Digital protection of indigenous knowledge

The governments of New Zealand and Australia are unfortunately not as advanced as India in respect to protection of indigenous knowledge.  It is hardly believable but India has not only tackled the issue but also partially solved it digitally with an online database.  This post will have a look at this important topic in more detail.  It is relevant for libraries, archives, galleries and museums because they are collecting, storing, describing, handling,  loaning, digitising and displaying items which are classified as indigenous knowledge such as:

•  moveable cultural property
• literary and artistic works (including music, dance, song, ceremonies, symbols and designs, narratives and poetry)
• scientific, agricultural, technical and ecological knowledge
• human remains
• sacred sites, burials and sites of historical significance
• documents of Indigenous peoples' heritage (including film, photographs, video and audio recordings, and archival collections).

The problem with protecting indigenous knowledge is that most countries in the world have difficulties reconciling locally indigenous traditions, laws and cultural norms with predominantly western legal systems, effectively leaving indigenous peoples' individual and communal intellectual property rights unprotected. Also most countries do not have specific legislation or systems in place to protect and therefore prevent misuse, or commercial use of indigenous knowledge. It is usually up to individuals or tribal groups to take costly, long running and often unsuccessful court action to protect their knowledge and intellectual property. This is not how it should be.

The Wikipedia entry on Indigenous Intellectual property gives a brief overview of the subject which is a topic of international concern.  It notes two important declarations:

New Zealand: Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples (June 1993)

150 delegates from fourteen countries, including indigenous representatives from Japan, Australia, Cook Islands, Fiji, India, Panama, Peru, Philippines, Surinam, USA and New Zealand

·         Affirmed indigenous peoples' knowledge is of benefit to all humanity.

·         Recognised indigenous peoples are willing to offer their knowledge to all humanity provided their fundamental rights to define and control this knowledge is protected by the international community.

·         Insisted the first beneficiaries of indigenous knowledge must be the direct indigenous descendants of such knowledge.

·         Declared all forms of exploitation of Indigenous knowledge must cease.

Section 2 of the declaration asks State, National and International Agencies to:

·         Recognise that Indigenous peoples are the guardians of their customary knowledge and have the right to protect and control dissemination of that knowledge.

·         Recognise that indigenous peoples also have the right to create new knowledge based on cultural tradition.

·         Accept that the cultural and intellectual property rights of Indigenous peoples are vested with those who created them.

Australia: Julayinbul Statement on Indigenous Intellectual Property Rights (November 1993)

A meeting of indigenous and non-indigenous specialists agreed that indigenous intellectual property rights are best determined from within the customary laws (Aboriginal common laws) of the indigenous groups themselves.  These laws must be acknowledged and treated as equal to any other systems of law.

·         Indigenous Peoples and Nations reaffirm their right to define for themselves their own intellectual property, acknowledging the uniqueness of their own particular heritage

·         Indigenous Peoples and Nations declare that we are willing to share [our intellectual property] with all humanity provided that our fundamental rights to define and control this property are recognised by the international community

·         Aboriginal intellectual property, within Aboriginal Common Law, is an inherent, inalienable right which cannot be terminated, extinguished, or taken .. Any use of the intellectual property of Aboriginal Nations and Peoples may only be done in accordance with Aboriginal Common Law, and any unauthorised use is strictly prohibited.

Examples of indigenous knowledge being protected

1. New Zealand: The haka

Maori’s have been trying to defend their rights to the haka dance for over 10 years.  Ka Mate is the most widely known haka because it has traditionally been performed by All Blacks rugby teams at the opening of international games. It is agreed that Ka Mate was composed by Te Rauparaha, war leader of the Ngāti Toa tribe (iwi) of the North Island of New Zealand.

Between 1998 and 2006, the Ngati Toa iwi attempted to trademark Ka Mate to prevent its use by commercial organisations without their permission, but in 2006 the Intellectual Property Office of New Zealand turned their claim down on the grounds that Ka Mate had achieved wide recognition in New Zealand and abroad as representing New Zealand as a whole and not a particular trader.  However in 2009, as a part of a wider settlement of grievances, the New Zealand government agreed to:

"...record the authorship and significance of the haka Ka Mate to Ngāti Toa and ... work with Ngāti Toa to address their concerns with the haka... [but] does not expect that redress will result in royalties for the use of Ka Mate or provide Ngāti Toa with a veto on the performance of Ka Mate...".

In March 2011 a few months before the Rugby World Cup started in New Zealand the NZ Rugby Union came to an amicable agreement with the Ngati Toa not to bring the mana of Ka Mate into disrepute. In one of the final games France were fined $10,000 by the International Rugby Board for advancing towards the haka, but I think this was more to do with protecting rugby rules than the haka itself. 

Matiu Rei, head of the Ngati Tao Maori tribe said in October 2011

“We are not seeking compensation, we are seeking recognition.”

