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Folklife at the International Level: Issues in Protecting Traditional Cultural Expressions

Ann Tome (right) interviews a Maasai community member during fieldwork training exercises for the Community Cultural Documentation program, Il Ngwesi, Kenya. Photo by Guha Shankar, 2009.

In the last “Folklife at the International Level” post, Wend Wendland, Director of WIPO’s Traditional Knowledge Division, recounted that the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) was formed by WIPO member states in 2000. The aim was to discuss issues relating to the protection of TCEs (called at the time “expressions of folklore”) via specially adapted IP rights, with a view towards creating potential international norms. Strides have been made since, especially since 2010, when the Committee’s main objective focused on reaching agreement on actual text of a potential international legal instrument, or instruments.

Elsewhere, Mr. Wendland has noted that these text-based negotiations have taken a rather slow pace, due to a range of reasons that highlight key unresolved policy and legal questions, such as: “What does “traditional” really mean? Who would the beneficiaries of new rights be? What would the scope of new rights be? And, which exceptions and limitations to the rights ought there to be?” He adds:

This enthralling and historic negotiation is the first-ever developing country-led international normative effort in intellectual property. It is re-imagining age-old IP concepts such as “public domain”, “prior art”, “originality”, “novelty”, and “authorship/inventorship”. The challenges are, therefore, immense.[1]

For more than a decade, AFC leadership has contributed important insight to these discussions as part of several U.S. Delegations to IGC session meetings at WIPO headquarters in Geneva, Switzerland.[2] The Center’s involvement began in the early 2000s after former Director, Peggy Bulger, met Mr. Wendland at a separate meeting in Beijing, China and learned about the newly-established IGC. For the third IGC session in 2002, she was able to join the U.S. Delegation as a means for ensuring that public folklorists are involved, bringing valuable on-the-ground perspectives on culture, its vast diversity, and the challenges that can arise when helping to sustain it for the future.[3]

Over the years, the U.S. Delegation has comprised representatives from the State Department, the U.S. Patent and Trademark Office, the U.S. Copyright Office, and the permanent mission to the World Trade Organization, among others. As such, the involvement of public folklorists, and allied professionals in the cultural sector, was and still is important, as they often work to safeguard and promote living cultural traditions in collaboration with the local communities who embody, express, and change them. David Taylor, former Head of Research and Programs at the AFC, was a member of the Delegation in 2003, at the fifth session of the IGC. He remembers having felt that representing the field of folklore was especially needed during negotiations, a sentiment that Elizabeth Peterson, current AFC Director, who has participated in recent sessions of the Committee, has also shared.[4] During the ninth session in 2006, as discussed later, Peggy Bulger took the floor to, among other reasons, call attention to and “advance the role of ethnographers (folklorists, anthropologists, ethnomusicologists, etc.) and archivists” in documenting and preserving TCEs, and in striving ethically to ensure that TCEs are not misappropriated. As stated in the session’s report, she noted that “this important role had largely been absent from the Committee’s discussions to date.”

The Twenty-Eighth Session of WIPO’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) took place in Geneva, Switzerland from July 7 to July 9, 2014. Wend Wendland is second from right. Copyright: WIPO. Photo: Emmanuel Berrod. Shared to Flickr with a Creative Commons License.

It is important to note that in addition to Member State delegations, non-governmental organizations (NGOs) have also been accredited to participate in the IGC sessions as observers.[5] Tracing back the participation of NGOs, one finds that the number of such organizations dedicated to indigenous culture and rights has greatly increased since the third IGC session. From 2002 onwards, indigenous organizations, such as the Saami Council, Indigenous Peoples Council on Biocolonialism, and the Assembly of First Nations, as well as the Native American Rights Fund and the Tulalip Tribes of Washington from the U.S., among many others, have regularly participated as observers.[6]

At the 2003 session, a representative of the Pauktuutit Inuit Women of Canada[7] “requested recognition by the Committee that, just as Member States’ opinions were rich and diverse, so too were the views of Indigenous Peoples” and noted that she “did not presume to speak on their behalf, since their views were as diverse as their traditional territories of origin.” The representative went on to stress that:

Indigenous Peoples’ contributions to the Committee’s work were absolutely necessary to the development of valid, accepted and credible instruments that may protect Indigenous TK [Traditional Knowledge] and TCEs. Practical implementation of any models, guidelines and recommendations developed by the Committee, norm setting or otherwise, would require a process in which Indigenous Peoples were all mutually invested.

