EU, IP, Indigenous People and the Digital Age: Intersecting Circles? (PART ONE)

by GRAIN | 14 Oct 1998

TITLE: EU, IP, Indigenous People and the Digital Age: Intersecting Circles? AUTHOR: James Tunney PUBLICATION: European Intellectual Property Review DATE: September 1998 SOURCE: EIPR, Vol.20, Issue 9, Sweet & Maxwell Ltd, London URL:


JAMES TUNNEY James Tunney, Senior Lecturer in Law, University of Abertay, Dundee

«I thought finally that of all the nostalgias that haunt the human heart the greatest of them all for me, is an ever-lasting longing to bring what is youngest home to what is oldest in us all.» [1]

A Time for Change

The development of IP, in parallel with the growth of regional unions such as the EU, and global ones such as the World Trade Organization, is an important strand in the globalisation process. While communications and entertainment industries pulsate through the body of the global village, quieter but formidable forces are also stirring. Indigenous peoples have organised, mobilised, pressurised and achieved some political success, which will set the pendulum of historical experience on a return arc. [2] Paradoxically perhaps, the global village does not frighten the indigenous movement. 'As the Indian movement gathers momentum ... it will become apparent that not only will Indians survive the electronic world of Marshall McLuhan, they will thrive in it.' [3] The digital age poses some of the most immediate legal problems both for the EU and the system of IP in general. [4] Just as solutions in the IP domain are needed at the cutting edge of new technology, the momentum of the indigenous peoples movement will also expose the failings of orthodox IP It could be argued that solutions to IP problems associated with the oldest and the newest [5] are conceptually closer than might be thought, and that the convergence and confluence characteristic of the emerging political, economic, technological and legal landscapes creates opportunities for coherence. Unfortunately, however, conceptual clarity is arguably being sacrificed on the altar of commercial expediency, and constructed by a compartmentalisation of legal thinking. The dominance of short-term shaping forces is leading to a conceptual disintegration in IP This article argues that the EU has the opportunity to adopt a proactive approach to the coherent development of IP, by adopting a common approach which is capable of dealing with concerns associated with both indigenous people and the digital age, which focuses on underlying concepts rather than dominant socio-dynamic forces. [6]

IP and Indigenous People: Square Pegs and Round Holes

Indigenous people do not constitute an homogeneous group. They range in diversity from those tribes barely known to exist outside their community, to groups such as the Mashantucket Pequot, whose Foxwoods Casino alone (which was opened by the tribe in 1992), by 1994 had sales of over $600 million. [7] A similar diversity of views, philosophies and strategic

responses exists in relation to the assessment of the impact of trade on indigenous people. [8] The impact of IP on indigenous people shares some of the spectrum of responses. Some would reject and oppose the contemporary system of IP, some would ignore it, while others would accept it and seek reform or modification. The academic world also displays a healthy lack of uniformity of views. They range from the defence of the status quo, explicitly or implicitly, through those who would stress the opportunities of the linkage of trade and IP for indigenous people, [9] to others who would be more cautions. [10] It could be argued that a greater imaginative or proactive use of existing IP systems by indigenous people would address some of the problems, but that would be to ignore the socioeconomic realities for many indigenous groups. Whatever the strategic approach, the most sympathetic analysis of the IP system, from the perspective of indigenous people, would probably register it somewhere between insensitive and highly destructive.

The arguments against the western hegemony in the IP area have in modern times been led by the less developed countries ('LDCs'). It has long been argued that patents and trade marks in particular were against the interests of LDCs. [11] The development of the UNCTAD (United Nations Conference on Trade and Development) Draft Code on Technology Transfer [12] was seen to be a possible redress of imbalance. Some see this as having failed, [13] and that experience will have been noted by those advocating greater protection of indigenous peoples rights. The value of the LDC approach is further limited by the fact that indigenous people are not confined to these countries.

Practical Problems

The contemporary system of IP fails indigenous people very obviously in the operational context. [14] Thus for example, in relation to patents and plant breeders rights, the cost of filing and registration is prohibitive, as are the cost of infringement proceedings. In addition to this immediate and obvious practical problem, there are clear conceptual problems, which impact operationally. Posey puts it thus: 'IPR law provides indigenous peoples with few legal courses of action to assert ownership of knowledge because the law simply cannot accommodate complex non-Western systems of ownership, tenure, and access.' [15] Posey argues that the trans-generational, communal nature of indigenous knowledge is difficult for IP rights to accommodate. Confidential information may be invoked but it requires to be stretched artificially. [16] Appellations of origin and trade marks may help, but they again require money, time and vigilance. While some signals of greater engagement and involvement in the IP arena by indigenous people can be seen across the Atlantic and Pacific, there is still a long way to go.

