Intellectual Property Rights of Indigenous People - Essay Example

INTELLECTUAL PROPERTY RIGHTS OF INDIGENOUS PEOPLE Name Name of Class Name of Professor Institution Affiliation City and State Date Intellectual Property Rights of Indigenous People Introduction Indigenous people argue that the intellectual property rights in Australia do not offer sufficient protection of their traditional systems and cultures (Anderson 2005, p.347-373). Some critiques are opposed to intellectual property, rights referring to them as ignorant of their interests. In Western systems, the intellectual property rights consist of specific laws that promote industrial innovation and commercial creativity by offering protection to the rights of innovators and creators. Indigenous people are of the opinion that intellectual property laws benefit the majority non-indigenous cultures, and are against the interests and rights of indigenous cultural products and creativity. This paper highlights the opinions of indigenous communities regarding cultural protection and outlines a few ways through which cultures are exploited. It also explores the laws and policies on intellectual property and the areas of reform that may offer better protection and recognition of indigenous products, expressions, and cultural forms. Processes of Contestation In Western legal lingo, intellectual property rights cover patents, copyrights, trade secret laws, and trademarks. However, to Torres Strait Islander people and Aboriginal, the cultural elements, expressions, and products for which they seek protection are not limited to the elements in intellectual property laws. These laws only cover material forms and invented or created products. Indigenous people claim to have rights in the substance of these products. According to this argument, innovations, practices, and knowledge that lead to the development of cultural expressions and products are important parts of their tradition (Anderson 2005, p.347-373). These intangible elements are disregarded in copyright and other intellectual property laws. Indigenous knowledge is crucial to the indigenous community’s interests and rights in biological diversity, medicinal substances, sacred objects and sites, land management, and arts(Taylor 2008, p.111-126). The performance element of indigenous cultures like language use, songs, and dance are essential to an Indigenous person’s cultural expression. These elements are connected to sacred objects, land, religious, political, and cultural ideals. Therefore, providing protection to indigenous cultures should not be restricted to the provision of intellectual property laws. The recognition of rights of expression, manifestations, and knowledge sought after by indigenous communities calls for a complete overhaul of intellectual property laws to embrace the rights of indigenous cultures. There have been numerous instances of actions presented by Aboriginal people based on intellectual property laws. These cases prove that intellectual property laws are somewhat applicable when addressing the interests of Indigenous people. A good example is the case of Milpurrurru v Indofurn Pty Ltd (1995), also known as the ‘Aboriginal carpets case,’ and deemed to be a turning point in the protection of Indigenous intellectual property. The case became famous for the huge award of damages received by the claimant and the recognition of the ownership of Indigenous designs (Miller 1995, p.186). The Indigenous Partnerships Program of the Living Murray was established in 2006 to acknowledge the cultural and spiritual connection of indigenous people to their homeland (Morgan, Strelein, and Weir 2006, pp. 135-156). The IPP has developed a strategy of engaging the indigenous community. This method uses social science to trace the relationship of indigenous communities with ancient sites. This approach operates under the informed consent concept. The importance of this project is related to how indigenous communities can proof legal occupancy of a certain area. The basic way of establishing legal and physical occupancy is by using a map to identify an area’s land activities. Indigenous facilitators will be posted in all the historic sites to carry out the activity with the locals. Apart from a violation of indigenous designs, there have been cases of genetic abuse. Since the 1990s during the introduction of the Human Genome Diversity Project (HGDP), also known as the ‘Vampire Project,’ cases of genetic violations targeting indigenous communities have been on the rise. The HGDP involved using the genetic samples of both indigenous and non-indigenous communities. The indigenous communities were targeted because they were considered endangered. The HGDP also involves modifying and using genetic samples that are patented to develop products that yield profits for the researchers, yet the indigenous people do not get any share of these proceeds. Furthermore, the sampling and research process takes place without their knowledge or consent, thus, is a serious rights violation. It is noteworthy that there are no laws securing the indigenous people’s right to their body products (Gray 1997, p.61). Another issue that indigenous people raise is the use of their knowledge and biological