Supporting Indigenous Communities at the Grassroots

By Brigitte Vézina, Traditional Knowledge Division, WIPO and George Nicholas, Project Director, Intellectual Property Issues in Cultural Heritage (IPinCH), Simon Fraser University, Canada

Countless innovative and creative businesses draw inspiration from the world’s rich and diverse traditional cultures. Innovations and creations rooted in traditional knowledge (TK) and traditional cultural expressions (TCEs) enrich the creative economy, foster community enterprise development and boost job creation, skills development and tourism. Revenues from the sale of handicrafts made using traditional methods, skills and knowledge transmitted across the generations are often central to the livelihood of many communities.

Indigenous peoples and local communities are, in general, aware of the commercial value of their TK and TCEs and their potential to promote economic development. But many of the TK and TCE based products appearing on the market, ranging from clothing designs to pharmaceutical products are created by third parties without the permission of the communities that hold the TK and TCEs. Many of the objects, images or symbols commercialized in this way hold great significance for indigenous communities and their unauthorized use can cause them economic, spiritual or cultural harm.

Many communities feel that they alone have the right to decide who may or who may not exploit their TK and TCEs, and the terms for doing so. They argue that they should enjoy the benefits accruing from the commercial exploitation of, or research into, their TK and TCEs, and insist that these assets be recognized as protectable under intellectual property (IP) law.

International recognition of indigenous concerns

Such claims have not gone unheard and are reflected in the United Nations Declaration on the Rights of Indigenous Peoples (2007) which states that indigenous peoples “have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge and traditional cultural expressions” (Article 31).

As a rule, TK and TCEs do not fully qualify for protection under the IP system as it exists today. The “traditional” character of these cultural assets – which usually indicates they have been transmitted across generations – sits uneasily with the requirements of “originality” or “novelty” that lie at the heart of the IP system. In spite of its shortcomings, however, the prevailing international IP framework does form an important part of any strategy seeking to protect TK and TCEs. For example, the Berne Convention for the Protection of Literary and Artistic Works (1886), the WIPO Performances and Phonograms Treaty (1996) and the Beijing Treaty on Audiovisual Performances (2012) recognize and provide protection for performers of expressions of folklore. Laws relating to the protection of confidential information (trade secrets) and unfair competition may also be useful in protecting the interests of indigenous communities with respect to their TK and TCEs.

Bridging the gaps in IP law: an ongoing endeavor

Concerns about gaps in conventional IP law in relation to TK and TCEs have gained traction within the international community and have found expression in WIPO’s work. Guided by consultations with representatives of indigenous peoples and local communities and ongoing cooperation with the United Nations Permanent Forum on Indigenous Issues, WIPO is exploring two parallel avenues to address the needs and aspirations of holders of TK and TCEs.

On the one hand, within the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), WIPO’s member states are working towards international agreement on how to protect TK and TCEs against misappropriation and misuse by third parties.

On the other hand, together with its partners, WIPO is working directly at the grassroots-level to ensure that indigenous communities have the practical tools and know-how necessary to use the existing IP system to best advantage.

Finding common ground in a complex landscape

There are, nevertheless, huge challenges associated with establishing and applying more respectful, ethical, and effective policies to protect indigenous cultural heritage, especially where fundamental differences exist in terms of how heritage is perceived and defined. Experience in rolling out the award-winning Intellectual Property Issues in Cultural Heritage (IPinCH) Project in Canada highlights the importance of working with individual communities at the grassroots level to understand what their priorities are and to identify common ground to achieve global understanding about how their rights and interests may best be protected.

IP tools and services for indigenous peoples

The needs and interests of indigenous peoples are diverse and specific to each community, but understanding and providing for these discrete needs is central to developing long-term workable solutions. Recognizing this complexity, WIPO has developed a package of practical IP tools and services for use by these communities in managing their TK and TCEs. They include:

• The WIPO Creative Heritage Project

The Project is one of WIPO’s most comprehensive capacity-building initiatives in relation to TCEs and offers IP management advice on documenting, recording, digitizing and disseminating TCEs.

Under this Project, WIPO supports cultural institutions, such as museums, libraries and archives, in better understanding the IP issues associated with hosting collections of TCEs (see Intellectual Property and the Safeguarding of Traditional Cultures—Legal Issues and Practical Options for Museums, Libraries and Archives ).

