Indigenous symbols and its inherent community right and commodification

Indigenous symbols and its inherent community right and commodification

Monikangkan Barooah

Abstract:

Indigenous symbols holds ground during and post globalisation period.

There are increasing trend of corporate franchisees of using indigenous beliefs, symbols, motifs as well as Traditional Knowledge (TK) for their commercial gain. Any trade mark, service mark, design, industrial designs, photographs etc.,   of the corporate houses bears their legitimate rights over it.

Any infringement of their rights leads to punitive actions or even arrest   to the offender. Whereas the indigenous rights over their culture, beliefs, symbols has been tacitly used by the commercial franchisees without any inhibition by overriding the age old rights of the indigenous people.

Though there are many areas of concerns such as TK, Indigenous beliefs, this paper intends to ponder over the rights of the indigenous symbols and their possible use or misuse in the future to come.

As the increasing number of corporate franchisees have started sponsoring and branding the  sports initiatives,  like Indian Premier League (IPL), Foot ball Clubs, Fighting clubs etc., the business operandi may take indigenous symbols as theirs, in the name of promoting sports, culture etc. 

In absence of copyright or community rights over their indigenous symbols, the commercial houses were free to use such symbols in the name of promotion for their profit making ventures. In Assam, in the time of Bihu celebrations, the corporate houses uses the indigenous symbols of ‘Bihuwa’ , ‘Nachoni ’  etc. to  sell their merchandise. 

The scenario depicts a pathetic situation of uses of indigenous symbols for commercial gain without sharing any benefit thereupon to the indigenous communities. As suggested by  WIPO (World Intellectual property organisation ), it is high time for indigenous business organisations, Indigenous social entrepreneurs  to create  awareness under different heads to establish their indigenous community rights over their  cultural symbols.

Hence this article focuses on the inherent rights and commodifiation of indigenous sysmbols.

Key words : Indigenous Symbols, IPRs, Community rights, Commodification of indigenous symbols.

Background :

A symbol is defined as an object, a design, a word and an action that represents a cumulative concept and the custom is all of the behaviours, languages, beliefs, traditions and a common meaning that leads standardization of a group. Many such groups use their symbols to express a concept of their culture. These symbols allow a group of people that shares a common belief to identify each other that broadly represents by the symbols.

A symbol is an identity based on a concept under which a group subscribes to its common goal. A flag of a country, a logo of a company, a mascot of a sports club etc are the leading examples of symbols that a group of people affiliates. For example, when a flag of a country is raised, the people of that country stand in honour of that flag as it represents nationalism. Similarly when a symbol of a culture is raised, people affiliated to that culture stands united under the emblem.

In the ancient time, where people couldn’t read and write, the representation of symbol correlates of letting people know, what belongs to whom? The marking of animals like earmarks as the terms famously indicates even now, represents what animals belonged to whom. As the business developed, symbols began to serve on various purposes. 

The ‘Potters mark’ of Greek and Roman times appeared on vessels to indicate the origin, its destination and identification of the owner. The uses of symbols by the roman brick maker for the identification began as early as the 2^nd century BC.  Another finest example of symbol in both ancient as well as in modern time was the ‘Barber’s pole’ which was used to indicate the location of business. 

Eventually use of marks associated with the ownership of goods and later on specifically post globalisation on services.  As commerce grows significantly during 10^th century, symbols used as ‘merchants mark’ or referred as ‘proprietary mark’ was used to prove ownership rights of goods. Gradually industrial revolution sparked which leads to establishing civil protection against those who replicated the mark of another.

 Thus human endeavor that promotes economic, social and cultural development of the society is encouraged and the creator is protected for his pr their intellectual creation in the form of Intellectual property (IPR) rights. The IPR regime prevents third parties from becoming unjustly enriched what they have not own. The IPR protects finer manifestation of human achievement.

There are different component of IPR as envisaged by World Intellectual Property organization (WIPO) and Trade related operation of Intellectual property rights (TRIPS) as a) Copyright b) Trademarks and service marks c) Patents d) Geographical indications e) Industrial designs.  These rights are created under multilateral framework of principles, rules dealing with IPRs under the World Trade Organisation (WTO).

