INDIGENOUS WOMEN'S ART DESIGNS

A-Documents Related to Human Rights

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Universal Declaration of Human Rights

Art. 27 (1) : "Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits".
(2)"Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author".

These articles focus directly on intellectual, artistic and cultural fields.

These articles provide individual rights only.

International Convention on the Elimination of All Forms of Racial Discrimination

Art. 5: "In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake to prohibit and eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (...)
(d)Other civil rights, in particular:
    (v)The right to own property alone as well as in association with others.
(e)Economic, social and cultural rights, in particular:
    (vi)The right to equal participation in cultural activities".

These articles recognize that ownership can be enjoyed in association with others. Implicitly, ownership of intellectual property rights can be enjoyed in association.

These articles do not directly address particular needs of indigenous peoples or intellectual property issues.

The formulation of the article not explicit.

International Covenant on Economic, Social and Cultural Rights

Art. 15 (1): "The States Parties to the present Covenant recognize the right of everyone: c) To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
(2)The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.
(3)The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.
(4)The States Parties to the present Covenant recognize the benefits to be derived from the encouragement and development of international contacts and cooperation in the scientific and cultural fields."

Article 15 explicitly expresses that everyone has moral and material rights to their production, and at the same time, to promote cultural and scientific cooperation.

The States Parties' obligations are mentioned.

These articles provide individuals rights only. They do not directly address particular needs of indigenous peoples with respect to the protection of their cultural and scientific production.

B-Documents Related to Intellectual and Industrial Property

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Berne Convention for the Protection of Literary and Artistic Works (1886)

In general the Convention protects the author's rights (copyright) on their work. The protected works have to be fixed on material support. The term of copyright is the life of the author, and a period of fifty years following his/her death.

The Convention states that the author has exclusive rights on his/her work except if he/she gives or sells it.

The Convention only protects individual rights. Works which are not fixed on a material support (such as verbal expressions i.e., folk tales, songs, etc.) are not protected. The duration of the protection is limited.

Paris Convention for the Protection of Industrial Property (1883)

Authors of an industrial design can register it as a trademark. By doing so they acquire the exclusive use of it and any form of reproduction is then prohibited. The term of the trademark is generally limited to fifteen years.

The Convention gives the author the exclusive use of the trademark which identifies the author and guarantees that an objet is made by a particular community.

In the Convention, the duration of the protection is limited to 15 years but the States Parties can offer a longer period.

C-Documents Related to Indigenous Peoples' Rights

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Draft United Nations Declaration on the Rights of Indigenous Peoples

Art. 12: "Indigenous Peoples have the right to practise and revitalize their Cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artefacts, designs, ceremonies, technologies and visual and performing arts and literature, as well as the right to restitution of cultural, intellectual, religious and spiritual property taken without their free and informed consent or in violation of their laws, traditions and customs."
Art. 29(1): "Indigenous Peoples are entitled to the recognition of the full ownership, control and protection of their cultural and intellectual property."
(2): "They have the right to special measures to control, develop and protect their sciences, technologies and cultural manifestations, including human and other genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs and visual and performing arts."

The articles are very clear and specific. They answer the needs for particular protection of indigenous peoples' cultures and heritage.

It is only a draft declaration, which has not yet been adopted.
It is not a legally binding document. States have no obligations under this document.

Proposed American Declaration on the Rights of Indigenous Peoples

Art.7 (1):"Indigenous Peoples have the right to their cultural integrity, and archeological heritage, which are important both for their survival as well as for the identity of their members."
(2) "Indigenous Peoples are entitled to restitution in respect of the property of which they have been dispossessed, and where that is not possible, compensation on a basis not less favourable than the standard of international law."
(3) "The States shall recognize and respect indigenous ways of life, customs, traditions, forms of social, economic and political organization, institutions, practices, beliefs and values, use of dress, and languages."
Art. 20(1): "Indigenous Peoples have the right to the recognition and full ownership, control and protection of their cultural, artistic, spiritual, technological and scientific heritage, and legal protection for their intellectual property through trademarks, patents, copyright and other such procedures as established under domestic law; as well as to special measures to ensure them legal status and institutional capacity to develop, use, share, market and bequeath that heritage to future generations."
Art.20(2) "Indigenous peoples have the right to control, develop and protect their sciences and technologies, including their human and genetic resources in general, seed, medicine, knowledge of plant and animal life, original designs and procedure."
Art.20(3) "The States shall take appropriate measures to ensure participation of the Indigenous Peoples in the determination of the conditions for the utilization, both public and private, of the rights listed in the previous paragraphs 1. And 2."

The articles are very clear and specific. They answer the needs for particular protection of Indigenous Peoples cultures and heritage.

It is only a draft, a proposed declaration which had not been adopted yet.
It is not a legally binding document. The States have no obligations under that document.

Convention Concerning Indigenous and Tribal Peoples in Independent Countries (169)

Art. 4 (1)"Special measures shall be adopted as appropriate for safeguarding the persons, institutions, property, labour, cultures and environment of the peoples concerned."
(2) "Such special measures shall not be contrary to the freely-expressed wishes of the peoples concerned."
Art.5 "In applying the provisions of this Convention:
a) the social, cultural, religious and spiritual values and practice of these peoples shall be recognised and protected, and due account shall be taken of the nature of the problems which face them both as groups and as individuals;
Art.7(1) "The peoples concerned shall have the right to decide their own priorities for the process of development as it affects their lives, beliefs, institutions and spiritual well-being and the lands they occupy or otherwise use, and to exercise control, to the extent possible, over their own economic, social and cultural development."
(3) "Governments shall ensure that whenever appropriate, studies are carried out, in cooperation with the peoples concerned, to assess the social, spiritual, cultural and environmental impact on them of planned development activities. The results of the studies shall be considered as fundamental criteria for the implementation of these activities."
Art.23 (1) "Handicrafts, rural and community-based industries, and subsistence economy and traditional activities of the peoples concerned, such as hunting, fishing, trapping and gathering, shall be recognised as important factors in the maintenance of their cultures and in their economic self-reliance and development. Governments shall, with the participation of these people and whenever appropriate, ensure that these activities are strengthened and promoted."
(2)Upon the request of the peoples concerned, appropriate technical and financial assistance shall be provided wherever possible, taking into account the traditional technologies and cultural characteristics of these peoples, as well as the importance of sustainable and equitable development."

The articles are very clear and specific. They answer the needs for particular protection of indigenous peoples' cultures and heritage.

As with every other international human rights document, enforcement is difficult get. No effective measures have been taken to force a State to comply to the Convention.

D-Other Documents

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Agenda 21: Earth's Action Plan agreed uponduring the United Nations Conference on Environment and Development, in Rio de Janeiro in June 1992

Chapter 26 4) b: "(...)The following are some of the specific measures which Governments could take: (...) (b) "Adopt or strengthen appropriate policies and/or legal instruments that will protect indigenous intellectual and cultural property and the right to preserve customary and administrative systems and practices."

The purpose of chapter 26 is to recognize and strengthen the role of indigenous peoples and their communities. The text makes it very clear that indigenous people should actively participate in shaping national laws and policies in any process that affects them. Also, in order to achieve this objective, the States obligations mentioned are very specific.

This is a plan of action, so there is no sanction if a State does not act in conformance with it.

Convention on Biological Diversity

Art. 8) j: " Each Contracting Party shall, as far as possible and as appropriate:" (j) "Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices".

The formulation of art. 8)j is large enough to extend the protection to any artistic, folklore expressions any other form of knowledge.

Does not address the issue of the protection intellectual property in the perspective of art, but mainly in the framework of biodiversity.

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