Imitation is (not) the sincerest form of
flattery
The legal protection of Traditional Cultural Expressions: copyright or sui
generis protection?
Rowena M.S. Palijama 06/01/2016
Supervisor: Prof. M.M.M van Eechoud LL.M. Information Law
Preface
As this thesis marks the end of an era of studying at the University of Amsterdam, a few acknowledgements are in order. I would first like to thank my thesis supervisor Prof. M.M.M. van Eechoud for her valuable feedback and for guiding me through this process, despite multiple technical errors consisting of one crashed computer, one crashed USB-stick and the miraculous disappearance of all my references.
Furthermore, I owe my sincere thanks to my brother, Zico, who quietly celebrates my every step along the way. But most of all, I owe my deepest gratitude to my parents and grandparents Palijama-Tetelepta, who have been invaluable in every way one could possibly imagine.
After my exchange to the University of Auckland in New Zealand, I developed a strong interest in Indigenous Intellectual Property. I hope this subject interests you as much as it interests me. Rowena M.S. Palijama
Abstract
Traditional Cultural Expressions (hereinafter: TCEs) are globally used by other cultures than the indigenous culture from which they derive, outside of their traditional context and not necessarily in accordance with the customary law that originally governs the respective TCEs. Inappropriate and/or offensive use of TCEs can cause great offence and could potentially undermine indigenous peoples’ organisational systems, as these are commonly based on TCEs and their underlying values. The fundamental problem is the lack of protection against such uses. This research revolved around the question whether a copyright regime offers protection against inappropriate and/or offensive use of TCEs or if a sui generis regime would be more appropriate. It should be kept in mind that this thesis aimed to establish the most appropriate legal regime in abstract.
Chapter II established that the three primary rationales for protection are (1) cultural integrity, (2) cultural development and (3) economic development. The subsequent chapters examined which of the models of copyright, copyright-plus or sui generis protection, best provides protection for all rationales, if at all, simultaneously. At the outset, copyright seemed a promising legal measure against the inappropriate and/or offensive use of TCEs. Chapter III however concluded that it only provides limited protection, as copyright’s key concepts such as originality, fixation and limited term of protection fail to offer a high level of protection. TCEs are almost inherently excluded from protection due to their holistic nature.
In striving for a higher level of protection, Chapter IV examined the protection of TCEs under copyright-plus model in Australia and New Zealand. None of the models however granted a higher level of protection. New Zealand’s guardianship-model is based on an artificial conception of ownership and Australia’s Bulun Bulun Equity only integrates communal interests into copyright law. The model of damages based on cultural harm does not prevent inappropriate and/or offensive use; it rather offers financial remuneration when TCEs are appropriated. The copyright-plus models also failed to provide a higher level of protection. Chapter V established that a sui generis regime would be more appropriate, as it is more malleable to the holistic nature of TCEs. Moreover, the Pacific Model Law 2002 should be the foundation of such a regime, as rather than imposing western values on TCE-holders, it seeks to find a fair balance between their values and a western legal framework.
Table of Contents Preface 2 Abstract 3 Glossary of terms 6 List of abbreviations 6 Chapter I – Introduction 7 1.1 Introduction 7
1.2 Aim, focus and background 7
Chapter II – The need for protection of Traditional Cultural Expressions for indigenous
peoples 10
2.1 Introduction 10
2.2 Defining the concepts of Traditional Cultural Expressions and its protection 10 2.2.1. From Folklore to Traditional Cultural Expressions 10 2.2.2. The holistic nature of Traditional Cultural Expressions 12
2.3 Case studies: haka and tā moko 13
2.3.1. Haka 13
2.3.2. Tā moko 15
2.4 Justifications for the protection of Traditional Cultural Expressions 16
2.4.1. Cultural integrity 16
2.4.2. Cultural development 18
2.4.3. Economic development 20
2.4.4. The rationales for protection 21
2.5 The notion of protection 22
2.6 Interim conclusion 24
Chapter III – Copyright: the (in)appropriate regulatory scheme 25
3.1 Introduction 25
3.2 Copyright’s inherent limitations in protecting Traditional Cultural Expressions 25
3.2.1. Originality 26 3.2.3. Fixation 27 3.2.4. Authorship 28 3.2.5. Ownership 31 3.2.6 Term of protection 33 3.2.7. Moral rights 33
3.3 Overcoming the inherent limitations: specific protection for Traditional Cultural Expressions 35
3.3.1 Berne and the unknown author 35
3.3.2 TRIPS: no teeth for TCEs 38
3.3.3. Evaluation BC & TRIPS 38
3.4 Interim conclusion 40
Chapter IV – Copyright-plus: drawing on experience 41
4.1 Introduction 41
4.2 The protection of TCEs in Australia 41
4.2.1. Complementing the copyright system 41
4.2.2. Indigenous Communal Moral Rights Bill 46
4.2.3. Evaluation 47
4.3 The protection of TCEs in New Zealand 48
4.3.1 Ko Aotearoa Tēnei – Wai 262 48
4.3.2. Evaluation 49
4.4 Interim conclusion 50
Chapter V – Sui generis protection of Traditional Cultural Expressions to the rescue 51
5.1 Introduction 51
5.2 The Tunis Model Law on Copyright for Developing Countries 1976 51
5.2.1. Evaluation 53
5.3 The Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit
Exploitation and other Prejudicial Actions 1982 53
5.3.2. Evaluation 55
5.4 The Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture 2002 55
5.4.1. Evaluation 59
5.5 General evaluation sui generis protection and interim conclusion 60
Chapter VI - Conclusion 62
Glossary of terms
Aotearoa New Zealand, land of the long white cloud Haka Traditional Māori war dance
Kaitiaki Guardian or custodian
Matauranga Maori The unique Maori way of viewing the world, which incorporates both Maori traditional knowledge and their traditional cultural expressions
Tā moko/moko Traditional Māori tattoo
Taonga Maori treasures considered to be part of Matauranga Maori and can be defined as Traditional Cultural Expressions
Tangata whenua People of the land; indigenous peoples Tikanga/Tikanga Māori Maori traditions/protocols
Tino rangatiratanga the unqualified exercise of chieftainship, close approximation of self-determination or sovereignty
Tohunga tā moko Tā moko artist
Whakapapa Genealogy
Whētero Protruding of the tongue
List of abbreviations
MFAT New Zealand Ministry of Foreign Affairs and Trade
TCEs Traditional Cultural Expressions
Chapter I – Introduction
1.1 Introduction
Having multiple ethnicities myself, I am fortunate enough to have been brought up with a plurality of Traditional Cultural Expressions (hereinafter TCEs) that I can identify with. One of them is the traditional Moluccan/Alifuru tatau or tattoo, which embodies one’s culture, achievements or path in life. One repeatedly asked question is if I would find it offensive if non-Alifuru would incorporate non-Alifuru stylised motifs into their tattoo. I personally have no problem with others drawing inspiration from our tatau, whereas one of my relatives – and multiple others with him – strongly opposes this. Sometimes, I wonder if it is too good to be true to reach international consensus, when a community cannot even reach consensus about the use of their own cultural designs.
