Indigenous Intellectual Property

Introduction

As the topic suggests we need to understand about the Indigenous Intellectual Property to understand the gravity of the general situation as a matter of concern for Bangladesh. To understand it we first need to understand what the term implies as Indigenous people. The term refers to people, communities, and nations who claim a historical continuity and cultural affinity with societies endemic to their original territories that developed prior to exposure to the larger connected civilization associated with majority population’s culture.[1] These societies therefore consider themselves distinct from societies of the majority culture/s that have contested their cultural sovereignty and self-determination.[2] They have historically formed and still currently form the minority/non-dominant sectors within majority-culture societies and are intentioned towards preserving, reviving, and enhancing the efficacy, cohesion, and uniqueness of their traditional social values and customary ties along with a conscientious effort to transmit this knowledge to future generations.This forms the basis of contemporary campaigns for reclamation of their own representational sovereignty and continued existence and recognition as peoples who desire to live according to their own cultural attributes, social systems and structures of law. Several widely accepted formulations, however, which seek to variously define the term indigenous peoples have been put forward by a couple of other prominent and internationally recognized organizations, such as the International Labour Organization and the World Bank.[3]

Other related terms for indigenous peoples include aborigines, aboriginal people, native people, first people, and fourth world cultures.[4] “Indigenous peoples” may often be used in preference to these or other terms as a neutral replacement, where such terms may have taken on negative or pejorative connotations by their prior association and use. It is the preferred term in use by the United Nations and its subsidiary organizations.

Another term with which people confuse with the “Indigenous People” term is the “Tribal People” or “Tribe”. Tribe refers a social group existing before the development of, or outside of, states.Many anthropologists use the term tribal society to refer to societies organized largely on the basis of kinship, especially corporate descent groups (see clan and kinship).[5]

Indigenous intellectual property is an umbrella legal term used in national and international forums to identify indigenous peoples‘ special rights to claim (from within their own laws) all that their indigenous groups know now, have known, or will know.[6]

It is a concept that has developed out of a predominantly western legal tradition, and has most recently been promoted by the World Intellectual Property Organization, as part of a more general United Nations push to see the diverse wealth of this world’s indigenous, intangible cultural heritage better valued and better protected against probable, ongoing misappropriation and misuse.

In Bangladesh especially the lack of attention to the physical properties of Indigenous people has already lead to bloody struggles in Chittagong Hill Tracts (CHT) in forms of “ Shanti Bahini” led by Sontu Larma, which only ended after the government of Bangladesh agreed to consider their demands. Though the conflict was based on the matters of physical properties or at least they gained from the media the greatest attention along with the fact that the struggle was carried out only by the Chakma people. But the media ignored the fact that all the indigenous people of CHT and throughout Bangladesh also have discontent about the lack of attention and protection about their intellectual properties ( i.e. languages, letters or alphabets, traditional and religious ceremonies), which is growing. One day this can lead to further separatist movements which are costly to put down and bloody and may be painfully prolonged. So, this should be treated as a matter of great concern for Bangladesh.

Definitions of Indigenous and Indigenous Intellectual Property

Definition of Indigenous People

The adjective indigenous has the common meaning of “from” or “of the original origin”. Therefore, in a purely adjectival sense any given people, ethnic group or community may be described as being indigenous in reference to some particular region or location.[7] Key to a contemporary understanding of “indigenousness” is the political role a cultural group plays, for all other criteria usually taken to denote indigenous groups (territory, race, history, subsistence lifestyle, etc.) can, to a greater or lesser extent, also be applied to majority cultures. Therefore, the distinction applied to indigenous groups can be formulated as “a politically underprivileged group, who share a similar… identity different to the nation in power”, and who share territorial rights to a particular area governed by a colonial power.[8] However, the specific term indigenous peoples has a more restrictive interpretation when it used in the more formalized, legalistic, and academic sense, associated with the collective rights of human populations. In these contexts, the term is used to denote particular peoples and groups around the world who, as well as being native to or associated with some given territory, meet certain other criteria (such as having reached a social and technological plateau thousands of years ago).[9] Drawing on these, a contemporary working definition of “indigenous people” for certain purposes has criteria which would seek to include cultural groups (and their continuity or association with a given region, or parts of a region, and who formerly or currently inhabit the region) either:

  • before or its subsequent colonization or annexation; or
  • alongside other cultural groups during the formation and/or reign of a colony or nation-state; or
  • independently or largely isolated from the influence of the claimed governance by a nation-state,
  • have maintained at least in part their distinct cultural, social/institutional, and/or linguistic characteristics, and in doing so remain differentiated in some degree from the surrounding populations and dominant culture of the nation-state.[10]

To the above, a criterion is usually added to also include:[11]

  • peoples who are self-identified as indigenous, and/or those recognized as such by other groups.

