"Cultural and Intellectual Property, Indigenous Rights and Archaeology"

THE DEBITAGE | September 2013 12 Conferences / Symposia Highlight Cultural and Intellectual Property Issues, Indigenous Rights and Archaeology John Vandergugten Intellectual Property (IP) rights play an important part in the modern world, and permeate virtually all aspects of society including the archaeological discipline (Nicholas and Bannister 2004). Cultural resource/heritage management needs to respond to, and incorporate means to address issues of intellectual property. While the issues surrounding ownership may be complex, considerate and careful communication and dialogue are necessary and possible. The interdisciplinary project Intellectual Property Issues in Cultural Heritage (IPinCH), under the direction of Dr. George Nicholas and based at SFU, has proactively engaged with these issues since its inception in 2008. On May , , the Cultural Commodification, Indigenous Peoples and Self-Determination symposium was held at the University of British Columbia (UBC). The public symposium was organized by IPinCH and the Liu Institute for Global Issues based at UBC. Figure 1. IPinCH s logo, designed by lessLIE (Leslie Robert Sam). Titled Perpetuation, see www.sfu.ca/ipinch/about/logo for information on its meaning. Used by permission. Attendees of the conference were warmly welcomed with a prayer and traditional drumming given by Victor Guerin of the Musqueam Indian Band. George Nicholas introduced essential ideas surrounding heritage, including the issues of appropriation, commodification, and the inseparability of tangible and intangible characteristics of heritage. Nicholas noted the, pressing issues facing descendent communities, especially indigenous [peoples] both locally and globally. What may be termed, cultural borrowings are evident throughout social infrastructure in architecture, art and beyond. Although appropriation and commodification may not always be negative, they can have harmful costs to those peoples with whom the heritage is associated; such crucial costs include the loss of access and loss of control over ancestral knowledge and property. The issues connected to cultural and intellectual property are clearly complex and require a conversation with clear communication between stakeholders. The first session, Processes of Cultural Commodification: Selling What, To Whom, Why? focused on ways in which cultural bases have been and may be commoditized, as well as the reactions toward its wholesale use. Susan Rowley (UBC) presented an animated presentation surrounding the case of the lovable sealskin toy Ookpik, in which Indigenous and government parties in Canada cooperated to produce revenue. The name for the figure which won the hearts of people worldwide is derived from the Inuktitut ukpik, meaning snowy owl. THE DEBITAGE | September 2013 Alexis Bunten, an ethnographer and IPinCH postdoctoral fellow, provided a thought-provoking talk on The Limits of Cultural Commodification . She referred to the Marxist definition of a commodity, which is something that has an exchange value in the context of trade; the reality is that anything can be commodified, regardless of whether it should be or not. Pointing to the sale of sacred Hopi kachina dolls in the United States, and the commodification of the Australian Aborigine Dreamtime concept by the Australian government as a marketing tool, Bunten illustrated how cultural property may be misappropriated. Nicole Aylwin (York University), a doctoral candidate in the area of Communication and Culture, discussed the notions of heritage and creative economies. In essence, culture can be (and is) used as a commodity to fuel economies. The second session, Framing Cultural Commodification: Marks, Labels, Licenses, and “ppellations , concentrated on the regulation of cultural heritage use. Rosemary Coombe York University provided a useful definition of the term commodity in her talk on the values of production, explaining that, commodities move, travel, [and] communicate . For this reason, the authentication of goods plays an important role in the world of commerce, manifest in marks indicating conditions of origin (MICOs). Coombe and Aylwin (2011) discuss MICOs and the various ramifications for heritage protection. Kim Christen (Washington State University) introduced an innovative project involving the design of fair use labels as a means of educating and communicating about traditional knowledge (TK) and cultural property in the digital arena. The Mukurtu project (http://www.mukurtu.org/ intends, to empower communities to manage, share and exchange their digital heritage in culturally relevant and ethically-minded ways . To clarify, the software is a content management system CMS in which users may manage digital heritage by regulating its use through