Over the past few decades the protection of Traditional Cultural Expressions (hereinafter TCEs) has been the subject of international debate within institutions such as WIPO, UNESCO and the World Bank. It evolved around the question if and how TCEs could and/or should be protected by Intellectual Property Rights (hereinafter IPRs). Up until this very day the progress on the protection of TCEs has been very slow and the prospect of a binding international instrument is rather far away.
Nevertheless TCEs are nowadays more popular than ever, globally used by other cultures outside of their traditional context and not necessarily in accordance with indigenous peoples customary law that originally govern the respective TCEs. This could constitute inappropriate and/or offensive use that could undermine indigenous peoples’ organisational systems, as these are commonly based on TCEs and their underlying cultural values.1 The fundamental problem is
however the lack of protection against such uses.
1.2 Aim, focus and background
Although WIPO has set course on establishing a sui generis regime for the legal protection of TCEs against inter alia inappropriate and/or offensive use, there is by no means universal consensus that a sui generis regime is the right way to go. Multiple options are debated varying
from patent law to trademarks and copyright protection. As TCEs are often comparable to copyright protectable subject matter,2 this research will examine the following question:
“Does a copyright regime offer protection against inappropriate and/or offensive use of Traditional Cultural Expressions or would a sui generis regime be more appropriate?” It should be kept in mind that this thesis aims to establish the most appropriate legal regime in abstract to accommodate protection against the inappropriate and/or offensive use of TCEs. The question if and how such a regime is implemented in national regimes and if there is the political will to do so is a follow-up question that it is outside of the scope of this research. Chapter II will establish the normative assessment framework for the protection of TCEs against inappropriate and/or offensive use. The specific concepts related to TCEs that are needed in order to comprehend the nature of TCEs will be explained from a descriptive perspective. Given the restricted scope of this thesis and the fact that there are legion of TCEs, I will set out two case studies that will serve as the main theme for the purpose of this research. TCEs have general common characteristics, which will be the focus of this thesis. These case studies are therefore representative for the subject matter. I will close this chapter by setting out the justifications for the need of protection against inappropriate use, from both a descriptive and normative perspective and with the use of international instruments such as the United Nations Declaration on the Rights of Indigenous Peoples (hereinafter UNDRIP). These justifications will also serve as the rationales for protection in light of which the models discussed in the next chapters will be examined. This chapter will answer the following sub-question:
• What are the rationales for the protection of Traditional Cultural Expressions against inappropriate and/or offensive use?
As this thesis focus is on copyright protection for TCEs, the third chapter will commence with an examination – from an internal perspective – of the general inherent limitations that this legal framework imposes on the protection of TCEs, and if and how these can be overcome. These limitations should be seen as the shortcomings of key concepts of copyright protection. In reaction to these general limitations the international copyright discourse has taken some action to accommodate these shortcomings. Continuing from an internal perspective, it will be normatively evaluated if these actions have led to actual solutions for the inherent limitations.
The sources that will be used in this chapter are international treaties such as the Berne Convention (hereinafter BC) as well as scientific literature. This chapter will answer the following sub-question:
• What are the problems in providing copyright protection against inappropriate and/or offensive use of Traditional Cultural Expressions and how can these be overcome? Australia and New Zealand have a longstanding experience with regard to the legal protection of TCEs against inappropriate and/or offensive use, which will be discussed in chapter IV. Their legal mechanisms can be seen as copyright-plus models as they offer complementary protection to the copyright system. The legal measures taken in these countries to provide protection against the inappropriate and/or offensive use of TCEs will first be discussed from a descriptive external perspective in light of the countries’ national legal system and case law. After having discussed each copyright-plus model, each mechanism will be evaluated in light of the normative assessment framework as established in chapter II. This chapter will answer the following sub question:
• To what extent offer the copyright-plus models from Australia and New Zealand protection against the inappropriate and/or offensive use of Traditional Cultural Expressions?
In recognizing the limitations of the copyright(-plus) regime(s), there has been some international development to provide sui generis protection for TCEs. However, establishing such a sui generis regime also brings along its own difficulties. The Tunis Model Law, the Model Provisions 1982 and the Pacific Model Law 2002 will first be described from an external perspective, which will also be followed by an evaluation in light of the normative assessment framework as established in chapter II. This chapter aims to answer the following sub-question:
• Does a sui generis regime provide a more appropriate legal measure against the inappropriate and/or offensive use of Traditional Cultural Expression?
Chapter II – The need for protection of Traditional Cultural
Expressions for indigenous peoples
2.1 Introduction
Indigenous peoples have a need to protect their TCEs from inappropriate and/or offensive use. As the concepts of TCEs are by no means clear-cut, I will start by discussing its holistic nature, the terminology that will be used throughout this research and the meaning of protection TCEs. In order to make these concepts more tangible, the haka and tā moko will be used as case studies. This chapter will be closed with the rationales for the protection of TCEs and the notion of protection in light of which the legal measures discussed in subsequent chapters will be assessed.
2.2 Defining the concepts of Traditional Cultural Expressions and its protection 2.2.1. From Folklore to Traditional Cultural Expressions
To this day there is no universal consensus as to who the beneficiaries of the protection of TCEs against inappropriate and/or offensive use are. Defining the beneficiaries has stirred some controversy within WIPO, which resulted in a bracketed working definition in its draft provisions on the protection of TCEs, a sui generis regime, that might result in a binding instrument in the (near) future. This debate revolves around the question if the definition should be limited to indigenous communities of which the definition is dependent on their colonial background or if, for example, ‘nations’ should be included when nations do not have a colonial history.3 The former understanding of ‘indigenous’ primarily derives from nations such as South
America, Australia and New Zealand.4 It is outside the scope of this research to provide a
comprehensive definition that will accommodate the various needs of all involved stakeholders. As the focus of this research is the Pacific and the majority of TCEs derives from or is held by indigenous peoples, they will be regarded as the beneficiaries of protection of TCEs for the purpose of this research. Despite the fact that the definition of TCEs is also subject to debate, a commonly accepted working definition is the understanding that indigenous communities, peoples and nations are:
3 Antons 2013, p. 1412 – 1413. 4 Antons 2013, p. 1411.
“those which, having a historical continuity with ‘pre-invasion’ and pre-colonial societies that developed on their territories, consider themselves distinct from other sectors of the societies now prevailing in those countries, or parts of them. They form at present non-dominant sector of society and are determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identities, as the basis of their continued existence as peoples, in accordance with their own cultural pattern, social institutions and legal systems”5
The holistic nature of TCEs that will be discussed in the next paragraph can be seen as part of indigenous peoples’ above-mentioned ethnic identity, cultural pattern, social institutions and legal systems. The justification for protection of TCEs as discussed in paragraph 2.4 will also further build upon this notion of indigenous peoples.
