Indigenous intellectual property

Indigenous intellectual property[1] is an umbrella legal term used in national and international forums to identify indigenous peoples' claims of intellectual property rights to protect specific cultural knowledge of their groups.[2][3]

It is a concept that has developed out of predominantly western concepts of intellectual property law, and has most recently been promoted by the World Intellectual Property Organization, as part of a more general United Nations push[4] to see the world's indigenous, intangible cultural heritage better valued and better protected against perceived, ongoing mistreatment.[5][6]

Nation states across the world have experienced difficulties reconciling local indigenous laws and cultural norms with a predominantly western legal system, in many cases leaving indigenous peoples' individual and communal intellectual property rights largely unprotected.[7] Therefore, international bodies such as the United Nations have become involved in the issue,[3] making more specific declarations that intellectual property also includes cultural property such as historical sites, artefacts, designs, ceremonies, and performing arts in addition to artwork and literature.[8]

Declarations regarding Indigenous Intellectual Property

While a number of Native American and First Nations communities have issued tribal declarations over the past 35 years, in the lead up to and during the United Nations International Year for the World's Indigenous Peoples (1993)[9] then during the following United Nations Decade of the World's Indigenous Peoples (1995–2004)[4] a number of conferences of both indigenous and non-indigenous specialists were held in different parts of the world, resulting in a number of unified declarations and statements identifying, explaining, refining, and defining 'indigenous intellectual property'.[10]

Resolution of the 5th Annual Meeting of the Traditional Elders Circle, October, 1980

Before ceremonies and ceremonial knowledge were affirmed as protected intellectual property by the U.N. General Assembly,[8] smaller coalitions of Indigenous cultural leaders met to issue declarations about protection of ceremonial knowledge.[11][12][13] In 1980, spiritual leaders of the Northern Cheyenne, Navajo, Hopi, Muskogee, Chippewa-Cree, Haudenosaunee and Lakota Nations met on the Northern Cheyenne Reservation in Montana,[11] and issued a resolution that:

These [non-Native] individuals are gathering non-Indian people as followers who believe they are receiving instructions of the original people. We, the Elders and our representatives sitting in Council, give warning to these non-Indian followers that it is our understanding this is not a proper process, that the authority to carry these sacred objects is given by the people...[11]

Declaration of Belem, July 1988

The first international congress of the International Society of Ethnobiology involving anthropologists, biologists, chemists, sociologists, and indigenous peoples met at Belem, Brazil. They identified themselves collectively as 'ethnobiologists', and announced that (amongst other matters) since "Indigenous cultures around the world are being disrupted and destroyed.":

"Mechanisms [ought to] be established by which indigenous specialists are recognized as proper Authorities and are consulted in all programs affecting them, their resources and their environment"

"Procedures must be developed to compensate native peoples for the utilization of their knowledge and their biological resources"[14]

Kari-Oca Declaration and Indigenous Peoples Earth Charter, May 1992

The Kari-Oca Declaration and charter was first affirmed in Brazil in May 1992, and then re-affirmed in Indonesia, in June 2002. Ratifying the document were Indigenous peoples from the Americas, Asia, Africa, Australia, Europe and the Pacific who, at Kari-Oca Villages, united in one voice to collectively express their serious concern at the way the world was exploiting the natural resources upon which indigenous peoples depend.

Specific reference is made within the Indigenous Peoples Earth Charter to perceived abuses of indigenous people's intellectual and cultural properties.[15] Under the heading,"Culture, Science and Intellectual Property", amongst other matters, it is asserted:[16]

99: The usurping of traditional medicines and knowledge from Indigenous peoples should be considered a crime against peoples...

102: As creators and carriers of civilizations which have given and continue to share knowledge, experience, and values with humanity, we require that our right to intellectual and cultural properties be guaranteed and that mechanisms for each be in favour of our peoples...

104: The protection, norms and mechanism of artistic and artisan creation of our peoples must be established and implemented in order to avoid plunder, plagiarism, undue exposure, and use...[6]

Declaration of War Against Exploiters of Lakota Spirituality, June 1993

At the Lakota Summit V, an international gathering of US and Canadian Lakota, Dakota and Nakota Nations, about 500 representatives from 40 different tribes and bands of the Lakota unanimously passed a "Declaration of War Against Exploiters of Lakota Spirituality."[12][13] Representatives affirmed a zero-tolerance policy on the exploitation of Lakota, Dakota and Nakota ceremonial knowledge.[12][13]

Whereas we are conveners of an ongoing series of comprehensive forums on the abuse and exploitation of Lakota spirituality; and

Whereas we represent the recognized Lakota leaders, traditional elders, and grassroots advocates of the Lakota people; and ...
Whereas non-Indian charlatans and "wannabes" are selling books that promote systematic colonization of our Lakota spirituality; and

Whereas this exponential exploitation of our Lakota spiritual traditions requires that we take immediate action to defend our most precious Lakota spirituality from further contamination, desecration and abuse; ...[12][13]

