This article is written by Ronika Tater from the University of Petroleum and Energy Studies, School of Law. In this article, she discusses the need to safeguard the interest and protect the intellectual rights of the indigenous people in the US. It also provides the legislation of other countries with the support of case laws.
Table of Contents
Introduction
With the increasingly globalised trading environment, businesses are seeking not only markets but also sources of innovation and technology in and from the world’s indigenous peoples. Over time, the protection of the rights of the indigenous people and their traditional knowledge, especially their intellectual property rights have made great economic progress. This progress is largely related to the indigenous names, images, symbols, patterns, and traditional backgrounds of these commercial products. The usage of these verbal and visual elements of indigenous people into the modern brands, designs, and models has an effective impact on the consumers thereby, providing a distinct and attractive economic value to the product. However, this leads to the misuse of the cultural property of the indigenous people without their consent and proper authorization for economic gain. It also leads to the violation of the rights of the indigenous people whose roots lie in their traditional knowledge and cultural value to certain images, symbols, and patterns. In the present day, there have been numerous examples of cultural appropriation which has led various international communities and nations to take effective measures to protect their economic and cultural rights.
Who are indigenous people
The definition of the term indigenous people has evolved, most international treaties and conventions follow the definition of indigenous people which refers to people living in local communities inherited with traditional lifestyles. The United Nations(UN) described indigenous peoples as inheritors and practitioners of their unique social, cultural, economic, political characteristics and the ways of connecting to people and the environment. They are different from the present dominant societies, however, indigenous people around the world share common problems concerning the protection of their rights as similar to that of distinct people. They are recognised by their culture, language, way of life, traditional lands, territories, and natural resources over the years. In the present day, they are among the most disadvantaged and vulnerable groups of people whose rights have been violated. Consequently, the international community provides special measures to safeguard and protect their rights and maintain their distinct culture and tradition.
Further, the UN Working Group on Indigenous Peoples initiated a Draft Declaration on the Rights of Indigenous people which provides a comprehensive statement of their claims. This resulted in the Mataatua Conference, 1993, which was constituted solely to discuss matters relating to the protection of indigenous property. It has been noted that over 150 delegates joined the conferences and the US was one of them. Various significant issues were considered during the conference such as indigenous knowledge, biotechnology, biodiversity, customary, environmental, arts, music, language, and other cultural forms.
The American declaration on the rights of the indigenous people
After several years of negotiation, the Organization of American States (OAS) instituted the American Declaration on the Rights of Indigenous People. The American Declaration provides specific protection for indigenous people in various countries of America, including the US. it states the right of self-discrimination, education, health, culture, lands, territories and others concerning the indigenous people in the Americas. Article VII of the American Declaration on the Rights of Indigenous People provides every state to take effective measures to prevent and eradicate all forms of violence and discrimination against indigenous women and children. Through hosting meetings, declarations, proposals, and strategies, the Centre provides legal support to the indigenous peoples.
What do we understand by the term ‘intellectual rights’
Intellectual property (IP) is a legal right that protects the owner for their original works, brands, invention, design, or other kinds of creation. Intellectual property can be provided in various forms as below-mentioned:
- Copyright- which protects written or published works such as books, songs, films, and other artistic works.
- Patents- which protect the commercial inventions of the owner such as a new product or process of the business.
- Trademarks- which protect signs, symbols, patterns, logos, words that distinguish one product or service from those of their competitors.
- Design rights- which protect the design such as drawing or computer models.
Indigenous intellectual property comprises the information, practices, beliefs, ecological knowledge, and philosophy that are significant to each indigenous culture. Hence, if the traditional knowledge is taken away from the indigenous community, the community will lose its power and the way in which the knowledge is used. Moreover, indigenous people claim to protect their traditional knowledge and associated knowledge through IP laws. Indigenous IP generally consists of two types of indigenous knowledge as below-mentioned:
- Knowledge of fauna and flora.
- Knowledge of traditional cultural expression.
Case law on the protection of cultural appropriation
Indigenous people have made various claims for the protection of their intellectual property both in the international and domestic spheres. In the case of Navajo Nations v. Urban Outfitters, (2016), the Navajo Nations were the indigenous population living in North America. The Nation was known for its cultural prosperity and holds a high reputation for its quality and diversity in arts such as costume jewellery, ceramics, tapestry and painting. Knowing about this fact, the American multinational company, Urban Outfitters started to market its products with the “Navajo” and “Navaho” by reproducing traditional Navajo design without its consent or proper authorization. The act of the defendant leads to the violation of the trademark rights of the Navajo Nation as it is the owner of various trademarks registered at the United States Patent and Trademark Office (USPTO) with the name “Navajo” and also violated the federal Indian Arts and Crafts Act, (1990). Moreover, the use of the name was an act of unfair competition and disrespect towards the Navajo culture. Hence, the Navajo Nation instituted the case and the court, considering the market authenticity, reached a mutual agreement to use the “Navajo” product jointly.
