Alliance Activities
in cra-briefings30 · October 15, 2005
The chair of the Indigenous People’s Caucus, Greg Young-Ing, attended WIPO’s Intergovernmental Committee on Traditional Knowledge, Genetic Resources and Folklore in Geneva, June 6th to 10th 2005. He took part in an Informal Indigenous caucus whose participants made a joint opening statement, and made a statement on behalf of the Alliance. Young-Ing’s intervention began by introducing the CRA/ADC and the work of the Indigenous Peoples’ Caucus.
…I would like to outline a basic model, concerning the use of TCEs [Traditional Cultural Expressions] that we have been developing out of our on-going exchange with Indigenous artists, which are also related to this discussion. Indigenous artists assert that they have inherited the TCEs developed by their ancestors as a sacred trust. And, further, that Indigenous peoples, and particularly Indigenous Artists, have the exclusive responsibility for the continuance of TCEs: both in their original forms and their contemporary innovative forms, based on principles of Customary Law. Indigenous Artists also assert that, based on Customary Law, they have
- a primary right to access and promote TCEs;
- an exclusive licence to promote and innovate TCEs as a cultural representation and expression of the identity of Indigenous peoples. And, further
- if TCEs are to be accessed and/or used by non–Indigenous peoples or corporations, it must be done so based on prior and informed consent (PIC) and an agreed to understanding of possible regulation and remuneration.
Indigenous artists are responsible to their collective Indigenous nations to respect Customary Law in the use of TCEs and TCE innovations. The Indigenous nation, as a collective, in turn grants the Indigenous artist a. permission to use and innovate TCEs – a concept which could be called "Indigenous National Artistic Licence". Therefore, through this relationship, Indigenous Artists have a moral right to use and innovate TCEs. But Non–Indigenous people and corporations do not have such a right. Without PRIOR INFORMED CONSENT, by what basis, other than misappropriation and inappropriate and immoral use of IPRs, should non–Indigenous people and corporations have such a right?
Nonetheless, TCEs are commonly misappropriated and misrepresented by non–Indigenous individuals and corporations. Consequently misappropriated TCEs acquired without PRIOR INFORMED CONSENT appear on an array of commercial products including: umbrellas, lampshades, books, films, posters alcohol labels, clothing, and sports team and other corporate logos – including the recently trademarked logo of the 2010 Olympic Games in Vancouver. These misappropriations are often offensive to Indigenous peoples and in many of these cases the TCE misappropriators have used the Intellectual Property Rights System to protect their misappropriations This results in the ridiculous situation where Indigenous peoples have lost access to and control over their own Traditional Knowledge and illustrate the reality that it is treated as if it is in the Public Domain.
The resolution of this general problem is indeed one of the key tasks before us in this forum and other international UN forums such as UNESCO, the CBD and the Working Group on Indigenous Populations, and the Permanent Forum on Indigenous Issues. However, in lieu of Indigenous Artists, and Artists in general, recent disappointment with negotiations in the UNESCO Convention on the Protection of Cultural Contents and Artistic Expression regarding of the protection of Artists rights, I would like to suggest that the WIPO IGC has done more advanced work toward a resolution of these problems and, more so than other fora, is well positioned to take decisive and progressive actions.
The following are excerpts from the Joint Statement of the Informal Indigenous Consultative Forum:
As always, we …thank the Secretariat for &hellipcontinuing efforts to brief and consult Indigenous Peoples’ representatives in our preparations is truly committed. We particularly appreciate their impartial facilitation of the informal consultative forum which occurred on June 5, 2006.
ENHANCED PARTICIPATORY MECHANISMS We would like congratulate and offer our thanks to the member states for the supporting the informal panel session this morning. It is our submission that such developments at the IGC are truly progressive and respectful of the imperative role that Indigenous Peoples play in the development of this Committees’ work. We do, however, believe it is important to state that this panel is not a substitute for more enhanced participation in the Sessions themselves within or prior to the discussions under each agenda item.
ESTABLISHMENT OF VOLUNTARY FUND We strongly support the establishment of a Voluntary Fund. Since the European Union’s proposal at the First Session of the IGC there has been a unanimous agreement–in–principle to establish such a Fund. We respectfully submit that the time has come.
REVISED PROVISIONS With regard to the Revised Provisions for the protection of traditional cultural expressions and traditional knowledge, the informal consultative forum participants would like to strongly encourage the further development of both sets of these provisions by this Committee, such as open–ended working groups or open–ended experts groups with the participation of Indigenous Peoples.
INDIGENOUS CUSTOMARY LAW Finally, we would like to make a substantive call for a prioritization of IGC’s work on the role of Indigenous customary law in protecting, preserving and maintaining Indigenous TCEs and TK. A study on the role of Indigenous customary law within the IP system was approved by the IGC at its Third Session and we have yet to seen any progress in this area. It is our submission that this work on Indigenous customary law is absolutely integral to the further developments of both the TCE and TK Provisions.