There is also no universally accepted definition of TCEs.6 Defining TCEs is a complex issue due
to its nature and the scope of protection. This is further complicated by the fact that indigenous peoples in general have a lot of similarities between their cultures such as the intergenerational aspect and the need for protection in perpetuity7, but often also differ enormously from each
other structurally and culturally and might not seek the same level of protection for their TCEs.8
It is therefore questionable if it is even viable to create a universal definition.
In fact even the terminology is debatable as various terms differing from region to region are being used. The term 'Expressions of Folklore' was commonly used in international discussions and is currently used interchangeably with TCEs within WIPO.9 However, not all indigenous
peoples commend the use of the term folklore as it is thought to have negative connotations by implying that indigenous peoples' culture would be of an inferior level, 10 and refers to static and
dead traditions.11 Therefore the term TCEs will be used for the purpose of this research.
Despite the fact that defining TCEs is a hard task they can be described as ‘potentially covering an enormous variety of customs, traditions, forms of artistic expression, knowledge, beliefs, products, processes of production and spaces that originate in many communities throughout the world’.12 They come in many different forms such as, but are not limited to, songs, dances,
5 Report Fact-finding Missions 2001, p. 23. 6 Consolidated Analysis 2003, p. 25. 7 Other needs will be set out below. 8 Stech 2014, p. 424.
9 WIPO Overview 2015, p. 15. 10 Von Lewinski 2004 p. 262. 11 Carpenter 2004, p. 55.
ceremonies and tales. TCEs can be tangible, intangible or include both components. Separation of these elements would be artificial as the tangible component can often be seen as the body of the expression of which the intangible component is the soul.13
WIPO also provides a bracketed working definition of TCEs in its draft provisions that broadly defines TCEs as any form of (in)tangible expression or a combination thereof that is linked to and transmitted from generation to generation within a traditional culture.14 It is outside the
scope of this research to provide a comprehensive definition of TCEs that will accommodate the needs and expectations of all TCE holders.
2.2.2. The holistic nature of Traditional Cultural Expressions
The holistic nature of TCEs is twofold. First of all, TCEs are part of the broader concept of Traditional Knowledge (hereinafter TK). TK is the intergenerational body of knowledge that is developed and sustained by and within a community and which often forms part of indigenous peoples identity.15 TK stricto sensu refers to knowledge as such often with regard to biodiversity
and genetic resources.16 In a broader perspective TCEs are an integral part of TK as the
embodiment of know-how, skills, and practices. They can thus be seen as two interconnected parts of whole. 17
Secondly, both TK and TCEs are inherently holistic, which is a feature that distinguishes them from mainstream knowledge systems and/or expressions that are often found in western societies. Indigenous peoples have the shared commonality of a holistic worldview in which every element of their culture, TCEs included, is inextricably linked to the natural world, the(ir) land, but also the spiritual world and their ancestors.18 As TCEs are passed down from
generation to generation, indigenous peoples can often be seen as guardians rather than, or in addition to, owners in the western sense of the word.19
Despite the close relationship between these two phenomena they raise distinct legal issues and involve a different set of stakeholders. Whereas TK involves the protection of knowledge it is
13 Consolidated Analysis 2003, p. 25.
14 WIPO Draft Provisions 2014, annex use of terms and art. 1, p. 5 – 6. 15 WIPO Overview 2015, p. 13.
16 Report Fact-finding Missions 2001, p. 25. 17 WIPO Overview 2015, p. 13.
18 UNFPII 2006, p. 2; Rimmer 2015, p. 267 – 269. 19 Rimmer 2015, p. 268.
mainly concerned with the areas of patent law and trade secrets. TCEs are concerned with the protection of their expression and enter the areas of inter alia copyright and trademarks. This interaction between TK and TCEs can potentially be overcome by two parallel and complementary systems that recognize their holistic nature and interdependence, which is the current path followed by WIPO.20 For the purpose of this research, I shall limit myself to the
legal protection of TCEs.
It is important to primarily keep the second holistic dimension of interconnection between TCEs, place and time in mind throughout this thesis. Separation of these elements would eliminate the essence of the quest for protection against inappropriate and/or offensive use of TCEs, which I will further elaborate on in paragraph 2.3. This could have detrimental ramifications for indigenous cultures and I therefore endorse a holistic approach to the subject matter.
2.3 Case studies: haka and tā moko
TCEs can have various forms and derive from a plurality of cultures. The haka and tā moko are two Māori TCEs that will serve as case studies for the purpose of this research. These TCEs are often used in the international arena. In addition to their distinctive features, TCEs also have general common characteristics, which will be the focus of this thesis and thus make these cases representative for the subject matter. These cases will show the lack of (international) protection against their inappropriate and/or offensive use and, as they are often intertwined, the whole spectrum of both tangible and intangible components will be covered.
2.3.1. Haka
The haka is the traditional ceremonial dance respectively war cry of the Māori, the tangata whenua of New Zealand. In contemporary New Zealand it is often performed during a pōwhiri, a traditional welcome ceremony, tangihanga, traditional Māori funeral, but also other various occasions such as weddings and graduations. It can convey a range of emotions varying from warfare and laying down a wero, a challenge, but also love, respect and karakia, prayer.21
20 Consolidated Analyis, 2003, p. 27. 21 WIPO NZ 2002, p. 6.
The most famous – and possibly the most appropriated – haka is Ka Mate, composed by the chief of Ngāti toa, Te Rauparaha in 1821. The haka should be performed in accordance with tikanga Māori, which prescribes how and by whom the haka can be performed. This particular haka is for example traditionally only performed by men, not by women.22 The haka is an
expression of the vigour, passion and identity of the race, a message of the soul expressed by posture and words. Ka Mate is also performed by the All Blacks, the New Zealand national rugby team, and thus soon came into the spotlight in the international arena.
Over the years the haka has multiple times been subject of perceived inappropriate uses. In 2006 the Italian car manufacturer Fiat launched an advertisement that reflected the atmosphere of a rugby match by playing crowd noises in the background whilst women dressed in black performed Ka Mate. The advertisement ends with a little boy poking out his tongue, which was supposed to replicate the whētero23.
The New Zealand Ministry of Foreign Affairs (hereinafter: MFAT) advised Fiat in advance that this particular use of Ka Mate would be inappropriate and asked them to have the haka performed by Māori or to use another haka that is appropriate for women. In addition to that Toi Māori Aotearoa24 proposed Fiat to seek advice from a Māori artist who also had Italian
ancestry and agreed to such consultation. Fiat however blatantly ignored these advices for unknown reasons and carried on with their advertisement.
