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Libraries and Traditional Cultural Expressions Jonathan A. Franklin University of Washington School of Law iWorld October 28, 2008

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Why Should You Care? You are a culturally-sensitive free speech- loving 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?

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Overview 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?

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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

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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)

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Copyright & Cultural Heritage Content in the realm of copyright Oral traditions Customs Languages Music Dance Rituals Festivities

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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)

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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).Model Provisions

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Defining Indigenous Why limit it to indigenous peoples? Objective Historical continuity with pre-invasion or pre- colonial societies Subjective Self perception Group perception

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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

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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

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Concerns Non-indigenous profiting from indigenous traditions and creations Secularization of the sacred Misrepresentation of origin Misrepresentation of culture

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Carpet Case Images

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Fabric Case

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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?

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Problems Applying Copyright to Indigenous Works Authorship Originality Fixation Term of Protection Derivative Works Fair Use

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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?

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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.

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Political Speech

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Artistic Commentary

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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.

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Protocols Protocols for Native American Archival Materials http://www.firstarchivistscircle.org/_files/protocols_update/archive.protocols/ protocols.htmlhttp://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.

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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

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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.

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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

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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