I.  Introduction

Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

United Nations Declaration on the Rights of
Indigenous Peoples, Article 31, 2007

1.1 What is the issue?

1.1.1   Indigenous/traditional knowledge and intellectual property law is a complicated contemporary legal problem. There are multiple perspectives and opinions circulating about what the problems are, where they manifest and what needs to happen to alleviate them. [1]

1.1.2   Indigenous people argue that they have legitimate rights to control, access and utilize in any way, including restricting others’ access to, knowledge or information that derives from unique cultural histories, expressions, practices and contexts. Indigenous people are looking to intellectual property law as a means to secure these ends.

1.1.3   There are many difficulties that arise at the intersection of indigenous/traditional knowledge and intellectual property law. The most significant being that intellectual property has a unique European derivation and this informs its modes of classification, identification and operation. [2] Intellectual property law promotes particular cultural interpretations of knowledge, ownership, authorship and property. These do not necessarily correspond to or complement indigenous peoples’ understandings about the role and function of knowledge and knowledge practices. [3]

1.1.4   Indigenous peoples’ interests in intellectual property law raise issues that involve both legal and non-legal components. Problems are not always commercial in nature and can involve ethical, cultural, historical, religious/spiritual and moral dimensions. For example, inappropriate use of sacred cultural artifacts, symbols or designs may not cause financial loss but can cause considerable offense to the relevant community responsible for the use and circulation of that artifact, symbol or design. [4]

1.1.5   The last thirty years has seen lively commentary and active negotiation about the extent that intellectual property law could (or even should) be utilized to protect indigenous peoples’ knowledge. [5] In national, regional and international contexts, attention to this issue from policy makers, legal scholars, other academics and activists has steadily increased. [6] The World Intellectual Property Organization (WIPO) is the primary international body through which discussions and debates have been filtered. [7] Since 2001 it has hosted a regular meeting, the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), to discuss these issues. [8]

1.1.6   Despite many national efforts to protect various manifestations of indigenous knowledge, international consensus has yet to be reached about how indigenous peoples’ rights to the protection of cultural knowledge systems can be secured, either within an intellectual property regime or through some other over-arching legislative or policy framework. [9] While this lack of consensus reflects diverse positions within nation states themselves, it is significant that in the October 2009 meeting of the WIPO General Assemblies, the IGC was given a revised mandate to undertake text-based negotiations that will eventually become an international legal instrument (or instruments) that will ensure the effective protection of ‘Genetic Resources, Traditional Knowledge and Traditional Cultural Expressions.’ [10]

1.1.7   Questions around indigenous knowledge protection are unlike any other issues that intellectual property law has had to consider. This is because indigenous peoples’ concerns are not limited to one area but can stretch across every part of the intellectual property spectrum. One particular issue, for example, the protection of traditional Inuit amauti (clothing), could include legal questions involving copyright, trademarks, designs and/or confidential information. How the problems manifest and are experienced are not always straightforward and often also overlap into other areas of law, policy and ethics (the most common overlaps often involving cultural property, real property or tangible cultural heritage). [11]

1.1.8   These overlaps make for ongoing challenges in terms of developing adequate and appropriate protections. Further issues include:

• developing definitions and descriptions of what needs to be protected;
• identifying owners, custodians and/or other parties responsible for the management of indigenous knowledge;
• what the nature of the protection should entail;
• what the scope of the rights should be;
• what the duration of any protection should be;
• what role, if any, would government agencies or other authorities have;
• what the relationship with the conventional intellectual property system should be;
• whether protection should be retro-active and what transitional measures would need to be developed;
• the relationship between international and national protection; and,
• how foreign rights holders and other beneficiaries are to be recognized. [12]

1.2 Politics and definitional problems

1.2.1   Almost all the terms in this area are contested, have problematic histories and/or defy simple definition. Indigenous, knowledge, local, community, tradition(al), cultural heritage, public, culture/cultural, property, are a sample of the most prominent of these. As Oguamanam perceptively explains:

It is the norm that the majority of writings on this complex subject devote substantial effort to the clarification of terms. Without doubt, clarification of key terms is congruous to analytical integrity and guards against misleading assumptions. In some contexts, however it may portend some form of red herring or escapist expedition from the substantive questions, especially if every given phrase or term is a contested one. [13]

1.2.2   There are a range of political dimensions that inform the definitional disputes. For example, with the term ‘indigenous,’ political issues exist both because of the history of identifying and classifying who an ‘indigenous’ person is and, more contemporarily, because of the changing politics where new indigenous alliances have been formed and negotiated. [14] The multiple terms – indigenous, local, and traditional – that are now used within this discourse illustrate a politics of representation that recognizes the multiple differences linguistically, historically, politically and culturally that need to be accommodated.

