intellectual property and the protection of indigenous culture in the

Transcription

INTELLECTUAL PROPERTY AND THE
PROTECTION OF INDIGENOUS CULTURE IN
THE UNITED STATES AND NEW
ZEALAND: AN EFFECTIVE SOLUTION
FOR INDIGENOUS COMMUNITIES?
Dinisha L. Fernando*
INTRODUCTION ..............................................
I. INDIGENOUS COMMUNITIES AND THE PROTECTION OF
149
THEIR CULTURE AND TRADITIONS ....................
THE RIGHTS OF THE MAORI IN NEW ZEALAND
151
158
III.
NATIONAL LAw ......................................
THE RIGHTS OF NATIVE AMERICANS IN UNITED
168
IV.
STATES NATIONAL LAw...............................
THE EFFECTIVENESS OF INTELLECTUAL PROPERTY IN
11.
PROTECTING INDIGENOUS CULTURAL PROPERTY....... .178
CONCLUSION.................................................
180
INTRODUCTION
[N]o matter how dire the circumstances of a people or culture may be
or become, there is a strong and indomitable human need to know
who we are and where we come from. The most rewarding aspect of
the Moriori renaissance is the hope and joy that it has given to so
many of our people who knew little or nothing of their Moriori
heritage.
Cultural identity and heritage are extremely important to communities around the world. Maori native Maui Solomon's words communicate how vital such attributes are to the essence of the New Zealand
* J.D. Candidate, Benjamin N. Cardozo School of Law, 2014; B.A., University of Rochester, 2010. I am grateful to my note advisor, Professor Mauro Bussani, for his guidance, advice,
and continual support during the writing and publication of this note. I would also like to
thank Professor Justin Hughes his guidance and expertise during the beginning stages of my
note. Last but not least, I would like to express my thanks to Ms. Manorie Mallikaratchy, who
introduced me to this vast international debate during my undergraduate years and sparked my
interest in its legal implications.
1 Maui Solomon, ProtectingMaori Heritage in New Zealand, in ART AND CULTURAL HERITAGE: LAw, POLICY, AND PRACTICE 352, 354 (Barbara T. Hoffman ed., 2006) [hereinafter
Heritage].
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Maori, an indigenous community. This idea of culture playing a necessary role in the lives of human beings is not a concept familiar to the
Maori culture only; rather, it is a universally relatable sentiment. Although the world becomes increasingly globalized, people of any community still often hold onto their culture and traditions as identifiers of
their "roots." Culture therefore retains its sacred role in the search for
man's identity. It is a commodity that communities strive to honor and
respect as they seek to preserve its influence in their lives.
The idea of losing something so closely tied to one's identity, or
the idea of it being defiled and misrepresented by outsiders, can be traumatic and deeply angering. For example, we Americans have witnessed
in our history the controversial action of the desecrating our national
flag. The drastic emotional effects of gestures such as flag burning have
prompted cases heard in the United States Supreme Court as well as
proposed amendments to the United States Constitution.2 Such displays elicit strong reactions from many citizens, who find their heritage
disrespected and their identity trampled upon. It is no question that a
flag is a strong cultural symbol and thus many are adamant about giving
such a symbol its due respect. Similarly, strong cultural and traditional
ties manifest themselves in a wide variety of symbols and objects to different communities around the globe.
This Note offers a study of the systems that the United States and
New Zealand have implemented to protect the cultural traditions and
symbols of two indigenous communities: the Native Americans and the
Maori, respectively. These two countries have tailored their national
policies and regulations to address specific indigenous communities on
their national territory. Therefore, they offer the opportunity to compare the effectiveness of their chosen methods of intellectual property
protection for their indigenous communities. Although intellectual
property protection covers a vast array of items such as plants and ancient methods, this Note will focus on traditional rituals and cultural
symbols (such as art) as these phenomena are easy to trace to the source
or creator. Thus, questions of original ownership are avoided and this
Note largely concerns items that fall solely (or for the most part) under
Traditional Cultural Expressions (hereinafter "TCEs").
See US v. Eichman, 496 U.S. 310 (1990); Street v. New York, 394 U.S. 576 (1990);
Texas v.Johnson, 491 U.S. 397 (1989). See also Flag-burningAmendment Fails by a Vote, CNN
.COM (June 28, 2006, 12:56 GMT), htrp://www.cnn.com/2006/POLITICS/06/27/flag.burn
ing/index.html (discussing failed proposed amendment to ban burning the American flag).
2
2013]
PROTECTION OF INDIGENOUS CUL TURE
151
This Note is broken into four parts: Part I will provide readers with
a background of the role of intellectual property in the protection of
indigenous cultural traditions. Part II will provide an overview of New
Zealand's efforts to protect the cultural symbols and traditions of the
Maori communities. Part III will discuss the efforts that the United
States has made to protect Native American cultural traditions and art
forms. Part IV will evaluate both countries' success in using intellectual
property to protect indigenous culture. Furthermore, it will provide an
analysis of the utility of intellectual property in the context of culture
and tradition. This Note concludes that the traditional Western framework of intellectual property is an inadequate vehicle to ensure indigenous cultural ownership. Not only is it inaccessible to a vast amount of
indigenous peoples, it is often too narrow to encompass what they value,
ill fitting to the paradigms of indigenous communities, and is inefficiently administered, failing to protect these communities from disrespectful and unsolicited use of their cultural identity. This is evident in
the dissatisfaction of indigenous groups and their resort to other methods of enforcement. Governments should therefore work more closely
with indigenous groups to expand legal enforcement beyond intellectual
property, considering creative solutions such as widely publicized seal
programs that grant indigenous groups more control over the use of
their cultural material; solutions that incorporate indigenous notions of
ownership and respectful use.
I.
INDIGENOUS COMMUNITIES AND THE PROTECTION OF THEIR
CULTURE AND TRADITIONS
For communities that harbor rich traditions and have developed
ties to their land long before being colonized and/or marginalized, culture and tradition become increasingly essential to maintain identity.
Such communities are comprised of "indigenous" groups of people, that
is, people who inhabit a country or region prior to another cultural
community entering the land and becoming the dominant population
through means such as conquest, occupation, or settlement.3 The
United Nations estimates that there are over 370 million indigenous
people who reside in 70 countries, who practice their own cultures that
3 U.N Permanent Forum on Indigenous Issues, Indigenous Peoples, Indigenous Voices
Factsheet, http://www.un.org/esalsocdev/unpfii/documents/5session-factsheetl.pdf (accessed
Nov. 2, 2012).
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are distinct from the dominant populations.' These communities include the Lakota in the United States, the Mayas in Guatemala, the
Saami of Northern Europe, and the Maori of New Zealand.5 Indigenous peoples distinguish themselves through their "unique languages,
knowledge systems and beliefs and ... invaluable knowledge of practices
for the sustainable management of natural resources." 6 They often create distinctive cultural symbols such as the Zia Pueblos' sun symbol 7 and
practice traditional rituals such as the Haka dance, which is performed
by the Maori.'
However, strangers, to the great distress of community members,
often exploit these cultural symbols.9 To add insult to injury, most of
these communities are minority citizens in their native countries and
thus have limited, if any, say over how the practices and symbols they
have carefully cultivated over years may be used by outsiders.'o Such
exploitation increases as technology rapidly evolves to make it easier for
people to utilize and spread cultural artifacts and traditions." It is
Id.
Id.
6 Id.
7 See generally Stephanie B. Turner, The Case ofthe Zia: Looking Beyond Trademark Law to
Protect Sacred Symboh, 11 CHI.-KENT J. INTELL. PROP. 116 (2012).
8 See Maori Haka, NEW ZEALAND VIDEOS, http://nationaltrust.org.nz/nz-mini-docos/ma4
5
ori-hakal (accessed Nov. 2, 2012) (video showing New Zealand rugby team, the All Blacks,
performing the Haka dance).
9 See generally Kim Griggs, Lego Site Irks Maori Sympathizer, WIRED.COM (Nov. 21, 2002),
http://www.wired.com/culture/lifestyle/news/2002/11/56451 (discussing Maori community
members' distress when the Lego Company created toys using Maori names). See also Turner,
supra note 8 (discussing outsider use of a Native American tribe's symbol against the tribe's
wishes).
10 Maui Solomon, Strengthening TraditionalKnowledge Systems and Customary Laws, in U.N.
Conference on Trade and Dev., Protectingand Promoting TraditionalKnowledge: Systems, Nat'l
Experiences andIntl Dimensions, 158, U.N. Doc. UNCTAD/DIC/TED/10 (2004) [hereinafter
U.N. Conference on Trade and Dev.] (indicating that the Maori community only takes up
fifteen percent of the population of New Zealand, and thus their concerns are often overridden
by the preferences of the majority). See also The American Indian andAlaska Native Population:
2010, UNITED STATES CENSUS BuREAU, http://www.census.gov/prod/cen2010/briefs/c2010br10.pdf (Jan. 2012) (indicating that "5.2 million people in the United States identified themselves as American Indian and Alaska Native, either alone or in combination with one or more
races.").