6. We urge traditional people, tribal leaders, and governing councils of all other Indian Nations, as well as all national Indian organizations, to join us in calling for an immediate end to this rampant exploitation of our respective American Indian sacred traditions by issuing statements denouncing such abuse; for it is not the Lakota, Dakota and Nakota people alone whose spiritual practices are being systematically violated by non-Indians.
7. We urge all our Indian brothers and sisters to act decisively and boldly in our present campaign to end the destruction of our sacred traditions, keeping in mind that our highest duty as Indian people: to preserve the purity of our precious traditions for future generations, so that our children and our children's children will survive and prosper in the sacred manner intended for each of our respective peoples by our Creator.[12][13]

Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, June, 1993

On 18 June 1993, 150 delegates from fourteen countries, including indigenous representatives from Japan (Ainu), Australia, Cook Islands, Fiji, India, Panama, Peru, Philippines, Surinam, United States and Aotearoa (New Zealand) met at Whakatane (Bay of Plenty region of New Zealand). The assembly affirmed Indigenous peoples' knowledge is of benefit to all humanity; recognised Indigenous peoples are willing to offer their knowledge to all humanity provided their fundamental rights to define and control this knowledge is protected by the international community; insisted the first beneficiaries of Indigenous knowledge must be the direct Indigenous descendants of such knowledge; and declared all forms of exploitation of Indigenous knowledge must cease.[17]

Under Section 2 of their declaration they specifically ask State, National and International Agencies to:[17]

2.1: Recognise that Indigenous peoples are the guardians of their customary knowledge and have the right to protect and control dissemination of that knowledge.

2.2: Recognise that Indigenous peoples also have the right to create new knowledge based on cultural tradition"

2.3: Accept that the cultural and intellectual property rights of Indigenous peoples are vested with those who created them.[6]

Julayinbul Statement on Indigenous Intellectual Property Rights, November 1993

JulayinbulIP
Julayinbul Aboriginal Intellectual Property Conference Logo (1993)

This declaration arose out of a meeting of Indigenous and non-Indigenous specialists, who, at Jingarrba, in north-eastern Australia, agreed Indigenous intellectual property rights are best determined from within the customary laws of the Indigenous groups' themselves.[18] Within the declaration, Indigenous customary laws are (re)named 'Aboriginal common laws', and it is insisted these laws must be acknowledged and treated as equal to any other systems of law:[19]

...Indigenous Peoples and Nations reaffirm their right to define for themselves their own intellectual property, acknowledging...the uniqueness of their own particular heritage.

...Indigenous Peoples and Nations...declare that we...are willing to share [our intellectual property] with all humanity provided that our fundamental rights to define and control this property are recognised by the international community...

Aboriginal intellectual property, within Aboriginal Common Law, is an inherent, inalienable right which cannot be terminated, extinguished, or taken... Any use of the intellectual property of Aboriginal Nations and Peoples may only be done in accordance with Aboriginal Common Law, and any unauthorised use is strictly prohibited."[6][20]

Santa Cruz de la Sierra Statement on Intellectual Property, September, 1994

A regional meeting was held at Santa Cruz de la Sierra, Bolivia where indigenous peoples from the South America's concerned about the way internationally prevailing intellectual property systems and regimes appeared to be favouring the appropriation of indigenous peoples' knowledge and resources for commercial purposes, agreed:[21]

For members of indigenous peoples, knowledge and determination of the use of resources are collective and intergenerational. No...individuals or communities, nor the Government, can sell or transfer ownership of [cultural] resources which are the property of the people and which each generation has an obligation to safeguard for the next.

Work must be conducted on the design of a protection and recognition system which is in accordance with ..our own conception, and mechanisms must be developed .. which will prevent appropriation of our resources and knowledge.

There must be appropriate mechanisms for maintaining and ensuring the right of Indigenous peoples to deny indiscriminate access to the [cultural] resources of our communities or peoples and making it possible to contest patents or other exclusive rights to what is essentially Indigenous.[21]

Tambunan Statement on the Protection and Conservation of Indigenous Knowledge, February, 1995

Indigenous people of Asia met at Tambunan, Sabah, East Malaysia, to assert rights of self-determination, and to express concern about, and fear of, the threat unfamiliar 'western' intellectual property rights systems may pose to them. It was agreed:[22]

For the Indigenous peoples of Asia, the intellectual property rights system is not only a very new concept but it is also very western...[W]ith [western style] intellectual property property rights, alien laws will be devised to exploit the Indigenous knowledge and [cultural] resources of the Indigenous peoples.

The [western] intellectual property rights system and the (mis)appropriation of Indigenous knowledge without the prior knowledge and consent of Indigenous peoples evoke feelings of anger, or being cheated

Indigenous peoples are not benefiting from the intellectual property rights system. Indigenous knowledge and [cultural] resources are being eroded, exploited and/or appropriated by outsiders in the likes of transnational corporations, institutions, researchers, and scientists who are after profits and benefits gained..

