516973 Michigan State Jnl of Intl Law 21.3

MODERN AGE PROTECTION: PROTECTING

INDIGENOUS KNOWLEDGE THROUGH

INTELLECTUAL PROPERTY LAW

Lindsey Schuler

BSTRACT ................................................................................................. 752

NTRODUCTION, TO A MODERN AGE ......................................................... 752

I. B

ACKGROUND: DEVELOPMENT OF DOMESTIC, SUI GENERIS, AND

INTERNATIONAL INTELLECTUAL PROPERTY LAW PROTECTION ........... 753

A. United States Intellectual Property Forms and Definitions ........ 753

B. Sui Generis.................................................................................. 755

C. International Intellectual Property Protections ........................... 757

1. World Trade Organization .................................................. 758

2. World Intellectual Property Organization ........................... 759

3. Universal Declarations of Human Rights and the Rights

of Peoples ............................................................................ 759

4. United Nations Declaration on the Rights of Indigenous

Peoples ................................................................................ 761

II. C

URRENT LAWS FOR PROTECTION OF INDIGENOUS CULTURE,

NATIONALLY ......................................................................................... 762

A. Australia ...................................................................................... 762

B. New Zealand ............................................................................... 764

C. South Africa ................................................................................ 766

D. Canada ........................................................................................ 768

E. The United States ......................................................................... 768

III. I

NTERNATIONAL LAW PROTECTIONS ON INDIGENOUS CULTURE ....... 770

A. WIPO Intergovernmental Committee on Intellectual Property

and Genetic Resources, Traditional Knowledge and Folklore

(IGC) ........................................................................................... 770

1. Traditional Cultural Expressions ....................................... 773

2. Traditional Knowledge ....................................................... 773

3. Genetic Resources .............................................................. 774

B. Creating Streamlined Intellectual Property Regulations ............. 774

C. Permissive or Mandatory: Should the Regulations Be Binding

or non-Binding? .......................................................................... 774

IV. M

AKING THE WIPO INTERGOVERNMENTAL COMMITTEE

REGULATIONS SUCCESSFUL ................................................................. 775

A. Mandatory Regulations ............................................................... 775

B. Incorporate Indigenous Concepts of Ownership ........................ 776

ONCLUSION.............................................................................................. 777

J.D., Michigan State University College of Law. B.A., University of Kansas.

752 Michigan State International Law Review [Vol. 21:3

BSTRACT

Protecting Indigenous knowledge and culture has long been a concern

both within and outside of the legal community. In the last decade an

increased awareness and attempt to protect the rights and dignity of

Indigenous innovation, knowledge, and culture has spread to the realm of

intellectual property law. Efforts have been made to protect folklore and art

through copyright law, insignia through trademark law, and biotechnology

and genetic resources through patent law. This paper addresses the

foundations of individual national laws aiming at protecting Indigenous

culture through intellectual property law as well as the current draft of

international law by the World Intellectual Property Organization (WIPO).

Part II explains the background concept of sui generis intellectual property

law and how Indigenous’ protections evolved to fall under the umbrella of

Intellectual Property law. Part III analyzes intellectual property laws of five

independent nations that have taken steps through intellectual property to

protect the knowledge and culture of their Indigenous populations and

questions whether these individual laws are adequate or whether

international protections would be more beneficial. Part IV will introduce

and outline the basic concepts and theories behind the WIPO draft

attempting to create an international declaration protecting Indigenous

Knowledge through intellectual property law. Part IV also includes a

discussion of the ongoing debate over the arrangement of the final draft of

the declaration. Finally, in Part V, this essay suggests recommendations for

the final WIPO declaration and reflects on the proper course of action to

most securely implement these new intellectual property laws in a way that

will most fully protect Indigenous knowledge and culture.

NTRODUCTION, TO A MODERN AGE

Stereotypically, Indigenous peoples are stuck in an ancient world with

very little recognition in modern times. Although Indigenous practices and

ideas may seem antiquated to a majority of the international population,

Indigenous peoples have recently been recognized among several nations as

having rights in intellectual property law.

The international community has

responded and the World Intellectual Property Organization (WIPO) is

currently in the process of drafting international regulations to protect

Indigenous traditional cultural expression, traditional knowledge, and

1. See infra pp. 15-27 (discussing the intellectual property protections of Australia,

New Zealand, South Africa, Canada, and the United States).

2013] Modern Age Protection 753

genetic resources.

Ancient peoples are moving forward in the modern age,

adapting current legal trends to protect their rights alongside their national

counterparts, and to protect from overzealous misappropriation of

Indigenous culture by those hoping to make a profit. Although national

recognition is a good beginning to Indigenous intellectual property

protection, only binding international regulations will grant Indigenous

people equal treatment for full protection of their intellectual property.

I. B

ACKGROUND: DEVELOPMENT OF DOMESTIC, SUI GENERIS, AND

INTERNATIONAL INTELLECTUAL PROPERTY LAW PROTECTION

A. United States Intellectual Property Forms and Definitions

Intellectual property law in the United States has been recognized for

several hundred years, but it is still a rather modern phenomenon, having

become a common colloquial phrase in the late twentieth century.

A burst

of pervasive intellectual property law began at the forefront of the computer

and bio-technology boom when scientists and innovators were apprehensive

about losing control of their ideas and, as a result, the profits those ideas

would bring.

Intellectual property law has transitioned over the years to

become what copyright, patent, and trademark law are in the United States

(and around the world) today. For the purpose of this paper, the focus will

remain on international intellectual property agreements and U.S.

intellectual property protections for Indigenous peoples. For the most part,

intellectual property protection of Indigenous traditional knowledge and

cultural heritage does not conform to the Western conception of intellectual

property protection.

For example, traditional knowledge encompasses

much more than the Western intellectual property regime, such as “beliefs,

knowledge, practices, innovations, arts, spirituality, and other forms of

cultural experience and expression” rather than Western tendencies toward

protecting scientific, technological, artistic, and literary innovation through

hardline tests of patent, copyright, and trademark law.

Furthermore,

diffusion of Indigenous traditional knowledge significantly varies from the

2. See Intergovernmental Committee, WORLD INTELLECTUAL PROPERTY

ORGANIZATION, http://www.wipo.int/tk/en/igc/index.html (last visited May 23, 2012)

[hereinafter Intergovernmental Committee].

3. Benjamin Coriat & Fabienne Orsi, Establishing a New Intellectual Property

Rights Regime in the United States: Origins, Content, and Problems, 31 R

ES. POL’Y 1491,

1493 (2002).

4. Id. at 1498-99.

5. See Panel Discussion, Peter Drahos, The Universality of Intellectual Property

Rights: Origins and Development, W

ORLD INTELLECTUAL PROPERTY ORGANIZATION 13

(1999), available at http://www.wipo.int/tk/en/hr/paneldiscussion/papers/pdf/drahos.pdf.

6. Tonina Simeone, Indigenous Traditional Knowledge and Intellectual Property

Rights, P

ARLIAMENT OF CANADA (Mar. 17, 2004), http://www.parl.gc.ca/Content/LOP/Resear

chPublications/prb0338-e.htm.

754 Michigan State International Law Review [Vol. 21:3

Western tendency towards hard copy documentation.

Traditional

knowledge is typically transmitted via “songs, proverbs, stories, folklore,

community laws, common or collective property and invention, practices

and rituals.”

Increasing misuse and exploitation of traditional knowledge

and cultural heritage pieces led the United States and various international

communities to create and expand intellectual property protections for

traditional knowledge.

In the United States, Indigenous intellectual property protections slowly

began to emerge through privatized programs. Private organizations

initiated a movement in the 1970s to protect the marketing of Indigenous

arts and crafts with the creation of the Indian Arts and Crafts Association

(IACA).

At that time, legislation to protect the market of Indigenous arts

and crafts was barely in existence, so the IACA came together demanding

the dignity of authentic Indigenous arts and crafts.

As a result of the

IACA’s advocacy, the Indian Arts and Crafts Act of 1990 was signed into

law at Public Law 101-644.

Under the Indian Arts and Crafts Act, civil

and criminal penalties may be assessed in the United States for unlawfully

misrepresenting arts and crafts as those of a federally or state recognized

American Indian tribe.