products for commercial purposes. This issue poses questions regarding innovations and the relationship between intellectual property rights, natural resources, and knowledge. The ecosystem of indigenous communities, specifically the Torres Strait Islander and Aboriginal people is important for their survival and plays a huge role in their social, religious, and cultural systems. These ecosystems are part of the diverse biological regions across the globe and the products derived from these areas are scrambled for by the biotechnology industry to be used in cosmetic, medicinal, agricultural, and industrial products. The knowledge of indigenous people regarding biological products has helped in the growth of the biotechnology industry (Bodeker 2003, p.785). However, this industry modifies these products and patents them without giving any form of recognition to the indigenous communities. The intellectual property laws that protect the biotechnology industry do not offer any protection to the claims of the indigenous people due to the strict provisions regarding the patented inventions. In this case, knowledge and products from the indigenous people become intellectual property owned by the industries. Patenting inventions raises questions on the ethical grounds of collecting and using such products without the equitable participation or informed consent of indigenous people who have a rightful claim to the knowledge and products (Bodeker 2003, p.785). Another area of concern is that the companies, which acquire such knowledge and products, provide very few benefits to the indigenous people. Another pertinent issue is the impact of patent laws on local communities’ ability to secure their knowledge and products. Patents provide rights to an inventor, thereby preventing other people from producing or using the invention for financial gain. For a patent to be in force, the invention has to be useful, original, and non-obvious. Innovation in Indigenous communities is not compatible with the patent law provision of the originality of an invention. Furthermore, patents grant rights to corporations or individuals and do not apply to communal rights, yet this is the case with indigenous societies in Australia. The concept of property in indigenous society is different from the definitions in patent law. Indigenous communities regard biological knowledge as a resource for the community shared freely with the members therein following customary rules, obligations, and rights (Edmunds 1998, p.4). Therefore, the private rights of ownership with respect to patent laws conflict with the ideals of indigenous people. Laws and Policies That Protect Indigenous Intellectual Property The Universal Declaration of Human Rights The Declaration of Human Rights supports the knowledge rights of Indigenous people. According to this declaration, indigenous people maintain the right to maintain and develop their traditional knowledge, cultural expressions, and cultural heritage. Furthermore, indigenous communities are allowed to manifest their technologies, cultures, and sciences (Wiessner 2009, p.343-362). The Convention on Biological Diversity The Convention recognises the biological knowledge and resources of indigenous communities. According to Article 8(j), countries are encouraged to show respect and embrace the knowledge and practices of local and indigenous communities embodying traditional elements associated with sustainable use and conservation of biological diversity. Additionally, the convention supports equal sharing of the rewards acquired from the use of such knowledge, practices, and innovations (Aoki 2010, p.6). Copyright Act This Act supports the right of expression through an artistic, literary, musical, or dramatic form, as well as through broadcast signals and cinematographic films (Golvan 1992, p.1). The creators of these ideas have a rightful claim to them. Copyright protection covers material and original work. The duration of copyright protection is 50 years plus the owner’s lifetime. Copyright protection is restricted to the author’s life with an additional fifty years. Advancement in technology and the cultural rights of indigenous people raise the need to re-evaluate copyright laws. The requirement for ideas to be expressed in a tangible form subject to Copy Right protection is premised on the idea of copyright as individual property that is transferable or subject to subdivision in commercial transactions (Janke 1998, p.51). This is one of the main impediments to the protection of an indigenous community’s manifestations and cultural products under copyright laws. The requirement for works to be original is another impediment since indigenous communities believe in cultural production, that is, single individuals do not produce cultural and artistic expressions in Torres Strait Islander or Aboriginal societies. If a person creates a painting in Torres Strait Islander societies, it is not regarded as the owner’s work, rather the property of the clan members who grant the person permission to produce images or designs. Rock art is a good example of the difficulties of originality as provided by Copyright Law. Patents Act The Patents Act is regarded as incompatible with the interests