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STRAIT to the future

8th Asia-Pacific Specials, Health and Law Librarians Conference

Indigenous intellectual and cultural property rights

Spencer Lilley
Massey University College of Education

Keywords: Indigenous intellectual property rights; indigenous cultural rights

Abstract

1999 heralds the beginning of the United Nations Decade for Indigenous Peoples. A number of issues will be highlighted throughout the decade and new opportunities will emerge. In recent years both Australia and New Zealand have witnessed a rebirth of interest in indigenous issues. One of the more complex issues that has emerged has been that of cultural and intellectual property rights. Assertion of property rights over traditional forms of knowledge will become one of the leading challenges for indigenous peoples during this decade. Indigenous intellectual and cultural property rights do not fit neatly into western legal frameworks and this therefore leaves the knowledge of indigenous peoples vulnerable to exploitation. Indigenous peoples are establishing their own networks and working through international organisations such as the United Nations Working Group on Indigenous Populations to identify sectors where cultural and/or intellectual property rights are being compromised. Libraries and information centres store and provide access to a variety of resources that fall into the category of intellectual and cultural property and this will subject our sector to intense scrutiny. This paper will identify what constitutes cultural and intellectual property rights, how it conflicts with western law, and what the implications for libraries and information centres are.

Introduction

Intellectual property rights are defined as the rights that people (individuals or institutions) have over their intellectual creations (ie. the creations of their minds). This ownership can exist over new inventions, trademarks, music, literature, designs and plant varieties. Intellectual property ownership rights are normally controlled by legislation, and international conventions and agreements that relate to this area.

Cultural property relates to the physical evidence of a particular cultures development, such as works of arts or archaeological and historical objects. The term cultural property is therefore normally linked with items that can be seen and touched as opposed to intellectual property which can be described as intangible (cannot be seen or touched).

In most Western cultures there is a distinction made between intellectual and cultural property rights. However indigenous peoples do not tend to make this same distinction because they view the two as being inextricably intertwined and one influences the other. Therefore it should be understood that when indigenous peoples are referring to their intellectual property rights that they are being inclusive of their cultural property rights as well.

Indigenous peoples have a number of concerns with current intellectual property laws.

These include:

Ownership
Most of the concerns relate to the fact that legislative frameworks do not provide sufficient protection for their property. Intellectual property rights require that individual or joint authorship be clearly established before protection will be granted.
In indigenous societies it is not always possible to establish ownership of traditional knowledge or to determine who created cultural works. Traditional knowledge or cultural works are more likely to have been created over many generations and are deemed to be owned collectively by the tribal or family group.
Protection
Another concern relates to the fact that most intellectual property laws offer limited periods of protection (Copyright normally exists for the life of an author plus fifty years). Limited protection allows the limitation of the scope and length of monopolies. Indigenous peoples do not subscribe to this view as they believe that they are the guardians of their property for future generations. Once the protection period of intellectual property rights legislation lapsed there would be no guarantees that the intellectual and cultural property would remain in the domain of indigenous peoples.
Self-determination
Indigenous peoples wish to define the scope and nature of their intellectual and cultural property and to have their definitions recognised by governments, industry and key international organisations such as the United Nations. In New Zealand, Maori have based the exertion of their intellectual and cultural property rights on the guarantees made in the Treaty of Waitangi which was signed by Maori and representatives of the British Crown in 1840. Article Two of the Treaty guaranteed to Maori "the unqualified exercise of their chieftainship over their lands, villages and all their treasures" (see appendix one). This has been carried further through the registration of a claim to the Waitangi Tribunal (a statutory board established by the New Zealand Government in 1975 to investigate grievances resulting from breaches of the Treaty of Waitangi). The claim relates to the ownership of indigenous flora and fauna and that the Crown has denied Maori proprietary interests by granting plant variety rights in relation to indigenous flora and permitting and encouraging extensive land clearance and habitat destruction, which has detrimentally affected indigenous species.