Apart from the immediate practical and conceptual problems, there are factors which are more subtle, but equally significant, in relation to operational inappropriateness. The origin, attainment and quest for indigenous knowledge is different. It 'may come from ancestor spirits,

vision quests, or lineage groups that transmit it orally but not necessarily from a specific individual act of discovery'. [17] Although different, it is no less sophisticated in its fabric, thus:

«Scientists use the term indigenous knowledge systems (IKS) to describe the totality of information, practices, beliefs, and philosophy that is unique to each indigenous culture. Such a system may be commonly held within a community or indigenous society, or it may be known only to specialists, tribal elders or lineage groups. The term traditional ecological knowledge (TEK) describes those aspects of an indigenous knowledge system that are directly related to the management of and conservation of the environment.» [18]

In relation to TEK, Johnson explains that it is

«a body of knowledge built by a group of people through generations living in close contact with nature. It includes a system of classification, a set of empirical observations about the local environment, and a system of self-management that governs resource use.» [19]

The impracticality or impossibility of securing patents is therefore not only directly impeded by expense, but by different conceptions of knowledge, of the origin of knowledge and of ownership of that knowledge. The individual, autonomous inventor, creator or author contrasts with the generally communal and collective nature of the activity from an indigenous perspective. This has further implications for the attitude of indigenous people towards the commercial exploitation of knowledge. Copyright protection for indigenous people, which is not as inaccessible as other IP rights, may be hampered by problems associated with authorship and originality. [20]

Negative Impact of IP

The negative exclusionary effect of the IP system in relation to access for indigenous people is compounded by a positive exclusionary effect, where IP rights are secured in such a way as to exclude preexisting rights which indigenous people could have had. The practices of pharmaceutical companies and other companies in the area of bioprospecting are the most notorious examples. [21] There is also growing discontent with the appropriation of traditional songs, imagery and movement.

More subtly offensive practices permeate the market-place in relation to trade marks and business names. There has been a steady appropriation of cultural terms, both general and particular, noticeably from the native North American culture. [22] Mass media and Native American culture, as depicted by Hollywood, was instrumental in engendering certain stereotypical representations which were subsequently harnessed for their commercial potential. There has been, and continues to be a cavalier use of names associated with Native Americans. Cars to football teams have commercially exploited or utilised native names, connotations or pseudo-native references. [23] More directly offensive is the use of names of particular individuals such as Crazy Horse, for everything from restaurants and record shops, to hairdressers and beers. [24] The sense of appropriation and disrespect which sustain these commercial uses is thankfully at the tail of

the brutal histories of European colonialism, as education and mobilisation of Native Americans becomes enhanced.

The significance of the representation of names and image to indigenous peoples has long been appreciated in certain quarters in Europe. [25] Sir James Frazer, writing in 1922, identified the significance of names in his chapter on 'Tabooed Words'. He explained how names are a crucial part of 'savage' peoples being, often shrouded in secrecy, linked with sorcery and protection from it, sometimes permanent, sometimes conditional. This importance also applies to certain other relations, names of the dead, or certain classes of dead people, names of sovereigns or names of gods. There is something amiss with a system which allows commercialisation and trivalisation of names which are protected within communities closer to earlier and original conceptions. Frazers account is tinged with an awareness of the dangers of arrogance when dealing with ideas which might seem more basic than contemporary ones, and argues that we do well to see the inheritance.

«We stand upon the foundation reared by the generations that have gone before, and we can but dimly realise the painful and prolonged efforts which it has cost humanity to struggle up to the point, no very exalted one after all, which we have reached. Our gratitude is due to the name-less and forgotten toilers, whose patient thought and active exertions have largely made us what we are. The amount of new knowledge which one age, certainly which one man, can add to the common store is small, and it argues stupidity or dishonesty, besides ingratitude, to ignore the heap while vaunting the few grains which it may have been our privilege to add to it.» [26]

It is surely unjustifiable not to have learned the lesson by now, not so much in relation to ancestors, as in relation to contemporary groups which sustain similar belief patterns. [27] The insensivity adds momentum to extremism in that organisations such as the Zapatistas in Mexico use examples such as this as part of the argument that Western trading systems represent an assault on traditional cultures, justifying armed rebellion. As bioprospecting trawls the depths of indigenous knowledge, contemporary dance, world music and fashion are beginning to follow the example, with the probability of an equal lack of sensitivity to the cultural significance of what they may find. There is no incentive for proponents of the IP system to ignore the voice of indigenous people, and there may indeed be a great danger in doing so. Arguments such as this are not arguing for cultural relativism in law, but the necessity for understanding a plurality of perspectives in the design and evolution of a system of law which of its nature may impact on many people around the globe and relate to deep interests they possess. [28]

