Help me understand "Indigenous intellectual property"

Great Debates
1

This is not a request for specific legal advice.

Reference to Indigenous intellectual property - Wikipedia

Now, this seems like a noble idea, in theory. Indigenous groups that have been traditionally downtrodden having the right to prevent anyone and everyone from running roughshod over their culture, appropriating anything they want for a quick buck, seems respectful.

I’m having a little difficulty understanding exactly what this means in a legal context. Is “Indigenous intellectual property” primarily a statement of goals or ideals, or does it actually involve substantive legal rights?

For example, suppose I am browsing a library and come upon a book of short stories published in 1870. This is almost certainly in the public domain in the United States. Now, at least in the US, I am basically free to do whatever I want with the content of said public-domain book, including selling my own copies made from the library’s copy, writing sequels or expanded universe stories and claiming copyright over my creative additions to the author’s universe, making movies or plays from the content, or translating it into Spanish, claiming my own copyright on my translation, and making a killing on the Latino best seller market. Caveats are few (e.g. if one of the characters is subject to a Trademark claim). Now suppose the book is not just a collection of short stories, it is a collection of traditional Cherokee tales. Does “Indigenous intellectual property” place any substantial restriction on what I can do above and beyond copyright, patent, and trademark law, such as requiring that I get the Cherokee Nation’s permission to translate it into Spanish, or make that movie I wanted to make out of it?

The same question applies to traditional medicine - suppose I discovered that a traditional Australian Aborigine herbal preparation was actually clinically efficacious for a medical condition. Would I have to license the drugs from an Aboriginal organization or advocacy group, above and beyond respecting any applicable patent laws, if a patent was taken out?

And, to what extent can “indigenous” be stretched? Can I use “Indigenous intellectual property” rights to sue non-Scottish people for wearing kilts or advocating the wearing of the kilt by non-Scots?

2

Other than the UN declaration, the rest is a self-serving circle jerk by aboriginal groups saying “we deserve this, we own this…” I have not heard any countries with laws that enforce this. Some museums have been intimidated into pretending they care. In fact, the whole concept is counter to basic intellectual property laws - that unless you are Disney, all IP eventually becomes public domain. Aboriginal groups have no more legal hold on their traditional knowledge than the Catholic church is entitled to a copyright on the New Testament, and the Jewish church (orthodox rabbinate of Israel?) on the old testament. Taken to it’s extreme, everything is copyright.

3

Should Marvel pay royalties to Sweden for Thor?

OTOH they have a point that aboriginal traditions should not be trivialized. Some European ethnics would probably be offended by Son o’ God superhero comics (Jesus in a cape punching out baddies - actually a Natonal Lampoon comic IIRC) but there’s a difference between shoulda and taste vs the law.

4

As to biological resources and traditional knowledge of them, what this means in a legal context differs quite a bit from nation to nation.

There are two main and competing currents in international law. On the one hand, signatories to the Convention on Biological Diversity (which is most countries) have agreed to each create a national body responsible for managing relationships with indigenous groups regarding intellectual property. They are supposed to set requirements for obtaining prior informed consent before traditional knowledge is appropriated and enter into mutually negotiated contracts to share the commercial benefits that accrue from the knowledge. It is all very touchy-feely.

However, the international patent regime, which actually has some teeth unlike the CBD, was not designed to account for this kind of intellectual property, and is actually quite hostile to it. The patent system generally does not allow a naturally occurring substance to be patented—it must be purified and isolated and display unexpected properties, so only rich companies can do it. Additionally, traditional knowledge cannot be patented at all because countries require an inventor to be listed.

Different countries have dealt differently with these competing currents in international law, largely depending on their self-interest. The United States, as one might expect since it is the biggest appropriator of other nation’s traditional knowledge, is pretty hostile to benefit-sharing regimes. Brazil, by contrast, passed a law regulating products even indirectly derived from traditional indingeous knowledge of biological resources. Native communities are given the right to prohibit dissemination of derived data to non-authorized third parties, and economic compensation for any direct or indirect exploitation of the knowledge.

