Traditional Cultural Expression, Second Panel

November 15, 2008

“Traditional Cultural Expression on the International Scene” was the theme of the second panel at the Traditional Cultural Expression Conference in Washington, D.C. Michael S. Shapiro, of the U.S. Patent and Trademark Office, talked about the basic attributes of folklore, namely that it is: passed from generation to generation, community oriented, not attributable to individual authors, and continually used in the community. Copyright, he said, has been not been well suited to protect it. Jamie Love, director of Knowledge Ecology International, introduced the concept of sui generis,  a legal term that describes ownership of a unique class of intellectual property rights. He observed that WIPO wants to move from philosophical debate about copyright and trademark to evidence-based economic discussion. He cited way the music business is structured as an example of how the system has deteriorated to allow a handful of people get the great bulk of the money. Preston Hardison, Watershed Policy Analyst for the Tulalip Tribes in Washington State, described native attitudes toward intellectual property as "stewardship." Native people see themselves as custodians of their traditions, not individual owners.  "Indigenous systems of thought are very different," he said. "Rocks are alive; it's a different ways of thinking about the world." Indigenous people are a separate object of international law, he explained, noting that there are over 10,000 indigenous groups in the world. "I don’t like having to talk law," he said, but "if you can’t talk the legalese you are at a disadvantage." The speakers pointed out that one of the major complications when it comes to protecting traditional cultural expression is the influence of outside cultures on an indigenous culture—and vice versa. Winston Tabb of Johns Hopkins University, a longtime library representative in international dialogue,  was one of the conference participants, and during the second panel, he asked the group to consider that the major questions that needs to be answered in order to formulate a U.S. library position on the protection of traditional cultural expression are: What needs to happen? And, is WIPO the right place for it to happen? The group was beginning to grapple with the unique situation of indigenous peoples, as opposed to the general concept of traditional cultural expression, and to recognize that this poses a set of issues that developed over thousands of years.  Using copyright logic on indigenous culture is like trying to put a square peg into a round hole, as one participant observed.