An artisan must truthfully mark all works with the

proper tribal affiliation to prevent misuse and protect traditional knowledge

needed for constructing these artistic works.

Another influential protection

mechanism from 1990 is the Native American Graves Protection and

Repatriation Act (NAGPRA), which can be found at 25 U.S.C. § 3001.

Unfortunately, this statute is limited to protection of human remains and

items of cultural heritage that are specifically held by museums or

institutions receiving government funding.

These reflect a number of

attempts by the United States to protect Indigenous Knowledge, but they

were instrumental to enhance protections for this newly recognized subject

matter.

7. Id.

8. Id.

9. See generally Wayne Shammel & Dave Stephenson, Protecting American Indian

Intellectual Property in the Twenty-First Century: The Case of the Cow Creek Tribe and

Indian Motorcycle, 24 C

ULTURAL SURVIVAL Q. (Winter 2000), available at http://www.cultur

alsurvival.org/ourpublications/csq/article/protecting-american-indian-intellectual-property-

twenty-first-century-th.

10. About IACA, I

NDIAN ARTS AND CRAFTS ASS’N, http://www.iaca.com/About%

20IACA.htm (last visited Mar. 27, 2012).

11. Id.

12. U.S. Dep’t of the Interior, The Indian Arts and Crafts Act of 1990, T

HE INDIAN

ARTS AND CRAFTS BOARD, http://www.doi.gov/iacb/act.html (last visited Mar. 27, 2012).

13. Id.

14. Id.

15. Nat’l Park Serv. Dep’t of the Interior, Laws, Regulations, and Guidance,

ATIONAL NAGPRA, http://www.nps.gov/nagpra/MANDATES/INDEX.HTM (last visited

Mar. 27, 2012); Shammel & Stephenson, supra note 9.

16. 25 U.S.C. § 3001 (2006).

2013] Modern Age Protection 755

B. Sui Generis

Intellectual property law is traditionally a combination of copyrights,

patents, and trademarks that delineates rights of property ownership and

allows for protection against unfair competition.

Definitions within

intellectual property statutes are a source of contention between individual

nations and international organizations.

Each statute can have its own

definitions for what is covered under the specific statute, not one of them

completely aligning with another.

Definitions in statutes are typically

variable by nation as a result of diverse traditional, philosophical, and legal

ideas.

Despite differences in exact definitions, establishing intellectual

property rights primarily creates a property right allowing the owner to

exclude others from use.

Sui generis is a Latin term simply meaning “of its

own kind.”

Similarly, in the legal community sui generis “is used in

intellectual property law to describe a regime designed to protect rights that

fall outside the traditional patent, trademark, copyright, and trade-secret

doctrines.”

Under sui generis law, when intellectual property laws do not

generally protect an object, a statute can be enacted specifically for the

purpose of using intellectual property law to protect untraditional subject

matter. Sui generis protection stems from a belief that a new form of

invention needs legal protection, but does not conform to the current

intellectual property protections available.

Theoretically, “a sui generis

system could be created individually and enacted differently from one

country to another.”

Scholars believe the purpose and need for sui generis

protection evolved as a way to stem creativity for new inventions; authors

were afraid to create when their work would not be rewarded with

protection.

In the United States and the European Union, sui generis

protection has regularly been employed over the years to develop new

protections for biotechnology, design patents, and databases.

It is strongly

17. Drahos, supra note 5.

18. Id.

19. Id.

20. Id.

21. Id.

22. Sui generis, R

EFERENCE.COM, http://dictionary.reference.com/browse/sui+generis

(last visited May 24, 2012).

23. B

LACK’S LAW DICTIONARY (9th ed. 2009) (Westlaw).

24. John Bagby, Who Owns the Data?,

ONLINE RESEARCH: PENN STATE (Jan. 1,

2003), http://www.rps.psu.edu/0301/data.html.John Bagby, Who Owns the Data?, O

NLINE

RESEARCH: PENN STATE (Jan. 6, 2003), http://www.rps.psu.edu/0301/data.html.

25. S

TEPHEN A. HANSEN & JUSTIN W. VANFLEET, TRADITIONAL KNOWLEDGE AND

INTELLECTUAL PROPERTY: A HANDBOOK ON ISSUES AND OPTIONS FOR TRADITIONAL

KNOWLEDGE HOLDERS IN PROTECTING THEIR INTELLECTUAL PROPERTY AND MAINTAINING

BIOLOGICAL DIVERSITY 27 (2003).

26. See Bagby, supra note 24 (discussing sui generis protection for a new form of

intellectual property, protection of databases).

27. Id.

756 Michigan State International Law Review [Vol. 21:3

argued that without this novel protection many of these inventions would

not have been developed.

Previously, there was no guarantee on return of

investment, but sui generis protection guards against pirating and

infringement that would severely harm profits.

For example, the sui

generis form may be adopted to support access and benefit sharing though

newly formed legal rights that acknowledge traditional knowledge.

Costa

Rica adopted this method of sui generis protection admitting “intellectual

rights, the knowledge, practices and innovations of indigenous peoples and

communities related to the use of components of biodiversity and associated

knowledge” whether the traditional knowledge is officially documented or

not.

Similarly, Canada adopted sui generis protections and created Aboriginal

Title, a new form of property ownership for real property.

In 1982, the

Constitution Act annulled common law precedent, which did not allow for

Aboriginal Title, by creating specific clauses that referenced and called for

application of this new form of property protection.

To move into the

modern realm, sui generis protection must be extended to intangible

property such as intellectual property. Dr. Harry Chartrand argues First

Nations peoples have the opportunity to create brand names (among other

intangible properties) in the global community.

Chartrand also argues that

restrictions on the right to interact in these markets impinge the First

Nations peoples’ competitiveness in global markets.

One avenue Canada

may pursue is adopting international conventions that protect cultural

heritage via intellectual property law, like the 2003 UNESCO Convention

on Intangible Cultural Heritage.

Canada has recently taken steps to

become involved in cultural protections through intellectual property law.

Canada is currently one member of the WIPO’s Intergovernmental

Committee on Intellectual Property and Genetic Resources (IGC) and takes

part in the discussions regarding drafting international Indigenous

intellectual property law protections.

Departing from common law, which

28. Id.

29. Id.

30. H

ANSEN & VANFLEET, supra note 25.

31. Id. (citing National Legislation of Costa Rica, Biodiversity Law, art. 82 (R.D.-

Ley. 1998, 7788)(Costa Rica)).

32. Harry Hillman Chartrand, Equity and Aboriginal Title: A Cultural Economics

Research Note on Post-Colonial Consciousness, C

OMPILER PRESS 7-8 (2008), available at

http://www.compilerpress.ca/CCR%20PRN/EQUITY.pdf.

33. Id.

34. Id. at 7.

35. Id.

36. Id. at 9.

37. Daniel Pruzin, Treaties: WIPO Cites Progress in Advancing Treaty On

Protection of Traditional Knowledge, P

ATENT, TRADEMARK, & COPYRIGHT LAW DAILY:

NEWS (May 17, 2010), available at http://proxy.law.msu.edu:2055/ptdm/display/batch_print

2013] Modern Age Protection 757

does not always allow for precedent, and incorporating intellectual property

through statutory measures is the answer for incorporating cultural heritage

into intellectual property and allowing Indigenous people to interact with

the modern global economy.

C. International Intellectual Property Protections

International intellectual property is distinctly more complex than the

intellectual property law of individual nations. According to Drahos,

development of international intellectual property protection has three

distinct periods: (1) the territorial period, which was characterized by an

absence of international protections; (2) the international period, which was

highlighted by several international countries joining the WIPO and

agreeing to form the international Paris

and Berne Conventions

protect industrial property and literary and artistic works respectively; and

(3) the global period, which is characterized by the Agreement on Trade-

Related Aspects of Intellectual Property Rights (TRIPS)

that links trade

and intellectual property.

Intellectual property protection morphed from

_display.adp?searchid=16652417 [hereinafter Treaties: WIPO Cites Progress in Advancing

Treaty On Protection of Traditional Knowledge].

