Traditional Knowledge Protection

Traditional knowledge is a legal term of art that has come to encompass a wide array of meanings. The World Intellectual Property organization (“WIPO”) has been examining issues related to and springing from “traditional knowledge” for several years. Among other iterations and throughout the international discussion that has evolved regarding traditional knowledge, it is variously defined as innovations and practices in the context of conservation and equitable use of biological resources;[1] “heritage of indigenous peoples;”[2] traditional medicinal knowledge in the realm of health policy;[3] expressions of folklore within a framework of intellectual property protection;[4] folklore or traditional and popular culture within a construction meant to protect culture;[5] “intangible cultural heritage;”[6] and indigenous intellectual property.[7]

United States intellectual property laws are generally focused on protecting the economic interests of people who author inventions and expressions of ideas. There is a vast literature of various viewpoints regarding whether the monetary incentive to create something (whether it be a painting, a botanical flower hybrid or a new kind of software) balances the waste created by the monopoly-like commercial rights that come as part of the package of intellectual property rights. In other words, does the benefit to the author somehow equal the benefit to society, and what should that balance be?

In this sense, protection of traditional knowledge cannot parallel protection of intellectual property. To begin with, there is often no identifiable author of traditional knowledge. (Referring to the definitions above, for example, it is probable that no “author” can be tracked down for a Native American tribal herbal recipe that alleviates headaches.) WIPO has enunciated several goals for an implementation of an international regime that would protect traditional knowledge and provide a schema whereby the cultures and people associated with that knowledge could receive some benefit from any appropriation by other cultures. These goals are to prevent the erosion and unauthorized exploitation of traditions, stimulate innovation and creativity based upon the traditional knowledge, protect the knowledge from misuse and distortion, and protect the knowledge insofar as the dignity and moral rights of the traditional innovators are concerned.[8]

Folklore and Cultural Property Protection

In addition to the groups examining the rather broad gamut of knowledge that is covered by “traditional knowledge,” WIPO has devised two working groups to contend with the special issues and problems that relate to genetic resources and traditional cultural expressions, also simply called “folklore.”[9] WIPO and the United Nations Educational, Scientific and Cultural Organization (UNESCO) jointly convened a group in 1984 to deal specifically with the issue of protection of expressions of folklore on an international scale. (UNESCO had passed a convention in 1970, entitled the Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property in 1970, to which the United States became party in 1983). This new Committee of Governmental Experts adopted the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions as a template for national guidelines as well as for the extension of protection of expressions of culture across national boundaries.

These Model Provisions are also known as the sui generis model for cultural property protection. The majority of participants in the Group of Experts agreed at that point, however, that the establishment of an international treaty would be premature until sufficient expertise was available in various areas. For example, many developing countries don’t have a catalogue or even full knowledge of the many different expressions of folklore their countries possess. An international registry or understanding of other countries’ folklore is premised on a fairly comprehensive knowledge of what is trying to be protected. A second problem with implementing a treaty at this point in time is that “regional folklore” has not been dealt with. For example, if a specific expression of folklore could be found in four different neighboring countries, whose law would govern? And what would the outcome be if two of the four were parties to the international system but two were not?

In acknowledgement of the need for further research, WIPO and UNESCO agreed on the formation of a World Forum on the Protection of Folklore. A meeting of the group was held in Thailand in April of 1997 and was attended by 180 participants from approximately 50 countries. The major topic points were preservation and conservation of folklore throughout the world, legal means of protection of expressions of folklore within national regimes of legislation, economic repercussions of exploitation, and international protection of expressions of folklore. Pursuant to the outcome of the World Forum, WIPO incorporated several folklore-focused research activities into its program and budget in the ensuing years. WIPO has taken a largely exploratory approach to understanding the interrelationship between intellectual property, traditional knowledge and expressions of folklore. WIPO calls the folklore topic, in its larger sense, an “emerging intellectual property issue.” In 1998 and 1999, WIPO conducted nine “fact-finding missions” to 28 countries to better understand the needs, expectations, and general situations of TK holders.

In addition to the missions, WIPO established an Intergovernmental Committee (IGC) on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore in September of 2000. The Committee’s work is meant to address several topics, among which are access to genetic resources and benefit-sharing, protection of traditional knowledge and protection of expressions of folklore. The IGC’s fourth session took place in Geneva in December of 2002. The fifth session ended in mid-July of 2003. As of the fourth session, the sui generis model was still seen as requiring more study insofar as its benefits, costs, and other related issues. The IGC has made significant progress in breaking down a multitude of issues that derive from the overarching goal to protect traditional knowledge. There is a forthcoming publication from WIPO called “A Practical Guide on the Legal Protection of Traditional Cultural Expression.”

The most recent press release regarding cultural property protection came out on July 23, 2003. Among the topics debated at the fifth session were trying to figure out the nature of the public domain and how it relates to indigenous communities and the scope of a guide in the works at WIPO called the “WIPO Practical Guide on the Legal Protection of Traditional Cultural Expressions.”

Cultural Property Protection on a National Scale

On a national level, the United States Department of State is responsible for cultural property policy. The U.S. has its own preservation legislation in the Archaeological Resources Protection Act of 1979 and the Native American Graves Protection and Repatriation Act of 1990. The Department of State is also charged with implementing the enabling legislation for the 1970 UNESCO Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property; this legislation is called the Convention on Cultural Property Implementation Act, and was ratified in 1982. There is a Cultural Property Advisory Committee in place to review requests from countries regarding import restrictions on artifacts which, if pillaged, would endanger that country’s cultural heritage.

