Traditional Cultural Expression Conference, Fifth Panel

November 16, 2008

A panel titled “Drawbacks to Traditional Copyright Protections and Alternative Models" delivered perhaps the most impassioned talks of the Traditional Cultural Expression Conference in Washington, D.C. Debra Harry, executive director of the Indigenous Peoples Council on Biocolonialism  pulled no punches as she emphasized that indigenous people must be consulted at the onset and throughout any effort to manage or preserve their cultural heritage. She looked around the room and observed that not enough indigenous people were present at the conference. Trying to twist western intellectual property laws to fit indigenous expression is futile, Harry suggested, as it protects "alienable commodities." Indigenous people have a completely different view. The World Intellectual Property Organization (WIPO) refers to it as the conceptual divide. Indigenous people view their cultural expression as holistic and dynamic, with collective rights that are unalienable, intergenerational, and perpetual, with a foundation in human rights law or the right of self-determination. The Western view is that intellectual property rights are alienable or a commodity that we think of as needing short-term protection and public domain provisions founded in trade agreements. Indigenous peoples are rights-holders not stake-holders, Harry said. When it belongs to indigenous communities, she observed, it no longer has its real value when used by outsiders. Librarians need to rely on the 2007 United Nations Declaration on the Rights of Indigenous Peoples, asserting the right of self-determination, she recommended. Rebecca Tsosie, professor of law at Arizona State University, said the human race is "at time when we have to embrace change and do it by talking to people not like us." Indigenous people are always compared to Europeans, she asserted, since "contact" it has always been this way. The difference now is that indigenous people have a political status, unlike the period of colonization when there was a presumption that indigenous people had no laws, no status. "We have sui generis laws," Tsosie said, but until that statute there was no protection. She emphasized, as did Harry, consultation with native people, who look at cultural heritage collectively. "It’s the right thing to do,” she said, especially with regard to all the cultural heritage and artifacts that have already been taken away from their rightful owners. "Tribal and indigenous people are not at the table in the international sphere, and they should be," she added. The U.N. Declaration says indigenous people have the right to self determination and contains model for defining native rights within domestic structures. Wednesday evening keynote speaker Wend Wendland of WIPO rose to the challenge presented earlier in the conference by Winston Tabb of Johns Hopkins University. In attempting to answer Tabb's challenge with regard to what the profession wants to see happen, he said that the library community could do two main things: 1) see to what extent your resources and technology and expertise could be made available to indeigenous people so they can document their own culture, and 2) develop a framework or protocol that can serve as guidelines. He acknowledged the need to consult widely, and to observe and participate in a wide variety of projects. He invited the American Library Association and the International Federation of Library Associations and Institutions to help develop a guidebook for libraries. It’s not that indigenous people want to be included in the existing system, he added, it is that they want a distinctly different one. But the agenda of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore is overloaded, he said, and need to focus squarely on intellectual property. It was at this point in the conference that it became clear to many that the discussion had veered away from the general concept of traditional cultural expression, which is way too inclusive. It was only when the group got into issues specific to indigenous populations that the question was understandably framed. Similar concerns apply to native people in Australia and New Zealand and other places around the world, just as much as North America.