38. See Chartrand, supra note 32, at 9.

39. The Paris Convention was concluded in 1883 with several later amendments.

Summary of the Paris Convention for the Protection of Industrial Property (1883), W

ORLD

INTELLECTUAL PROPERTY ORGANIZATION, available at http://www.wipo.int/treaties/en/ip/

paris/summary_paris.html (last visited May 24, 2012). It established an international form of

protection for industrial property and was open to all nations to join. Id. Industrial property

included “patents, marks, industrial designs, utility models . . . trade names . . . geographical

indications . . . and the repression of unfair competition.” Id.

40. The Berne Convention was developed and open to all nations in 1886 to create

property protection for authors of literary and artistic works. Summary of the Berne

Convention for the Protection of Literary and Artistic Works (1886), W

ORLD INTELLECTUAL

PROPERTY ORGANIZATION, available at http://www.wipo.int/treaties/en/ip/berne/summary_

berne.html (last visited May 24, 2012). There were three basic principles of the Berne

Convention: (1) all works will have the same protections in the originating state as well as in

all other member states of the Berne Convention, (2) protection cannot be conditional upon

any additional formalities – protection is automatic, and (3) protection under the Berne

Convention is generally independent of those protections established by the originating

nation, but may be subject to protection termination conditions. Id.

41. The TRIPS Agreement came into effect significantly later, in 1995, and was

developed by the World Trade Organization, and in effect, it created the most comprehensive

intellectual property protection to date. Overview: the TRIPS Agreement, W

ORLD TRADE

ORGANIZATION, http://www.wto.org/english/tratop_e/trips_e/intel2_e.htm (last visited Mar.

15, 2013). The rights covered under the TRIPS Agreement are copyright, trademark,

geographical indications, industrial designs, patents, layout-designs of integrated circuits,

and undisclosed information, i.e. trade secrets. Id. The three distinct aims of this agreement

are (1) standards for protection, including complying with the Paris and Berne Conventions;

(2) domestic enforcement of protection rights; and (3) dispute settlement between World

Trade Organization members. Id.

42. Drahos, supra note 5.

758 Michigan State International Law Review [Vol. 21:3

having protection only in the country of origin to global agreements on

reciprocal intellectual property protections.

All member countries that

subscribe to global agreements agree to abide by specific protection rules

and regulations in consideration for receiving the same protections for their

own intellectual property in all other member countries.

Two of the most

influential institutions that draft multi-nation declarations to protect

international intellectual property are the World Trade Organization and the

World Intellectual Property Organization. Additional international

documents that protect important Indigenous intellectual property rights are

the Universal Declaration of Human Rights, the Universal Declaration of

the Rights of Peoples, and the United Nations Declaration on the Rights of

Indigenous Peoples.

1. World Trade Organization

The World Trade Organization (WTO) can be credited with protecting

international intellectual property within the scope of international trade.

is most notable for its creation of the TRIPS agreement, which focuses on

national and territorial intellectual property treatment.

The TRIPS

Agreement is binding on all WTO members, making protections uniform

across participating nations, and resulting in highly functional intellectual

property protections.

Over the years, there has been a greater expectation

for nations to comply with the TRIPS Agreement to secure trade with other

nations.

This trend suggests compliance with international intellectual

property agreements will become the standard and eventually enforceable

across the globe, rather than merely permissive in some nations.

The

TRIPS agreement is on the forefront of global advancement in its regulation

of contract and property.

Objects of property can now be exchanged

globally through contract, creating a diverse market.

The TRIPS

Agreement has opened doors to nations to trade globally without fear of

theft of innovations, has streamlined intellectual property protections, and

has paved the way for Indigenous communities to break into the global

trade market.

43. See id.

44. See Understanding the WTO: The Agreements, Intellectual Property: Protection

and Enforcement, W

ORLD TRADE ORGANIZATION, available at www.wto.org/English/thewto

_e/tif_e/agrm7_e.htm (last visited Mar. 12, 2012).

45. See id.

46. Drahos, supra note 5.

47. Id.

48. See Drahos, supra note 5 (stating that before trading the U.S.A. and European

countries ask whether international traders comply with TRIPS during negotiations for

trade).

49. See id.

50. See id.

51. Id.

2013] Modern Age Protection 759

2. World Intellectual Property Organization

The WIPO is a United Nations agency that specializes in promoting

innovation and creativity between international countries and cultures

through a uniform intellectual property law system.

The WIPO was

established fully in 1967 and currently has 185 member states participating

in its programs.

It also works in conjunction with the WTO through a

cooperative agreement to manage global intellectual property laws within

trade.

Most notably, for discussion within this paper, the WIPO has

created the Intergovernmental Committee and is currently debating and

drafting an international legal instrument for the protection of intellectual

property, genetic resources, traditional knowledge, and folklore of

Indigenous peoples.

These documents will be exceptionally important to

Indigenous people on a global level, developing a forum for rigorous

protection of Indigenous property through modern legal application.

Although these new adoptions will not replace what has already been lost,

hopefully these regulations will change the course of history by

safeguarding Indigenous communities from further loss.

3. Universal Declarations of Human Rights and the Rights of

Peoples

The 1948 Universal Declaration of Human Rights (UDHR) is an

important international document that furthered the ownership rights of

Indigenous peoples. Although this document does not speak specifically to

intellectual property rights, these rights can be inferred from the language of

the UDHR.

For example, Article 27 seems to fundamentally protect those

creations generally protected by intellectual property law.

Article 27(1)

grants everyone the right to “freely . . . participate in the cultural life of the

community, to enjoy the arts and to share in scientific advancement and its

benefits.”

Furthermore, Article 27(2) says “[e]veryone has the right to the

protection of the moral and material interests resulting from any scientific,

52. What is WIPO?, WORLD INTELLECTUAL PROPERTY ORGANIZATION, http://www.w

ipo.int/about-wipo/en/, (last visited May 19, 2012).

53. Id.; see also WIPO: A Brief History, W

ORLD INTELLECTUAL PROPERTY

ORGANIZATION, http://www.wipo.int/about-wipo/en/history.html, (last visited Mar. 15, 2013)

[hereinafter WIPO: A Brief History].

54. WIPO: A Brief History, supra note 53.

55. Intergovernmental Committee, supra note 2.

56. Drahos, supra note 5.

57. Id.

58. Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc.

A/RES/217(III), art. 27 (Dec. 10, 1948), available at http://www.un.org/en/documents/ udhr/

index.shtml#a27.

760 Michigan State International Law Review [Vol. 21:3

literary or artistic production of which he is the author.”

Article 17,

covering the universal right to own property, reinforces article 27(2). Article

17(1) confirms there is a universal right to own property either solely or in

conjunction with others.

Article 17(2) enforces that no one, who owns

property, will be deprived of that property arbitrarily.

These rights extend

to ownership of intellectual property and support the right of Indigenous

People to own and to control their own property; this right may be regulated

by the state, but it must not be done arbitrarily.

The Universal Declaration of the Rights of Peoples (UDRP) similarly

protects every person’s right to participate in their community through arts

and property ownership. Indigenous Knowledge is generally preserved

through Indigenous customs and traditions like oral histories, craftsmanship,

and everyday life practices. The UDRP recognizes community traditions,

historic values, arts, etc. and preserves the right of all persons to maintain

and preserve traditions and their own specific ways of life.

Intellectual

property rights are specifically mentioned in the UDRP.

Article 5

stipulates “[a]ll peoples have the right to sovereignty over the natural wealth

and resources within their territories. All peoples also have the right to

intellectual property.”

Article 14 emphasizes the right of all people to

develop and preserve their traditional way of life, which for Indigenous

peoples, is paramount to the preservation of their culture.

Article 15

expounds on cultural preservation, asserting “[a]ll peoples have the right to

self-identification and have the right to know, learn, preserve and develop

their own culture, history, language, religion and customs.”

Acceptance of

these Declarations will promote conservation of Indigenous Knowledge

through modern intellectual property systems, particularly because

Indigenous Knowledge will be able to legally protect Indigenous culture

from slavish copying. Claiming and protecting cultural heritage is not

widely popular within Western legal systems, so it has been difficult for

Indigenous people to expound on the rights evident in these Declarations.