11 See Deidre Brown & George Nicholas, ProtectingIndigenous CulturalPropertyin the Age of
DigitalDemocracy: Institutional and Communal Responses to Canadian FirstNations and Maori
Heritage Claims, 17 J. MATERIAL CULTURE 307, 309 (2012).
2013]1
153
therefore suggested that special protections should be given to indige-
nous communities.12
In the international debate, such culture-defining symbols and traditions fall under the purview of intellectual property, particularly in the
subcategories of Traditional Knowledge and Genetic Resources (hereinafter "TKGR") and TCEs. 13 The World Intellectual Property Organization (hereinafter "WIPO") defines Traditional Knowledge (hereinafter
"TK") as including:
[K]now-how, skills, innovations, practices and learning that form part
of traditional knowledge systems, and knowledge embodying traditional lifestyles of indigenous and local communities, or contained in
codified knowledge systems passed between generations and continuously developed following any changes in the environment, geographical conditions and other factors. It is not limited to any specific
technical field, and may include agricultural, environmental and medicinal knowledge, and any traditional knowledge associated with cultural expressions and genetic resources.14
TCEs refer to expressions of the folklore that exist in communities.1 5
The WIPO defines TCEs as "productions consisting of characteristic
elements of the traditional artistic heritage developed and maintained by
a community of [name of country] or by individuals reflecting the traditional artistic expectation of such a community, in particular: verbal
expressions . .. musical expressions .
.
. expressions by actions .
.
. [and]
tangible expressions.""6 TCEs can thus be tangible or intangible.17
Some examples of TCEs include symbols, folk tales, folk dances, drawings, carvings, pottery, musical instruments, architectural forms, and
costumes. 18
Some overlap exists between these two definitions, which are indeed broadly defined. To add more distinction between the two terms,
12
Id
13 Heritage, supra note 1, at 354.
14 World Intell. Prop. Org., The Protection of Traditional Knowledge: Revised Objectives
and Principles, WIPO Doc. WIPO/GRTKF/IC/18/5, Annex. 6 (Jan. 10, 2011).
15 World Intell. Prop. Org., Intellectual Property and Traditional Cultural Expressions/
Folkore Booklet No. 1, 6, http://www.wipo.int/freepublications/en/tk/913/wipo-pub_913.pdf
(accessed Nov. 16, 2012).
17
Id.
Id.
18
Id.
16
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TK refers to the use or manifestation of the cultural knowledge in traditional technical know-how, ecological expertise, or medical knowledge.19 TCEs, on the other hand, encompass the expressions or
celebrations of folklore, such as chanting and unique designs. 2 0 However, in many cultures, one can find elements of both TK and TCEs in
an item. 2 1 For instance, a traditional tool may have TK in its use as well
as an intricate design that falls under the purview of TCE.2 2 While
these distinctions fit well in the Western paradigm of intellectual property, WIPO accepts the fact that, for many communities, TK and TCEs
are inseparable concepts and thus, the organization strives to recognize
and honor that connection as much as possible. 2 3 Indeed, for communities like the Maori whose strong ties to land, resources, and stories are
interconnected, these concepts are interlinked.2 4 New Zealand barrister
Maui Solomon, who represents Maori tribes and writes extensively on
protection of indigenous cultural heritage, lists the various tools over
which the Maori people need to regain control in order to move forward
as a strong community: "This includes our own hokopapa (genealogies)
songs, legends, designs, histories, sites of significance, fisheries, lands,
customs (many of which are now being 'refurbished'), artifacts, human
remains, and indeed all of our cultural and intellectual property." 25
As is evident, the laws and policies surrounding TKGR and TCEs
are extremely complex. Attempts to reconcile and find distinctions
within these broad all-encompassing terms lead to a slew of issues in
international intellectual property that extend beyond the scope of this
Note. While it is important to acknowledge that many of the cultural
symbols that are cherished by indigenous communities fall under both
TCE and TKGR, this Note will focus solely on the TCE aspects of
traditional and cultural expressions.
The issues of compensation and/or recognition for the communities from which these resources and this wealth of knowledge arise have
become more prevalent in international discussions over recent years. 2 6
19 World Intell. Prop. Org., Intellectual Propertyand TraditionalKnowledge Booklet No. 2, 4,
http://www.wipo.int/freepublicationslen/tk/920/wipo-pub 920.pdf (accessed Nov. 16, 2012).
20 Id
21 Id
22 Id. at 4-5.
23 Id
25 Id
26 Id
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International efforts by organizations such as WIPO have been tasked to
address the concerns of these communities through various mandates
and regulations for member states and/or communities. 2 7 However,
these mandates often provide insufficient assistance to these marginalized communities, and furthermore, their enforcement is limited.28 In
fact, legally binding international instruments with specific goals to protect indigenous and tribal peoples, such as the International Labor Organization (hereinafter "ILO") Convention 169, are few and far between
and are signed by very few countries, which further weakens their
reach.2 9
Furthermore, these forums only grant indigenous communities
"observer status. 3 o Observers cannot vote or draft treaties for consideration, which severely limits their power to propel constructive and effective change. 1 Cultural anthropologist and law professor Dr. Jane
Anderson, who is a consultant and advocate for intellectual property
and indigenous traditional local knowledge resources, argues that while
these international forums are effective as "key sites in the sense that
they demand particular representations of agents and agency," the fact
that indigenous people are only granted observer status "is indicative of
the extent of complications about political representation that exist for
this area of law and for its potential transformative processes of policy-
making."32
Therefore, the task falls in the hands of national governments to
empower their indigenous communities with concrete rights and adequate recognition for their creations and traditions. Countries have
often sought to address this need through implementation of national
intellectual property laws and regulations. However, questions arise
when the use of such traditions and art forms is limited. For instance,
how much limitation is too much limitation? Should use of such traditional symbols be restricted to the communities solely or should the use
Id.
Id
29 Id. at 357.
30 Jane E. Anderson, On Resolution: Intellectual Property and Indigenous Knowledge Disputes:
Prologue, 2(1) LANDSCAPES OF VIOLENCE Art. 4, 5 (2012).
3 1 Id.
32 Id
33 Susy Frankel, BrandingIndigenous Peoples' TraditionalKnowledge, in THE LAW OF REPU27
28
TATION AND
BRANDS
ter Branding].
IN THE ASIA PACIFIC
1, 2 (Andrew T. Kenyon et al. eds., 2012) [hereinaf-
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be monitored? What rights do third parties have to these symbols and
traditions? Is regulation through intellectual property law the most effective way of giving these communities a voice? How can domestic
efforts to police uses of TK effectively prevent abuses taking place
outside national borders?
The effectiveness of intellectual property law in affording protection to indigenous communities is a particularly relevant question because intellectual property laws were not originally designed to protect
these materials.3 4 Solomon has stated: "Over the past two decades or so,
the Western intellectual property rights legal system has been placed on
a direct collision course with the customary intellectual property rights
of indigenous peoples."3 5 The notion of intellectual property - the ownership of ideas and knowledge - is a Western paradigm that is not necessarily shared or incorporated into the paradigms of indigenous
communities.36 The protected community may not differentiate between tangible (such as cultural objects) and intangible (such as knowledge) phenomena.3 7 They may attribute certain symbols or rituals as
sacred, requiring reverence when interacting with such traditions. 3 8
Furthermore, the ownership they assert over a ritual or symbol may be
communal rather than individual, and the community may not distinguish between past or present.3 9 This naturally clashes with the Western
paradigm that is premised on the idea that there exists a clearly identifiable rights-bearer. Therefore, the protections guaranteed by intellectual
property law in a host nation may be unsatisfactory and inadequate to
the indigenous community's needs.
Because of this disparity between paradigms, the individualistic
Western model of intellectual property falls short in addressing the degree of damage that third-party use of cultural symbols and traditions
inflict upon indigenous communities. The way in which these symbols
and traditions are used by third parties is unique from other uses of
intellectual property. For example, there are many instances of manufacturers utilizing indigenous culture and tradition to communicate an
Id.
Susy Frankel, ThirdParty Trade Marks as a Violation ofIndigenous CulturalProperty, 8:1 J.
WORLD INTELL. PROP. 83, 86 (2005) [hereinafter Frankel] (quoting Maui Solomon; see Heri34
35
tage, supra note 2).
36
Branding, supra note 33.
37 Brown & Nicholas, supra note 11, at 309.
38
Id
3 9 Id
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157
appealing ethnic aura to advertise their products.4 0 Law professor Susy
Frankel, who has written extensively on this matter, explains: "because
Indigenous peoples' own identity is marketable, it is a kind of brand.
