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

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Mariaan de Beer*

I. Overview

It is difficult to think of a culture which does not have as part of its own cultural expression the use of the human voice, with or without accompaniment. To Maori, this expression is particularly poignant: 'These songs put us in touch with ourselves, our identity, and our roots, for as we sing them the scenes of history and visions of ancestors pass dimly before our eyes.'1 It is within this context that potential mechanisms to protect traditional Maori song must be assessed.

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 range of intellectual endeavours which need to be considered within the international intellectual property system is only limited by the ability and creativity of the human intellect. A number of different intellectual 'products' are currently protected, but indigenous communities argue that more comprehensive protection is needed. Indigenous communities recognise and affirm a number of facets to their intellectual property and cultural property. While most traditional knowledge and culture can be described as 'old' it is also important to recognise the continual process of growth and change which keeps indigenous communities vibrant and successful. Fundamentally contrasting worldviews form the basis of European and indigenous expectations of the international intellectual property system. It is important to comprehend these differences, as an understanding of the differences in approach is useful in addressing the merits and pitfalls of creating a sui generis or expanded system of protection. If the current intellectual property system is assumed to be appropriate, and its objectives assumed to be applicable to indigenous and traditional communities, then a lack of understanding will continue to hamper the protection process.7 However, it is important that the need for understanding and discussion does not result in a lack of action in the long term.8 A major difference in perspective between the two world views goes to the importance or value of owning property. Property ownership remains a fundamental tenet of the European worldview, and of the conventional intellectual property regime. Underkuffler states that 'the concept of property is powerful ... [and holds] a fundamental place in our constitutional structure ... property has been more than simply an imaginative or symbolic concept, it has been the medium through which struggles between individual and collective goals have been refracted.'9 In essence, the individual who owns property is more influential and powerful within the European worldview than an individual who does not. This view underpins the European view of intellectual property as well, creativity for its own sake not being valued in the same way as intellectual endeavours which can be exploited subsequent to the gaining of intellectual property rights.

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 19th and 20th 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

There is the potential for copyright protection within the conventional system in situations where a work is commissioned, and this may be an avenue for indigenous peoples to explore. If it can be said that an indigenous community, through its encouraging of certain members to develop cultural expressions, is thereby commissioning these expressions, intellectual property rights may be found to vest in the community. This would be highly beneficial to communities, but the parameters of the term 'commission' must be clarified first. More than mere encouragement would be necessary, and arguably a benefit of some kind should accrue to the artist or author. The requirements for protection in the European intellectual property system are indicative of another central difference; that of the separation of cultural and intellectual property in the European intellectual property system. The protection of the French language by the French government is one of the few examples within European nations of the protection of culture through legislation. Within the conventional intellectual property system there would seem to be a distinct understanding that expressions of culture such as folk songs are in the public domain, and that neither individuals nor communities should be able to protect these through intellectual property rights.21 Indigenous peoples in contrast normally take a far more holistic approach. The separation of culture and intellect has been described by indigenous commentators as 'unnatural, false and artificial, and the legal constructs that follow [as] narrow and limiting in their definitions.'22 As a result conventional intellectual property protection will seldom be adequate to protect the breadth of intellectual property and cultural property that indigenous communities value. A significant difference in approach between the two systems is that economic exploitation is seldom the imperative driving force for protection of expressions of culture by indigenous peoples.23 The ability to protect expressions of culture from inappropriate use will most often be the primary goal of an indigenous protection regime. As conventional intellectual property rights are focused almost solely on the maximising of financial gain this continues to be problematic for indigenous peoples.24 Once the differences between the European and indigenous worldviews have been acknowledged and explored, it is also important to bear in mind that indigenous peoples are not without their own sanctions and control mechanisms where intellectual property is concerned. An Australian commentary on European and indigenous systems of protection states that 'the boundary between formal and informal knowledge systems may often be false. The informal system may have rules waiting to be discovered. The formal system may have informal beliefs, accidents, or conjectures providing impetus for further inquiry.'25 Both systems will have elements which are beneficial in considering the protection of intellectual and cultural property.

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