Rock art and indigenous cultural and intellectual property rights

One Law? Two Laws? Many Laws?

Convenors: Donald Craib, Craib Law Office, PLC, USA
Cheryl Simpson, Flinders University, South Australia
Prior to colonisation by Western powers, Indigenous customary law
controlled and protected knowledge within Indigenous society.
Colonisation introduced a new set of laws that often conflicted with,
and undermined, Indigenous law systems. This complexity is
compounded when considered in relation to developments in
international law. As it stands, Western intellectual property
legislation has provided very limited protection for Indigenous
cultural and intellectual knowledge. There is much debate over what
would provide the best protection of Indigenous cultural and
intellectual property, both tangible and intangible. While some
advocate amending current intellectual property laws to include
Indigenous concepts of knowledge, others question whether the
very system that legitimises the appropriation of Indigenous cultural
and intellectual property in the first place could ever be used to
provide the necessary protection. The complexities of these issues
are evident in treatment of cultural and intellectual property issues
by public institutions and international organizations.
Moreover, many aspects of Indigenous cultural and intellectual
property are of an intangible nature. These include oral histories,
music, songs, dances and ceremonies. Others, such as sand
paintings, are ephemeral in nature. Because of their intangible
nature, these aspects of Indigenous cultural and intellectual
property have limited protection under Western intellectual property
laws. Western laws only protect material expressions of knowledge.
This means that whoever first reduces intangible ICIP to a tangible
form will be granted legal ownership of that knowledge. This
includes photographs and recordings of songs and dances.
Within the framework of this debate, this session explores the
intersections of customary, national and international protections of
Indigenous cultural and intellectual property. It provides a critical
overview of contemporary issues and seeks to highlight those cases
that are addressing the current limitations of protection.
SESSION ABSTRACTS
U.S. Intellectual Property Law and Native American Imagery:
Can Federal Trademark Law Be Used to Cancel Existing
Trademarks that Native Americans Find Offensive?
Donald Craib, Craib Law Office, PLC, USA

Knowledge trusts: a more efficient path for knowledge
protection?
Paul Martin, University of New England, Australia
Indigenous Heritage and the Digital Commons
Eric Kansa, Alexandria Archive Institute, USA
Intellectual and Cultural Property in the Domains, Public and
Cultural Institutions: Alternative measures to safe guarding
cultural heritage in the Pacific
Malia Talakai, World Intellectual Property Organisation and Radboud
University of Nijmegen, The Netherlands

Restoring Connections
David Guilfoyle, South Coast Regional Initiative Planning Team,
Western Australia
A Case Study: The Register of Aboriginal Owners Aboriginal
Land Rights Act 1983
Megan Mebberson, ALRA, Australia
Indigenous knowledge systems and intellectual property
laws in South Africa: the hoodia cactus and the Africa potato
George Mukuka, University of South Africa
PAPER ABSTRACTS

U.S. Intellectual Property Law and Native American Imagery:
Can Federal Trademark Law Be Used to Cancel Existing
Trademarks that Native Americans Find Offensive?
Donald Craib, Craib Law Office, PLC, USA

The Chicago Blackhawks; the Atlanta Braves’ tomahawk chop; the
Washington Redskins; the University of Illinois’s mascot, Chief
Illiniwek; and the Cleveland Indians, to mention just a few. Are
these names and imagery offensive? Native American mascots,
names, logos, symbols, and imagery used by American sports
teams have launched a firestorm of controversy over the past thirty
years. Do these mascots honor Native Americans, as many sports
fans would suggest, or do they exploit and disparage a forgotten
community that has seen suffering from discrimination and rejection
for the past four hundred years? Native Americans have now
turned to the American legal system to fight to change American
sports team names, mascots, and imagery containing references to
Native American culture. This paper discusses the issue of whether
U.S. intellectual property law, specifically federal trademark law,
can be used to cancel a registered mark because it is offensive,
disparaging, and scandalous. In Harjo v. Pro-Football, Native
Americans sought to have the registered trademarks owned by the
Washington Redskins football team cancelled on the ground that the
marks were offensive and thus violated federal trademark law. In
1999, the Trademark Trial and Appeal Board (TTAB) of the U.S.
Patent and Trademark Office ruled in favor of the Native Americans
and ordered cancellation of the offensive marks. A subsequent
reversal of this ruling by a federal district court and a succeeding
reversal of the district court’s decision by a federal appellate court
have guaranteed that the issue will remain in litigation for the
foreseeable future.

Knowledge trusts: a more efficient path for knowledge
protection?
Paul Martin, University of New England, Australia