We can even take it closer to home as Heineken also used Ka Mate in one of their advertisements during the Rugby World Cup. Both men and women were challenged to perform their best version of Ka Mate, without any further explanation on the actions or its meaning, in order to win Rugby World Cup tickets.25 It is unknown if Ngati Toa objected to the use of Ka
Mate in the Heineken commercial. However, given the fact that MFAT's advice to Fiat even fell on deaf ears, I can imagine that the impact of Ngati Toa's objection would not have made a big difference.
Ngati Toa’s attempt to trademark Ka Mate in the past was unsuccessful as well, as it would represent New Zealand as a whole rather than a specific iwi. In summing this up with the fact
22 Idem.
23 Whētero is inherent to the haka and entails the protruding of the tongue, which is only done by men. The haka
includes other actions such as pukana, which is the widening of the eyes. These expressions are used to give meaning to the words and express strong and deep-felt emotions.
24 A charitable trust that supports the development of contemporary Māori arts
that aforementioned political interventions were not followed by users, this makes a strong(er) case for the legal protection of TCEs against inappropriate and/or offensive use of TCEs.
2.3.2. Tā moko
Tā moko is the art of Māori tattooing which involves the carving of deep grooves that will be coloured into the skin. The origin is tapu – sacred – as tā moko originates from Rūaumoko, the Māori Atua – God – of volcanic activity and earthquakes. Traditionally only certain people were entitled to receive tā moko based on their status, rank or achievements. Each individual moko does not only indicate the wearer’s status, but also expresses whakapapa - genealogy – that is connected to the specific ancestral tribal identity of the wearer. It is not solely an expression of survival of whakapapa, but is rather part of an ancestral body in the present moment whereby the wearers are an individualized collective system connected by blood, flesh, ink and memory.26
Tattooing was highly tapu and extensive rituals and regulations governed the process.27 The
practice of tā moko is not as prevalent as it used to be in traditional times, but the customary rules underpinning this process are still in place. Therefore it can cause offence when tā moko is used outside of this context.
Whitmill v. Warner Bros was one of the prevalent cases that caused a stir in New Zealand. The American tattoo-artist Victor Whitmill designed a (self-proclaimed) tribal facial tattoo for Mike Tyson, which was a stylized version of tā moko. According to Mike Tyson his tattoo represents ‘a warrior tribe that is called the Maoris’. Whitmill sued Warner Bros for copyright infringement when one of the main characters of the movie The Hangover II appeared on screen with a very similar looking tattoo on his face. This use of moko has been considered to be inappropriate.28
Other examples that have been perceived as inappropriate and/or offensive use of moko include a Dutch restaurant in Amsterdam that named itself ‘Moko’ and decorated the restaurant with images of Pākeha faces covered with tā moko. But moko is also popular in the fashion scene as Thierry Mugler used moko inspired masks for the launch of one of his collections.29
26 Tan, p. 67.
27 WIPO NZ 2002, p. 6.
28 Tyson’s moko draws fire from Māori.” The New Zealand Herald, 25 May 2011. www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=10727836.
These examples again indicate the lack of international protection against inappropriate and/or offensive use of TCEs. Now that we got acquainted with the subject matter, I will proceed with the need for and the ratio of protection.
2.4 Justifications for the protection of Traditional Cultural Expressions
The question why TCEs should be protected should be placed in the historical and socio-economic context of indigenous peoples in general. After being subjected to colonization they have often lost their land (rights), their traditional way of life and they often still struggle to recover from their colonial past.30
There are various reasons for the legal protection of TCEs such as unfair competition and unjust enrichment. However, as the focus of this research is inappropriate and/or offensive use of TCEs the primary rationales are the protection of indigenous peoples (1) cultural integrity, (2) cultural development and (3) economic development. This is ultimately based on the right to self-determination by virtue of which indigenous peoples have the right to freely determine their political status and freely pursue their economic, social and cultural development.31 These
rationales will also serve as the benchmark in light of which the legal measures discussed in the consequent chapters will be assessed. I will further elaborate on this rationales in the next paragraphs.
2.4.1. Cultural integrity
It is recognized that the right to self-determination encompasses the right to maintain, control, protect and develop indigenous peoples' intellectual property over TCEs.32 TCEs are a means to
express their culture and thus their right to self-determination. TCEs should be prevented from cultural harm,33 as appropriation can lead to the loss of their cultural significance. Especially
taking into account their holistic nature, this can lead to the dissolution of their traditions and culture and can thus have negative consequences for cultural integrity.34
30 Wong & Dutfield 2010, p. 179.
31 art. 1 ICESCRl art. 3 UNDRIP. 32 art. 31 UNDRIP; Antons 2009, p. 247. 33 Pager 2012, p. 1844.
Furthermore TCEs can also be seen as a means to express ones identity. Identity comes in various shapes and sizes. I for example identify as Moluccan as one of my ethnic identities. If we narrow this down my family identity is the villages of Tamilouw, Hutumuri and Siri Sori or even narrower, Palijama from the village Siri Sori on Saparua. In essence identity is that element or those typical features that distinguish a person or makes a group unique.35
This uniqueness can also be found in TCEs. There is a Moluccan weaving tradition that is called tenun and can be found throughout the Moluccan islands. The people of Tanimbar however have developed their own unique patterns, which can be clearly distinguished from other Moluccan patterns and have their own symbolic meaning. Again, especially taking into account the holistic nature of TCEs, appropriation can negatively affect people’s identity when such distinct characteristics get lost. Control over their TCEs in order to prevent cultural harm is therefore a necessity to the survival of indigenous peoples and their culture.36
It has been argued that the underlying notion of prevention from cultural harm can turn against itself by causing overprotection that jeopardizes the survival of TCEs; self-determination could therefore not be seen as a justification. The reason for overprotection is that there is no specific mechanism with which the (severity of the) consequences of cultural appropriation can be estimated and evaluated. This could discourage experimentation and mummify TCEs in the historic past whilst contemporary (indigenous) artists are being silenced and some TCEs might become extinct – ultimately undermining indigenous peoples right to self-determination.37
Overprotection is a justified concern as TCEs might become obsolete when (indigenous) artists are discouraged to innovate them. It is correct that there is not one specific set of tools that measures the consequences of appropriation.38 I also do not expect that there will ever be such a
specific set of tools as indigenous cultures are often alike by nature, but different by form and thus a case by case approach is preferable.
