Libraries and Traditional
Cultural Expressions
Jonathan A. Franklin
University of Washington School of Law
iWorld – October 28, 2008
Why Should You Care?
• You are a culturally-sensitive free speechloving 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?
Overview
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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?
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
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)
Copyright & Cultural Heritage
• Content in the realm of copyright
– Oral traditions
– Customs
– Languages
– Music
– Dance
– Rituals
– Festivities
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)
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”).
Defining Indigenous
• Why limit it to indigenous peoples?
• Objective
– Historical continuity with pre-invasion or precolonial societies
• Subjective
– Self perception
– Group perception
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
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
Concerns
• Non-indigenous profiting from indigenous
traditions and creations
• Secularization of the sacred
• Misrepresentation of origin
• Misrepresentation of culture
Carpet Case Images
Fabric Case
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?
Problems Applying Copyright to
Indigenous Works
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Authorship
Originality
Fixation
Term of Protection
Derivative Works
Fair Use
Fair Use
• 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?
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.
Political Speech
Artistic Commentary
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.
Protocols
• Protocols for Native American Archival
Materials
•
http://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.
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
• 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.
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
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? - jafrank@u.washington.edu