To achieve its objectives various International treaties have been signed and ratified by member counties to protect the IPRs. Wipo Copyright Treaty (WCT) and WIPO performers and Phonograms Treaty (WPPT) are such treaties that protect IPR on transnational basis.

Though the corporate houses have their own trade mark, service mark, trade dress etc., the indigenous symbols so far has not been protected under respected categories so far. Though of late, some of the products are protected and registered under GI tag, the Indigenous symbols are yet to get its due protection.

It is often noticed that Multi National Companies(MNC) while inaugurating their ventures at Guwahati, Assam, often uses the ‘Bihu Symbols’ i.e. ‘Dhulia and Nachoni’ , ‘Bihuwa’ , Bihuwati’ , Japi etc. ,   which attracts the natives to their place of business. Even during the Bihu celebration, they often use the symbols in their advertisement, correlating them with the natives and their culture, so that they can sell their merchandise.

It is possible because, the natives are not aware of their rights over their cultural symbols.  Since these cultural symbols has not been registered their community right over their symbols, it has been used by corporate franchisees to achieve their commercial goals. It may have been so that once there symbols are protected under IPR regime, the MNCs may have to pay the community of using such symbols to the respective community as a whole.

Some of the cultural symbols used in the Indigenous Assamese society are as follows.

These symbols are associated with the culture of Indigenous Assamese people.

Likewise there are indigenous Symbols, Motifs and patterns of silk of Assam as follows.

 The symbols and motifs mostly imitation of flowers, ferns, trees, butterflies, animals, birds and even Assamese traditional ornaments like the Thuria, Loka Paro, Joonbiri and Gaam kharu. Though most motifs and patterns found in the silk garments do not necessarily have a meaning, many are basically contemporary in style.

These above symbols, Motifs, Patterns are used by indigenous Assamese people in their day to life. These symbols bear community rights and attached to the people emotionally and culturally. In absence of registration these may be used by commercial franchisees for their commercial benefits.

The indigenous people of Assam, Meghalaya, Manipur, Arunachal, Nagaland, Mizoram and Tripura must make a framework that protects their indigenous symbols, motifs etc., to get their community right over it. Comodification of Indigenous cultures and symbols : The commodification of indigenous cultures has taken on considerable dimensions with globalisation.

The exploitation of indigenous arts, designs, stories, performance and other art forms, as well as the proliferation of products on the market that imitate, misrepresent and profit from the alleged associations with indigenous cultures continue to be of major concern.

The use of indigenous peoples’ names and images on cultural festivals sponsored by the corporate houses, commercial goods and services, ventures or enterprises is an ongoing issue because it is most often designed to profit non-indigenous people.

IPR & INDIGENOUS PEOPLE

Many indigenous peoples feel they should be able to stop the commodification of some aspects of their culture, especially of objects that are sacred to their communities. The dominant model for recognising and protecting knowledge and cultural expressions is the intellectual property rights regime.

This regime, which is based on Western legal and economic parameters as well as on Western property law, emphasizes exclusivity and private ownership, reducing knowledge and cultural expressions to commodities that can be privately owned by an individual or a corporation.

The intellectual property rights regime is widely recognized as the primary mechanism for determining ownership and property rights over knowledge, processes, innovations, inventions, and even naturally occurring phenomena such as plants, animals and genetic material.

This form of ownership is protected by states and promoted by the World Trade Organization (WTO) and the World Intellectual Property Organization (WIPO).The intellectual property rights (IPRs) regimes worldview stand in stark contrast to indigenous worldviews, whereby knowledge is created and owned collectively, and the responsibility for the use and transfer of the knowledge is guided by traditional laws and customs.

What is often ignored by the global regime is, within indigenous societies, there are already laws governing the use and transmission of their knowledge systems that often do not have any formal recognition in the wider legal system.

These rules operated within indigenous communities since time immemorial and have been developed from repeated practices, which are monitored and enforced by the elders, spiritual and community leaders. The international property rights regime, however, often fails to recognize indigenous customary law.

Therefore it is of utmost concern that IPR regime, based on western concept of individualism and innovation, does not have appropriate measures to protect the collective or perpetual interests of indigenous forms of cultural expressions

 

How indigenous peoples’ rights to their knowledge differ from conventional IPRs ”

·        Indigenous peoples have collective rights, often vested in clan, family or other socio-political groups.”

