Traditional Knowledge-JA

What Is Traditional Knowledge?

Though difficult to define, traditional knowledge (TK) is generally understood to encompass four types of creative works: verbal expressions (stories, epics, legends, folk tales, poetry, riddles, etc.), musical expressions (folk songs and instrumental music), expressions by action (dances, plays, ceremonies, rituals and other performances) and tangible expressions that must be fixed on a permanent material (drawings, designs, paintings (including body-paintings), carvings, sculptures, pottery, mosaics, jewelry, basket work, textiles, carpets, costumes, musical instruments, etc.) More detailed definitions can be found in the World Intellectual Property Organization (WIPO) and United Nations Educational, Scientific and Cultural Organization (UNESCO) Model Provisions. TK is used interchangeably with the term traditional cultural expressions (TCEs); both refer to music, art, designs, names, signs and symbols, performances, architectural forms, handicrafts and narratives. TCEs are integral to the cultural and social identities of indigenous and local communities. They embody knowledge and skills and transmit core values and beliefs.

What is the Debate About?

Several combined forces have recently led to commercialization of TCEs on a global scale without due respect being given to the cultural or economic interests of the communities from which they originate. The Internet provides pervasive access to TCEs. The demand of western consumers for what is sometimes (disrespectfully) called "primitive art" has increased. Finally, tourism in developing countries has exposed more potential consumers to manifestations of folklore that can be found there. As a result, indigenous groups are seeking protection for their TCEs and their responses have affected legislation at national, regional and international levels.

What types of Traditional Knowledge are Most Frequently Used?

Exploitation of TK occurs in different forms. Examples include the unauthorized production of indigenous craft objects in the souvenir market, the unauthorized use of indigenous imagery on clothing, food products, or toys, the unauthorized use of indigenous names or phrases as trademarks, the unauthorized incorporation of traditional dance into commercial performances, and the unauthorized use of traditional music in commercial musical productions.

What Kind of Legal Liability Governs?

What kinds of legal rules (if any) should govern use of traditional knowledge by people who are not members of communities from which the TK originates? This issue is being addressed on national, regional and international levels. TK might be protected through conventional IP law -- for example, through the use of Copyright law, Patent law, Geographical Indicators, or Certification Trademarks. However, many regions and countries have found it difficult to fit TK into traditional IP protection schemes. As a result, some have adopted sui generis laws that apply specifically to TK. Examples of these different approaches are discussed below.

How Individual Nations deal with Traditional Knowledge

Countries Whose Traditional IP Laws Do Not Cover Traditional Knowledge

Several nations have copyright laws that expressly exclude folklore from the list of works eligible for copyright protection. These include: Armenia, Azerbaijan, Belarus, Bulgaria, Estonia, Greece, Hungary, Kazakhstan, Kyrgyzstan, Lebanon, Lithuania, Moldova, Russia, Slovenia, The Ukraine, Uzbekistan and Yemen. These countries tend to classify traditional knowledge as within the "public domain" and thus do not restrict use of or access to TK. For instance, Article 9 of the 2002 Copyright Act of Bosnia and Herzegovina states that "the use of folk literature and art creations for the purpose of a literary, artistic or scientific arrangement shall be free."

Countries Whose Traditional IP Laws Cover Traditional Knowledge

Protection Despite No Explicit Reference to TCE

The traditional IP statutes in some nations contain no explicit references to folklore, but TCEs may still be protected in those nations under copyright law, other traditional intellectual property doctrines, or through special statutes. For example, most countries in Europe have copyright legislation that may be used to cover traditional knowledge, but do not have any provisions explicitly mentioning TCEs. These include: Belgium, Cyprus, Denmark, Finland, France, Germany, Iceland, Italy, Latvia, Luxembourg, Norway, Poland, Portugal, San Marino, Spain, Sweden, and Switzerland. Several other developed countries lack explicit TCE references as well. These include: Australia, Canada, Japan, and the United States. Additionally, several countries with recently-enacted copyright legislation have not expressly included TCEs within its scope. Included in this group are several Asian countries (such as India, Malaysia, Philippines, and Thailand) and several Caribbean and South American countries (such as Barbados, El Salvador, Saint Vincent and the Grenadines, Trinidad and Tobago, and Venezuela). Silence in these statutes, however, does not mean that traditional knowledge is unprotected. Rather, in these countries TCEs are protected on the basis of traditional IP, customary, regional or international laws or through sui generis legislation.

