For decades the interest in Intellectual Property (IP) has been concentrated in the benefits that companies or individuals should obtain from registering IP rights, however not much has been done or not many eyes have turned to Indigenous Rights (IR) regarding those IP rights being registered.
Indigenous People have strong connections with intellectual and cultural property pertaining to their region, country and heritage, this connection is the heart of their identity.[1] Unfortunately over time Indigenous People have lost control of their identity [2] with the rest of the population just watching and not doing much. For this reason it is relevant that Indigenous People can exercise their right to own and control, commercialize the use, obtain a benefit and authorize others the use of their IP rights.
Internationally there has been concern in protecting IR and it started with the World Intellectual Property Organization (WIPO) in 1998, with slow negotiations and with a big challenge on how to protect customary rights, preferably within an IP law context, so both traditional past and the basis of creative expressions for the future are recognized. [3] For this purpose WIPO created the Intergovernmental Committee on Genetic Resources, Traditional Knowledge and Folklore, and late in 2011 all theoretical discussions were turned in text-based negotiations, with the aim of creating international treaty documents. Currently the 31st session will be held in September, 2016. WIPO defines Traditional Cultural Expressions (TCEs) as music, art, designs, names, signs and symbols, performances, architectural forms, handicrafts and narratives[4] that belong or are created by indigenous cultures or groups. [5]
The General Assembly of the United Nations (UN) was not left behind and on September 2007 adopted the “Declaration on the Rights of Indigenous Peoples’”, which was created to preserve and revive indigenous cultures and help them recover that lost identity.
Obviously in order for international efforts to be successful, countries have to make adjustments in their legislations in order to have recognition of Indigenous Peoples’ TCEs. However and due to the application of local laws in each country, the options for protecting IR are not necessarily the same thus this will not matter as long as there is a unanimous agreement to protect those rights. Many nations or regions have made attempts, in some cases successful to develop laws that recognize the existence and need to protect IR and TCEs from unauthorized use or misappropriation.[6]
For example the US Patent and Trademark Office (USPTO) maintains a database of the official insignia of Native American Tribes. The Andean Community (Bolivia, Colombia, Ecuador and Peru) provides that any sign used in trading that affects the right of a third party, shall not be registered as a trademark, especially if it consists of a name of Indigenous Peoples or a local community or any of its characters are part of a cultural expression, unless the application is filed by Indigenous People or filed by a third party that has its express consent.[7] India in 2001 opened a “Traditional Knowledge Digital Library” which includes traditional knowledge about medicinal plants and formulations used in Indian systems of medicine, with the main purpose of protecting the ancient and traditional knowledge by documenting it electronically and classifying it as per an international patent classification system. [8]
New Zealand for example is one of the countries that developed more interest in protecting TCEs and Traditional Knowledge (TK), which is sometimes referred to “Expressions of Folklore”.[9] The Trademarks Act 2002 established the creation of a Mãori Trademarks Advisory Committee, where they could refuse the registration of trademarks in case they were considered offensive to Mãori. The downside to this Committee is the fact that is only limited to signs that are considered offensive rather that inappropriate and they can prevent registrations in New Zealand, but not in any other country. [10]
Now, as Professor James Anaya’s mentions, probably the world has focused on the intellectual property rights of individuals, since the protection would only belong to such individual and in the case of indigenous cultures and IR they are inherently built over centuries and across generations on communal understandings and organic exchanges of knowledge, making it practically impossible to ascribe the ownership of a certain set of IP rights to one or a few individuals.[11] Thus, we will differ a little from Professor Anaya’s opinion, and in order to clarify this we will concentrate into trademarks, saying that it might be difficult but not impossible to ascribe IP rights to one or especially to a few individuals. An option to achieve this has been done by the Mexican Institute of Intellectual Property (IMPI as it is called for the words in Spanish).
