Cultural Heritage and Intellectual Property

Copyright Issues regarding the Digital Collections of Traditional Cultural Expressions (TCEs) and Traditional Knowledge (TK) of Indigenous Peoples in Museums, Libraries, Archives, and Cultural Institutions

By Kirsten Grünberg

Introduction

Museums, libraries, archives, and other cultural institutions have been characterized by a colonial history articulated through misappropriation activities, unethical scientific practices, and today by the denial of the intellectual property (IP) rights of their collections, specifically those that refer to the traditional cultural expressions (TCEs) and traditional knowledge (TK) of the Indigenous Peoples. In many cases, institutions have not acknowledged the existence of IP rights on these collections nor established guidelines regarding their digital reproduction and publication. Institutions must be called upon to adhere to the legal and moral responsibilities they have to the Indigenous People. 

Towards understanding the existence of IP rights of the Indigenous Peoples it is helpful to bear in mind an international framework that safeguards the rights of more than 370 million Indigenous People who live throughout 70 countries:

[…] the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), adopted by the UN General Assembly in September 2007, emphasizes that ‘free, prior and informed consent’ of indigenous peoples is to be obtained ‘before adopting and implementing legislative and administrative measures that may affect them’ (Art. 19). This and other provisions of the UNDRIP reinforce the right of indigenous peoples to ‘determine and develop priorities and strategies for exercising their right to development’ (Art. 23; see also Art. 34) […] Article 31(1) of the UNDRIP makes explicit the right of indigenous peoples to ‘maintain, control, protect and develop their intellectual property over [their] cultural heritage, traditional knowledge, and traditional cultural expressions’ […] (Wong and Fernandini 2011, pp. 4-5)

All copyright issues regarding the non-digital and digital collections of the TCEs and TK of the Indigenous Peoples produced within museums, libraries, archives, and other cultural institutions should be approached and applied within this legal and ethical framework.

Infringement Phase 1: Misappropriation Activities

The “misappropriation activities” that museums, libraries, archives, and other cultural institutions have historically carried out have resulted in collections being referred to as trophies of killed enemies (Nuwer 2014) or, more politely, as “objects that have not given up possession voluntarily” (Belder 2010, p. 222). However it is phrased, “it is unacceptable that these materials remain in Western collections, or displayed in public” (Belder 2010, p. 222).

Within this context, Indigenous Peoples have reacted and responded in many different ways to recuperate the TCEs and TK from these collections. The first step for many has been to research in which institutions the artifacts of their cultural heritage are located. For example:

[…] a large Mikmaq wampum belt, recording a 1610 treaty with the Holy See, was photographed on display in the Vatican ethnographic museum earlier this century. The Vatican today denies any knowledge of this object. A complete and unique Lakota Sioux ceremonial tepee from the 1840s is still in storage at the Museum für Volkerkunde in Berlin, where it was discovered by Lakota visitors in 1981. The sacred ceremonial bundles of the Crow, Sac and Fox peoples, obtained by anthropologists around 1915, are still in United States museums. Hundreds of equally significant sacred objects from the United States alone are scattered worldwide. The Lakota have begun a global inventory of their dispersed cultural property and have found objects in museums in nearly every industrialized country. The people of Kodiak Island have discovered most of their lost objects in Russia (Daes 1993, p. 15).

In addition to these cultural artifacts, the United States Congress has reported that the human remains of thousands of indigenous people have been stored in the collections of museums and scientific institutions: “About 18,500 individuals were found in the collection of the Smithsonian Institution alone” (Daes 1993, p. 13). Ironically, the digital archive of this Smithsonian collection is titled “What does it mean to be human?”, with no reference to Native American ancestors.

