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Center for the Study of the Public Domain Little men

Indigenous/Traditional Knowledge & Intellectual Property

III.  Current Proposals: Dangers,
        Problems and Opportunities

3.1 Current proposals

3.1.1   Indigenous people and communities are experiencing problems in multiple areas of knowledge control and knowledge governance, especially when dealing with non-indigenous people and other third party interests. It is unlikely that one specific legislative development would comprehensively solve all the issues currently being encountered – especially because, as illustrated above, the issues can also cut across different bodies of law. [38] While there is profound political significance in the development of an international approach to indigenous intellectual property issues, there is also an urgent need to develop local strategies that are appropriate to both community and context and are, importantly, more immediately accessible.

3.1.2   The extent of current proposals reflects the complexity of the issues for law, policy and local/national/regional/international governance. In the outline of these below, it is clear that they are neither uniformly coherent nor necessarily applicable for every instance or in every context. Loosely they can be grouped into five separate categories:

  • proposals that modify the current intellectual property framework;
  • proposals that utilize other areas of critical intellectual property discourse;
  • proposals that target private law solutions;
  • combined approaches;
  • alternative regimes; and
  • international treaties and conventions.

3.1.3   That the proposals range from international and overarching frameworks (treaties) to localized and targeted strategies (private law making) reflects the different opinions about what the nature of the problem is and what kinds of solutions might be developed that would provide immediate relief or remedy. The current proposals presented below necessarily respond to the diversity of the issues, the different kinds of people affected, and the ongoing questions about access to law and legal advice that remain central. Given the complicated dimensions informing this area, a single solution is perhaps inappropriate.

3.1.4   For these proposals, and ones that might be developed in the future, it is important that significant attention is given to making them accessible as this will affect their utility and impact. Any successful intervention in this area is dependent on the capacity for indigenous peoples and communities to make informed decisions about what options are available and appropriate for each problem and each context.

3.2 Proposals that modify the current intellectual property framework

3.2.1   Labeling and/or trademarks

3.2.1.1   There are a range of circumstances where indigenous people have utilized labeling or other marks, including trademarks, to protect products within a market. [39] Certification marks, and marks of origination, can work well for indigenous people especially when the value of the product is tied to its derivation within a particular context or by a particular group. [40]

3.2.1.2   Labeling is most useful for indigenous knowledge products that are already operating within the marketplace as (cultural) goods. The use of labels also works well when consumers are educated about specific labels and how labels function as an indication of the originality and/or authenticity of the products. Labeling systems that denote a product’s indigenous origin, either in context or personhood, enable indigenous works to be more easily identified and differentiated from non-indigenous works and/or copies that may be available.

3.2.1.3   Labeling and marks require both infrastructure and administration to make them effective. There can be significant costs associated with developing and policing labels or marks. [41] For many indigenous communities these can present practical barriers to their adoption. For example, prior to the granting of the trademark, specific administration is needed to make sure that the trademark meets certain requirements. [42] The role and responsibilities of national governments in these processes may warrant further analysis.

3.2.1.4   In Australia, many indigenous communities use specific marks or labels on their goods to signal to consumers that the works originate from a particular community. The specificity of attribution and naming using a labeling system affirms the distinct identity that each community has from one another. In contexts where homogenous indigenous identities have been historically assumed (often as a by-product of colonialism) and perpetuated, group and community labeling is an effective tool to re-affirm distinct community and/or collective identity. Labeling thus brings benefits to both the indigenous communities and to consumers.

3.2.1.5   While labeling cannot stop the counterfeiting of indigenous products, it can provide an advantage in a marketplace since labels provide the consumer with the ability to differentiate the fakes from the genuine indigenous works. In New Zealand, for example, the “toi iho” is a specific Maori trademark that is designed to promote and sell authentic Maori arts and crafts. [43]

3.2.1.6   One notable problem that has lead to failures with national labeling systems, (like the Labels of Authenticity in Australia) is that these labeling systems can, unintentionally, reinforce and promote an ‘authentic’ and homogenous indigenous identity. This becomes problematic when indigenous people either do not ‘fit’ into the required category, or do not want to identify in such a way, as it is too restrictive for identity and/or for artistic practice. [44] Observing the moments of failure in this area can provide valuable lessons about what is important for indigenous peoples and communities to ensure ongoing participation in such strategies, as well as recognizing what kinds of realities indigenous peoples are working within. Importantly this includes accounting for collaborative work and respectful and important working relationships between indigenous and non-indigenous people.

3.2.1.7   All proposals have the potential to change current practices. In every context it is important to make sure that the advantages and reasons for creating a label are adequately explained, and appropriate means for utilizing a label are discussed and agreed upon within the relevant community context. There have been circumstances in Indonesia, for example, where labeling has been promoted among rural women’s weaving collectives, but not adequately explained. Following the workshop on labeling run by an NGO, many women in the collective started to weave large identifiable labels (which were the names of the family or community to which the designs ‘belonged’) into their works. Unfortunately, this significantly altered the aesthetic appeal of the works and directly affected their value in the market – as the works were unable to be sold. While this outcome was not necessarily predicted in the information workshop on labeling, it occurred as a direct result from the information provided and affected the women’s direct means of livelihood.

3.2.2   Moral rights

3.2.2.1   Moral rights derive from the French droits d’auteur or rights of the author. [45] These generally involve the right of attribution, the right to have a work published anonymously and the right to the integrity of the work (not to have the work altered, distorted or mutilated). They are inalienable and cannot be transferred except through an agreement between the creator and a third party. Moral rights are in addition to standard copyright rights and are generally recognized in civil law jurisdictions. [46] They are not economic rights. For moral rights to exist there does need to be a copyrighted work and a creator/author.

3.2.2.2   Distinct from any kind of economic right, moral rights directly address the relationship between the creators/artists/authors and their work. Thus there have been suggestions that moral rights could offer an effective means for protecting indigenous peoples’ rights in works that utilize or derive from indigenous knowledge. Certainly a primary concern for indigenous peoples has been the limited acknowledgement or attribution associated with works. While there are numerous examples of works being misused and maltreated, for instance sacred images being simplified and transferred onto carpets, fabric and other mediums that distort and denigrate the significance of the imagery for indigenous people, there is yet to be a case that utilizes current moral rights legislation. [47] Therefore it is not yet clear how moral rights could alter, or provide some remedy for this kind of scenario. [48]

3.2.2.3   Moral rights are premised upon the creators’ and/or artists’ relation to their work. Such concepts are dependent upon historical constructions of authorship and legal subject, and works that are capable of being identified according to the culturally specific modes of classification inherent to intellectual property law. Moral rights are ineffective, for example, if an indigenous work is not recognized as legitimate copyright subject matter. Also, moral rights only protect the rights of individuals not of communities or collectives. Generally, sound recordings are excluded from moral rights protection. This is a problem because with the ongoing patterns of oral cultural transmission and low literacy levels, significant amounts of indigenous knowledge have been recorded and exist as sound recordings. [49]

3.2.2.4   Nevertheless, moral rights could answer many indigenous peoples’ requests to be named and associated with works in whatever context they appear. This is not dissimilar to the effect that moral rights have for other artists/creators. Naming can also counteract the common perception of an undifferentiated “indigenous person” and bring recognition to the local contexts from which works derive, circulate and have multiple meanings. In many situations, moral rights could address specific issues about naming and having control over the integrity of a work, although this can only happen when the work meets the criteria for copyright protection.