"For indigenous peoples, life is a common property which cannot be owned, commercialized, and monopolised...Based on this world view, Indigenous peoples find it difficult to relate [western] intellectual property rights...to their daily lives...[22]

Suva Statement on Indigenous Peoples Knowledge and Intellectual Property Rights, April 1995

Participants from the independent countries and "nonautonomous colonised territories" of the Pacific region met in Suva, Fiji to discuss internationally dominant intellectual property rights regimes, and at that meeting they resolved to support the Kari Oca, Mataatua, Julayinbul, Santa Cruz de la Sierra, and Tambunan initiatives[23](above). In particular participants:[23]

Reaffirm[ed] that imperialism is perpetuated through [western] intellectual property rights systems...

Declare[d] Indigenous peoples are willing to share our knowledge with humanity provided we determine when, where and how it is used: at present the international system does not recognise or respect our past, present and potential contribution...

Seek[s] repatriation of Indigenous peoples [cultural] resources already held in external collections, and seek[s] compensation and royalties from commercial developments resulting from these resources

...encourage[s]...governments...to protest against any General Agreement on Tariffs and Trade provisions which facilitate the expropriation of Indigenous peoples' knowledge and resources...[to instead] incorporate the concerns of Indigenous peoples...into legislation...

[Seek to] Strengthen the capacities of Indigenous peoples to maintain their oral traditions, and encourage initiatives by Indigenous peoples to record their knowledge .. according to their customary access procedures.

"Urge universities, churches, government, non-government organizations, and other institutions to reconsider their roles in the expropriation of Indigenous people's knowledge and resources and to assist in their return to their rightful owners."[23]

Kimberley Declaration, August, 2002

(Kimberley, South Africa August 2002)

Indigenous people from around the world attended an international indigenous peoples' summit on sustainable development in Khoi-San Territory, Kimberley, South Africa, where they reaffirmed previous declarations and statements (above), and, amongst other matters, declared:

Our traditional knowledge systems must be respected, promoted and protected; our collective intellectual property rights must be guaranteed and ensured. Our traditional knowledge is not in the public domain; it is collective, cultural and intellectual property protected under our customary law. Unauthorized use and misappropriation of traditional knowledge is theft.[6]

United Nations Declaration on the Rights of Indigenous Peoples, September, 2007

UN General Assembly
United Nations General Assembly 2003

At the United Nation's General Assembly's 61st session, on 13 September 2007, an overwhelming majority of members resolved to adopt the United Nations Declaration on the Rights of Indigenous Peoples.[24] Regarding the intellectual property rights of indigenous peoples, the General Assembly recognized "..the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies...;"[25] reaffirmed "...that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples...;"[26] and solemnly proclaimed as an agreed standard for member nations around the world:

Article 11: Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature.

States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.[27]

Article 24: Indigenous peoples have the right to their traditional medicines and to maintain their health practices, including the conservation of their vital medicinal plants, animals and minerals...[28]

Article 31: Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.

In conjunction with indigenous peoples, States shall take effective measures to recognize and protect the exercise of these rights."[28]

Criticism and Problems

While the concept of intellectual property rights is well established, exactly how it applies to Indigenous people and their culture as a whole creates some interesting legal and ethical problems. Most cultural items are too old for patent or copyright and the author or creator unknown. Who is responsible for filing claims and paying fees? Artistic styles, languages, and matters of scientific fact, such as the properties of local fauna and flora, possibly even cultural heritage, traditional knowledge, and traditional cultural expressions, all lie in the public domain. The names of ethnic groups are generic and can't, or shouldn't, be protected.

Even if the move succeeds in a technical sense it may still fail to meet the desired outcome for many Indigenous communities. Intellectual property rights are a European concept, which has no known equivalent in Indigenous cultures. It may well prove to be more harmful than helpful in the long term.

Traditional cultural expressions

The phrase "traditional cultural expressions" is used by the World Intellectual Property Organization to refer to "any form of artistic and literary expression in which traditional culture and knowledge are embodied. They are transmitted from one generation to the next, and include handmade textiles, paintings, stories, legends, ceremonies, music, songs, rhythms and dance."[29]

Traditional cultural expressions can include designs and styles, which means that applying traditional Western-style international copyright laws – which apply to a specific work, rather than a style – can be problematic. Indigenous customary law often treats such concepts differently, and may apply restrictions upon the use of underlying styles and concepts.[29]

Examples of Indigenous peoples claiming violation of their intellectual property

Intertribal Coalitions in North America

Since the 1970s, Intertribal groups in North American have organized demonstrations against non-native use of Native American cultural elements; such as the sale of products and services allegedly derived from Indigenous knowledge:[30][31]

"It is a very alarming trend. So alarming that it came to the attention of an international and intertribal group of medicine people and spiritual leaders called the Circle of Elders. They were highly concerned with these activities and during one of their gatherings addressed the issue by publishing a list of Plastic Shamans in Akwesasne Notes, along with a plea for them to stop their exploitative activities. One of the best known Plastic Shamans, Lynn Andrews, has been picketed by the Native communities in New York, Minneapolis, San Francisco, Seattle and other cities.[31]

Lakota, Dakota, and Nakota Peoples

The 1993 Lakota Declaration of War (see above), urges people to identify instances where sacred traditions are being abused and to work toward stopping the abuse through demonstrations, boycotts, press coverage and direct intervention.[12][13]

Māori

Ka Mate haka

Te Raparaha, chief of the Kawias, watercolour by R. Hall, c. 1840s
Te Rauparaha, alleged composer of Ka Mate.

