“Learning from Existing Evaluation Practices on the Impacts and Effects of Intellectual Property on Development”

Geneva6th/7th October2011

Evaluation Section Internal Audit and Oversight Division (IAOD)World Intellectual Property Organization (WIPO)

EFFECTS OF WIPO’S CREATIVE HERITAGE PROJECT ON THE WELFARE

OF THE MAASAI COMMUNITY

Eliamani Laltaika / Tanzania Intellectual Property Network (TIP-Net)

Introduction

“Every one knows the Maasai” Thomas Spear (1993)

Semi nomadic pastoralists living in Southern Kenya and Northern Tanzania

Have remained committed to their tradition for millennia

Their unique culture/ “heritage” has become highly marketable

The Community recognizes the value (both economic and intrinsic) of their Traditional Cultural Expressions TCEs and traditional knowledge TK in general

The Maasai

Use of their TCEs outside traditional setting

Main thesis

Year 2006, Maasai of Laikipya Kenya approach WIPO for assistance in protecting their cultural heritage

What assistance did WIPO provide?

How has that impacted the community?

What are the long term implications?

Does this assistance narrow the conceptual divide between conventional IP and indigenous peoples’ and local communities’ paradigms?

Conventional IP “individual rights” Indigenous People “Communitarianism” or collective rights

WIPO’s Creative Heritage Project comes in…

In response to the request by the Maasai (through an NGO called Maasai Heritage Foundation MHF) WIPO’s creative Heritage Project

Sponsored training of two members of the community to study digital archival methods, documentation etc at Duke University in the USA.

Provided the community with a digital camera, sound recording equipments and a durable state-of-the-art laptop computer to document their cultural heritage

(See WIPO Magazine Capacity-Building – Intellectual Property and Traditional Knowledge September 2009)

Impact 1

Awareness raising on the importance of TK and TCEs beyond what the concerned NGOs (even with the help of their respective governments, which is rare if ever happens) could do for many years

Communities at the grassroots know their rights in TK/TCEs and are motivated to protect them

Why such effectiveness in awareness raising?

Inclusion of officials from government of Kenya in the training “all-inclusive” approach

Community readiness to explore new ways of protecting their heritage

Charismatic nature of the Maasai (and probably also the UN and WIPO)

Curiosity and scepticism: how can that happen? Why the Maasai? Aren't TCEs “public domain”? Hence coverage in the media

Impact 2

IFAD’s sponsored project on cultural heritage in Ngorongoro through the Maasai Indigenous Heartland Organization (IHO) contains an IP component

Maasai Women Development Organization (MWEDO) to establish a “Maasai brand” for authenticating genuine products such as handicrafts made by Maasai women

Maasai Lodge in Laikipya Kenya

More importantly: fee for filming/taking photos in Maasai traditional ceremonies such as eunoto as from 2010!

Long term effects

Songs, photos, folk stories etc in recorded/digitized form…- increased vulnerability to misappropriation?

“Going High Tech”: is the community prepared for such drastic changes in their TK/TCEs governance?

Who “owns” such IPRs and in which terms?

What is the role of customary law?

“Can culture be copyrighted?” Michael F. Brown Current Anthropology Volume 39, Number 2, April 1998

Disparities: Indigenous Peoples’ paradigms vs. Conventional IP Law

Some examples: Copyright versus Indigenous Cultures

Originality: TCEs are not only passed from generation to generation but may also be borrowed from a neighbouring community. For example, a Maasai traditional song may contain “substantial copying” from the Samburu Fixation: most common law jurisdictions require fixation in a tangible medium of expression” as a prerequisite for copyright protection. Not only is it impossible to fixate all TCEs but also unnecessary as they cease being a part of “cultural heritage” passed from one generation to another through the word of mouth. Term: Members of the Berne Union grant copyright for a fixed term of “life plus 50” and others “life+70” (e.g. the USA). While this time may seem adequate for normal works of authorship, it is not so long for communities. Sole Authorship: This is probably the main reason for inability of copyright law to protect indigenous cultures. In many cases, the whole community considers itself the author of their cultural expressions. Copyright Exceptions/Fair Use: given the spiritual values of most TCEs and somewhat extraordinary parameters created by indigenous customary laws, the fair use doctrine hardly applies to TCEs.

“Searching within” for possible answers

1998 WIPO undertakes a historical “mission” to find out IP Needs and Expectation of Traditional Knowledge Holders, publishes a report in 2000

The report acknowledges inter alia that “IP is evolutionary and adaptive…changes in economic, social and cultural conditions require continuous appraisal of the system and at times adjustment and expansion”

2000 WIPO’s GA establishes the intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC)

IGC’s mandate

“The committee will during the next budgetary biennium (2010/2011) and without prejudice to the work pursued in

other fora, continue its work and undertake text-based negotiations with the objective of reaching agreement on

a text of an international legal instrument (or instruments) which will ensure the effective protection of

GRs, TK and TCEs…”

Anticipated legal instrument(s) will be Sui generis taking into consideration indigenous peoples collective rights

and other paradigms.

Key Lessons

1. As a result of WIPO’s work, governments in both Kenya and Tanzania have realized the economic value of TCEs and are willing to work with communities to safeguard these rights

Income generating activities in Laikipya (Kenya) and Ngorongoro (Tanzania) are connected to this awareness of economic value of TCEs

2. Created IPRs particularly copyright has raised more questions than answers and increases the conceptual divide between conventional IP and indigenous heritage

Conclusion

WIPO to keep on keeping on the good work of the IGC till the first international legal instrument(s) on TK/TCEs comes to life

Engage representatives of local and indigenous communities more closely/fully for “alternative views” on TK/TCEs governance (including expansive interpretation of texts)

Spearhead research in, and documentation of CUSTOMARY LAW and PROTOCOLS related to TK/TCEs governance (including ADR)

It IS possible!!!

Thank you for your attention

“Asanteni Sana”