3.2.3   Confidential information

3.2.3.1   The laws protecting confidential information or trade secrets are varied within each legislative context, but they do hold important possibilities for the protection of indigenous knowledge. This is especially the case for secret/sacred information.

3.2.3.2   There are at least two notable cases where indigenous people have employed laws of confidential information successfully. [50] Both occurred in Australia and predated the successful copyright and Aboriginal art litigation that took place in the 1980s and 1990s. Both cases related to the publication of the book Nomads of the Desert by the anthropologist Charles Mountford. The publication released significant and secret ceremonial information of the Pitjantjatjara people. While Mountford was well aware of the sensitivity of the material, he was unwilling to withdraw the book from sale, which in the first case led to an injunction against the sale of the book within the Northern Territory, Australia. The court recognized the legitimacy of the claim, made by the Pitjantjatjara Council on behalf of the Pitjantjatjara, Yankuntjatjara and Ngaanyatjara peoples, that disclosure of the information had serious and potentially dangerous consequences for community social structures.

3.2.3.3   The second case also involved the Pitjantjatjara Council and related more specifically to the viewing and selling of Mountford’s slides, some of which were used in his book and others that were from his collection. The Final Orders of the court granted property in, and ownership of, the slides. As Kathy Bowrey explains:

This second case is very significant in recognising that the remedy to the breach of confidence required orders affecting claims to both tangible and intangible property – slides as chattel property and to copyright in the photographs. [51]

3.2.3.4   In a recent review of a mining proposal in Canada, a federal panel of the Canadian Environment Assessment Agency granted the Tsilhqot’in National Government’s request that certain current and traditional/cultural information be deemed confidential. As the panel’s decision states:

After reviewing the Tsilhqot’in National Government’s request and the comments received from interested parties, the Panel is satisfied that disclosure of the series of maps depicting current use and cultural heritage information derived from interviews with Tsilhqot’in members could potentially result in harm to either the environment or to the Tsilhqot’in people. As such, the Panel, is granting the request that the series of maps be kept confidential. [52]

3.2.3.5   Given these instances and how this area of law speaks more directly to indigenous peoples’ concerns about appropriate disclosure of information, it is surprising that it has not been used more often. While there may be difficulties in satisfying the key elements that constitute a breach of confidence claim (especially the conditions set out in the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement), it nevertheless offers itself as a useful tool that could be further developed and used in conjunction with other strategies. For example, an obligation of confidence could be expressly conveyed in new cultural protocols or license agreements.

3.2.4   Performers’ rights

3.2.4.1   Performers’ rights are interpreted as neighboring rights – that is they are similar to the rights of an author (protected through copyright), but are not necessarily connected to the rights of an author of a work. Performers’ rights are understood as generating a distinct kind of right and this has been recognized in international law since the 1961 Rome Convention. [53]

3.2.4.2   While the Rome Convention and TRIPS agreement protect performances of literary or artistic works only, the 1996 WIPO Performances and Phonographs Treaty (WPPT) extends intellectual property rights to expressions of folklore. [54] As Antony Taubman explains, this is significant because:

In recognizing economic and moral rights over performances of folklore, the WPPT potentially gives traditional performers control over the songs, chants, and recitations that are the customary means of transmitting and preserving their cultural heritage and traditional knowledge. To some extent, the sui generis protection of traditional knowledge it that is represented by aural performances of expressions of folklore is already part of binding international law in the form of the WPPT, which partially anticipates political demands for such an international instrument. [55]

3.2.4.3   The utility of performers’ rights as articulated in the WPPT is dependent upon their translation into national jurisdictions. Workable national regimes that are in compliance with the treaty will provide scope for protecting performers’ rights deriving from performances of expressions of folklore. The treaty also leaves the definition of a performer relatively flexible, and it is important that expressions of folklore do not have to be original or otherwise copyrighted. This also extends the scope of protection that could be offered under national legislation. Questions remain about retroactivity and the application of these rights to foreign nationals, or performances of expressions of folklore occurring outside the national context, and require further investigation.

3.2.5   Limitations and exceptions to existing legislation

3.2.5.1   Limitations and exceptions to existing legislation may provide an opportunity for indigenous people to access protected works and to address other specific needs. Copyright law, in particular, lends itself to this approach. One advantage is that an exception could be created that directly targets a key problem being experienced by indigenous people as a specific community of intellectual property users. Examples of exceptions for certain users exist, most notably, for libraries and archives, and for other (usually non-commercial) uses of works under copyright legislation.

3.2.5.2   One exception that could be developed within copyright, for example, might target indigenous people as very specific kinds of users of cultural material already existing as copyrighted works. Indigenous people often find themselves in the position of not being the legal ‘owners’ or ‘authors’ of works that draw on their knowledge and knowledge systems. This is one of the legacies of documentation and collecting projects involving indigenous peoples that were carried out by researchers, colonial administrations and non-indigenous governments. What this means contemporarily is that in order to use material from these collections – to make reproductions and copies, for example, of a ceremony, dance, song series, etc. – indigenous people often need to secure permission from the copyright owner first. An exception for indigenous users could be developed that would permit limited uses of copyrighted works for cultural education, display within the community, performance and other non-commercial and community-oriented purposes, without having to get permission from the copyright holder.

3.2.5.3   The development of exceptions or limitations in future intellectual property legislation could recognize that indigenous peoples constitute a different kind of user group. One potential disadvantage of this idea is that the development of a special class of user would require definition, regulation and monitoring – such processes ironically replicating those that were created and imposed on indigenous peoples throughout the colonial period and carried into the contemporary present. What is required is innovative thinking that is attuned to the effects of legal definitions upon indigenous peoples, while at the same time anticipating future needs and creating possibilities for new responses within law. Exceptions and limitations do offer some new kinds of options however, especially as they recognize that not all users of copyright material are necessarily the same, or have the same needs. [56]

3.3 Proposals that utilize critical intellectual property discourse

3.3.1   Public domain

3.3.1.1   The concept of the ’public domain’ has become one of the most important concepts contributing to the formation of a critical intellectual property discourse. Advocates for the public domain provide a much-needed counter-framework to understand the cultural and economic effects of the monopoly privileges upheld through conventional intellectual property rights. [57]

3.3.1.2   There are a range of reasons why indigenous knowledge issues cannot always be accommodated within this critical intellectual property discourse. In short, this is because the history and politics informing indigenous knowledge issues and the history and politics informing arguments for the public domain are not the same. Indigenous peoples’ historical exclusion from the broad category of ‘public’ feeds part of the differences in objectives. Indigenous peoples also present different perceptions of knowledge, the cultural and political contexts from which knowledge emerges, and the availability, or perceived benefits of the availability, of all kinds of cultural knowledge.