1.2.3   The definitional problems with ‘indigenous,’ ‘traditional’ and ‘local’ inevitably affect the classification and identification of the types of knowledge that are recognized and discussed. It is worth remembering that any knowledge, indigenous or otherwise, is notoriously difficult to clearly identify and define. Indeed this has been, and remains, a central problem for intellectual property law. [15] As indigenous knowledge does not really offer itself as a special case to this ongoing internal problem for law, we need to be wary of defining certain knowledge as oppositional and exceptional, as this can reinforce cultural prejudices and biases that actually continue to work to exclude and devalue indigenous knowledge. There must be a strong resistance to the popular binary that sets indigenous knowledge against scientific knowledge, for this binary upholds very specific power relations. [16]

1.2.4   WIPO has offered a range of characteristics that seeks to encompass much of what indigenous people and other experts describe as indigenous/traditional/local knowledge. It is worth being mindful that even the categories that have been developed and are now used in international meetings (for example, genetic resources (GR), traditional knowledge (TK) and traditional cultural expressions (TCE)/or folklore), while established to help describe ‘types’ of knowledge, are newly constructed and therefore can inadvertently erase the inevitable and integral moments of overlap between these kinds of knowledge in practice.

1.2.5   The classification of knowledge into these categories (GR, TK and TCEs) helps create an order which makes the issue more manageable for those that discuss it and need to develop remedies. But this order needs to be understood as a bureaucratic product that serves particular ends. These categories do not necessarily represent how indigenous peoples experience their knowledge systems or how such knowledge systems are talked about. They do not (and arguably cannot) adequately capture the complexity of indigenous peoples’ epistemology and ontology.

1.2.6   It is important to remain mindful of the constructed nature of these typologies as they affect how we understand what the problems are, how needs are anticipated and what kinds of remedies can be imagined.

1.3 Who is involved?

1.3.1   Indigenous interests in intellectual property law can affect around 370 million indigenous people located in over 70 countries. [17]

1.3.2   In international policy making contexts, the participants in the indigenous knowledge and intellectual property discourse tend to primarily include bureaucrats from relevant international agencies, governmental representatives from recognized nation states, representatives from non-governmental organizations, and select indigenous representatives and spokespeople. In addition, there are various academics participating as experts or observers to the proceedings.

1.3.3   Indigenous representation within international policy making contexts is slowly increasing. WIPO, in particular, runs a Voluntary Fund to facilitate indigenous peoples’ participation. [18] There remain ongoing issues about how indigenous peoples can actively participate in decision-making processes when they have very limited voting capabilities and representation within national and international contexts. [19]

1.3.4   With the widespread use of indigenous knowledge within contemporary contexts of arts, sciences and/or technology, there are a range of non-indigenous people that are also inevitably involved within the indigenous knowledge and intellectual property matrix. For instance, researchers working with indigenous communities on a variety of subject-specific topics – language, health, housing, art, biopharma (or biofarma), land management, repatriation, sustainable development, governance – encounter issues around knowledge ownership, control and management.

1.3.5   Pharmaceutical companies working on the development of new drugs that derive from some kind of resource within an indigenous context engage with indigenous knowledge and intellectual property issues. Depending on where the company is located, the issues can be multi-jurisdictional.

1.3.6   Film makers who draw upon indigenous peoples’ cultural stories or songs will also encounter intellectual property issues and ongoing questions about who can speak for whom and in what context.

1.3.7   Librarians, archivists, museum professionals and researchers who utilize any material about indigenous people contained in the vast ethnographic collections spread throughout the world’s cultural institutions will also engage with indigenous peoples’ interests in intellectual property law. Again this will probably involve intellectual property law in multiple jurisdictions. For example, a collection of 1950s’ Aboriginal Australian artworks currently located in a US university will have to engage with Australian copyright law and, if the collection has been digitized, with United States copyright law, as well as other laws relating to the original acquisition of the collection and any loan agreements that might be made with other international institutions. [20]

1.3.8   The range of non-indigenous people or agencies that currently do, or will in the future, engage with intellectual property and indigenous knowledge issues include:

• any researcher in any discipline that works on indigenous issues or with indigenous peoples and within indigenous communities;
• government agencies or government-funded research bodies;
• corporations and other commercial or industrial entities;
• museum, library and archive professionals;
• artists (indigenous and non-indigenous) utilizing or drawing on indigenous artwork, imagery, stories, or songs;
• publishers or designers who utilize indigenous motifs or symbols;
• non-governmental organizations representing indigenous peoples;
• aid agencies working with indigenous peoples as part of development or sustainability projects; and
• philanthropic organizations funding research involving indigenous peoples.