However, it seems Indigenous communities are increasingly grasping ahold

of intellectual property protections to reclaim traditional knowledge and

resources.

59. Id. at art. 27(1).

60. Id. at art. 17(1).

61. Id. at art. 17(2).

62. Drahos, supra note 5.

63. See Universal Declaration of the Rights of Peoples, U

NREPRESENTED NATIONS

AND

PEOPLES ORGANIZATION, at Pmbl (Feb. 17, 2004), http://www.unpo.org/article/105.

64. Id. at art. 5.

65. Id.

66. Id. at art. 14.

67. Id. at art. 15.

68. Drahos, supra note 5.

69. Id.

2013] Modern Age Protection 761

4. United Nations Declaration on the Rights of Indigenous

Peoples

The United Nations Declaration on the Rights of Indigenous Peoples

(UNDRIP) affirms that rights of Indigenous peoples are equal to those of

every other individual.

The UNDRIP expressly denotes traditional

protection and intellectual property rights.

Article 11 specifically lists

protections and restitution available to Indigenous peoples for improper

taking of Indigenous cultural items or making improper representations.

For example, Article 11 states “Indigenous peoples have the right to practise

[sic] and revitalize their cultural traditions and customs” including the rights

to “maintain, protect and develop the past, present and future manifestations

of their cultures, such as archaeological and historical sites, artefacts, [sic]

designs, ceremonies, technologies and visual and performing arts and

literature.”

Many of these protections can be achieved through copyright,

trademark, and patent laws.

The UNDRIP, in Article 24, also manifests

the right to protect “traditional medicines and to maintain . . . health

practices, including the conservation of . . . vital medicinal plants, animals

and minerals,”

which falls within the rapidly expanding area of

biotechnology intellectual property law. In Article 31, UNDRIP conserves

Indigenous peoples’ 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.

Article 31 purposely mentions the “right to maintain, control, protect and

develop . . . intellectual property over such cultural heritage, traditional

knowledge, and traditional cultural expressions” to give Indigenous peoples

a recognized forum to protect their rights.

Today, intellectual property law

is a widely recognized forum for Indigenous Knowledge protection, and as

70. United Nations Declaration on the Rights of Indigenous Peoples, G.A. Res.

61/295Annex, U.N. Doc. A/RES 61/295, at 1 (Sept. 13, 2007), available at http://www.un.or

g/esa/socdev/unpfii/documents/DRIPS_en.pdf.

71. See id. at arts. 11, 24, and 31 for specific examples of specific protections of

tradition through intellectual property law.

72. See id. at art. 11.

73. Id.

74. Id.

75. Id. at art. 24.

76. Id. at art. 31.

77. Id.

762 Michigan State International Law Review [Vol. 21:3

it continues to grow, it will become more apparent regardless of whether

this is the proper forum for preservation or merely a temporary fix.

II. N

ATIONAL LAWS FOR THE PROTECTION OF INDIGENOUS CULTURE

Several nations with numerous Indigenous communities have assisted in

the protection of Indigenous Knowledge by creating their own national

statutes for such protection. The following nations of Australia, New

Zealand, South Africa, Canada, and the United States have taken

progressive steps to incorporate intellectual property protections within their

statues, which allow Indigenous communities to participate in the modern

legal system.

Though these nations have attempted to incorporate

Indigenous protections into their national law, difficulties remain. Schools

of thought between Western legal systems and Indigenous communities are

vastly contradictory.

While Western schemes attempt to break areas of law

into smaller fractions, forming separate rules that may be unconnected to

other areas of law, Indigenous systems attempt to incorporate the whole,

finding a connection between all things.

The following section will dissect

national statutes and other protection methods adopted for these several

nations. The next section will also evaluate the functionality of the statutes

and will examine whether Indigenous peoples would benefit from

international cooperation.

A. Australia

Australia has attempted to incorporate intellectual property protections of

patent, trademark, and copyright law within Indigenous communities to

protect traditional knowledge and culture. For example, Australia allows

patent applications to be entered to preserve traditional knowledge of

plants.

David Claudie still knows traditional remedies from plants coming

from the homelands of the Kuuku l’yu Northern Kaanju of Australia, which

have been passed down for generations, and now he works closely with

researchers to develop this knowledge.

The Chuulangun Aboriginal

Corporation and the University of South Australia collected and tested these

plants, and then they filed a joint patent application on the final

78. See infra pp. 14-23.

79. Drahos, supra note 5, at 19.

80. Ada Pecos Melton, Indigenous Justice Systems and Tribal Society, A

MERICAN

INDIAN DEVELOPMENT ASSOCIATES (2004), http://www.aidainc.net/Publications/ij_systems.ht

m; Drahos, supra note 5, at 19.

81. Chuulangun Aboriginal Corporation and University of South Australia,

USTRALIAN GOVERNMENT/IP AUSTRALIA, http://www.ipaustralia.gov.au/about-us/public-

consultations/indigenous-knowledge-consultation/chuulangun-aboriginal-corporation/ (last

updated Oct. 12, 2012).

82. Id.

2013] Modern Age Protection 763

innovation.

Joint patent ownership rights allowed the Indigenous

community to share the benefits derived from the patent.

This is a positive

example of how Indigenous peoples can benefit from the commercialization

process and profits stemming from their traditional knowledge.

Trademark law is another technique that can be used for protecting

Indigenous culture. For illustration, trademark law can be applied to register

traditional names and symbols of an Indigenous community.

Malcolm

Mabo did just that when he created a clothing business using his family

name Mabo and symbols from his community.

When applying for his

trademark, another company, Mambo, disputed the mark for being too

similar.

The parties agreed that both could continue to use their individual

marks.

This example shows the individual avenues available to engage in

cultural protection while introducing Indigenous economic markets to

global consumers.

The National Indigenous Arts Advocacy Association has raised

awareness of the importance of protecting Indigenous culture through

intellectual property laws, but questions whether Australia’s laws are

adequate

culture, but Australia’s Copyright Act requires a work to be original, to be

reduced to material form, and to have an identifiable author.

These may be

legitimate qualifications to most of Australia, but Indigenous authors can

rarely meet these rigorous prerequisites because Australia’s law does not

correspond to Indigenous norms, like communal ownership.

Generally,

individualized forms of ownership, popular within Western legal systems,

are unsuitable for Indigenous culture and traditions because the community

owns the traditions and culture, rather than one individual owning the

culture or tradition.

Australia’s concept of copyright protection “only

protects the material medium rather than the idea or concept.”

Another

concern of Indigenous communities is the limited time period for copyright

83. Id.

84. Id.

85. See id.

86. Mabo and Mambo, A

USTRALIAN GOVERNMENT/IP AUSTRALIA, http://www.ipaust

ralia.gov.au/about-us/public-consultations/indigenous-knowledge-consultation/mabo-mambo

/ (last updated Oct. 12, 2012).

87. Id.

88. Id.

89. Id.

90. A

NITA HEISS, DHUULUU-YALA = TO TALK STRAIGHT: PUBLISHING INDIGENOUS

LITERATURE 83-87 (2003), available at Indigenous Culture and Intellectual Property Rights,

USTRALIAN LITERATURE RESOURCE, www.austlit.edu.au/specialistDatasets/BlackWords/Bla

ckWordsExtraNotesCh6.xml.

91. Id.; See Copyright Act 1968 (Cth) (Austl.).

92. H

EISS, supra note 90.

93. Id.

94. Id.

764 Michigan State International Law Review [Vol. 21:3

protection. According to Part III of the Copyright Act, copyright protection

for an original work only subsists for seventy years after the death of the

original author, which only grants protection for a limited time.

Overall,

Australia’s copyright protection falls short of being effective for Indigenous

communities.

Although countless communities have provided information

for research and literature, they are not entitled to any of the proceeds

resulting from sales because they cannot meet the requirements of

ownership under current copyright law.

Scholars effectively use and profit

from Indigenous culture and knowledge instead of Indigenous communities

supplying the information.

For example, unauthorized photographs were taken of Wik Apalech

dancers from Cape York, Australia and later distributed and sold as

photographs, postcards, and CDs.

