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

by GRAIN | 14 Oct 1998
Part Two - see Part One here

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:

Culture in the EU and Indigenous People

The development of a legal concept of 'culture' is another vein which may be mined to produce legal arguments calculated to impact on the development of IP rights. The French objections to the inclusion of film in the GATT negotiations on the basis of the culture argument was a signal of the possible implications of the inclusion of culture in the legal construct of the EU [82] The ECJ accepted in the Cinetheque case [83] an argument based on culture in order to dilute the application of the Dassonville definition [84] of measures of equivalent effect to quantitative restrictions in the context of the free movement of goods. Article 128 of the Treaty on European Union recognises the need to promote culture, and contemplates co-operation with third countries and cultural exchanges. The culture of the Member States which were former colonial powers has inextricable connections with third countries and indigenous people. 1492, for example, is an important date in European history. It is not inconceivable that the legal protection of culture could relate to indigenous people around the globe and might therefore complement the development of indigenous rights, particularly as they might impact on IP rights. Thus IP rights might be tailored as appropriate to reflect indigenous interests.

Public Policy, Public Morality in the EU and Indigenous People

The possibility of a comprehensive definition of public policy or public morality emerging from a judicial or legislative desire to harmonise the terms (which occur in a number of contexts in the EU legal regime) might even be wide enough to allow recognition of the rights of indigenous people

in appropriate circumstances. The ECJ has refused, for example, to impose a common Euro-standard of public morality. [85] However, the Member States may be increasingly tempted to establish common standards, particularly in view of the need to regulate global industries. The nexus between IP and trade in goods and services is revealed by the fact that public policy and public morality operate explicitly as restrictions to the free movement of goods and services [86] and the attainment of IP rights. [87] Names or images could be denied registration, for example, on the grounds that they were offensive to indigenous people and thus inconsistent with the dictates of public policy, and the principles which the EU is bound to adhere to.

Indigenous Rights in the EU and IP: Conclusion

Thus indigenous rights development through the EU may either cut down the exercise of existing IP rights or give protection to rights which perhaps ought to have been protected by IP but were not. The protection of indigenous people may occur, directly or indirectly, through the recognition of legally enforceable obligations associated with fundamental rights, trade and the environment, the protection of culture and the development of a common approach to standards with regard to the interpretation of public policy and morality. The translation of emerging indigenous momentum into legal challenges, and the consequent influence on the development of IP norms, also imply that the general process of harmonisation in the EU will be found wanting if it fails to accommodate these new forces.

IP and the Digital Age: Kidnapped by Commerce

While the influence of indigenous people is a mere gentle western breeze rippling through the fields of IP, which will grow gradually but strongly, the digital age has hit like a tornado. The effects of communications technology has generated endless debate. Despite the assistance of thinkers from Marshall McLuhan [88] to Gates, [89] general contours loom dimly. The law trundles on, like one of Hannibals elephants, steered instead by the hand of commerce. Cyberspace and the digital age have received plenty of academic attention. [90] The EU is responding on a number of fronts. [91] The debate about IP holds some valuable lessons for the development of law in general, perhaps because of the contiguity of art and commerce. Copyright, in particular, has been assaulted by doubts. [92] This doubt is reflected in the spectrum of opinions as to appropriate responses.

Apart from the unique feature of communications, and convergence of the technologies, the associated dynamism has been the occasion of reassessment in other areas where the new technologies illuminate existing fault lines, such as in the areas of character merchandising, [93] unfair competition [94] and comparative advertising. [95]

The analogue-to-digital movement, the production of works in digital form, in new dematerialised combinations, with new modes of transmission, renders borders redundant and facilitates copying. Certain characteristics such as interactivity pose new problems. [96] It might be argued that a process of

simplification and clarification is needed. The balance between the rights of IP users, between functionality and fairness, lies at the heart of the debate. Some seem content with the thrust of the dominant force in IP development, [97] while others would argue for caution. [98] Some argue that the entire construct of IP cannot cope conceptually [99] or needs modification, [1] while others would focus on the need for direction. [2] Many would focus on particular aspects such as the geographical/jurisdictional/national problem. [3] A few argue that IP is under-protected.

The leviathan force of change, particularly in relation to copyright, apart from a growing awareness of its significance, [4] is associated with the protection and exploitation of mass commercial markets. The development of the arts has always been linked to social dynamics and the dominant societal forces. The golden age of English art, with the development of manuscript illumination, jewellery, tapestry and stone carving, was no less revolutionary in artistic and creative terms than the present era. Likewise, the role of a cohesive, unifying force (in this case the Church) behind the endeavour cannot be underestimated. [5] It becomes difficult not to agree with Laddie that copyright is overprotected, as a result of the commercial exploitation in the industrial context. [6] The Berne Convention Revision [7] is significant per se, but a striking testament to the overwhelming interests determining development in the digital domain and IP in general. This is in line with the message behind the Sino-U.S. Agreement, the lobbying on the Computer Software Directive [8] and the Term Directive. [9] Some fear that WTO is another trend in this direction. [10]