1.3.9   Indigenous peoples are increasingly involved in developing appropriate frameworks for the use of and access to their knowledge systems. The more that indigenous peoples are consulted about what the problems being experienced are, and what options are available to deal with the problems when they emerge, the more likely it is that appropriate policy and legal strategies will be developed that address the vast range of interests in accessing indigenous knowledge.

1.3.10   Given the diversity of indigenous peoples and the variety of existing and developing knowledge management strategies, it will be necessary to initially support and embolden these approaches and subsequently draw significant intersections from which international frameworks of protection could be based.

Notes

1 There are a variety of discursive positions, some of which overlap and borrow terminology and political positions, and some that are unique to each national context, evolving from specific ‘moments’ (legislative or otherwise) in the evolution of this issue. Comparative histories in the emergence of indigenous peoples’ interests in intellectual property are rare, and if they occur they tend to locate the comparison within the success or otherwise of a specific case, but not necessarily with the events that led to, or follow from, that legal precedent. Moreover, there is a larger meta-narrative that many of these contextually driven discussions are easily patched into (provided for instance by the authority of the World Intellectual Property Organization), but the diverse and ‘deep’ politics informing the emergence of indigenous peoples’ interests in intellectual property and its subsequent representation in academic literature is often not addressed. Consider the recent article, Kristen A. Carpenter, Sonia K. Katyal & Angela R. Riley, In Defense of Property, 118 Yale L.J. 1022 (2009), which presents a detailed examination of cultural property arguments related to indigenous peoples within a specific US context. The defense of property that has been identified as necessary and fundamental to this article should not be assumed to follow the same trajectory outside the US. In Australia and New Zealand, for example, the discourse is more heavily drawn into an intellectual property framework; and at least in the case of Australia, this is because copyright was an original area of contest. What this means is that the historical work (and discourse of indigenous peoples’ rights in intellectual property generally) in Australia is much more focused on tracing the exclusions and moments of inclusion with intellectual property law more generally rather than from the dominance of the real property paradigm. There are important and significant differences in what constitutes the locus of the problem from a real property and from an intellectual property standpoint.

2  Brad Sherman & Lionel Bently, The Making of Modern Intellectual Property Law: The British Eexperience, 1760–1911 (1999); Mark Rose, Authors and Owners: The Invention of Copyright (1993); Ronan Deazley, On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth-century Britain (1695–1775) (2004); Peter Drahos, A Philosophy of Intellectual Property (1996).

3 See those expressed in First Nations Cultural Heritage and Law: Case Studies, Voices, and Perspectives (Catherine E. Bell & Val Napolean eds., 2008); Terri Janke, Our Culture: Our Future: Report on Australian Indigenous Cultural and Intellectual Property Rights (1998).

4 Several copyright cases in Australia illustrate this. In the US, questions around the use of Native American names and symbols for team names and logos by sports organizations raise similar issues about inappropriate use. For example, see Harjo v. Pro-Football, Inc., 30 U.S.P.Q.2d (BNA) 1828 (TTAB 1994) and Pro-Football, Inc. v. Harjo, 565 F.3d 880 (D.C. Cir 2009). Also, the use of names and images in other contexts. See Joseph William Singer, Publicity Rights and the Conflicts of Laws: Tribal Court Jurisdiction in the Crazy Horse Case, 41 S.D. L. Rev. 1 (1996). Also see Naomi Mezey, The Paradoxes of Cultural Property, 107 Colum. L. Rev. 2004 (2007).

5 See history of emergence in Jane E. Anderson, Law, Knowledge, Culture: The Production of Indigenous Knowledge in Intellectual Property Law (2009).

6 One example of the increasing focus is the range of regional declarations on indigenous knowledge and intellectual property rights. See: Declaration of Belem, Brazil, July 1988; Kari-Oca Declaration and Indigenous Peoples Earth Charter, Brazil, May 1992 (reaffirmed in Indonesia, June 2002); Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, New Zealand, June 1993; Julayinbul Statement on Indigenous Intellectual Property Rights, Australia, November 1993; Santa Cruz de la Sierra Statement on Intellectual Property, Bolivia, September 1994; Tambunan Statement on the Protection and Conservation of Indigenous Knowledge, Malaysia, February 1995; Suva Statement on Indigenous Peoples Knowledge and Intellectual Property Rights, Fiji, April 1995; Kimberley Declaration, South Africa, August 2002.

