases.

31 National Council for American Indians, Calling Upon the National Geographic Society to Cease the Genographic Project In Its Entirety In All Regions, Res. 08-030 (2008). See also Debra Harry & Le’a Malia Kanehe, Asserting Tribal Sovereignty over Cultural Property: Moving Towards Protection of Genetic Material and Indigenous Knowledge, 5 Seattle J. Soc. Jus. 27, 27–28 (2006–2007).

32 Julie Hollowell & George Nicholas (eds.), Special Section, Decoding Implications of the Genographic Project for Cultural Heritage Studies, 16 Int’l J. Cultural Prop. 131 (2009).

33  Patrick Tierney, Darkness in El Dorado: How Scientists and Journalists Devastated the Amazon (2000).

34 Kabir Bavikatte, Harry Jonas & Johanna von Braun, Shifting Sands of ABS Best Practice: Hoodia from the Community Perspective (2009), http://www.unutki.org/default.php?doc_id=137 [last accessed 13 January 2010].

35 Matthew Isaac Cohen, Performance Reviews, I La Galigo, 22 Asian Theatre J. 138 (2005).

36 This was expressed by many of the government officials interviewed in Indonesia. See Traditional Culture, supra note 25.

37 Kim Griggs, Maori Take On Hi-tech Lego Toys, BBC News, Sept. 26, 2001, available at http://news.bbc.co.uk/2/hi/asia-pacific/1619406.stm [last accessed 13 January 2010].


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Contents

Acknowledgements

I. Introduction

1.1 What is the issue?

1.2 Politics and definitional problems

1.3 Who is involved?

II. Examples of Use and Misuse of Indigenous Knowledge

2.1 AVEDA and ownership of the word ‘Indigenous’

2.2 Registration of batik designs in Indonesia

2.3 Traditional knowledge and Bikram Yoga

2.4 Genetic information, databases of DNA and the Genographic Project

2.5 San/Hoodia case and access and benefit-sharing

2.6 The Bugis creation story and the theater production I La Galigo

2.7 Lego and the use of Maori names

III. Current Proposals: Dangers, Problems and Opportunities

3.1 Current proposals

3.2 Proposals that modify the current intellectual property framework

3.2.1 Labeling and/or trademarks

3.2.2 Moral rights

3.2.3 Confidential information

3.2.4 Performers’ rights

3.2.5 Limitations and exceptions to existing legislation

3.3 Proposals that utilize critical intellectual property discourse

3.3.1 Public domain

3.3.2 Creative Commons

3.4 Proposals that target private law solutions

3.4.1 Protocols

3.4.2 Knowledge registries and databases

3.4.3 Licenses and licensing

3.5 Combined Approach – Toolkits

3.6 Alternative regimes

3.6.1 Customary law

3.6.2 Sui generis legislation

3.6.3 Human rights, cultural rights, community rights?

3.6.4 An international treaty?

3.7 Other international treaties, conventions and instruments

3.7.1 Access and benefit-sharing scheme

3.7.2 The Agreement on the Trade-Related Aspects of Intellectual Property (TRIPS)

IV. Conclusion: Future Direction

4.1 Future directions

4.2 Indigenous peoples’ participation, collaboration and partnership

4.3 Next steps

V. Further Resources

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