Kurtz underlines elements of this fear in relation to the NII. [11] Her fundamental argument is about access and education. She mourns the potential auto-focus on the economic exploitation of works: 'Information should not be available only to those who can pay for it'. Classic arguments in relation to the tension between access and reward become pronounced in relation to the Internet. [12] As the technologies expand and converge, the general issues of media ownership, control and competition also converge. The dangers of over-concentration of power also apply to the application of commercial leverage in relation to legislative development. Chomskys 'propaganda model' might find parallels in the commercially reflexive development of IP rights. [13] IP therefore seems to be predominantly a tool of the dominant commercial forces in Western society, largely untouched by other policy objectives apart from regional integrationism. The case for a more focused but inclusive approach to the development of IP, bearing in mind the historical origins of copyright, has been well made out recently by Power. [14]

Parallel Reform?

The danger of the possibility of future restitution claims associated with use of indigenous names, and increasing efforts to combat registration or challenge the continued use of names in an offensive manner, could be very

costly where brand names have been built up. The possibility of boycotts of goods with offensive names might also be a danger. So it is perhaps wise to look at the possibility of reform even from the perspective of commercial pragmatism. While this article will not suggest the exact mechanism of achieving those reforms, it will indicate some potential similarities that might render such reform, or at least consideration of the problems, viable. Potential parallels between the response to indigenous peoples approach to IP and the response to the challenge of the digital age, are arguably manifest in the underlying operational conception, the post-national imperative, the concepts of authorship and of sacredness, the protection of image and the question of the public domain.

Operational conception

The systems of indigenous knowledge ('IKS') and traditional ecological knowledge ('TEK'), and their contemporary manifestations in the Western environmental movement, are characterised by metaphors based on interconnectedness, classically the web. [15] The web metaphor is somewhat appropriate to the digital age of interconnected, multi-point access. [16] The contrast between the language of 'information superhighway' and 'web' is very revealing of alternative perceptions. Furthermore Kelly argues that

«The realm of the born-all that is nature-and the realm of the made-all that is humanly constructed-are becoming one. Machines are becoming biological and the biological is becoming engineered.» [17]

In his neo-biological, bionic world of 'vivisystems' he says that

«Vital, postindustrial paradigms are hidden in every jungly ant hill. The billion-footed beast of living bugs and weeds, and the aboriginal human cultures which have extracted meaning from this life, are worth protecting, if for no other reason than for the postmodern metaphors they still have not revealed.» [18]

One might see the Australian Aboriginal songlines as a metaphor for the information channels of the digital age. [19] The similarities between the underlying metaphors reveal a conceptual proximity that may be useful in the examination of potential legal solutions in the IP domain.


The analysis and evaluation of issues associated with IP in the digital era and IP in relation to indigenous people share the post-national factor. The effectiveness of national compartments has been increasingly reduced in the global village. Thus all solutions to IP problems will have to recognise the global dynamic. Likewise, the illusory nature and limitations of national boundaries have long been understood and experienced by indigenous people. Many artificial boundaries divide and separate them. [20] Thus global, post-national solutions are relevant to advocates of IP rights in the context of both the digital age and indigenous people.

Authorship, ownership and originality

The notion of authorship and the revisiting of it in the digital context has generated lively discussion. [21] The concept of authorship needs some revisiting, particularly in the context of copyright, but also in relation

to notions such as the person skilled in the art in complex areas in patent law, such as biotechnology and genetic engineering. [22] Cornish identifies some of the problems posed by digitisation in relation to copyright, and questions the viability of the concept of authorship. [23] Harmonisation of copyright has required a part-fusion of the alternative continental and common law notions of authorship. Joint authorship and computer-generated works point to the cracks in the aesthetic, autonomous construct of the author. Likewise, the individual nature of the concept of authorship, and the operational difficulties arising from the application of a theory of rational economic man to indigenous people, combined with the evidentiary difficulties associated with mystical and transgenerational origins of knowledge, renders it inappropriate for many indigenous scenarios. [24] Collective ownership under indigenous law conflicts with some central IP concepts. [25] Thus a common conceptual approach to the core notion of authorship and the nexus with ownership may be possible and desirable.

Linked to the question of authorship is the issue of originality and novelty. Indigenous people may find that commercial interests appropriate traditional art, designs, movement or knowledge of substances. Like-wise, in the context of copyright in particular, the new technologies have spawned a more direct current of more blatantly parasitic-artistic work which requires re-evaluations of contemporary IP protection, not just in the operational context but also conceptually. [26] Both areas would benefit from a rethink of the law.

Concepts of sacredness

The concept and language of sacredness will be relevant to those associated with IP rights in the digital age [27] in general, and those associated with IP rights for indigenous people. [28] The Columban copyright dispute was a dispute about property in a sacred book. [29] Nasr explains the link between conceptions of sacredness, in the great religious traditions of Hinduism, Buddhism, Judaism, Christianity and Islam, and conceptions of knowledge and philosophy. [30] The functioning of a multi-cultural state or a global market renders certain national legal principles associated with sacredness out-dated. Even on a crude utilitarian view, the functionality of markets rather than enlightened pluralism dictates awareness of alternative religious perspectives and conceptions of sacredness. The fatwa issued against Salman Rushdic over The Satanic Verses of 1989 emphasises the problems which may arise, where cultures can clash in the realm of art. [31] Digital technology accelerates the likelihood of conflict of the secular and the sacred, and within the idea of the sacred, alternative notions of sacredness. IP rights may be ineffectual, irrelevant or disregarded in such clashes.

