By Keri Johnston and Marion Heathcote
Intellectual property rights (IPRs) and the regimes of protection and enforcement surrounding them have often been the subject of debate, a debate fuelled in the past year by the increased emphasis on free-trade negotiations and multi-lateral treaties including the now-rejected Anti-Counterfeiting Trade Agreement (ACTA) and its Goliath cousin, the Trans-Pacific Partnership Agreement (TPPA). The significant media coverage afforded to these treaties, however, risks thrusting certain perspectives of IPR protection and enforcement into the spotlight, while eclipsing alternative, but equally crucial voices that are perhaps in greater need of legitimate dialogue to safeguard their own collection of intangible rights. Caught in the vortex of inadequate recognition and ineffective protection, are the communal intellectual property rights of indigenous communities, centred on traditional knowledge (TK), traditional cultural expressions (TCE), expressions of folklore (EoF), and genetic resources (GR).
The fundamental incompatibility between current intellectual property rights regimes and the rights of indigenous peoples stems largely from the lack of understanding of the driving forces that have led to the development of traditional knowledge, traditional cultural expressions, expressions of folklore, and genetic resources – that of the protection of whole indigenous cultures through the preservation of the traditional knowledge acquired by these communities as a whole.
The issues are complex. Professor James Anaya’s 2014 keynote speech at the 26th Session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore at WIPO highlighted the differences governing the intangible rights of indigenous peoples generally, and why these world views have so often been left out of the current mainframe of intellectual property rights. Whereas, the majority view of IPRs tends to focus on the rights of the individual and their protection as such, indigenous cultures are inherently built over centuries and across generations on communal understandings and organic exchanges of knowledge, making it practically impossible to ascribe the ownership of a certain set of IPRs to one or a few individuals.
Apache Dancers at the exhibit ‘Dignity – Tribes in Transition’. United States Mission Geneva Photo: Eric Bridiers. CC-BY-ND-2.0 via US Mission Geneva Flickr.
As Professor Anaya articulates and the other contemplate, the similarities between the inadequacies of the protection of tangible rights of indigenous peoples (e.g. indigenous land rights) and that of their intangible rights protection (including intellectual property rights) tend to stem from a common source – the failure to acknowledge the “inherent logic of indigenous peoples’ world views”.
Perhaps the solutions lie not just in finding ways to include indigenous intellectual property rights in current IPR regimes, but through the facilitation of an entire paradigm shift to capture the nuances of these issues both effectively and precisely. How, for instance, can indigenous IPRs be valued commercially, and how may adequate compensation models be developed in exchange for the commercial use of these rights? A key to increasing the recognition of the inherent value of indigenous IPRs within their traditional cultural settings may lie in developing methods to properly value this worth in tangible terms. What seems necessary is a model to adequately measure the significance of indigenous IPRs, starting at the source (the indigenous community), and finding ways of translating this value into benefit systems that can be returned to the communities from which the IPRs were sourced. Hence recognition is attributed to the crucial part these IPRs play within the cultures from which they are derived.
The strength of intellectual property law lies in its ability to meet the demands of a frenetically changing world, thus affording it vast amounts of power in shaping the law of the future; but this brings with it the challenge – can that power be harnessed to adequately protect rights of the past? Even if the answer is in the affirmative, it does not necessarily follow that the purpose of intellectual property rights protection should be to reduce IPRs to protectable commodities solely for the purpose of commercial exploitation. Protection of IPRs might be secured for any number of reasons, including the recognition of the right for ownership of those rights to be retained within the community. IPRs thus have the capacity to function both as shields and swords. Such weaponry however brings with it obligations: “With great power, comes great responsibility.”
Keri Johnston and Marion Heathcote are the guest editors of the Journal of Intellectual Property Law & Practice special issue on “The Quest for ‘Real’ Protection for Indigenous Intangible Property Rights”. The authors would like to thank Mekhala Chaubal, student-at-law, for her assistance. It is reassuring to know that a new generation of lawyers is willing and able. Keri AF Johnston is managing partner of Johnston Law in Toronto and Marion Heathcote is a partner with Davies Collison Cave in Sydney.
The Journal of Intellectual Property Law & Practice (JIPLP) is a peer-reviewed journal dedicated to intellectual property law and practice. Published monthly, coverage includes the full range of substantive IP topics, practice-related matters such as litigation, enforcement, drafting and transactions, plus relevant aspects of related subjects such as competition and world trade law.