·      Indigenous peoples’ cultural heritage and expressions often cannot be associated with a single, identifiable individual creator, author or producer

·        Cultural heritage, objects and expressions are managed and owned in accordance with customary rules and codes of practice, and are usually not sold or alienated in ways that conventional IPRs can be. ”

·        Indigenous rights include all forms of traditional knowledge, such as intangible cultural products and expressions, none of which are protected under conventional IPRs laws ”

·        Indigenous peoples’ knowledge is transmitted orally, and is therefore not subject to the same requirements regarding material forms that pertain to conventional IPRs laws ”

·        Indigenous traditional knowledge is usually held by the owners and their descendents in perpetuity, rather than for a limited periodSource: Davis (1997).

However, in many instances, indigenous peoples are forced to turn to the IPR regime to find ways to protect their rights. Some indigenous peoples, typically artists and craftsmen, have used IPR legal systems to achieve copyright protection for tangible arts and crafts objects such as wood carvings, silver jewellery and sculptures, or have used trademarks to identify traditional art, food products and clothing.

But on the whole, indigenous traditional knowledge and folklore usually do not meet the criteria of novelty and originality generally required for work to be protected under IPRs legal systems.

Intellectual property protection is of limited time duration and does not apply to “old” creations already in the public domain (i.e., the indigenous community); moreover, it is normally impossible to identify individual creators behind traditional knowledge.

The IPRs regime therefore leaves most indigenous traditional knowledge and folklore vulnerable to appropriation, privatization, monopolization and even biopiracy by outsiders.   Despite of everything the youths of indigenous people must work as a changing agent to protect their rights over their traditional symbols, designs, traditional knowledge etc.

WIPO has provided insights to the indigenous people and community entrepreneurs to explore their possibility of protecting goods and services with IP.  

These intellectual property tools can protect and promote tradition-based goods and services and support Indigenous and local community entrepreneurs and their communities. Young indigenous youths or Indigenous people’s organisations can explore the following tips to protect their IP rights.

 1. Protect your contemporary traditional cultural expressions with copyright Copyright can protect contemporary tradition-based creations, such as music, paintings and sculptures against certain unauthorized uses such as reproduction, adaptation, distribution, broadcasting and other forms of communication to the public.

2. Use industrial design rights to protect the way your products look and feel Industrial designs (known as design patents in some jurisdictions) protect the aesthetic or ornamental aspects of a product rather than its functional aspects – that is, how it looks and feels rather than how it works or what it does. Industrial design rights can be relevant to a wide variety of products, ranging from handicrafts, such as jewelry, to textile and fabric designs.

3. Register distinctive Indigenous words, names and symbols as trademarks The registration of distinctive Indigenous words, names and symbols as trademarks, combined with an appropriate marketing strategy, can increase consumer recognition of authentic and quality goods. Once registered, display your trademark and trademark notice (®, TM or the equivalent) on your products. Strategic use of trademarks as part of a larger branding strategy can help increase commercial benefits for Indigenous and local community entrepreneurs.

4. Distinguish your goods/services with certification/collective marks Certification and collective marks can be used by a community to guarantee that goods and services meet specific qualities or characteristics, such as a particular geographical origin or method of manufacture. These marks can help enable brand recognition and provide consumers with certainty as to the authenticity of the goods or services bearing the mark.

5. Link your goods and services to a place with a geographical indication Geographical indications are a collective right. They can provide the holders of traditional knowledge or traditional cultural expressions with the means to differentiate their product from a competitor by highlighting its link with the geographical area from which it originates. Geographical indications can also command a premium price.

6. Protect your innovations based on traditional knowledge New and innovative inventions based on traditional knowledge can be protected with patents. With patents, inventors can get a return on their commercially successfully inventions for a time-limited period. A patent is an exclusive right granted for an invention (a product or a process that provides a new way of doing something, or offers a new technical solution to a problem). To get a patent, technical information about the invention must be disclosed to the public in a patent application, which is published so that others may learn from it.

