Transcript “Learning from Existing Evaluation Practices on the Impacts and Effects of Intellectual Property on Development” Geneva 6th/7th October Evaluation Section Internal Audit and Oversight Division (IAOD)World.

“Learning from Existing Evaluation
Practices on the Impacts and Effects of
Intellectual Property on Development”
Geneva
6th/7th October
2011
Evaluation Section Internal Audit and Oversight Division
(IAOD)World Intellectual Property Organization (WIPO)
EFFECTS OF WIPO’S CREATIVE
HERITAGE PROJECT ON THE WELFARE
OF THE MAASAI COMMUNITY
Eliamani Laltaika / Tanzania Intellectual Property
Network (TIP-Net)
Introduction
“Every one knows the Maasai” Thomas Spear (1993)
Semi nomadic pastoralists living in Southern Kenya and
Northern Tanzania
Have remained committed to their tradition for millennia
Their unique culture/ “heritage” has become highly
marketable
The Community recognizes the value (both economic
and intrinsic) of their Traditional Cultural Expressions
TCEs and traditional knowledge TK in general
The Maasai
Use of their TCEs outside traditional setting
Main thesis
Year 2006, Maasai of Laikipya Kenya approach WIPO
for assistance in protecting their cultural heritage
What assistance did WIPO provide?
How has that impacted the community?
What are the long term implications?
Does this assistance narrow the conceptual divide
between conventional IP and indigenous peoples’ and
local communities’ paradigms?
Conventional IP “individual rights” Indigenous People
“Communitarianism” or collective rights
WIPO’s Creative Heritage Project comes
in…
In response to the request by the Maasai (through an
NGO called Maasai Heritage Foundation MHF) WIPO’s
creative Heritage Project
Sponsored training of two members of the community to
study digital archival methods, documentation etc at
Duke University in the USA.
Provided the community with a digital camera, sound
recording equipments and a durable state-of-the-art
laptop computer to document their cultural heritage
(See WIPO Magazine Capacity-Building – Intellectual
Property and Traditional Knowledge September 2009)
Impact 1
Awareness raising on the
importance of TK and TCEs
beyond what the concerned
NGOs (even with the help of
their respective governments,
which is rare if ever happens)
could do for many years
Communities at the grassroots
know their rights in TK/TCEs
and are motivated to protect
them
Why such effectiveness in awareness
raising?
Inclusion of officials from government of Kenya in the
training “all-inclusive” approach
Community readiness to explore new ways of protecting
their heritage
Charismatic nature of the Maasai (and probably also the
UN and WIPO)
Curiosity and scepticism: how can that happen? Why
the Maasai? Aren't TCEs “public domain”? Hence
coverage in the media
Impact 2
IFAD’s sponsored project on cultural heritage in
Ngorongoro through the Maasai Indigenous Heartland
Organization (IHO) contains an IP component
Maasai Women Development Organization (MWEDO) to
establish a “Maasai brand” for authenticating genuine
products such as handicrafts made by Maasai women
Maasai Lodge in Laikipya Kenya
More importantly: fee for filming/taking photos in Maasai
traditional ceremonies such as eunoto as from 2010!
Long term effects
Songs, photos, folk stories etc in recorded/digitized
form…- increased vulnerability to misappropriation?
“Going High Tech”: is the community prepared for such
drastic changes in their TK/TCEs governance?
Who “owns” such IPRs and in which terms?
What is the role of customary law?
“Can culture be copyrighted?” Michael F. Brown Current
Anthropology Volume 39, Number 2, April 1998
Disparities: Indigenous Peoples’ paradigms vs.
Conventional IP Law
Some examples: Copyright versus
Indigenous Cultures
Originality: TCEs are not only passed from generation to generation but may
also be borrowed from a neighbouring community. For example, a Maasai
traditional song may contain “substantial copying” from the Samburu
Fixation: most common law jurisdictions require fixation in a tangible medium of
expression” as a prerequisite for copyright protection. Not only is it impossible
to fixate all TCEs but also unnecessary as they cease being a part of “cultural
heritage” passed from one generation to another through the word of mouth.
Term: Members of the Berne Union grant copyright for a fixed term of “life plus
50” and others “life+70” (e.g. the USA). While this time may seem adequate for
normal works of authorship, it is not so long for communities.
Sole Authorship: This is probably the main reason for inability of copyright law
to protect indigenous cultures. In many cases, the whole community considers
itself the author of their cultural expressions.
Copyright Exceptions/Fair Use: given the spiritual values of most TCEs and
somewhat extraordinary parameters created by indigenous customary laws,
the fair use doctrine hardly applies to TCEs.
“Searching within” for possible answers
1998 WIPO undertakes a historical “mission” to find out
IP Needs and Expectation of Traditional Knowledge
Holders, publishes a report in 2000
The report acknowledges inter alia that “IP is
evolutionary and adaptive…changes in economic, social
and cultural conditions require continuous appraisal of
the system and at times adjustment and expansion”
2000 WIPO’s GA establishes the intergovernmental
Committee on Intellectual Property and Genetic
Resources, Traditional Knowledge and Folklore (IGC)
IGC’s mandate
“The committee will during the next budgetary biennium
(2010/2011) and without prejudice to the work pursued in
other fora, continue its work and undertake text-based
negotiations with the objective of reaching agreement on
a text of an international legal instrument (or
instruments) which will ensure the effective protection of
GRs, TK and TCEs…”
Anticipated legal instrument(s) will be Sui generis taking
into consideration indigenous peoples collective rights
and other paradigms.
Key Lessons
1. As a result of WIPO’s work, governments in both
Kenya and Tanzania have realized the economic value
of TCEs and are willing to work with communities to
safeguard these rights
Income generating activities in Laikipya (Kenya) and
Ngorongoro (Tanzania) are connected to this awareness
of economic value of TCEs
2. Created IPRs particularly copyright has raised more
questions than answers and increases the conceptual
divide between conventional IP and indigenous heritage
Conclusion
WIPO to keep on keeping on the good work of the IGC
till the first international legal instrument(s) on TK/TCEs
comes to life
Engage representatives of local and indigenous
communities more closely/fully for “alternative views” on
TK/TCEs governance (including expansive interpretation
of texts)
Spearhead research in, and documentation of
CUSTOMARY LAW and PROTOCOLS related to
TK/TCEs governance (including ADR)
It IS possible!!!
Thank you for your attention
“Asanteni Sana”