Module 8: Traditional Knowledge

Learning objective

Case Study

Lesson

What Is Traditional Knowledge

Traditional Knowledge is...

Article 2 of The Convention for the Safeguarding of Intangible Cultural Heritage defines cultural heritage as

“practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development.” The Convention specifies that “intangible cultural heritage”, is manifested in the following domains: oral traditions and expressions, including language as a vehicle of the intangible cultural heritage; performing arts; social practices, rituals and festive events; knowledge and practices concerning nature and the universe; traditional craftsmanship.”

[insert WIPO's definition]

[insert UNESCO's definition]

Exploitation of Traditional Knowledge occurs in different forms. Examples include, but are not limited to, the unauthorized production of indigenous craft objects in the souvenir market, the unauthorized use of indigenous imagery on merchandise such as T shirts, the unauthorized use of indigenous names or phrases as trademarks, the unauthorized incorporation of folk music into commercial music production, and the appropriation of spiritual beliefs or customs and its transformation into commodifiable products. [Note to group---I would like to insert hyperlinks here to each example]

Examples of national specific rules governing Traditional Knowledge

Uganda

Zimbabwe

Lesotho

Kenya

Namibia

Mali

Senegal

Ghana

Nigeria

Examples of Regional Codes governing Traditional Knowledge

Relevant International Legal Instruments

WIPO

Convention for the Safeguarding of the Intangible Cultural Heritage (17 October 2003) List of countries who have ratified is available here

Article 2—Definitions

1. The “intangible cultural heritage” means the practices, representations, expressions, knowledge, skills – as well as the instruments, objects, artefacts and cultural spaces associated therewith – that communities, groups and, in some cases, individuals recognize as part of their cultural heritage. This intangible cultural heritage, transmitted from generation to generation, is constantly recreated by communities and groups in response to their environment, their interaction with nature and their history, and provides them with a sense of identity and continuity, thus promoting respect for cultural diversity and human creativity. For the purposes of this Convention, consideration will be given solely to such intangible cultural heritage as is compatible with existing international human rights instruments, as well as with the requirements of mutual respect among communities, groups and individuals, and of sustainable development.

2. The “intangible cultural heritage”, as defined in paragraph 1 above, is manifested inter alia in the following domains: (a) oral traditions and expressions, including language as a vehicle of the intangible cultural heritage; (b) performing arts; (c) social practices, rituals and festive events; (d) knowledge and practices concerning nature and the universe; (e) traditional craftsmanship.

Article 11 – Role of States Parties

Each State Party shall: (a) take the necessary measures to ensure the safeguarding of the intangible cultural heritage present in its territory; (b) among the safeguarding measures referred to in Article 2, paragraph 3, identify and define the various elements of the intangible cultural heritage present in its territory, with the participation of communities, groups and relevant nongovernmental organizations.

Report on Human Rights of Indigenous Peoples (2000)

Report on Human Rights of Indigenous Peoples, discusses tangible and intangible cultural property. The workshop took place pursuant to the request made by the Sub-Commission on the Promotion and Protection of Human Rights (formerly Sub-Commission on the Prevention of Discrimination and Protection of Minorities) to convenea seminar on the draft principles and guidelines for the protection of the heritage of indigenous peoples elaborated by the Special Rapporteur, Mrs. Erica-Irene A. Daes, with her participation and the participation of representatives of Governments, United Nations bodies and organizations, specialized agencies, organizations of indigenous peoples and competent indigenous persons.

Intellectual Property and Human Rights (2000)

After the ratification of TRIPS by member states of the WTO, the UN Human Rights Commission studied the human rights implication of the TRIPS Agreement. The Sub-Commission on the Protection and Promotion of Human Rights adopted the Resolution on “Intellectual Property and Human Rights.” The Resolution notes “actual or potential conflicts exist between the implementation of the TRIPS Agreement and the realization of economic, social and cultural rights in relation to . . . the reduction of communities’ (especially indigenous communities’) control over their own . . . natural resources and cultural values.” It declares that “the implementation of the TRIPS Agreement does not adequately reflect the fundamental nature and indivisibility of all human rights, including . . . the right to self-determination, there are apparent conflicts between the intellectual property rights regime embodied in the TRIPS Agreement, on the one hand, and international human rights law, on the other.” According to Laurence R. Helfer, The Sub-Commission urges national governments, intergovernmental organizations, and civil society groups to give human rights primacy over othe economic policies and agreements. Laurence R. Helfer, Toward a Human Rights Framework for Intellectual Property, 40 U. C. DAVIS L. REV. 971, CITE (2007).