The saying goes that when you are not invited to the table, chances are that you are on the menu. Articles 11(2) and 28 UNDRIP do not only allow indigenous peoples to sit at the table, but also to discuss and ultimately consent to one or more of the various options on the menu. In order to use indigenous peoples TCEs and/or implement legislative measures that might affect them,
35 Kvideland & Sehmsdof 1989, p. 12.
36 Wong & Dutfield 2010; p. 180; Anaya 2004, p. 26. 37 WIPO 2010, p. 3; Pager 2012, p. 1845
their free, prior and informed consent must be obtained.39 Communication with TCE-holders is
a key aspect and absence of consent should not be seen as a free ticket to use TCEs as one sees fit.
In this light, overprotection is not an obstacle that we are not able to overcome. TCEs are originally governed by indigenous peoples customary laws and there have been many efforts by indigenous peoples, (international) organizations and indigenous rights advocates to codify these customary practices in codes, guidelines and protocols.40 These customary laws could provide a
basis to estimate the potential damage that appropriation can cause. The Australian case Milpurrurru, which will be discussed in Chapter IV, provides a good example. In this case a specific customary rule indicated that the damage/consequence of erroneous use of the TCE by a third party would lead to inter alia physical punishment for the indigenous artist and/or being outcasted from the community.41
Protocols and guidelines might not be the metric measure that critics are aiming at to determine the probability and/or severity of the damage,42 but they do provide a solid starting point rather
than a general claim of cultural harm that cannot be evaluated. Trial and error can be a good learning process, except for when this unnecessarily leads to being outcasted from a community or potentially undermine the social structure of communities that are already struggling to survive.43 I will further elaborate on the aspect of cultural stigmatization when discussing cultural
development in the next paragraph.
2.4.2. Cultural development
Cultural development means that development of inter alia TCEs should occur in light of the respective applicable customary laws and traditions.44 A distinction can be made between internal
and external development whereby the former focuses on social issues within a community and the latter on TCEs as such. External development will be the focal point of this thesis, but it should be noted that these two variations can be complementary to eachother.
39 art.11(2) BC; art. 28 UNDRI.
40 The majority of the codes, guidelines and protocols are published on the WIPO website and can be found here: .
http://www.wipo.int/tk/en/databases/creative_heritage/.
41 Zografos 2010, p. 36. 42 Pager 2012, p. 1845.
43 See for example Bulun Bulun v. R&T Textiles, discussed in Chapter IV.
The objection to this justification is that it presumably assumes that ‘normal’ development is a gradual process that can be evaluated when developments occur. Moreover this would not even be possible as there are no extrinsic criteria to determine such an evaluation. The fact that there are intrinsic criteria by way of for example customary law has been gently pushed aside by critics. External forces could presumably only impose change and foster ‘real’ cultural development, as development in accordance with customary law by way of intrinsic criteria would only lead to selective innovation on indigenous peoples own terms.45
It is true that the interaction between experimentation, controversy and cultural development is twofold. On the one side they go hand in hand as experimentation often causes controversy, which in its turn also leads to a new take on the whole matter and results in cultural development. On the other hand there is an inherent and unavoidable tension between these three, as it forces you to think outside the box or in this case outside the usual traditional and cultural context.46
The assumption that cultural development is confined to outsiders using TCEs by way of external forces imposing change is rather doubtful. First of all, this tends towards colonialism post colonialism and in light of indigenous peoples’ struggle to recover from their colonial past, this could be the last straw to break the camel’s back. Moreover, it overlooks the possibility that controversial innovation that explores the boundaries of customary law can also come from the community itself, leading to cultural development.
Moko kauae is for example a chin moko traditionally worn by Māori women in opposition to the full-faced moko traditionally worn by men. Recently two Māori men caused a stir in New Zealand by wearing moko kauae. This was highly controversial and there remains to be no overall consensus on this development. 47 However if this is considered to be accepted, by a part
or the whole community, it cannot be said that such a development is selective on their own terms, as it oversteps the boundaries of customary law. In essence customary law is ever evolving and it is therefore not necessary to solely place the fostering of cultural development in the hands of outsiders. 45 Ibid, p. 1846 - 1847 46 Pager 2012, p. 1847. 47https://www.maoritelevision.com/news/regional/enhancing-moko-kauae-masculine-touch; https://www.tvnz.co.nz/one-news/new-zealand/mans-slick-new-female-only-moko-kauae-sparks-gender-discussion.
As mentioned earlier another often heard critique is that such control over TCEs would lead to cultural stigmatization. Innovation of TCEs in light of traditional and cultural customs is a form of preservation, but this does not equal stagnation. It rather calls for the careful appraisal of and respect for the diverse needs, agendas and patterns of cultural (re)production that happen within indigenous communities, and as they interact with the global flow and exchange of ideas48 whilst
innovating TCEs. Bearing in mind that customary law is not a static set of rules, preservation is a form of innovation and thus fosters cultural development rather than stigmatization.
Depending on the nature of the TCEs, there are indigenous peoples that try to meet the western call for the use of their TCEs. For example, as an alternative to moko Māori developed the art form of kirituhi, which is a Māori styled tattoo for non-Māori that does not incorporate Māori symbolism and/or whakapapa. We can see here that a culture is able to move forward and adjust to the present time. Indigenous peoples are willing to share, but it ultimately comes down to reciprocity and respect for their culture.
2.4.3. Economic development
The legal protection of TCEs is firstly an economically efficient tool for indigenous peoples to exploit their TCEs to their economic advantage. As this contributes to their livelihood, indigenous peoples will also be able to contribute to a stronger economy and achieve greater economic independence for their communities. Altogether this will contribute to the thriving development of their TCEs.49 Furthermore such protection can reduce the current so to say
unlimited commercialization of TCEs, whilst the traditional right holders are not benefitting from such exploitation.50 Dependent on the nature of TCEs commercialization does not by
definition has to be problematic, as the marketing of TCEs can also foster TCE-holders economic development and strengthen their cultural identity.51 The further impact of cultural
commodification is outside the scope of this thesis.
Indigenous peoples are also often unable to compete with third party businesses in terms of price and market access, especially in the global crafts market. The former still produce their
48 Pager & Candeub 2012, p. 323.
49 Indigenous Development Strategy 2011, p. 6; Pager 2012, p. 1847. 50 Pager 2012, p. 1848.
crafts using traditional techniques whilst outsiders who (also) commercialize TCEs regularly have mass production with lower production costs and thus sell their crafts for a lower price. This does not only affect their economic development, but can also undermine cultural integrity as their traditional techniques can consequently become extinct.52
2.4.4. The rationales for protection
It is outside the scope of this thesis to discuss whether TCEs should be protected, to provide a draft proposal for protection and to examine the maintainability of such a regime in practice, such as the enforceability on a local level. This thesis is rather focused on identifying the most suitable model for protection against inappropriate and/or offensive use within the IP-system, with a focus on copyright and a sui generis regime.