Since the 19th century, Maori-style Hakas have been popularly-used by New Zealanders as a cheer at sporting events; especially for New Zealand national teams. Between 1998 and 2006, the Ngati Toa iwi attempted to trademark the Ka Mate haka and to forbid its use by commercial organisations without their permission.[32][33] The Intellectual Property Office of New Zealand turned their claim down in 2006, since Ka Mate had achieved wide recognition in New Zealand and abroad as representing New Zealand as a whole and not a particular trader.[34] In 2009, as a part of a wider settlement of grievances, the New Zealand government agreed to:

"...record the authorship and significance of the haka Ka Mate to Ngāti Toa and ... work with Ngāti Toa to address their concerns with the haka... [but] does not expect that redress will result in royalties for the use of Ka Mate or provide Ngāti Toa with a veto on the performance of Ka Mate...".[35][36]

However, a survey of nineteenth-century New Zealand newspapers found Ka Mate was used by tribes from other parts of New Zealand, and was generally described by them as being an ancient peacekeeping song, from eras long before its appropriation by the Ngati Toa chief Te Rauparaha. When Ngati Toa authorities were asked for evidence that Ka Mate was of Ngati Toa authorship, they were unable to provide any.[37]

Lego's Bionicle

In 2001 a dispute concerning the popular LEGO toy-line "Bionicle" arose between Danish toymaker Lego Group and several Māori tribal groups (fronted by lawyer Maui Solomon) and members of the on-line discussion forum (Aotearoa Cafe). The Bionicle product line allegedly used many words appropriated from Māori language, imagery and folklore. The dispute ended in an amicable settlement. Initially Lego refused to withdraw the product, saying it had drawn the names from many cultures, but later agreed that it had taken the names from Māori and agreed to change certain names or spellings to help set the toy-line apart from the Māori legends. This did not prevent the many Bionicle users from continuing to use the disputed words, resulting in the popular Bionicle website BZPower coming under a denial-of-service attack for four days from an attacker using the name Kotiate.[38]

"Māori" cigarettes

Maorimix
Phillip Morris' L&M Maori Mix cigarettes

In 2005 a New Zealander in Jerusalem discovered that the Phillip Morris cigarette company had started producing a brand of cigarette in Israel called the "L & M Maori mix".[39] In 2006, the head of Phillip Morris, Louis Camilleri, issued an apology to Māori: "We sincerely regret any discomfort that was caused to Māori people by our mistake and we won't be repeating it."[40]

Hopi and Apache Opt-Out From American Museums

In 1994 certain Native American tribal organisations demanded that a number of museums remove certain materials from exhibition and access to the public. They cited the NAGPRA as the legal basis for their complaints. Their position was that they would only permit such uses, selectively. after permission was requested directly to them. Vernon Masayesva, CEO of the Hopi Tribe, and a consortium of Apache tribes demanded a number of American museums end public exhibition of and access to materials from their tribal cultures; including images, text, ceremonies, music, songs, stories, symbols, beliefs, customs, ideas, concepts and ethnographic field-notes, feature films, historical works, and any other medium in which their culture may appear literally, imagined, expressed, parodied or embellished."[41]