3.3.1.3   For indigenous peoples, contests over access to knowledge arise because of the historical conditions that meant that indigenous people lost control over how and what knowledge was to be circulated. [58] When much of this material was made, there was no meaningful explanation about the extent of circulation, the potential uses and possible third party users. [59] While this is perhaps also the case for much information collected prior to the 1980s, the conditions that led to the study and collection of indigenous knowledge and cultural materials in the first place raise different moral and ethical problems. [60] Far from being reconciled, this historic problem is actually exacerbated by the potential for increased circulation of these materials. [61] As a response to this, there have been circumstances where indigenous people have argued that some knowledge should be withdrawn from circulation and that for specific kinds of knowledge, protection should be granted in perpetuity.

3.3.1.4   An ongoing concern is that the public domain can also be interpreted as a culturally specific framework that reinforces the invisibility of past and ongoing indigenous peoples’ practices in regards to knowledge management – where certain kinds of knowledge have very specific rules governing access and circulation. [62] To adequately deal with these differences, it may be best to understand indigenous peoples’ issues vis a vis the public domain as ones primarily about control and renegotiating culturally appropriate conditions for access. Thus part of the dialogue for public domain advocates is in creating space for alternative cultural interpretations about the advantages and disadvantages of circulating knowledge to be included as legitimate.

3.3.1.5   Indigenous knowledge issues invite further discussions about history, politics, the role of cultural authorities and the power relationships inherent in conceptions of ‘the public,’ ‘common heritage,’ ‘sharing’ and ‘freedom.’ The innovative and progressive sites where issues pertaining to the public domain are most intrinsically engaged offer important opportunities for the differences experienced by indigenous people in relation to knowledge access and control to be meaningfully engaged. They also offer possibilities for alternative frameworks for protection, use and sharing to be thoughtfully developed.

3.3.2   Creative Commons

3.3.2.1   Creative Commons is another major venue for advocacy and functions as part of the critical alternative intellectual property discourse. While advocates for the public domain and Creative Commons have different ambitions and trajectories for action, there are similar precepts that link them together in important ways.

3.3.2.2   Creative Commons is a licensing framework that seeks to provide an alternative to the copyright regime, and the implied ‘all rights reserved’ model that copyright upholds. The development of Creative Commons licenses, and their success and transferability across multiple jurisdictions, speaks to the need for alternative frameworks for the uses of works. In creating conditions where specific needs (for example, attribution, acknowledgement, non-commercial use) can be incorporated and prioritized, there is a fundamental reworking of the intellectual property paradigm. As indigenous peoples are also asking for reform that acknowledges their different needs in relation to knowledge control and circulation, there is the very real possibility of addressing specific indigenous peoples’ needs through innovative and alternative licenses like Creative Commons.

3.3.2.3   With over fifty jurisdictional licenses to accommodate local copyright and private law, the philosophical underpinnings of the Creative Commons framework seems able to accommodate differences experienced at local levels. As one of the greatest needs in the area of indigenous knowledge protection is to embolden local knowledge management strategies, licensing offers a range of new possibilities where there is space for acknowledging that indigenous peoples are not a homogenous group and that the significance and value of knowledge and works that are developed from such knowledge are often directly tied to context and locality.

3.3.2.4   Creating the conditions for proper and ongoing advice in relation to the creation of a specific license (or licenses) for indigenous knowledge use remains a central issue. In addition, there are dangers in replicating some of the problems that have plagued the area of ‘labeling’ as discussed earlier. Most specifically in relation to creating homogenous licenses that might categorize all indigenous peoples’ needs as the same, though different from any other group’s needs. There are other more general questions of jurisdiction, but these affect all forms of licensing and are not necessarily limited to Creative Commons.

3.3.2.5   It would be incredibly helpful to have Creative Commons develop a range of indigenous–knowledge-specific licenses. These should be developed in collaboration with specific communities and thus respond to local and particular needs. Indigenous peoples’ issues must be incorporated into the critical intellectual property discourse as legitimate even if the expectations and needs are not necessarily the same. While these may initially be challenging (for instance in raising questions such as ‘whose commons?’), a robust and critical intellectual property discourse will benefit from addressing all those who have been historically excluded from this body of law. [63]

3.4 Proposals that target private law solutions

3.4.1   Protocols

3.4.1.1   Over the last ten years there has been a steady increase in the development of protocols to deal with issues of access, control and ownership of indigenous knowledge. [64] Protocols have played an important role in establishing new kinds of relationships between indigenous people, indigenous communities and other organizations and/or non-indigenous people.

3.4.1.2   In general, protocols can be understood as context-driven policy. They can be developed to address specific problems and provide guidance in relation to appropriate behavior when it is required. Protocols can incorporate community perspectives and be targeted to particular issues. For example, protocols have been developed for libraries and archives, for visual artists, and for collaboration between filmmakers. [65] Protocols have become an important tool for changing attitudes and behavior around indigenous knowledge access, use and management. Protocols make new kinds of negotiation possible.

3.4.1.3   Protocols are codes of conduct, guidelines or sets of manners that explain how people should behave in certain circumstances. [66] They can be used to set community standards around knowledge circulation and use for outsiders as well as help change attitudes and set new standards. Generally, protocols are flexible and can change over time. It is important to see them as tools to help achieve certain goals that other areas of law have been unable to fulfill. As formal or informal guidelines for behavior, protocols can help build relationships and make new ones possible. [67]

3.4.1.4   Importantly, protocols are not necessarily dependent upon bureaucracies or governments. Protocols respond to community or local needs and can be developed locally – they are not a ‘top down’ approach. As they are flexible and can change over time, they can incorporate community and/or more localized practices and expectations of behavior. This also means that as practices change so too can the protocols.

3.4.1.5   The structures that protocols take can vary depending on what they are needed for and who they are aimed at. [68] Protocols tend to be written but they do not need to be. For example, they could be put on video, taped or put online. Written protocols are often helpful when dealing with people from outside the community, but this may not be the case when protocols are used within a community.

3.4.1.6   On their own, protocols may not be legally binding. This means, for example, if a research group promised to follow a protocol that prohibited them from taking plants from a community, there might not be legal recourse if plants were actually removed from the community. However, because protocols are articulated and negotiated with specific regard to practical detail within community contexts, they are a source and form of private law. This means that they can have legal standing.

3.4.1.7   Protocols are prescriptive and they offer indigenous peoples a range of options. This is especially true in situations where indigenous people may not want to engage with formal legal mechanisms, but would rather find means for articulating customary law or local laws specific to the context. Protocols provide conditions for indigenous peoples’ agency in the sense that they can embolden already existing practices rather than imposing new ones. This is one of the central reasons why they have been adopted and are increasingly found across all areas involving negotiations around indigenous knowledge use.

3.4.2   Knowledge registries and databases

3.4.2.1   Transmission of indigenous knowledge historically and in many contexts continues to occur orally. Unfortunately this has facilitated its use and appropriation by others, especially because the extensive documentary projects by non-indigenous people led to the archiving of these materials in centers far from the original communities. Owing more to hierarchies of knowledge production and perceptions that scientific knowledge is more ‘true’ or ‘trustworthy’ than indigenous knowledge (partly facilitated through ideas of ‘accuracy’ in documentation practices), many researchers have drawn upon indigenous knowledge for their own ends without acknowledgement. Particularly in the context of biodiversity a range of patents have been granted that directly utilize (but do not acknowledge) indigenous knowledge about plants, medicinal properties and methods of extraction. Turmeric and neem are two of the most controversial (and popularly cited) cases where patents were granted to individuals when the knowledge that they were drawing upon was widely known within the relevant communities, but had not been recorded in tangible form. [69] These examples put the problem of trust between parties squarely on the table.

