IP & Traditional Cultural Expressions: An Unnatural Alliance?

Incorporating traditional cultural expressions into an intellectual property system will be an uphill battle, warned a panellist at a recent side event at the World Intellectual Property Organization. But, argued another, it could be one of the best ways for indigenous communities to benefit from their knowledge.

“Intellectual property is not an indigenous concept,” said anthropologist Jeremy Narby.

In 25 years, he added, “I never met a single indigenous person who claimed to be the owner of an idea or a story or any of these things.” So, “even with best intentions,” such as looking for the owner in order to compensate for the use of the idea, it “doesn’t correspond at all to the concepts of the people.”

Narby was speaking at an 8 December side event to the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge And Folklore (IGC). The event was organised by the Fédération Internationale des Associations de Producteurs de Films (FIAPF), the International Video Federation (IVF), the Motion Picture Association (MPA), the International Federation of the Phonographic Industry (IFPI) and the International Publishers Association (IPA).

It is good that people are “trying to sort out a more just system” and trying “to find out how the people who have been marginalised in this process to be more justly compensated, but “getting the circle and the square to fit is a different exercise,” Narby said.

One problem is that there is “never any clear frontier between people who belong to communities and those who don’t,” said Laurent Aubert, curator at the Department of Ethnomusicology, at the Ethnographic Museum in Geneva. For example, he said of a hypothetical singer with a Malian mother, a Senegalese father, living in Paris, and singing rap: “to which community does he belong and which community does his music refer to?”

One speaker argued that encouraging individual members of indigenous groups to exploit their own traditional cultural expressions was the best way to ensure they benefit from them.

“I don’t want to appear to be saying traditional communities should not benefit from their cultural expressions,” said Brian Wafawarowa, chair of African Publishers Network. “But I seriously believe one way to protect them is to take advantage of their knowledge and make sure they are the communities that stand at the forefront of exploiting that, and holding the copyright when the materials are exploited.”

Some indigenous communities have objected to ideas such as this because copyright affords only temporary protection, while they feel their culture should have perpetual protection. Wafawarowa also spoke strongly about the need to protect copyright in order to foster African industry at an International Chamber of Commerce event in October (IPW, Copyright Policy, 20 October 2010).

Another difficulty is the economic viability of traditional cultural expressions if they are recorded. Profit generation is one of the key reasons given for copyright protection, though it is not always the reason that indigenous communities find offensive.

Aubert, who records CDs of folk music as part of his work, said in a collection with 100 titles there is not a single CD that is self-sufficient in economic terms. Even when they are offered money it is not clear how collection can be enforced, he said, citing an example where a Congolese village was offered US $3,000 for the publishing rights to a song. It was decided the money would be given to a local hospital for use in the maternity ward, he said, but a year and a half after the CD containing the song came out the village is still waiting for its money.

Narby said he worked with an indigenous group in the Peruvian Amazon to publish a documentary about the group, with the promise that a percentage of money earned from the movie would go back to the community. But the filmmaker was unable to find a distributor for the film.

When money is distributed, he said, it is best to do so in direct communication with the community rather than through an organisation at the international level. In high-level organisations – where funding is often directed in response to plant knowledge used in pharmaceuticals – the funds often disappear, he said.

In the case of a separate audio recording Narby did in collaboration with the Peruvian tribe, the solution was to divide the money being made not for the people who ended up on the CD but for all the musicians who participated in the festival at which the CD was recorded. So, Narby said, 74 musicians got approximately US $30 for participation and “everyone ended up happy. I feel we wouldn’t have had such a tailor-made solution if it had gone through an entity,” Narby said.