Indigenous Women’s Continental Network

Protecting Indigenous Women's Intellectual Property

Tools for thought and action with regard to protecting the traditional designs and patterns of indigenous women

Background

On a daily basis, Indigenous women in Latin America find, in craft markets, t-shirts made halfway around the world that reproduce their peoples’ traditional designs.

Last year, a famous New York fashion designer sent a crew to tour the Canadian Arctic to find "design ideas" to inspire her winter collection. When the Pauktuutit Association of Inuit Women found out, it immediately contacted the designer’s lawyers to make it clear that the designs of Inuit artists should not be copied or adapted, since they constitute their heritage.

In France, the head of a small business decided to give classes in making "Molas", the embroidery designs of the Kuna women of Panama. The business woman appropriated the Kuna women’s techniques and designs to launch her own line of clothing, as well as a specialized magazine to teach the French to reproduce traditional Panamanian embroidery.

Indigenous women who are struggling to overcome poverty are deeply concerned and upset to see "designers" steal their traditional designs and patterns. Not only are these designs and patterns one of their few sources of income, they also symbolize their cultural identity.

It is not surprising that the artistic heritage of indigenous peoples has always had its internal rules of protection (conditions in which a work of art can be reproduced or used). However, these rules are not well known, much less respected, by non-indigenous persons. Furthermore, these rules were conceived in a different social and political environment than the one that currently prevails.

International and national intellectual property regulations overlook indigenous standards, and downplay the collective rights at the heart of their concerns. In fact, the intellectual property rights that enjoy international recognition belong to persons, individuals or legal entities, not to communities or peoples. However, indigenous women individually create works of art that are drawn from a common collective heritage. The current system is unable to recognize or protect this individual and collective share, which in turn belongs a "group". Focused on commercial concerns, the current system is also unable to protect what is sacred and unmarketable. Nevertheless, the situation is evolving and avenues of research are opening up:

1. The research of Erica Daes, President of the UN working group on indigenous populations and Special Rapporteur of the human rights sub-commission on the heritage of indigenous peoples, lays the groundwork for a reexamination of the issue (See the following documents: E/CN.4/Sub.2/1993/28, E/CN.4/Sub.2/1994/31, E/CN.4/Sub.2/1995/26, E/CN.4/Sub.2/1996/22; The most recents are available on the UNHCHR web site



2. The participation of indigenous representatives at the various meetings to implement the Bio-diversity Convention makes it possible to ensure that the concerns of indigenous peoples are heard;



3. The creation, at the World Intellectual Property Organization, of a new division on the alternatives needed to adapt the current system to take into account traditional knowledge (Division of World Intellectual Property Issues), opens up a forum for debate;



4. The idea of a treaty that would deal specifically with indigenous peoples’ rights over intellectual property adds to this debate;



5. The new Panamanian Act protecting the cultural identity of indigenous peoples and recognizing the power of these peoples’ authorities to allow or refuse the use of their heritage is an interesting sui generis initiative;



6. The Pauktuutit Association of Inuit Women’s project to study the conditions for protecting the Amauti (the traditional garb of women in the Arctic), and particularly Inuit protection systems, is promising. It could be an essential contribution to concrete understanding of the issue;



7. Article 29 of the UN’s Draft Declaration on the Rights of Indigenous Peoples recognizes intellectual property rights, but the draft itself has encountered a number of difficulties in obtaining government approval;



8. Article 20 of the Draft Inter-American Declaration on the Rights of Indigenous Peoples/Populations could be a step forward, but there are still a number of problems with the draft overall.

There must be in-depth reform of the international intellectual property protection system in order to recognize the rights of indigenous peoples and local communities, including non-indigenous communities. It is a question of rights, a question of development and a question of social justice.

In the interim, until significant changes are made to the international system, partial protection can be obtained using trademarks and authentication certificates (for example, the "Igloo tag" that authenticates sculptures made by the Inuit artists of Canada). Other rough methods can also help curb the unauthorized use of indigenous peoples’ cultural heritage.

The idea of formulating guiding principles and a sample contract arose out of the Workshop on the Protection of Intellectual Property Applied to Designs, held in Ottawa in April 1999. Click here to consult the preparatory texts.

A work session was held in Panama with lawyers and members of indigenous women’s cooperatives and organizations to work out the ethical principles, the sample contract and the Panamanian Act. They are published here in the aim of fueling discussion among the various organizations, and are in no way seen as definitive documents (except the Act, of course).

Using the documents

1. The Guiding Principles: this document is first and foremost a tool for debate and reflection. Hopefully, organizations or communities will be able to use it to see how they can protect their designs and patterns. Rights and Democracy, and the Commercialization and Intellectual Property Commission of the Indigenous Women’s Continental Network would like to receive your comments and suggestions.



2. The sample contract will be sent out on demand as a PDF file or printed. Click here to order by email. Don't not forget to include you complete postal address if you order a printed copy. It is a set of 14 clauses that enable a cooperative or organization to protect their intellectual property of designs or other elements of indigenous cultural heritage during a commercial transaction. It also makes it possible to specify the conditions under which these elements can be used, and to set prices.



3. The text of Act 20 of the Republic of Panama: "Concerning the special system for registering the collective rights of indigenous peoples, for the protection and defense of their cultural identity and traditional knowledge, and setting out other provisions". This new Act (June 2000) was adopted through pressure by the indigenous organizations of Panama, and is aimed at protecting the distinctive elements of their cultures. The Act implicitly recognizes the collective rights and jurisdiction of each people’s indigenous authorities with regard to the protection of intellectual property. This sui generis Act benefited from the input of indigenous representatives and WIPO throughout the entire drafting process. It could be used as inspiration for those who want to work on formulating similar legislation in their countries.