'Get native peoples involved in protection'

5 June 2018

An Australian carpet manufacturer uses images produced by Aboriginal artists without their permission: who protects the cultural expressions of native peoples? PhD candidate Kelly Breemen has researched the panoply of initiatives and come to the conclusion that a broad approach is needed.

PhD-candidate Kelly Breemen has a busy schedule. On 7 June 2018 she will defend her tome of a doctoral thesis on the protection of the traditional cultural expressions of indigenous peoples; the next day she will host a workshop on the occasion of her PhD conferral - an international meeting open to all interested parties and organised by the IViR and sponsored by the Association for Intellectual Property (Vereniging voor Intellectuele Eigendom) - a branch of the International Association for the Protection of Intellectual Property AIPPI.

Indigenous Peoples

For her doctorate, Breemen has conducted an investigation into the legal protection of the traditional cultural expressions of indigenous peoples. This goes beyond intellectual property aspects, and also covers human rights and cultural heritage. “There is a tremendous range of indigenous peoples whose characteristics vary in terms of, for instance, language, culture and cultural expression and combinations thereof”, according to Breemen. “A single legal instrument could never suffice to protect all the traditional cultural expressions of indigenous peoples. The challenge is to come up with a legally diversified framework that can be applied to the various concerns of indigenous peoples.”

Breemen analysed a panoply of initiatives including those taken by the UN aimed at protecting indigenous peoples. The 2007 UN General Assembly’s Declaration on the Rights of Indigenous Peoples was an important milestone, especially in terms of human rights protection. “This was an important step that reflected the increasing international attention paid to the rights of indigenous peoples. Its implementation however has left something to be desired.”

Folklore

In addition to the human rights side, work is being done on protecting cultural expression, [so-called] intangible cultural heritage - “folklore” - in which protection of intellectual property rights plays a crucial role, e.g. traditional art assumed by some to be in the public domain that is not sufficiently protected by copyright law. Breemen cites the example of an Australian manufacturer that uses images created by Aboriginal artists without their permission for its carpet designs.

Initiatives aimed at protecting traditional expressions with intellectual property implications have been taken principally by the World Intellectual Property Organization (WIPO), an organisation closely linked to the UN. “Although the WIPO has formulated policy rules, it has not yet been able to force passage of an international treaty. Those negotiations have not been running smoothly.”

Recommendations

On the basis of her extensive study of current legislation and treaties, Breemen has come to the conclusion that a broad approach is necessary to protect the traditional cultural expressions of indigenous peoples. “Above all, the indigenous peoples concerned must be involved in this process. This will require a process of democratisation that results in indigenous peoples being given greater access to, and a voice in, policy discussions.” In addition, Breemen attaches great importance to “coordination and cooperation” between the many international agencies that concern themselves with various narrowly defined aspects of protection. “This is not an isolated problem.”

Breemen still has concerns, in spite of the increased attention paid to indigenous peoples.”This is not a run race; we are faced with a great challenge. Environmental problems such as deforestation, and violence against indigenous peoples pose a threat to the autonomy of countless indigenous peoples.”

Doctorate

The doctoral defence ceremony will take place on 7 June 2018 at14.00 uur in the Agnietenkapel. M. van Eechoud is the thesis supervisor, and T. McGonagle the co-supervisor.

Published by  Amsterdam Law School