7. Keep your traditional knowledge confidential with trade secrets Trade secrets allow Indigenous and local community entrepreneurs to protect culturally sensitive, secret, sacred and commercially valuable information, such as traditional manufacturing processes and recipes, preventing that information from being disclosed, acquired or used by others without consent. For example, instead of sharing information on how your products are created, focus on the uniqueness of your goods and services and their link to your traditional knowledge and your community.

8. Use unfair competition laws as a defense mechanismIndigenous and local community entrepreneurs with an established reputation, distinctiveness and goodwill in the production of traditional products can use unfair competition laws to object to false connection claims where fake products are presented as genuine in the marketplace. It is your responsibility to monitor for unauthorized uses of your intellectual property assets.

As the northeast consists of seven sister states has immense potentials to venture into the community rights regime, the indigenous organisation may  take advantage of the situation of acquiring rights over these symbols, traditional designs, trade mark, service marks etc.

These steps would enhance the communities over their rights of associated cultural symbols, traditional knowledge, industrial design etc.  and any corporate houses using it has to bear the cost of using it for their commercial gain to the respective organisation or to the respective communities.

Conclusion:

Although indigenous peoples are often portrayed as a hindrance to development, their cultures and traditional knowledge, cultural symbols are also increasingly seen as assets. It is well argued and conceived that ‘it is important for the human species as a whole to preserve as wide a range of cultural diversity as possible, and that the protection of indigenous cultures is vital to this enterprise.’

The twenty-first century is already witnessing growing recognition of the right of indigenous peoples to decide for them, that what should happen to their ancient cultures and their ancestral lands. Along with the trend, the indigenous youths or Indigenous organisations should find ways to protect their community rights over their cultural symbols.

While doing so, the indigenous people can establish the ‘right of ownership’ over their cultural symbols which may be available to use under a ‘terms of reference’ to the commercial franchisees against some desired benefit to the indigenous community. The Lawful rights over their cultural symbols would lead to consolidation of the indigenous faith   under which a community stands united with pride.

Reference:

State of the World Indigenous people	:	UN
International Work Group on Indigenous Affairs (IWGIA). 2004	“	. Indigenous Affairs 4/04. Copenhagen: IWGIA.
Sawyer, Suzana and Gomez, Edmund Terence. 2008. Sawyer, Suzana and Gomez, Edmund Terence	:	Transnational Governmentality and Resource Extraction: Indigenous Peoples, Multinational Corporations, Multilateral Institutions and the State. Identities, Conflict and Cohesion Programme Paper No. 13. Geneva: United Nations Research Institute for Social Development.
Motifs on Silks of Assam Symbols, motifs and patterns on silks of Assam – eri, muga and paat	:	Menuolhoulie Kire, Dept. of Design DoD, IIT Guwahati

Web links :

United Nations Permanent Forum on Indigenous Issues (UNPFII). 2006. Report on the Fourth Session. UN Doc.E/2006/43 Available online at http://www.un.org/indigenous

United Nations Permanent Forum on Indigenous Issues (UNPFII). 2006. Report of the Meeting on Indigenous Peoples and Indicators of Well-being. UN Doc. E/C.19/2006/CRP, 3. April 2006. Available online at http://www.un.org/esa/socdev/unpfii

World Bank. 2007. Economic Opportunities for Indigenous Peoples in Latin America, Washington D.C.: The World Bank.

World Commission on Dams (WCD). 2000. “Dams and Development, A New Framework for Decision-making.” Report of the World Commission on Dams. U.K.: Earthscan Publications.

Aboriginal Law Bulletin. 1993. Mabo – “The High Court Decision on Native Title” Extracts from theCommonwealth Government’s Discussion Paper – June 1993 Available online at

http://www.austlii.edu.au/au/journals/AboriginalLB/1993/18.html#Heading3

Agreements, Treaties and Negotiated Settlements Project. 2007. Alexkor Limited v. The Richtersveld Community and Others Case CCT10/03. Available online at http://www.atns.net.au/agreement.asp?EntityID=3895

Åhrén, Mattias. 2002. “An introduction to the WIPO Intergovernmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Expressions of Folklore”. Indigenous Affairs, International Processes: Perspectives and Challenges, 1/02:64-70. Copenhagen: IWGIA. Available online at http://www.iwgia.org

https://www.wipo.int

https://www.wto.org

[Monikangkan Barooah , Advocate, Gauhati High Court, Assam, India]

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