Note that even if all the above criteria are fulfilled, some people may either not consider themselves as indigenous or may not be considered as indigenous by governments, organizations or scholars. In cases like Bangladesh somtimes even the Government may not clarify the status of a population segment as a tribal or indigenous populace.[12]

Definition of Indigenous Intellectual Property

Indigenous intellectual property is an umbrella legal term used in national and international forums to identify indigenous peoples‘ special rights to claim (from within their own laws) all that their indigenous groups know now, have known, or will know.[13]

It is a concept that has developed out of a predominantly western legal tradition, and has most recently been promoted by the World Intellectual Property Organization, as part of a more general United Nations push to see the diverse wealth of this world’s indigenous, intangible cultural heritage better valued and better protected against probable, ongoing misappropriation and misuse.[14]

Declarations regarding Indigenous Intellectual Property (Globally)

In the lead up to and during the United Nations International Year for the World’s Indigenous Peoples (1993) ,then during the following United Nations Decade of the World’s Indigenous Peoples (1995–2004) a number of conferences of both indigenous and non-indigenous specialists were held in different parts of the world[15], resulting in a number of declarations and statements identifying, explaining, refining, and defining ‘indigenous intellectual property. Declarations and statements from these conferences include:

Declaration of Belem

Declaration Date: (Brazil July 1988)

The first international congress of the International Society of Ethnobiology involving anthropologists, biologists, chemists, sociologists, and indigenous peoples at Belem identifying themselves collectively as ‘ethnobiologists‘, 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”[16]

Kari-Oca Declaration and Indigenous Peoples Earth Charter

Declaration Date: (Brazil, May 1992; reaffirmed in Indonesia, June 2002)

This is a declaration and a charter first agreed in May 1992 by 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.[17] Under a heading,”Culture, Science and Intellectual Property“, amongst other matters, it is asserted[18]:

“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 ..”[19]

“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…”[20]

Other declarations (locally) outside Bangladesh

Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples

Declaration Date and Place (Aotearoa, New Zealand, June 1993)

On 18 June 1993, 150 delegates from fourteen countries, including indigenous representatives from Aiun (Japan), Australia, Cook Islands, Fiji, India, Panama, Peru, Philippines, Surinam, USA and Aotearoa (New Zealand) meeting at Whakatane (Bay of Plenty region of New Zealand): affirmed indigenous peoples’ knowledge is of benefit to all humanity;[21] recognized 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; declared all forms of exploitation of Indigenous knowledge must cease.[22]

Under Section 2 of their declaration they specifically ask State, National and International Agencies to:[23]

“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.”

Tambunan Statement on the Protection and Conservation of Indigenous Knowledge

Declaration Date: (Sabah, East Malaysia. February 1995)

Indigenous people of Asia met at Tambunan, 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.[24] It was agreed:

“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..”[25]

Suva Statement on Indigenous Peoples Knowledge and Intellectual Property Rights

Declaration Date and Place:(Suva, Fiji, April 1995)

Participants from the independent countries and “nonautonomous colonised territories” of the Pacific region met in Suva 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[16](above). In particular participants:

“Reaffirme[d] that imperialism is perpetuated through [western] intellectual property rights systems..”

“Declar[ed] 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.”[26]

All these efforts to ensure the protection of Indigenous Intellectual were rather local or disorganized in nature. One thing was certain, without the backing of UN, all these efforts were not going to help the indigenous people much. So, the UN came forward with its own initiative about which we are discussing below:

United Nations Declaration on the Rights of Indigenous Peoples

At the United Nation’s General Assembly’s 61st session, on the 13th September 2007, an overwhelming majority of members resolved to adopt the United Nations Declaration on the Rights of Indigenous Peoples.[27]

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..”[28]; reaffirmed “.. that indigenous peoples possess collective rights which are indispensable for their existence, well-being and integral development as peoples..”; 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.”[29]

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…”[30]

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.”[31]

Examples of Indigenous peoples defending their intellectual property

There are some instances when the indigenous people have risen against misrepresentation of their intellectual properties and actually organizations with inexhaustible resources gave up in front of their protests and apologized. A few of such instances are:

Lego’s Bionicle

In 2001 a dispute concerning the popular LEGO toy-line “Bionicle” arose between Danish toymaker Lego Group and several M?ori 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 M?ori 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 M?ori and agreed to change certain names or spellings to help set the toy-line apart from the M?ori 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.[32]