See also

References

Notes

  1. ^ Ann Marie Sullivan, Cultural Heritage & New Media: A Future for the Past, 15 J. MARSHALL REV. INTELL. PROP. L. 604 (2016) https://repository.jmls.edu/cgi/viewcontent.cgi?article=1392&context=ripl
  2. ^ RAINFOREST ABORIGINAL NETWORK (1993) Julayinbul: Aboriginal Intellectual and Cultural Property Definitions, Ownership and Strategies for Protection. Rainforest Aboriginal Network. Cairns. Page 65
  3. ^ a b Working Group on Indigenous Populations, accepted by the United Nations General Assembly, Declaration on the Rights of Indigenous Peoples Archived 26 June 2015 at the Wayback Machine; UN Headquarters; New York City (13 September 2007): Article 31: "Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions."
  4. ^ a b OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS (2007). "Indigenous peoples". Office of the United Nations High Commissioner of Human Rights. Geneva. Archived from the original (WEB PAGE) on 2007-11-07. Retrieved 2007-11-29.
  5. ^ DODSON, Page 12.
  6. ^ a b c d e WIPO Database of Indigenous Intellectual Property Codes, Guidelines, and Practices Accessed 28 November 2007. Archived 2 November 2007 at the Wayback Machine
  7. ^ Hadley, Marie (2009). "Lack of Political Will or Academic Inertia? - The need for non-legal responses to the issue of Indigenous art and copyright". Alternative Law Journal. Melbourne: Legal Service Bulletin Co-operative Ltd. 34 (3): 152–156.
  8. ^ a b Working Group on Indigenous Populations, accepted by the United Nations General Assembly, Declaration on the Rights of Indigenous Peoples Archived 26 June 2015 at the Wayback Machine; UN Headquarters; New York City (13 September 2007): Article 11: "Indigenous peoples have the right to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature."[bold added]
  9. ^ WATSON, Irene (1992). "1993: International Year for Indigenous Peoples". Aboriginal Law Bulletin. AustLII. Retrieved 2007-11-29.
  10. ^ WORLD INTELLECTUAL PROPERTY ORGANISATION (2001)
  11. ^ a b c Yellowtail, Tom, et al; "Resolution of the 5th Annual Meeting of the Traditional Elders Circle" Northern Cheyenne Nation, Two Moons' Camp, Rosebud Creek, Montana; 5 October 1980
  12. ^ a b c d e f Mesteth, Wilmer, et al (10 June 1993) "Declaration of War Against Exploiters of Lakota Spirituality." "At the Lakota Summit V, an international gathering of US and Canadian Lakota, Dakota and Nakota Nations, about 500 representatives from 40 different tribes and bands of the Lakota unanimously passed a "Declaration of War Against Exploiters of Lakota Spirituality." The following declaration was unanimously passed."
  13. ^ a b c d e f Taliman, Valerie (1993) "Article On The 'Lakota Declaration of War'."
  14. ^ "Declaration of Belem" (PDF). 1988. Retrieved 2007-12-04.
  15. ^ FOURMILE, Henrietta (1996) "Making things work: Aboriginal and Torres Strait Islander Involvement in Bioregional Planning" in Approaches to bioregional planning. Part 2. Background Papers to the conference; 30 October – 1 November 1995, Melbourne; Department of the Environment, Sport and Territories. Canberra. p.235
  16. ^ FOURMILE pages 260–261
  17. ^ a b FOURMILE page 262
  18. ^ FOURMILE page 236
  19. ^ FOURMILE pages 264
  20. ^ RAINFOREST ABORIGINAL NETWORK Pages 9–13
  21. ^ a b FOURMILE 1996: Pages 266–267.
  22. ^ a b FOURMILE 1996: Pages 268–269.
  23. ^ a b c FOURMILE 1996: Pages 270–272.
  24. ^ OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS (2007). "Declaration on the rights of indigenous peoples". Office of the United Nations High Commissioner of Human Rights. Geneva. Archived from the original (WEB PAGE) on 2007-11-24. Retrieved 2007-11-29.
  25. ^ UNITED NATIONS GENERAL ASSEMBLY Page 2
  26. ^ UNITED NATIONS GENERAL ASSEMBLY Page 3
  27. ^ UNITED NATIONS GENERAL ASSEMBLY Page 5
  28. ^ a b UNITED NATIONS GENERAL ASSEMBLY Page 7
  29. ^ a b Zuckermann, Ghil'ad; et al. (2015), ENGAGING - A Guide to Interacting Respectfully and Reciprocally with Aboriginal and Torres Strait Islander People, and their Arts Practices and Intellectual Property (PDF), Australian Government: Indigenous Culture Support, p. 7, archived from the original (PDF) on 30 March 2016
  30. ^ Hagan, Helene E. "The Plastic Medicine People Circle." Archived 5 March 2013 at the Wayback Machine Sonoma Free County Press. Accessed 31 Jan 2013: "Shequish...came to the attention of Native American people two years ago as an impostor who pretended to have Shumash ancestry. I received a personal telephone call and a letter from the Chairman of a Shumash group south of Monterey. This phone call and a letter followed a Council meeting in which Shumash people took the decision to put a stop to Shequish Ohoho's activities in the Bay area as an 'Indian woman.' A group of real Indian women of San Francisco led a protest against Shequish and effectively terminated her money making seminars and ceremonies in this area. Her real name and background are known to California Indians who have denied her any tribal affiliation."
  31. ^ a b Sieg, Katrin, Ethnic Drag: Performing Race, Nation, Sexuality in West Germany; University of Michigan Press (20 August 2002) p.232
  32. ^ "All Blacks fight to keep haka". BBC News. 2000-07-16. Retrieved 2008-05-03.
  33. ^ "Iwi threatens to place trademark on All Black haka". The New Zealand Herald. 2005-05-22. Retrieved 2008-05-03.
  34. ^ "Iwi claim to All Black haka turned down". The New Zealand Herald. 2007-07-02. Retrieved 2008-05-03.
  35. ^ Ngāti Toa Rangatira Letter of Agreement Archived 21 May 2010 at the Wayback Machine
  36. ^ "New Zealand Maori win haka fight". BBC News. 11 February 2009. Retrieved 29 April 2010.
  37. ^ "Archer J.H. (2009) Ka Mate; its origins, development and significance" (PDF).
  38. ^ Griggs, Kim (21 November 2002). "Lego Site Irks Maori Sympathizer". Wired. Retrieved 29 April 2010.
  39. ^ "Disgust over 'Maori' brand cigarettes". TVNZ. 12 December 2005. Archived from the original on 13 June 2011. Retrieved 29 April 2010.
  40. ^ Stokes, Jon (29 April 2006). "Tobacco giant apologises to Maori". The New Zealand Herald.
  41. ^ Brown, Michael F. (April 1998). "Can Culture Be Copyrighted?". Current Anthropology. 39 (2): 193–222. doi:10.1086/204721. JSTOR 10.1086/204721.