United Nations Declaration on the Rights of Indigenous Peoples (2007)

Article 8

Indigenous peoples and individuals have the right not to be subjected to forced assimilation or destruction of their culture. States shall provide effective mechanisms for prevention of, and redress for: Any action which has the aim or effect of depriving them of their integrity as distinct peoples, or of their cultural values or ethnic identities; Any action which has the aim or effect of dispossessing them of their lands, territories or resources; Any form of forced population transfer which has the aim or effect of violating or undermining any of their rights; Any form of forced assimilation or integration; Any form of propaganda designed to promote or incite racial or ethnic discrimination directed against them.

Article 11

1. Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature. 2. States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

Article 12

1. Indigenous peoples have the right to manifest, practise, develop and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect, and have access in privacy to their religious and cultural sites; the right to the use and control of their ceremonial objects; and the right to the repatriation of their human remains. 2. States shall seek to enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.

Article 25*

Indigenous peoples have the right to maintain and strengthen their distinctive spiritual relationship with their traditionally owned or otherwise occupied and used lands, territories, waters and coastal seas and other resources and to uphold their responsibilities to future generations in this regard.

Article 27

States shall establish and implement, in conjunction with indigenous peoples concerned, a fair, independent, impartial, open and transparent process, giving due recognition to indigenous peoples' laws, traditions, customs and land tenure systems, to recognize and adjudicate the rights of indigenous peoples pertaining to their lands, territories and resources, including those which were traditionally owned or otherwise occupied or used. Indigenous peoples shall have the right to participate in this process.

Article 28

1. Indigenous peoples have the right to redress, by means that can include restitution or, when this is not possible, just, fair and equitable compensation, for the lands, territories and resources which they have traditionally owned or otherwise occupied or used, and which have been confiscated, taken, occupied, used or damaged without their free, prior and informed consent. 2. Unless otherwise freely agreed upon by the peoples concerned, compensation shall take the form of lands, territories and resources equal in quality, size and legal status or of monetary compensation or other appropriate redress.

Article 31

1. 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. 2. In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights.

Article 34

Indigenous peoples have the right to promote, develop and maintain their institutional structures and their distinctive customs, spirituality, traditions, procedures, practices and, in the cases where they exist, juridical systems or customs, in accordance with international human rights standards.

International Acceptance

143 countries voted in favor of the Declaration.

Australia, Canada, New Zealand and the US voted against this Declaration.Azerbaijan, Bangladesh, Bhutan, Burundi, Colombia, Georgia, Kenya, Nigeria, Russian Federation, Samoa and Ukraine abstained.

“On 30 January 2007, the Assembly of the Union adopted a decision (Assembly/AU/ Dec. 141 (VIII)) on the UN Declaration on the rights of indigenous peoples. In its decision, the Assembly decided to maintain a united position in the negotiations on amending the Declaration and constructively work alongside other Member States of the United Nations in finding solution to the concerns of African States, amongst the most important of which are question about: a) the definition of indigenous peoples; b) self-determination; c) ownership of land and resources; d) establishment of distinct political and economic institutions; and e) national and territorial integrity.”

History of the Sub Committee

(see report titled “protection of the heritage of ip 1994”)

International Convention on the Elimination of All Forms of Racial Discrimination (ICERD) (1965)

International Covenant on Civil and Political Rights (1966)

UNESCO Universal Declaration on Cultural Diversity (2001)

Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005)

This Convention has only one express reference to intellectual property rights. The “Convention manifests near antipathy to intellectual property protection standards. The drafters removed all of the clauses described above and replaced them with far weaker commitments. When protecting and promoting the diversity of cultural expressions, member states now “may” adopt “measures aimed at nurturing and supporting artists and others involved in the creation of cultural expressions.” And they need only “endeavour to recognize the important contribution of artists, others involved in the creative process, cultural communities, and organizations that support their work, and their central role in nurturing the diversity of cultural expressions.” By contrast, states may also achieve the Cultural Diversity Convention's goals by “promot[ing] the free exchange and circulation of . . . cultural expressions and cultural activities, goods and services” a provision that could be read as sanctioning promotional efforts that disregard intellectual property protection rules required by TRIPS and other international agreements.” Laurence R. Helfer, Toward a Human Rights Framework for Intellectual Property, 40 U. C. DAVIS L. REV. 971, 1006 (2007).

S. James Anaya compares the obligation to protect individuals to the obligation to protect groups. Indigenous Peoples in International Law, 131-37 and 155-200 (2d. ed. 2004).

S. James Anaya and Robert A. Williams Jr. explore the definition of indigenous groups in The Protection of Indigenous Peoples’ Rights over Lands and Natural Resources Under the Inter-American Human Rights System, 14 HARV. HUM. RTS. J. 33, 33 (2001). They mention

The Organization of American States, American Convention on Human Rights (1969)

American Declaration of the Rights and Duties of Man (1948)

ILO Indigenous and Tribal Populations Convention (1957)

ILO Convention 169 on Indigenous and Tribal People (1989)

Article 4(1)

Special measures shall be adopted as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned.

