In Part One of this series of articles we introduced the concept of cultural appropriation and provided an explanation of why it sits uncomfortably with most of us. In Part Two we discussed the power dynamics at play and whether that power-balance has been struck in the current IP legislation we see internationally. This article by Myriam Christmann focuses on those power dynamics once more and looks at the remedies that are offered in order to strike the balance between indigenous people and the State using Human Rights Law as a lever for interpreting IP legislation.

The relationship between Human Rights and Intellectual Property is an interesting one, because it transcends different levels and aspects of each legal field respectively. However, it seems as though the relationship between the two only became apparent only in the 1990s. This is primarily due to the fact that intellectual property rights, by broadening its scope of protection, imposed limitations on the accessibility and realisation of Human Rights. This has primarily been through the effect that intellectual property laws have had on access to healthcare.

The overlap of Human Rights Law and Intellectual Property Law

When intellectual property laws were initially drafted, the motivation was purely commercial. Today Human Rights Law and Intellectual Property Law overlap to an extent far greater than initially envisaged. Indeed Intellectual Property found its way into Human Rights. Indeed, the right to intellectual property is embedded in the Universal Declaration of Human Rights (UDHR) and the United Nations Declaration for the Right of Indigenous People (UNDRIP).

The UDHR is probably the most prominent international document to be said to ‘constitutionalise’ the Human Rights regime, which effectively constitutionalises intellectual property rights on an international scale. Although not expressly mentioned, Article 27 (2) UDHR states that “… everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”

Another observation that was made in the early 1990s, mainly by human rights advocates, was the neglect of the rights of indigenous people due to increasing numbers of misappropriations and exploitation of traditional knowledge and expressions. Various international instruments, concerning the subject of indigenous cultural heritage, e.g. sacred objects and knowledge or traditional cultural expressions, such as dances and music, and its relation to the intangibility of the culture, have come into existence.

Due to the concern that indigenous peoples’ rights were neglected and that they have suffered from historic injustice as a result of colonisation and dispossession of their land and resources, the United Nations became the leading power behind the efforts to protect indigenous peoples’ culture. Two agencies in particular a noteworthy here, that is the work of WIPO and UNESCO. The work of the latter will be of concern in this post.

UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage

Within the last 25 years, the UNESCO Convention for the Safeguarding of the Intangible Cultural Heritage and the United Nations Declaration on the Rights of Indigenous People were created. Within these frameworks ‘intangible cultural heritage’ refers to traditions or living expressions inherited from the ancestors and passed on to the descendants, such as oral traditions, performing arts, social practices, rituals, festive events, knowledge and practices concerning nature and the universe or the knowledge and skills to produce traditional crafts.

Traditional cultural expressions can succinctly be defined as “heritage that is embodied in people rather than in inanimate objects.”

There are generally two form of intangible cultural heritage that exists:

    • the first form of intangible cultural heritage exists independently from tangible objects, such as prayers songs and dances; and
    • the second form is the physical objects themselves.

The latter is in most cases is inextricably linked and has a close mutual relationship with the former, often in such a manner that their separation would be counter-intuitive. Traditional cultural expressions can thus either be intangible, or a combination of the intangible value and tangible object, resulting from each other respectively. The value of indigenous culture, and intangible cultural heritage in particular, lies in the discernment of indigenous people on how they relate to it and what meaning they confer upon it.

Although neither the UNESCO Convention nor the UN Declaration on the Rights of Indigenous People are binding, the Declaration that makes a very important policy consideration, namely in the form of the right to (cultural) identity. The right to cultural identity is not represented by one single provision in the Declaration, but is comprised of multiple rights granted therein. This is comprised of the right to self-determination (Art. 3), the right to maintain and strengthen their distinct political, legal, economic, social and cultural institutions (Art. 5), the right not to be subjected to forced assimilation or destruction of their culture (Art. 8 (1)), the right to practise and revitalise their cultural traditions and customs including the right to maintain, protect and develop the past, present and future manifestations of their culture (Art.11(1)). Moreover, the Declaration mentions the obligation to provide redress with respect to indigenous “cultural, intellectual, religious and spiritual property” taken without free, prior and informed consent (Art. 11 (2)). This provision must be read in conjunction with Arts. 31 and 33.

These provisions include the rights to maintain, control, protect and develop their cultural heritage, traditional knowledge, traditional cultural expressions and their intellectual property. The Convention provides that “indigenous peoples have the right to determine their own identity or membership in accordance with their customs and traditions”, without the impairment of obtaining nationality of the State they reside in or participating in the States life. In toto, these rights portray the right to cultural identity as a whole.

There is a strong argument that the right to identity is said to form part of customary international law, as was affirmed by the International Law Association by acknowledging that “states are bound to recognise, respect, protect and fulfil indigenous peoples’ identity (in all its elements, including cultural heritage […] through all possible means – in order to ensure its preservation and transmission to future generations). Cultural rights are the core of indigenous cosmology, ways of life and identity, and must therefore be safeguarded in a way that is consistent with the perspectives, needs and expectations of the specific indigenous people.” The intangible nature of spirituality and belonging is patently encapsulated in this quote and furthermore, denotes that the right to cultural identity is an enforceable right under international law.

Thereby, it perpetuates the necessity that existing IP systems have to realise and demand a change within the legal system and its perception on indigenous communities’ cultural (IP) rights.

It can be recognised that cultural expressions (no matter in which form they occur – medicine, arts or performance) do fall – at least descriptively – under works protected as intellectual property. This will fall in line with Art. 27 UDHR, not only allowing intellectual property as a Human Right, but also merging the right to intellectual property with the right to cultural identity.

The Challenge to Western IP Regimes

There are two broad principles to discern, the thrust of which run counter to the policies of Western IP regimes. The first evolves around the proprietaries principles that recognizes the claim to the entire culture of indigenous people. However, such propriety claim to an entire cultural heritage is not a right that is currently recognized by western IP systems. Secondly, there is the principle of cultural diffusion. The principle signifies the spread of cultural beliefs and social activities from one group of people to another. The mixing of cultures through different ethnicities, religions, and nationalities has only increased with advanced communication, transportation and technology.

IP laws have the underlying goal to achieve, promote and develop human creativity. Cultural heritage is seen as the fundamental basis of humankind, which should be accessible to everyone around the world, in order to ensure the prosperity and flourishing of human creativity regarding intellectual property. This is also in line with the notion of the public domain into which copyright works enter after the propriety rights extinguished. Cultural diffusion is based on the premises that cultures are part of a global intellectual good to which all humans have some rights of access, because a “broad dissemination of ideas and knowledge, based on the freest exchange and discussion is essential to creative activity, the pursuit of truth and development of the personality. Copyrights are therefore used and seen as economical wheels, since they are linked to the individual to maximize the capacity of individual owners to trade these rights. Consequently, this means in praxis that indigenous communities often fail to obtain protection for their traditional heritage resources.

Hence, the individualistic notion (particularly of copyright) needs to refocus, which will be further elaborated on the next and final part of this series.