The attraction of the exotic, of the natural and previously 'undiscovered'
remedy, are examples of how Western consumers are attracted to the
products of traditional knowledge.""1 The connection between these
communities and the objects and traditions runs deep - "Traditional
knowledge is not only information to many indigenous peoples; it is a
part of their identity. In a non-legal sense of the concept of brand,
indigenous peoples are in part identifiable and, thus, branded by association with particular manifestations of their knowledge." 4 2
This connection between traditional knowledge and the community's identity intensifies the damage incurred when a third party infringes on indigenous traditional knowledge or manipulates it in a way
to fit the third party's needs. Scholars argue that the stakes are, in fact,
higher because of the economic, spiritual, and cultural loss that ensues
with such use, even when such use is for educational purposes or a
good-faith attempt to honor the community. 3 Dr. Deidre Brown (who
specializes in the study of religio-political Maori architecture from 18501950) and Professor George Nicholas (who is director and co-developer
of major international research initiative "Intellectual Property Issues in
Cultural Heritage: Theory, Practice and Policy") discuss the resulting
costs to the indigenous community:
[L]oss of access to ancestral knowledge, loss of control over proper
care of heritage, diminished respect for the sacred, commercialization of
cultural distinctiveness, uses of special or sacred symbols that may be
dangerous to the uninitiated, replacement of original tribally produced
work with reproductions, threats to authenticity of livelihood, among
other things. 4
Because of this overwhelming loss, two kinds of protection are usually sought by members: 1) protection against "offensive use of tradi40 Branding, supra note 33, at 3.
41 Id
Id
43 Brown & Nicholas, supra note 11, at 309.
42
(citing Hollowell J., Intellectual Property Protection and the Market in Alaska Native
in INDIGENOUS INTELLECTUAL PROPERTY RIGHTS: LEGAL OBSTACLES AND INNOVATIVE
44 Id
Arts,
55-98 (Riley M. ed., 2004); Nicholas G. and & Hollowell J., plenary address at the
Cultural Heritage & Indigenous Cultural & Intellectual Property Rights Conference, 5th World
Archaeological Congress Intercongress (June 8-10, 2006)).
SoLuTIoNs
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tional knowledge;" and 2) authority to the community to decide
whether consent may be given for such uses."5 There are also some
instances where benefit sharing might be arranged so that the third party
does not solely profit from the community's traditional knowledge. 6
II.
THE RIGHTS OF THE MAORI IN NEW ZEALAND NATIONAL LAW
The Maori people can trace their roots in New Zealand back to
between eight hundred to one thousand years ago.4 7 However, their
violent past with European settlers in the eighteenth century left them
largely decimated and written out of history until a cultural revival arose
thirty years ago.4" Today, the Maori people make up 15.4% of the population of New Zealand, (New Zealand has 4,433,000 inhabitants).49
Despite the turbulent nature of the relationship between the New Zealand government and the Maori, the government has worked with the
community in an attempt to afford them rights over their taonga, or
"treasure."o Taonga refers to a vast array of tangible and nontangible
objects that include "material and non-material heirlooms and sacred
places (wahi tapu), ancestral lore and genealogies (whakapapa)."1 Kaititiakitanga refers to obligatory guardianship of the Maori over people,
lands, villages, and taonga arising from their kin relationship to nature,
cultural works, language, identity, and culture among other phenomena.5 2 Thus, this obligation permeates both the physical and spiritual
aspects of Maori culture." This commitment to honoring such taonga
reaches back to the Treaty of Waitangi, which was signed in the nine45 Branding,supra note 33, at 3.
Id
Maui Solomon & Susan Thorpe, Taonga Moriori:RecordingandRevival 17 J. MATERIAL
CULTURE 245 (2012).
48 Id at 246.
49 Statistics NZ Releases Updated Maori Population Estimates, STATISTICS NEW ZEALAND
46
47
(Nov. 15, 2012), http://www.stats.govt.nzltools andservices/services/media-centreladditionalreleases/maori-population-estimates-15-nov-2012.aspx (finding 682,200 people in the country
who identify as Mlori, out of the total New Zealand population of 4,433,000 as of June 30,
2012).
50 Solomon & Thorpe, supra note 47, at 260.
51 Jessica Christine Lai, Maori Traditional Knowledge and the Wai 262 Report: A Coherent
Way Forward?, 6-7 (Int'l Commc'ns & Art Law Lucerne, Working Paper No. 03, 2012) [herein-
after TraditionalKnowledge].
52 Jessica Christine Lai, Maori TraditionalCulturalExpressions and the Wai 262 Report: Looking at the Details 6 (Int'l Commc'ns & Art Law Lucerne, Working Paper No. 02, 2012) [herein-
after TraditionalCulturalExpressions].
53 Id
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159
teenth century and permeates today in New Zealand's application of a
TRIPS-plus standard to many areas of intellectual property protection.5 4
This implies that the nation offers higher protection standards from the
Maori than required by the World Trade Organization."
The Treaty of Waitangi was signed in 1840 and is viewed as the
founding document codifying the relationship between the Maori and
the Crown.i It has constitutional significance to the nation. There
were two versions of the document: one written in the Maori language
and one written in English; both are given equal authority.5" While
neither document explicitly refers to intellectual property, the second
article of the English version states, "The Queen of England has acknowledged and guarantees to the chiefs, the tribes, and all the people
of New Zealand, the entire supremacy of their lands, of their settlements
and of their personal property." 9 The Maori version of the document
refers to Maori authority over taonga and thus protection is deemed to
extend to such phenomena. 60 This language is commonly understood
to confer intellectual property rights to the Maori 6t and establish a partnership in governance of Maori cultural heritage, values, and traditions.6 2 However, conflict continued between the Maori and the
government after the treaty was signed and thus the rights were quickly
overlooked.
A surge of protests over broken treaty promises occurred in the
1970s, leading to the passage of the Treaty of Waitangi Act in 1975."
This act created a Waitangi Tribunal that would investigate claims regarding the Crown's breach of the 1840 treaty.6 5 Upon reaching a deci54 Frankel, supra note 35, at 86.
55 Id.
56 Id
57 Id.
58 Id
59 Id.
60
Jd
61 Id. at 87.
62 Bradford W. Morse, Indigenous Human Rights and Knowledge in Archives, Museums, and
Libraries: Some International Perspectives with Specific Reference to New Zealand and Canada,
12(2) ARCHIVAL Sci.113, 122 (2011).
63 Maui Solomon, Intellectual PropertyRights and Indigenous Peoples' Rights and Responsibiliin INDIGENOUS INTELLECTUAL PROPERTY RIGHTS: LEGAL OBSTACLES AND INNOVATIVE
ties,
SOLUTIONS 221, 228 (Mary Riley ed., 2004) [hereinafter INDIGENOUS INTELLECTUAL PROPERTY RIGHTS].
64 Id
65 Treaty of Waitangi Act 1975, preamble (N.Z.).
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sion, the Tribunal would provide policymakers with directions regarding
the practical application of treaty principles, pointing out where certain
actions or policies may be inconsistent with those principles.6 6 Two
years later, the disparities between the two linguistic versions of the
1840 treaty were addressed in New Zealand Maori Council v. AttorneyGeneral and it was confirmed that the "focus is on the spirit rather than
the letter of the Treaty, and on the adherence to the principles rather
than the terms of the Treaty," and thus, it was determined that the
overarching purpose was for the two parties to work as partners. The
Tribunal continues to hear claims today, and its recommendations to
the government have led to significant progress for the Maori, who take
an active role in reasserting their rights. 8 Some of these recovered rights
include "a small measure of control and ownership over resources, including broadcasting rights for promotion of the Maori language; some
control of fisheries, land, forests and sacred sites (waahi tapu), and cash
settlements."6 9
Despite these small successes, the Tribunal, which is often the only
resource available to the Maori for protection, is criticized for its slow
processing time of claims. 70 This limits the Maori's ability to proactively prevent harm. Furthermore, deliberate comments by ministers of
the Crown about their disregard for Tribunal recommendations lessens
the Maori's faith in the Tribunal's power, which is ultimately nonbinding on the government.7 ' Therefore, the Tribunal, while a helpful resource, does not seem to solve the problems of the Maori in a
satisfactory manner.
In more recent years, the New Zealand government has turned to
trademark protection in their efforts to protect Maori cultural symbols.
The Maori currently manage and run a certification mark 72 called the
"Toi Iho" mark, which applies to their native arts and crafts.7 3 Many
TraditionalKnowledge, supra note 51, at 6.
Morse, supra note 62, at 122 (quoting New Zealand Maori Council v Attorney-General
[1987] 1 NZLR 641, p. 62).
68 U.N. Conference on Trade and Dev., supra note 10, at 157-58.
69 Id.
66
67
70
Id
Id. at 158.
Trade Marks Act 2002, Section 5(1), (N.Z.) states: "A certification mark is a sign certifying that the goods or services in respect of which it is used are of a particular origin, material,
mode of manufacture, quality, accuracy, performance, or other characteristic."