“M?ori” cigarettes

[33]

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”. In 2006, the head of Phillip Morris, Louis Camilleri, issued an apology to M?ori: “We sincerely regret any discomfort that was caused to M?ori people by our mistake and we won’t be repeating it.”[34]

Bangladesh Scenario

The indigenous tribal peoples are concentrated in the Chittagong Hill Tracts in the southeast. There are thirteen tribal groups located in this region, the largest being the Chakma. The Hill Tracts region has been a source of unrest and separatism since and before the inception of Bangladesh. Outside the Hill Tracts, the largest tribal groups are the Santhals and Garos (Achiks), while smaller groups include the Kaibartta, Meitei, Mundas, Oraons, and Zomi.[35]

Although folklore, folk-dance, folk-literature, folk-songs and indigenous culture, agricultural practices, knowledge of biodiversity and traditions passed on from generation to generation, plays an important role in the formation of the cultural heritage of Bangladesh, those are not well protected under the existing laws. Neither the copyright law nor patent law of Bangladesh specifically mentioned or deals with them. To ease the matter of understanding we will describe Indigenous Intellectual property as IIP from here on.[36]

Recommendations:

To protect IIP rights in Bangladesh, Government of Bangladesh should take following initiatives:

Create necessary legal authority for the administration and identification of IIP.

Government can provide assistance in form of financial aids to universities and other research institutions to research on IIP.

Strengthen Intellectual Property Offices in Bangladesh to examine and provide legal protection on IIP.

There must be a provision for compulsory declaration of origin and IIP check in all forms of intellectual property applications.

Provide practical training on IIP to the personnel working in the Intellectual Property offices/organizations.

Manage financial and technical assistance from the developed countries and international organizations to establish an Indigenous Knowledge Research Centre in Bangladesh.

There should be more participation of the indigenous people in the mainstream politics so that they can have a stronger say in protecting their own rights.

While taking above initiatives, Bangladesh Government may take legal and technical assistance from WTO and WIPO. But it would be better if Bangladesh can develop its own expertise in the field of intellectual property law and indigenous knowledge protection system as well.

Bibliography

  • Dean, Bartholomew (2009) Urarina Society, Cosmology, and History in Peruvian Amazonia, Gainesville: University Press of Florida ISBN 978-081303378
  • Helm, June, ed, 1968. Essays on the Problem of Tribe, Proceedings, American Ethnological Society, 1967 (Seattle: University of Washington Press)
  • Sutton,Imre, Indian Land Tenure: Bibliographical Essays and a Guide to the Literature (NY: Clearwater, 1975): tribe—pp. 101–02,180-82, 186-87, 191-93.
  • Blust, R. (1999), “Subgrouping, circularity and extinction: some issues in Austronesian comparative linguistics” in E. Zeitoun & P.J.K Li, ed., Selected papers from the Eighth International Conference on Austronesian Linguistics. Taipei: Academia Sinica

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[1] OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS (2007). “Indigenous peoples” (WEB PAGE). Office of the United Nations High Commissioner of Human Rights. Geneva. Retrieved from the original on 2010-11-1.

[2] OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS (2007). “Indigenous peoples” (WEB PAGE). Office of the United Nations High Commissioner of Human Rights. Geneva. Archived from the original on 2010-11-1.

[3] United Nations Working Group on Indigenous Populations, from Study of the Problem of Discrimination Against Indigenous Populations, J. Martinez Cobo, United Nations Special Rapporteur (1987)

[4] Indigenous Peoples and Environmental Issues: An Encyclopedia, by Bruce E. Johansen. Westport, Connecticut, Greenwood Press, 2003. 506p., ISBN 978-0-313-32398-0

[5] new reality.htm “Language and reality”. Owen Alik Shahadah , African Holocaust Society. http://www.africanholocaust.net/news_ah/language new reality.htm. Retrieved 2010-11-04.[dead link]

[6] WORLD INTELLECTUAL PROPERTY ORGANISATION (2001)

[7] FRITZ Jean-Claude, La nouvelle question indigène. Peuples autochthones et ordre mondial (en co-direction avec Frédéric Déroche, Gérard Fritz et Raphaël Porteilla), Paris, L’Harmattan, 2006.

[8] Henriksen, John B. (2001). “Implementation of the Right of Self-Determination of Indigenous Peoples” (PDF). Indigenous Affairs (Copenhagen: International Work Group for Indigenous Affairs) 3/2001: pp. 6–21. ISSN 1024-3283. OCLC 30685615. http://www.iwgia.org/graphics/Synkron-Library/Documents/publications/Downloadpublications/IndigenousAffairs/selfdetermination.pdf. Retrieved2010-11-04

[9] “Indigenous issues”. International Work Group on Indigenous Affairs. http://www.iwgia.org/sw155.asp. Retrieved November 5, 2010.

