Sovereignty and intellectual property rights

Native peoples around the world have been fighting to affirm their sovereignty and cultural identity on a number of fronts in recent years.

But what tools are being used? What battles are being fought? I believe that all such individual battles are important. A single tribal fight won in one location anywhere in the world, reinforces the efforts and power of indigenous peoples everywhere. In turn, individual struggles attract support from other tribes and organizations, individuals of good will and international agencies.

The battle over intellectual property rights has become a key one in asserting and reclaiming tribal sovereignty for cultural identity and economic development. An important international support agency is the World Intellectual Property Organization, responsible for the promotion of intellectual property rights. This United Nations agency defines broadly intellectual property issues to include genetic resources, traditional knowledge and folklore. These issues have emerged in a wide variety of policy areas, including food and agriculture, biological diversity and the environment, human rights, cultural policy and trade and economic development.

Here are some examples of individual battles being fought that are attracting international support for indigenous peoples around the globe.

A good example of genetic resources intellectual property is the controversy over blood, skin and hair samples taken from the Yanomani tribe in Venezuela and Brazil during the 1960s and 1970s. The story is documented in the Fall/Winter 2001 issue of Native Americas.

Tribal leaders thought the blood samples were being taken for promised clinical help for their increasingly serious health situation. Instead of help, the Yanomani got 30 years of silence. Only recently did the tribe learn that the samples they provided in good faith had been used as the control group in experiments on the effects of radiation. The Yanomani were more shocked to learn that some remaining samples had been turned over to scientists in the Human Genome Project, and others are in storage at Penn State University.

The fact that the blood of dead relatives is still in storage is a moral and cultural affront, given the important role that blood and mortuary taboos play in Yanomani ritual life. The Yanomani destroy everything that belongs to a deceased person; they cremate the body and the relatives never mention his or her name again. The Yanomani are demanding answers.

In New Zealand, the Maori are very much concerned about the misrepresentation of their culture perpetuated by the Danish company Lego. The Maori want Lego to stop using Maori words for their high-tech toys. In this case, Maori complaints have garnered positive results. Lego has agreed not to use offending words in future launches of its Bionicle game. In addition, Lego has sent a representative to New Zealand to consult with Maori leaders over setting up a code of conduct for the use of traditional knowledge in the manufacture of toys.

A final example comes from Alaska, where King Island Native Community members are fighting for the proprietary rights to their name, cultural heritage and related tribal resources and intellectual property. Their story is one that Native peoples find all too familiar.

The King Island Record Company of New York has been selling musical recordings and related products over the Internet, using the name “King Island.” The lyrics use names and refer to biographical episodes of community members, and refer to stories, imagery, and cultural property that belong to King Island Native Community, King Island Native Corporation, and the King Island people themselves.

The author of the lyrics to the recorded songs tried to get King Island permission to use such cultural and intellectual property. Record company material implied that such permission had both been given or was not necessary if it had not been given. In fact, the King Island Community had refused such permission.

Of course, the King Island people are offended that the recording company has engaged in these activities without their knowledge or prior informed consent. They are even more offended that the recording company has attempted to obtain intellectual property rights in the form of copyright and other registrations of their name and integral components of their traditional heritage and knowledge, as well as of their personal publicity rights, and an unwarranted invasion of their personal lives. As if this isn’t bad enough, King Island people, who have seen the lyrics and the musical production upon which they are based, contend that the content is based on inaccurate portrayals of real people and historical events, and are of the opinion that the recording is denigrating, offensive and racist.

As these examples indicate, indigenous peoples continue to fight back against misuse of their cultural property with various tools, including international networks, governmental agencies, alliances of tribes, and the growing network of socially responsible companies, such as Lego. Progress is slow, but it is occurring round the world.

During the March 2001 international roundtable on “Intangible Cultural Heritage,” United Nations Educational, Scientific and Cultural Organization Director-General Koichiro Mastura told the delegates that: “Intangible cultural heritage is gaining increasing recognition worldwide for the fundamental role it plays in our lives in the maintenance and enhancement of cultural identity and diversity ? [It] urgently requires increasing protection ? due to the vulnerable aspects of living culture and tradition.”

Indigenous communities are fighting singly and together against the offensive use of our sacred images, ways and symbols ? even of our blood. We are not alone.


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Sovereignty and intellectual property rights