In Australia, TCEs are protected through traditional copyright law. For example, in Milpurrurru v. Indofurn Ply Ltd.((.link_red)), aboriginal Australian artists sued to prevent the importation by a Perth-based company of carpets manufactured in Vietnam, upon which were reproduced the designs of several prominent aboriginal artists without their permission. The designs had been copied from a portfolio of artworks produced by the Australian National Gallery. The federal court awarded the aboriginal artists substantial damages for copyright infringement and granted an injunction against any further infringement. The court pointed out that the unauthorized use of the artwork involved the pirating of cultural heritage and that such behavior could have far reaching effects on the Australian cultural environment. It was deemed especially offensive that the images had been used on a medium (carpet) that was designed to be walked upon.

Other nations have begun using trademark law to protect TCEs, even when TCEs are not mentioned in national statutes. For example, in Canada, New Zealand and the United States, as well as Australia, indigenous people have sometimes relied (with varying degrees of success) upon trademark law or its equivalent to protect tribal names and other designs and motifs against unauthorized use by others. Considerable efforts have also been made to protect sacred and culturally significant symbols as well as collective and certification marks under traditional trademark law. For instance, Australia provides for design registration, which allows for the registration of features of shape, configuration, pattern or ornamentation applicable to an article. This system protects the visual form for 16 years, provided that it is new and original and is not based on a pre-existing design. Still, because of the originality requirement, this system has not yet been effective for protecting folklore. More effective is the system used in New Zealand. There, the recently adopted Trade Marks Act of 2002, prevents the registration of trademarks based on Maori text or imagery where the use or registration of such marks would be offensive to the Maori. The Commissioner of Trade Marks has set up a Maori Advisory Committee to advise on whether the proposed registration or use of a mark is likely to be offensive.

Although the United States has not acted to provide general protection for indigenous peoples' traditional knowledge, it has sometimes adopted narrow statutes in response to Native Americans' attempts to regain self-governance and to control the use of their traditional knowledge by non-community members. Efforts of this sort include:

• the Antiquities Act of 1906 (16 U.S.C. §§ 431-33 (2000)), giving the President power to set aside as national monuments certain historic landmarks, structures and other objects of historic interest,
• the Historic Sites, Buildings and Antiquities Act of 1935 (16 U.S.C. §§ 461-67), empowering the National Park Service to restore, reconstruct, and maintain sites and objects of historic interest,
• the National Historic Preservation Act of 1966 (16 U.S.C. § 470), providing for the maintenance of a National Register of Historic Places and requiring the Secretary of the Interior to establish a program to help Native American tribes to preserve their properties, taking into account tribal values,
• the Native American Arts and Crafts Act (25 U.S.C. § 305 (2000)), intended to assure the authenticity of Native American artifacts, and
• the Native American Graves Protection and Repatriation Act (“NAGPRA”)( 25 U.S.C. § 3001(1)-(13) (2000)), which provided that the ownership or control of Native American cultural items excavated or discovered on federal or tribal lands remained with lineal descendants, Native American tribes, or Hawaiian Organizations.

Protection Using Explicit Reference to TCEs

Many countries now explicitly refer to folklore in their copyright legislation. Such references take various forms.

Some countries have sections, chapters, or special parts of copyright law that are entirely devoted to folklore. Countries within this group include Algeria, Bolivia, Brazil, Burkina Faso, Burundi, Chile, Congo, Ghana, Kenya, Mongolia, Morocco, Namibia, Nicaragua, Niger, Nigeria, Papua New Guinea, Paraguay, Rwanda, Seychelles, Togo, Tanzania, Tunisia, and Zimbabwe.

In the Congo, for example, folklore is considered party of the country's heritage, and Congolese copyright law protects folklore without a time limitation. A "Body of Authors" society is responsible for collecting royalties, representing authors' interests, and overseeing the use of folklore. Permission must be sought from the society before any public performance, reproduction, or adaptation of folklore for commercial purposes. This includes the import or distribution of copies of works of national folklore made abroad. Public agencies are exempted from the obligation to obtain prior authorization to use folklore for non-profit activities, though they still must notify the society before use.