Indeed, challenges relating to the protection of indigenous TCEs (and TK) have taken a significant amount of the spotlight during meetings, and rightly so. In order to reach consensus and achieve some sort of international legal instrument that serves to protect TCEs, a core issue that was brought to light early on in discussions concerns the concept and uses of “public domain,” particularly in relation to – or rather, in conflict with – indigenous, customary laws. According to the eighth edition of Black’s Law Dictionary, as cited by WIPO, public domain is defined as:

The universe of inventions and creative works that are not protected by intellectual-property rights and are therefore available for anyone to use without charge. When copyright, trademark, patent, or trade-secret rights are lost or expire, the intellectual property they had protected becomes part of the public domain and can be appropriated by anyone without liability for infringement.

However, as documented in the 2003 session report, a representative of the Tulalip Tribes reminded participants that ‘public domain’ is very much a Western concept, the history of which “and its relation to the development of IP rights would show that the two had developed hand in hand, as an outcome of Western intellectual movements during the late Enlightenment and the Age of Reason.” The representative was responding to an analysis on legal protections for TCEs prepared by the WIPO Secretariat and developed from previous IGC session documents.[8] This analysis outlined two ‘sides’ of debates on living cultural heritage in the public domain by noting:

Holders and custodians of TCEs question whether the public domain status of cultural heritage offers the greatest opportunities for creation and development. Yet others argue that the public domain character of cultural heritage is valuable as its [sic] allows the regeneration and revitalization of cultural heritage. The public domain status of cultural heritage is also tied to its role as a source of creativity and innovation. Neither members of a cultural community nor the cultural industries may be able to create and innovate based on cultural heritage if exclusive private property rights were to be established over it.

While the Secretariat acknowledged that these two arguments are not mutually exclusive, and that a “comprehensive solution may draw on both points of view,” they do echo the basic conundrum of this entire exercise: striking a balance between protecting TCEs (and their creators) while also allowing for their creative and innovative use by others.

Returning to the 2003 session, the Tulalip Tribes representative underscored that “indigenous peoples did not fit easily into this [public domain] model;” the report continues:

The representative emphasized that the theory was self-reinforcing and actively constructed the kinds of societies that accepted it as natural law. Indigenous peoples had their own sources of natural law, and the values of the secularized, individual property-based model was not the values that commonly moved indigenous peoples. The representative explained that in indigenous cosmology, knowledge was a gift from the Creator. There was no clear distinction between sacred and other kinds of knowledge, as indicated in WIPO/GRTKF/IC/5/3 [the aforementioned analysis].

As a result, the representative stressed the importance of a “clearer understanding of the role, contours and boundaries of the public domain in the development of an appropriate policy framework for the IP protection of TCEs,” as even the concept of ‘property’ is fundamentally at odds with indigenous worldviews. The 2003 session report continues:

The representative noted that, for them, there were certainly concepts of a kind of ownership, but this was not the kind of relatively absolute ownership often presented in Western IP system. Indigenous peoples, he clarified, often conceive of themselves more as custodians or caretakers of knowledge rather than absolute owners. In their view, knowledge, lands and resources had been given to them for their collective, and sometimes exclusive, use, but only if they fulfilled the obligations to their Creator, their ancestors and their spirits.