A “trademark” is a mark that has been adopted by its use in association with a product or service for the purpose of distinguishing a product or service from the products or services of others, in practice, however they generate wealth, represent and intangible asset and can transcend geographic boundaries.[12] Currently trademarks are not limited to designs and names, many jurisdictions have evolved into authorizing the registration and protection of three-dimensional (3-D) marks, as well as sound marks, holograms, scents, moving images, textures and even tastes.[13]
Mexico still does not protect all of these types of trademarks, but it chose the option of using “collective trademarks” in order to implement protection for IR and TCEs. A Collective Trademark (CT) is a visible sign that distinguishes products and services of companies or associations of manufactures, producers, merchants and service providers that are legally incorporated. This IR right is granted to the whole group, but what if that group was an indigenous community or culture?
In October 2014 artisans from a Municipality located in Tenango de Doria and Tulancingo de Bravo, in the State of Hidalgo in Mexico, organized themselves and got together to file for the first CT, “Tenangos Bordados de Hidalgo” (Tenangos Embroidery of Hidalgo). The benefits of this kind of registration is that the group will set the standards for the quality and conditions of the product or service, that will make it special by including obviously TCEs, EF and IR, and they will look after the fact that those products and/or services always match their own criteria.
Tenango is an area in Mexico where there are many communities that speak náhuatl and for generations their main activity has been the embroidery. All embroideries have many meanings and were used for different purposes, to represent animals, death, birth, and for ceremonies done to request rain for crops and to control the forces of nature.[14] The ideas of the designs were obtained by locals going into caves were there were cave paintings, and later the lines were a mixture of their own ideas and drawings of others. The tradition sets that drawings could only be made by men and embroidery could only be made by women. [15]
This is only a simple example of the millions of examples that all jurisdictions must have. What is undeniable is that TCEs is central to native cultures identity, existence and preservation, and the need to protect them is both local and international. Does it represent a challenge? Yes it does, but the base has already been set.
Unfortunately at the moment there are no international obligations and a few national restrictions on protecting IR from being registered by other parties who do not have a right or authorization. The positive part is that every day more people are appreciating the value of indigenous cultures, since they contribute to national identities.[16] Therefore the question now is left for local governments to decide if they should include options to protect TCEs or if the options already applied should also be applicable to them or not?
[1] INTA Presentation, Branding Culture Homage or Missapropriation?, Moderator Marion Heathcote, Speakers, Jern Ern Chuah, Lynell Tuffery Huria and Keri Johnston.
[2] Marion Heathcote, Plundering Culture, World Trademark Review, September / October 2008, pg. 13.
[3] INTA Presentation, Branding Culture Homage or Missapropriation?, Moderator Marion Heathcote, Speakers, Jern Ern Chuah, Lynell Tuffery Huria and Keri Johnston.
[4] Tracey L. Mosley, Getting expressive—indigenous cultures and trademarks, World Trademark Review, October / November 2012, pg. 49.
[5] Ibid pg. 50.
[6] Ibid, pg. 50.
[7] Marion Heathcote, Plundering Culture, World Trademark Review, September / October 2008, pg. 14.
[8] https://en.wikipedia.org/wiki/Traditional_Knowledge_Digital_Library
[9] Tracey L. Mosley, Getting expressive—indigenous cultures and trademarks, World Trademark Review, October / November 2012, pg. 49.
[10] Ibid, pg. 16.
[11] Keri A.F. Johnston and Marion Heathcote, The quest for “real” protection for indigenous property rights, Journal of Intellectual Property Law & Practice, 2014, Vol. 9, No. 5, Oxford University Press, pg. 345.
[12] Tracey L. Mosley, Getting expressive—indigenous cultures and trademarks, World Trademark Review, October / November 2012, pg. 49.
[13] Ibid, pg. 50.
[14] Elena Vázquez de los Santos, Los Tenangos, Mitos y Ritos Bordados: Arte Textil Hidalguense, Dirección General de Culturas Populares, Conaculta, 2008.
[15] http://www.culturaspopularesindigenas.gob.mx/cp/index
[16] Marion Heathcote, Plundering Culture, World Trademark Review, September / October 2008, pg. 17.