Indigenous people may have alternative conceptions of sacredness. In the overall struggle for indigenous rights, the recognition and reclamation of religious sites is very significant. Many IP disputes associated with indigenous people arise from the desire to protect sacred things, as in the

Yumbulul case. [32] Apart from guarantees associated with freedom of speech, the content of material which is regarded as sacred would seem potentially to impose some restrictions on IP rights, particularly where the use of the material is calculated to cause offence. The point of solution to both problems may be in the zone of exclusions from registration or judicial recognition in relation to IP rights. This requires an approach which is less Euro-centric and Euro-Christian than hitherto.

Likewise, in relation to the great issues associated with the patentability of genetic and biotechnological processes, [33] there is a commonality of interest in ensuring a system which grows in a way that may be broadly acceptable to society in general. For example, in relation to patents, the indigenous conceptions of sacredness may be very useful contributions to the evolution of norms. Indeed, some see the need for a synthesis of approach, incorporating if not spearheaded by the indigenous approach. From under-protection to over- protection, it may even be argued that there have been, or are, deliberate attempts to construct quasi-sacred or market-rendered sacred names for commercial purposes. The movement from 'Prince' to an unnameable could be seen as the culmination of a process of attempting to create a secular tetragrammaton. [34]

Protection of image

Indigenous people are concerned about the commercial exploitation of their images, symbols or names. This may be addressed by the development of a concept of sacredness, or alternatively by the development of principles which limit their commercial exploitation. This, however, is not merely a problem associated with the indigenous sensitivity to the protection of image. Digitisation and the dematerialisation process, virtual reality, the development of three-dimensional technology and new editing techniques put the question of the ownership and treatment of image at the centre of commercial exploitation of IP, particularly in relation to posthumous use. This is particularly important in the area of character merchandising. Inappropriate use of images, names or symbols therefore may be undesirable from an IP perspective, for widely differing reasons.

Public domain

The digital era has focused attention on the role of the public domain and the values and norms that should inform legislative development of new technology. [35] Genuine access to legal protection for indigenous people is a crucial issue. Again, the tension between commercial exploitation and public access is clear. The public access argument clearly parallels indigenous arguments about community ownership of information.

European Union-Opportunity?

Thus the identification of common problems in ostensibly disparate areas, like the revealed rocks at low tide, may suggest the desirability of common solutions in the context of the development of IP within the EU The EU ultimately revolves around the single market, as the hub on which the other spokes turn. Harmonisation often requires rationalisation. Harmonisation in relation to IP is a sub-set of the formation of the single market and occurs

through the various regional and global trade institutions. [36] The 'specific subject-matter saga' [37] was an important conceptual clash of IP and free movement. As the contours of the landscape are defined by their gradual reconciliation, the relationship with other forces will become more immediate. IP will inevitably clash with indigenous rights in the legal forums of organisations such as the EU, unless a proactive response is made. The conceptual contiguity of the issues posed by this looming force and the contemporary reevaluation occasioned by the digital age suggest the desirability of some lateral thinking.

Some argue that the free movement principles provide a unique opportunity to solve the multi-dimensional problems associated with the Internet. [38] One of the emerging candidates, for example, as a guide to piecing the puzzle is the development of the notion of commercial communications'. [39] One of the great advantages of the EU is the possibility of development by legal design. A sensitivity to indigenous issues in the development of these principles may save a lot of problems in relation to IP The development of a common idea of public policy and public morality, of novelty and originality, might enable the influence of an indigenous-sensitive perspective. Furthermore, what might be termed 'the big stick' approach to IP may be less effective than its advocates hope, and be replaced by a more soft and subtle method. [40]


Native Americans were left in no doubt as to utility of the 'white mans law':

Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. [41]

Indigenous people might argue that commerce now gives an impetus which lawyers and law-makers will not ignore, whatever the justice of indigenous claims. While the titanic system of IP steams ahead, different drum-beats are coming gently across the water. The EU, which is regarded by some as the empire of empires, [42] might provide the opportunity for a retreat from insensitivity. Recent studies in the context of the link between trade liberalisation and the promotion of environmental policy conclude that the deeper integration of the EU, and the accompanied deeper trade liberalisation, facilitate environmentally friendly solutions in comparison with shallower trade organisations, refuting the claim by some that trade liberalisation is bad for the environment. [43] Indigenous people will have to be part of the solution, and will have to respond by engaging with the IP structures and institutions which exist. [44] A more inclusive IP regime will be more widely accepted and will defuse the arguments which will be put forward to qualify existing doctrines. Indigenous people know that the cure often comes from close to where the poison comes from, if not from the poison itself.

See references

Author: GRAIN
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