Furthermore, the representative suggested that:

[I]t was for this reason that indigenous peoples had generally called for the protection of knowledge that the Western system had considered to be in the “public domain,” because it was the position of indigenous peoples that this knowledge had been, was, and would continue to be regulated by customary law. TCEs were not in the “public domain” because indigenous peoples had failed to take the steps necessary to protect the knowledge in the Western IP system, but from a failure of governments and citizens to recognize and respect the customary law regulating its use.

The need to protect indigenous TCEs in what is considered the ‘public domain’ stems from serious concerns about their misuse, or misappropriation. During the ninth IGC session, three years later, Peggy Bulger elaborated on ways in which the AFC has taken such considerations into account when working to protect and promote indigenous living cultural traditions. Examples she presented included the Federal Cylinder Project and, in particular, the AFC’s longstanding collaboration with the Omaha tribe, which resulted in the “Omaha Indian Music” online collection. She noted the growing trend of repatriating “cultural materials and ensuring the protection of sensitive cultural expressions (especially sacred expressions) that had been documented in the name of scholarship.” With recent work on the Federal Cylinder Project, as preservation copies were produced, so too were copies that were then given to tribal groups represented within the collection. Moreover, partnering with the Omaha brought to light how close consultation with indigenous communities can help to illuminate – on a case-by-case basis – how ‘misappropriation’ is defined, as well as how access to certain materials needs to be restricted according to the wishes of the source community and, of course, customary law.

John Ole Tingoi (center) and Edwin Kissio (right) of the Laikipia Maasai community interview a herder about drought in the Rift Valley, Kenya, during the 2009 Cultural Documentation Training for Indigenous Communities program run by AFC, WIPO, and the Center for Documentary Studies, Duke University. Photo: Guha Shankar, 2009.

It is evident that ownership – of TCEs, and of the terms of their promotion and use – lies at the heart of these discussions. How that is defined through the use of existing and specially adapted IP rights, at a global level, remains to be debated, negotiated, and decided. As such, the following installment in this series will look at more recent, text-based negotiations and efforts of the IGC. Nonetheless, one step that can be – and has been – taken relates to fostering greater control by indigenous communities over the processes of documenting, preserving and accessing TCEs, which has frequently been the role of anthropologists, folklorists, and archivists, among others. Here, it is important to mention that the AFC, along with the Center for Documentary Studies at Duke University, teamed up with WIPO in the late 2000s on a series of cultural documentation training with the Laikipia Maasai, in Kenya. As Guha Shankar, the AFC Folklife Specialist who co-led the project, states: “learning and applying the principles of documentary methods and technologies have emerged as critical strategies for indigenous groups and other cultural communities who wish to maintain, preserve and protect their intangible cultural heritage and intellectual property from appropriation and misuse.” You can read more on the project here, as well as on WIPO’s website, which includes a short film.

Notes:

  1. Stefano, M.L. and Wendland, W. “Article 13: Researching, Documenting and Accessing Intangible Cultural Heritage.” In J. Blake and L. Lixinski (eds) Commentary to the 2003 Convention for the Safeguarding of the Intangible Cultural Heritage, Oxford University Press, under review.
  2. Since 2000, one or more IGC session are held each year; there was no IGC session in 2015.
  3. Michael Taft, former Head of the Archives at the AFC, also participated in the U.S Delegation to WIPO’s third and fourth IGC sessions in 2002 as an AFC representative.
  4. From in-person and phone conversations.
  5. It is also noteworthy that the American Folklore Society has participated as an NGO on and off since 2003.
  6. From recent correspondence with Wend Wendland, he adds that “a WIPO Voluntary Fund enables the participation of accredited representatives of indigenous and local communities. Unfortunately, the Fund is very close to depletion for want of contributions.”
  7. Known at the time as the Pauktuutit Inuit Women’s Association.
  8. The analysis has since become a stand-alone publication, which includes an elaborated discussion of the debates on public domain; it can be read here.

 

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