of indigenous people. Patents are used to protect inventions and offer an exclusive right of 20 years for the exploitation of the invention. Unlike copyrights, one has to apply for a patent. The limited period of patent laws coupled with non-obviousness, usefulness, and novelty requirements, render the laws inapplicable to Indigenous communities (Janke 1998, p.565). Aboriginal and Torres Strait Islander Heritage Protection Act (1984) The Aboriginal and Torres Strait Islander Heritage Protection Act protects traditional indigenous knowledge. This legislation protects and preserves objects and areas on land or water that are considered important to indigenous communities (Malone 1996, p.23). The provisions of the Act are limited to protecting physical heritage, but there is no mechanism for protecting the sacred and secret knowledge of significant areas. However, the Minister in charge of environmental and cultural affairs has the authority to declare the areas that belong to indigenous communities. Berne Convention The Berne Convention was amended in 1971 calling for countries to vouch for an authority that will be charged with license control and protection of folklore. Although the idea of folklore is a comprehensive coverage of culture, there has been a lot of debate over its applicability and relevance to indigenous cultures (Busch 2015, pp.213-280). Furthermore, its concept of empowering the state to control cultural expressions and products goes against the Indigenous self-determination aspirations. Some argue that folklore broadens the reach of things protected under copyright law. It is useful to examine some developments that have considered this concept as a possible means Conclusion Indigenous communities have for a long time complained about being neglected when it comes to their rights to cultural knowledge and property. While some laws have been established that confer certain rights upon indigenous people, critics have claimed that these policies are more inclined to help non-indigenous societies. In the recent past, the indigenous communities in Australia, Torres Strait Islander and Aboriginal, have moved to court to enforce their cultural rights based on the existing intellectual property laws. Proponents of these laws argue that the success of such legal actions by the indigenous communities proves that the property laws actually address their concerns. However, an in-depth look at intellectual property laws like patents and copyrights show that some of the provisions therein tend to suppress the rights of indigenous communities. For example, the limited time provided for the law on patents as well as some of its conditions render this legislation inapplicable to the needs of indigenous people. Furthermore, critics call to attention the fact that businesses that have benefited from the culture and knowledge of these indigenous people have failed to share the rewards, an act of gross exploitation. Although some policies such as the Universal Declaration of Rights, the Aboriginal and Torres Strait Islander Heritage Protection Act (1984), and the Berne Convention, have attempted to protect indigenous communities, a lot remains to be done to protect their ecosystems, traditions, and practices. References Anderson, J., 2005. The Making of Indigenous Knowledge in Intellectual Property Law in Australia. International Journal of Cultural Property, 12(03), pp.347-373. Aoki, K., 2010. Seeds of Dispute: Intellectual-Property Rights and Agricultural Biodiversity. Golden Gate University Environmental Law Journal, 3(1), p.6. Bodeker, G., 2003. Traditional Medical Knowledge, Intellectual Property Rights & (and) Benefit Sharing. Cardozo J. Int'l & Comp. L., 11, p.785. Busch, A.F., 2015. Chapter III. The Broader Legal Framework. In Protection of Traditional Cultural Expressions in Latin America (pp. 213-280). Springer Berlin Heidelberg. Edmunds, M., 1998. Regional Agreements: Key Issues in Australia, Volume 1, Summaries, Native Title Research Unit. Canberra: Australian Institute of Aboriginal and Torres Strait Islander Studies. Golvan, C., 1992. An introduction to intellectual property law. Wm Gaunt & Sons. Gray, S., 1997. Vampires round the campfire. Alternative LJ, 22, p.60. Janke, T., 1998. Our culture our future: a report on Australian Indigenous cultural and intellectual property rights. Malone, A., 1996. The Aboriginal and Torres Strait Islander Heritage Protection Act-1984-: how beneficial legislation has missed its mark. Bulletin (Olive Pink Society), 8(1), p.23. Miller, D., 1995. Collective Ownership of the Copyright in Spiritually-Sensitive Works: Milpurrurru v Indofurn Pty Ltd. Australian Intellectual Property Review, 6, pp.185-207. Morgan, M., Strelein, L. and Weir, J., 2006. Authority, knowledge and values: Indigenous Nations engagement in the management of natural resources in the Murray-Darling Basin. Settling with Indigenous peoples, pp.135-156. Taylor, J., 2008. Indigenous peoples and indicators of well-being: Australian perspectives on United Nations global frameworks. Social Indicators Research, 87(1), pp.111-126. Wiessner, S., 2009. The United Nations declaration on the rights of indigenous peoples. In The Diversity of International Law (pp. 343-362). Brill. Read More