The subsequent chapters will examine which of the models of protection best provides protection for all rationales as discussed above, if at all, simultaneously. The criteria are as follows:
1. cultural integrity: cultural integrity of TCEs is protected against the loss of cultural significance in the form of the loss:
a) and/or demeanour of cultural values embodied in respectively underpinning the TCEs in question; and/or
b) identity; and/or
c) otherwise negative ramifications
2. cultural development: the legal measure contributes to the external cultural development of TCEs in light of the customary law and traditions of the respective TCE holder(s); 3. economic development: any monetary or otherwise financial benefit accruing to the
respective TCE holder(s).
2.5 The notion of protection
This paragraph will further elaborate on the meaning of protection, as clarity on this notion is a key element in order to best meet the needs and expectations of TCE-holders as discussed in previous paragraph. 53
The term protection can have various meanings, whereby IP-protection should be distinguished from safeguarding and preservation of TCEs.54 The latter involves cultural heritage law that
ensures the maintenance of TCEs through identification, documentation and promotion.55 For
example, documenting TCEs that are only known to a few in order to pass it on to future generations can be seen as protection.56 This however does not prevent inappropriate and/or
offensive use of TCEs and that is where IP-protection comes into play.
The focus of this research is copyright as a model for protection due to the similarity between TCEs and copyright protectable subject matter.57 Moreover, copyright can provide protection
against distorting or demeaning use of a work and provides the copyright holder with an exclusive right – however subjected to exceptions and limitations – to authorize reproduction or adaptation of his work, which often entails the inappropriate use of TCEs.58 I will further
elaborate on the nature of copyright in chapter III. Additionally, in light of the public interest in the use of TCEs, copyright could provide a good balance, as it simultaneously stimulates creativity and public dissemination of works.59
Building further on IP as appropriate form of protection, the notion of protection for the purpose of this research entails the legal means to restrain third parties from undertaking the unauthorized act of using TCEs in an inappropriate and/or offensive manner.60
Inappropriate and/or offensive use of TCEs by no means automatically constitutes a set of overarching standards that can be applied to all TCE-holders in general, as they might seek a
53 WIPO 2004, p. 17 at. 53. 54 Ibid, p. 17 at. 52. 55 Ibid, p. 17 at. 53. 56 Consolidated Analysis 2003, p. 12. 57 Zografos 2010, p. 1. 58 WIPO 2004, p. 17 at 52.
59 Consolidated Analysis 2003, p. 12; WIPO 2004, p. 18 at 54. 60 WIPO Policy Objectives 2004, p. 12 at 24.
different level of protection for their TCEs.61 The following categories will therefore serve as a
general guideline to indicate inappropriate and/or offensive use throughout this thesis:
- distortion and degradation of cultural significance: TCEs can be distorted when altered to make it marketable without the consent of TCE-holders62 e.g. the use of Ka mate by
Fiat. If this is also done contrary to the respective customary law, this can degrade its cultural significance e.g. the loss of identity when altering unique traditional Moluccan patterns.
- disclosure63: some TCEs are kept secret for outsiders of the community or are even
limited to certain elders of a tribe due to their highly sacred nature that often has its roots in religion.64 It can for example be the embodiment of knowledge given down by the
Gods and disclosure to the public will disestablish the relationship and trust between the TCE-holder(s), their ancestors and the Gods.65 This could even undermine complete
social structures of communities that are founded on those TCEs.66 As the survival of
communities lies at the core of the right to self-determination, there is arguably even greater justification for the protection of secret TCEs. TCEs can also be sacred, but publicly disclosed; its inappropriate use falls under the previous category.67
- derogatory, libelous, defamatory or other fallacious use: as a rest category, but which uses can have other negative ramifications indigenous peoples’ culture.68
For the purpose of this research the determination of inappropriate and/or offensive use should occur on a case by case basis, taking into account the applicable customary law either as a factual matrix or otherwise recognised in the respective circumstances that can be found in e.g. guidelines or by consulting TCE holders. I am aware of the possible divisiveness even within a community with regard to customary law, however taking into account every individual position is beyond the scope of this research and I will therefore focus on the overarching customary principles that are commonly considered to be applicable in the given circumstances.
61 Lai 2012 I, p. 15 62 Zografos 2010, p. 5. 63 Idem. 64 Li 2014, p. 175. 65 RaoRane 2006, p. 829 66 Zografos 2010, p. . 67 Li 2014, p. 175 68 Zografos 2010, p. 6.
2.6 Interim conclusion
The need for legal protection of TCEs follows from many cases of which moko and the haka are just two examples. There is no universally accepted definition of TCEs and due to its nature it is unlikely that there will ever be such a definition. Even the terminology is debatable, but as indigenous peoples commend the term TCEs, this term will be used throughout this research. The holistic nature of TCEs should always be kept in mind in search of the best legal protection. When lost out of sight this could do more harm than good for indigenous peoples.
The legal protection of TCEs against inappropriate and/or offensive used is justified as they are a means to express indigenous peoples right to self-determination. It ensures the survival of their cultural integrity and fosters cultural and economic development.
Chapter III – Copyright: the (in)appropriate regulatory
scheme
3.1 Introduction
Under the Berne Convention (hereinafter BC) copyright protection creates exclusive rights in original literary and artistic works.69 Albeit varying per country and legal tradition(s), it generally
at least entails the economic rights of reproduction70, distribution71, adaptation72 and otherwise
communication to the public73 of a work. Adaptations can also constitute a new work. Besides
economic rights, copyright can also entail moral rights that can protect a work against inter alia distortion.74
Many TCEs, such as moko, are copyright protectable subject matter. Although copyright protection seems well suited for the protection of TCEs, its key concepts have a few inherent limitations that will be discussed in the next paragraph. These limitations should however be distinguished from exceptions such as quotation and limitations such as abuse of copyright, and can rather be seen as shortcomings of its key concepts.75 In recognizing these general limitations
there has been some international movement to integrate specific protection for TCEs in the copyright system. Paragraph 3.3 will discuss to what extent that has led to (additional) copyright protection of TCEs and if and/or how that offers a solution to the limitations discussed in paragraph 3.2.