2. India: Yoga

For more than 10 years India watched as western governments granted patents, trademarks, and copyrights to what was India’s indigenous knowledge, for example yoga and herbal cures. The U.S. Patent and Trademark Office alone issued 150 yoga-related copyrights, 134 patents on yoga accessories, and 2,315 yoga trademarks. Yoga is big business around the world and is estimated to make $3 billion a year in America alone. The Indian Government did not stand by and do nothing, they decided to take action in the form of the Traditional Knowledge Digital Library (TKDL).

The aim of the TKDL is to make digitally available the indigenous knowledge of India in multiple languages, so that Patent offices can search the knowledge and then reject patents applications that are actually traditional knowledge.  India is quite lucky because things like yoga and herbal medicine are actually well described in ancient texts.  But these are in different  languages such as Sanskrit, Urdu, Arabic, Persian, Tamil (usually not English), hard to get hold of in hard copy, and not widely understood by the western world or patent examiners.  TKDL breaks the language and format barrier and makes available this information in English, French, Spanish, German and Japanese in patent application format, which is easily understandable by patent examiners. TKDL is thus a tool providing defensive protection to the rich traditional knowledge of India. In June 1999 the World Intellectual Property Organization (WIPO) and the Standing Committee on Information Technology (SCIT) recognised the need for developing countries to create Traditional Knowledge (TK) data bases. The concept of the Indian TKDL was formed in 2001.

By August 2011, 150 books on yoga, ayurveda, unani, siddha and natural medicines from multiple Indian languages had been digitised and transcribed into 4 European languages and Japanese.  In addition 1,300 yoga 'asanas' had been documented making them public knowledge. Around 250 of these `asanas' have also been made into video clips with an expert performing them.

But this hasn’t stopped self-styled yoga gurus such as Bikram Choudhury in the USA still trying to patent ‘Hot Yoga’, a set of 26 sequences practised in a heated room. Bikram and the TKDL made headline news last year because of this. Boingboing reported in March 2011 that apparently Mr. Choudhury was threatening to sue people teaching a popular style of yoga he claims to have invented and copyrighted. He also reputedly said "Because I have balls like atom bombs, two of them, 100 megatons each. Nobody fucks with me."   Perhaps he has not finished reading the full library of indigenous yoga knowledge, since I’m sure this is an attitude not encouraged by yogis?

Dr V P Gupta, who created TKDL, said "All the 26 sequences which are part of Hot Yoga have been mentioned in Indian yoga books written thousands of years ago." He added, "However, we will not legally challenge Choudhury. By putting the information in the public domain, TKDL will be a one-stop reference point for patent offices across the world. Every time, somebody applies for a patent on yoga, the office can check which ancient Indian book first mentioned it and cancel the application."

These two examples of defending indigenous knowledge and the quotes by the leaders reinforce the statements in the declarations, namely:

“indigenous peoples are willing to offer their knowledge to all humanity provided their fundamental rights to define and control this knowledge is protected by the international community.”

Libraries, archives, galleries and museums are part of that community and are often seen as gatekeepers of knowledge. We should be pro-actively supporting, encouraging and enabling this outcome.

What is happening in Australia?

In Australia there are many examples of non-indigenous Australians inappropriately using indigenous knowledge and artworks without permission. Most recently this has revolved around sacred rock art.  In April 2009, the Australian Government adopted the UN’s Declaration on the Rights of Indigenous Peoples. It states that Indigenous people have the right to maintain, control, protect and develop cultural heritage, traditional knowledge and traditional cultural expressions including oral traditions, literature, designs, visual and performing arts. It also includes the right for Indigenous people to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge and traditional cultural expressions. However we currently don’t have the infrastructure or systems in Australia to do this easily or effectively.

In April 2008 at the Australia 2020 Summit Terri Janke proposed the establishment of a National Indigenous Knowledge Centre (NIKC). This idea was followed through with a feasibility study into a NKIC which was submitted to FaHCSIA in October 2011. In 2009 Terri Janke wrote her own report ‘Beyond Guarding Ground: A vision for a National Indigenous Cultural Authority’. Both of these reports require legislation and a system to be established for the protection of indigenous intellectual and cultural knowledge. Part of this infrastructure could be a digital library database.

Some of the suggestions for the NKIC are that it would build on the existing role of the Australian Institute for Aboriginal and Torres Strait Islanders Studies (AIATSIS):

·         Become a reference point for Aboriginal and Torres Strait Islander culture.

·         Engage in research to harness traditional knowledge to support sustainable management of country.

·         Support the education and understanding of indigenous culture and affairs across Australia and preserve indigenous heritage.

·         Become a national gathering place for the celebration and discussion of indigenous culture in a physical or virtual sense.

The AIATIS response to the National Cultural Policy quite rightly questions if and how protecting indigenous knowledge will fit into the proposed NCP.

Further Reading:

Michael Davis, Indigenous Peoples and Intellectual Property Rights, 1996 Research Report

Terri Janke, Our Culture Our Future:  1998 Report on Australian Indigenous cultural and Intellectual property rights.

ATSILERN Protocols: Guidance for libraries, archives and information services in appropriate ways to interact with Aboriginal and Torres Strait Islander people, their culture and heritage.  

The Australian Wattle, photo by Rose Holley