[10] Indigenous Peoples and Environmental Issues: An Encyclopedia, by Bruce E. Johansen. Westport, Connecticut, Greenwood Press, 2003. 506p., ISBN 978-0-313-32398-0

[11] “United NationsDeclaration on the Rights of Indigenous Peoples (A/RES/61/295)”. United Nations. UNPFII. http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf. Retrieved 2010-11-02.

[12] “Frequently Asked Questions: Declaration on the Rights of Indigenous Peoples” (PDF). United Nations Permanent Forum on Indigenous Issues. http://www.un.org/esa/socdev/unpfii/documents/FAQsindigenousdeclaration.pdf. Retrieved 2010-11-03.

[13] WGIP (2001). Indigenous Peoples and the United Nations System. Office of the High Commissioner for Human Rights, United Nations Office at Geneva. http://www.unhchr.ch/html/racism/indileaflet1.doc. [dead link]

[14] WORLD INTELLECTUAL PROPERTY ORGANISATION (2001). “Intellectual Property Needs and Expectations of Traditional Knowledge Holders:”. WIPO Report on Fact-finding Missions on Intellectual Property and Traditional Knowledge (1998–1999). World Intellectual Property Organisation. Geneva. http://www.wipo.int/tk/en/tk/ffm/report/final/. Retrieved 2010-11-02

[15] Acharya, Deepak and Shrivastava Anshu (2008): Indigenous Herbal Medicines: Tribal Formulations and Traditional Herbal Practices, Aavishkar Publishers Distributor, Jaipur- India. ISBN 978-81-7910-252-7. pp 440

[16] “Declaration of Belem” (PDF). 1988. http://ise.arts.ubc.ca/_common/docs/DeclarationofBelem.pdf. Retrieved 2010-11-04.

[17] FOURMILE, Henrietta (1996) Making things work: Aboriginal and Torres Strait Islander Involvement in Bioregional Planning. 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. Page 235

[18] FOURMILE pages 260–261

[19] FOURMILE page 262

[20] FOURMILE page 262

[21] FOURMILE 1996: Pages 266–267

[22] FOURMILE 1996: Pages 268

[23] FOURMILE 1996: Pages 268–269

[24] WATSON, Irene (1992). “1993: International Year for Indigenous Peoples”. Aboriginal Law Bulletin. AustLII. http://www.austlii.edu.au/au/journals/AboriginalLB/1992/52.html. Retrieved 2010-11-02.

[25] Bartholomew Dean and Jerome Levi (eds.) At the Risk of Being Heard: Indigenous Rights, Identity and Postcolonial States University of Michigan Press (2003)

[26] RAINFOREST ABORIGINAL NETWORK (1993) Julayinbul: Aboriginal Intellectual and Cultural Property Definitions, Ownership and Strategies for Protection. Rainforest Aboriginal Network. Cairns. Page 65

[27] OFFICE OF THE UNITED NATIONS HIGH COMMISSIONER FOR HUMAN RIGHTS (2007). “Declaration on the rights of indigenous peoples” (WEB PAGE). Office of the United Nations High Commissioner of Human Rights. Geneva. Archived from the original on 2007-11-24. http://web.archive.org/web/20071124223454/http://www.ohchr.org/english/issues/indigenous/declaration.htm. Retrieved 2010-11-03.

[28] UNITED NATIONS GENERAL ASSEMBLY Page 2

[29] UNITED NATIONS GENERAL ASSEMBLY Page 5

[30] UNITED NATIONS GENERAL ASSEMBLY Page 7

[31] UNITED NATIONS GENERAL ASSEMBLY Page 9

[32] Griggs, Kim (21 November 2002). “Lego Site Irks Maori Sympathizer”. Wired. http://www.wired.com/culture/lifestyle/news/2002/11/56451. Retrieved 2 November,2010

[33] en.wikipedia.org/wiki/”M?ori” cigarettes

[34] “Disgust over ‘Maori’ brand cigarettes”. TVNZ. 12 December 2005. http://tvnz.co.nz/view/page/411319/638858. Retrieved 2 November 2010.

[35]en.wikipedia.org/wiki/Bangladesh

[36] Janowitz,Ibid. F.R. Von der Mehden, The Politics of Developing Nations, Englewood Cliffs, N.J.: Prentice Hall,1969, p-93

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