Approaches to protecting indigenous intellectual rights of indigenous peoples
The present US patent law does not protect indigenous people’s traditional knowledge. The US patent law grants patents to the inventors with exclusive rights which fulfills the basic requirement as below-mentioned:
- Eligibility subject matter
- Novelty or newness
- Utility
- Non-obviousness
In the case of Funk Brothers Seed Co. v. Kalo Inoculant Co, (1948) the Supreme Court of the United States stated that the products and knowledge of nature are not patentable. According to the doctrine as mentioned in the case, genetic resources such as plants, seeds, flora, and fauna fall within the ambit of products of nature. Hence, indigenous people’s knowledge regarding these does not qualify the eligibility of subject matter for patenting. It is essential to note that it is difficult to satisfy the requirement of novelty for indigenous people as knowledge in the public domain is not novel. It means that the knowledge about flora and fauna cannot be novel within the US patent law.
Judicial approach
The judiciary has played an important role in recognising the traditional knowledge of the indigenous people through judicial precedents. As we know that the patent application and the investigation and the examination procedures are hurdles to protect the indigenous people’s IP rights. Once the person files an application for a patent of his innovation, the Patent and Trade Office (PTO) initiates the process for the examination of the patentability criteria. A patent will only be granted if all the requirements of the application are satisfied. One of the main requirements to grant a patent is to search prior art or if such information is already in the public domain. If an invention is disclosed within the prior art and already existing in the public domain then the patent application will be rejected. In order to resolve this issue of the validity of a patent using indigenous IP under the US patent law, the US judicial system referred to various cases where individuals can challenge a patent’s validity by proving the lack of novelty.
In the case of the turmeric patent, the Indian inventor filed a patent application claiming the novel usage of turmeric for the purpose of healing wounds by the US scientists. In 1995, the US granted turmeric patents to the University of Mississippi medical centre for healing wounds. The subject matter of the claim stated that the use of “turmeric powder and its administration” is both oral as well as topical for wound healing. Consequently, the Indian Council for Scientific and Industrial Research (CSIR) raised the issue of the evidence of prior art to the USPTO. The evidence depicts that turmeric is a tropical herb grown in East India and is widely used in India for its medicinal, food ingredients, etc. on a day-to-day basis. It was a well-known fact that turmeric is used in every household for ages in India. The USPTO, considering the facts, revoked the patent and stated that the subject matter of the claim in the patent was obvious and known and accepted that the use of turmeric was an old traditional knowledge and cultural art of healing wounds. Thus, the traditional knowledge that belonged to India was safeguarded in the turmeric case.
In another similar case, the patent for neem was first filed by the Department of Agriculture, USA in the European Patent Office (EPA). The subject matter of the patent claims that the method is used to control fungi on plants with a neem oil formulation. The patent was challenged by the New Delhi based Research Foundation for Science, Technology, and Ecology (RFSTE) and other members, so there is no novelty in the said claim. The evidence and documents depicted that neem is a tree legendary to India and it contains several potent compounds. Its bark, leaves, seeds, flowers are used for the treatment of a variety of diseases and the neem branches are used as an antiseptic for toothbrushes in India for time immemorial. Even the ancient Indian text described the extraction of needed seeds in curing dermatological diseases in humans and protecting agricultural plants from fungal infections. Thus, the court after considering the facts rejected the patent on the ground of the lack of novelty, inventive step, and prior art.
Further, the US judicial approach sometimes fails to protect the indigenous IP rights of peoples due to the limitation imposed by the patent law. The US protection of indigenous IP is associated with the voluntary cooperation of the inventor and not with the legislation. Hence, this is one of the challenges to protect the validity of the traditional knowledge of the indigenous people in the US. There is a need for modern patent law to recognise and accommodate indigenous knowledge in their legislation.
Approaches adopted by other countries
Various declarations of indigenous people have already adopted new laws that protect indigenous IP to rights protection as advocated by the UN Declaration on the rights of indigenous peoples. For instance, the Philippines have enacted the Indigenous People’s Rights Act, 1997 which states protection to indigenous communities’ human rights including their traditional knowledge. The Philippine IP laws also provide the right of indigenous people to self-determination which includes human and other genetic resources, traditional medicines, health practices, indigenous knowledge systems and practices, knowledge of the flora and fauna, literature, designs, arts, visual, etc.
Conclusion
Protection of intellectual property rights has been recognized for several years as an advent to innovation and a growing economy. The US must adopt indigenous IP laws for the protection of indigenous people’s rights and also for the advancement of science and technology. If the US patent law would have required the disclosure of the knowledge, the PTO in the turmeric case would have for instance rejected the patent claim rather than wasting its time and energy on the acquisition of the patent. Hence, for the overall development and consistent with the international laws, the US should develop laws for the protection of indigenous IP following the basic framework of the UN Declaration on the rights of indigenous peoples.
References
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
