Intellectual Property Rights and Indigenous Traditional Knowledge: A WIPO Guide
The World Intellectual Property Organization recently published an introductory guide to intellectual property for Indigenous peoples and local communities. The full publication can be found here. This post briefly highlights key elements of the report, and points out areas where conventional, Western IP approaches remain inadequate to the task of protecting and preserving Indigenous traditional knowledge, or TK.
Put simply, intellectual property rights are legal rights that protect “property of the mind” – creative works like music, a new bicycle design, or an innovative process for extracting medicine from a plant, to list a few basic examples. Intellectual property rights include copyrights, trademarks, and patents, each governed by their own rules and their own body of law. These intellectual property rights give a person or corporation the ability to prevent others from copying or otherwise exploiting intellectual property without permission (p 8, 16).
Intellectual property rights are not absolute. Unlike personal property, like a car or land, intellectual property may be limited in some ways, or not protected at all. Some intellectual property that is no longer protected is said to be in the “public domain,” which means anyone can use it (think very old books like Jane Austin novels or the lyrics to “Happy Birthday”). Intellectual property rights are not absolute because Western societies generally wish to balance the rights of the creator (who wishes to benefit from their own creativity and innovation) and the interests of consumers, competitors and future creators, who may wish to build on or improve previous works (p 15). But this attempted balancing act presumes certain things that are not shared by all societies. For example, many Indigenous nations do not see ownership as an individual right, but rather a communal responsibility. There are also strong objections to the idea that certain types of knowledge should be commercialized to benefit their creators rather than used to help everyone, like medicines and healing techniques.
Below are some examples of common types of intellectual property rights in Western IP systems, and a brief reflection on how each may work to protect Indigenous traditional knowledge from exploitation.
Copyright protects the original expression of ideas through literary works like novels, poems, plays, films, paintings, as well as computer programs and maps (p 24). Copyright permits the owner to prevent others from copying the work or publishing it without authorization. This encourages creators to release their work to the public since they have a monopoly over reproducing the work, and a legal remedy against those who infringe their rights. Copyright protection does not require registration. Traditional cultural expressions may be protected by copyright, but it varies among countries.
Current Canadian copyright law is seen as far too narrow, and needs reform to better accommodate Indigenous TK. The law puts too much emphasis on the one creator and not on the communal nature of TK, where the creation is often for the benefit of others. There is also the concern of the relatively short tenure for copyright, 50 years after the creator’s death, since Indigenous communities view creations derived from TK as eternal. Our recent post explaining how the Canadian Copyright Act might be reworked to better account for Indigenous perspectives on property and knowledge can be found here.
An example that highlights this gap between Western and Indigenous knowledge systems can be found among the Maliseet First Nation. Maliseet elders told their stories to a University of New Brunswick professor (who recorded them on tapes) in the 1970s. Canadian copyright law recognizes the recorder as the rights holder, and not the elders recounting the stories. By recording them, the professor effectively acquired “ownership,” and the Maliseet lost control over parts of their own oral history, and were forced to fight for the right to control their own words in a legal battle that lasted for decades, finally concluding in 2016. By then, all of the original Maliseet storytellers had passed away.
Patents give inventors of products or processes a limited monopoly on their invention. A patent must be sought for each country where the applicant wants protection. To be eligible for a patent the invention must be: new, non-obvious, useful and consist of eligible patent material. Indigenous TK may not be patentable if it was publically disclosed, published, or orally disclosed before the patent application is filed. While this may prevent Indigenous groups from filing a patent on their resources, it may also stop a corporation from filing a patent using the same resources. This would prevent the corporation from exploiting TK without Indigenous involvement, possibly preventing a monopolization by the corporation.
An example from the WIPO guide of TK being used to claim a patent is the Jarlmadangah Burru Aboriginal community in Australia which partnered with a university and the research of bush plants led to several patented compounds that treat inflammation. The patent is jointly owned so the community commercially benefits from it, and has control over how the compound is commercialized.
A trademark is a distinctive design used to differentiate itself from competitors, and allow consumers to know where the good/service comes from. This allows the producers to build on their goodwill, and discourages others from attempting to steal that goodwill by passing it off as their own. The mark may be a word, design, symbol, packaging on the goods or a combination of these (p 40). A trademark usually needs to be registered and can be renewed indefinitely.
Indigenous groups may be interested in a collective or a certification mark which allows multiple people to use the mark, provided they meet the criteria set out by the community (p 42). An example of this comes from the Cowichan First Nation, where the word “Cowichan” was given a certification mark for clothing items hand-knitted in one piece using traditional methods from undyed, unprocessed, handspun wool in accordance with traditional methods.
Overall, the WIPO guide provides a succinct definition of different types of Western IP and provides examples of how Indigenous communities can use these existing laws to protect their culture and their traditional knowledge. The guide uses plain language and provides useful general advice on some of the benefits and issues surrounding intellectual property from an Indigenous perspective. While it does not deeply critique existing Western paradigms, or speak about how we might reconcile these fundamentally different approaches to creativity and ownership, it is nevertheless a good introduction to some of the tools that exist today for Indigenous communities looking to halt increasing instances of biopiracy and cultural appropriation.