3.4.2.2   Knowledge registries and databases are developed for a variety of reasons. What the kind of registry or database holds depends on who created it and who might use it. [70] For example, indigenous knowledge databases have been initiated by libraries and archives in specific nations. [71] Others have been created by anthropologists working on knowledge projects in specific communities. [72] Some are created as documentary and archival sites for indigenous peoples themselves; while others record and document traditional indigenous knowledge so as to prevent it from being used by others without acknowledgment. [73] One rationale for this latter version is that by recording the knowledge it will exist as documentation, and thus can as a cross-check against contentious claims (most usually patent claims) proving the prior existence of the knowledge.

3.4.2.3   The most comprehensive database is India’s Traditional Knowledge Digital Library (TKDL). [74] It holds 36,000 formulations utilized in Ayurvedic medicinal practice. The TKDL categorizes the knowledge in ways that allow it to be linked to international patent classification systems. The information is available in English, French, German, Spanish and Japanese for ease when searching.

3.4.2.4   Such databases, registries and libraries are being advocated nationally and regionally. This defensive intellectual property strategy has a number of merits but also several dangers. Collecting information in order to ‘prove’ the prior existence of knowledge being passed off in a commercial patent as unknown is extremely important. This is particularly useful in contexts like India where the state has direct investment and involvement in protecting knowledge.

3.4.2.5   Unfortunately this is not the case for every country where indigenous people reside. To the contrary, knowledge databases can provide even greater access to outside parties seeking indigenous knowledge. Databases, registries and libraries can facilitate access to traditional knowledge without users ever having to deal or negotiate directly with an indigenous community. The uneven legal protection for databases exacerbates the problem. The question of ownership also arises – not only who owns the database (as a whole), but who is recorded as the legal ‘owners’ of the documented knowledge, how long this material will be protected for and what might happen if there are inter-community disputes over who the rightful owners or custodians are.

3.4.2.6   The creation of traditional knowledge databases does not escape the problem of determining intellectual property ownership. The same problems of ownership (especially in recognizing community or collective ownership and whether this is desirable or appropriate) persist. Indeed such databases operate squarely within the intellectual property paradigm – which also means that all this information will eventually come into the public domain for anyone to use. [75]

3.4.2.7   For many indigenous people, there remains the further problem of decontextualizing knowledge and knowledge practices from the locales that actually make it meaningful. Through this process, salient dimensions of the knowledge may be lost. It is also worth being mindful of re-creating colonizing paradigms of knowledge control through these recording processes. For instance, where will the databases be located? Will indigenous peoples be able to access them easily? Who does the recording? What kind of literacy support (digital and other) is provided to the participating communities?

3.4.2.8   Different communities will have particular concerns which could range from general questions about the documentation of their knowledge (and whose priorities are being followed) to questions about who will own, manage and access the information in the future. These issues need to be negotiated with the particular community from the outset of the establishment of the database, registry or library. Given how contested these areas actually are, it is worth being mindful of how database projects could replicate exactly the same concerns and future problems.

3.4.3   Licenses and licensing

3.4.3.1   Indigenous people do not necessarily perceive their knowledge systems to be free and open for all to use. To the contrary, there can be very specific rules governing access to and use of knowledge within communities and between families, clans and/or individuals. As noted above in relation to Creative Commons, licenses and licensing agreements offer an opportunity to develop culturally appropriate regulation where indigenous peoples’ perspectives and needs can be legitimately addressed.

3.4.3.2   The development of indigenous–knowledge-specific licenses will take time and consultation. There will also need to be attention to linguistic differences and literacy needs. Most indigenous communities also have ongoing issues in relation to accessible legal advice – and how, for instance, to negotiate and use a license with an outside party if and when the need arises. If this strategy is linked to several others, it might provide new kinds of leverage for indigenous peoples’ interests and increased capacity to negotiate culturally appropriate frameworks for the use of knowledge and knowledge products.

3.5   Combined Approach – Toolkits

3.5.1   The toolkit approach is an overarching framework explaining the multiple options available for protecting knowledge in any indigenous context. It aims to address the overlapping and immediate needs of communities when engaged in, and participating in, research projects, tourism projects, biopharma projects – generally any project where indigenous people are participating and indigenous knowledge might be utilized.

3.5.2   The toolkit seeks to make available a range of options that can be tailored by the community depending on what is happening and how the community would like to respond. In providing multiple options, final decision-making is localized – that is, indigenous people are able to participate in the decisions about which strategy is the most appropriate for the case at hand. This strategy recognizes the need for negotiation between different representative bodies within a community itself and the space for adaptation and dialog about what is happening within the location, under whose auspices and with what expectations for outcomes. It seeks to provide information and options for local governing representatives.

3.5.3   Any toolkit needs to be developed in accessible ways, mindful of the limited capacity for communities to hold equal negotiating positions with researchers and other parties who might come and do research within indigenous contexts. With toolkits containing guidelines, model contracts, agreements and frameworks for making informed decisions about what options are available and how to proceed, the biggest issues remain ones of ongoing advice, translation, funding, capacity for follow-up and sustainability.

3.6 Alternative regimes

3.6.1   Customary law

3.6.1.1   Indigenous peoples have argued consistently that if indigenous knowledge is to be respected and protected then attention needs to be given to the manifold indigenous laws and governing structures that historically and contemporarily exist for regulating knowledge use. That is, indigenous laws need to be treated as legitimate and given appropriate authority, rather than dismissed and/or supplanted with national or international laws. [76]

3.6.1.2   Indigenous laws, as distinct from international intellectual property law, are localized and contextual. They derive from specific locations and they are not necessarily transferable across communities. The particularity of indigenous laws presents intellectual property law, and the desire for ‘harmonization’ or standardization, with substantial challenges. This is not only in relation to recognizing legitimate sources of authority within communities, but also how rules that may be community-specific are respected outside the local context.

3.6.1.3   The incorporation of indigenous laws and rules into western legal frameworks requires more thorough consultation and development. [77] Initially, however, the most useful way to incorporate indigenous laws and forms of governance for access and control of indigenous knowledge is through agreements or protocols (see above). These should be articulated by the community itself, and thus a framework that helps establish the conditions for this to occur is necessary.

3.6.1.4   Building frameworks to enhance the authority and legitimacy of indigenous laws must be central to any developments in this area. Over time, it may be possible to identify and synthesize key dimensions of knowledge management across communities, but this is a long-term goal. The short-term strategy starts with recognizing the existence of local knowledge management strategies, and building frameworks that actively support and endorse these even when they may offer alternatives to the current intellectual property regime.

