“Indigenous advocates from around the world are calling on a UN committee to ban the appropriation of Indigenous cultures — and to do it quickly….Since it began in 2001, the committee [a “specialized international committee within the World Intellectual Property Organization (WIPO), a United Nations agency”] has been working on creating and finishing three pieces of international law that would expand intellectual-property regulations to protect things like Indigenous designs, dances, words and traditional medicines.” [CBC/Yahoo]
Explains the WIPO site: “Traditional cultural expressions (TCEs), also called ‘expressions of folklore’, may include music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions.” Also under consideration are rules for “genetic resources” such as seeds, and folk or traditional knowledge.
One wonders how the novel intellectual property regime being contemplated will diverge from earlier, longstanding IP regimes on such questions as which products of the human mind are subject to protection, how long property rights in cultural expression are to persist after original creation and dissemination, and when if ever creative expressions originating with individuals, whether recently or generations ago, may (or must) have their rights assigned to national or ethnic collectives claiming to represent them. Presumably it will be difficult to limit the idea of collective property rights in folkloric expression to indigenous or tribal groups only, and other national groups and ethnicities, including the economically advanced, will also get in line to stake future claims.
Ed Krayewski, writing at Reason, points out that the project could have a potentially welcome consequences if it serves to impede the patenting by sophisticated Western concerns of medicines that were already in traditional usage, and likewise for the copyrighting of traditional designs and the like. Of course, intellectual property systems already are not generally supposed to confer IP rights on knowledge, uses, or expressions that were in use or known about before the claimant’s purported act of creativity, but national IP systems may not always do a good job of recognizing prior art, use, or knowledge.
For the most part, however, this is an effort to restrict the public domain and the creative and expressive liberties it brings with it. Note that an American law professor, formerly United Nations Special Rapporteur on the rights of indigenous peoples, is helping push it; earlier on Prof. James Anaya, now dean at Colorado, here.
6 Comments
This conflicts with current US law that one cannot restrict use of general art motifs, clothing styles, music styles, or food. To copy an actual song is a violation, but not “african drum music” in general. How do we validate that a particular pottery style is or is not genuinely “native” or “appropriative”? The number of possible ethic groups and their claims to cultural identity are infinite and impossible to clearly delimit.
I’d be shocked if the U.N. takes steps to protect the Indigenous People of Israel, the Jews, who they seem to detest. You have to be the right sort of indigenous person.
But think of what we Jews o if this were banned! We could stop Christians from “appropriating” the Hebrew Bible in their “New Testament”.
I want all you non-Semites to stop using alphabets now. They’re our invention.
Bob
Hey, if it stops white kids from trying to Rap, I’m all for it.
In the case of traditional medicines, the problem is more complex than a failure of some national patent regimes. the knowledge of indigenous peoples typically takes a form like: “make an infusion of a handful of the leaves of X in a litre of boiling water and steep for ten minutes.” They don’t know what substance or substances actually has the effect. They have no way of standardizing the dose if, as is often the case, the concentration of the active ingredient is variable. In some cases this does not matter, but in some cases the difference between an effective dose and a toxic dose is small. They don’t know about interactions between this drug and others. When scientists learn of a traditional remedy and develop it, they: (a) identify the active ingredient or ingredients; (b) determine how efficacious it actually is; (c) determine the effective dose; (d) determine toxicity; (e) investigate interactions with other drugs; (f) develop a method of providing standard doses, either by synthesizing the drug or by processing of natural materials containing variable amounts. A great deal of research is required to go from a natural remedy to a modern medication, and most of the information developed will not have been known to the indigenous people from whom the drug originates. As I understand patent law, the knowledge that an extract of a certain plant has a certain medicinal effect would not constitute prior art for a modern drug inspired by it, nor should it, given the extensive research required to produce a modern drug. It is understandable that indigenous people should want some credit for their discoveries and that they should not be legally barred from using their traditional discoveries by patents on developments based on them, but it is also necessary to recognize that pharmaceutical companies, for all their faults, do not simply learn of indigenous medicines, patent them, and start selling them.
I’m with Bill on this one. We do a bit of research before adopting some indigenous medical techniques.
http://www.bbc.com/news/av/world-africa-40300824/tanzania-albino-attacks-my-neighbour-hacked-off-my-hands