IP and Indigenous People: The Deeper Problems

The operational problems associated with IP whirl in a spiral towards the heart of some larger problem. The direction leads through the historical origins of mature legal systems. Legal systems were the essence of imperial

rule and the instruments of colonialism. [29] The legal claims to sovereignty over the lands of indigenous people were clear and compelling to most European theologians and jurists. [30] The human and environmental effects, from the earliest arrivals, have been recorded and widely discussed. [31] The general and particular trade patterns associated with colonial trade and the effect on indigenous people have been well documented. [32] Colonial legal systems alienated indigenous people. The imposed legal systems were used as instruments of imposition of alien rule, justifying the behaviour of European powers. The treatment and dispossession of indigenous people, the claim to sovereignty, ownership of land, the fruits of land and cultural property and the failure to respect treaties were not calculated to engender the respect for law which is presumed in the present European populace. Great debates still rage about the return of cultural treasures. [33] In addition to tangible properties, IP may be seen as inextricably linked in European empire and arguably a potent modern reinvention on colonialism. [34] The COICA Statement (Coordinating Body of Indigenous People of The Amazon Basin) of 1994, emphasises this colonial analysis. [35] Law therefore was a blunt and brutal instrument in the arsenal of colonial rule. IP was the product of the processes of the cultural infrastructure of the European colonial powers. The distance between likely acceptance or toleration by indigenous people would be widened further. The hot-house of the Renaissance and the Industrial Revolution origins of IP would be as far removed from the indigenous world as an iceberg in the Kalahari.

The operational, practical and immediate are the shallows where lawyers remain, often avoiding the deeper philosophical currents that might sweep them away. [36] Mainstream legal debate is also grappling with deeper paradigmatic flaws which impact on contemporary legal principles and their development. [37] The very notion of property itself, in its European incarnation, is an alien one developed by imperial and feudal forces which powered the systems which came to be so destructive for indigenous people. The conception of good and services that underpins the Treaty of Rome and development of GATT are inherently inappropriate to indigenous people in many ways. Goods may have a far richer role in the tapestry of life than they do in the Western view. [38] Thom White Wolf Fasset, for example, explained the significance of traditional Pomo basket in terms of the wider moral and cultural developments, where the basket was contextualised, full of meaning and purposeful in an holistic, educational sense in relation to medicines and the seasons. [39] While only an extreme or idealistic fringe envisage any turning back of the clock, that does not preclude the introduction of a modecum of sensitivity in particular circumstances, although they might be quite narrowly defined.

IP, as a body of law, peculiarly from a European industrial tradition, therefore is arguably inherently inappropriate or dysfunctional in relation

to the needs of indigenous people. For example, despite the fact that a celebrated decision in a copyright dispute was recorded in mid sixth-century Ireland, [40] subsequent imperial attitudes to orality [41] and the subjugation of non-imperial languages meant that decisions would never be recognized. The sweat of the brow that watered the soil in the garden where copyright flourished was only that of the colonial masters. The intellectual produce of those who toiled outside the citadels of political and legal power did not perturb the proponents of the noble construct of the copyright. A dysfunctional, non-inclusive system of IP undermines the strength of the case of those who advocate and support for it. [42]

But it is perhaps necessary to allude to some of the deeper forces which undermine the efficacy of the construct of IP law for indigenous community, in areas such as theology, physics, philosophy, conception of time, nature and justice. This merges not just as a faint , bitter voice from the dispossessed margin but from the perspectives of native academics who have climbed western scholastic ladders. Academics, particularly, from within the indigenous communities stress the basic difference of world views. [43] These renders Western concept of IP quite difficult. In particular the wider and alternative concepts of sacredness are ignored. The dominance of Euro-Christian fabric of law continues. The triangular link between a dominant religion, the structure of political power and the system of law seems to persist. [44]

But there are positive developments which, by suggesting the antithesis of long-held theses in Western paradigms, paved the way for the synthesis of perspectives. Indigenous views are gradually slipping into the Western mainstream, both from indigenous and Western scholars. Indigenous critiques are increasingly complementing critiques from orthodox academic world. The identification of the shortcoming of Western paradigms emerges directly from diverse other disciplines such as feminism, [45] pot-modernism, [46] physics, [47] and even from more inherently mechanistic subjects such as accountancy. [48] There are practical ramifications in areas which were perceived to be merely 'mechanistic', 'functional', or 'reductionist'. Thus in the latter area, for example, Birkin argues that contemporary mainstream techniques, values and ways of thinking are influenced by dualistic ontology unsuitable for environmental accounting and sustainable development. Paradigm shifts of this gentle should equip the Western world to understand and address some of the flaws in the operation of certain legal systems.