cultural protocols, and TK licenses and labels. The licenses and labels are said to be customizable, so that users of the software can communicate how a digital file should be treated. Though TK labels are not legally binding, they may help notify the public that a digital file contains culturally sensitive information and encourage responsible use of such files. Christen (2012) explored reactions to the CMS concept and the idea of access to information, which is well worth a read. Mukurtu s projected goal is to be valuable software for archivists, libraries, museums and other groups. Deidre Brown (University of Auckland) described how cross-cultural appropriation is common practice. This is evident in more tangible ways through art and architecture, though it is also somewhat intangibly present in philosophies, and performance activities like dance. Some heritage may be culturally-sensitive and its appropriation considered offensive or inappropriate. It is courteous to consider whether cultural appropriation is proper and to act in an ethical manner. The third and final session, Indigenous Responses to Appropriation: Negotiation, Protection, Care , focused on ways in which Indigenous peoples have been challenged and yet persevere. Shannon Martin (Ziibiwing Center of Anishinabe Culture and Lifeways) discussed difficulties of heritage management. Known more widely as the Sanilac Petroglyph Site, the Anishinabe people call it 13 THE DEBITAGE | September 2013 ezhibiigaadek asin, translated as knowledge written on stone . The place is considered sacred by the native peoples of the area and was used by them in the past, and is used in the present, for ceremonial and educational purposes. Unfortunately, the site has faced vandalism and what the Saginaw Chippewa Indian Tribe of Michigan considers the indecent commercialization of its images. Community-based participatory research using ethnographic methods has been practiced to evaluate ways to best manage the site (Hollowell and Nicholas 2009). Figure 2. A Panel of speakers, including Alexis Bunten, Nicole Aylwin, and Sue Rowley, convenes following the first session Processes of Cultural Commodification: Selling What, to Whom, Why? , moderated by Jennifer Kramer. Photo: Kristen Dobbin, used by permission. Violet Ford (University of Lapland), a practicing lawyer, examined the misappropriation of the inukshuk in its use as a symbol of the 2010 Winter Olympics. Customarily, inuksuit function as markers on the landscape for travellers and hunters. As Ford noted through a video clip, stone structures in the form of humans are actually called inunguak. Structures of human form have special meaning to the Inuit and are functionally different. Here a cultural artifact of the Inuit has been misappropriated, turned into a commodity, and inaccurately named. This case should serve as a reminder that caution should be taken and the wishes of peoples should be considered carefully before appropriating cultural symbols as there is a risk of offending cultures. Maui Solomon (Barrister, Kawatea Chambers, New Zealand), an experienced lawyer, advocated for the rights of indigenous people. A Moriori Māori himself, Solomon spoke of the use and misuse of cultural icons. Drawing from examples in New Zealand, he described how cultural treasures, or taonga, have been belittled through use without the consent of cultural leaders. In Māori ideology, traditional 14 THE DEBITAGE | September 2013 guardians, or kaitiaki, protect taonga; only the kaitiaki can authorize usage of cultural icons. Such icons are associated with the identity of living culture and persons who comprise it. The concept of reciprocity is a principal part of Indigenous philosophy, and often an exchange of gifts, or koha, is made in return for its use. As Eliade explored in his seminal The Sacred and the Profane, not all things may be considered ordinary nor are they treated as such by certain cultural groups. Musqueam First Nation Band member Victor Guerin told a story in song of the need to respect others. The symposium concluded with a synthesis of the ideas that were expressed by the various presenters. In addition to the symposium, IPinCH hosted three other presentations on April 30 and May 1, in collaboration with SFU s Department of “rchaeology and Department of First Nations Studies. On “pril , Maui Solomon, a Moriori Māori barrister, discussed the challenges that indigenous peoples, in particular the Māori and Moriori, face in New Zealand s current legal climate. On the following day, archaeologist Susan Thorpe and Maui Solomon presented on the IPinCH initiative to document and preserve Moriori cultural heritage. Solomon spoke of the history of Moriori settlement in New Zealand, namely Rekohu, or the Chatham Islands. Early in their history, the Moriori endorsed a Peace Covenant, Nunuku's