73 Branding, supra note 33, at 8.
71
72
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161
Maori see this as a vast improvement from previous times, when a government organization administered the mark.7 4
The body of intellectual property law that gives the most discretion
to the Maori over their cultural symbols is the Trade Marks Act of
2002." The statute has a provision that the "Commissioner must not
register as a trade mark or part of a trade mark any matter - the use or
registration of which would, in the opinion of the Commissioner, be
likely to offend a significant section of the community, including Maori."' 6 This "likelihood of offensiveness" standard is much lower than
the usual statutory requirement of "scandalous matter" or "offence to
morality."7 7 Furthermore, the people who are "culturally aggrieved"
(and thus the Maori) are given standing to apply to declare registration
of a mark invalid7 8 on the basis that it is likely to offend a significant
section of the community.7 9 The Commissioner of Trade Marks must
appoint an Advisory Committee to "advise the Commissioner whether
the proposed use or registration of a trade mark that is, or appears to be,
a derivative of a Maori sign, including text or imagery, is, or is likely to
be, offensive to Maori."8 0 Each member of this committee must have
knowledge of the Maori worldview, protocol, and culture.81 Although
the Commissioner is not required to follow the committee's recommendations, he or she is required to issue explanations for his or her decisions when there has been opposition to the mark's registration and
upon request.8 2 The statute maintains the national policy of barring
registration of common usage words and names that have geographic
significance. However, such names that overcome this bar and thus
could qualify to become trademarks may still be refused registration if
they are considered offensive to the Maori. 3
Despite the seemingly wide berth given to the Maori heritage with
regard to trademark registration, the act naturally protects Maori culture
74
Id.
75 Frankel, supra note 35, at 83.
76
Trade Marks Act 2002, Section 17(1)(c), (N.Z.).
77 Frankel, supra note 35, at 87, 90.
78
Trade Marks Act 2002, Section 73, (N.Z.).
80
Id. (quoting statute s178).
81 Id. (quoting statute s179 (2)).
82
83
Id. at 93.
Id. at 87.
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solely in the context of commercial branding.84 Thus, its purview falls
short of giving the community protection guaranteed through other
forms of intellectual property law - a deficiency of which the Maori are
well aware." Furthermore, it is questionable whether the threshold of
offensiveness offers satisfactory protection against unsavory trademarks.
Professors Brown and Nicholas point out that the government's threshold of offensiveness is much higher and therefore more forgiving than a
threshold for inappropriateness. 6 However, most of the concerns of the
Maori regard the inappropriateness of third party actions - community
members do not necessarily want to prohibit use of a mark, they want a
mechanism for outsiders to acquire informed consent from the Maori
community to ensure that culturally sensitive symbols and traditions
will be used in a tasteful manner. 7
In the past decade, Maori symbols have gained popularity as an
indicator of New Zealand's overall culture and have become sought-after
marketing devices.8" Not all of these marketing techniques fall under
the purview of trademark. As Frankel explains: "The real difficulty
arises .
.
. when business [sic] are not using the traditional knowledge as
a trade mark, but are nevertheless using traditional knowledge inappropriately or offensively."8 9 A recent example of such use involved paper
tray mat created by McDonald's.90 On this mat, McDonald's set out to
display images of various New Zealand icons, and one of the icons they
used was a heitiki.9 ' The heitiki is a pendant made of greenstone that
personifies human ancestors, and thus it was found to be inappropriate
by Maori." A Maori community member found it hard to articulate
the offensive feelings but stated: "it could be likened to having a picture
of the person on a doormat and having all manner of people scuffing
84 Trademark Definition, BLACK'S LAw DicTIONARY (9th ed. 2009), (defines Trademark as
"A word, phrase, logo, or other graphic symbol used by a manufacturer or seller to distinguish its
product or products from those of others. The main purpose of a trademark is to designate the
source of goods or services.").
85
Frankel, supra note 36, at 92. See also Time to Move Beyond Grievance in Treaty Relation-
ship, Tribunal Says, WAITANGI TRIBUNAL, http://www.waitangi-tribunal.govt.nz/news/medial
wai262.asp (accessed Nov. 2, 2012).
86 Brown, supra note 11, at 312-13.
Heritage, supra note 1, at 359.
89 Branding, supra note 33, at 10-11.
90 Id. at 11.
91 Id
92 Id
88
2013]
PROTECTION OF INDIGENOUS CULTURE
163
and wiping their dirty shoes all over the mat."93 This depiction on the
mat, which did not attempt to copy an actual heitiki, elicited a strong
emotional response from the speaker, and she further clarified that had
the image been a faithful reproduction of a real-life heitiki, "it would be
the equivalent of having the picture of someone dear to me or someone
whom I recognise as a person of great mana (prestige) on the
doormat."'
Another use of Maori culture in advertising occurred when Lego (a
toy company) released its new range of Bionicle action figures, using
Maori words in the story line of the characters." Maui Solomon, who
represented three tribes in a claim against the company, explained:
"There had been no consultation, no prior informed consent. And it's a
trivialization, especially when you are using names like Tohunga (Maori
for priest). So there are cultural and moral issues."9 6 Therefore, he
deemed it an "unauthorized" and "inappropriate" use of Maori traditional names and language.9 7 However, he also explained that the Maori are not asking for a complete bar use of such words. Rather, he
found it to be "a question of respect and following a proper process."99
Although Lego agreed not to add any more Maori names to their Bionicle line, its continued use of the initial Maori words still angers Maori
community members.'
One member of the community categorizes
Lego's use as "the ongoing story of western domination.""0 '
The negative response from the community has been manifested in
their angry postings on unsolicited user websites1 0 2 and in their letters to
companies who engage in inappropriate use. 10 3 One such letter was
written to the Ford Motor Company, which used the Moko (a Maori
series of facial tattoos which are believed to offer protection from illness
or misfortune as well as indicate a member's rank, status, or membership to the group) to contribute to the "fierce" image of their Hot Rod
93 Id
94
Id
95
Griggs, supra note 9.
Id
Id
96
97
98 Id
99 Id
100 Id
101 Id
102
Id
CARDOZO PUB. LAW POLICY & ETHICS
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[
12:149
[Vol.
trucks."o The community member described the "widespread use of
Maori images in pop culture" to be "watering down the core values of
the Maori moko" and "making it less unique, and more commercial,
but mostly, [the moko] loses its 'ihi' or natural identifying force. It is
seen as a commodity and not an identifying force, which a portion of it
traditionally was."11 5 The Moko is certainly a formidable image and has
been used to promote other products such as food and watches.10 6
However, to the Maori, it is a deep tradition that involves many years of
careful carving into the skin with a bone chisel; a source that tells the
story of its wearer. 1 7 Maui Solomon explains:
How do you think we feel today when we see those designs as 'an
identifying form' on people who know nothing about it? We don't
receive any benefit from that at all, only hurt and pain. It doesn't
respect our ancestors. It's like asking you to conduct a large press
interview, but wear a Swatch branded hat and a Mickey Mouse watch
from Disneyland. Would you seriously allow yourself to be repre-
sented that way?1 o
A recent and particularly important claim to the Waitangi Tribunal, the Wai 262 Cultural Agreement' 0 9 was filed in 1991 by six tribes
on behalf of the Maori, challenging "the right of the Crown to make
decisions and set policies that will affect Maori interests in their culture. 110 The tribunal, after investigation, delivered their report to the
government on July 2, 2011,"' labeled Ko Aotearoa Tenei.1 1 2 Barrister
Maui Solomon, representing three of these tribes in the claim, describes
the complaint as being concerned with "ensuring that appropriate recognition, protection, and provision is made for Maori rights in relation to
104
105
106
107
108
Id
Id
Id.
Id
Id
109 Official Flora and Faunaand CulturalIntellectual Property Claim, WAITANGI TRIBUNAL,
http://www.waitangi-tribunal.govt.nz/doclibrary/public/wai262/SOUJWai262SOI(doc2.314)
small.pdf (accessed Nov. 2, 2012) [hereinafter Property Claim].
I10 TraditionalKnowledge,supra note 51, at 4.
III Id.
112 Ko Aotearoa Tenei: A Report into Claims ConcerningNew ZealandLaw and PolityAffecting
Maori Culture and Identity, WAITANGI TRIBUNAL, http://www.waitangi-tribunal.govt. nzlscripts/
reports/reports/262/FO461D82-FC25-42BA-BEB4-0DC9857FA909.pdf (accessed Nov. 2,
2012) [hereinafter Ko Aotearoa Tened.