3.6.2   Sui generis legislation

3.6.2.1   Owing to the perceived difficulties of building new mechanisms that directly address indigenous peoples’ needs and expectations about knowledge use and control within the current intellectual property law framework, suggestions for an altogether different approach have been made. Sui generis law means of its own kind, that is, it is a unique law complete unto itself and often created when current and existing laws are inadequate. [78]

3.6.2.2   A significant issue in this area is that indigenous peoples must be constantly translating and transplanting their concepts into frameworks of rights that are not necessarily appropriate or that may not address their expressed needs. To the extent that indigenous knowledge can be protected through laws of intellectual property, this is only possible through concepts including property, ownership, works, monopoly privilege, exclusive rights, originality and individual authorship.

3.6.2.3   Proposals for sui generis legislation for the protection of indigenous knowledge and indigenous rights are slowly being crafted. [79] Countries like Peru and Panama have been at the forefront of developing national sui generis legislation.

3.6.2.4   There is often confusion about sui generis legislation, particularly in relation to how it does or does not fit into an intellectual property regime. The benefit of sui generis legislation is that it in no way has to resemble any current law, intellectual property or others. Thus it offers an opportunity for participation by indigenous people and flexibility in developing frameworks that deal with knowledge control, use and sharing. As Tobin and Swiderska comment:

The role of a sui-generis regime could therefore be to establish a bridge between indigenous/local community and national and international legal systems, in order to secure the effective recognition and protection of rights which derive from customary law and practice. [80]

3.6.2.5   There are ongoing debates about how sui generis legislation should be developed. For instance, is it appropriate for international agencies to assist in the development of sui generis legislation or should each nation state take responsibility for the development of a sui generis approach that is appropriate to the circumstances of each context? Other issues, such as the diversity of subject matter, the difficulty of identifying owners/custodians, and the applicability, enforceability and transferability of sui-generis legislation across diverse cultural contexts raise challenges, and responses to these will affect what approaches are taken.

3.6.3   Human rights, cultural rights, community rights?

3.6.3.1   Given the challenges to developing options for the protection of indigenous knowledge, there are efforts to move the debate beyond an intellectual property paradigm. A shift in the argument positions indigenous peoples’ rights to control, use and derive benefit from indigenous knowledge as fundamental human rights, and therefore treated as part of a human rights discourse rather than as part of an intellectual property framework. [81]

3.6.3.2   Shifting the view and potential legal context changes the way the issues are conceptualized. This could be useful because protecting indigenous knowledge outside the very contexts that enable the production and transmission of indigenous knowledge, which is essentially what intellectual property law offers, seems to raise some fundamental problems.

3.6.3.3   Support for the very communities from which indigenous knowledge derives and is sustained is a necessary component of any knowledge protection strategy. Support and sustainability for indigenous cultures include issues of health, housing, land rights, and the capacity for cross-generational transfer and transmission of knowledge. These all affect the life of indigenous knowledge. [82]

3.6.3.4   A human rights approach allows indigenous peoples’ rights in knowledge control to be considered as one part of a larger rights framework in which indigenous peoples are already actively participating. [83]

3.6.3.5   The subjectivity of indigenous people from which indigenous knowledge derives gets re-situated through the connection between indigenous interests in intellectual property and human rights. Arguing for rights through the human rights prism centralizes the people component and re-arranges how the assemblages between people, knowledge and property rights are to be made.

3.6.3.6   While the shift to a human rights discourse offers useful possibilities for re-interpreting the issue, the capacity for effecting fundamental changes within the intellectual property regime is perhaps minimal. In this sense, indigenous issues start to again be treated as ‘exceptional’ rather than showing the problems to lie within the genesis and operation of the (intellectual property) law itself. Another potential tension involves the relationship between individual rights and collective rights. [84] There are the additional and pragmatic questions as to what extent nation states take human rights issues seriously, and where and how any abuses or violations are to be meaningfully overcome – for example how would a local law center in a remote community realistically be able to respond?

3.6.4   An international treaty?

3.6.4.1   The international debate on indigenous knowledge is very clearly segmented into specific divisions of traditional knowledge, traditional cultural expression and genetic resources. These divisions are contested and highly political; however, there is a wide range of overlap in the strategies that have been developed and proposed. [85]

3.6.4.2   The proposals for an international treaty in this area provide an opportunity to streamline activity, ask fundamental questions about what is at stake and for whom, and develop an appropriate approach. An international treaty could offer an overarching authoritative framework for negotiating equitable relationships in the use of indigenous knowledge.

3.6.4.3   Yet questions of jurisdiction, enforceability and constructing fundamental concepts remain as significant challenges. The highly contested political nature of indigenous knowledge debates also slow the progress of an international treaty. Other questions, about consensus, indigenous peoples’ participation in the design, adoption, and ratification of a treaty, and who the parties to such a treaty would be, are also not easy to resolve.

3.6.4.4   The recent commitment to develop a binding international instrument or instruments raises hope that some kind of international instrument, perhaps in the form of a treaty, will be forthcoming. A productive way to advocate and think through this issue will be to look at what individual nation states are developing as well as what indigenous communities are developing. It is vital that successes and failures of proposals and alternatives are given proper analysis as there remain significant issues that need to be negotiated and mediated. Sensitivity to the range of complex interests, as well as the unequal negotiating positions that indigenous peoples occupy in practice will directly affect the success and the usefulness of any new instrument.

3.7 Other international treaties, conventions and instruments

3.7.1   Access and benefit-sharing scheme

3.7.1.1   Often when economic benefits are derived from the use of indigenous knowledge, very little makes it back to the original community or group of people who were instrumental in the sharing of the knowledge to the external parties to begin with. The most lucrative areas that often produce little return for indigenous peoples are in the context of use of knowledge about genetic resources and biodiversity. [86] Traditionally, knowledge that has been collected from indigenous peoples and/or samples collected from indigenous lands has been considered to be ‘raw material’ from which commercial products, involving a range of patents, could then derive. This approach, while having a very specific Enlightenment rationale, devalues indigenous knowledge and overlooks the significance of this knowledge as a foundation to any future commercial product.

3.7.1.2   Within the UN Convention on Biological Diversity (CBD), there has been a sustained effort to develop mechanisms that recognize the value and significance of indigenous knowledge within the life sciences and biotechnology industries. In particular, the Conference of the Parties of the CBD has been working to develop an international regime on access and benefit-sharing of biological resources. This scheme seeks to develop equitable means for indigenous communities to derive benefits from any knowledge that they grant access to in the context of genetic resources. Such benefits for the indigenous community or group are not necessarily dependent upon the future financial benefits that may be developed. Rather, the scheme aims to create conditions where the knowledge of the source community is recognized and valued at the point of transfer/exchange. [87]

3.7.1.3   An access and benefit-sharing scheme depends on the creation of agreements between parties that recognize the contribution that each makes as well as the value of those contributions. Material Transfer Agreements (MTAs) have been developed as a means for establishing equitable relationships involving knowledge sharing and transfer. MTAs are governed by contract law and draw on legal concepts from intellectual property law, technology transfer and anti-trust law. Generally the MTAs identify the provider and the recipient of the materials, define the materials, explain what the recipient can do with the materials and what the obligations of each party are. [88]

3.7.1.4   The development of an access and benefit-sharing scheme recognizes the value of indigenous peoples’ knowledge, especially in areas where such knowledge has become highly desired. Not only do indigenous peoples have the right to be involved in any decision making within research projects that involve themselves or their knowledge, but they also have the right to derive benefits from any products that are developed as a result of these participatory projects. [89] However, the use of contract law, while offering a legal framework to secure indigenous peoples’ rights, still requires translation and legal advice. The primary way in which access and benefit-sharing agreements are being articulated is through protocols. [90] There remain significant concerns again about unequal negotiating positions – not only between a community and a researcher/researchers, but also between a national government and a community. This is particularly the case since what is also being negotiated in this context is the recurring issue of sovereignty over land and biological resources.