This was offensive to the Wik Apalech

because only specific people within the Indigenous community have the

authority to see this dance and distributing these images violated that

tradition.

100

While the Copyright Act would not have assisted because the

dancers could not claim ownership of the photos, the Wik Apalech could

have claimed intellectual property protection under performers’ rights.

101

Under current intellectual property laws, Indigenous culture is vulnerable to

unlawful taking. Although there are laws attempting to protect it,

conforming Indigenous ideas to Western intellectual property law remains

difficult.

B. New Zealand

New Zealand lso tried to incorporate protections for Maori Indigenous

Knowledge into its intellectual property statutes. In 1999, a Trade Mark Act

Focus Group recommended to the Cabinet that there should be an advisory

committee formed for consultation on issues relating to Maori marks and

symbols that ought to be protected by trademark law.

102

In September of

95. Part III: Copyright in Original Literary, Dramatic, Musical, and Artistic Works,

96. See H

EISS, supra note 90.

97. Id.

98. Id.

99. Wik Apalech Dancers, A

USTRALIAN GOVERNMENT/IP AUSTRALIA,

http://www.ipaustralia.gov.au/about-us/public-consultations/indigenous-knowledge-consultat

ion/wik-apalech-dancers/ (last updated Nov. 12, 2012).

100. Id.

101. Id.

102. 16 Maori Advisory Committee & Maori Trade Marks: History, N

EW ZEALAND

INTELLECTUAL PROPERTY OFFICE, http://www.iponz.govt.nz/cms/trade-marks/practice-guidel

ines-index/practice-guidelines/16-maori-advisory-committee-maori-trade-marks/2-history

(last updated Aug. 3, 2012) [hereinafter 16 Maori Advisory Committee & Maori Trade

Marks: History].

2013] Modern Age Protection 765

1999, this recommendation was accepted.

103

Now Part 5 of the Trade Mark

Act of 2002 controls appointment of a Maori Trade Mark Advisory

Committee to help identify and preserve Maori marks as well as determine

whether marks would constitute an offense against the Maori.

104

Although

this advisory committee is an important step to the protection of Indigenous

marks, the committee’s recommendations are not binding on the

Commissioner, but where a mark is determined to be Maori in nature, there

will be an indication on the trademark file.

105

A separate Maori Advisory

Committee has also been assigned to the patent branch of the New Zealand

Intellectual Property Office. The advisory committee will “advise the

Commissioner of Patents on patent applications involving Maori traditional

knowledge, and indigenous plants and animals.”

106

Like the

recommendations of the Trade Mark Advisory Committee, suggestions

from the Patent Advisory Committee are just that, suggestions, and are not

mandatory.

107

As of 2001, New Zealand had not included any copyright protections for

its Indigenous people.

108

As the Maori began to recognize misappropriations

in art and popular culture, they began to express a strong desire to extend

Indigenous Knowledge protections to New Zealand copyright laws in a

similar fashion as patent and trademark law.

109

The challenge comes from

the difference between Maori property ownership beliefs and Western

property ownership beliefs.

110

The Maori believe property ownership,

including copyright ownership, extends to perpetuity, whereas the New

Zealand law currently has copyright ownership ending after the passing of

fifty years after the death of the author.

111

Again we see a conflict between

Indigenous ideas of property rights and those of the Western world.

Currently, intellectual property protections would only be influential and

103. Id.

104. 16 Maori Advisory Committee & Maori Trade Marks: Introduction, N

ZEALAND INTELLECTUAL PROPERTY OFFICE, http://www.iponz.govt.nz/cms/trade-marks/practi

ce-guidelines-index/practice-guidelines/16-maori-advisory-committee-maori-trade-marks/int

roduction (last updated June 23, 2008).

105. 16 Maori Advisory Committee & Maori Trade Marks: History, supra note 99;

Maori Advisory Committee & Maori Trade Marks: Identification of Maori Signs, N

ZEALAND INTELLECTUAL PROPERTY OFFICE, http://www.iponz.govt.nz/cms/trade-marks/practi

ce-guidelines-index/practice-guidelines/16-maori-advisory-committee-maori-trade-marks/3-i

dentification-of-maori-signs (last updated Nov. 16, 2009).

106. Patents Bill – First Reading in Parliament, N

EW ZEALAND INTELLECTUAL

PROPERTY OFFICE, http://www.iponz.govt.nz/cms/iponz/latest-news/expired-items/patents-

bill-first-reading-in-parliment?searchterm=maori (last visited Mar. 15, 2013).

107. Patents Bill 235 2010-2 cl. 277 (N.Z.).

108. Copyright Laws to Protect Maori Heritage, BBC

NEWS (Aug. 10, 2001),

http://news.bbc.co.uk/2/hi/business/1482203.stm.

109. Id.

110. See id.

111. Id.

766 Michigan State International Law Review [Vol. 21:3

end appropriation for a period of time; time limits and individual

designation of property ownership does not conform to Indigenous tradition.

C. South Africa

The South African Trade Minister acknowledged that traditional

knowledge extends to “knowledge generated and owned by communities

and includes knowledge about medical practices, production of food

products, cultural expressions, songs, and designs.”

112

In 2008, the Research

and Communication Division of the Directorate-General International

Cooperation of the Ministry of Foreign Affairs in the Netherlands carried

out a study to “stimulate strategic and effective use of knowledge for

development.”

113

Researchers noted there is mistrust between Indigenous

Knowledge holders and those trying to acquire that knowledge.

114

Over the

years, outside entities have abused access to South African Indigenous

Knowledge.

115

The South African government, realizing its startling loss of

resources, took a more active role in creating a binding legal instrument to

protect itself from further economic loss.

116

South Africa has made strides to

protect Indigenous Knowledge from misappropriation by pushing through

draft bills on Intellectual Property Rights, which aim to protect findings

from public research institutions.

117

One draft bill aims to limit licensing

agreements for Indigenous Knowledge and attempts to “keep the benefits . .

. in public research, reduce reliance on overseas technologies, build capacity

within South Africa, and utilise [sic] South Africa’s available resources.”

118

Economic development related to Indigenous Knowledge is currently

focused on Indigenous medicinal plants to fight healthcare issues in South

Africa.

119

Since those being affected by disease in South Africa are

generally poor, it is difficult to get funding for these research projects.

120

112. Paul Stinson, Critics Fault South Africa IP Bill For Failing to Protect

Traditional Knowledge, P

ATENT, TRADEMARK & COPYRIGHT LAW DAILY (Nov. 18, 2011),

http://news.bna.com/ptdm/PTDMWB/doc_display.adp?fedfid=23620062&vname=ptdbulalli

ssues&fcn=2&wsn=501042000&fn=23620062&split=0.

113. L

IDEWYDE H. BERCKMOES, PROTECTING INDIGENOUS KNOWLEDGE IN SOUTH

AFRICA: DEBATES ON INTELLECTUAL PROPERTY RIGHTS AND DEVELOPMENT, RADBOUD

UNIVERSITY NIJMEGEN 5 (2008), available at http://www.hivos.net/Hivos-Knowledge-

Programme/News/Protecting-Indigenous-Knowledge-in-South-Africa.

114. Id. at 8 (stating Indigenous knowledge holders distrust scientists, policy makers,

NGOs, and industry).

115. See id. at 29.

116. Id. at 29; see also Daniel Pruzin, WIPO Cites Progress on Advancing Draft Texts

for Protection of Folklore, P

ATENT, TRADEMARK & COPYRIGHT LAW DAILY (May 23, 2011),

http://news.bna.com/ptdm/PTDMWB/doc_display.adp?fedfid=20933668&vname=ptdbulalli

ssues&fcn=7&wsn=502940000&fn=20933668&split=0.

117. B

ERCKMOES, supra note 110, at 29

118. Id.

119. Id. at 30.

120. Id.

2013] Modern Age Protection 767

South Africa has looked to patent law as a way to gain capital through

licensing the findings to other scientists or research institutions.

121

The real

debate over Indigenous Knowledge is who should be paid for its

procurement? South African government and NGOs have been disputing

this issue.