2013]
165
indigenous flora and fauna, and all knowledge and intellectual property
rights that flow from that relationship." 13 This claim extends to symbols as well, the Maori question the effectiveness of New Zealand's Intellectual Property system and the protection given to their symbols and
cultural objects; including the effectiveness of Copyright Act of 1994
and the Trade Marks Act of 2002." Indeed, Professor Frankel, who is
an advisor to the Waitangi Tribunal on intellectual property issues relating to that claim, states: "New Zealand already has trademark law which
take account of some Maori interests. If New Zealand law, in the future, creates greater protection of Maori interests in intellectual property
or related laws, New Zealand law will be quite different from that of the
United Kingdom or Australia.""' 5 The Maori have been particularly
disheartened by the fact that they received no funding from the Crown
for research and administration costs despite the fact that this claim is
considered to be one of the most important claims brought to date.116
At the same time, some believe that the report is "likely to herald an era
in which Maori concerns over Matauranga Maroi and taonga enter a
new level of public importance."' 17
The claim is definitely wide in scope and is seen as an attempt to
better incorporate protection of the Maori worldview."' Maui Solomon discusses the claimant's wishes for a complete reworking of the
Maori accommodations in New Zealand's current Intellectual Property
Rights (IPR system) to better accommodate the needs of their people:
Heritage, supra note 1, at 358.
Property Claim, supra note 109, at 17.
115 Susy Frankel, A BriefPerspective: The History of Copyright in New Zealand, in COPYRIGHT
FUTURE COPYRIGHT FREEDOM: MARKING THE 40 YEAR ANNIVERSARY OF THE COMMENCE113
114
MENT OF AUSTRALIA'S COPYRIGHT AcT 1968 72, 75 (Brian Fitzgerald & Benedict Atkinson,
eds., 2011) (at the moment, New Zealand for the most part mirrors British and Australian
intellectual property law, especially in copyright law, where no special rights are afforded to the
Maori).
The Wai 262 Claim by Six Maori Tribes: Floraand Faunaand CulturalIntellectualHeritage
Rights: Interview with Maui Solomon, INMOTIONMAGAZINE.COM (Apr. 22, 2001), http://www
116
.inmotionmagazine.com/nztriplmsl.html#Anchor-%E2%80%90%E2%80%91The-%E2%80
%90%E2%80%9110421.
117 TraditionalKnowledge, supra note 52, at 6. (citing Gray, Earl, Mdori Culture and Trade
Mark Law in New Zealand, in NEW FRONTIERS OF INTELLECTUAL PROPERTY: IP AND CUL,TURAL HERITAGE - GEOGRAPHICAL INDICATORS - ENFORCEMENT - OVERPROTECTION 71, 93
(Christopher Heath & Anselm Kamperman Sanders eds., 2005)).
118 TraditionalKnowledge,supra note 51, at 4.
GARDOZO PUB. LAW POLICY e&ETHICS J1
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[Vol. 12:149
It is critically important to the claimants that any remedies are built
on a foundation of tikanga Maori, of Maori customary values. Just
'tweaking the edges of the existing legislative regime and IPR system
will not be acceptable to the claimants. It is true that aspects of the
IPR system can be accommodated within a tikanga Maori framework.
However, because of the ideological difference between IPR and Indigenous peoples' rights and responsibilities . . . we need to start from
first principles. That means viewing any system of protection from a
Maori cultural viewpoint, not something imposed from the
outside.19
Solomon discusses the system, which the Maori hope will be developed
under Maori authority, based on Maori cultural values and sensitive to
Maori concerns. 120 The Tribunal recognizes the dire implications for
Maori traditions under the current system, and challenges the Crown's
right to decide and set policies affecting Maori cultural interests. 12 1 The
Tribunal found that Western intellectual property is unable to adequately protect the Maori culture because culture of any kind cannot be
possessed and would only serve to stifle the Maori heritage.112 In fact, it
states that "[b]uilding a legal wall around matauranga Maori would
choke it."12 3 Therefore, the Tribunal recommended a three-step analysis
comprised of, "(1) understanding the relationship between the kaitaki
[the guardian of the taonga] and particular . .. taonga work; (2) identifying any other valid interests in the . .. taonga work; and (3) balancing
the other interests against those of the kaitaki."1 24 In terms of works
that had already entered the public domain, the Tribunal acknowledged
that removal would not reverse exposure of the taonga and therefore
advised that there should be an interface between third-party users and
the Maori to ensure that use of the taonga would be respectful and that
the Maori guardianship over the taonga was honored.12 5 The Tribunal
then split taonga into three categories: taonga works, taonga-derived
works, and matuarangaMaori and analyzed each category in turn to
prescribe the steps that the government should take to give proper pro119
INDIGENOUS INTELLECTUAL PROPERTY RIGHTS, supra note 64, at 240.
120
Id
TraditionalKnowledge, supra note 51, at 4.
TraditionalCulturalExpressions, supra note 52, at 7.
123 TraditionalKnowledge,supra note 51, at 10 (quotingKoAotearoa Tenei, supra note 112, at
79)
121
122
124
Id
125
Traditional CulturalExpressions, supra note 52, at 8-9.
2013]
167
tection to the Maori taonga.126 Furthermore, instead of recommending
more intellectual property protections for the Maori taonga, the Tribunal recommended a sui generisl2 7 system via recognizing the kaitiaki relationshipl 2 8 that regulates public use of taonga.12 9 To illustrate this
concept, if a user took a photograph of a taonga work, though the user
may have a copyright in the photograph, the right to use the photograph would be limited by rights of consultation with the Maori.13 0
With regard to the Trade Marks Act of 2002's requirement of the Maori
trademarks committee for the Commissioner of Trade Marks, the Tribunal recommended that the advisory committee's recommendations be
made binding rather than advisory.' 3 1 In terms of new users wishing to
incorporate Maori taonga in their advertising or product, the Tribunal
recommended a declaratory ruling process by a multidisciplinary commissionl32 to provide users with definitive instruction.13 3 This same
commission should create best-practice guidelines for potential users of
the Maori culture and establish a register to help potential users identify
already existing interests in taonga.134
As mentioned earlier, while these recommendations from the Tribunal offer radical and welcome change for the Maori, the government
is not mandated to follow them; the recommendations are merely advisory. The government has yet to formally respond to the Tribunal report.135 However, if the government addresses these recommendations,
perhaps New Zealand will become one of the first jurisdictions that has
an intellectual property system that truly embraces the needs of the cultures it seeks to protect rather than trying to fit the cultures into its
foreign paradigm.
128
Id. at 10.
See Sui Generis, infra 226.
Id. at 19.
129
Id
126
127
130 Id. at 20.
131
Id
Id at 23.
Id. at 21.
134 Id. at 21-22.
135 Telephone Interview with Lynell Tuffery Huria, Senior Associate, AJ Park Law (Nov. 18,
2013); Doug Calhoun, The Patents Bill and the Wai 262 Report: Two Solitudes in Search of
Common Ground, SCIENCE, TECHNOLOGY INNOVATION, AND COMMERCIALISATION KNOwLEDGE BLOG (Sept. 26, 2012), http://sticknz.net/2012/09/26/the-patents-bill-and-the-wai-262report-two-solitudes-in-search-of-common-ground/.
132
133
CARDOZO PUB. LAW POLICY & ETHICS.
168
III.
V 12:149
[Vol.
THE RIGHTS OF NATIVE AMERICANS IN UNITED STATES
NATIONAL LAW
The United States has mostly remained within the confines of
traditional property law in its efforts to protect Native American artwork and symbols.' 3 6 Within the market of arts and crafts, the United
States bans people outside the Native American community from misrepresenting arts and crafts as Native American-made and gives qualifying Native Americans preemptive rights to certify their marks with a
federal administrative board under the Indian Arts and Crafts Act. 3 7
These measures provide an indirect way, at least in limited circumstances, for Native Americans to ensure that their insignia are neither
misrepresented nor abused and enables them to reserve certain sacred
symbols to themselves.
The most pertinent body of law pertaining to this issue is the Indian Arts and Crafts Act of 1990 (hereinafter "IACA")'" and its later
amendments13 9 as well as its associated implementing regulations. 140
The Act states:
It is unlawful to offer or display for sale or sell any good, with or
without a Government trademark, in a manner that falsely suggests it
is Indian produced, an Indian product, or the product of a particular
Indian or Indian tribe or Indian arts and crafts organization, resident
within the United states."'
Similar to the New Zealand Trademark office, this American equivalent
appoints an Indian Arts and Craft board to implement the law. 142
136 In the following paragraphs, the "indigenous groups" being discussed are Native Americans of registered and recognized tribes residing in the United States. Furthermore, the words
"Native American" and "Indian" are used interchangeably.
137 Indian Arts and Crafts Act of 1990, Pub. L. No. 101-644, 104 Stat. 4662 (1990) (codifLied as amended in scattered sections of Titles 18, 20, 25, & 42 of the U.S.C.).
138 Id
139 Indian Arts and Crafts Enforcement Act of 2000, Pub. L. No. 106-497, 114 Stat. 2219
(amending 25 U.S.C. § 305e).
140 See generally Protection of Indian Arts and Crafts Products (Refs & Annos), 25 C.F.R.
§ 309.1-.27 (2003); Nancy Kremers, Speaking with A Forked Tongue in the Global Debate on
TraditionalKnowledge and Genetic Resources: Are U.S. Intellectual PropertyLaw and Policy Really
Aimed at MeaningdulProtectionfor Native American Cultures?, 15 FORDHAM INTELL. PROP. MEDIA & Er. L.J. 1, 71 (2004).
