According to your theory, it doesn’t belong to the six year old girl. It belongs to the school.
The tribe didn’t develop it. Individuals developed it.
That’s my point. When you talk about a six year old in school you treat her as an individual but when you talk about somebody in the Amazon you only talk about the tribe. But the people in that tribe are just as much individuals as that girl is. Their accomplishments do not belong to the tribe.
In the US, Zia Pueblo has been known for being protective of the Sun symbol. There’s an article from 2009 here and I know I’ve seen similar stories in the past, including some of the ones mentioned in the article at the time.
And “individuals” apparently includes corporations but not tribes.
Well lets see, what could the differences be between an American girl and a member of a tribe in the Amazon? The girl lives in a society with the concept of private property and has access to a legal system. The IP for works created before her have been protected and she and the society she lives in have benefited from that.
What those proposing protection for the intellectual property of indigenous people is recognizing that things work differently in less “modern” societies and that we may want to recognize that when coming up with laws on IP.
Much about those laws is arbitrary; e.g., how long should a work be protected, what constitutes fair use vs a derivative work, and what sorts of things can be patented, trademarked, and copyrighted. Those decisions have been made to serve the needs of particular societies at particular times and given that we want people all over the world to respect our IP, it might be fair to look at what other societies’ needs are.
This didn’t really address what I wrote. At any rate, how can you reasonably claim a patent on a process that is centuries old?
Thank you, I only hold 10 patents and written one book, so it is always useful to be schooled by those with more experience. I must have made the assumption that the term “indigenous intellectual property” referred to all forms of intellectual property and not just patents.
Well if it was something only known and used internally by a corporation they would just file it like any other patent.
Wow, I’m really being a dick in this thread, sorry. I just don’t think it’s an open and shut case.
The tribe didn’t make the discovery anymore than the United States discovered television.
Now if the members of a tribe want to get together and form an agreement that the benefits from any discovery made by any of them will be shared between all of them, then fine. That’s a great idea and I have no problem with it.
But a tribe can’t take something that was already discovered and lay claim to it. The discovery belongs to the inventor unless there was some prior agreement otherwise.
And that applies to corporations as well. They can’t just go around claiming ownership of stuff somebody else invented. If they hire somebody to invent something with an agreement that says they’ll own the invention, then no problem. But they can’t just look around and say “Penicillin. Nice idea. It’s mine now.”
What the hell does this have to do with a single damned thing I wrote? Can you explain it in human terms, or do I have to learn sh1bu1 to decode it?
You aren’t making good sense. You aren’t even making good nonsense.
I getting the impression sh1bu1 isn’t actually reading anyone else’s posts.
I’m not a patent lawyer. Do we have any examples of a corporation or other entity applying for a patent on a technique or invention that is centuries old?
Perhaps the example of the Royal Canadian Mounted Police might be useful. After decades of red-coat “Mountie” merchandise and whatnot being produced using what is arguably a public-domain image and the RCMP not getting a dime nor having any say in the matter, the RCMP acted in the mid-nineties (by teaming up with the aforementioned Disney) to secure a trademark. I don’t see native groups having a shot at patents for folk medicine or being able to claim royalties for folk songs, but perhaps they can at least secure a trademark on their tribal names and imagery.
You expressed concern that allowing indigenous people to have right to the IP associated with the medical use of a plant might make it more expensive to get medicines to market. Do you have the same concern with regard to pharmaceutical companies?
Of course there are cases to be made on both sides of the issue. Allowing companies a period of exclusive rights to their drugs keeps prices high and prevents some people from using them. On the other hand the higher prices for that exclusive period make it worthwhile for them to develop new drugs. Like everything in life, we trade off the positives and negatives. To me, the same applies to granting some additional IP rights to indigenous people for IP that they developed.
[hijack]I just saw Rip: A Remix Manifesto a documentary on intellectual property and copyright laws, it was fascinating.[/hijack]
I know of no examples, and I would not be surprised if it have never happened. However, it is consistent with our current laws on IP.
Suppose that 100 years ago Coca Cola developed a process for extracting more flavor from cola nuts. They could keep that as a trade secret or patent it. Keeping it as a trade secret means that they do not have to make it public, but they run the risk of someone else stumbling upon the process and using it. If instead they patented it, they would have exclusive rights to it for a period of time but they have now made the process public and everyone else will be able to use it at some point.
But Coca Cola keeping it as a trade secret does not preclude them from filing for a patent on it in the future (to the best of my knowledge IANAL).
So back to the tribe; if they had been incorporated for the last 1,000 years and made members of the tribe assign rights to any inventions to the tribal corporation, then they would be within their rights to file for a patent on something not known outside the tribe even though it was invented long ago.
Of course they did not do that. But from an ethical rather than a legal perspective, the fact that they did not incorporate is not relevant if the tribe acts in a manner such that property is considered communal.
To some extent, balanced by the fact pharmaceutical companies really do do fundamental research to create drugs in a replicable fashion, as opposed to having stumbled on some plant that kinda works for something for some people if you happen to get the root with the right amount of the active chemical nobody’s isolated because there aren’t labs in the Brazilian rainforest.
Also, how about this: Aspirin, that basic and fundamental drug which every country ought to have access to at this point, is derived directly from traditional folk knowledge of the bark of the willow tree. Hippocrates knew about it, for example. Who should get the money from bringing aspirin back under patent protection, and how much more should we charge all the Third-Worlders in order to get that money?
Under 35 U.S.C. Sec. 102(b) once you offer for sale product incorporating a patentable invention you have one year to apply for a patent. After that it becomes unpatentable.
For the average English speaking American, “culture” derives from locally developed culture, England and the entire British isles (Anglo-Saxon, Celtic, and Roman), from France, from the Vikings, Rome, Greece, Babylon, Sumer, Israel, Egypt. Even though Celtic languages are a minority almost everywhere, Celtic lore contributed heavy chunks to English speaking culture (for example, Arthur and the Round Table is almost entirely of Celtic origin).
The concept of the 60 minute hour comes from Babylon. Should Timex have to pay a royalty to the Iraqi Antiquities Authority for every watch sold that observes a 60 minute hour? Of course not. The descendants of the Babylonians who developed that concept are all over the world now and the modern Iraqis also have ancestries from elsewhere in the world.
I ain’t payin’ no Arabs for usin’ numbers!