Advocacy Paper: Intellectual Property and the Protection of Indigenous Knowledge Generally By Ceilon Aspensen Copyright 2004-2006 It is virtually impossible to look at modern America without seeing vestiges of Native American cultural, social, artistic, and political influence. In many cases, these things have become so interwoven with the fabric of American culture that it may be difficult for some to realize that America and Americans did not invent them. In fact, much of the core of American consciousness has as its foundation Native American building blocks. However, that does not make it alright to appropriate all things indigenous as common cultural property simply because certain aspects of indigenous culture have become so fused with our larger culture that we no longer recognize them as indigenous in origin. It is the position of this paper that certain indigenous knowledge deserves and requires legal protection as intellectual property from misappropriation by the larger culture. In addressing whether indigenous knowledge warrants protection under the law from misappropriation, it seems prudent to first define what intellectual property is, what indigenous knowledge is, and how the two are related. Intellectual property can be described as an intangible asset that may be bought, sold, licensed, exchanged, or gratuitously given away like any other form of property (Hefter & Litowitz, 2004). Though described as an intangible asset , there are laws both nationally and internationally, which regulate the copying of inventions, identifying symbols, and creative expressions. These laws encompass four separate and distinct types of intangible property namely, patents, trademarks, copyrights, and trade secrets... The intellectual property owner has the right to prevent the unauthorized use or sale of the property The most noticeable difference between intellectual property and other forms of property is that it cannot be defined or identified by its own physical parameters. It must be expressed in some discernible way to be protectable (Hefter & Litowitz, 2004). Some traditional forms of expression (in both western culture as well as indigenous cultures) have included but are not limited to art, writing, philosophy, culture, medical remedies, and religion. Indigenous knowledge is knowledge that is possessed by a community or culture and is passed from generation to generation as part of the culture. In western culture, a similar concept exists: common sense. Inherent in the term common sense is the idea of commonality; that certain knowledge is common among all people, and to not demonstrate possession of such knowledge can be interpreted as indicative of an intellectual or social void in the person demonstrating the lack of said knowledge. The concept of common sense is similar to that of indigenous knowledge in that both forms of knowledge are based on experience; they are developed, tried, tested, and generally accepted over long periods of time; they are adapted to the local culture and environment; and they are dynamic and changing. The concept of common sense is different than the concept of indigenous knowledge in that the latter is specific to a group of persons indigenous to a geographical location. This knowledge can include systems of beliefs, practices and technologies, development of tools, technologies and materials, understanding of and cultivation of biological and human resources, education and forms of communication. (IIRR, 1996) It is important to note that the western way of looking at protection of intellectual property is usually confined to the protection of created works from unauthorized sale, copying, or plagiarism. The types of intellectual property usually protected in that way can include writing, art, inventions, medicines, and in recent years, software programs, computer operating systems, and other digital media. However, protection of indigenous knowledge is not simply about protecting things that have been created by indigenous persons or cultures. On the contrary, protection of indigenous knowledge frequently involves protecting natural environmental elements (such as plants and herbal medicines, for example) from being patented by individuals or business entities. Further, for some indigenous cultures protection of indigenous knowledge includes protecting indigenous society from the culturally and environmentally destructive impact modern knowledge practices have on local communities (McGovern, 2000). Still further, there is the issue of who is indigenous; and once that is determined, who has the right to copyright literary and/or artistic material from a specific cultural group which is no longer pure (which would include most indigenous peoples in America)? Do persons who have relatively little claim to being actual bearers of cultural tradition have the right to copyright cultural materials? (Conley, 1998) Or would that work as a detriment to the larger group of people associated with that cultural group by way of preventing them from participating in their shared cultural traditions? The variety of issues associated with protection of indigenous knowledge are indicative of the complexity of indigenous knowledge and what it comprises, and all of these deserve further examination. While it is the assertion of this author that indigenous knowledge should most definitely be protected, advocating such protection is not always as simple as making a broad statement that says that all indigenous knowledge should fall under copyright or patent. The reasons for this are inherent in the questions presented previously, and will be examined more closely subsequently. In respect to the previously raised issues, it would seem important to examine what is fair to indigenous people about protecting indigenous knowledge as intellectual property, and when applying such protection would not be in the best interest of the people and culture such protections would benefit. One area in which protection of indigenous knowledge has had very specific legal guidelines placed upon it concerns Native American Art. Discussion of this subject requires definitions of such terms as Native American Art and Native American Artist . This is one area of law that has been clearly defined and is not subject to any