In Ghana, the recently adopted Copyright Act of 2005 significantly changed the way traditional knowledge is protected. In the Act, copyright protection extends to literary works, artistic works, musical works, sound recordings, broadcasts, cinematographic works, choreographic works, derivative works, and program-carrying broadcast signals. To be eligible for copyright, the work must be original, in writing (or otherwise reduced to material form), and created by a citizen or resident of Ghana. The work must also have been first published in Ghana, or, if first published outside Ghana, published in Ghana within thirty days of its original publication. A work created by an individual is protected for the life of that individual plus fifty years; a work created by a corporation is protected for fifty years from the date on which the work was first made public. In Ghana, an author has exclusive rights to reproduce the work (with the exception of private use, quotations in other works, and use in pedagogy, which are permitted). It is an infringement of the copyright to reproduce, sell or exhibit in public for commercial purposes any work without authorization, or to use the work in a manner that adversely affects the reputation of the author. Both civil and criminal penalties may apply. Article 59 of the Act establishes a National Folklore Board, which governs the administration, preservation, registration and promotion of expressions of folklore. The Board may authorize the use of folklore and may determine a fee to be paid. The Act provides that the copyrights of authors of folklore vest in the government as if the government were the creator of the works. In Ghana (as in the Central African Republic and Congo), funds from fees or other money accruing from the use of folklore are to be used for social welfare benefits.

The copyright laws in several other countries shield traditional knowledge by including folklore in the list of literary and artistic works eligible for regular copyright protection. Countries adopting this approach include Angola, Benin, Cameroon, Djibouti, Gabon, Guinea, Ivory Coast, Lesotho, Madagascar, Mali, Mozambique, Oman, Republic of Central Africa, Senegal, Togo, Uganda, and Zaire.

For instance, Cameroonian law extends copyright protection to "works derived from folklore." Users must seek permission from the National Copyright Corporation before any commercial exploitation of folklore may occur. Agents authorized by the Corporation regulate the use of folklore in Cameroon, while the Corporation collects royalties fixed by agreement between the parties and brings infringement actions against unlawful users of protected works.

Countries with Sui Generis Traditional Knowledge Laws

The countries discussed in the previous section include traditional knowledge in their regular copyright laws, but typically treat TK somewhat differently from other types of copyrighted works. The members of the final group of countries go one step further. Instead of classifying TK as a (special) type of copyrighted work, these countries have adopted so-called sui generis laws that create an entirely different sort of legal protection for TK. (As we will see, the distinction between customized copyright laws and sui generis laws is blurry, but is nevertheless helpful in differentiating the types of approaches to this issue.)

Two early examples of national sui generis laws grew out of countries' efforts to protect the traditional knowledge of indigenous groups concerning the medicinal value of plants. Ecuador’s Law on Intellectual Property of 1998 protects the country’s biological and genetic heritage and conditions the grant of product or process patents relating to that heritage on the acquisition of rights from the relevant traditional owners. Similarly, in 1997, the Philippine Congress passed the Indigenous Peoples Rights Act “to recognize and promote all the rights of Indigenous Cultural Communities/Indigenous Peoples (ICCs/IPs), including their rights to “preserve and develop their cultures, traditions, and institutions” in cultural property. The Act affirms the right of ICCs/IPs to the full ownership and control of their cultural and intellectual rights. Thus, access to biological and genetic resources is permitted only after obtaining the free and informed consent of such communities. In addition, the Act guarantees ICCs/IPs the right to practice and revitalize their cultural traditions, including “to practice and teach their spiritual and religious traditions, customs and ceremonies; the right to maintain, protect and have access to their religious and cultural sites; the right to the use and control of ceremonial objects; and, the right to the repatriation of human remains.”

Policy Arguments

As indicated above, the questions of whether and how to protect traditional knowledge are currently being debated and are highly controversial. At the international level and within many individual countries, strong differences of opinion can be found. Set forth below are summaries of the primary arguments made in this debate.

Why Protect TK?

Arguments from Personhood. For many indigenous groups, TK encompasses cultural elements that are integral to the group's sense of identity. One can argue that objects and expressions that are fundamental to a person's or group's identity merit protection, and at the extreme, could be considered inalienable. Similarly, some advocates for TK protection have proposed a "cultural stewardship" justification for this protection. For example, Kristen Carpenter, Sonya Katyal and Angela Riley advocate allowing indigenous communities to retain control, if not exclusive access and ownership, of TK because of its importance in shaping the identity of the indigenous group and its culture.