122

A compromise is needed between the researchers and

government who have developed and funded these large-scale patent

projects and the local communities that are the original holders of the

Indigenous Knowledge.

123

Traditional healers recognize the value of their Indigenous Knowledge,

calling the country’s genetic and biological resources “green gold.”

124

They

insist they deserve the proper legal representation to protect their knowledge

and are entitled to suitable compensation before appropriation.

125

Traditional healers question whether Intellectual Property Rights legislation

is the proper remedy for protection of these valuable resources.

126

They fear

limiting aspects of legislation will create reduced access to traditional

remedies, produce legal monopolies on certain biological resources, and

limit, rather than stimulate, the sharing of knowledge because of economic

prospects.

127

These negative results do not correspond with traditional

access to Indigenous Knowledge. Although Intellectual Property Law

Amendment Bills were drafted to protect Indigenous Knowledge, critics

suggest these measures are flawed.

128

Similar to the situation in Australia,

the originality and authorship requirements tend to be a difficult hurdle

because traditional knowledge is generally passed down over generations,

and not able to be identified with a single author or origination date.

129

When Indigenous Knowledge cannot meet the demanding criteria for

protection, it will not be secure and will be open for appropriation.

130

Government officials urge that time is of the essence for protecting

Indigenous Knowledge, and a binding solution needs to be developed

quickly.

131

Although South Africans are hopeful for global WIPO

intellectual property protections for Indigenous Knowledge, they are wary

whether it is possible to wait for their completion before the South African

government acts.

132

121. Id. at 31.

122. Id. at 31-32.

123. B

ERCKMOES, supra note 113, at 32.

124. Id. at 35.

125. Id. at 34.

126. Id. at 36.

127. Id.

128. Stinson, supra note 112.

129. Id.

130. Id.

131. Id.

132. Id.

768 Michigan State International Law Review [Vol. 21:3

D. Canada

Under Canadian law, traditional knowledge includes “beliefs,

knowledge, practices, innovations, arts, spirituality, and other forms of

cultural experience and expression that belong to indigenous communities

worldwide.”

133

Canada recognizes it is important to safeguard Indigenous

Knowledge of Aboriginal Canadians, protect fundamental justice, and

promote one’s cultural heritage.

134

Canada also recognizes the fairness in

giving these communities a fair monetary reward for their innovations, just

as other Canadian citizens would receive.

135

Unfortunately, Canada has not

enacted any legislation to distinctly protect Indigenous Knowledge, but has

left Aboriginal communities to engage in their own forms of protection.

136

Aboriginal Canadians have run into similar problems as the previously

mentioned Indigenous communities.

137

Current intellectual property laws

are incompatible with Aboriginal property.

138

Aboriginal knowledge and

traditional creations do not fit the requirements for protection under

Canadian intellectual property laws.

139

Canada’s laws encompass many

traditionally Western ideas, including economic gain, which conflict with

Aboriginal concepts of community ownership, group identity, and

survival.

140

Recognizing the importance of protecting Indigenous traditional

knowledge, Canada has taken part in the WIPO Intergovernmental

Committee on Intellectual Property and Genetic Resources.

141

Where

international intellectual property law has generally been oriented towards

protecting multinational, rather than Indigenous interests,

142

the WIPO

Committee creates a real opportunity to extend the same protections to all

communities globally rather than orient protections to one ideological

group.

E. The United States

The United States Patent and Trademark Office (USPTO) regulates the

United States’ intellectual property rights. The job of the USPTO is to

create rules for the protection and enforcement of intellectual property

133. Simeone, supra note 6.

134. Id.

135. Id.

136. Id.

137. Id.

138. Id.

139. Simeone, supra note 6.

140. Id.

141. Id.

142. Id.

2013] Modern Age Protection 769

rights of patents, trademarks, and copyrights within the United States.

143

The United States has incorporated protections for Indigenous Knowledge

into its intellectual property regime. First, the USPTO created a database for

the voluntary registration of Indigenous insignia and symbols of state and

federally recognized tribes.

144

However, although there are guidelines for

entering insignia, there is no investigation as to whether this is the official

insignia of the registering tribe. Since the database is voluntary and is

merely a collection of insignia, no intellectual property protections are

gained through the database, like trademark rights.

145

To gain trademark

registration, Indigenous communities have to meet the specific trademark

criteria of the USPTO, which generally cannot be met.

146

The database is

used as a reference device to aid in examining trademark applications to

refuse admittance of marks that “falsely suggest a connection with

particular institutions” per 15 U.S.C. § 1052(a)(2)(a).

147

As previously mentioned, the United States also codified NAGPRA at 25

U.S.C. § 3001, protecting Indigenous artifacts with particular cultural

value.

148

Not too long ago there was no recourse for misappropriation of

Indigenous intellectual and cultural property, but now there are criminal

penalties for violation of these protections.

149

To date, Indigenous peoples

have appealed to the courts, integrating Indigenous intellectual property

with twenty-first century legal practices by filing lawsuits to protect their

rights.

150

For example, the Cow Creek Band of the Umpqua Tribe of Indians

in Oregon joined the Indian trademark case involving the Indian Motorcycle

Company consortium to “promote pride, dignity, and knowledge about

Native American heritage.”

151

The federal suit was originally filed because

Indian Motorcycles, a motorcycle manufacturing company, violated the

Indian Arts and Crafts Act of 1990 by using “Indian” in its name.

152

The

Cow Creeks joined the suit with federal encouragement, and the case was

one of the first to challenge the limited corporate responsibility when using

Indigenous names and symbols.

153

143. Office of the Administrator for Policy and External Affairs, THE UNITED STATES

PATENT AND TRADEMARK OFFICE, http://www.uspto.gov/ip/global/index.jsp (last updated

Feb. 20, 2013).

144. Native American Tribal Insignia Database, U

NITED STATES PATENT AND

TRADEMARK OFFICE (June 27, 2011), http://www.uspto.gov/trademarks/law/tribal/index.jsp.

145. Id.

146. Id.

147. Id.

148. Shammel & Stephenson, supra note 9.

149. Id.

150. See id.

151. Id.

152. Id.

153. Id.

770 Michigan State International Law Review [Vol. 21:3

Recently, there has been collaboration between the USPTO and the

Native American Intellectual Property Enterprise Council (NAIPEC).

154

The

groups joined together and signed the Memorandum of Understanding,

which aims to increase Native American inventors’ patent and trademark

filing.

155

The goals are to participate in “research and identify the IP

education needs of specific Native American communities, and to provide

that education in whatever way works best.”

156

A new office in the USPTO

will facilitate their interactions and allow direct access for Native American

intellectual property advocates.

157

This new collaboration is a prime

example of how nations can work in unison with their Indigenous

communities to create systems that function in harmony to meet the needs

of all.

158

III. I

NTERNATIONAL LAW PROTECTIONS ON INDIGENOUS CULTURE

A. WIPO Intergovernmental Committee on Intellectual Property and

Genetic Resources, Traditional Knowledge and Folklore (IGC)

Established by the WIPO in October 2000, the IGC was created to form

an international legal instrument to protect “traditional knowledge (TK),

traditional cultural expressions (TCEs)/folklore and genetic resources.”

159

Since October 2000, a series of commenting processes and meetings have

allowed committee members to advance a working document that protects

Indigenous peoples’ intellectual property rights.

160

In May 2010,

international representatives convened and began the foundational

arrangements for the IGC, most importantly creating the Intersessional

Working Group.

161

The Intersessional Working Group has held talks on

traditional knowledge to increase productivity on overly technical issues

between the biannual meetings of the IGC.

162

Draft provisions, developed

from the aforementioned commenting processes and Intersessional Working

154. Panel discussion, Expanding Outreach to the Native American Community,

UNITED STATES PATENT AND TRADEMARK OFFICE (Jan. 31, 2012), http://www.uspto.gov/new

s/speeches/2012/kappos_NAIPEC.jsp [hereinafter Expanding Outreach to the Native

American Community].

155. Id.

156. Id.

157. Id.

158. Id.

159. Intergovernmental Committee, supra note 2.

160. See id. For the outline of the first three Intersessional Working Group meetings

and documents. See Draft Provisions, W

ORLD INTELLECTUAL PROPERTY ORGANIZATION,

http://www.wipo.int/tk/en/consultations/draft_provisions/draft_provisions.html (last visited

Mar. 31, 2012) [hereinafter Draft Provisions] for a list of the first three commenting

processes.