ambiguity of the kind previously referenced, because federal legislation has provided legal protection for this type of intellectual property: The Indian Arts and Crafts Act of 1990 (P.L. 101-644) is a truth-in-advertising law that prohibits misrepresentation in marketing of Indian arts and crafts products within the United States. It is illegal to offer or display for sale, or sell any art or craft product in a manner that falsely suggests it is Indian produced, an Indian product, or the product of a particular Indian or Indian tribe or Indian arts and crafts organization, resident within the United States. (Indian Arts and Crafts Board, 1990). This is a perfect example of when specific legal protection can be applied, but where copyright or patent on protected material is not necessarily required (beyond the copyrights of the individual who created the work, which falls under the same copyright protection as any other individual). At issue is not whether the work itself is copyrightable, but whether the creator of the work can call it Native American . This speaks to the idea that protection of indigenous knowledge as intellectual property includes the right of indigenous peoples to retain the right to use the moniker Native American when describing a genre or type of artwork. The Indian Arts and Crafts Act of 1990 goes on to specifically describe who can claim the legal designation Native American as anyone who is defined as a member of any federally or State recognized Indian tribe, or an individual certified as an Indian artisan by an Indian tribe (Indian Arts and Crafts Board, 1990). Further, artwork that can be called Native American must meet the following requirements: The Act broadly applies to the marketing of arts and crafts by any person in the United States. Some traditional items frequently copied by non-Indians include Indian-style jewelry, pottery, baskets, carved stone fetishes, woven rugs, kachina dolls, and clothing. All products must be marketed truthfully regarding the Indian heritage and tribal affiliation of the producers, so as not to mislead the consumer. It is illegal to market an art or craft item using the name of a tribe if a member, or certified Indian artisan, of that tribe did not actually create the art or craft item. For example, products sold using a sign claiming "Indian Jewelry" would be a violation of the Indian Arts and Crafts Act if someone other than a member produced the jewelry, or certified Indian artisan, of an Indian tribe. Products advertised as "Hopi Jewelry" would be in violation of the Act if someone who is not a member, or certified Indian artisan, of the Hopi tribe, produced them. (Indian Arts and Crafts Board, 1990). Inappropriately using the term Native American to describe either an artist or his/her artwork subjects that person to sizeable penalties and fines and a possible prison sentence. Unfortunately, not all issues concerning protection of indigenous knowledge can be as cleanly delineated as the one having to do with Native American arts and crafts. An example of a more gray area would include traditional stories and rituals. One way that non-indigenous people have misappropriated indigenous religion, rituals and traditions is demonstrated in the documentary film White Shamans and Plastic Medicine Men. This documentary deals with the popularization and commercialization of Native American spiritual traditions by Non-Indians. Important questions are asked of those seeking to commercially exploit Tribal rituals and sacred ceremonies...and those vested with safeguarding sacred ways (Native Voices at University of Washington, 2002). At present there is no legislation that would protect indigenous peoples from this kind of cultural misappropriation. And whether this type of indigenous knowledge should be protected as intellectual property by act of legislation is a question left unanswered. It is not uncommon for certain persons within distinct indigenous culture groups to be charged by their community with the task of protecting details of sacred rites and rituals to the point of extreme secrecy; and this, in and of itself, is a form of protection limited only by the integrity of the individual entrusted with that responsibility. But the question of whether and how to legally protect such proprietary indigenous knowledge has not been resolved. As mentioned earlier in this discussion, it is not entirely clear whether imposing such legal restrictions on the use of that type of indigenous knowledge would ultimately benefit the indigenous peoples that such a law would be designed to protect. For example, who has the right to speak for the tribe? Should someone who possesses the required minimum blood quantum legally required to be a federally registered member of tribe, but has never had any cultural association with that tribe, be allowed to assert a legal right to the protection and dissemination of tribal knowledge? That question may never be legally resolved; but at a minimum, it would seem that restrictions similar to those outlined in the Indian Arts and Crafts Act of 1990 might be imposed upon the use of the term Native American (or other culture-group-specific label) in any type of religious ceremony or practice. Further, it would seem logical that those same restrictions could be placed very specifically and effectively on the commercial use of indigenous knowledge as related to spiritual religious practices, and related indigenous cultural knowledge. One thing that is mentioned several times in the film White Shamans and Plastic Medicine Men is that our religion is not for sale . In order to legally enforce such a desire on the part of indigenous peoples, it would seem a simple thing to restrict the sale of any indigenous religious ritual or philosophy via paid seminar or other commercial venue by using the same rules as set forth in the Indian Arts and Crafts Act of 1990. Yet another gray area in the discussion of protection of indigenous knowledge exists in the area of natural environmental elements. Many modern medical treatments come from plants that have been used by indigenous peoples for millennia for the treatment of various illnesses. One example of such a medicine would be quinine; another is willow bark (commonly known today by the name aspirin , which was patented by a German pharmaceutical company). In the case of aspirin, only the name and the process of deriving the medically beneficial substance were patented not the natural substance itself. However, there have been attempts by some organizations to actually patent plants and/or herbal derivatives. In 1998, the U.S. Patent & Trademark Office (PTO) cancelled a patent on the use of turmeric or Circuma longa in healing wounds because it is not an invention but an old, millennial practice in India (Sampat, 1998). This case represents a situation where the protection of indigenous knowledge as intellectual property occurs such that it does not reserve the knowledge for sole use of indigenous peoples, but prevents knowledge that has been possessed by indigenous peoples for millennia from being misappropriated for financial gain by commercial entities. The ruling was made by the PTO based on the grounds of prior art, or existing public knowledge (Sampat, 1998). This ruling represents a conundrum on the issue of indigenous knowledge and intellectual property rights. On the one hand (as mentioned previously), the ruling prevents the misappropriation of indigenous knowledge by commercial entities for financial gain. On the other hand, it prevents indigenous peoples from patenting knowledge that has been in their sole possession for millennia. As mentioned previously, intellectual property can be described as an intangible asset that may be bought, sold, licensed, exchanged, or gratuitously given away like any other form of property (Hefter & Litowitz, 2004). It would seem that the ruling of the PTO regarding the patenting of turmeric could be seen as equivalent to forcing indigenous peoples to gratuitously give away their intellectual property without their express consent. Sampat also states that something considered public knowledge in the U.S. cannot be patented, but foreign prior art isn t recognized unless already documented in a publication or patent. Such documentation is difficult to produce, as traditional wisdom is often orally transmitted or has simply evolved into common practice (Sampat, 1998). This appears to be the ultimate catch 22 where protection of indigenous knowledge as intellectual property is concerned. The PTO ruling on the patenting of turmeric sets a legal precedence for preventing the misappropriation of indigenous knowledge for commercial financial gain; but it also prevents indigenous peoples themselves from patenting plants and herbal derivatives. It is my opinion that fair application of this legal concept would allow indigenous peoples to benefit financially from agricultural and medical innovations developed by their ancestors. Considering the fact that many multitudes of indigenous peoples do not reside in the U.S., but in developing countries around the world, Sampat offers that by establishing rights over biological matter, developing countries may stand to gain financially. All twenty of the staple agricultural crops (that provide 90 percent of humanity s calorie requirements) originate in developing countries, as do nearly two-thirds of the world s plant species. And the commercial value of organically derived drugs in the 1990 s alone is estimated at $500 billion. But developing countries have shared little in these profits, and may need to be more assertive in staking their claims (Sampat, 1998). As it is true with so many issues of great concern to indigenous peoples, so is it that the many issues surrounding the protection of indigenous knowledge as intellectual property are so varied and sometimes confusing that they remain persistently unresolved. Without a doubt, Americans have benefited greatly over the last four to six hundred years by the freely offered knowledge possessed by the indigenous peoples of this continent. It is unfortunate that our application of laws protecting the rights of indigenous peoples seem to be applied only at our own convenience. It is high time that the rules and laws designed to benefit all Americans are applied in a manner that truly brings about liberty and justice for all . Perhaps this could begin with the fair application of existing laws regarding intellectual property and indigenous knowledge, as well as the creation and fair application of new ones. Bibliography Journal Articles: Brown, Michael F. (1998). Can Culture Be Copyrighted? Current Anthropology, Volume 39, Number 2, 193-222. Anderson, E. N., Conley, John M. (1998 Dec). On Intellectual Property. Current Anthropology, Dec 1998 v39 i5 p687(1). Retrieved March 8, 2004, from Infotrac Web: Expanded Academic ASAP. McGovern, Seana M. (2000 Nov). What is Indigenous Knowledge? Voices from the Academy. Comparative Education Review, Nov 2000 v44 i4 p523. Retrieved March 8, 2004, from Infotrac Web: Expanded Academic ASAP. Sampat, Payal. (1998 Jan-Feb). Judgment Protects Indigenous Knowledge. Worldwatch Institute, Jan-Feb 1998 v11 n1 p8 (1). Retrieved March 8, 2004, from Infotrac Web: Expanded Academic ASAP. Websites: Indian Arts and Crafts Board, US Department of the Interior. (1990). US Department of the Interior: Indian Arts and Crafts Board. Retrieved March 8, 2004, from US Department of the Interior: Indian Arts and Crafts Board at: http://www.doi.gov/iacb/act.html International Institute of Rural Reconstruction. (1996). Silang, Cavite, Philippines International Institute of Rural Reconstruction. Retrieved March 8, 2004, from International Institute of Rural Reconstruction: http://www.panasia.org.sg/iirr/ikmanual/ik.htm Hefter, Laurence R., Litowitz, Robert D. (2004). WHAT IS INTELLECTUAL PROPERTY? Bureau of International Information Programs, U.S. Department of State. Retrieved March 8, 2004, from Bureau of International Information Programs, U.S. Department of State: http://usinfo.state.gov/products/pubs/intelprp/ Native Voices at the University of Washington: White Shamans and Plastic Medicine Men (2002). University of Washington. Retrieved March 8, 2004, from Native Voices at the University of Washington: White Shamans and Plastic Medicine Men, University of Washington: http://depts.washington.edu/nvoices/sub_sheets/shamans_medicine.html Films: Macy, Terry; Hart, Daniel. (1995) White Shamans and Plastic Medicine Men. USA, Native Voices Public Television. V0837, VHS, 27 minutes.