3.2 Copyright’s inherent limitations in protecting Traditional Cultural Expressions Several criteria such as originality, fixation and identifiable authorship must be met in order for a work to receive copyright protection. This paragraph will discuss whether these criteria impose insurmountable obstacles for the protection of TCEs due to their peculiar nature.76 In addition
to these prerequisites, other copyright characteristics such as the concept of ownership, the term
69 Art. 2(1) BC. 70 Art. 9 BC.
71 Art. 6 WCT; art. 14 BC. 72 Art. 12 BC.
73 Artt. 11, 11bis, 11ter BC . 74 Art. 6bis(1) BC.
75 Goldstein & Hugenholtz 2013, p. 404. 76 Zografos 2010, p. 45.
of protection and moral rights will also be discussed in order to identify the shortcomings of copyright protection for TCEs.77
3.2.1. Originality
A work has to be original in order for it to receive copyright protection.78 This is where the
distinction between TCEs stricto sensu and contemporary notions of TCEs comes into play.79
TCEs stricto sensu generally encompass the pre-existing traditional culture as such, which is an intergenerational process of creative activity within an indigenous community whereby the underlying TCE is consecutively imitated in perpetual evolution.80 The role of innovation in this
regard is quite limited as the value of folklore lies in faithful reproduction. TCEs as such are often the main means of passing down history, culture and religion to future generations and therefore innovation is restricted.81
There is no universal standard of originality, but it is commonly understood that a work must constitute the author's own intellectual creation.82 Arguably the notion of originality is inherently
incompatible with TCEs stricto sensu as these, at the core, rely on faithful reproduction and emanate from a community as a whole; therefore not expressing the author’s own (individual) intellectual creation. .83
Contemporary TCEs on the other hand are literary and artistic productions based upon, derived from or inspired by TCEs stricto sensu, but depart from the traditional form by adding new original elements. The threshold in copyright for originality is generally low and therefore contemporary TCEs often qualify as copyrightable subject matter.84 The downside is however
that this originality requirement can be met by every artist worldwide, that wishes to use the respective TCEs, as these are generally in the public domain. This might be troublesome for
77 Zografos 2010, p. 47. 78 Art. 2(1) BC.
79 Consolidated Analysis 2003, WIPO, p. 12 – 13. 80 Von Lewinski 2004, p. 293.
81 Farley 1997, p. 21.
82 Von Lewinski 2004 , p. 292. 83 Von Lewinski 2004 p. 293.
indigenous communities, as this does not prevent users from inappropriate and/or offensive use of their TCEs.85
Ka Mate is for example often performed in multiple contemporary variations at touristic attractions throughout New Zealand. For the originality requirement this would mean that the specific choreography of Ka Mate as performed by the respective groups could constitute a contemporary TCE and therefore copyrightable subject matter. The problem that third parties such as Fiat and Heineken can still use Ka Mate for all intents and purposes is however not eliminated by such protection.
Furthermore, style is unprotectable subject matter under copyright law. Take for example the pūhoro, which is a Māori tattoo that is traditionally only worn by men on their thighs and legs. Copyright law does not prevent a brand to make a stylized version of the pūhuro and print it on pants for women, claiming that they are Māori in origin. Although it is a stylized version this can still cause great offence and copyright does not offer any protection against the inappropriate use of such a design.
3.2.3. Fixation
Fixation is an optional requirement86 albeit an important one when it comes to TCEs, as it
considerably reduces the eligibility for copyright protection. The fixation requirement is characteristic for common law systems whereas most civil law countries also protect intangible expressions.87 Indigenous cultures are often predominantly based on oral traditions where TCEs
continue to exist in intangible forms. Consequently the majority of TCEs falls outside the scope of protection.
Secret and/or sacred TCEs are often intangible; fixation could therefore firstly undermine indigenous practices as it increases the possibility of access to and dissemination of fixed TCEs.88
Secondly, fixation is often done by outsiders to the community. When a TCE-holder allows e.g. a painter to paint an oral TCE, copyright will be vested in the latter as the creator of the painting, unless the rights are allocated to the TCE-holders by way of agreement. This is also the case when researchers film a ritual for research purposes, and, depending on the jurisdiction,
85 Farley 1997, p. 22. 86 Art. 2(2) BC.
87 Von Lewinski 2004, p. 29. 88 Janke 2012, p. 10.
copyright or neighbouring rights will be vested in the fixer. Moreover, the fixer is not bound by customary law nor has cultural obligations, i.e. leaving the underlying TCE unprotected, and can thus use his work to the advantage, but also disadvantage of TCEs-holders.89 A fiduciary
obligation between the fixer and the TCE-holder could somewhat mitigate this risk.90 I will
further elaborate on the concept of fiduciary obligations in chapter IV.
3.2.4. Authorship
A work must have an identifiable author in order to receive copyright protection.91 The creation
of new TCEs often does not bring along the difficulty of identifying the author – when a moko artist for example creates a new moko, he can be identified as the author. The creation of TCEs stricto sensu is however often a group process in which many people usually participate at various levels and in different times. As this evolutionary intergenerational process is inherent to the creation of TCEs it is often impossible to attribute the copyright to one specific person or group of persons, at least for those TCEs that date back to time immemorial.92 Copyright
mechanisms with regard to a plurality of authors come to mind to potentially give recourse to the inherently communal nature of TCEs.93
Some critics however argue that TCEs are individualistic by nature and should not be treated differently from other works within the ambit of copyright law.94 The assumption of a communal
nature would only rely on a superficial notion of collectivity.95 Presumed is that it is rather
impossible that TCEs are created by a community and it is therefore seemingly given as a fact that TCEs are created by an individual, after which over time it becomes a result of ‘collective wisdom’ due to the contribution of many independent and individual artists to the work in question.96 Furthermore this distinction is only an evidence-based difference, as in contrast to
other works, contributors can generally not be traced back due to TCEs intergenerational and often oral nature.97
89 Janke 2012, p. 10. 90 Janke 2009, p. 10 – 12. 91 Zografos 2010, p. 47.
92 Farley 1997, pp. 29 – 30; Von Lewinski 2004, pp. 294-295. 93 Von Lewinski 2004, p. 296.
94 Cui 2009, p. 17. 95 Cui 2009, p. 19. 96 Cui 2009, p. 18. 97 Cui 2009, p. 19.
In contrast I find this a superficial take on the holistic nature of TCEs, which is at the core of TCE holders’ quest for protection of the subject matter. It for example ignores the fact that many indigenous peoples’ believe that some of their TCEs are handed down from the Gods – for example in the case of moko – and thus consequently do not have an individual creator. Unless one ofcourse argues that the Almighty is the copyright holder, but I however highly doubt that. Furthermore, evidence for such an assumption can often be found in customary law and other traditions of the respective community, which I will further elaborate on in the consequent paragraphs.
The second assertion underpinning the assumption of a superficial notion of collectivity does have merit to the extent that a general all-encompassing communal copyright on the whole does not take into account the sometimes complex traditional structures. Cui for example refers to the Bulun Bulun case, which will be discussed in chapter IV. This case demonstrates that based on customary law a distinction can be made between the copyright on a TCE as a painting for the painter and an exclusive right on the traditional values embodied in the paining which belonged to the community.98
It is true that a general communal right could deny individual artists’ copyright in the respective work and it is therefore questionable if an automatic copyright for the community applicable to all TCEs is the right way to handle inappropriate and/or offensive use. A rather nuanced approach would however be in place. The statement that the communal nature of TCEs is a western scholarly fiction is in my opinion incorrect.99 At the outset, it is somewhat difficult to
understand why customary law and practices can provide a solid basis to indicate complex communal systems, but is denied effect – as a factual matrix or otherwise – to underpin the holistic nature of TCEs. Even more so since it is argued that by way of exception customary law can be acknowledged to allocate rights to the respective community. This implicitly acknowledges the communal nature of TCEs.