161. Treaties: WIPO Cites Progress in Advancing Treaty On Protection of

Traditional Knowledge, supra note 37.

162. Id.

2013] Modern Age Protection 771

Group meetings, represented various discussions between national, regional,

and community experiences of various Indigenous peoples, cultural

communities, and other interested parties generally stating international

objectives and principles that have been successfully implemented on

regional and national levels.

163

The WIPO allowed a commenting process

and subsequently redrafted the provisions based on comments from

interested parties.

164

During the first commenting session between

November 2004 and February 2005, more than 200 pages of comments

were submitted.

165

All of the comments made on this and subsequent draft

provisions were taken into account by the IGC and implemented in

successive drafts.

166

On March 4, 2010, the Intersessional Working Group spent two weeks

creating and approving the draft texts for traditional knowledge and genetic

resources that will serve as the basis for future negotiations and hopefully

for the final draft of the legal document.

167

The draft on traditional

knowledge and genetic resources was reviewed for approval in May 2011,

but instead of being fully approved, discussions on the drafts continued. The

Twenty-first Intersessional Working Group took take place April 16-20,

2012 and emphasized funding, draft articles on the Protection of TK

including gap analysis provisions, representation of Indigenous

communities, and updates for the Glossary of Key Terms.

168

During the Nineteenth Intergovernmental Committee Session in July

2011, several like-minded countries discussed common goals and objectives

for the protection of genetic resources.

169

The conclusive objectives stated

during this Session were to (1) assure individuals or entities using genetic

resources or their derivatives comply with national intellectual property

laws and agreements be mutually fair and agreed to; (2) prevent intellectual

property rights from being granted in bad faith or where they do not satisfy

163. Draft Provisions, supra note 160; see also Pruzin, supra note 35 (stating working

documents on objectives and principles for intellectual property and genetic resources have

been submitted by Australia, Canada, Norway, the USA, and New Zealand).

164. Draft Provisions, supra note 160.

165. Id.

166. Id.

167. Daniel Pruzin, WIPO Makes Progress on Draft Legal Texts For Traditional

Knowledge, Genetic Resources, P

ATENT, TRADEMARK & COPYRIGHT LAW DAILY (Mar. 7,

2011) [hereinafter WIPO Makes Progress on Draft Legal Texts].

168. WIPO, Brief Summary of Documents, Intergovernmental Comm. on Intellectual

Prop. & Genetic Res., Traditional Knowledge and Folklore, 21st Sess., Apr. 16-Apr. 20,

2012, WIPO/GRTKF/IC/21/INF/2, (Mar. 27, 2012), available at http://www.wipo.int/edocs/

mdocs/tk/en/wipo_grtkf_ic_21/wipo_grtkf_ic_21_inf_2.pdf.

169. WIPO, Like-Minded Countries Contributions to the Objectives and Principles on

the Protection of Genetic Resources and Preliminary Draft Articles on the Protection of

Genetic Resources, Intergovernmental Comm. on Intellectual Prop. & Genetic Res.,

Traditional Knowledge and Folklore, 19th Sess., July 18-July 22, 2011, WIPO/GRTKF/IC/1

9/11 (July 18, 2011), available at http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_19/

wipo_grtkf_ic_19_11.pdf [hereinafter Like-Minded Countries].

772 Michigan State International Law Review [Vol. 21:3

the eligibility conditions; (3) ensure intellectual property enforcers have

adequate genetic resources information; (4) establish a coherent and

effective system to support relationships between genetic resources’

intellectual property rights and existing intellectual property protections;

and (5) prevent negative effects associated with the intellectual property

system from affecting Indigenous communities.

170

Similar committees

gathered and discussed TK and TCEs.

171

The Intergovernmental

Committees accepted the responsibility of preparing preliminary draft

articles for each of the forms of Indigenous intellectual property.

172

The

Committees addressed objectives such as providing equal protection,

extending fair negotiations, and protecting the local communities.

173

By the end of 2012, the IGC realized a single text for GRs and advanced

copies of the texts for TK and TCEs.

174

However, there are still difficult

divergences in the text that need to be resolved before a final draft can be

approved.

175

Diligent negotiations occurred in 2012, and climactic

movement is expected towards a finalized legal document before the

General Assembly meeting at the end of 2013.

176

There are currently IGC

meeting dates scheduled to discuss all three types of cultural protection.

177

February 2013 will be devoted to discussing GRs, the April IGC meeting

will discuss TK with a focus on subject matter and scope of protection, and

the July IGC meeting will dedicate several days to discuss TCEs, also with

a focus on subject matter and scope of protection.

178

At the end of July, the

committee is marked to review and amass the full text of the draft legal

170. Id.

171. See WIPO, Draft Report, Intergovernmental Comm. on Intellectual Prop. &

Genetic Res., Traditional Knowledge and Folklore, 22d Sess., July 9-July 12, 2012,

WIPO/GRTKF/IC/22/6 (Nov. 5, 2012), available at http://www.wipo.int/edocs/mdocs/tk/en/

wipo_grtkf_ic_23/wipo_grtkf_ic_23_ref_grtkf_22_6_prov_2.pdf (discussing the section-by-

section debate of the regulations for TK and TCEs).

172. See WIPO, The Protection of Traditional Knowledge: Draft Articles,

Intergovernmental Comm. on Intellectual Prop. & Genetic Res., Traditional Knowledge and

Folklore, 21st Sess., Apr. 16-Apr. 20, 2012, WIPO/GRTKF/IC/21/4, (Jan. 18, 2012),

available at http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_21/wipo_grtkf_ic_21_

4.pdf; See WIPO, The Protection of Cultural Expressions: Draft Articles, Intergovernmental

Comm. on Intellectual Prop. & Genetic Res., Traditional Knowledge and Folklore, 22d Sess.

WIPO/GRTKF/IC/22/REF/FACILITATORS TEXT (July 13, 2012), available at

http://www.wipo.int/edocs/mdocs/tk/en/wipo_grtkf_ic_22/wipo_grtkf_ic_22_ref_facilitators

_text.pdf.

173. See Like-Minded Countries, supra note 169.

174. Press Release, WIPO, WIPO Assemblies Agree Roadmaps for New Int’l

Instruments, PR/2012/723 (Oct. 9, 2012), available at www.wipo.int/pressroom/en/articles/0

12/article_0022.html.

175. Id.

176. Id.

177. Important Dates 2013,

WORLD INTELLECTUAL PROPERTY ORGANIZATION, http://w

ww.wipo.int/tk/en/documents/pdf/igc_work_program_2013_-_ga_decision.pdf (last visited

Jan. 19, 2013).

178. Id.

2013] Modern Age Protection 773

instrument for protection of GRs, TK, and TCEs and make a

recommendation to the General Assembly on the content of the final legal

document.

179

The finalized legal document will not likely be effective

immediately, but instead, have a trickling effect as more nations appreciate

its significance and apply its multitude of protections.

1. Traditional Cultural Expressions

Traditional Cultural Expressions (TCEs) consist of Indigenous folklore,

a form of Indigenous Knowledge that is not typically protected under

Western concepts of intellectual property law.

180

The United States, in

particular, is skeptical about adding TCEs into a globally protected

category, arguing for spending more time negotiating draft text for basic

intellectual property concepts.

181

The draft text on folklore is surprisingly

more advanced than either that of TK or GR because it is the least

controverted.

182

2. Traditional Knowledge

Traditional Knowledge (TK) is the knowledge that is developed over

time and used to sustain a community.

183

TK can consist of experience,

culture, environment, local resources, animal knowledge, or plant

resources.

184

Communities expand their TK over many years and develop

and research new innovative practices to encourage growth in farming and

medicine.

185

Traditional knowledge is generally considered part of the

collective ownership of the community and is transmitted across generations

through traditional stories to select people in the community.

186

Traditional

Knowledge encompasses the broadest collection of protections, so this

section is likely to be the longest. Options for TK protections vary due to

the differences between Western and Indigenous ideologies.