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

3.7.2.1   One major critique of the 1994 TRIPS agreement is the profound silence around the protection of indigenous or traditional knowledge. [91] This has been interpreted as problematic for developing countries, many of whom, like India and Brazil, consider themselves to be responsible for protecting traditional and indigenous knowledge. [92]

3.7.2.2   The profound shift in international intellectual property governance that the TRIPS agreement has produced has re-established the value of certain ‘types’ of knowledge over others. The perceived incompatibility between the TRIPS agreement and the Convention on Biological Diversity specifically manifests around biological and genetic resources. While the CBD recognizes the collective rights of local communities, and their rights to derive benefits from biodiversity resources, TRIPS promotes monopoly rights through further intellectual property rights (via patents). As the tensions increase, states are increasingly asking which treaty takes precedence over the other.

3.7.2.3   The fundamental problems fueling these questions around the TRIPS agreement and its limited recognition for indigenous/traditional knowledge are not easily remedied. For indigenous peoples’ participation to be secured, the position that they hold within the international system needs to be addressed. While indigenous peoples’ visibility and political mobilization have increased, indigenous peoples are still subject to the decisions made by nation states.

3.7.2.4   Any possible augmentation within the TRIPS agreement for indigenous peoples’ interests needs to come through this already existing framework. It is in this way that utilizing the existing provisions for geographical indication (GI) has offered the possibility for a different kind of protection, albeit in limited ways.

3.7.2.5   Geographical indications are a form of protection that utilize the name of a region or area where a product originates. Functioning in similar ways to trademarks and other forms of labeling, GIs help a consumer to identify products and ensure that they have a certain quality and reputation. Article 22 of the TRIPS agreement states that governments must provide legal opportunities in their own laws for the protection of GIs. [93]

3.7.2.6   GIs offer certain protections for traditional and indigenous knowledge, but only to the extent that there is a product and it is circulating within a market. Moreover, there are various difficulties for the protection of indigenous knowledge that span communities, locations and even countries. In such circumstances GIs have the potential danger of granting monopoly rights over knowledge to one region when that knowledge is, in reality, spread over many regions.

3.7.2.7   When assessing the utility of GIs, it is vitally important to also address the potentiality of conflicts between communities, and productively find ways of mediating these from the outset. This approach is not appropriate for all communities and attention to different circumstances within each context is necessary.

Notes

38 The recent mandate from the WIPO General Assembly, where an agreement within the IGC to undertake text-based negotiations to develop an instrument or instruments to protect genetic resources, traditional knowledge and traditional cultural expressions, also recognizes that more than one instrument is perhaps most appropriate.

39 In Australia, for example, Aboriginal communities developed the Labels of Authenticity and in New Zealand the ‘toi iho’ is a registered trademark for products of Maori origin. Unfortunately both of these initiatives are no longer in operation, with the ‘toi iho’ mark most recently ceasing operation due to high administrative costs. See “Toi Iho To Be Scrapped,” TangataWhenua (Māori News & Indigenous Views), Oct. 23, 2009, http://news.tangatawhenua.com/archives/1456 [last accessed 13 January 2010]. For a further discussion about the reasons leading to the demise of the Labels of Authenticity in Australia, see Anderson, supra note 5.

40 A recent example involves a negotiated agreement with the Cowichan Tribe in Canada and the retailer Hudson Bay to provide Cowichan sweaters for the Vancouver Olympic Games. As part of the agreement, Cowichan sweaters that will be sold through the retailer will be identified specifically as Cowichan and will include information about the Cowichan Tribe and the history of the knitters in the community. See Daphne Bramham, Cowichan Knitters Win Olympic Showcase to the World, Vancouver Sun, Oct. 29, 2009, available at http://www.vancouversun.com/life/Cowichan+knitters+Olympic+showcase+world/2157672/story.html [last accessed 13 January 2010]. Another example involves the Amauti Project, which worked with the Pauktuutit Women’s Collective in Canada to develop a means for incorporating knowledge about intellectual property law to protect the traditional designs, knowledge and heritage in traditional clothing. See Phillip Bird, Intellectual Property Rights and the Inuit Amauti: A Case Study (2002), available at http://www.kipo.ke.wipo.net/export/sites/www/tk/en/igc/ngo/wssd_amauti.pdf [last accessed 13 January 2010].

41 This is particularly the case for trademarks.

42 As a complementary strategy, trademark regimes have made amendments that aim to prevent the registration of trademarks that derive from indigenous contexts. New Zealand is one country that has made the relevant amendments, appointing representatives to form the Maori Advisory Council to advise the Trademarks Commissioner as to the likely offensiveness of trademarks containing Maori text and imagery.

43 For more information on the ‘toi iho’, see http://www.toiiho.com/Aboutus/tabid/249/Default.aspx [last accessed 13 January 2010].

44 Regarding the Labels of Authenticity in Australia, one comment made in a legislative report suggests further limitations: “It became apparent that the ‘one size fits all’ approach did not factor in the individual needs and differing situations of Indigenous communities, and that the test for Aboriginality was too complex with over 75 per cent of applicants failing the requirements.” Indigenous Art – Securing the Future: Australia’s Indigenous Visual Arts and Craft Sector, Senate Standing Committee on Environment, Communications, Information Technology and the Arts, Para 10.16 (Commonwealth of Australia, 2007), quoted in Kathy Bowrey, Economic Rights, Culture Claims and a Culture of Piracy in the Indigenous Art Market: What Should We Expect from the Western Legal System?, Australian Indigenous L. Rev. (forthcoming 2010). (The Standing Committee’s entire report is available on line at http://www.aph.gov.au/SEnate/committee/ecita_ctte/completed_inquiries/2004-07/indigenous_arts/report/index.htm.)

45  Elizabeth Adeney, The Moral Rights of Authors and Performers: An International and Comparative Analysis (2006).

46 Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886, revised at Paris July 24, 1971, art. 6, 25 U.S.T. 1341, 828 U.N.T.S. 221, available at http://www.wipo.int/treaties/en/ip/berne/trtdocs_wo001.html#P119_19081.

47 Not every national jurisdiction has moral rights legislation.

48 The most cited cases are Australian and include: Bulun Bulun v. R&T Textiles (Pty) Ltd (1998) 41 I.P.R. 513 (sacred images reproduced on fabric); and Milpurrurru & Ors v. Indofurn Pty Ltd and Ors (1994) 30 I.P.R. 209 (culturally significant images reproduced on carpets).