141 Misrepresentation of Indian Produced Goods and Products, 18 U.S.C. § 1159(a) (2004).
142 Indian Arts and Crafts Board; Creation and Composition; Per Diem Payments, 25 U.S.C.
§ 305a (1990).
2013]
169
However, the definition of "Indian" limits the law's application to
tribes, non-member artisans, and individuals who are members of tribes
that are certified and recognized by the United States government. 14 3
There are many different definitions of "Indian" in federal law with
which this definition may conflict. 1 44 International business and intellectual property lawyer Nancy Kremers points out that this leaves many
Native Americans unaccounted for and unprotected under the Act. 14 1
Furthermore, there are many situations in which a legitimate member of
a tribe may fail to, or choose not to be, officially enrolled in the tribe.' 46
This occurrence has become more prevalent as the number of Native
Americans living in urban areas has increased and unitary pan-tribal Indian identity has grown, resulting in a subsector of the population potentially not being covered by the act 47
Kremers next points to the Board's enumerated powers, which include the ability "to create for the Board, or for an individual Indian or
Indian tribe or Indian arts and crafts organization, trademarks of genuineness and quality for Indian products and the products of an individual Indian or particular Indian tribe or Indian arts and crafts
organization""' and "to establish standards and regulations for the use
of Government-owned trademarks by corporations, associations, or individuals, and to charge for use under such licenses.""' 9 Furthermore, it
may "register any such trademark owned by the Government in the
United States Patent and Trademark Office without charge and assign it
and the goodwill associated with it to an individual Indian tribe without
charge" and "pursue or defend in the courts any appeal or proceeding
with respect to any final determination of that office.""5 o According to
the Lanham Act, under which trademarks are usually registered, the registrant must establish use of the mark in commerce or a bona fide attempt to use the mark in commerce.'
The ability of the Board to
register such trademarks bypasses this requirement, which would be dif143
25 C.F.R. § 309.2(e).
144
Kremers, supra note 140, at 74.
145
Id
Id
Id
25 U.S.C. § 305a(g)(1).
146
147
148
149 25 U.S.C.
§ 305a(g)(2).
150
25 U.S.C. § 305a(g)(3).
151
Application for Registration; Verification, 15 U.S.C.
§
1051 (2002).
170
CARDOZO PUB. LAW POLICY & ETHICS J
[Vol. 12:149
ficult for Native Americans to fulfill given the nature of the marks in
issue.
However, the free trademark program had not been implemented
as of2004152 and subsequent research has not identified this program as
available to indigenous groups today. Instead, the Board has established
its own certificate of genuineness 1" that is attached to qualifying trademarks.154 These requirements are so construed that the mark must include only "Indian-made genuine handicraft products," which implies
no use of machinery; completely Native American owned and organized
either by individual Native Americans or groups of Native Americans;
and meet the standards of quality of the Board. 1" This, as Kremers
points out, can result in a less than ideal outcome: a Native American
producer who has independently paid for and registered his or her own
trademark through the requirements of the Lanham Act can get permission to use the Board's mark in conjunction with the producer's own
mark, thus certifying that the producer's goods meet the Board's standards. However, Native American individuals and tribes who qualify
under the act's definitions of "Indian" may not obtain free trademarks
and use them independent of the government's name, standards-setting,
and control.' 56 This problem is exacerbated by the fact that widespread
knowledge and use of this resource appears to be limited. 5 7
State-based programs also offer protection for indigenous groups.
A notable example is the Alaska Silver Hand Program.' 58 This program
provides that an Alaska native15 9 who creates or crafts an original article
of authentic Alaska Native art in the state may obtain an identification
seal,1 6 0 on which is depicted a silver hand symbol and a space for the
name of the artisan and the object's place of origin (there is also an
official emblem) to affix on their product.' 6 ' Notably, this legislation
does not require a registered trademark and the state council maintains a
central registry of all the seals. Criminal penalties apply to those who
25 C.F.R. 308.2.
154 25 C.F.R. § 308.3 lays out the various requirements that a trademark must meet in order
to qualify for certification.
155 25 C.F.R. § 308.3.
156 Kremers, supra note 140, at 76-77.
157 Kremers, supra note 140, at 81-82.
158 Alaska Stat. §§ 45.65.010-.070 (2003).
159 See Alaska Stat. § 45.65.070.
160 Alaska Stat. § 45.65.010(a).
161 Alaska Stat. § 45.65.030.
152
153
2013]
171
affix the seal on non-qualifying products. 16 2 This seal is popular among
artisans, and it seems to have adopted the function of a certification
mark.'6 3 Kremers points out that this type of program, provided that
the government continues to monitor it rigorously, "seems to function
effectively in providing a reliable system under which consumer familiarity and confidence in the uniform quality of the indigenous handicrafts and works of art can grow."16 Federal authorities willingly aid in
enforcing the system. 16 Furthermore, individuals and tribes do not
have to worry about paying for the various costs and fees related to
trademark registration and maintenance in order to protect their
product. 6 6
Additionally, the Federal Trade Commission Act plays a role in
regulating the misrepresented goods that are falsely indicated as Native
American made.' 6 7 The Federal Trade Commission investigates consumer complaints and attempts to educate tourists so that visitors will
recognize certified goods such as those sold under the Alaska Silver
Hand Program.'"
The United States Patent and Trademark Office (hereinafter
"USPTO") also maintains a database of Native American Tribal Insignia, which it stores in a subsection under the Trademark Electronic
Search System (hereinafter "TESS").' 6 9 The database is explicitly stated
to be a collection of insignia submitted by Native Americans, and affords the registrant no trademark rights.170 No investigation is made by
the USPTO into the validity of the mark; as long as a complete application is filled and submitted by a federal or state recognized tribe, the
USPTO will add it to the database.' 7 ' As such, the USPTO attorneys
use the database as a resource in their examination of applications for
trademark registration.172 For example, USPTO attorneys can use the
database to identify and reject applications for marks that falsely suggest
162
Alaska Stat. § 45.65.060.
163
164
Kremers, supra note 140, at 84-85.
165
Id
166
167
Id
Id. at 86.
168
Id
USPTO Native American Tribal Insignia Database, USPTO.Gov, http://www.uspto.gov/
trademarks/law/tribal/index.jsp (accessed 1/11/13).
170 Id
171 Id
172 Id
169
CARDOZO PUB. LAW POLICY <&ETHICS j
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[Vol. 12:149
a connection with a Native American tribe and thus are banned under
the Lanham Act.17 3
However, Kremers points out that the effectiveness of the database
is limited by its very nature.17 ' The registration process is cumbersome
and time-consuming, and offers no immediate benefit to the individual/
tribe (recall that registration on the database does not grant the individual/tribe trademark rights), which drastically reduces any incentive to
register.17 1 Indeed, in 2009, almost a decade after it was implemented,
only 25 tribes had registered their insignias on the database.17 6 Furthermore, USPTO efforts to make the system more comprehensive to include all federal and state official insignia have been limited.' 77 The
result is that, as with the IACA, individuals need to register their own
trademarks in order to have immediate protection.
Despite the various avenues that the United States has opened for
protection of Indigenous cultural materials, in practice, the benefit to
the Native Americans seems limited. Indeed, an article tracing the Zia
Pueblo tribe's (a Native American tribe in New Mexico) efforts to protect its sacred symbol indicates that the Zia Pueblo were far more successful in their endeavors when they used extra-legal methods. 77 This
case study highlights the flaws and gaps in the United States' systems
that give indigenous groups pause before they seek a legal means to enforce their rights.
The symbol in question was a sun symbol that is central to the Zia
Pueblos' religion and considered the most sacred image, yet is displayed
on New Mexico's state flag, license plate, and letterhead, as well as on
commercial products such as motorcycles and by services such as cleaning companies.' 7 9 The Zia contended that the symbol was stolen and
put on the State flag without its permission in 1925.180 However, the
state's adoption of this image technically gave the state exclusive rights
to the symbol under Lanham Act § 2(b), where registration is banned
173
§
Id; Trademarks Registerable on Principal Register; Concurrent Registration, 15 U.S.C.
1052(a) (2006).
Kremers, supra note 140, at 91-192.
174
175
Id
176
177
Turner, supra note 7, at 130.
178
Turner, supra note 7, at 116.
179 Id at 117.
180
Id at 119.
2013]
173
for marks that consist of or compromise "the flag or coat of arms or
other insignia of the United States, or of any State or municipality."'
