D-Lib Magazine
May 2002

Volume 8 Number 5

ISSN 1082-9873

Indigenous Cultural and Intellectual Property Rights

A Digital Library Context

Robert Sullivan
Te Tumu Herenga / The University of Auckland Library
Aotearoa / New Zealand
<r.sullivan@auckland.ac.nz>

Introduction

Recently a watershed moment occurred in the world of intellectual and cultural property rights in Aotearoa, New Zealand, when the "Toi Iho" trademark [1] was launched at the Auckland City Art Gallery. Elders and leaders of the art world and of the tangata whenua — the indigenous local tribe — gathered to celebrate the physical reality of an idea/passion/signifier that had been discussed in various guises by Maori for decades.

The Toi Iho trademark asserts authenticity in the creative arts and provides a cultural context for works that have a Maori lineage or whakapapa. The Toi Iho trademark signifies an ethos of ownership, respect, and active engagement with the Maori people from which the culture sprang.

Within this context, I begin a discussion about the digitization of the creative works of our ancestors. Works cauled in the times of the gods — when Tane separated his parents, the heavens and the earth [2], when Ruaumoko [3], the foetal earthquake-god, kicked the belly of the earth mother to create the ravines and mountains of Aotearoa / New Zealand, and when Maui [4] hauled his great fish — the North Island — out of the domain of Tangaroa, the ocean. This created wisdom has been handed down by the ancestors since Kupe [5] first discovered Aotearoa near the end of the first millennium.

Digitizing Cultural Materials

Anything can be digitized: any story, legend, map, chart, blueprint, or equation. Any storyteller recorded in video or sound format can be transformed into a digital rendition for access on local or global networks.

When digitizing cultural materials, the important questions are: How do we send a message that strengthens the holistic context of each cultural item and collection? How do we ensure that both indigenous and non-indigenous peoples receive the message? How do we digitize material taking into account its metaphysical as well as its digital life?

In August 2001, I was fortunate to participate in the Hilo, Hawaii, meeting on "Digital Collectives in Indigenous Cultures and Communities" [6]. This collaboration of indigenous, technical, financial, and library experts created a vision that needs to be embraced and driven by indigenous communities themselves: "Building a Global Indigenous Library" (a suggested project in the Hilo meeting report).

Many communities want training and employment opportunities. Building a global digital library requires first people and infrastructure, and then content. Various technical protocols and standards must be met to ensure that the resource is accessible — and accessible in the manner intended. Dealing with these technical issues alone provides an enormous employment opportunity. Consequently, there is potential for material returns from sharing the cultures of indigenous communities for the benefit of the world.

A necessary component of DL infrastructure is the equipment to deliver and receive information. Many communities have narrow-width access to the Internet — if they have telecommunications or computers at all. How to resource communities so that they can access the World Wide Web is an issue for everyone — an issue with even more resonance for indigenous groups.

DL infrastructure also includes administrative structures. In the D-Lib Magazine "Special Issue on Digital Technology and Indigenous Communities" [7], Professor Loriene Roy articulates a model of governance that could be transferred to the Indigenous Digital Library (IDL). Suffice it to say, governance is an important issue that will impact the IDL's effectiveness in working with communities to gather information.

Indigenous cultural and intellectual property (ICIP) management must be articulated from the start of any IDL project. Barambah and Kukoyi [8] advocate the development of cultural protocols that overcome legislative deficiencies and difficulties.

A key legislative deficiency affecting IDL projects, in particular, is the temporary and individualistic protection that copyright offers to creators of ICIP. Copyright expires after a defined term. Copyright is assigned to individuals. Therefore, the collective nature and enduring guardianship — care, development and preservation — with which indigenous communities imbue their cultural and intellectual property, cannot be addressed by copyright alone. The New Zealand initiative of the Toi Iho trademark ameliorates this situation for the Maori artistic community. A similar protocol initiative, to set up systems and procedures to ensure that local indigenous customs are maintained in regard to their information, would ensure the integrity of IDLs.

The New Zealand initiative also enables cross-cultural partnerships. The toi iho^TM Maori Made has two companion trademarks: toi iho^TM Mainly Maori, and toi iho^TM Mauri Co-Production. The first two trademarks cannot be used by businesses, only by individual artists. However, the toi iho^TM Maori Co-Production can include use by business entities. The trademark can also be used to authenticate exhibitions and may provide an interesting application for digital repositories.

The protocols articulated by indigenous communities serve many purposes. They satisfy communities that their information will be contextualized in a manner that acknowledges and maintains everything the communities hold to be significant. Protocols perform an educating function for the library and information community. Thus, they potentially reduce infringement in other information spheres.

The Australian Aboriginal article by Barambah et al. [8] raises issues of relevance to New Zealand Maori:

"The issues involved include: Who can speak for what? Who has the authority for what? Whose custom? Whose heritage? Whose culture? And whose identity? All these questions are extremely important." (p.33)

These issues are also transferable to the global indigenous sphere.

Authenticating material already held by institutions of memory

In the Maori context, and indeed the Polynesian context, much information has already been collected and systematically catalogued in institutions of memory such as the Alexander Turnbull Library (http://www.natlib.govt.nz/en/collections/turnbull/index.html). Most of this information has been gathered using nineteenth century methods — some involving payments, which thus has encouraged false-information to be given and published [9]. If a digital collection were to be created using such material, out of legal copyright, the digitizing institution would have the responsibility of placing the material in its appropriate context, by liaising with the communities where the information originated.