Closely related to arguments from personhood are arguments from moral rights, which we discussed in Module 4. It is argued, just as an individual artist should enjoy a right of attribution and integrity with respect to her creations, so should a community enjoy a right of attribution and integrity with respect to its collective creations.

Arguments based on Preservation. Another reason to advocate for protection of TK is that unlike many forms of intellectual property, cultural expressions may require protection in order to preserve their value. For example, religious ceremonies and sacred rituals may be valuable to a culture in part because they are not widespread; their rarity is integral to their place in the culture. In order to maintain the value of these traditions, it may be necessary to restrict their use.

Arguments based on Reparations. A third argument in favor of protection for TK is based upon the idea that many indigenous cultures have been damaged by invasive colonialism practiced by Western countries in the past few centuries. Supporters of this argument believe that protection of TK is a way of providing reparations, symbolic as well as monetary, for the wrongs committed against these indigenous groups.

How Should TK be protected?

Traditional IP Modes of Protection

Copyright

As we have seen, many nations have used copyright law (either alone or in conjunction with sui generis laws) to protect TK. However, there are many arguments against using standard copyright to protect TK.

1. The fixation requirement. Some copyright systems require that a work be fixed in a material form. This is an obstacle in the protection of TCEs, which are not always manifested in tangible expressions.
2. Originality. Copyright law requires that a work be "original" in order to merit protection. Since most TK is "traditional" rather than new, this originality requirement will often be difficult to satisfy.
3. Authorship. Much cultural expression develops gradually over time through the contributions of several members of a community. If no single author or group of authors can be identified, it will be difficult for copyright protection to be obtained.
4. The term of protection. The term of protection for copyright in most countries is limited. Many forms of TK are in fact older than the copyright term. As a result, copyright protection may be unavailable for them.

To avoid these difficulties, it is possible for countries to modify copyright legislation so that it has different requirements for folklore or cultural expression. For example, the Tunis Model Law for Copyright in the Developing Countries, adopted in 1976, advocates extending copyright protection to works of folklore without requiring fixation and with an unlimited term of protection.

Trademark Law

Some expressions of folklore might be registered as trademarks. Trademark law protects not only graphic representations, but also words and (in some countries) sounds. An advantage of protection through trademark law is its near indefinite term of protection and its lack of a novelty requirement; it is sufficient for purposes of protection that the trademark has a "distinctive character." However, at least in some countries, trademark protection, unlike copyright and patent protection, requires that the applicant demonstrate use of the mark in commerce. Many cultural expressions do not have a direct link to commerce and are not used as designations of source to the consuming public. Furthermore, the application of trademark law to TK is complicated, since by registering a mark the community makes public TK that the community may desire to keep secret for religious or other reasons.

Collective Trademarks, Certification Marks, and Geographic Indicators

Collective trademarks, certification marks, and geographic indicators form a subset of trademark law that could be particularly useful for the protection of TK. Collective trademarks are trademarks that are used by a group of producers rather than one producer. Collective marks are held by an association rather than an individual; in order to be useful for protecting TK, members of indigenous groups would need to form an association for the purpose of marking their cultural expressions.

Certification marks indicate that the producer of a good has met certain standards of quality. (A popular example is the Good Housekeeping certification prominent on household products sold in the United States.) Certification marks could be used to specify which TCEs meet the standards of the indigenous community in which they originated. This, like a collective trademark, would require the formation an official oversight organization to act on behalf of the indigenous community in determining which expressions can bear the certification mark.

Geographic indicators, as the name suggests, are marks that can be placed on products that come from a specific geographic area. Geographic indicators are often used for food products, such as wines, but some indigenous groups have experimented with using geographic indicators as a means of protecting cultural expressions by authenticating products that are sold elsewhere. One example of such a program is the Alaskan Silver Hand Program.

Sui Generis Laws

As we have seen, where TK does not map onto traditional intellectual property regimes, sui generis laws may be adopted. Sui generis legislation is a promising route for advocates of TK protection, as it can provide strong protection while avoiding the hurdles that separate TK from traditional IP subject matter.

Absolute Ownership

One possibility for TK protection is to give absolute ownership of the cultural expression to the indigenous group from which it originated. However, this is relatively unpopular option, as it would impede the spread of knowledge and risk the loss of cultural expressions and information in the event that the group is disbanded or its members are assimilated into the general population.