In 1992, the Zia Pueblo filed an opposition to the Coulston International Corporation's attempt to register a mark that contained its sacred sun symbol.18 2 The Zia Pueblo called for protection of the symbol
under Lanham Act § 2(a), which prohibits registration of marks that
falsely associate the applicant's product to a group of people. 8 3 Although the application was ultimately withdrawn, the Tribe was unhappy about the amount of money it spent defending its mark against
just one individual.'8 4 When the American Frontier Motorcycle Tours
subsequently attempted to register a mark containing the same sun symbol, the Tribe notified New Mexico's Senator Jeff Bingaman, who asked
the USPTO to reject the American Frontier's application and publicly
expressed his disapproval of American Frontiers' actions, ultimately forcing American Frontier to withdraw their application."I Supported by
Senator Bingaman, the Tribe has attended USPTO hearings to advocate
for changing the Lanham Act to better protect indigenous groups.
However, they have largely been disappointed with the USPTO's failure
to act.1 86 Furthermore, they saw no utility in wasting resources to register their mark in the NATI database for the same reasons that Kremer
postulated: registration afforded no benefit to the Zia Pueblo.187
The Zia Pueblo tribe has, as a result of its dissatisfaction with the
trademark law, found an alternative means of achieving its goals. Because of its public calls for protection of its marks and the public support of Senator Bingaman, companies now approach the Zia Pueblo in
hopes of entering negotiations with the tribe before they use the sun
symbol in hopes of eliminating the risk that they will be publicly chastised as disrespectful.1 88 This gives the Zia Pueblo a much greater deal
of control over how its symbol is used - certainly more control than
15 U.S.C. § 1052(b) (2006); Turner, supra note 7, at 119.
Letter to USPTO Referencing Comments from the Pueblo of Zia Advisability of Prohibiting Trademark Registrations for Official Insignia of Native American Tribes (Apr. 26, 1999),
available at http://www.uspto.gov/web/offices/com/hearings/natinsign/comments/zia.pdf; Turner, supra note 8, at 124.
183 15 U.S.C. § 1052(a) (2006).
184 Turner, supra note 7, at 124.
185 Id. at 126.
186 Id. at 127.
181
182
187
188
Id. at 130.
Id. at 133-34.
CARDOZO PUB. LAW POLICY & ETHICSJ.
174
[Vol.l 12:149
current laws afford them." 9 This deference has even spilled over into
the government sector, which now consults the Zia Pueblo before they
use the symbol for designs such as the state quarter. 190 The Zia Pueblo
thus used the power of negative publicity to develop an unwritten approval system.
Kremers presents a multitude of ways to improve and enhance the
existing United States systems. She first argues for more meaningful
implementation of existing trademark regulations so that they will actually serve to protect Native Americans.19 1 She argues that greater use of
certification marks and collective marks should be promoted and enforced by the Federal Trade Commission, and the USPTO to protect
Native American made products, and that the free trademark program
written into the IACA board's powers should be implemented.1 92 Furthermore, collective marks are inexpensive, serve to promote public
awareness of the tribe, and (along with certification marks) offer mark
holders the same protections as regular trademarks. 9 3
She also recommends greater use of Lanham Act § 2(a), which bars
marks that consist or comprise of "matter which may disparage or falsely
suggest a connection with .
.
. institutions,"' 9 ' which she considers anal-
ogous to New Zealand's Trade Marks Act of 2002.'9 Kremers recognizes the limitations that come with protecting such works in a
traditional trademark context: only signs and symbols intended for commercial use can be protected.1'9 However, if Native Americans gain
greater awareness of the resources available to them through government
efforts to promote their availability, and if the IACA board were to use
its powers to their fullest extent, the prospects of trademark protection
for Native Americans would drastically improve. 197
Third, Kremers argues for expansion of moral rights in the United
States' intellectual property system.' 98 In contrast to the economic189
Id. at 132.
190 Id. at 133.
191 Kremers, supra note 140, at 92.
192 Id at 94. For definitions of "certification mark" and "collective mark," see Constructions
and Definitions, Intent of Chapter, 15 U.S.C. § 1127 (2006).
194 15 U.S.C. 1052(a) (2006).
196 Kremers, supra note 140, at 94; see generally Service Marks Registrable, 15 U.S.C. § 1053
(1999).
198 Id.
2013]
175
based intellectual property system most commonly used in the United
States, the moral rights system, common in many European countries, is
based on the idea that at the time of a literary or artistic work's creation,
"some part of the artist's own being or personality is incorporated into
the work, and, as a result, certain perpetual rights arise in the artist that
can affect future treatment of the work."' 9 9 The United States implemented legislation based on this system when they passed the Visual
Artists Rights Act of 1990.200 Kremers argues that states should pass
moral rights legislation that protects all types of creative works, especially jewelry, weavings, pottery, dolls, dance and dress paraphernalia.2 0 '
Furthermore, she calls for enactment of broad state laws allowing creators rights to resale royalties.20 2 This change would offer more protection for indigenous culture and traditions outside of the commercial
world of trademark.
Kremer's fourth proposed change is to establish a domestic geographical indications regime for TKGR.2 0 3 As defined by the World
Trade Organization in the Agreement on Trade Related Aspects of Intellectual Property Rights (hereinafter "TRIPS"), geographical indications
are "place names (in some countries also words associated with a place)
used to identify the origin and quality, reputation, or other characteristics of products (for example, 'Champagne', 'Tequila' or 'Roquefort'). 2 04 A system of applying geographic indicators to products of
indigenous groups has been implemented in Mexico, where certain traditionally lacquered articles created from a particular variety of local
wood and originating from the municipality of the same name are given
the name "olinala." 2 0 5 While the United States has been hesitant to
adopt many geographic indicators, Kremers hopes that it will become
more open to them as they become more widely adopted around the
globe. 206
199 Id. at 106-07.
200 Right of Certain Authors to Attribution and Integrity, Visual Artists Rights Act, 17
U.S.C. § 106A (1990).
Id.
Id at 129.
204 World Trade Org., TRIPS: GeographicalIndications:Background and the CurrentSituation,
http://www.wtc.org/english/tratop-e/trips.e/gLbackground-e.htm (last updated Nov. 2008).
206 Id. at 136.
202
203
CARDOZO PUB. LAW POLICY &'ETHICS J
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[Vol. 12:149
The United States deviates from traditional property law to incorporate the Native American worldview in its regulations pertaining to an
issue outside of trademark 20 7 : the Native American Graves Protection
and Repatriation Act (hereinafter "NAGPRA").2 0 8 NAGPRA, which
seeks to classify excavated Native American human remains, funerary
objects, sacred objects and cultural objects, incorporates the indigenous
worldview in three significant ways. First, museums must notify groups
affected by excavations and consult them in certain prescribed situations; this gives Native American communities influence over the flow
of archeological information entering the public domain. 20 9 This influence is strengthened by the tendency of the Tribal Historic Preservation
Offices to work in conjunction with the principles of NAGPRA, which
has led to the development of archeological procedures that respect the
confines of tribal beliefs. 21 0 Second, museums are required to conduct
inventories of cultural objects to determine their function and/or possible affiliation with tribes. 2 1 ' When conducting analyses to make such
determinations, the museums must give deference to tribal oral tradi21
This reliance on unsubstantiated hearsay is a departure from
tions.212
traditional Western notions of evidentiary proof, and provides Native
American groups with additional influence.2 1 3 Third, NAGPRA
welcomes the views of multiple tribes that may have a stake in the object
in question, encouraging extrajudicial dispute resolution to come to a
214
Such discussions foster the potential to gain a deeper
compromise.
understanding of these cultural items.2 1 5 With regard to allocation and
repatriation, the interests of original holders of objects and lineal descendants of the deceased (in the case of human remains) are given priority over tribes and organizations.2 1 6 This discourse allows for a
207 Cortelyou C. Kenney, Reframing Indigenous Cultural Artifacts Disputes: An Intellectual
Property-BasedApproach, 28 CARDozo ARTS & ENT. L.J. 501, 521 (2011).
208 Native American Graves Protection and Repatriation Act, 25 U.S.C. §§ 3001-3013, 18
211
§ 1170.
Kenney, supra note 207, at 521.
Id. at 521-22.
Id. at 522-23.
212
Id
U.S.C.
209
210
Karolina Kuprecht, The Concept of "CulturalAffiliation" in NAGPRA: Its Potential and
Limits in the Global Protection of Indigenous Cultural Property Rights, 19 INT'L J. CULTURAL
PROP. 33, 38 (2012).