In some cases Indigenous People have been successful in retrieving their material from these institutions, such as the following example:

More than 10 years ago, chiefs of the Six Nations Iroquois Confederacy discovered that several wampum belts, which had been confiscated from their communities in the 1920s by Canadian police, were in the collection of the Heye Foundation, a private ethnographic museum in New York City. These objects, made of strung blue and white shell beads, are irreplaceable documents of the constitutional and diplomatic history of the Six Nations. After years of negotiations and threats of legal and political action, the museum agreed to return the belts to Six Nations chiefs in Canada (Daes 1993, pp. 14-15).

Civil action has also been used to rectify the misappropriation activities of Western institutions. For example, The American Indian Ritual Object Repatriation Foundation is an organization that has been established to facilitate negotiations for the return of objects from private collections, which are not covered by the Native American Graves Protection and Repatriation Act (NAGPRA) (Daes 1993, p. 15).

Why don’t more Indigenous groups and civil organizations take action to retrieve illegally acquired cultural heritage artifacts? There is more than one answer to this question. First, the legal processes of retrieval take great amounts of time, effort, and are also extremely expensive. Second, these collections continue to be fed by unlawful exploitation of archaeological sites. Indigenous peoples must contend with continuing efforts by tourists, art dealers and scholars to purchase culturally important objects still in use (Daes 1993, p. 14).

Infringement Phase 2: Disappearance Act of Copyright

One wonders why a modern society would endeavor to make people invisible, but this is the case for entire groups of Indigenous Peoples:

There are also some tribes that do not have federal recognition who are not granted the same sovereignty status as tribes that are recognized by the federal government. Individuals who self-identify as Native American, who are not enrolled in tribes, do not receive the benefits of citizenship of a sovereign nation or state recognized tribe (Lord 2014, p. 30).

 Within cultural institutions, Torsen and Anderson (2010, p. 14) also claim that

[…] the main obstacle for tradition-bearers in claiming ownership of cultural heritage and TCEs that reside within cultural institutions is that they are often not legally recognized as the rights holders. This means that they have limited capacity to argue and assert legal rights and interests in order to negotiate management frameworks that are culturally appropriate.

The failure to recognize groups of Indigenous People allows cultural institutions to avoid the payment of IP fees to original owners. To provide a more detailed explanation of this situation, it is important to first make a distinction between two different intellectual property categories that lie within a legal framework. As Lord explains:

Works are either currently protected by intellectual property law or reside within the public domain. A work eligible for intellectual property protection will remain under protection for a period of time. After the limit of the protection term is reached, the work becomes part of the public domain. Works that are no longer protected by intellectual property law or that were never protected by intellectual property law reside within the public domain […]. (2014, p. 35)

Given this legal context, it is very likely that most collections that hold the TCEs and TK of the Indigenous Peoples in museums, libraries, archives, and other cultural institutions reside within the public domain and have never been protected by intellectual property law. Lord provides more insight on this matter:

New developments in intellectual property law both internationally and domestically are challenging previous assumptions regarding public domain works. Works previously erroneously considered ineligible for protection are gaining recognition under intellectual property law. This means that works whose use was previously not generally considered to be regulated by intellectual property law are now understood as protected works. (2014, p. 36)

For this reason it is important to reconsider the IP of the TCEs and TK of the Indigenous Peoples that are found in the collections of museums, libraries, archives, and other cultural institutions.

Infringement Phase 3: Also Getting Away with IP of Digital Collections

Not only are the intellectual property rights of physical collections of the TCEs and TK of the Indigenous Peoples in cultural institutions being questioned, but this has also been extended to the digital collections now being created from these sources. Should cultural institutions sensibly apply the free prior and informed consent (FPIC) of the Indigenous Peoples? Although Indigenous Peoples hold different proprietary approaches to their TCEs and TK,

[…] they nevertheless are opposed to the unauthorized use of their TCEs and do take offence at unauthorized use and all the more so when it is for commercial purposes or is derogatory in nature (Torsen & Anderson 2010, p. 14).