A recent development regarding the Convention on Cultural Property Implementation Act (CPIA) is a decision that came down on June 25, 2003, in the U.S. Court of Appeals for the Second Circuit, in U.S. v. Frederick Schultz (2003 U.S. App. Lexis 12834). The case involves a New York City antiques dealer and gallery owner who was charged and convicted with conspiracy in the early 1990’s. He had sold ancient objects that were taken out of Egypt in violation of the 1983 Egyptian Antiquities Law. The controversial portion of this case relating to the CPIA is whether anything in the CPIA supports the interpretation that it was intended to be the only mechanism by which the United States government would deal with antiquities and other "cultural property" imported into the United States. The Senate Report on the CPIA seems to indicate that exactly the opposite is true since it expressly states that the CPIA neither pre-empts state law in any way, nor modifies any federal or state remedies that may pertain to articles to which the CPIA's provisions apply.[10] Furthermore, the Senate Report states that the CPIA affects neither existing remedies available in state or federal courts nor laws prohibiting the theft and the knowing receipt and transportation of stolen property in interstate and foreign commerce, such as the National Stolen Property Act (NSPA).[11]

The American Society of Appraisers said in a press release: “The Schultz decision shows that the U.S. government is ready to prosecute those who deal in art and cultural items that other countries have declared to be government property and will enforce U.S. and foreign laws to protect those objects. If upheld, application of foreign antiquities laws in this country will be increased, bringing into question the ownership of those antiquities.” Edwin Baker, ASA executive vice president said: “The legitimate trade and ownership of cultural properties are at risk,”[12] thereby impacting professional appraisers, private collectors, antiquities dealers and museum curators. Other commentators, more concerned about the proper disposal of cultural property, think differently: “The recent case involving Schultz…resolved many of the issues confronting cultural property cases….The impact of the CPIA and the NSPA has been decided and hopefully this vital path of criminal prosecution will be upheld on appeal.”[13] The defendant’s conviction was indeed affirmed and the CPIA has not limited the NSPA’s application to antiquities stolen in foreign nations.[14]

Other developments in case law, referencing both the CPIA and NSPA, have indicated that there are other tangential and ideological conflicts within the art trade discourse that have to do with the application of these laws and whether there might be a more coherent way to implement them. For example, because of the formal legal distinction between theft and illegal export, very different repercussions can come from fairly similar circumstances.[15] When a German painting was stolen from a German museum and found in an apartment in New York, the museum could rightfully sue the thief in a U.S. court before the statute of limitations was up.[16] When an American imported French paintings from France, however, in violation of French law, France had no recourse to the U.S. legal system.[17]

Some issues like this have to do with inconsistencies at the definitional level; i.e., certain countries seem to aim to protect cultural “heritage;” others to retain “national treasures;” and the list goes on. From a purely semantic point of view, there are problems that an international court would be hard-pressed to decide upon. Other issues have to do with national ownership laws. In U.S. v. McClain,[18] the United States brought suit under the NSPA against American citizens who had brought archaeological items from an undocumented site in Mexico into the U.S. for sale. Mexican law stated that all pre-Columbian objects found anywhere in Mexico were property of the Mexican people; the McClains went to prison. Ten years later, in The Government of Peru v. Johnson,[19] Peru brought suit to recover some objects in an American collection, in an attempt to obtain an outcome similar to the McClain case. The Peru case was based on foreign law, however, as opposed to the NSPA, and the U.S. court would not enforce Peru’s export restrictions.

These cases[20] and others point toward the general lack of cohesion in the realm of cultural property protection, especially as it exists in the international arena. Private ownership of cultural property versus that country’s right to keep it within its borders is an interesting and controversial issue. What of important cultural artifacts from Alaska’s Aleutian islands that were taken in 1870 by a French explorer and are now housed in a French museum?[21] Does it matter that these artifacts would probably have been destroyed either by the Alaskans themselves (according to custom) or by exposure to the elements? What exactly is the public interest in the protection of cultural property and which public (i.e., which country) has precedence in cases like this? Who has the more important interest in a German painting? Would it be Germany or an Italian whose family has owned the painting for ten generations? These questions have yet to be answered in an intelligible or consistent format.

[2] United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities (E/CN.4/Sub.2/1995/26, as revised in E/CN.4/Sub.2/2000./26).

[3] World Health Organization, Document WHO/EDM/TRM/2000.

[4] See WIPO-UNESCO Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions, (1982), Annex II, Section 2.11.

[5] UNESCO Recommendation on the Safeguarding of Traditional Culture and Folklore, 1989.

[7] I. McDonald, Protecting Indigenous Intellectual Property (Australian Copyright Council, Sydney, 1997, 1998).

[8] WIPO Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1998-1999), p. 70.

[13] U.S. v. Schultz, 2002 U.S. Dist. LEXIS 15.

[14] U.S. v. Schultz, 2003 U.S. App. LEXIS 12834.

[15] See John H. Merryman, The Free International Movement of Cultural Property, 31 N.Y.U. J. Int'l L. & Pol. 1, 6 (1998).

[16] Kunstsammlungen Zu Weimar v. Elicofon, 678 F.2d 1150 (1982).

[17] John H. Merryman, Cultural Property, International Trade and Human Rights, Occasional Papers in Intellectual Property from Benjamin N. Cardozo School of Law Yeshiva University, Number 9, 7 (2000).

[20] See Merryman, Cultural Property, International Trade and Human Rights, 8-9, for a fuller discussion.