One such case involves the Department for Courts of New Zealand, which holds copies of the Maori Land Court Minute Books of evidence [10] given to establish legal title to most of the Maori land in New Zealand. "Maori are compelled by statute to deal with the Maori Land Court if they want to transact business over their land" (p.11). The historical purpose of the Court was to prepare the land for purchase by settlers. Some of the evidence is contentious, and covers historical battles and family feuds.

The Department for Courts is completing a project involving the digitization of all the minute books, covering 12.2 million pages (and growing 5 percent annually). Prior to the project, a series of consultative meetings were held throughout the country. From these meetings, a number of principles emerged:

1. The information must be unable to be changed or altered.
2. Sacred, genealogical information should only be accessed by individuals after they have consulted with the relevant tribes.
3. Institutions of social memory must be informed that genealogical information contained in copies of the Land Court records that they hold is restricted information.
4. It must be ensured that sacred information "…is not used in a manner contrary to Maori cultural values, or for commercial purposes".
5. Maori assert ownership of the record.

The principal recommendation of the report is that a group be established, with representation from interested tribes, to formulate policies on access to the record — in both documentary and digital formats.

Authenticating contemporary material

The process for digitizing contemporary cultural information from indigenous communities is less complex than for older materials, and has been amply covered by the "Digital Collectives" collaboration report [11]. Some of the guiding principles from the report pertaining to ICIP invite digitizing groups to:

1. Affirm indigenous communities as equal partners in future collaborations.
2. Uphold cultural intellectual and property rights of communities.
3. Ensure cultural integrity.
4. Interpret, analyze, and synthesize information for general audiences.
5. Require that "Digital libraries should be developed and controlled by indigenous peoples and self-determined" (p.6).
6. Understand the "importance of community-based guides [to digitization] that express [sic] tribal values" (p.8).

Two other informational documents pertaining to ICIP are: "The Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples" [12], ratified by over 150 indigenous representatives from 60 UN member states [13], and the Draft Declaration on the Rights of Indigenous Peoples. The former document asserts cultural ownership of indigenous knowledge — this includes development, promotion and protection, as well as that content creators must be first beneficiaries. Articles 12 and 29 of the 1993 Draft Declaration on the Rights of Indigenous Peoples [14] (UN Commission on Human Rights) also highlights the need for "full ownership, control and protection" of ICIP.

The first international indigenous librarians' forum Proceedings [15] endorses both the Mataatua Declaration, and the UN Draft Declaration.

Conclusion

A cornerstone of an Indigenous Digital Library is that the indigenous communities themselves control the rights management of their cultural intellectual property. Local cultural protocols need to be documented and followed prior to the creation of digital content, and communities must be consulted with regard to the digitization of content already gathered by institutions of social memory. As noted in the Hilo meeting report, indigenous leaders should gather to plan and confirm the path ahead.

Notes and References

[1] Toi Iho, a registered trademark of authenticity and quality for Maori arts and crafts. < http://www.toiiho.com/> (last accessed May 8, 2002).

[2] National Library of New Zealand, <http://www.natlib.govt.nz/flash.html> (last accessed May 8, 2002). This site opens with a summary of the story.

[3] Weka, Hana. Ruamoko,<http://maori.com/kmst1.htm> (last accessed May 8, 20020.

[4] Orbell, Margaret. The illustrated encyclopedia of Maori myth and legend. (Christchurch: Canterbury University Press, 1995). 114-117.

[5] Ibid. 92-94.

[6] Digital Collectives in Indigenous Cultures and Communities Meeting, Hilo, Hawaii, August 10-12, 2001, <http://si.umich.edu/pep/dc/meeting/meeting.htm> (last accessed May 8 2002).

[7] Special Issue on Digital Technology and Indigenous Communities, D-Lib Magazine, March 2002, <http://www.dlib.org/dlib/march02/03contents.html> (last accessed May 8, 2002).

[8] Barambah, Maroochy and Ade Kukoyi, "Protocols for the use of indigenous cultural material" In Going digital 2000: legal issues for e-commerce, software and the internet, (NSW, Australia: Prospect Media, 2000) Anne Fitzgerald ed.

[9] Walker, Ranginui. "Intellectual property" in Nga pepa o Ranginui, (Auckland: Penguin, 1996).

[10] Department for Courts, Information Management Team. "Maori Land Court Information Management Team Report: access to and archiving of Maori Land Court records after imaging". 28 July 1999. For a guide to the Maori Land Court, see <http://www.courts.govt.nz/maorilandcourt/> and <http://www.auckland.ac.nz/lbr/maori/mlcmb.htm> (last accessed May 8 2002).

[11] Holland, Maurita and Digital Collectives in Indigenous Cultures and Communities. We come from around the world and share similar visions! (Ann Arbor: School of Information, University of Michigan, 2002).

[12] "Appendix E," The Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples <http://www.tpk.govt.nz/publications/docs/tangata/app_e.htm> (last accessed May 8, 2002).

[13] Biodiversity and Maori (Wellington: Te Puni Kokiri, 1994), 17.

[14] Draft Declaration on the Rights of Indigenous Peoples, <http://www.hookele.com/netwarriors/dec-En.html> (last accessed May 8, 2002).

[15] Sullivan, Robert. ed. Proceedings (Auckland: International Indigenous Librarians Forum, 2001).

Further Reading

Cultural and intellectual property rights: economics, politics and colonization. Vol. 2. (Auckland: Moko Productions/IRI, 1997).

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DOI: 10.1045/may2002-sullivan