In South Africa, a more moderate regime, grant a sort of license after the applicant and a stakeholder have entered into a benefit-sharing agreement of their choosing that is approved by the Environment Ministry. In Peru, the law establishes a sort of central fund and database such that whenever indigenous knowledge is accessed and utilized, all stakeholders can participate in the monetary benefits. This allows negotiation with a single entity without the disadvantage of failing to compensate particular communities. India’s laws require the inclusion of information in patent applications disclosing the origin of knowledge and genetic resources, without which the patent will be challenged on the basis of prior art.

So there are a lot of ways this could be implemented in practice, but they all pretty much boil down to giving some small amount of money to the people who led you to that super useful bark, or coral, or whatever.

5

But do those agreements have any power outside their own country? If North America and Europe (and China and India and Russia, I assume) couldn’t give a flying hoot about their legaility it’s moot until those countries actually starts passing laws and signing international treaties.

6

I think we should gather the indigenous people who are promoting this idea together and tell them, “Sorry, guys, turns out the concept of intellectual property rights is a part of western culture. So you can’t use it.”

7

International agreements like this (i.e., non-self-executing) do not have legal power in most developed countries. But even if they do not have the force of law, they do shape norms, affect diplomacy and soft power, etc. When the US wants something from the international community – approval of Israel, say – things like this become bargaining chips.

National laws, like those I surveyed, do have legal power. If a corporation wants to operate in Brazil or India, two huge developing economies, they will have to observe those nations’ laws.

8

Ah. From what I am seeing, “Indigenous Intellectual Property” rights are more a part of the social and ethical world, in that people or companies that appropriate traditional knowledge can be socially criticized or shunned, but there is no actual separate legal cause of action, e.g.:

Convict #3345: “So, what are you in for?”
Convict #3211: “Breaking and entering. You?”
Convict #3345: “Indigenous Intellectual Property violations. I was an IT project manager, and decided to “theme” my project’s weekly status meeting by calling it a “Pow-Wow” and requiring that the person speaking wear a feather and hold an empty tobacco pipe. It turns out that since I have no Native American blood, it is an offense for me to use Native cultural property, no matter how old, without first getting a tribe’s permission. Joe on the TEQ team almost went to jail too with his “Gathering of the Clan” themed meetings with kilts and claymores, but he was able to show a great-great-grandparent from Inverness and got off because Indigenous Intellectual Property laws don’t apply if you have a claim to being part of the culture.”

Have there been any successful lawsuits or prosecutions (in any country) under “Indigenous Intellectual Property” rights above and beyond basic copyright, patent, trademark, etc. rights, or is it just a matter of a great deal of social pressure being placed upon “violators”?

9

Do you have a cite for any of these laws, or any case (civil or criminal) where an attempt was made to enforce them?

10

Sure. Got a law library or Westlaw access?

Here’s some secondary sources discusses these and other laws:

John Tustin, Traditional Knowledge and Intellectual Property in Brazilian Biodiversity Law, 14 Tex. Intell. Prop. L. J. 131, 156, 164 (2006).

Sumathi Subbiah, Reaping What They Sow: Strategies for Protecting Traditional Knowledge, 27 B.C. Int’l Comp. L. Rev. 529, 543 (2004).

Olufunmilayo B. Arewa, TRIPS and Traditional Knowledge: Local Communities, Local Knowledge, and Global Intellectual Property Frameworks, 10 Marq. Intell. Prop. L. Rev. 155, 164 (2006).

This one’s online:

Klaus Liebig, et al., Access to Genetic Resources and Approaches to Obtaining Benefits from Their Use: The Case of the Phillipines, 15 (2002), available at: http://www.cbd.int/programmes/socio-eco/benefit/cs.aspx.

You can also read Brazil’s law online (though IIRC this version has been amended):

Medida provisória sobre o acesso ao patrimônio genético, Art. 22, translated version available at: http://www.grain.org/brl/?docid=850&lawid=1768

11

I’m all for a manager using such a “motivational” technique going to jail for it. :smiley:

12

Boy, that’s not very nice. The laws on IP were created to protect the needs of western civilization at a specific time in history. I can see the case that someone traveling to a remote area of South America and learning about the use of a plant for medical purposes should not be able to go home and claim it as his intellectual property without at least some sort of compensation to the people he learned it from. If the indigenous people had a team of lawyers at their disposal they could at least claim that the IP does not belong to the westerner as it was “well known in the arts”.

Imagine that a tribe in the Amazon decided to make T Shirts with Andy Warhol designs on them and sell them in the United States. They would be in violation of the law. But people take indigenous people designs and reproduce them with no royalties.

