Orthodox and Indigenous Intellectual Property Rights: Co-existential or in Contest for Superiority?

By 

Okpoko Orobosa and Ifeanyi Ogbodo

 

Introduction
The relationship between indigenous/traditional knowledge and intellectual property law is a complicated contemporary legal problem. Although intellectual property was fashioned during the age of industrialisation of the West and was subsequently developed in line with the needs of societies that are technologically advanced, the need for indigenous traditional knowledge systems protection has become heightened leading to demands for its protection as well as the recognition of its importance in cultural identities. Its importance has also been linked to such issues as peoples’ health, food security and affordable treatment.

Questions around indigenous knowledge protection present issues unlike any other that intellectual property law has had to consider. Indigenous peoples’ concerns include legal questions involving copyright, patents, trademarks, designs and/or confidential information. They also raise issues that are not always legal or commercial in nature and can include ethical, cultural, historical, political, religious/spiritual and moral dimensions. The problem however arises as to the relationship that exists between indigenous intellectual property and religion, the nature of folklores and other cultural emoluments which can be in nature of artistic works to patentable products of farmers in the arena of biodiversity.
The Nature of Indigenous Intellectual Property.

Indigenous Intellectual Property Right exists in cultural property such as artefacts, designs, works of literature, historical sites, artworks, ceremonies and performing arts. Through collective interactions with their environment over time, traditional peoples have applied their social capital in securing, exploiting, developing, and managing unique resources in a particular way thus creating indigenous knowledge as pertaining to such processes. Their unwritten knowledge preserved in oral traditions also spans medicine, biology, and ecology with great wealth-maximizing potential.

Intellectual property right grant to individuals exclusive control over some object (whether literary, mechanical or procedural), which allows the possessor to exclude others to control the output, and to establish a monopoly price within the limits that product demand will allow.  

The Evolution of Indigenous IPR
Intellectual protection can take two forms, positive and defensive. Positive protection involves providing rights to protection which empowers communities to promote their traditional knowledge, control its uses as well as the benefits that may accrue from its commercial exploitation. On the other hand, defensive protection is aimed at stopping the acquisition of intellectual property rights over traditional knowledge. Thus allowing for the protection of sacred cultural manifestation from registration as trademarks.
Indigenous intellectual property are innovations by community members within their traditional knowledge framework which have ancient roots and are often informal and oral in nature. 

The United Nations Declaration on the Rights of Indigenous Peoples and United Nations Convention on Biological Diversity signed at the Earth Summit in Rio de Janeiro in 1992 were birthed to secure these rights. Article 8(j) of United Nations Declaration on the Rights of Indigenous Peoples mandates that parties protect interests of local and indigenous communities, taking measures to 'respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for conservation and sustainable use of biological diversity.' Also, parties must 'promote wider application of indigenous communities' knowledge, innovations and practices relevant to sustainable use, with the approval of those communities.

Over the years, States have been faced with the difficulty of creating a blend between the local indigenous laws and cultural norms with a predominantly western legal system. This difficulty encountered has in most cases left indigenous people, communal and individual intellectual property rights with little or no protection.  This difficulty has led international bodies to see the need to address the issue and thus began the push by these bodies to see that there is better value and better protection given to these wealth of intangible cultural heritage.  However, before these international bodies took centre stage on the issue of protecting indigenous intellectual property rights, there has been a number of attempts by indigenous peoples in a number of conferences in various parts of the world to seek to protect indigenous intellectual property rights. In October, 1980, prior to the affirmation and protection of ceremonies and ceremonial knowledge as intellectual property by the UN General Assembly, indigenous cultural leaders met to issue declarations about protection of ceremonial knowledge.  Also, the first international congress of the International Society of Ethnobiology involving anthropologists, biologists, chemists, sociologists and indigenous peoples met at Belem, Brazil. They resolved that procedures must be developed to compensate native peoples for the utilization of their knowledge and their biological resources. The Kari-Oca Declaration and Indigenous Peoples Earth Charter, May 1992 sought to protect the usurping of traditional medicines and knowledge from indigenous peoples, etc.

 

Protection of Indigenous IPR under the Copyright Act in Nigeria
Indigenous IP are mostly in intangible form. They often exist in oral tradition passed down from one generation to another through stories, drama, rituals, songs, folklore and other forms of performances and intangible expressions of indigenous knowledge. This is at variance with the traditional requirement of expression of ideas in tangible form for copyright protection to be vested. Copyright in its traditional sense of the word, protects forms and not ideas. However, in recent times, a somewhat form of exception to this general rule requiring expressions in tangible form for copyright to subsist has been introduced. This ‘exception’ is referred to as Neighbouring Rights. This term was first used during the 1948 Brussels Diplomatic Conference for the Revision of the Berne Convention. Now better referred to as ‘Related Rights’, this include the rights of performers in their live performances and expressions of folklore.