Mataatua Declaration on Cultural and Intellectual Property of Indigenous Peoples

In June 1993 over 150 delegates from fourteen countries attended a conference in Whakatane focusing on cultural and intellectual property rights of indigenous peoples. Delegates to the conference issued a declaration which made recommendations to all nation states, the United Nations and indigenous peoples. This declaration has become known as the Mataatua Declaration on Cultural and Intellectual Property Rights (see appendix two)

The key themes in the declaration are:

Indigenous peoples are the exclusive owners of their customary knowledge, cultural and intellectual property rights and are entitled to protect and direct the dissemination of that knowledge
Existing international protection mechanisms are woefully inadequate of indigenous peoples cultural and intellectual property rights
Indigenous peoples should define for themselves their own intellectual and cultural property
Commercialisation of any traditional plants and medicines of indigenous peoples should be directed only by those who have inherited such knowledge
Museums and other institutions provide an inventory of any indigenous cultural objects held in their possession and these objects should be offered back to their traditional owners.

The Mataatua Declaration and annual sessions of the United Nations Working Group on Indigenous Populations (WGIP) have helped to establish an international forum for indigenous intellectual property rights. The Working Group on Indigenous Populations has been involved in drafting a Universal Declaration on the Rights of Indigenous Peoples. The draft declaration contains references to cultural and intellectual property rights in at least four articles. References to indigenous intellectual property rights were also made at the United Nations Conference on Environment and Development (aka Earth Summit).

Other international agreements and projects have made indigenous peoples suspicious of the actions of their individual government's commitments to protecting their cultural and intellectual property rights. The Uruguay Round of the General Agreement on Tariffs and Trade signed in 1994 made it possible for biodiversity mining to take place. The major beneficiaries of biodiversity mining are multinational pharmaceutical companies who exploit local indigenous knowledge to identify plants that have medicinal value and thus are attractive for their commercial marketability and profit potentials.

The GATT agreement has also made it possible to patent human genetic materials. The Human Genome Diversity Project also known as the 'Vampire Project' involves the taking of genetic samples from communities. Many of these are indigenous communities and are obvious targets due to the fact that in many cases they are considered to be unique or in danger of extinction. The major concern is that these genetic samples can be modified and patented, and might lead to the development of new products. A cure for cancer or AIDS will be of major benefits worldwide including indigenous communities but there are serious ethical issues at stake here which are of major concern to advocates of indigenous intellectual property rights.

Having put intellectual and cultural property rights into context we will now turn our attention to the role of knowledge centres. It is also necessary to look at the position of museums on this issue.

The implications for knowledge centres

Knowledge centres worldwide contain a variety of items that can be considered to be classified as cultural and intellectual property of interest to indigenous peoples.
These items include manuscripts, diaries, oral history recordings, video recordings, photographs, artworks, archaeological artefacts, human remains, and examples of material culture (eg. weapons, clothing, cooking utensils, etc.) These items were acquired by a variety of methods including purchase or donation. The major issues that indigenous peoples wish to address to knowledge centres and museums are ownership and access.

Ownership

Who owns indigenous property held in knowledge centres
Although institutions may have paid for cultural or intellectual artefacts or had them bequeathed by a donor, indigenous peoples believe that the knowledge within these items belongs to them collectively. It must also be recognised that most indigenous societies are tribal in their nature. Basically speaking this means that in indigenous people's eyes, different items will belong to different groups. For example in New Zealand, Maori is the generic name given to the indigenous peoples. However the concept of the Maori race is a post-European discovery concept. Maori before this and to this day identify themselves to their individual iwi (tribe) and hapu (sub-tribe). Although all tribes share common traits they are each unique in their own way, for example each tribal area has a distinctive carving and artistic style, its own dialect of Te reo Maori (Maori language), different stories of their origins and historic feats, unique waiata (sung poetry) and kapa haka (action songs), and a distinctive whakapapa (genealogy) line. Each iwi considers this to be their property which they are obliged to protect and to pass onto the next generations. The knowledge contained within these items is on the whole vital to the identity of their iwi and should in some circumstances not be shared with those outside the group.

