Protecting echoes of the past: intellectual property and expressions of culture mariaan de Beer

PROTECTING ECHOES OF THE PAST: INTELLECTUAL PROPERTY AND EXPRESSIONS OF CULTURE

Mariaan de Beer*

I. Overview

The conceptualising of 'intellectual property' is a process troubled by difficulties of definition, and in the context of indigenous peoples is hampered by fundamental contrasts in approach. A significant issue is the inherently different beliefs of European and indigenous or traditional communities in terms of which intellectual endeavours should be protected. In protecting the intellectual property rights of indigenous peoples, both as individuals and as communities, it is vital that all stakeholders involved operate within the same frame of reference. Achieving a united perspective will be challenging given the Eurocentric nature of the current international intellectual property system.

Organisations such as the World Intellectual Property Organisation (WIPO) have attempted to establish an international consensus as to what is important and achievable in terms of indigenous intellectual property protection, but these attempts have not been completely successful. At the time of writing, none of the United Nations Member States have adopted the Model Provisions of 1982, and attempts to negotiate an international treaty (initiated in 1982) have been unsuccessful. A number of governments have taken initial steps to protect indigenous intellectual property, with particular success in the area of artworks and other expressions fixed in a material form. It is on these types of intellectual endeavour that most academic literature and litigation has focused internationally. Australia has demonstrated a flexible approach as it would now seem to be relatively simple for indigenous artists to establish originality (thereby gaining copyright protection) in their works.² Protecting expressions of culture other than artwork has been more difficult. Traditional Maori song is effectively without protection in New Zealand, leading to the conclusion in some quarters that a sui generis system of protection with unique parameters will be necessary to protect such intangible and often unrecorded expressions of culture.³

This article addresses the contrasting worldviews and definitional difficulties which underpin the current struggle to provide adequate protection for indigenous intellectual property. It also assesses the adequacy of current initiatives and international protective measures with regard to how well the self-expressed⁴ needs of indigenous and traditional communities are met by each suggested or implemented protective mechanism. The efforts of WIPO are a particular focus. Finally this article considers the New Zealand situation, focusing particularly on traditional Maori song. The current means of protection for Maori expressions of culture are evaluated, considering the potential impact of the Waitangi 262 (Indigenous Flora and Fauna) claim and use of the toi iho Maori Made Mark. New means of protection for Maori song are also considered, combining elements of both the current intellectual property system and sui generis alternatives.

It is clear that the current international intellectual property system lacks the flexibility to include traditional cultural expressions. A new form of protection vesting in an entity larger than the individual (such as the indigenous community of the artist) may be necessary.⁵ However, with the cooperation of the international community and the input of indigenous and traditional communities, it is to be hoped that a range of positive and defensive legal tools can be developed.⁶

II. Conflicting Worldviews

The indigenous worldview seldom thinks in terms of individual ownership of cultural property. The idea of an individual artist 'owning' the artwork they created using indigenous themes, is incomprehensible to many groups including the Australian Aborigines and Torres Strait Islanders.¹⁰ Conferring intellectual property rights on an individual artist in order for them to be able to reap financial rewards to the exclusion of others of their community is not acceptable to many indigenous communities. In other contexts the ability to control their intellectual output is of huge significance to indigenous peoples. Intellectual property rights are necessary in terms of economic gain and control for the benefit of the community, and also in terms of a larger struggle for self-determination. Particularly in the 19^th and 20^th centuries, intellectual property protection and control was (and still is) closely associated with a long history of colonisation and imperialism which has affected indigenous peoples internationally. The Western view of property ownership was clearly expressed by John Locke who equated freedom of the person with the acquisition and control of property.¹¹ A reclaiming of cultural resources is symbolically linked with the more tangible reclaiming of tribal lands as part of a larger self-determination struggle.¹² Economic benefit is seldom the sole motivator in obtaining intellectual property rights over cultural and intellectual property.

European and indigenous views of the structure of intellectual property rights also diverge. The European view of intellectual property rights is in essence based on rewarding a creative individual for their contribution to society by protecting their intellectual endeavours, most often for a limited period of time (although moral rights for example may exist in perpetuity, and trademarks are effectively protected as long as they are used in trade). There is a focus on the ability to exploit the endeavour for financial reward during the time period, and to be able to prevent others from exploiting it during that time. In order to qualify for intellectual property protection, several requirements must be met, most often including identifiable authorship or inventorship, originality or effort and disclosure to the public. The criteria for protection vary depending on the type of rights sought and provided for by legislation.

Many of these requirements for conventional intellectual property protection cannot be met by indigenous peoples, either because the expressions of culture fall outside the criteria by their very nature, or because a community refuses to comply with a requirement because of customary law which forbids it. The traditional dances of the Torres Strait Islanders of Australia are an example of this difficulty. As the dances are seen by the community as sacred, they must be performed without alteration or amendment to avoid the imposition of severe penalties by the community.¹³ This means that the requirement of 'originality' cannot be met.

Where sacred materials are involved, disclosure will often also not be an option as supernatural or community sanctions may be linked to the dissemination of sacred materials to inappropriate audiences.¹⁴ A government intellectual property office or department may well be perceived as an inappropriate audience.

Individual or identifiable authorship, a key requirement in the conventional intellectual property system, is also problematic for indigenous peoples where cultural materials are involved.¹⁵ Most cultural expressions are based on a cultural history common to an indigenous group,¹⁶ and incremental changes to expressions of culture, made over time by a number of individuals, are not sufficiently catered for in current legislation that protects individual ownership. The concept of an individual 'owning' cultural property that they have been involved in developing is incomprehensible in the Maori context.¹⁷ Authorship by a community, however, falls outside the scope of copyright in Australia, New Zealand, Canada, Italy, Japan and the United States among others.¹⁸ The deficiency of Australian law in dealing with works 'essentially communal in origin' was acknowledged by French J in Yumbulul v Reserve Bank of Australia Ltd.¹⁹

Sections 14 and 18 of the New Zealand Copyright Act 1990 requires that the work to be protected have a level of originality, be in a fixed form and have an identifiable author or be commissioned by an identifiable individual. Protection is also limited in time by virtue of ss 22 to 25.

Protecting intangible expressions of culture will be very difficult under this legislation and similarly under intellectual property legislation in Canada, Italy, Japan and the United States.²⁰