In the past, performances were only accessible to an audience that was within the performer’s immediate stage area. His interest was easily protected under contract. However, in recent times, with the advent of technology, such performances could be recorded and broadcasted or communicated to a wider public beyond the performer’s control. Such recorded copies could also be re-recorded. Thus, it became pertinent to find a way to protect performers from this abuse of their intellectual work. Indigenous IP falls under this protection. Indigenous IP which involves performances in various forms are being exploited by persons from outside the community. These exploitations range from unsolicited and unauthorised photographs of such performances being taken by persons; unauthorised video recording of such performances, unauthorised sound recording of same, etc. Such unauthorised infringements of the performer’s right are actionable as a breach of statutory duty by the person entitled to the right.

Expressions of folklore are deemed to have sacred, cultural and social relevance and capable of providing economic gain. Folklore represents a key part of the cultural heritage of a nation, the dissemination of which may lead to improper exploitation. These improper exploitation of folklore is prejudicial to the cultural and economic interests of the nation. Expressions of folklore which are manifestations of intellectual creativity and genius deserve to be protected in a manner provided for intellectual productions.  Expressions of folklore guarantee moral and pecuniary interests for the originating communities. Folklore is at variance with traditional copyright as we know it. For instance, folklore is against individual ownership which is the fulcrum of traditional copyright. Also, traditional copyright canvasses copyright duration to be determinable whereas folklore believes in an indeterminate and perpetual duration. These lacunae in the traditional copyright framework, led to the formation of this special categories of rights.

Conclusion
Indigenous knowledge can no longer be considered a raw-resource from which others benefit. The search for appropriate modalities for the protection of indigenous or traditional knowledge is a subject of contemporary international law and policy discourse. As a primary mechanism for the allocation of rights over knowledge, Western or conventional intellectual property rights (IPRs) provide the conceptual platform in this ongoing inquiry. However, very serious concerns are raised in indigenous and scholarly circles about the suitability of conventional IPRs to the nature of traditional knowledge. There is almost a consensus that the inadequacy of conventional IPRs in relation to indigenous knowledge compels a look in the direction of a sui generis regime of rights for indigenous knowledge protection. An acceptable sui generis mechanism for the protection of local knowledge must be rooted in indigenous episteme. Western IPRs’ inability to address the epistemic dichotomy between Western and indigenous ways of knowing is at the root of its failure to meet indigenous peoples’ yearnings and aspirations for the preservation of their knowledge and its cultural integrity.

References
Arinze, F and Fitzgerald, M.L., (1998) “Pastoral Attention to African Traditional Religions (ATR)” in African Ecclesia Review (AFER), p3. See also, Pontifical Council for Interreligious Dialogue ‘Pastoral attention to African religions’ letter to the Episcopal conferences of Africa and Madagascar, Rome, 25 March 1988, Bulletin 1988/XXIII/2 para 1, http://www.afrikaworld.net/afrel/vatican.html (accessed 15 January 2018).
Charles H. Norchi, Policy Sciences, Vol. 33, No. 3/4, Social Capital as a Policy Resource (2000), Springer pp. 387-398 Accessed from http://www.jstor.org/stable/4532511 on February  14 2018.
Copyright Act, Cap. C28, Laws of the Federation of Nigeria, 2004.
Hadley, Marie (2009). "Lack of Political Will or Academic Inertia? - The need for non-legal responses to the issue of Indigenous art and copyright". Alternative Law Journal. Melbourne: Legal Service Bulletin Co-operative Ltd. 34 (3): 152–156.
Julayinbul, (1993) Rainforest Aboriginal Intellectual and Cultural Property Definitions, Ownership and Strategies for Protection. Rainforest Aboriginal Network. Cairns. Page 65. Accessed on the 16th January  2018.
Kwabena Nketia J.H.‘African Christian spirituality and African culture’ The World Missionary Conference Edinburgh (2010); Nyamnjoh F.B. & Fokwang J ‘Entertaining repression: Music and politics in post-colonial Cameroon’ (2005) 104 African Affairs 251-274.
Peter K. Y. £Traditional Knowledge, Intellectual Property and Indigenous Culture: An Introduction” Cardozo Journal of International and Comparative Law 11, (2003): 239-45.
UNESCO/WIPO Committee of Governmental Experts on the Intellectual Aspects of the Protection of Folklore. Copyright Bulletin, vol. xvi No. 4, 1982 p. 55.
WIPO Database of Indigenous Intellectual Property Codes, Guidelines and Practices. Archived 2 November 2007. Accessed on the 14 February  2018.
Working Group on Indigenous Populations, accepted by the United Nations General Assembly, Declaration on the Rights of Indigenous Peoples Archived 26 June 2015 at the Wayback Machine.; UN Headquarters; New York City (13 September 2007)

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