Syllabus Topic
Option 4: Indigenous peoples
Contemporary issues concerning indigenous peoples
intellectual property rights.
Intellectual property rights are a vital mechanism for safeguarding the cultural heritage, traditional knowledge, and artistic expressions of Indigenous peoples. These rights play a crucial role in preventing cultural appropriation and ensuring that Indigenous communities retain control over the use and commercialisation of their intellectual and cultural assets.
LAKOTA PEOPLE: CASE STUDY
The Lakota people, like many Indigenous communities, have faced challenges in protecting their cultural heritage and intellectual property. One significant legal framework that addresses these issues is the Native American Grave Protection and Repatriation Act (NAGPRA) of 1900, which mandates the return of human remains, funeral objects, and sacred artifacts from museums and publicly funded agencies to the rightful descendants of earlier Native American civilizations. This law helps ensure that sacred cultural items are returned to their communities, respecting their ancestral rights.
However, issues surrounding the exploitation of Lakota culture persist. The Lakota have expressed frustration with cultural entrepreneurs who sought to profit from aspects of their heritage, such as traditional languages and customs.
An example of this issue is reflected in a 1998 NBC News article, "Lakota Elders Helped a White Man Preserve Their Language. Then He Tried to Sell It Back to Them." This case reveals how individuals have attempted to capitalize on the Native American languages, despite the communities’ efforts to preserve and protect them. While the media has played a crucial role in raising awareness about these issues, it has not yet led to any significant legal changes or protections for the Lakota language. This ongoing struggle highlights the need for stronger legal safeguards to protect the cultural and intellectual property of Indigenous communities.
AINU PEOPLE: CASE STUDY
In March 2021, the Japan Patent Office (JPO) rejected a trademark application for the name "AINU," filed by an individual from Shenzhen, China, for products such as smartphone cases and computer mice. This rejection, based on the concern that the name could easily be confused with that of the indigenous Ainu people, reflects growing recognition of the Ainu's cultural and intellectual property rights, particularly after the 2019 Ainu Cultural Promotion policies. The Ainu, indigenous to Hokkaido, Japan, criticized the attempt to commercialize their culture, highlighting concerns over cultural exploitation. Hiroshi Hirono, head of an association that advises on the use of traditional Ainu designs, stated that the application was an attempt to profit off their community and called for government intervention. The JPO’s decision emphasized that exclusive use of the trademark would harm public order and moral standards, ensuring that Ainu cultural heritage is protected from commercial appropriation.
ABORIGINAL AND TORRES STRAIT ISLANDER PEOPLES
Aboriginal and Torres Strait Islander Peoples have fundamental rights to maintain, control, protect, and develop their cultural heritage, traditional knowledge, and traditional cultural expressions. These rights are integral to self-determination, as affirmed by the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), specifically Article 31, which guarantees the protection of Indigenous cultural heritage and intellectual property. Indigenous Cultural and Intellectual Property (ICIP) encompasses a broad range of cultural expressions, including artistic works, scientific knowledge, and sacred sites, and extends to new cultural creations. CSIRO’s Indigenous Cultural and Intellectual Property Principles guide respectful and ethical engagement with Aboriginal and Torres Strait Islander peoples, ensuring they remain the primary guardians of their cultural heritage. These principles emphasize the importance of Indigenous-led decision-making, governance, and participation, safeguarding the integrity of their cultural knowledge. By aligning with ethical research standards and practices, the CSIRO supports the recognition and protection of ICIP, promoting collaborative, equitable research and engagement that respects the cultural and intellectual property rights of Aboriginal and Torres Strait Islander communities.
SOURCES
The Architectural League NY: The Lakota Nation and the Legacy of American Colonization
National Park Service US: Native American Graves Protection and Repatriation Act
NBC News: Lakota elders helped a white man preserve their language. Then he tried to sell it back to them.
Asia IP Law: Japan rejects bid from China to use “AINU” trademark for products
Hokkaido University: Overview of the Ainu Policy Promotion Act of 2019
UN: UNDRIP
Australian Government: Respectful use of Indigenous Knowledge
CSIRO: Indigenous Cultural and Intellectual Property Principles
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