Bibliography

External links

.nai

.nai is a proposed generic top-level domain (gTLD) for Native, Aboriginal & Indigenous communities of the Americas. It is the successor to the 1999 .naa proposal (see footnote #1) to ICANN (and footnote #2) for "a gTLD jurisdictionally scoped to North America and the territories, trusts and treaty dependencies of the United States and Canada, and with a policy model of registry delegation to, and registry operation by, the Indigenous Nations and Peoples of North America."

Initially a work product of the Tribal Law mailing list, the proposal was presented to the Digital Council Fires: A Native American Telecommunications Conference. The conference was held on May 13-16, 1999 in Albuquerque, New Mexico, and was organized by the National Indian Telecommunications Institute (NITI), a private non-profit organization that employs advanced technology to serve American Indians, Alaskan Natives, and Native Hawaiians in the areas of education, economic development, language and cultural preservation, tribal policy issues and self-determination. See the Call for Papers, originally published on the NATIVE_NEWS listserv.

A related effort, also a work product of the Tribal Law mailing list, was an ICANN VI-B(3)(b)(7) Constituency Application for an Indigenous Intellectual Property Constituency.

The geographic scope of the .nai proposal is larger than the explicit scope of the original .naa proposal, and includes the Americas, Aotearoa and Indigenous Australians, though the extension was implicit in the original.

The contractual form of the .nai proposal will be "community based" rather than "sponsored", reflecting changes in ICANN's conception of gTLDs.

The string "nai" exists in ISO 639-2 and is allocated to North American Indian languages. Similarly, the string "sai" exists in ISO 639-2 and is allocated to South American Indian languages, as is the string "aus" for Australian languages.

The project website is here.

Related linguistic and cultural top-level domains and pending applications are .cat for the Catalan (català) language and culture, .eus for the Basque (euskara) language and culture, .gal for the Galician (galego) language and culture, .bzh for the Brezhoneg (Breton) language and culture, .scot for the Scots languages and culture, .cymri or .cymru or .wales for the Cymraeg (Welsh) language and culture, and potentially others.

Note: The change forced upon the Welsh application from ".cym" to a to be determined alternate string is due to the reservation of iso3166-2 (alpha-three) values to the iso3166-1 (alpha-two) allocatees by ICANN at the GAC's recommendation, and intransigence of the .ky operator.

Biological Diversity Act, 2002

The Biological Diversity Act, 2002 is an Act of the Parliament of India for preservation of biological diversity in India, and provides mechanism for equitable sharing of benefits arising out of the use of traditional biological resources and knowledge. The Act was enacted to meet the obligations under Convention on Biological Diversity (CBD), to which India is a party.

Chief Zee

Zema Williams (July 7, 1941 – July 19, 2016), better known as Chief Zee, was a well-known fan and unofficial mascot of the Washington Redskins of the National Football League. Dressed in a faux Native American war bonnet, rimmed glasses, and red jacket, Chief Zee began attending Redskins games in 1978.

Cultural rights

The cultural rights movement has provoked attention to protect the rights of groups of people, or their culture, in similar fashion to the manner in which the human rights movement has brought attention to the needs of individuals throughout the world.

Darrell A. Posey

Darrell Addison Posey (March 14, 1947 – March 6, 2001) was an American anthropologist and biologist who vitalized the study of traditional knowledge of indigenous and folk populations in Brazil and other countries. He called his approach ethnobiology and combined research with respect for other cultures, especially indigenous intellectual property rights.

An obituary described him as an "anthropologist who gave up scholarly detachment to fight for the rights of native peoples." He never married and was survived by his parents and brother. He died of a brain tumor, at 53 years of age, in Oxford, England, where he made his home after 1992.

Functionality doctrine

In United States trademark law, the functionality doctrine prevents manufacturers from protecting specific features of a product by means of trademark law. There are two branches of the functionality doctrine: utilitarian functionality and aesthetic functionality. The rationale behind functionality doctrine is that product markets would not be truly competitive if newcomers could not make a product with a feature that consumers demand. Utilitarian functionality provides grounds to deny federal trademark protection to product features which do something useful. Patent law, not trademark, protects useful processes, machines, and material inventions. Patented designs are presumed to be functional until proven otherwise. Aesthetic functionality provides grounds to deny trademark protection to design features which are included to make the product more aesthetically appealing and commercially desirable. Aesthetic features are within the purview of copyright law, which provides protection to creative and original works of authorship.