Law, in which they prohibited violence and warfare, maintaining peaceable relations with one another. In 1835, however, several Māori tribes invaded Rekohu and victimized the Moriori through killing and enslaving them; the Moriori peoples maintained their covenant throughout these trying times. European colonists expanded upon this callousness by disseminating lies about the Moriori within the public education system. Through the actions of the Māori and Europeans, the Moriori suffered loss of identity as their life, land, liberty, and language were denied them. In , the Treaty of Waitangi was signed by the British Crown and chiefs of the Māori, recognizing ownership of land by the Indigenous, and declaring them British subjects. Nonetheless, the unfortunate legal case of Wi Parata v Bishop of Wellington (1878) illustrates the disrespect of Indigenous by the colonial English powers, as its judgment ruled the Treaty of Waitangi void; since then, the validity of the treaty has been re-examined and in 1975 the Waitangi Tribunal was formed as a result of the Treaty of Waitangi “ct to study the Crown s violations of the Treaty and provide recommendations for reparation. Numerous claims have been brought by the indigenous peoples before the courts in New Zealand yet many remain unsettled. Despite the hardships of the Moriori peoples, their culture has persevered and initiative is being taken by them to reclaim their identity. For example, the landmark Wai 262 claim sought to establish a means to guard and govern the use of Indigenous cultural heritage manifest in traditional knowledge and environmental resources. However, progress on this initiative by the Indigenous peoples has met a poor response from the government. The report can be found online at the Waitangi Tribunal website (www.waitangitribunal.govt.nz/). The obstacles encountered by the indigenous peoples in New Zealand echo those that First Nations and aboriginal peoples have faced at home in Canada. It has taken a long time for the current climate of relatively more constructive dialogue to develop. Still, progress needs to be made. Local First Nations peoples suffered when the dominion of Canada took root in their land, and their cultural practices and life-ways have been threatened in the past. The spirit of First Nations peoples is alive, and their hand in the past is visible through the landscape in their traditional-use practices. For instance, 15 THE DEBITAGE | September 2013 culturally modified trees (CMTs) dot the landscape in British Columbia (B.C.) and serve as a lasting reminder of the activity of this land s first peoples. Notably, the landmark legal case Delgamuukw v. British Columbia (1997) confirmed the existence of aboriginal title in B.C. The Moriori have worked with IPinCH and the Hokotehi Moriori Trust (www.moriori.co.nz/home/) in their efforts to reclaim their identity, through recording traditional knowledge and surveying their cultural landscape. Thorpe spoke of instances in which treasures of Moriori cultural heritage have been divorced from their intended context and confined in museums overseas; repatriation efforts have been taken to return the precious heritage. The Traditional Knowledge Revival Pathways project (www.tkrp.com.au/) has aided the Moriori, among other Indigenous peoples, in the preservation of traditional knowledge for future generations. In another talk, Susan Thorpe expanded on the case study with a focus on the islands longstanding dendroglyphs, known as rakau momori, explaining how they represent the identity of the indigenous Moriori. The conservation of these structures is important for the Moriori as they are markers of identity and each hold special meaning. The features have not been immune to the effects of a changed environment, nor the callous disregard of vandals who have reportedly damaged several of them. It is important to fight against the social ill of vandalism and apathy and promote civility and respect for fellow persons. Conservation includes non-invasive laser scanning, and work to prevent their decay from the elements, where deemed appropriate. One can refer to the publication by Solomon and Thorpe (2012) for further information on the recording project. The case studies and ideas raised by speakers of the symposium and other talks demonstrate the far reaching significance of cultural property. Each issue may need its own approach as situations and concerns are unique, but all cases should be dealt with respect. There are bound to be future developments in IP and cultural heritage laws as issues arise. It should be noted that there is a lack of effective federal heritage laws in Canada (see Burley 1994). Part of the reason for this may be explained as the outcome of poor politics. Across Canada, each province has its own heritage laws, where some are arguably