• WIPO’s Creative Heritage Training Program on Cultural Documentation and IP Management

This program, designed specifically to enhance IP knowledge and skills at the community level, is run in collaboration with the American Folklife Center and Duke University (US). Under this program, WIPO has been working with the Maasai community in Kenya and the Rastafarian and Maroon communities in Jamaica to support them in documenting their cultural heritage and managing associated IP interests. The WIPO Traditional Knowledge Documentation Toolkit has been developed alongside these programs as a practical reference for communities eager to learn about the IP questions that arise during the course of the documentation of their TK.

• Practical licensing tools

The Local Contexts project, developed by Kim Christen and Jane Anderson, co-funded by IPinCH see box) and WIPO, is developing practical licensing and educational tools to provide indigenous peoples and local communities, and their external collaborators, with the means to apply tailored copyright licenses to TCE-derived creative material. The project is also creating a labeling system to educate users about the appropriate use of various TCEs not protected by copyright. These licensing and labeling options cater to the specific needs of holders of TCEs in terms of access and control and make it possible for indigenous communities to incorporate customary rules, protocols, guidelines and models into licensing agreements.

Building networks; building understanding

To improve understanding of the interlocking issues relating to IP and the protection of traditional assets, WIPO hosted a practical workshop in Geneva in December 2013. The event, led in part by the WIPO Indigenous Fellow, brought together 13 participants, all well-versed in indigenous issues, from the seven geo-cultural regions recognized by the UN Permanent Forum on Indigenous Issues. Participants learned about the range of IP tools available to protect TK and TCEs and were able to gain a better understanding of how people in different regions are approaching these issues.

Rebecca Tsosie who teaches at the Sandra Day O’Connor College of Law, Arizona State University (US) welcomed this opportunity, noting that while the UN Declaration on the Rights of Indigenous Peoples has created a certain global consistency around the aspirations of indigenous peoples, “when you actually pull people together within different regions you see that they have a very different outlook toward things… We are working on global initiatives which require a certain level of intercultural knowledge and expertise… but when you have an intercultural discussion, you learn to think and relate in a different way around universal values,” she explained.

Professor Tsosie applauded WIPO’s inclusive approach to the TK debate and its willingness to listen to the views of indigenous peoples about how the current IP framework might be improved.

For Kanyinke Sena, Chair of the UN Permanent Forum on Indigenous Issues, who also took part in the event, the workshop clarified how issues confronting indigenous communities are interrelated. “We are demarcating clearly where the problems are. Activists like to talk about looking at things holistically, but we must also be able to divide the whole into pieces and understand how each piece fits,” he said.

Mr. Sena called on WIPO to “strengthen indigenous people’s understanding of how TK can fit into the market economy, and how they can use it as the basis for their development with cultural identity.” In so doing, he said, “WIPO will be playing an instrumental role in safeguarding the environment through which this knowledge is practiced.”

Taking the driver’s seat

Developing practical solutions that are attuned to the everyday concerns, identities and aspirations of indigenous communities can only be achieved if the communities themselves are actively involved in the process. Recognizing the importance of participatory community-level research, WIPO is partnering with the IPinCH project, run by the Simon Fraser University (Canada). Through a range of community-based initiatives, the project is working to develop tailored responses to the issues confronting each community. For example, community members provide input on how to establish protocols to direct outsiders working with culturally sensitive information; how to collect and pass on knowledge about the land and ways of life to guide future development policies and decisions; and how to assure the protection and inclusion of the cultural principles and ways of knowing of each community to ensure they are taken into account in government consultations affecting their heritage.

For IPinCH, WIPO, as an international organization, is an ideal partner, enabling it to link into a global network of actors and making it easier for all those seeking to safeguard the interests of indigenous communities to identify opportunities for fruitful dialogue and cooperation. For its part, WIPO is keen to expand and leverage its network of partners to ensure a timely and effective community-led response that will allow indigenous peoples to effectively control and benefit directly from their TK and TCEs, where they so wish.

Further details of WIPO’s activities in the area of IP and genetic resources, traditional knowledge and folklore are available at: https://www.wipo.int/tk/en/.