Mercy Global Concern - 2004

Mercy Global Concern

Briefing Paper Number 1, June 2004

Culture as a Commodity? Intellectual Property rights and Expressions of Traditional Culture

This article highlights the work of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional knowledge and Folklore presented at the Forum on Indigenous People held at the United Nations, New York at the end of May 2004

Australian Indigenous painting are copied onto carpets and traditional greeting cards; traditional music from Ghana and the Solomon Islands is fused with techno-dance rhythms to produce best selling world albums; a process for making a traditional musical instrument, the steel pan from Trinidad and Tobago, is patented; the bust of Queen Nefertiti is lowered onto the headless statue of a scantily clad women to create a controversial work of contemporary art; the words and fables of the Maori are used in connection with a range of toys; Iranian hand-woven carpets and handicrafts are inexpensively reproduced using industrial processes and inferior materials; the art of lace -making dating back to the fifteenth in Belgium, Italy, and France, declines with the introduction of machine made lace.

What these examples have in common is that in each case, an aspect, manifestation or expression of a nation's or community's cultural heritage has been reproduced, adapted, and in some cases commercialized, outside the traditional or customary context in which the traditional culture originated. Some say that folklore has become "fakelore". In some cases it may be the expression itself that has been copied, while in others it could be the method of manufacture that is adopted or usurped. In other cases, it may be the reputation, distinctive character or "style" of the particular cultural expression that is appropriated. These are the kinds of things that fuel the concern of many indigenous peoples and traditional communities that the distinct and diverse qualities are threatened by uniformity brought on by the new globalization of culture and commerce.

These kinds of examples are also sometimes used to argue that existing intellectual property rights (IP) laws do not adequately protect expressions of traditional cultures and traditional forms of creativity and innovation. Is this the case? To who, if anyone, does a nation's cultural heritage and traditional culture "belong" - by whom and in which circumstances may cultural heritage be used as a source of legitimate inspiration and commodification? Do the basic tenets and principles of current IP systems, as some argue, fail developing nation, indigenous peoples, and other cultural communities by not protecting their rich cultural heritage? Or are IP systems not used effectively by the custodians of traditional cultures? Are IP systems a tool for misappropriation, or conversely, can their full use contribute towards the preservation of cultural heritage, the promotion of cultural diversity and the stimulation of tradition-based creativity and innovation as components of sustainable economic development? Is cultural diversity best preserved by preserving existing cultures or by allowing cultures to mix and influence each other?

These and other questions move within the deeper philosophical currents flowing through WIPO's work on traditional cultural expressions (TCEs), or "expressions of folklore". They tend to emerge in debate over whether existing IP systems adequately protect TCEs, or whether new, stand-alone sui generic systems are needed?

Describing traditional cultural expression.

The term "traditional cultural expressions" refers to the same subject matter as "indigenous culture and intellectual property" and covers an enormous variety of customs, traditions, forms of artistic expression, knowledge, beliefs, products, and processes of production that originate in many communities throughout the world.

Key concepts

"Protection" and "preservation/safeguarding"

It has been necessary to clarify and articulate the distinct notions of "IP protection" and "preservation/safeguarding" when applied to cultural heritage. The term "protection" is widely used, but this can mask a whole range of potential objectives. In some cases, it appears that the needs of indigenous and traditional communities are perhaps more concerned with preservation and safeguarding than IP protection.

Traditional

The term "traditional" has also been discussed and elucidated within the context of a community. While the cultural heritage of a nation lies at the heart of its identity and links with its past with its present and its future, cultural heritage is also "living" - it is constantly recreated by nations and communities in response to their environment, their interaction with nature and their historical conditions of existence. As the Japanese industrial designer Sori Yanagi has said, incorporating the element of traditional folk craft into modern design can be more valuable than imitating folk craft itself. While it is often thought that tradition is only about imitation and reproduction, it is also about innovation and creation within the traditional framework. This, the term "traditional" does not mean "old" but rather that the cultural expression derive from or are based upon tradition, identify or are associated with an indigenous or traditional people and may be made or practiced in traditional ways.

From an IP perspective, a contemporary literary and artistic production based upon, derived from or inspired by traditional culture that incorporates new elements or expression is a "new" work, which is generally protected by existing copyright.
For example, the Australian case Milpurrurru v Indofurn Pty Ltd (1995) involved carpets which reproduced (without permission) either all or parts of well-known works, based on traditional creation stories, made by indigenous artists. The artists successfully claimed infringement of copyright.

However, the law makes no distinction based on "authenticity" or the identity of the author. The 'originality' requirement of copyright would be met by an author who is not a member of the relevant community in which the tradition originated. Ironically, the greater the borrowing and adaptation made to the TCE, the greater the chances that the derivative product will emerge as a "new" IP-protected creation. This is the root of the complaint made by communities who wish to prevent or control the use of their cultures as sources for "new" creations by third parties operating outside the traditional or customary context. However, not only third parties can benefit. Indigenous and traditional communities and individuals can also receive IP protection for their traditional-based creations and innovations as a contribution to their economic development. This, it could be argued, is how the IP system properly functions - not to reward the mere preservation of the past, but rather as a tool to revitalize it and incentivize tradition-based creativity for economic growth.

While the deeper questions may emerge in the form of two seemingly opposed views, one in favour of the new sui generis systems and the other supporting extended use of existing rights, it is likely that in the longer term, solutions will be found in a range of options, drawing from existing rights, adapted or enhanced existing rights and where necessary, new standing alone systems. It is unlikely that one single form of protection will meet all the positive and defensive protection needs of a traditional community. Non-IP laws and tools, such as cultural heritage and "truth-in-marketing" laws, are also highly relevant and useful.

Work is also being undertaken on a customary/indigenous law study as well as on the development of model licensing agreements and codes of conduct for use by documentation centers, museums, archives and other cultural heritage institutions to assist them in managing the IP aspects of their collections.

Report compiled by Deirdre Mullan, during Forum on Indigenous People, New York, May 2004