I went to a fascinating lunchtime talk last Thursday given by Dr Jane Anderson, a legal anthropologist at NYU who specialises in investigating the relationship between intellectual property law and indigenous knowledges. In her work with Aboriginal communities in Australia, in particular with Aborginal artists, one of the key problems she came across was that current international intellectual property regimes fail to address the particular needs of indigenous peoples in relation to their cultural heritage materials. Where artefacts have been collected by colonial powers, or art has been photographed by Western tourists, or traditional songs have been written down by ethnographers (to name just a few examples of problematic encounters), current IPR regimes tend to assign copyright and ownership to the collectors and recorders rather than to the communities from which the materials originated. Such practices deny indigenous peoples any self-determination over the circulation and use of their heritage, and even where ownership over certain materials can be repatriated to their communities of origin, intellectual property law does not necessarily match up well with the contexts in which indigenous knowledges and materials are created and used. For example, within many indigenous communities there are items, traditions and songs that are explicitly gendered – however it is not possible to restrict access to materials by gender under IPR regimes.
To address some of these issues, Jane is collaborating with Associate Professor Kim Christen at Washington State University and Michael Ashley, Director of the Centre for Digital Archaeology at Berkley to develop a set of intellectual property licenses and labels that are more appropriate for use by indigenous, traditional and local communities. Inspired by the Creative Commons project, Local Contexts offers four Traditional Knowledge (TK) licenses, for use by communities who already own their content and wish to assign additional rules governing access, and thirteen TK labels, designed to tag content that is already considered to be in the “public domain”. The labels do not (cannot) impose any legal restrictions on the use and circulation of indigenous knowledge materials, but are instead intended as an “educational and informative strategy” which invite potential users to engage with the contexts in which traditional knowledge is created and shared. For example, they allow communities to highlight material is family- or community-specific, or gendered, or that should only be accessible to initiates, and to ask potential users to respect these traditional rules of access. The licenses and labels are currently being experimented with by communities who are engaged in managing their digital heritage via the Mukurtu content management system (CMS) – and what Jane has found is that communities are using the TK labels as a starting point from which to personalise the ways in which they wish others to engage with their digital heritage.
It was a great talk that sparked a lot of questions – not least how such a licensing system might deal with knowledge and practices that are contested or shared between different indigenous groups (as is the case with many of the dances and songs in the Congo Basin region where I work). Of course, an experiment like this will need to develop ways of dealing with the specificities of such cases as they arise and I will be very interested to continue to follow the development of both Mukurtu and Local Contexts as they are applied in practice. So far the principle users are indigenous peoples of North America and Australia and there is a clear bias towards technologically literate communities. However, as more and more regions of the world are opened up to the scrutiny of a global public hungry for glimpses of the “exotic”, the existence of an adaptable system for managing indigenous materials and knowledge that IPR regimes render into the public domain is likely to become increasingly pertinent even in less connected settings. It will be important, in these cases, not to repeat the mistakes of the past with regards to the appropriation of local heritage, and it is projects like these that may begin to provide a workable safeguard.