Moreover, it seems as if all TCEs are tarred with the same brush in two ways. By indicating that the aforementioned case inter alia suggests that the individual authorship of the artist should not be ignored embraces the distinction between TCEs stricto sensu and contemporary notions of TCEs. It however fails to comprehend the fact that one does not necessarily preclude the other. The concept of tā moko in general can for example be seen as a TCE stricto sensu, given down
98 Cui 2009, p. 21. 99 Cui 2009, p. 20.
by the Gods and held by the Māori community in general. This however does not mean that a contemporary tohunga tā moko does not have copyright on its designs.
Continuing with customary law as an indicative complex, it is nearly impossible to automatically generalize the Bulun Bulun rationale as various indigenous communities have their own specific customs. Indigenous communities and TCEs might be similar by nature, but are often different by form. It might well be the case that other communities do not believe in a division between the underlying values and the contemporary expression of the artist and likewise the division of rights. A case-by-case approach would be more appropriate.
At first sight joint authorship offers a logical possibility for TCEs stricto sensu as this mechanism identifies the co-authors as co-owners of the joint work. As a general rule for this mechanism each contributor must have brought a creative expression to the work that are inseparably connected. In addition it is essential to this mechanism that the author had the intention to create a collaborative work.100 It is rather far from a perfect fit to say that multiple
generations have the intention to collaborate on the creation of TCEs. Furthermore, due to the preservative nature of intergenerational transmission of TCEs, innovation is rather limited and it is not always the case that every generation contributes a creative expression to the work. In the case of TCEs copyright should not only vest in those who actually create the work, but also other TCE holders.101
Another option would be to qualify TCEs as a collaborative work. The mechanism of collective works has varying connotations in different jurisdictions, but as a common ground rule a collective work is a work made by two or more authors whereby the separate creative expressions lack the coalescence required for a joint work as previously discussed.102 As
innovation of TCEs stricto sensu is rather limited, it is arguable that new generations do not create a new work that can be combined with the work of a previous generation in order to qualify the TCE stricto sensu as a collective work.
A third option would be to regard TCEs as works made for hire, which is a legal mechanism that does not exist in many countries.103 The author could be seen as a quasi-employee of the whole
community as some copyright regimes offer the possibility for corporate entities to claim
100 Goldstein & Hugenholtz 2013, p. 250 – 25. 101 Farley 1997, p. 33.
102 Goldstein & Hugenholtz 2013, p. 253. 103 Sutherland, Asbill & Brennan LLP, p. 1.
authorship rights as an employer for whom the work has been prepared.104 The incompatibility
with the inherent communal nature of TCEs however strikes again, as it is still required to single out the original creator and identify him as the quasi-employee.105 It is also imaginable that in
certain circumstances indigenous peoples will refuse to identify the original creator as a quasi-employee of the community. It would, for example, go against all odds to say that Māori Atua Rūaumoko, as the creator of tā moko, can be seen as employee of the Māori community.
3.2.5. Ownership
As a common ground rule, the creator of the work is generally both the author as well as the copyright owner of the economic and moral rights. This, however, is not by definition the case as contrary to moral rights, economic rights can be transferred to another party.106
Indigenous peoples have a different conception of ownership embedded in their customary law than the notion of ownership used in copyright law. In copyright terms to own means conferring an exclusive right to the copyright holder to authorize uses to the exclusion of others. In terms of indigenous customs in general, to own does not by definition mean 'ownership' in the Western sense. It often also conveys a sense of steward- and/or guardianship, which is a more comprehensive responsibility than the right to merely exclude others from certain uses of TCEs. The haka for example is a taonga and every taonga has a kaitiaki, a custodian; those whose lineage or calling creates an obligation to safeguard the taonga itself and the mātauranga that underlies it. Ngāti Toa is the kaitiaki of Ka Mate and has inter alia the obligation to ensure that this taonga is used in accordance with tikanga.107 The Wai 262 claim, in New Zealand, which will
be discussed in paragraph 4.3, will further elaborate on the distinction between ownership and guardianship. Despite the fact that this case might not offer a specific solution, it does show us the possible flexibility of a national legal system to incorporate these distinctive concepts of ownership.
These divergent conceptions of ownership could find practical meaning in situations where indigenous artists are entitled and subject to copyright rules and simultaneously to customary
104 Farley 1997, p. 35.
105 Von Lewinski 2004, p. 297.
106 Goldstein & Hugenholtz 2013, pp. 4 & 247. 107 Wai 262, Waitangi Tribunal p. 31.
law.108 This is often the case for contemporary notions of TCEs. For example, if an Māori kapa
haka artist creates a contemporary rendition of Ka Mate, of which he is the copyright owner, he is legally entitled to exploit the work for his own benefit. In addition, he is also bound by customary law to abstain from any actions that might harm the communal interests of Ngati Toa in Ka Mate.
Article 17 BC could potentially offer recourse to acknowledge such cultural obligations as this offers the possibility for countries to permit, control or prohibit, by legislation or regulation, the circulation, presentation or exhibition of any work or production in regard to which the competent authority may find it necessary to exercise that right. If customary law would be recognised for this purpose it would oblige the indigenous artist to, to some extent, act in conformity with his cultural obligations.109 There would be no conflict between customary law
and copyright, as the latter grants an exclusive right to authorize certain uses by others rather than a positive entitlement to exercise rights.110 Copyright therefore does not entitle or oblige an
artist to act contrary customary law.111
As will be discussed in chapter IV the mechanism of a fiduciary duty has its pitfalls. Acknowledgement of customary law under art. 17 BC would be a positive development for TCE-holders as it eliminates the need for a fiduciary duty. Such protection would however be limited, as its scope is constrained to the circulation, presentation or exhibition of any work, which is considerably narrower than the economic rights of reproduction, adaptation and communication to the public. It would for example not prevent any artist from creating a contemporary rendition of Ka Mate that might be incredibly creative, but not in conformity with customary law and harmful for Ngati Toa.
Moreover, implementation by member states of such a mechanism is however highly doubtful due to the fact that it is dependent on national recognition of customary law. As will be discussed in chapter IV there is a general reluctance to grant legal recognition to customary law.
108 Consolidated Analysis 2003, p. 40. 109 Consolidated Analysis 2003, p. 41. 110 Consolidated Analysis 2003, p. 4. 111 Allen & Xanthaki 2011, p. 253.
