Quarterly International Ip Law Update

• Citation: Vol. 45 No. 3
• Publication year: 2020
• Author: David Tseng
• topic: Trademark,Intellectual Property,Indigenous Law

Quarterly International IP Law Update

David Tseng

Folio Law Group

Mariana Noli

Noli IP Solutions PC

Leaf Williams

Reichman Jorgensen

WORK IN PRO GRESS: PROTECTING THE IP RIGHTS OF INDIGENOUS COMMUNITIES WORLDWIDE

Cultural appropriation is a nebulous concept that is generally defined as "the adoption or co-opting, usually without acknowledgment, of cultural identity markers associated with or originating in minority communities by people or communities with a relatively privileged status."¹ The topic has been increasing in profile as the public becomes more aware of the importance of preserving cultures and preventing exploitation.

Issues of cultural appropriation have arisen in a multitude of contexts including food², fashion,³ sports,⁴ phrases,⁵ body art,⁶ movies, costumes,⁷ arts and crafts,⁸ and flags.⁹ While disputes over cultural appropriation span many different geographical areas, groups, and subject matters, some of the most visible and consistent battles have involved indigenous tribes struggling to protect their cultural works through legal means.

From an intellectual property perspective, cultural appropriation is a concept that is, at least for the present, ill-suited to the current legal framework. Ownership is a core concept of IP, one that must be reconciled with the question of who should own cultural signifiers. Even the act of identifying the signifiers within a culture may be, by itself, a difficult task.

The World Intellectual Property Organization (WIPO) has nevertheless recognized cultural appropriation as a problem that can be addressed through IP and consequently proposed a framework to resolve the issue. Proclaiming that "there is undoubtedly a role for intellectual property (IP) in curbing this harmful practice," WIPO has acknowledged that taking and reusing traditional cultural expressions "in ways that disregard or misinterpret their cultural significance [can] cause great harm to the holders of these expressions" and that "[e]ven where harm is unintentional, it can have drastic cultural, social and economic consequences."¹⁰

In response, WIPO commissioned an Intergovernmental Committee¹¹ that aims to reach an agreement on legal instruments that will ensure the effective recognition of culture as a distinct IP right and protect it against appropriation. In March of 2019, WIPO published draft articles directed at the protection of traditional cultural expressions. The draft articles defined two distinct forms of cultural IP rights:¹²

• Traditional Knowledge (TK): knowledge, know-how, skills, innovations or practices that are passed between generations in a traditional context and that form part of the traditional lifestyle of indigenous and local communities who act as their guardian or custodian.
• Traditional Cultural Expressions (TCE): expressions of folklore that form part of the identity and heritage of a traditional or indigenous community and are passed down from generation to generation.

Member states "may establish or designate a competent authority, in accordance with national law, to administer, in close consultation with the beneficiaries, where applicable, the rights/interests provided for by this instrument."¹³

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When viewed in context, TKs and TCEs are not "new" forms of IP. Instead, TKs and TCEs overlap with existing forms of IP and operate to provide specific carve-outs for particular communities. TKs overlap patents in that they cover "know-how" and "innovations." TCEs are co-extensive with copyrights and trademarks in that they include the expression of ideas and may signify origin. Territories that recognize TKs and TCEs must employ narrow and specific policies to ensure a balance between protecting vulnerable cultures from exploitation and incentivizing innovation.

As part of its efforts to formalize TKs and TCEs for its members, WIPO maintains a database of countries that have existing legislation directed to TK and TCE. According to the database, there are 118 instances of TCE legislation and 42 instances of TK legislation.¹⁴

For example, Section 3 of India's Patent Act excludes from patentability "an invention which, in effect, is traditional knowledge or which is an aggregation or duplication of known properties of traditionally known component or components." Here, the exclusion from patentability is limited to knowledge that is already known, limiting its usefulness to indigenous or local communities. India does not have legislation on TCEs.

New Zealand takes a detailed approach to address the exploitation of the Maori community. Section 14 of the New Zealand Patent Act of 2013 prohibits inventions that are contrary to public order or morality. The legislation mandates seeking advice from the Maori advisory committee when appropriate. However, Section 14(3) of the Act notes that the mere act of "commercial exploitation must not be regarded as contrary to public order or morality only because it is prohibited by any law in force in New Zealand." Similarly, New Zealand's Trademarks Act of 2002 prohibits "the use or registration of which would, in the opinion of the Commissioner, be likely to offend a significant section of the community, including Maori."

In Latin America, the countries that have the largest indigenous populations tend to have more extensive legislation regulating cultural heritage TK and TCEs. For example, on April 13, 1992, Bolivia (which is 62% indigenous) issued Law No. 1322, to regulate Traditional Cultural Expressions. Article 21 of this Law protects "folklore," or the body of literary and artistic works created within Bolivia by authors who are unknown or who do not identify themselves and who are presumed to be members of its ethnic communities. This folklore is passed down from generation to generation, representing one of...