Article 5

(a) the social, cultural, religious and spiritual values and practices of these peoples shall be recognised and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals; (b) the integrity of the values, practices and institutions of these peoples shall be respected; (c) policies aimed at mitigating the difficulties experienced by these peoples in facing new conditions of life and work shall be adopted, with the participation and co-operation of the peoples affected.

“Adopted in 1989, ILO Convention No. 169 entered into force in 1991. It is the binding international instrument that deals most explicitly with the rights of indigenous peoples.” Page 8 of the OVERVIEW REPORT of the Research Project by the International Labour Organization and the African Commission on Human and Peoples’ Rights on the constitutional and legislative protection of the rights of indigenous peoples in 24 African countries. (2009).

No African State has as yet ratified this Convention.

ILO Convention No. 169 replaces ILO Convention No. 107 – the binding 1957 Indigenous and Tribal Populations Convention, ratified by six African States. The 169 Convention focuses on indigenous peoples’ rights to control their own institution, economic development, customs and belief systems.

African Charter on Human and Peoples’ Rights (1989)

For an overview of African legislation dealing with indigenous peoples and rights, see the ILO’s OVERVIEW REPORT of the Research Project by the International Labour Organization and the African Commission on Human and Peoples’ Rights on the constitutional and legislative protection of the rights of indigenous peoples in 24 African countries. (2009).

Organization of African Unity Model Law on Community Rights and on the Control of Access to Biological Resources (1998)

Policy Arguments

Why Protect TK?

Personhood and Fairness To “secure protections for authors in relation to their creations, linking such property to peoples, communities, and groups seeking to safeguard their collective cultural heritage” and to “protect ecnomic interests, alloing creators to enjoy the fruits of their labor and ensure them a basic standard of living.” Angela Riley, Indigenous Peoples and Emerging Protections for TK, 379 in International Intellectual Property Law and Policy (Yu 2007)

More on personhood:“First, because the identity of the group is bound up in the object (and similarly, the identity of the object relies on recognition by the group), the group acquires ownership rights over that object. Second, because the property is so closely tied to the identity of the group, it should be inalienable "because future generations are unable to consent to transactions that threaten their existence as a group." Finally, group ownership may also be premised on a Lockean theory. Cultural groups have rights in their cultural property because such property is the product of the group. Pursuant to the theory of Singer and Beermann, notions of group property are perfectly legitimate because property rights depend on value judgments and can be socially and politically constructed.” Patty Gerstenblith, Identity and Cultural Property: The Protection of Cultural Property in the United States, 75 B. U. L. REV. 559, 570 (1995).

Incentives to perserve “Cultural property has two features that distinguish it from other natural resources such as oil. First, it has scholarly and aesthetic value. It provides a window into the past and often (but not always) has intrinsic artistic merit. Second, its scholarly and aesthetic value depends greatly on its careful handling.” Eric A. Posner Symposium: Antiquities Law: The International Protection of Cultural Property: Some Skeptical Observations, 8 CHI. J. INT'L L. 213, 225 (2007) (arguing that cultural property should not receive more protection than other forms of property).

More on Personhood for Groups“The protection of cultural and intellectual property is connected fundamentally with the realization of the territorial rights and self-determination of indigenous peoples. Traditional knowledge of values, autonomy, or self-government, social organization, managing ecosystems, maintaining harmony among peoples and respecting the land is embedded in the arts, songs, poetry and literature which must be learned and renewed by each succeeding generation of indigenous children.” Lorie Graham and Stephen McJohn, Indigenous Peoples and Intellectual Property, 19 WASH. U. J.L. & POL’Y 313, 320 (2005) (citing Erica-Irene Daes, Protection of the Heritage of Indigenous People, U.N. Subcommission on Prevention of Discrimination and Protection of Minorities, Doc. E.97.XIV.3, PP21-32 (1997))