187

Possibilities

include exclusive control over TK with a grant to beneficiaries, authorizing

or denying access to TK, forms of use upon consent, benefit sharing, and

use without requiring mandatory disclosure.

179. Id.

180. Pruzin, supra note 37.

181. Id.

182. Id.

183. H

ANSEN & VANFLEET, supra note 25, at 3.

184. Id.

185. Id.

186. Id.

187. See Pruzin, supra note 163.

774 Michigan State International Law Review [Vol. 21:3

3. Genetic Resources

Genetic Resources (GR) encompasses medicines, hard sciences, and

plant genetics.

188

Large concerns for participating nations involved with

global access to genetic resources are compliance to conditions to access,

use and benefit sharing, and monitoring activity across several

jurisdictions.

189

Countries concerned with global monitoring suggest that

national patent laws and regulations take precedence when determining who

has access to particular materials.

190

Currently, the text on GRs is the most

highly debated and in the most questionable form.

191

WIPO members

greatly contest this issue and, even with a basic draft text completed, there is

not an end to the negotiations in sight.

192

B. Creating Streamlined Intellectual Property Regulations

The original goal of the WIPO’s Intergovernmental Committee was to

create a draft text of an international legal instrument to be voted on by the

General Assembly.

193

The draft text is not finished, but it will contain

provisions such as key definitions, authorities, who may obtain access,

consents, liabilities, sanctions, and remedies (etc.). No matter how thorough

this WIPO draft text is, it will still need to compete with other international

intellectual property protections.

194

Other protections have been drafted or

are in the course of being drafted from other organizations, which makes it

difficult for all parties to come to an agreement, especially an agreement

that is supposed to override all others.

195

C. Permissive or Mandatory: Should the Regulations be Binding or

non-Binding?

The dispute still centers on whether the WIPO’s legal instrument should

be binding or non-binding.

196

For various reasons, different countries are

lining up on opposite sides of the line to raise arguments for or against a

binding agreement.

197

For example, Africa generally wants to create a

binding instrument, whereas the United States recommends a non-binding

agreement.

198

A binding instrument would likely be in the form of a treaty

188. Pruzin, supra note 37.

189. Id.

190. Id.

191. Pruzin, supra note 163.

192. Id.

193. Pruzin, supra note 37.

194. Pruzin, supra note 163.

195. Id.

196. See Pruzin, supra note 37.

197. See Pruzin, supra note 37.

198. Pruzin, supra note 37.

2013] Modern Age Protection 775

and any non-binding agreement would consist of recommendations, model

practices, or global guidelines.

199

It is likely this issue will not be resolved

until the final stages of negotiation, so everyone may be in suspense for a

few more years until all other issues are resolved.

200

IV. E

NSURING THE SUCCESS OF WIPO INTERGOVERNMENTAL COMMITTEE

REGULATIONS

A. Mandatory Regulations

One of the most controversial debates within the Intergovernmental

Committee is whether the WIPO regulations should be permissive or

mandatory for participating nations. The WIPO is afraid there will be less

acceptance if the regulations are mandatory. If, however, the regulations are

permissive, then there is no incentive for nations to abide by them. If the

WIPO wants its Indigenous Knowledge intellectual property regulations to

be successful in protecting Indigenous Knowledge, the regulations need to

be mandatory. Indigenous people have fought for and awaited international

protections, and permissive incorporation of WIPO regulations will not send

the same strong message as mandatory regulations. Permissive regulations

would allow nations to choose whether or not to protect the intellectual

property of a portion of its population, which should not be available. When

all other intellectual property rights are required under the WIPO and WTO,

a nation should not be allowed the opportunity to refuse intellectual

property protections for Indigenous people. It is shocking to think there

could be an exception when it comes to protecting Indigenous rights. The

strongest regulations should be applied to the most vulnerable populations,

and it is not debatable that Indigenous populations are one of the most

vulnerable when it comes to intellectual property misappropriation. The

current list of regulations is rather lengthy. An alternative to publishing the

entire transcript of voluntary regulations would be to begin with publishing

fewer mandatory regulations that all nations could agree on, and then

continue to add new regulations as they are agreed upon. Implementation of

new regulations takes time, so it may be more beneficial to begin with less

and add more as the regulations become more globally accepted.

An additional problem with voluntary implementation of Indigenous

intellectual property protections is monetary cost. To implement and

regulate compliance with the new regulations, an agency or governing body

will need to be created. With many countries struggling financially, the

additional cost of complying with the Indigenous intellectual property

regulations will be daunting and discouraging. Financially struggling

nations will not readily accept the additional costs associated with

199. Pruzin, supra note 163.

200. Pruzin, supra note 163.

776 Michigan State International Law Review [Vol. 21:3

implementing voluntary regulations. Therefore, it is a better option to begin

with fewer, but mandatory regulations and allow nations a reasonable time

to comply with such regulations.

B. Incorporate Indigenous Concepts of Ownership

As mentioned throughout this discussion, Indigenous concepts are not

equivalent to those of Western society. Differences in societal values make

it difficult for the WIPO to draft a cohesive declaration that encompasses

and includes all participants. The first issue the WIPO needs to address is

communal versus individual ownership. The Indigenous concept of

ownership focuses on communal ownership, rather than one individual

having the rights to a piece of property. This is the stumbling block in

several nations’ intellectual property laws, such as Australia, because single

ownership/authorship cannot be determined. Many times Indigenous

intellectual property goes unprotected because it does not meet the rigorous

standards set out in traditional intellectual property law. The WIPO needs to

address this issue by creating less rigorous ownership requirements for

Indigenous intellectual property. The regulations need to be formatted in a

non-traditional manner that will allow not just one, but multiple forms of

authorship. The WIPO needs to expand on the traditional format of

intellectual property law and allow ownership rights of a community, rather

than a single individual for the WIPO regulations to be successful in

protecting Indigenous intellectual property,

Secondly, the WIPO needs to expand its understanding of the time

restrictions currently placed on intellectual property protection. Generally,

Indigenous communities allow ownership rights to extend to perpetuity

Many nations have patent, copyright, and trademark laws that only protect

registered intellectual property for a few decades. Indigenous Knowledge

and culture has been passed on from generation to generation, so often

protecting Indigenous intellectual property for the life of the original

author/creator is not sufficient. Many Indigenous nations are wary of

sharing their knowledge because, first, Indigenous communities are

typically cautious of Western ideology, and, second, limited protections for

their knowledge lead to appropriation of Indigenous intellectual property.

Limited intellectual property protection means all protections will be gone

at the end of the legal limitation and the intellectual property will extend to

the public domain to be used by all. Indigenous Knowledge has traditionally

not been used for profit; rather, it was a benefit of being part of the

community. If the WIPO regulations do not address the fears of Indigenous

communities regarding the length of the protections, Indigenous

communities will need to find alternative safeguards for their knowledge.

As a result of this tension, the WIPO regulations should either lengthen the

time restrictions for protection of Indigenous intellectual property or create

2013] Modern Age Protection 777

a separate category of intellectual property for Indigenous knowledge that

allows rights to extend into perpetuity.

ONCLUSION

Intellectual property law has greatly expanded over the last century. It

now comprises some of the most vulnerable populations and allows

Indigenous people to combat misappropriation with twenty-first century

legal protections. One way to fully incorporate Indigenous Knowledge, a

non-traditional property right, into intellectual property law is to develop sui

generis intellectual property laws. Sui generis laws are for something that is

“of its own kind,” so they would allow nations to draft their own laws

speaking specifically to Indigenous intellectual property. Although many

nations with large Indigenous populations have already incorporated

Indigenous Knowledge into their intellectual property systems, the WIPO is

currently aiming to draft a global declaration. The WIPO’s ambitious

undertaking is essential to global recognition of Indigenous Knowledge

protections. The Intergovernmental Committee has the opportunity to create

one-of-a-kind protections that will safeguard Indigenous Knowledge beyond

any other declaration or statute, but the WIPO must take into account the

differences between Western and Indigenous concepts. To be successful, the

WIPO needs to draft mandatory regulations and incorporate Indigenous

concepts of ownership.