49 In an innovative move, Australia has proposed legislation that seeks to take account of the communal dimensions of indigenous knowledge. While the draft legislation for a communal moral rights amendment to the country’s copyright act has been discussed for several years, there has been no further development. One issue impeding movement is the definition of an indigenous community for the purposes of legislation. Other problems include how to manage disputes when they arise and how to help indigenous peoples develop their capacity to make informed decisions and access legal advice at any stage. The practical concerns compromise any rebalancing or re-organization of power relationships around controlling indigenous knowledge, because indigenous peoples remain in difficult positions both in regards to knowing what their rights are and how these can be translated, understood and negotiated. See also Jane Anderson, The Politics of Indigenous Knowledge: Australia’s Proposed Communal Moral Rights, 27 U.N.S.W.L.J. 585 (2004).

50 The two cases are: Foster v. Mountford & Rigby Ltd (1976) 14 A.L.R. 71, and Pitjantjatjara Council Inc and Peter Nganingu v. John Lowe and Lyn Bender (unreported) Supreme Court of Victoria (Crockett J), 25 and 26 March 1982, [1982] Aboriginal L. Bull. 30. For the most comprehensive outline of these cases see: Kathy Bowrey, Indigenous Culture, Knowledge and Intellectual Property: The Need for a New Category of Rights, in Australian Intellectual Property: Commentary, Law and Practice (Kathy Bowrey, Michael Handler, & Dianne Nichol eds., 2010).

51 Ibid.

52 As quoted in Erin Hitchcock, Panel Grants TNG Request for Confidentiality, Williams Lake Tribune, Nov. 24, 2009, http://www.bclocalnews.com/bc_cariboo/williamslaketribune/news/72273352.html [last accessed 15 January 2010]. See also http://www.ceaa-acee.gc.ca/050/documents/39767/39767E.pdf [last accessed 15 January 2010].

53 International Convention for the Protection of Performers, Producers of Phonograms, and Broadcasting Organizations art. 7, Oct. 26, 1961, 12 U.S.T. 2377, 496 U.N.T.S. 43; available at http://www.wipo.int/treaties/en/ip/rome/trtdocs_wo024.html#P97_7400 [last accessed 15 January 2010].

54 See WIPO Performances and Phonograms Treaty, art. 2(a), Dec. 20, 1996, S. Treaty Doc. 105-17 (1997), 36 I.L.M. 76 (1997), available at http://www.wipo.int/treaties/en/ip/wppt/trtdocs_wo034.html#P69_4021 [last accessed 15 January 2010].

55 A. Taubman, Nobility of Interpretation: Equity, Retrospectivity, and Collectivity in Implementing New Norms for Performers’ Rights, 12 J. Intell. Prop. L. 351 (2004–2005).

56 While exceptions and limitations could be useful in accounting for different kinds of needs that are presented by indigenous people, changes to existing legislation require considerable political will. Unfortunately, given the multiple areas where urgent indigenous peoples’ issues of health, housing, mortality and access to resources remain marginal concerns, it is hard to imagine that the political will to make changes to existing legislation in meaningful ways for indigenous peoples’ interests is likely to occur.

57 See the extensive work conducted through the Center for the Study of the Public Domain at Duke Law School. http://www.law.duke.edu/cspd/ [last accessed 15 January 2010].

58 Kathy Bowrey & Jane Anderson, The Politics of Global Information Sharing, 18 Soc. & Legal Stud. 479 (2009).

59 Jane Anderson, (Colonial) Archives and (Copyright) Law, NOMOREPOTLUCKS, July–Aug. 2009, http://www.nomorepotlucks.org/article/copie-no4/colonial-archives-and-copyright-law [last accessed 17 August 2010].

60 Russel Lawrence Barsh, Who Steals Indigenous Knowledge? 95 Am. Soc’y Int’l L. Proc. 153 (2001).

61 For discussion in the context of early 1970s Aboriginal art and its contemporary display and circulation in exhibitions, see: Fred Myers, Seeing Too Much, Seeing Too Little: The Predicament of Aboriginal Painting in Central Australia, Manuscript from Performing Indigeneity Conference, University of Iowa (May 2009), and Distinguished Lecture in Association with the Art Exhibition “Icons of the Desert,” New York University (Sept. 17, 2009). See also Lorie Graham & Stephen McJohn, Indigenous Peoples and Intellectual Property, 19 Wash. U. J.L. & Pol’y 313 (2005).

62 As noted by the Saami Council: “Indigenous peoples had rarely placed anything in the so-called ‘public domain,’ a term without meaning to [us,] . . . the public domain is a construct of the IP system and does not take into account domains established by customary indigenous laws.” Quoted in Taubman, supra note 55, at 347.

63 Anderson, supra note 59.

64 Australia has led the way in the creation of cultural protocols, especially in the context of the arts and media. In general, see the work of Teri Janke and the Australia Council. See also http://www.abc.net.au/indigenous/education/cultural_protocol/resources.htm [last accessed 15 January 2010]. The Hopi Tribe has an established set of protocols for researchers, see http://www.nau.edu/~hcpo-p/hcpo/index.html [last accessed 15 January 2010]. See also the Protocols for Native American Archival Materials, http://www2.nau.edu/libnap-p/protocols.html [last accessed 15 January 2010].

65 See, for example, Australian Library and Information Association, Aboriginal and Torres Strait Islander Protocols for Libraries, Archives and Information Services (endorsed at the Aboriginal and Torres Strait Islander Library and Information Resources Network (ATSILIRN) conferences, December 1994 and September 1995), available at http://www1.aiatsis.gov.au/atsilirn/protocols.atsilirn.asn.au/index0c51.html?option=com_frontpage& Itemid=1 [last accessed 15 January 2010].

66 The word protocol derives from the Greek protokollen – meaning ‘table of contents’ or ‘first sheet.’ It is also understood to refer to the first sheet glued into a book to help direct or provide guidance to a reader in interpreting the document. The use of the word protocol in the contexts of indigenous peoples follows these very early understandings of the term – especially as the point of cultural protocols are to provide preliminary directions for conduct and/or behavior for those who might not know or have access to the appropriate rules. A protocol sits somewhere between formal law, regulation and policy. It is mainly informal but can be made formal. It is a very useful device for mediating behavior in and across culturally different contexts.

67 The success of the Internet Protocol, in creating a form of governance for the Internet, raises interesting points of similarity and convergence. Useful parallels can be drawn here. A helpful initial text focusing on protocols in the Internet context is Alexander R. Galloway, Protocol: How Control Exists after Decentralization (2004).

68 “The Optional Protocol [the latest international mechanism of the International Covenant on Economic, Social and Cultural Rights] aims to enable those whose economic, social and cultural rights are violated—and who are denied a remedy in their countries—to seek justice at the international level. It also stands to influence decisions by judicial bodies at the national and regional levels and create more opportunities for people to advocate for the enforcement of economic, social and cultural rights within their own countries.” Shira Stanton, Event: Enforcing Economic, Social and Cultural Rights - The Hope and Challenge of the Optional Protocol, Center for Economic and Social Rights, Sept. 21, 2009, http://www.cesr.org/article.php?id=390 [last accessed 15 January 2010]. See also the UN Office of the High Commissioner for Human Rights, for a full copy of the Optional Protocol, available at http://www2.ohchr.org/english/bodies/cescr/docs/A-RES-63-117.pdf [last accessed 15 January 2010].