Protecting the traditional knowledge of indigenous groups is a form or reparation for past wrongs Lorie Graham and Stephen McJohn, Indigenous Peoples and Intellectual Property, 19 WASH. U. J.L. & POL’Y 313, 320 (2005) (citing Erica-Irene Daes, Protection of the Cultural and Intellectual Property of Indigenous Peoples, U.N. ESCOR, 45th Sess., Agenda Item 14, U.N. Doc. E/CN.4/Sub.2/1993/28 (July 1993); Erica-Irene Daes, Protection of the Heritage of Indigenous People, U.N. Subcommission on Prevention of Discrimination and Protection of Minorities, Doc. E.97.XIV.3, PP21-32 (1997)) Indeed, “[s]uch violations may well give rise to claims of reparations under international law.” Lorie Graham and Stephen McJohn, Indigenous Peoples and Intellectual Property, 19 WASH. U. J.L. & POL’Y 313, 320 (2005) (citing Theo van Boven, Final Report, Study Concerning the Right to Restitution, Compensation and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms, U.N. Escor, 45th Sess., Agenda Item 4, U.N. Doc. E/CN.4/SUB.2/1993 (July 1993); Theo van Boven, Revised Set of Basic Principles and Guidelines on the Right to Reparations for Victims of Gross Violations of Human Rights and Humanitarian Law, U.N. Escor, 48th Sess., Agenda Item 10, U.N. Doc. E/CN.4/Sub.2/1996/17 (1996).)

More on Personhood Kristen A. Carpenter discusses group rights and the application of Radin’s theory to cultural property. She also mentions Rawl’s theory of the Law of People as justifying the protection of indigenous group’s cultural property. : “contemporary liberal society is comprised of various political groups, each of which must recognize the others as legitimate - even if their values differ within acceptable limits of liberalism and decency - in order to effectuate just democratic ideals.” Real Property and Peoplehood, 27 STAN. ENVTL. L.J. 313, 345-51, 355-57 (2008) Indigenous groups seek the profits from products they created as a matter of “survivial and basic equality.” Kristen A. Carpenter, Sonia Katyal, and Angela Riley, In Defense of Property, 118 YALE L.J. 1022, 1103 (2009) (noting, however, that absolute ownership and exclusive access is not necessary) Indigenous groups seek to protect their traditional knowledge to preserve their culture and enable social reproduction.

How Should TK be protected?

Absolute ownership

Negotiation and mutual respect (Michael Brown’s theory )

Cultural Stewardship Kristen A. Carpenter, Sonia Katyal, and Angela Riley, In Defense of Property, 118 YALE L.J. 1022, 1103 (2009) (noting, however, that absolute ownership and exclusive access is not necessary)

International Human Rights Grant TK protection that is fair and balanced and not overreaching. Reach a balance between the needs of indigenous groups and the necessary public domain. Laurence R. Helfer, Toward a Human Rights Framework for Intellectual Property, 40 U. C. DAVIS L. REV. 971 (2007).

Domain Public Payant “The doctrine of domain public payant allows the use of works that have entered the public domain in return for the payment of royalties. Therefore indigenous folkloric works that are in the public domain would generate revenues for the indigenous owners. However, whilst such a system would sustain and promote indigenous culture, it would be ineffective as a means of regulating the use of culturally sensitive material. This is because it could create the view that such folklore is available for general use, albeit for a fee.” For more on different versions of domain public payant, see the UNESCO Copyright Bulletin from 1994.

Moral Rights “Moral rights are independent personal rights aimed at maintaining the integrity of the author's works. The Australian Copyright Act as it presently stands does not offer much protection in the form of such rights. The only significant provisions in the statute in this respect are sections 189-195, which provide that works should not be attributed incorrectly to a person other than the artist or author. There is however a proposal to redress the omission through the introduction of a right to attribution and a right of integrity in the Act. The first is a right to be named as the author of the work, the second is a right to object to derogatory treatment of the work that is prejudicial to the author's honour or reputation. The significance of moral rights to indigenous artists is that they would prevent the debasement, mutilation and destruction of indigenous folkloric works. They also have the advantage of being "perpetual, inalienable and imprescribtible," and even if the author dies they are exercised by his or her heirs irrespective of who owns the economic rights.”

Don’t change the law, just make sure everyone knows about the TK Intergovernmental Committee for the Safeguarding of Intangible Cultural Heritage has compiled a List of Intangible Heritage in Need of Urgent Safeguarding UNESCO lists projects for safeguarding intangible cultural heritage in African countries here.

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Assignment and discussion questions

Assignment

Discussion Question(s)

Contributors

This module was created by Dmitriy Tishyevich. It was then edited by a team including Sebastian Diaz, William Fisher, Urs Gasser, Adam Holland, Kimberley Isbell, Colin Maclay, Andrew Moshirnia, and Chris Peterson.

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Introduction

Course Materials:

• Module 1: Copyright and the Public Domain
• Module 2: The International Framework
• Module 3: The Scope of Copyright Law
• Module 4: Rights, Exceptions, and Limitations
• Module 5: Managing Rights
• Module 6: Creative Approaches and Alternatives
• Module 7: Enforcement
• Module 8: Traditional Knowledge
• Module 9: Activism
• Glossary

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