The Self-interest of Reflection

The solving of one riddle, may help in the solution of related ones. European IP floats on the currents of European intellectual tradition, and some of the implications of that tradition cannot be forgotten. [49] War in Europe, for example, has not only led to the origin of the EU experiment, but has caused a reassessment of the many facets of the systems that led to repeated and devastating conflict. Jung talks of the problem in relation to

the European intellectual tradition and its inability to deal with Eastern thought in his essay on 'Yoga and the West' [50] in a way which seems to mirror the arguments put forward from indigenous scholars. He wrote:

«It is said of the yogi that he can remove mountains, though it would be difficult to furnish any real proof of this. The power of the yogi operates within limits acceptable to his environment. The European, on the other hand, can blow up mountains, and the World War has given us a bitter foretaste of what he is capable of when free rein is given to an intellect that has grown estranged from human nature. As a European I cannot wish the European more 'control' and more power over the nature within and around us.»

and later:

«Western man has no need of more superiority over nature, whether inside or outside. He has both in almost devilish perfection. What he lacks is conscious recognition of his inferiority to the nature around and within him.» [51] Koestler traced the development of the 'fatal estrangement of the mystic and the savant' from the early 1600s particularly to the time of Kepler, not only in the area of astronomy, but in science in general. He points to the use of science to accelerate the destructive tendencies within the European experience. Many would disagree. [52] Some would disagree vehemently. [53] But Jung and Koestler are not alone as European thinkers who see the divorce between the 'spiritual' and Unscientific' as somewhat artificial and inevitably linked to certain strains of destructive tendencies. Although elements of the scientific community have marshalled their forces and are responding to the less sustainable arguments directed against them, [54] it would be unfortunate if the challenge posed by the more sustainable ones were ignored owing to disciplinary protectionism. IP is a fundamental part of the European commercial and industrial machine, whose destructive tendencies require that it be treated with respect and caution.

This debate fans the flames of contemporary arguments which are raging in the I. P. domain. Lawyers may dismiss the attempt to trace fault lines in Western thinking and method to Aristotle, Aquinas, Augustine, Bacon, Copernicus, Descartes, Galileo or Locke, or whoever else may be identified, as fruitless academic speculation. They may also seek to portray the IP system as a mere clockwork, mechanical device, ethically neutral and separate from the other forces which shape modern society. However, that would be to deny the discontent that developments in biotechnology and genetic engineering, such as cloning, are causing within certain circles in the Western world. These industries have their articulate advocates, and one need not be afraid that their views and insights will not be aired. [55] But coherent analysis which is brave enough to deal with the full spectrum of arguments and perspectives is desirable both in the public interest and ultimately for the functioning of market structures. Indigenous philosophy is relevant to this debate, providing signposts to the correction of some of

the defects of contemporary paradigms, [56] the formulation of new ones appropriate to the digital age [57] or perhaps even in the construct of thinking necessary to work in complex new technologies. [58] More particularly, addressing indigenous people's concerns about the impact of IP law could lead to the greater acceptability of the IP system, and to solutions to the complex challenges posed by new technologies.

EU, IP and Indigenous People: Legal Boomerangs

Coming back to dry land, it is axiomatic that potential IP rights are circumscribed by other rights and principles. Most of the statutory structures recognise competing interests. National IP rights are subject to limitations such as public policy under statute [59] and public interest at common law. [60] The development of regional communities and unions necessitates further circumscription in order to function. IP is protected as part of the single market. [61] However, the dictates of free movement of goods and services required the qualification of certain IP rights. The reconciliation of IP with other grundnorms of the single market such as free movement and competition law generated a substantial case law. The classic existence/exercise dichotomy was a necessary tool in the legal engineering of single market attainment, and it shows how IP is not immune to the impact of other areas of law. Indeed, the fact that IP has emerged early historically, as a candidate for international and national regulation like mushrooms in the morning, gives a signal to the inevitable subsequent qualification. [62] Competition law is likely to play a more formidable role in the qualification of the exercise of IP rights in the future. [63]

Within the EU, indigenous people (as far as they may be identified) will receive orthodox IP protection. Because of the ignorance or disregard of indigenous peoples concerns, it is probable that the crystallising indigenous rights will operate to restrict existing IP rights. Alternatively, they might operate to extend IP rights in new ways. The latter may look highly improbable, however, as IP has been almost irrevocably dominated by the forces which are seen to be hostile to the interests of indigenous people.