69 There is extensive literature on the neem and turmeric patent, see Further Resources.

70 For a good discussion and comparative analysis, see Merle Alexander, K. Chamundeeswari, Alphonse Kambu, Manuel Ruiz & Brendan Tobin, The Role of Registers and Databases in the Protection of Traditional Knowledge (2003), available at http://www.ias.unu.edu/binaries/UNUIAS_TKRegistersReport.pdf [last accessed 15 January 2010].

71 See, for example, the Northern Territory of Australia, Library Knowledge Centres at http://www.ntl.nt.gov.au/about_us/knowledgecentres [last accessed 15 January 2010]. Also see the Maarifa Knowledge Centres in Kenya, Tanzania and Uganda at http://www.comminit.com/en/node/297001/306 [last accessed 15 January 2010].

72 See, for example, http://www.mukurtuarchive.org/ [accessed 15 January 2010].

73 See, for example, the Alaska Traditional Knowledge and Native Foods Database, http://www.nativeknowledge.org/login.asp [last accessed 15 January 2010]; the Honey Bee Database, http://www.sristi.org/wsa/ [last accessed 15 January 2010]; the Traditional Ecological Knowledge Prior Art Database, http://ip.aaas.org/tekindex.nsf [last accessed 15 January 2010]; the Database of Indigenous Knowledge and Practice, http://www.worldbank.org/afr/ik/datab.htm [last accessed 15 January 2010]; the Traditional Knowledge Revival Pathways, http://tkrp.com.au/index.php?option=%20com_content&task=view&%20id=28& Itemid=39 [last accessed 15 January 2010]; and the Korean Traditional Knowledge Portal, http://www.koreantk.com/en/m_about/about_01.jsp?about=1 [last accessed 15 January 2010].

74 See the Traditional Knowledge Digital Library, http://www.tkdl.res.in/ [last accessed 15 January 2010].

75 The TKDL is owned jointly by India’s autonomous Council of Scientific and Industrial Research and the Indian government’s Ministry of Health and Family Welfare, Department of Ayurveda, Yoga, Unani, Sidh and Homeopathy (AYUSH).

76 This also raises ongoing questions of indigenous peoples’ sovereignty and self-determination. See Wallace Coffey & Rebecca Tsosie, Rethinking the Tribal Sovereignty Doctrine: Cultural Sovereignty and the Collective Future of Indian Nations, 12 Stan. L. & Pol’y Rev. 191 (2001).

77 See Brendan Tobin, Redefining Perspectives in the Search for Protection of Traditional Knowledge: A Case Study from Peru, 10 Rev. Eur. Community & Int’l Env. L. 47 (2001).

78 Examples of sui generis legislation in relation to traditional/indigenous knowledge include the USA Indian Arts and Crafts Act 1990; Panama Law No. 20 (June 26, 2000) and Executive Decree No. 12 (March 20, 2001). Another example of sui generis legislation relating to indigenous peoples’ rights is the Australian Native Title Act 1993.

79  Janke, supra note 3.

80  Brendan Tobin & Krysyna Swiderska, Speaking in Tongues: Indigenous Participation in the Development of a Sui-Generis Regime to Protect Traditional Knowledge in Peru (2001) at 47.

81 Philippe Cullet, Human Rights and Intellectual Property Protection in the TRIPS Era, 29 Hum. Rts. Q. 403 (2007); and, Laurence R. Helfer, Toward a Human Rights Framework for Intellectual Property, 40 U.C. Davis L. Rev. 971 (2007).

82 Jane Anderson, Developments in Intellectual Property and Traditional Knowledge Protection, in Traditional Knowledge and Indigenous Peoples (2009).

83 See S. James Anaya, International Human Rights and Indigenous Peoples (2009). The 2007 UN Declaration on the Rights of Indigenous Peoples insists on the importance of issues of cultural rights and community rights in the debate.

84 Angela R. Riley, (Tribal) Sovereignty and Illiberalism, 95 Cal. L. Rev. 799 (2007). Riley is an excellent commentator on the complexities that this raises for human rights. See also, Indigenous Peoples and the Promise of Globalization: An Essay on Rights and Responsibilities, 14 Kan. J.L. & Pub. Pol’y 155 (2004), and, Indian Remains, Human Rights: Reconsidering Entitlement Under the Native American Graves Protection and Repatriation Act, 34 Colum. Hum. Rts. L. Rev. 49 (2002).

85 For example, because debates over genetic resources tend to specifically engage with patent law, other developments in areas such as cultural expressions and copyright are not necessarily incorporated into these discussions.

86 The bio-prospecting/biopharma industry is complex and involves a range of participants, not all of whom are equally represented or in positions to negotiate at the various stages of knowledge transfer or development.

87  Secretariat of the Convention on Biological Diversity, Access and Benefit-Sharing in Practice: Trends in Partnerships Across Sectors (2008), available at http://www.cbd.int/doc/publications/cbd-ts-38-en.pdf [last accessed 19 January 2010].

88 The Material Transfer Agreement is also dependent on the concept of prior informed consent. This is where approval has been sought from the indigenous/local community, and the rights of the community have been recognized. The researcher or bio-prospector has the obligation to make sure that prior informed consent has been obtained before the collection of samples or the use of any knowledge gained in situ.

89 In a similar vein, Peter Drahos has proposed the establishment of a Global Bio-Collecting Agency. Drahos argues that part of the way to overcome the regulatory difficulties of developing mutually satisfactory and beneficial contractual arrangements between parties that have extremely challenging power and trust relationships will be in the establishment of a global collecting agency. Peter Drahos, Indigenous Knowledge, Intellectual Property and Biopiracy: Is a Global Bio-Collecting Agency the Answer? 22 Eur. Intell. Prop. Rev. 245 (2000).

90 Margaret Raven, Protocols and ABS: Recognising Indigenous Rights to Knowledge in Australian Bureaucratic Organizations, Indigenous L. Bull. July 2006, at 13, available at http://austlii.law.uts.edu.au/au/journals/ILB/2006/39.html#Heading47 [last accessed 19 January 2010].

91 C. Oguamanam, Local Knowledge as Trapped Knowledge: Intellectual Property, Culture, Power and Politics, 11 J. World Intell. Prop. 29 (2008); O. B. Arewa, TRIPS, Traditional Knowledge: Local Communities, Local Knowledge in Global Intellectual Property Frameworks, 10 Marq.Intell. Prop. Rev. 155 (2006).

92 Peter Drahos has written extensively on the TRIPS agreement and its complexities. See Peter Drahos & J. Braithwaite, Information Feudalism: Who Owns the Knowledge Economy? (2002). Also S. Sell, Power and Ideas: North-South Politics of Intellectual Property and Anti-Trust (1998). See also M. Davis, International Trade, the World Trade Organisation and the Human Rights of Indigenous Peoples, Balayi: Culture, Law & Colonialism (2006) Vol 8.

93 India, for example, has sought to register traditional remedies and Ayurvedic preparations as protected through GIs. See how the Indian government explains geographical indications at http://www.patentoffice.nic.in/ipr/gi/geo_ind.htm [last accessed 19 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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