For example, in the United States a library, museum, archives, or cultural institution interested in creating and publishing a digital collection of the TCEs and TK of Indigenous Peoples should follow the appropriate Protocols for Native American Archival Materials and contact relevant Native American community representatives (Protocols for Native American Archival Materials, n.d.). In other words:

Contact the chairman’s office of each tribe that is or may be culturally affiliated with collections held by the archives or library.  Consultation may involve more than one person.  As a professional courtesy, also contact the community’s cultural center, library, or archives and/or the cultural preservation office.  Appropriate personnel will appreciate being included in external discussions with mainstream archives and libraries.
 (Protocols for Native American Archival Materials, n.d.)

The Indigenous communities may found at the following organizations:

Below is an example of an institution that has followed these guidelines:

As part of a long-standing partnership, the Cline Library is pleased to host online access to archival collections owned by the Hopi Tribe, such as the remarkable photography of Milton Snow. Staff from the Hopi Cultural Preservation Office, in consultation with elders, select and describe the photographs and documents added to the public database. (Northern Arizona University, n.d.)

Understanding and respecting Indigenous People and being aligned with their national and international community guidelines may help libraries, museums, archives, and other cultural institutions improve their digital and nondigital intellectual property management practices.

References

Belder, L. “Friends or Foes? Two Ways of Thinking on the Relation between the Tasks of Cultural Heritage Institutions and the Protection of Copyright.” In Copyright and Cultural Heritage. Preservation and Access to Works in a Digital World, edited by E. Delclaye, 213 – 232. Cheltenham, UK: Edward Elgar Publishing Limited, 2010.

Daes, E. I. “Discrimination Against Indigenous Peoples.” In Sub-Commission on Prevention of Discrimination and Protection of Minorities, Commission of Human Rights, Forty-fifth session, Item 14 of the provisional agenda. Center for World Indigenous Studies, United Nations, July 28, 1993.
[Retrieved from http://cwis.org/GML/UnitedNationsDocuments/]

Lord, P. Unrepatriable: Native American Intellectual Property and Museum Digital Publication. John F. Kennedy University: Master of Arts & Master of Business Administration Thesis, 2014.
[Retrieved from http://www.academia.edu/7770593/Unrepatriatable_Native_American_Intellectual_Property_and_Museum_Digital_Publication]

Múkaro Borrero, R. (Borikén Taíno). “Innovation and Technology for Indigenous Peoples.” In Expert Group Meeting on “E-Participation: Empowering People through Information Communication Technologies (ICTs)”. Department of Economic and Scoial Affairs (DESA), Economic and Social Council (ECOSOC), United Nations, July 24-25, 2013.
[Retrieved from http://www.un.org/esa/socdev/egms/docs//2013/ict/innovation-technology-indigenous]

Protocols for Native American Archival Materials. Questions and Answers, n.d. [Retrieved from http://www2.nau.edu/libnap-p/faq.html]

Northern Arizona University. Cline Library. Special Collections and Archives, n.d.
[Retrieved from http://archive.library.nau.edu/cdm/landingpage/collection/hcpo]

Nuwer, R. “An American Tribe wants a German Museum to Return Native American Scalps.” Smithsonian, August 18, 2014.
[Retrieved from http://www.smithsonianmag.com/smart-news/american-tribes-want-german-collectors-return-native-american-scalps-180952374/?no-ist]

Wong, T. & Fernandini, C. “Traditional cultural expressions: Preservation and innovation.” In Intellectual Property and Human Development. Current Trends and Future Scenarios. Washington D.C.: Public Interest Intellectual Property Advisors, 2011.
[Retrieved from http://www.piipa.org/files/Book_Content/Chapter%205%20-%20IP%20and%20Human%20Development.pdf]

Kirsten Grunberg © 2014

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5 thoughts on “Cultural Heritage and Intellectual Property

  1. Anne Solomon

    Kirsten your article is excellent and the link will be forwarded to colleagues who have interest and experience working in this area of work. Chi-miigwetch Anne Anishinawbek Nation, Northeastern Ontario, Canada

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