Access
Knowledge centres are full of the resources ripe for exploitation by those wishing to use indigenous information to their own advantage

The Mataatua Declaration insisted that the first beneficiaries of indigenous knowledge (cultural and intellectual property rights) must be the direct indigenous descendants of such knowledge.

Indigenous peoples worldwide however have witnessed the exploitation of their knowledge by others wishing to profit from it. Profiteers range from individuals building their own academic careers by using and interpreting indigenous knowledge in their research to pharmaceutical companies using indigenous medicinal remedies as the basis for their commercial drugs or fashion designers using indigenous art forms as a template for their designs.

Limiting access to knowledge is a foreign concept to many of those in the library and information industry, although those that work in the special library arena are aware that there are times that commercially sensitive information must not be shared beyond the organisation or even with other parts of the organisation.

Indigenous peoples ask that their ownership over these resources be recognised and that their requests to have access to some or all of these resources be respected.

Advancing the relationship between the knowledge profession and indigenous peoples

Australia and New Zealand have become more conscious in the last two decades of the rights of their respective indigenous peoples. In both countries indigenous peoples have become more active in their political aspirations and in the assertion of ownership rights over land and natural resources. Success in these activities has given indigenous peoples the confidence to flex their muscles in other areas such as cultural and intellectual property rights. Although knowledge centres are yet to become a specific target it is a matter of 'when it happens' rather than 'if' it will happen.

It is therefore essential for knowledge centres that have items that can be classified as cultural and intellectual property to become aware of the issues surrounding these materials. It is essential that these centres be pro-active in developing a harmonious working relationship with the relevant indigenous group they belong to.

The development of this relationship will in most cases be a slow process. Both parties will need to become familiar with the cultural practices of the other. Trust is an important element. Indigenous peoples are conscious of the process of consultation. In New Zealand, Maori have been "consulted" on a range of issues by successive governments but with the Government having an agenda that has been pre-set. Knowledge centres should avoid falling into this trap.

Do not consult with just any member of the indigenous group. It is important to ensure that the persons that you are consulting with have the authority to negotiate on behalf of the group. Conflicts are just as likely to exist in indigenous societies as they do in other sectors of society.

Knowledge centres must learn to be flexible and respectful of the cultural practices of the indigenous group. It is becoming normal in the New Zealand sector for Maori cultural practices to precede and close formal proceedings such as meetings, conferences, business deals. Such occasions will normally include karakia (prayers), Whaikorero (formal speeches) and waiata (sung poetry). It is also possible for there to be cultural restrictions as to how cultural and intellectual property items can be stored or held by centres in order to protect their tapu (sacredness) nature.

Representatives of the indigenous group may be happy for their treasures to be retained by appropriate institutions, although they may wish to retain the rights of ownership and the right to restrict the access to these materials. Such restrictions may include only making their property available to members of their group, or to not allow the copying and distribution of the material to other knowledge centres without the permission of the owners.

Conclusions

This paper has addressed the major differences in interpretation of intellectual property rights by Western and indigenous cultures. Knowledge centres are sitting on a timebomb which must be defused by knowledge workers seeking a proactive relationship with the indigenous owners of the cultural and intellectual property rights.

Biographical Sketch

Spencer Lilley is the Library Manager at Massey University College of Education in Palmerston North. His previous experience includes three years as a Lecturer in Library Studies at the Wellington College of Education and professional experience at the Treasury and the Parliamentary Library.
Spencer is of Maori, Samoan and European descent and was a foundation member of Te Ropu Whakahau (Maori Library and Information Workers Association) and an active member of the Library and Information Association of New Zealand Aotearoa since 1988.
Spencer has a keen interest in a range of indigenous peoples information issues including intellectual property rights and information literacy.