Negotiation and Mutual Respect

Michael Brown argues that the law should, at most, foster "negotiation and mutual respect" between indigenous cultures and those who seek to employ a culture's traditional expressions. This approach would give indigenous groups much less protection, but would facilitate, he argues, beneficial cultural interchange.

International Human Rights

Other scholars, such as Laurence R. Helfer, approach the issue as one of Human Rights. They advocate granting TK protection that is fair and balanced and not overreaching. Their ambition is to balance the needs of indigenous groups and the benefits of a robust public domain.

In this vein, Duncan M. Matthews points out that "a human rights approach takes what is often an implicit balance between the rights of inventors and creators and the interests of the wider society within intellectual property paradigms and it makes it far more explicit and exacting.... [T]he rights of the creator are not absolute but conditional on contributing to the common good and welfare of society.... [B]ecause a human rights approach also establishes a different and often more exacting standard for evaluating the appropriateness of granting intellectual property protection, in order for intellectual property to fulfill the conditions necessary to be recognised as a universal human right, intellectual property regimes and the manner they are implemented first and foremost must be consistent with the realisation of the other human rights, particularly those enumerated in the Covenant."

System of Domain Public Payant

The doctrine of domain public payant, advocated by the Tunis Model Law and discussed at WIPO's 1999 Round Table on IP and TK (section 3 b of the Round Table minutes), advocates payment of royalties for works, including TCEs, that are in the public domain because they do not qualify for protection under traditional intellectual property law. This would provide monetary compensation for indigenous communities, but would not be a satisfactory solution for communities whose priority is control over their TCEs rather than remuneration. For more on different versions of domain public payant, see the UNESCO Copyright Bulletin from 1994.

Why not protect TK?

Some observers think that legal protection for traditional knowledge is highly problematic. Here are some of their arguments:

TK does not map onto IP law easily. As indicated above, traditional cultural expressions are often not put into a fixed form, are not "original," and do not have a defined author -- three requirements for copyright protection. Furthermore, as indicated above, most expressions of folklore are not used in commerce as a means of identifying their source, and so would not be eligible for trademark protection. Finally, patent law may not be available to protect TK because by definition, TK has been used and passed down through generations, and this type of prior public use may preclude patent protection, as least if it is publicly recorded. Thus, it appears that certain attributes of TK make it a difficult fit with all three of the major types of intellectual property law. Additionally, protection for TK does not fit well with the principal goals underlying the protection of intellectual property law. There is little evidence that protection of TK is necessary to incentivize the creation of cultural expression, as other factors have successfully motivated the creation of these expressions for millennia. Furthermore, the labor-desert theory does not easily fit with TK protection, as those who created the traditional expression are either unidentifiable because the expression was the product of collaboration, or in some cases, long dead. Current members of the culture do not have as strong a claim for protection from a labor-desert perspective.

Protection of TK would involve perpetuation of illiberal social hierarchies and oppressive customs within indigenous groups. Another argument against providing protection for TK is that doing so may perpetuate inequality and oppression within indigenous groups. When an indigenous group is given the right to control the use of TK, the powerful members of that indigenous group may benefit at the expense of the group's minorities. Paul Kuruk argues that protection of TK may further the oppression of women and subordinated social and economic groups within an indigenous culture.

Protection of TK may deprive the world community of valuable knowledge. Some might argue that principles of liberal democracy dictate that knowledge should be freely shared rather than restricted to certain people or groups. Protection of TK might deprive outsiders of a chance to benefit from the traditions, medicinal or otherwise, of an indigenous culture. When advancing this argument, however, one should keep in mind that principles of liberal democracy, while widely accepted in the Western world, are not necessarily an agreed-upon starting point for this debate.

Increase awareness rather than changing the law. Some organizations have advocated protection of TK through nongovernmental organizations and projects rather than through legislation. For example, the Intergovernmental Committee for the Safeguarding of Intangible Cultural Heritage has compiled a List of Intangible Heritage in Need of Urgent Safeguarding((.link_green)). UNESCO lists projects for safeguarding intangible cultural heritage in African countries here. Finally, groups of academics and activists have created community standards for those, such as anthropologists, whose work impacts indigenous cultures and may involve sensitive issues of disclosure of TK.

For the full discussion of TK, see the Copyright EdX Traditional Knowledge page