Libraries and Traditional Cultural Expressions Jonathan A.
Franklin University of Washington School of Law iWorld October 28,
2008
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Why Should You Care? You are a culturally-sensitive free
speech- loving librarian. A local group has asked you not to
circulate a particular issue of a popular journal because one of
the articles has sacred information that should not be seen by
non-initiates. What should you do?
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Overview Introduction What are traditional cultural
expressions? How do you define indigenous peoples? How does
copyright fit in? How about fair use? Where should I seek
guidance?
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Tangible Cultural Heritage Not talking about the following
categories Physical Artworks Objects of Cultural Significance
Architectural Structures Quantities of a Medical Substance Cultural
Spaces Real Property
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Intangible Cultural Heritage Traditional Knowledge (TK)
know-how (patent) Genetic Resources (GR) genetic material of actual
or potential value (often patent) Traditional Cultural Expressions
(TCE) expression (copyright)
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Copyright & Cultural Heritage Content in the realm of
copyright Oral traditions Customs Languages Music Dance Rituals
Festivities
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Relevant Organizations TK, TCEs, and GR are overseen by several
intergovernmental organizations World Intellectual Property
Organization (WIPO) Convention on Biological Diversity (CBD) World
Trade Organization (WTO)
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Traditional Cultural Expressions (or Expressions of Folklore)
TCE = traditional cultural expressions EoF = expressions of
folklore WIPO-UNESCO Model Provisions for National Laws on the
Protection of Expressions of Folklore Against Illicit Exploitation
and other Prejudicial Actions, 1982 (the Model Provisions).Model
Provisions
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Defining Indigenous Why limit it to indigenous peoples?
Objective Historical continuity with pre-invasion or pre- colonial
societies Subjective Self perception Group perception
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Historical Continuity Factors Occupation of ancestral lands, or
at least of part of them Common ancestry with the original
occupants of these lands Language Residence in certain parts of the
country, or in certain regions of the world
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Big Issues Current IP systems make it easy to misappropriate TK
TK as part of a development strategy Challenge of including
Indigenous Peoples in the decision-making process
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Concerns Non-indigenous profiting from indigenous traditions
and creations Secularization of the sacred Misrepresentation of
origin Misrepresentation of culture
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Carpet Case Images
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Fabric Case
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Hot Yoga Bikram yoga claimed a copyright in 26 postures and two
breathing exercises. Should a series of yoga poses be protectible
as a compilation or arrangement, even if the individual poses have
been known for thousands of years?
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Problems Applying Copyright to Indigenous Works Authorship
Originality Fixation Term of Protection Derivative Works Fair
Use
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Should Fair Use apply to secret communal knowledge? If so,
should Fair Use trump customary law? If not, is there a tension
with the First Amendment?
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Might not always be commercial A newspaper photographer
"violated and upset the Pueblo's balance of life" by taking
photographs of a ceremonial dance while flying at low altitude over
the Pueblo of Santo Domingo.
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Political Speech
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Artistic Commentary
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How do libraries fit in? We need: appropriate ways to interact
with indigenous populations. Issues of Access Involvement in
Librarianship Presence on Boards and Committees To understand the
perspective of these groups to better understand the works they
created in context.
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Protocols Protocols for Native American Archival Materials
http://www.firstarchivistscircle.org/_files/protocols_update/archive.protocols/
protocols.htmlhttp://www.firstarchivistscircle.org/_files/protocols_update/archive.protocols/
protocols.html Aboriginal and Torres Strait Islander Library and
Information Resources Network Protocols
http://www1.aiatsis.gov.au/atsilirn/protocols.atsilirn.asn.au/index.html
Protocols by nature are not prescriptive or definitive. There will
always be gaps.
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Secret or Sacred Materials We can and ought to demand
restricted access to some records. But in respect of any particular
item, it must be the indigenous people with authority in the
particular group who own the information who advise on research and
curatorial practices. Marcia Langton
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Example: Access to Spencer and Gillen, The Northern Tribes of
Central Australia (1904) disclosed secrets to uninitiated.
Copyright might not be held by the people. Develop a consultative
process. Determine appropriate policies Restricted access is one
method. Notification on the work is another.
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Additional Issues Offensive Content Appropriate handling does
not mean censorship. Sensitivity when creating displays and
publicity. Repatriating Archival Records Return original, request
permission to copy. Indigenous Databases
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The Big Picture Intangible cultural heritage is more than just
intellectual property. There are many ways to balance competing
concerns. They all start with education and communication. Thank
you. Questions? - [email protected]