intellectual property law

There is a bill being considered in India that would create monopoly rights over traditional knowledge and classify it under intellectual property law, The Hindu's T. Nandakumar reports. R.S. Praveen Raj, a former examiner with the India Patent Office, said codifying formulations based on Ayurveda, Unani, Siddha and Yoga could mean they would be shared in a database with the European Patent Office and the U.S. Patent and Trademark Office and leave "'scope for private appropriation of [traditional knowledge] by making cosmetic improvements.'"

Earlier this month, regulations in Taiwan went into effect to give indigenous peoples intellectual property rights over their traditional cultural expression, including religious ceremonies and folk crafts, Focus Taiwan News Channel reports. For example, that Tao people on Orchid Island has applied to protect the "Flying Fish Festival, the launching ceremonies of Tao balangays, or 'big boats,' along with the various symbols and patterns on the boats, such as the fish-eye and human-shaped patterns." 

There are 530,000 indigenous people in Taiwan, making up 2 percent of that country's population.

The laws of copyright, patent and trademark are changing because cloud computing is making it possible to connect software "in just about everything," The New York Times' Quentin Hardy reports. For example, "everything, be it software and networking or power, is different when so many computers are spread across the globe. The pace of innovation is so quick, and the number of players so small, that in some cases, the players elect not to patent inventions, wary of what they’d disclose about themselves in the application," Hardy writes. 3-D printing may change things even more because "designs there can be widely shared and modified in a computer, to an extent that originals are hard to recognize, let alone protect."

Intellectual property law doesn't protect the traditional knowledge and folklore of people, including indigenous peoples like American Indians. The problems vary: Who is the identifiable author or inventor if it's part of a group's culture? When did the work come into being if it's part of an oral tradition that changes? How can localized knowledge about the healing benefits of particular plants be patented if that use is already in the public sphere?

The World Intellectual Property Organization will be taking up international instruments aimed at protecting traditional knowledge and folklore from misappropriation, Intellectual Property Watch reports. Those instruments will be considered by the WIPO's General Assembly in September.

South Africa has enacted a new intellectual property law to protect traditional knowledge and traditional cultural expression, according to a report in IT in Government. The law is seeking to extend traditional IP laws to protect indigenous knowledge, and South Africa will establish registries under which indigenous communities can register creative works and also receive licensing fees. However, Owen Dean, chairman of intellectual property law at the University of Stellenbosch, said IP law cannot protect traditional knowledge and traditional cultural expression because "'all IP is based on a policy which says you want to encourage creativity, so you give creators an incentive: exclusive control for a limited period, before the work becomes public domain. Indigenous knowledge is reversed: nothing is identifiably creative, and rights are awarded perpetually,'" IT in Government further reported.

Intellectual Property Watch reports that "a panel addressing negotiators this week at the World Intellectual Property Organization asserted the property rights of Indigenous Peoples and Local Communities over traditional knowledge and genetic resources and called on delegates to draft an international instrument compliant with their internationally recognised rights." The WIPO meeting took place this week.

James Anaya, United Nations Special Rapporteur on the Rights of Indigenous People, "criticised a proposal to exclude from disclosure requirement traditional knowledge in the public domain, and considered that databases or similar mechanisms might be useful but may not always be culturally appropriate, for instance where customary laws forbid disclosure to non-community members," Intellectual Property Watch further reported.

Gigaom's Jeff John Roberts wrote this week about the problems plaguing copyright law: "Copyright law is broken and the debate over how to fix it is dominated by extremists: those who support Hollywood hardliners on one hand, and those who defend the likes of Kim Dotcom on the other. The way forward lies somewhere in the middle and, if lawmakers can find it, they could create a system that provides more money and respect for creators while also ensuring that the next generation of BuzzFeeds or YouTubes can flourish." One solution, Roberts proposes is shorter copyright terms: "The best place to start is with shorter copyright terms. In early America, creators were able to protect their works for a 14 year term that could be renewed one time. Such a limit sounds about right for today when art is created, distributed and forgotten faster than ever before. Shorter terms might also make it easier for artists to persuade internet users to pay them in the first place."

Matthew H. Birkhold, a visiting scholar at the Humboldt-Universitat zu Berlin, writes for Bloomberg that it was a double-edged sword for the Annenberg Foundation to purchase 24 sacred American Indian objects that were auctioned off by a Paris auction house. The foundation plans to return the objects to the Hopi and the San Carlos Apache tribes. Even though the foundation denounced the sale of cultural property, it legitimized commerce in cultural property by participating in the auction, Birkhold opines.

The best solution for indigenous peoples to regain their cultural property that is not protected by intellectual property law is to work within the legal system, Birkhold argues: "The best bet for indigenous people to secure their cultural property is through the legal system, where taking a principled stand could pay dividends. A developing legal framework provides the tools to restore cultural artifacts to their rightful owners. In addition to the 1970 United Nations Educational, Scientific and Cultural Organization Convention, the UN Declaration on the Rights of Indigenous Peoples explicitly establishes the rights of indigenous peoples to maintain, control and protect their cultural heritage and obligates signatory states to take effective measures to protect their right to do so. This framework needs to be strengthened. In the meantime indigenous groups can further develop the law while making progress in its shadow."

The case of the auction of sacred Hopi masks in France highlights the lack of protection for indigenous peoples' culture under intellectual property law in Western countries.

The Associated Press reports that the Drouot auction house in France sold 25 sacred Hopi Kachina masks, despite protests, for $1.6 million this week.  "Though a judge ruled last week that the sale of the artifacts is legal in France, the American Indian Hopi tribe says the artifacts represent their ancestors' spirits and cannot be sold as merchandise," the AP also reports. Also included in the sale was objects from the San Carlos Apache tribe and a Zuni tribe altar.

The AP decided against publishing images of the objects "because the Hopi have long kept the items out of public view and consider it sacrilegious for any images of the objects to appear." 

The U.S. Supreme Court has taken a case involving the issue of when software is patentable, The Wall Street Journal reports. The tech world is divided on where to draw the line on when software can be patented and when it can't: "On one side lie technology giants such as Google Inc., Facebook Inc., and Intuit Inc., which largely believe the Patent & Trademark Office has issued too many software patents in recent years, and would like to see courts apply a more exacting standard when reviewing them. On the other, lies a collection of big and small technology companies, including International Business Machines Corp., which worry that tighter standards on software patents could hurt innovation," The Journal further reports.