7 This raises a range of questions about the authority and legitimacy of WIPO in directing and managing (interest and participation in) this issue. See Brian Noble, Justice, Transaction, Translation: Blackfoot Tipi Transfers and WIPO’s Search for the Facts of Traditional Knowledge and Exchange, 109 Am. Anthropologist 338 (2007). The authoritative power of WIPO is also examined as a form of regulatory governance. See Christopher May, The World Intellectual Property Organization: Resurgence and the Development Agenda (2007).

8 The proceedings arising from the World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore illustrate the extent of opinions and perspectives on this issue, and also the lack of consensus about direction and remedy. See http://www.wipo.int/meetings/en/topic.jsp?group_id=110 [last accessed 13 January 2010].

9 For national initiatives, see, for example: New Zealand, Trade Marks Act 2002; Panama, Law on the Special Intellectual Property Regime Governing the Collective Rights of Indigenous Peoples for the Protection and Defense of their Cultural Identity and their Traditional Knowledge 2000; Philippines, Act to Recognize, Protect and Promote the Rights of Indigenous Cultural Communities/Indigenous Peoples 1997; Republic of Azerbaijan, On Legal Protection of Azerbaijani Expressions of Folklore 2006; United States of America Database of Native American Insignia, Trademark Law Treaty Implementation Act 1998.

10 Kaitlin Mara, “Turning Point” at WIPO Pulls Traditional Knowledge Debate Out at Eleventh Hour, Intellectual Property Watch, Oct. 3, 2009, http://www.ip-watch.org/weblog/2009/10/03/"turning-point"-at-wipo-pulls-traditional-knowledge-debate-out-at-eleventh-hour/ [last accessed 13 January 2010].

11 See Protection of First Nations Cultural Heritage: Laws, Policy, and Reform (Catherine Bell & Robert K. Paterson eds., 2009).

12 These issues have been repeatedly raised in the IGC. See ICG Secretariat, The Protection of Traditional Cultural Expressions/Expressions of Folklore: Revised Objectives and Principles (WIPO/GRTKF/IC/9/4) (prepared for the Ninth Session of the ICG, 24–28 April 2006); available at http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic.../wipo_grtkf_ic_9_4.pdf [last accessed 13 January 2010].

13 Chidi Oguamanam, Local Knowledge as Trapped Knowledge: Intellectual Property, Culture, Power and Politics, 11 J. World Intell. Prop. 29, 35 (2008). Also Chidi Oguamanam, International Law and Indigenous Knowledge: Intellectual Property, Plant Diversity, and Traditional Medicine (2006).

14 Indigenous peoples insist on the right to determine how “indigenous peoples” should be defined. See also, Robert A. Williams, Jr., Encounters on the Frontiers of International Human Rights Law: Redefining the Terms of Indigenous Peoples’ Survival in the World, 1990 Duke L.J. 660 (1990).

15 Other areas of intellectual property law have this same problem.

16 Arun Agrawal, Indigenous Knowledge and the Politics of Classification, 54 Int’l Soc. Sci. J. 287 (2002); Anderson, supra note 5.

17 The Permanent Forum in Indigenous Issues is the central international co-ordinating body on indigenous peoples’ issues. See http://www.un.org/esa/socdev/unpfii/ [last accessed 13 January 2010].

18 In 2009, WIPO initiated an IP Law Indigenous Fellowship within the agency which was to respond to “reciprocal needs for stronger capacity in the rapidly growing domain of Indigenous IP law and for strengthened capacity on IP law and policy for Indigenous lawyers and policy advisors.” The Fellowship is currently held by Mr. Eliamani Isaya Laltaika from the Maasai community in Tanzania. See http://www.wipo.int/export/sites/www/tk/en/fellowship/pdf/laltaika_bio.pdf [last accessed 13 January 2010].

19 Fundamental problems in the constitution of nation states, namely through the denial and non-recognition of differently articulated sovereignties, is already present within the UN system. This is despite the reluctance to recognize this as a core problem feeding issues around indigenous peoples’ representation and voting capacity on issues that directly affect them. Arguably, the United Nations and the nation states that are recognized therein, have a relationship of dependency wherein each requires the other in order to maintain a certain governing and representational legitimacy.

20 The problems for museums, libraries and other cultural collections are extensive and, depending on your perspective, fundamental. They involve questions about the origination (and legitimacy therein) of the collections as well as their treatment, and the effects of their archival treatment. See Henrietta Fourmile, Who Owns the Past? Aborigines as Captives of the Archives, 13 Aboriginal Hist. 1 (1989); Henrietta Fourmile, Aborigines and Captives of the Archives: A Prison Revisited, in Archives in the Tropics: Proceedings of the Australian Society of Archivists Conference 1994 (1994); and Rebecca Tsosie, Contaminated Collections: An Overview of the Legal, Ethical and Regulatory Issues, 17 Collection Forum (2001) 14.