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By Lucas Lixinski
In June this year, developments around the Great Barrier Reef were excitedly discussed and closely scrutinized by the World Heritage Committee, a subsidiary organ of the United Nations Educational, Scientific and Cultural Organization (UNESCO). More specifically, the region around the reef, mineral-rich soil in northeastern Queensland (Australia), has been developed by Australian and foreign mining companies. So the coal, Australia’s second largest export (amassing a whopping AUD 46.8 billion in 2011), can actually head to countries like China, ports as needed. The world’s largest coal-exporting port just so happens to be nearby.
The development of ports requires dredging, and that dredged soil is usually dumped at sea. The soil, rich in heavy metals, releases those metals into the water, and they slowly drift on to reefs, killing coral life.
Why does the World Heritage Committee care? Well the Great Barrier Reef is on the World Heritage List, along with 980 other properties in 160 countries around the world. Does that automatically give the World Heritage Committee, a body whose headquarters is in Paris, and just so happened to be sitting in Cambodia last June, any authority to tell the Australian people and government that they cannot fully exploit their natural resources, in pursuance of their right to Permanent Sovereignty over Natural Resources?
As it turns out, yes. That is what international heritage does: creates exceptions to States’ sovereign rights so certain goods, deemed worthwhile, can be safeguarded for generations to come. UNESCO, established in 1946, has since its establishment pursued the objective of protecting and safeguarding heritage. To this effect, it has passed on a number of international instruments, including recommendations, declarations, and a number of treaties. Of these, five are particularly relevant:
These conventions, spanning 50 years, present on their own an important record of the evolution of this field of international law, and of international law more generally.
When it comes to the field specifically, the titles of these instruments alone already signal to one of the most important changes, the shift from cultural property to cultural heritage. This shift means distancing from notions of property and ownership, and a move towards stewardship of these goods. They mirror, to a certain extent, the consolidation of human rights internationally, which, at least if Samuel Moyn is to be believed, only really took off in the 1970s.
More importantly, and closely related, this shift also prefaces a shift that took place in the field in 2003, when the Intangible Cultural Heritage Convention was approved. This instrument had been in the minds of some for a long time: the first mention to the need for such a convention dates back at least to the 1970s. And it responds to an important gap: protecting cultural manifestations which do not necessarily have a permanent physical presence. The fact that they do not have a permanent physical presence does not mean they are any less important than, say, the Great Barrier Reef. They are in fact perhaps even more important, as they are closely connected to identity. Because intangible heritage does not exist externally, it must exist internally, close to the heart of identity.
Also known as living cultures, 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.”
More specifically, it safeguards heritage as a process, as opposed to its icons. Physical manifestations of heritage are important, to be sure, but what matters most is how people connect to heritage, and the ways in which this connection influences people’s relationship to the environment, to human rights, and others. This notion reinforces the shift in UNESCO away from heritage as a symbol of sovereignty to heritage as a symbol of shared humanity. In international law more generally, it is another instance of the erosion of sovereignty in favor of a cosmopolitan ideal where peoples, and not necessarily States, coexist in full harmony.
This brings us back to the Great Barrier Reef. Protected under the World Heritage Convention, it is still formally protected as a site, and not as a process to which people feel connected. However, people’s connections to their heritage, and the process through which this connection is entrenched, is becoming more and more part of the equation even in protecting heritage. The notion of heritage as a process, enshrined in the 2003 Intangible Heritage Convention, is spreading to other heritage regimes, and triggering the rebirth of the field, from monuments and sites to living cultures. In the Great Barrier’s case, it is now less about the Reef itself than it is about what it means for our shared humanity. The good at stake is not only coral reefs, it is now the Reef standing for a humanity hopeful in a sustainable future, hopeful in reverting the negative effects of development, and saving the reef from ourselves, for the sake of present and future generations.
Lucas Lixinksi is a Lecturer at the University of New South Wales and is author of Intangible Cultural Heritage in International Law, part of the newly launched Cultural Heritage Law and Policy series.
Oxford University Press is a leading publisher in Public International Law, including the Max Planck Encyclopedia of Public International Law, latest titles from thought leaders in the field, and a wide range of law journals and online products. We publish original works across key areas of study, from humanitarian to international economic to environmental law, developing outstanding resources to support students, scholars, and practitioners worldwide.
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Image credit: Great Barrier Reef. Photo by NickJ. Creative Commons License via Wikimedia Commons.
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