For indigenous peoples rights to limit the exercise of IP rights, it is necessary to identify whether indigenous people, from within or without the EU, may have enforceable rights. With the UN Draft Declaration on the Rights of Indigenous Peoples [64] the process of crystallisation of specific legal rights for indigenous people on the international plane is maturing, through a collection of binding and non-binding international agreements. This stream is increasingly being fed by a number of tributaries which should gather enough momentum to generate principles of international law. Decisions such as the Mabo case [65] in Australia indicate a willingness to re-examine doctrines which the common law utilised in a very harmful way against indigenous people. Blakeney notes various recent declarations which will inevitably form a head of pressure which lawyers and politicians should

not ignore. [64] But perennial problems in the area of human and cultural rights arise when crossing the gulf between aspiration and actuality. Advocates of the protection of indigenous rights are all too aware of the lack of specific enforceability. [67] The EU may provide a viable avenue of enforcement.

Fundamental Rights in the EU and Indigenous People

A combination of the principle of supremacy of Community law in Costa, [68] complemented by the principle of direct effects articulated in Van Gend en Loos [69] combined with the EU protection of fundamental rights suggests a possible path to the enforceability of rights. The ECJ has independently accepted that it has a duty to protect human rights as an inherent part of its competence and jurisdiction. Thus the decision of the ECJ in the Nold case is important, where it emphasised that:

As the Court has already stated, fundamental rights form an integral part of the general principles of law, the observance of which it ensures. In safeguarding these rights, the Court is bound to draw inspiration from constitutional traditions common to the Member States, and it cannot therefore uphold measures which are incompatible with fundamental rights recognized and protected by the Constitutions of those States. Similarly, international treaties for the protection of human rights on which the Member States have collaborated or of which they are signatories, can supply guidelines which should be followed within the framework of Community law. [70]

If the international development of indigenous rights continues, then it is likely to be recognised by the ECJ once a justiciable matter arises, and where appropriate locus stands requirements are met. Were the ECJ to recognise and enforce indigenous rights in the future, then they might operate to restrict the exercise of existing IP rights. Alternatively, inadequate IP protection may be compensated by the judicial or even legislative development of appropriate legal principles. Arguments fashioned from international conventions could be based on self determination, protection of biodiversity, cultural rights or religious freedom, for example. [71] IP or rights associated with IP could be relevant to a number of Articles of the Draft Declaration. [72] The European Convention on Human Rights might be particularly relevant. [73]

Parallel to the development of the ECJs jurisprudence in the area of fundamental rights, the European Commission is actively developing a policy on the external dimension of human rights. One of their priorities as expressed in a Communication on the External Dimension of Human Rights Policy [74] is the protection of indigenous people. This may also ultimately enhance the possibility of enforceable rights. It is clear that the Commission conceived indigenous rights as a purely external matter. The application of principles contained in the Draft Declaration into EU law might be politically explosive. Do the Basques, the Irish or the Scots constitute indigenous peoples? [75] There are clearly identifiable indigenous people within the EU, such as the Saami in Finland and Sweden,

who could not surely receive less protection than those outside. In appropriate cases, whether through directly or indirectly enforceable indigenous rights, there may be a possibility of the limitation of the exercise of IP rights.

The Environment and Trade in the EU and Indigenous People

Apart from the direct fundamental rights avenue, there is the possibility of reliance on international legal obligations in the context of environmental protection to qualify trade in goods and services. The protection of the environment is the legal darkroom from which the majority of indigenous rights are emerging. [76] This is particularly relevant where the international obligation has been implemented by a legislative measure within the EU [77] The linkage of trade and environmental considerations may create a niche for arguments associated with IP protection for indigenous people to emerge. [78] Pro-environmental legal obligations may be invoked, directly or indirectly, to seek to restrict certain IP rights or lead to the expansion of existing IP protection. This may generate alternative modes of protecting IP rights or rights associated with IP, in the context of trade. [79] The EU has been an important arena for the development of enforceable legal rights in relation to the environment. [80] This development may provide an additional distinct basis for protection of interests of indigenous people in a more general sense. [81]

Continued in Part Two

Author: GRAIN
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