stronger than others. Much more has been said about IP rights, law, and heritage. Though challenges exist in the protection of cultural property in a time of digital democracy , novel ways of managing material and associated data have been developed; for instance the Reciprocal Research Network, a partnership between several Indigenous parties and U”C s Museum of “nthropology has brought together digitized material from around the globe (Brown and Nicholas 2012). Many additional examples of successful collaborations exist (see Nicholas et al 2011). Indigenous archaeology – the practice of archaeology with, for, and by “boriginal peoples Nicholas : has developed over the years, and positive working relationships have been established with archaeologists. Unwelcome appropriation of another s culture is insensitive to the meanings and values attached to the cultural act or object. This is because cultural appropriation removes the article in question from its intended context. When a cultural treasure is treated with disrespect, it is really the identity of the people who rightfully own this property that is being disrespected. Although different cases of cultural misappropriation were explored, the resounding theme was that of the need for respect. 16 THE DEBITAGE | September 2013 Figure 3. George Nicholas kicks off the symposium with an introduction to the IPinCH project and to issues of commodification. Photo: Kristen Dobbin, used by permission. The whole point of the field of archaeology should not be about objects but the people who created, used, and venerated them. Archaeologists and anthropologists have a great role to play in educating the public and easing issues of cultural property rights, and should work with indigenous peoples. IP rights can be used as a tool to resolve issues that arise, and the interests of all invested individuals should be considered carefully before any action is taken. In summary, the IPinCH symposium was a fantastic forum of sharing, learning and collaboration, which welcomed academics and the public alike in the ongoing discussion on heritage and its manifold meanings. More information about the IPinCH project and its initiatives, including videos, can be found at http://www.sfu.ca/ipinch/. One may refer to two articles in particular for a brief overview and recommended reading on IP issues and heritage management: Nicholas et al 2009 and Nicholas et al 2010. 17 THE DEBITAGE | September 2013 References Cited Brown, Deidre, and George Nicholas 2012 Protecting Indigenous Cultural Property in the Age of Digital Democracy: Institutional and Communal Responses to Canadian First Nations and Māori Heritage Concerns. Journal of Material Culture 17(3):307-324. Burley, David V. 1994 A Never Ending Story: Historical Developments in Canadian Archaeology and the Quest for Federal Heritage Legislation. Canadian Journal of Archaeology 18:77-98. Christen, Kimberly 2012 Does Information Really Want to be Free? Indigenous Knowledge Systems and Questions of Openness. International Journal of Communication 6:2870-2893. Coombe, Rosemary J., and Nicole Aylwin 2011 Bordering Diversity and Desire: Using Intellectual Property to Mark Place-Based Products. Environment and Planning A 43(9):2027-2042. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 Hollowell, Julie, and George Nicholas 2009 Using Ethnographic Methods to Articulate Community-Based Conceptions of Cultural Heritage Management. Public Archaeology 8(2-3):141-160. Nicholas, George P. 2001 The Past and Future of Indigenous Archaeology: Global Challenges, North American Perspectives, Australian Prospects. Australian Archaeology 52:29-40. Nicholas, George, Catherine Bell, Kelly Bannister, Sven Ouzman, and Jane Anderson 2009 Intellectual Property Issues in Heritage Management, Part 1: Challenges and Opportunities Relating to Appropriation, Information Access, Bioarchaeology, and Cultural Tourism. Heritage Management 2(2):261-286. Nicholas, George, Catherine Bell, Rosemary Coombe, John R. Welch, Brian Noble, Jane Anderson, Kelly Bannister, and Joe Watkins 2010 Intellectual Property Issues in Heritage Management, Part 2: Legal Dimensions, Ethical Considerations, and Collaborative Research Practices. Heritage Management 3(1):117-147. Nicholas, George P., and Kelly P. Bannister 2004 Copyrighting the Past? Emerging Intellectual Property Rights Issues in Archaeology. Current Anthropology 45(3):327350. Nicholas, George P., Amy Roberts, David M. Schaepe, Joe Watkins, Lyn Leader-Elliot and Susan Rowley 2011 A Consideration of Theory, Principles and Practice in Collaborative Archaeology. Archaeological Review from Cambridge 26.2:11-30. Solomon, Maui, and Susan Thorpe 2012 Taonga Moriori: Recording and Revival. Journal of Material Culture 17:245-263. Wi Parata v Bishop of Wellington (1878) 3 NZ Jur (N.S.) S.C. 72. 18