Intellectual property infringement

An intellectual property infringement is the infringement or violation of an intellectual property right. There are several types of intellectual property rights, such as copyrights, patents, and trademarks. Therefore, an intellectual property infringement may for instance be one of the following:

Copyright infringement

Patent infringement

Trademark infringementTechniques to detect (or deter) intellectual property infringement include:

Fictitious entry, such as:

Fictitious dictionary entry. An example is Esquivalience included in the New Oxford American Dictionary (NOAD)

Trap street, a fictitious street included on a map for the purpose of "trapping" potential copyright violators of the map

WatermarkingDesigning around a patent may in some cases constitute a way to avoid infringing it.

Intellectual rights

Intellectual rights (from "French: droits intellectuels") is a term sometimes used to refer to the legal protection afforded to owners of intellectual capital. This notion is more commonly referred to as "intellectual property", though "intellectual rights" more aptly describes the nature of the protections afforded by most nations.

Both terms were used in Europe during the 19th century as a means of distinguishing between two different views of intellectual protection. "Intellectual property" was generally used to advocate a belief that copyrights and patents should provide rights similar to physical property rights. The term "intellectual rights" was used by those who felt that such protection should take the form of temporary, limited grants.

Although most modern copyright systems do not treat copyrighted or patented materials in the same way as real property, the term "intellectual property" has gained prominence. For more on this subject, see "intellectual property".

Also, at least three different kinds of capital and rights are involved:

creativity (individual capital) which implies rights to benefit from one's free expression

invention (instructional capital) which implies rights to benefit from having created some more efficient device or process

reputation (social capital) which implies rights not to have one's name or specific distinguishing tagline or ethic sullied by imitators or rivalsAll three capital terms predate the term intellectual capital, which appears to be a 19th-century artifact of early, now-discredited, economic theory.

In 20th-century Europe also originated another more modern approach, intended to sweep away the differences between the historical "Intellectual Property" and "Intellectual Rights" camps, allowing every creator both perpetual and temporary rights:

Moral rights became the unalienable part of the rights every author was entitled to. These rights could generally not be waived;

All other intellectual property rights were to become both limited in time and tradeable.Note that this is one of the chief differences between U.S. and EU approach towards Intellectual property rights up till the early 21st century, in that the crystallisation of this modern approach (the Berne Convention for the Protection of Literary and Artistic Works) is still only partially put in practice in the U.S., and, where applied, this is done largely outside the legislation regarding IP.

Jacqueline Keeler

Jacqueline Keeler is an American writer and activist of Dineh and Yankton Dakota heritage who co-founded Eradicating Offensive Native Mascotry (EONM), which seeks to end the use of Native American racial groups as mascots.

Misappropriation

In law, misappropriation is the unauthorized use of another's name, likeness, or identity without that person's permission, resulting in harm to that person.

Another use of the word refers to intentional and illegal use of property or funds; it can particularly refer to when done by a public official.

Outline of intellectual property

The following outline is provided as an overview of and topical guide to intellectual property:

Intellectual property – intangible assets such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property rights include copyright, trademarks, patents, industrial design rights, trade dress, and in some jurisdictions trade secrets. They may be sometimes called intellectual rights.

See outline of patents for a topical guide and overview of patents.

R v Gladstone

R v Gladstone, [1996] 2 S.C.R. 723 is a leading Supreme Court of Canada decision on non-treaty Aboriginal rights under section 35 of the Constitution Act, 1982. The Court modified the Sparrow test for the extinguishment of Aboriginal rights to give more deference to the government in protecting commercial fishing rights.

R v Gonzales

R. v. Gonzales (1962), 37 C.R. 56, was a landmark decision by the British Columbia Court of Appeal holding that Section 94(a) of the Indian Act did not violate the respondent's equality before the law, guaranteed under section 1(b) of the Canadian Bill of Rights, because all Indians were treated in the same way. Gonzales is particularly famous for employing the similarly situated test, which was not used in R. v. Drybones and was explicitly rejected by the Supreme Court of Canada in Andrews v. Law Society of British Columbia.

R v Pamajewon

R v Pamajewon, [1996] 2 S.C.R. 821, is a leading Supreme Court of Canada decision on Aboriginal self-government under section 35(1) of the Constitution Act, 1982. The Court held that the right to self-government, if it exists, is subject to reasonable limitations and excluded the right to control high-stakes gambling.

R v Powley

R. v. Powley 2003 SCC 43, commonly called the Powley ruling, is a Supreme Court of Canada case defining Métis Aboriginal rights under section 35(1) of the Constitution Act, 1982.

Right to quote

Right to quote or right of quotation or quotation right is one of the copyright exceptions provided by the Berne Convention, article 10: "It shall be permissible to make quotations ... provided that their making is compatible with fair practice, and their extent does not exceed that justified by the purpose". With different language, it was already present in the 1908 revision of the treaty.

Traditional knowledge

The terms traditional knowledge, indigenous knowledge and local knowledge generally refer to knowledge systems embedded in the cultural traditions of regional, indigenous, or local communities. Traditional knowledge includes types of knowledge about traditional technologies of subsistence (e.g. tools and techniques for hunting or agriculture), midwifery, ethnobotany and ecological knowledge, traditional medicine, celestial navigation, ethnoastronomy, climate, and others. These kinds of knowledge, crucial for subsistence and survival, are generally based on accumulations of empirical observation and on interaction with the environment.

