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When indigenous rights clash with trademarks

How best to protect indigenous rights has become a top issue for WIPO, INTA and, increasingly, governments around the globe. Eileen McDermott examines some of the key priorities.

When Italian car maker Fiat launched a 2006 ad campaign featuring a parody of a Maori dance ritual known as the Ka Mate haka, the New Zealand government advised the ad was culturally insensitive, but could do nothing to stop it. Even after the government awarded the Maori rights to the haka in 2009, there was still little they could do to keep the dance from being exploited commercially around the world.
“The threats to identity are not internal but global,” said New Zealand’s Waitangi Tribunal, which hears complaints about misuse or misappropriation of Maori culture, in a recent report. “They are the genericizing effects of a lowest-common-denominator consumer culture and the ease with which IP-based ventures can pluck Maori culture for its uniqueness and saleability, and bend it to commercial ends,” the report continued.
That statement perhaps forms the crux of the challenge over protecting indigenous rights and traditional knowledge around the world.
From South America to Africa and Canada, indigenous peoples are becoming increasingly concerned about their cultural secrets being discovered and used for profit by the Western world. As the Internet makes traditional knowledge (TK) more accessible, the danger grows. But how to draw the line between keeping valuable cultural knowledge in the public domain so that it is easily available to those who need it and protecting it from misappropriation continues to largely elude indigenous communities, governments and IP rights advocates alike. Today’s session Protection of Indigenous Rights: An Increased Need will educate attendees about the growing need to develop an international framework to facilitate the protection of TK and Traditional Cultural Expressions (TCE) within indigenous communities, and the sometimes uneasy relationship which has historically existed between TK and trademark rights.
WIPO developments
In February 2011, a WIPO Working Group comprising some 200 traditional knowledge specialists from member states, indigenous communities and industry agreed to a simplified text consisting of 11 substantive articles. Wend Wendland, director of WIPO’s traditional knowledge division, said the latest text is “shorter and more streamlined” than previous drafts. “The experts have got rid of a lot of clutter,” he added. The text comprises the policy objectives and guiding principles, followed by 11 articles.
Each article includes a commentary, with comments and questions raised by different delegations. “It is looking like a negotiable text for the first time,” explained Wendland at the time.
In a recent interview, WIPO Director General Francis Gurry said that the Office’s Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore Committee (IGC) is making “good progress” on indigenous rights, and in September of last year at the WIPO General Assemblies, the IGC claimed “great progress” because it agreed on the renewal of its own mandate to work on these issues.
The IGC mandate represents more progress than has been made on the issue so far, but the challenges are great. In part, this is because IP protection is far from the most pressing issue on many indigenous groups’ lists. “In many cases they are still fighting for some basic rights,” says Keri Johnston of Johnston Wassenaar in Canada, who is moderating today’s panel. “In Canada especially, I know that’s true. There is a hierarchy of needs,” she adds.
But as governments begin to take more action on essential rights such as housing and education, indigenous groups are becoming more aware that both defensive and positive IP protection (see box) can be crucial to the preservation of their unique knowledge and customs.
Government action
In July last year, New Zealand’s Waitangi Tribunal released a report recommending the formation of a Maori patents advisory committee to advise the Commissioner of Patents and encouraging legislative reform to require that commercial use of taonga (treasure) works be approved by kaitiaki (guardians). The report is non-binding on the Crown, however, and took 20 years to be released.
The South African parliament passed a law in November of last year to protect traditional knowledge that was widely criticized. The Intellectual Property Laws Amendment Bill introduces separate provisions on traditional knowledge into the Copyright, Designs, Performers Protection and Trade Marks acts. It also includes an overarching provision that the IP rights created by those acts apply to traditional knowledge as well. But this creates a series of conflicts that are likely to make the law unworkable. It doesn’t explain how to prove the originality required for copyright, for example, in traditional arts or pieces of music that are hundreds of years old. The same applies to design protection, which would require some proof of novelty. South African lawyers said they plan to advise their clients to not register traditional knowledge under the law, given its uncertainties, but to use existing IP rights instead.
INTA initiatives
INTA has been following developments like these since before the WIPO IGC was formed. The Indigenous Rights Subcommittee monitors WIPO and government progress and makes recommendations for best practices to INTA members. In a recent issue of the INTA Bulletin, Marion Heathcote of Davies Collison Cave and Barbara Sullivan of Henry Hughes, who have been integral to INTA’s work on indigenous rights, outlined INTA’s recommendation to members in the face of continued uncertainty over mechanisms for protecting indigenous rights. “Trademark owners need not await the outcome of this debate to start developing best practice guidelines to facilitate the recognition of TCEs and to make appropriate decisions about their use in trademarks and brand strategies,” Heathcote says. “At the very least, a program of awareness of indigenous issues enables informed choices.” Johnston adds: “This is something brand owners should take up on their own because it’s the right thing to do.”
Suggestions for best practices will be one of the highlights of today’s session, which Johnston says she conceived of thanks to the passion Heathcote has had for this issue, as well as her friendship with Phil Fontaine, the Former National Chief of the Assembly of First Nations in Canada. Heathcote received INTA’s Volunteer Service Award for the Advancement of Trademark Law in 2009 for her work on indigenous rights. She and Fontaine will join today’s panel as well, which is the first of its kind at an Annual Meeting. “From the moment I suggested the idea, INTA was 100% on board,” said Johnston.
The other panelists in today’s session, which will be held at 10:30 am, will be Marcus Höpperger of WIPO and Gift Sibanda of the African Regional Industrial Property Organization (ARIPO).
CM01 Protection of Indigenous Rights: An Increased Need takes place in the Ballroom at 10:30 am today

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