Traditional cultures, indigenous peoples and cultural institutions

• Pages: 23-25

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Handling collections

which comprise

elements of cultural

heritage often means

that museums must

resolve complex IP

issues.

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Museums, libraries, archives and other cultural in-

stitutions play an invaluable role in preserving and

providing access to their collections, an endeavor

that can raise a number of intellectual property

(IP) issues, especially in a digital environment.

Handling collections of elements of cultural her-

itage, or “traditional cultural expressions” (TCEs) of-

ten brings about specific and even more complex

IP issues.

Indigenous peoples and traditional communities

have expressed concerns that the very process of

preserving TCEs, like documenting and displaying,

for example, a traditional song or tribal symbol

can open the door to misuse or misappropriation.

Using a fictional example, this article illustrates the

IP issues involved in safeguarding cultural her-

itage. It is inspired in part by a case study featured

in Dr. Jane Anderson’s “Access and Control of

Indigenous Knowledge in Libraries and Archives:

Ownership and Future Use.”

A Visit to Community X

In the 1960s, a researcher, Ms. Y, interested in studying

traditional cultures and their symbolism, went to com-

munity X. During her field visit, she made film and

sound recordings of an important ceremony. The

recordings featured the respected elder and leader of

community X. As Ms. Y made the recordings, she owns

the rights to those works and to objects of related rights.

Ceremony X may be qualified as a TCE. According

to the Draft Provisions for the Protection of

Traditional Cultural Expressions/Expressions of

Folklore, TCEs are any form, whether tangible or in-

tangible, in which traditional culture and knowl-

edge are expressed, appear or are manifested.

TCEs are products of creative intellectual activity,

including individual and communal creations.

They are characteristic of a community’s cultural

and social identity and cultural heritage and are

maintained, used or developed by that communi-

ty, or by individuals having the right or responsi-

bility to do so in accordance with the customary

laws and practices of that community.

The collections of TCEs held in cultural institutions

are priceless records of ancient traditions and

community histories integral to indigenous peo-

ples’ identity and social continuity. They reflect a

community’s history, traditions, values and beliefs.

In many cases, these TCEs have been documented

by researchers from outside the community. The

rights to that documentation – and the documen-

tation itself – are often not owned by the commu-

nity, but by those who made the films, recordings,

photographs, etc. As a result, communities often

believe that because they are not the owners,

they have lost control over the content.

Some 20 years later, the son of the respected elder and

leader of community X composed a song about his

community. To accompany the song, he decided to

make a video clip showing images of his father. While

there were not many images of his father available, he

remembered that an anthropologist had come to the

community many years before, and he eventually lo-

cated that anthropologist’s recordings at the central

national archive. At his request, the archive sent a

copy of the recording to the community without en-

quiring as to its intended use. The son of the leader

then incorporated footage of the ceremony in the

1960s film into his own video clip.

Was there copyright infringement? Not obtaining

Ms. Y’s permission meant that incorporating parts

TRADITIONAL

CULTURES,

Indigenous Peoples and Cultural Institutions

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