13

Well, why should a South American tribe think they can just walk up and claim they have intellectual property rights? It wasn’t their idea. Intellectual property rights are part of my culture. What gives them the right to take something from my culture just because it’s useful to them? If they want intellectual property rights, let them compensate me for them just like I’m supposed to compensate them for the use of a plant their ancestors discovered.

Different situation. I, as an American, have no intellectual property rights to an Andy Warhol design. Andy Warhol’s estate holds those and they can sue me or an Amazon tribe for violating their rights.

I have no problem with the idea of individuals holding the rights to their creations and discoveries. But I disagree with the idea of cultural rights. No ethnic or national group should be allowed to claim it owns an idea. Once the idea passes beyond the individual who discovered it, it should belong to all humanity.

14

So then Disney should not have intellectual property rights. If the tribe incorporated would it then be OK with you?

I also don’t understand what “your culture” is. Does it include stuff from Rome, Greece, Arabs, and Jews? How about common law from England? Or is it just stuff from 1776 onwards?

15

Disney owns the rights to the creations its employees created for it. It’s work for hire. If a tribe wants to form a corporation, it’s entitled to the rights for all works created by that corporation. But it’s not entitled to go back into history and claim exclusive ownership of past ideas.

Suppose somebody said that the British invented vaccination and that the British therefore “owned” vaccination? Or that Americans “owned” the idea of anesthesia? So why should some Amazon tribe own the idea that some plant is useful for a medical problem just because their ancestors happened to be the first people to discover this fact?

16

Probably “all of the above”. Which tends to demonstrate that human “cultures” are way too vague a concept to allow any sort of sensible attribution of intellectual property.

Human tribes, societies, etc. have been borrowing* from each other for as long as the concept of “human” has existed. (Which culture owns the right to, say, written language? Should be some nice royalties there.)

Cultures that wish to assert intellectual property rights to the discoveries/ideas/inventions of their ancestors should be asked to show that they (and their ancestors) have consistently respected this sort of right in the things they have adopted from others.

*Not infrequently translated as “Kill all your men, steal all your women and possessions.”

17

So you are backpedaling from only individuals having rights to IP? Suppose IBM has an idea that was discovered by a person who is now dead, can they patent it? What if they found it in the files from 99 years ago, but it is still not known and used by anyone else? That is both going back in history and not tied to an individual.

Entitled is an odd word because it involves a value judgement and one can certainly argue that tribes are ‘entitled’ to the proceeds of their discoveries. What corporations have is the legal right to IP because we passed laws that grant them that. We could certainly do the same for the discoveries of indigenous people.

Well the invention of both vaccination and anesthesia are/were patentable, so I’m not sure I get your point. Patent laws would have given the inventors and their heirs rights to the IP for a certain period of time following them making them public. Similarly, the use of plants for medicinal purposes known to a tribe in the Amazon but not known elsewhere should have some protection and/or compensation.

18

The key is invention. Simply “knowing” something is not invention. Once something is invented, our current laws say it has a limited shelf life before it becomes public property and nobody can claim it. Pow-wows, claymores, the bible, and English common law are well past their due date. Prior artinvalidates any claims.

I have no problem a corporation having IP rights for a limited time. It used to be that corporations were disadvantaged compared to persons (IIRC, people had copyright for X years plus their lifetime, corporations only for X years) but Disney is trying to slowly buy the laws to turn copyright into a perpetual thing.

Regardless, patents typically have a far more limited span (what, 17 years or 34 years?) and it used to be they were severely restricted on what could be patented - although with living things and software algorithms now constituting Intellectual Property, the idea is getting iffy.

The idea that some ethnic groups are special in their ability to claim proprietorship of nature at large is counter to everything modern IP law is about.

19

Can they claim IP to straw men? I don’t think anyone is advocating that they have rights to “nature at large”. And you are right that simple use is not patentable, but what is and is not considered IP is determined by law.

It’s not just plants; how about designs found on pottery, blankets, etc. An individual made that design at some point. Stuff that is really old is squishy, but a design that is unique to a tribe and still in use is similar to the protection we give to the Pepsi logo.

20

I think this discussion is probably better suited to GD than GQ.

Colibri
General Questions Moderator