In commerce, particularly high technology industry, knowledge is
protected through a combination of contract and trust, which are
proven, low cost and flexible mechanisms. Yet in protecting cultural
property we seek to create cumbersome, legally strange and costly
strategies. Perhaps it is time to learn from the 'big end of town'
about how to protect the interests of the less advantaged. This
paper outlines just such a strategy and instrument and invites collaboration on its development.
Indigenous Heritage and the Digital Commons
Eric Kansa, Alexandria Archive Institute, USA
The 21st century has ushered in new debates and social movements
that aim to structure how knowledge is produced, owned, and
distributed. At one side, ‚’access to knowledge’ advocates seek
greater freedom for finding, distributing, using, and reusing
information. On the other hand, traditional knowledge rights
advocates seek to protect certain forms of knowledge from
appropriation and exploitation and seek recognition for communal
and locally situated notions of heritage and intellectual property.
Understanding and bridging the tension between these movements
represents a vital and significant challenge. This paper introduces a
project led by iCommons (icommons.org) in partnership with the
Alexandria Archive Institute (www.alexandriaarchive.org) to explore
where these seemingly divergent goals may converge.
The ’Commons’ is envisioned as a context to re-imagine
communication, culture, knowledge sharing, science, and the public
sphere and how they relate to new, empowering technologies and
social relations. Inherent in this re-imagination is the recognition
that privacy, propriety, and spirituality all vary widely across
cultural systems. A key concept that may help bridge these
movements centers on the Creative Commons concept of ‚’some
rights reserved‚’, a model underlying their globally popular copyright
licenses. The ‚’some rights reserved‚’ model is an attempt to
navigate a course between polarized states of ‚’all-or-nothing‚’
protections found in current international intellectual-property
frameworks. It can help formulate strategies that encourage
reciprocity, participation, and meaningful consultation between
members of different communities. Participation and leadership of
indigenous community organizations can help extent this model to
better meet the needs of these communities.
Intellectual and Cultural Property in the Domains, Public and
Cultural Institutions: Alternative measures to safe guarding
cultural heritage in the Pacific

Malia Talakai, Radboud University of Nijmegen, The Netherlands
The domains: public and cultural institutions, house vast amounts of both tangible and intangible heritage. Some can be protected by intellectual property legislation but some cannot be because of the limitations of the current regimes of intellectual property. The limitation of the current intellectual property laws to protect traditional knowledge and traditional cultural expressions or expressions of folklore, have become the focus of concerns and complains from indigenous peoples and communities. Particular concerns have been given to cultural heritage that are in the domains public and in cultural institutions such as museums, archive, libraries and so forth. In 2005-2006, The World Intellectual Property Organisation (WIPO) commissioned a Research Project which I was part of. The WIPO project looked at how cultural institutions deal with intellectual property issues that arise in their day-to-day practices and how they deal with these issues. Therefore, this paper will draw of the WIPO Project findings and it will discuss the domains: public and cultural institutions, as both spaces which house cultural heritage, their differences and how their day to day practices can offer alternative measures for the safeguarding of cultural heritage.
Restoring Connections
David Guilfoyle, South Coast Regional Initiative Planning Team,
Western Australia
The role of the Restoring Connections Project is to work alongside
Noongar groups in both the South West and South Coast Regions
and implement management plans that integrate cultural heritage
places and values into Natural Resource Management (NRM).
Noongar people have a strong desire for their role in caring for
country to be recognized and supported through the regional NRM
processes. Noongar lands extend across south-western Australia
and encompass areas recognized as high priority for biodiversity,
water, marine and other values. The Noongar country is where
biodiversity loss and land degradation are at their worst in Western
Australia. Using several case studies, this paper outlines how this
project was implemented, integrating current work with Indigenous
approaches, leading to direct on-ground works to protect and/or
restore degraded segements of Noongar cultural landscapes. The
notion, and the action, to restore segments of cultural landscapes
was one principle mechanism to ensure the protection of Indigenous
cultural and intellectual property rights. The work has informed on
clear pathways forward in heritage management, aimed at the
protection of places, values, and rights; including tangible
methodologises for moving beyond site-specific assessments and
toward more culturally-appropriate, landscape-level approaches that
are central to NRM.
A Case Study: The Register of Aboriginal Owners Aboriginal
Land Rights Act 1983
Megan Mebberson, ALRA, Australia
This paper briefly outlines the process involved in registering
Aboriginal owners and the sensitivity surrounding obtaining cultural
knowledge. The identification of Aboriginal owners is an essential
step towards the joint management of lands in New South Wales.
The Register of Aboriginal Owners is established and maintained in
accordance with the Aboriginal Land Rights Act 1983 (ALRA).
The Registrar, ALRA undertakes extensive research to assist
Aboriginal people in their applications including gathering personal
family information and cultural knowledge. This information is
collected under strict guidelines. The consideration of intellectual
and cultural property rights is paramount to this process.
Consequently, the Registrar has mechanisms in place to protect
such information which is used and reproduced exclusively by Office
of the Registrar for the purpose of entering an applicant on the
Register of Aboriginal Owners.
Requests for access to this information pose poignant issues for the
Registrar. The information being sought is, in essence, not available
to the public in accordance with the procedure set up by the
Registrar. This paper explores the methods used to safeguard
Aboriginal people’s intellectual property.
Indigenous knowledge systems and intellectual property
laws in South Africa: the hoodia cactus and the Africa potato

George Mukuka, University of South Africa
The aim of this paper is to outline the current status of indigenous
intellectual property rights protection in South Africa. The paper
begins by looking at the definition of Indigenous Knowledge
Systems and intellectual property laws. The paper suggest that in
order for us to understand fully the developments of intellectual
property in South Africa we need to look at such developments in
the United States and Australia. The paper then examines two cases
dealing with the hoodia cactus among the Khoisan community and
the African potato used among the Zulu community in Natal and
Gauteng. The methodology used in this paper is interviews and case
studies which were largely influenced by theoretical perspectives
which, among other things, highlight the fact that one of the
consequences for indigenous knowledge systems of colonialism and
apartheid was the fundamental erasure of indigenous cultures effected across the rich knowledge heritages of non-Western people.

Source: http://ehlt.flinders.edu.au/archaeology/conferences/Burra%202006/Two_Laws_session.pdf