In many cases, traditional knowledge has been orally passed for generations from person to person. Some forms of traditional knowledge find expression in stories, legends, folklore, rituals, songs, and laws. Other forms of traditional knowledge are expressed through other means.

Unregistered trademark

An unregistered or common law trademark is an enforceable mark created by a business or individual to signify or distinguish a product or service. A common law or unregistered trademark is legally different from a registered trademark granted by statute.

As with statutory trademarks, a common law trademark utilizes graphics, images, words or symbols, or a combination of such, to signify the distinctiveness or source of a product or service.

Although not required by law to receive trademark protection, an unregistered trademark owner can append the mark with the letters "TM" (visualized by the trademark symbol ™). A ™ serves as notice to the public the words or symbols are an unregistered trademark. In contrast, trademarks granted by the United States Patent and Trademark Office (USPTO) may have the ® symbol next to the trademark. U.S. Federal law prohibits a common law, unregistered trademark owner gaining any benefit from using the ® with the trademark. A significant distinction of an unregistered trademark is the trademark owner does not receive as much protection as the owner of a federal or state registered trademark. For example, in the United States the owner of a trademark registered by the USPTO can enforce the trademark in all U.S. states, sue for damages (including lost profits), and significantly, recover attorneys' fees and costs incurred in protecting the trademark against infringement. If a trademark owner registers in a state, the trademark owner can enforce the trademark throughout the entire state, and receive similar statutory remedies.

In the United States, neither federal nor state registration is required to obtain common law trademark protection, albeit the protection may be limited. In contrast to federal registration, common law trademarks are usually enforceable only within the geographic region or locale where the trademark owner is using it in business. When an infringement occurs, an unregistered trademark owner may not be able to sue and collect damages or recover attorneys fees. In those jurisdictions with limited protection to unregistered trademark owners, a common law trademark owner's remedies may be limited to injunctive relief (a court order for the defendant to cease and desist the infringement).

An unregistered trademark may receive protection under the federal "Lanham Act" (15 USC § 1125), which includes prohibition against commercial misrepresentation of source or origins of goods. Unlike other trademark statutory provisions, a claim under the Lanham Act may permit a party to recover attorneys' fees and costs.

Some U.S. states follow a first use rule when determining trademark ownership (such as California). Significantly, under the first use in commerce rule an unregistered trademark owner can defeat a later-filed federal or state registered trademark, if the unregistered trademark owner can show first use in commerce before the date of the registered trademark.

States that do not follow the first use rule resolve trademark ownership disputes by determining who first filed for registration of a trademark. Regardless of use in commerce, if a business or individual later files to register the trademark, the filing to register will take precedence over an unregistered common law trademark holder's use of the trademark. The first to file is declared the owner of the trademark. In first-to-file states this sometimes causes a race to file an application because a granted registration may provide protection to the date the trademark owner first filed the trademark application.

Vision quest

A vision quest is a rite of passage in some Native American cultures. It is usually only undertaken by young males entering adulthood.

Individual Indigenous cultures have their own names for their rites of passage. "Vision quest" is an English language umbrella term, and may not always be accurate or used by the cultures in question.

Among Native American cultures who have this type of rite, it usually consists of a series of ceremonies led by Elders and supported by the young man's community. The process includes a complete fast for four days and nights, alone at a sacred site in nature which is chosen by the Elders for this purpose. Some communities have used the same sites for many generations. During this time, the young person prays and cries out to the spirits that they may have a vision, one that will help them find their purpose in life, their role in a community, and how they may best serve the People. Dreams or visions may involve natural symbolism - such as animals or forces of nature - that require interpretation by Elders. After their passage into adulthood, and guided by this experience, the young person may then become an apprentice or student of an adult who has mastered this role.When talking to Yellow Wolf, Lucullus Virgil McWhorter came to believe that the person fasts, and stays awake and concentrates on their quest until their mind becomes "comatose." It was then that their Weyekin (Nez Perce word) revealed itself.Non-Native, New Age and "wilderness training" schools offer what they call "vision quests" to the non-Native public. However, despite the name, these experiences may bear little resemblance to the traditional ceremonies beyond fasting and isolation. This cultural misappropriation sometimes includes New Age versions of a sweat lodge, which has at times led to untrained people causing harm and even death, such as in the James Arthur Ray manslaughter incident, which involved a 36-hour, non-Native idea of a vision quest, for which the participants paid almost $10,000.Like a number of other Indigenous ceremonies, the vision quest has been mentioned in statements by Indigenous leaders concerned about the protection of ceremonies and other Indigenous intellectual property rights; one of these documents is the 1993 Declaration of War Against Exploiters of Lakota Spirituality. In 2007 the United Nations adopted the Declaration on the Rights of Indigenous Peoples (UNDRIP), which has given further support to Indigenous people's rights to protect their cultures and ceremonies, and address restitution when intellectual, religious and spiritual property is taken without their free, prior and informed consent or in violation of their laws, traditions and customs.

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