214 Kenney, supra note 207, at 523-24.
215 Id. at 523.
216 Kuprecht, supra note 213, at 37.
213
2013]
177
rebuilding of Native American "traditional relations and ties, and loosens the strict private property language thinking." 2 1 7
Despite this novel incorporation of Native American values, NAGPRA's effectiveness is questionable: when eight federal agencies were
surveyed, only 209,626 out of millions of Native American objects fell
under the classification requirements of NAGPRA. 2 18 Fewer than three
quarters of these items were reclaimed. 2 1 9 Native American tribes seem
reluctant to require the return of their objects, especially when those
objects are human remains. 2 2 0 For example, when the Sealaska Corporation (a native corporation owned by over 20,000 tribal member shareholders from the Tlingit, Haida, and Tsimshian tribes) investigated the
Fowler Museum's collection, they chose to repatriate only one out of the
4,000 objects so classified under NAGPRA. 2 2 1 This hesitance to claim
remains can be explained by the beliefs held by some tribes, like the
Navajo Nation, that contact with the dead may contaminate a person.2 2 2
These beliefs are not entirely unsubstantiated; the Hopi, after acquiring
objects through repatriation, found that chemicals that had been applied
to preserve the objects were harmful to those who handled them.22 3
Therefore, use of NAGPRA is limited by both underlying cultural inhibitions and practical barriers.
Despite the limited utilization of NAGPRA by Native Americans,
the concept of incorporating Native American traditions into a law is
novel to United States legislation. Professor Jane Anderson points out
that the uniqueness of this law, which contains a "point of departure
and vehicle for extended questions about right to control indigenous
resources" allows it to "move more readily between the discourses of
cultural property and intellectual property where the cultural property
paradigm, with its distinctive genesis from real property law, is never
fully displaced." 2 2 4
217
218
Id. at 38.
Id. at 46.
223
Id
Id
Id
Id
Id
224
Anderson, supra note 30, at 5.
219
220
221
222
178
CARDOZO PUB. LAW POLICY &'ETHICS ]
IV.
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[Vol.
THE EFFECTIVENESS OF INTELLECTUAL PROPERTY IN
PROTECTING INDIGENOUS CULTURAL PROPERTY
As New Zealand and the United States seek to find ways to incorporate the protection of Indigenous cultural objects and traditions into
their legal frameworks, intellectual property seems the most fitting solution to tackling ownership issues. Cortelyou Kenney describes intellectual property as "a toehold into longstanding disputes that have proven
intractable under the physical-property paradigm and its winner-take-all
stakes" that also "offers a more nuanced understanding of the history
underlying these objects, which may facilitate a dialogue through recognition of multidimensional rights and obligations."2 2 5 Furthermore, as
evidenced by New Zealand's Trade Marks Act 2002 and NAGPRA, the
intellectual property framework applied is not always rigid and often
bends to accommodate indigenous perspectives. Kenney describes these
regulations as "sui generis 226 with an IP flavor" because their goal is to
"fence in information from the public domain and control the uses to
which it can be put," and "tribes and foreign governments have found
ways to control the knowledge of their own in creative and dynamic
ways."227
While these developments have made proponents optimistic their
limited success has highlighted the shortcomings of the New Zealand
and United States laws. First, there is a problem of limited scope: the
laws do not protect all aspects of culture and tradition that indigenous
people consider their property. While this may be partially due to the
confines of Western intellectual property concepts, there are two other
possible causes: (i) governments have not tapped into all aspects of intellectual property law; and (ii) governments have not incorporated
enough sui generis accommodations into their regulations. For instance,
New Zealand has only incorporated concrete deference to the Maori in
their trademark laws. However, trademark is only one category of intellectual property22 8 and thus the Maori can only claim harm for a spe225 Kenney, supra note 207, at 505.
226 Sui Generis, BLACK'S LAw DICrlONARY (9th ed. 2009) (defines sui generis as "Of its own
kind or class; unique or peculiar. The term is used in intellectual-property law to describe a
regime designed to protect rights that fall outside the traditional patent, trademark, copyright,
and trade-secret doctrines. For example, a database may not be protected by copyright law if its
content is not original, but it could be protected by a sui generis statute designed for that
purpose.").
227 Kenney, supra note 207, at 521.
228 TrademarkDefinition, supra note 84.
2013]
179
cific use of its cultural property. Unfortunately, many popular uses of
their symbols do not fall under the purview of trademark and so they
continue to face harm. The Maori do not demand a third party bar
against all uses of their property; the Maori want informed consent and
respect for their symbols and traditions. It is possible that this issue may
be addressed by more creative lawmaking that incorporates more sui
generis principles. The United States narrows its laws by subject matter
and thus, at the moment, only tangible arts and crafts as well as sacred
and funerary objects are offered protection. These are very limited
categories.
Second, it is questionable whether harms that have been addressed
by these regulations are effectively prevented. The Treaty of Waitangi
Act and the resulting Tribunal are illustrative of inefficient administration of relief. The Tribunal took ten years to respond to the Wai 262
Cultural Agreement with an advisory opinion that the government may
disregard if it chooses. This lack of power and speed can be disheartening to indigenous groups that spend time and resources in hopes of
promoting change through these legal means. United States regulations
confine Native Americans to a very limited group, leaving many community members who embrace their indigenous culture without protection. Furthermore, lack of effectiveness and efficiency in the legal arena
has led groups such as the Zia Pueblo to seek redress through other
means. Few Native American tribes utilize the protections offered to
them by NAGPRA.
Third, the means offered by these two governments are not accompanied by any funding. The Maori have expressed dissatisfaction with
this arrangement and tribes like the Zia have found it prohibitive in
their efforts to seek redress.
Dr. Jane Anderson identifies an underlying problem with intellectual property in these disputes that reaches beyond the issue of lacking
"consensus within policy and legal circles about what it is [about indigenous knowledge] that is in need of 'protection', and how law and legal
bureaucracy should respond."22 9 The underlying problem is more fundamental and accounts for the gaping holes in New Zealand the United
States' legal structures:
The real problem is not one of correct and more natural 'identification' and definition, but rather the dominance of a culturally specific
229
Anderson, supra note 30, at 2.
CARDOZO PUB. LAW POLICY &'rETHICSJ.
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logic system that privileges and thus recognizes some forms of knowing over others, and consequently views and values specific relationships to knowledge more highly than others. It is this logic that
allowed and facilitated the theft and appropriation of indigenous resources, including knowledge resources, without recognition or reciprocity, to begin with (Smith 1999; Chambers and Gillespe 2000).
Notwithstanding that this logic was foundational to the making of the
very problems that the law is trying to find resolution for, it is this
very same logic that now also precludes the inclusion of indigenous
knowledges as a legitimate subject matter for intellectual property law.
This constitutes the paradox of exclusion - inclusion that both underpins and has come to characterize this field.230
CONCLUSION
Does this mean that intellectual property should be replaced by a
completely different legal scheme? Perhaps the Trademarks Act of 2002
and NAGPRA are building blocks for more dialogue with indigenous
groups to develop a body of law that better serves their needs - one that
breaks out of the traditional confines of Western intellectual property
law. Indigenous groups must be invited to partake in the actual lawmaking to effectively abandon the "culturally specific logic system" of
which Dr. Anderson speaks. The resulting regulations should be accessible to indigenous groups and offer them true preventative solutions to
their complaints. True preventative solutions would require greater input by indigenous groups over determining what actions by third parties
constitute legitimate harm.
A large part of success in certain protection programs is due to
public awareness. For instance, the Zia Pueblo's publicity about unsolicited symbol use allowed it to develop an unwritten approval system.
While self-help methods that invoke intimidation are not an ideal permanent solution, the success of the Zia Pueblo points to a crucial deterrent: negative publicity. While one can think of many modern-day
instances where defiling a religious or patriotic symbol would lead to
public outcry, most indigenous symbols and traditions are not recognized as sacred by the general public. Therefore, widespread education
through channels such as public officials and the media about the harms
to indigenous people that occur when third parties use aspects of indige230
Id. at 4.
2013]
18 1
nous culture in uninformed or unapproved ways is necessary to generate
public discourse.
Along with raising public awareness, the use of a widely publicized
seal has shown success. Alaska's Silver Hand Program is a notable example of this success. Because it operates outside of the confines of trademark law, automatically affords protection to qualifying indigenous
individuals, and is willing enforced by authorities, it is accessible and
well utilized by indigenous people. More importantly, its popularity
among consumers as a reliable indicator of authenticity makes it a powerful tool for indigenous artisans. This concept can be applied to third
party uses. For instance, the Maori could have a widely recognized seal
of approval for companies that receive Maori approval before using Maori symbols. This seal could appear on the packaging of third party
products and at the end of commercials. Once the seal becomes a regular part of public discourse and is widely recognized, it becomes an enforcement mechanism in itself as consumers check products to make
sure a product have this mark of authenticity and companies, in seeking
to maintain a good public image, seek to acquire this seal. Furthermore,
the fact that the Maori community rather than the national government
would determine the seal's application allows the Maori to protect its
culture in its own terms.
There are many other avenues that governments can explore to afford indigenous groups cultural protection. Effective protection requires
stepping out of the Western intellectual property paradigm under the
guidance of these indigenous groups and understanding a completely
different value and ownership system that does not automatically lend
itself to Western values. While the United States and New Zealand have
taken concrete steps to affording their indigenous groups protection
within their legal frameworks, more creative solutions are necessary in
order to ameliorate the harms faced by indigenous communities.

intellectual property and the protection of indigenous culture in the

Transcription

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