CASRIP Newsletter - Spring/Summer 2005, Volume 12, Issue 1
“Anonymous, Untitled, Mixed Media:” Mixing Intellectual Property Law with Other Legal Philosophies to Protect Traditional Cultural Expressions
By Molly Torsen
A large portion of the developed world comprises a global market, an interconnected forum for the exchange of commodities and ideas, yet many indigenous communities remain ideologically or factually separated from this marketplace, either by choice or circumstance. Jurisdictions that share geography with these communities tend to respect their differences only insofar as the jurisdictions recognize different legal systems for specific matters within those communities. Despite the recognition of some cultural differences, the same distinctions have not been applied to the protection of traditional cultural expression. Instead, laws for the global market, especially the market for ideas, have governed the indigenous communities, regardless of their willingness to participate or the adequacy of the laws in protecting traditional cultural expression. This article will explore some current issues in domestic and international intellectual property laws, most notably how they fail to protect cultural expression for which there is no specified author or authors, and suggest a legal approach for domestic protection and a policy declaration for international recognition of traditional cultural expression in the global market.
I. The Scope of the Problem and a Potential Solution for Protecting Traditional Cultural Expression
As an example of one indigenous community on the domestic front, United States intellectual property laws provide no protection for Native American communal owners of tribal art. With auction prices for traditional cultural expression reaching hundreds of thousands of dollars, and a national museum celebrating American Indian culture opening in the countrys capital, adequate protection for indigenous intellectual property is well worth attention. There must be a combination of legal concepts that reaches the right answer in a straightforward manner, and does not merely use loopholes or ambiguities in current laws, to ensure that traditional cultural expressions receive their due legal recognition.
Across the globe, a recent Australian court decision affirmed that the interest of an aboriginal group of people in the protection of (its) ritual knowledge from exploitation which is contrary to their law and custom is deserving of the protection of the Australian legal system. The clan sought an acknowledgement, through litigation, that it could possess communal title to its traditional knowledge and especially in its artwork. Their argument and ensuing legal decision introduced the term Bulun Bulun equity to encapsulate the idea that a community can have rights over art that is produced by one person, but requires communal assent from that community for use or distribution because of its communal significance. Australia is currently studying the possibility of granting indigenous communities the right to exercise moral rights to protect against inappropriate or culturally insensitive use of tradition-based copyright material. This type of right would enable communities to act against various uses of indigenous cultural materials, similar to the procedure some moral rights laws provide for authors to object to distortion, mutilation, or other disparaging use of his or her work.
It has been argued that copyright laws can, and must, be expanded so as to maintain the vitality of, and protect, the creative artistic and literary works of indigenous cultures. It may not just be copyright law, however, that holds the key to shielding previously unprotected artwork and imagery from inappropriate or commercializing use; indeed, the forms of protection necessary for folklore exceed the scope of protection afforded by copyright law. Trademark law, privacy law, human rights mandates, cultural property tenets and extrapolations from various international intellectual property regimes that have incorporated some form of recognition for indigenous expressions hold the collective potential for an intellectual property system that will provide the much-needed protection of creative and expressive works that fall outside the Western model.
At a recent World Intellectual Property Organization (WIPO) Intergovernmental Committee meeting, it was noted that many Committee participants have observed that no single solution is likely to meet all the needs of indigenous and traditional communities and to protect [traditional cultural expressions] in a comprehensive manner. Instead, effective and comprehensive protection may be found in a menu of options, comprising differentiated and multiple levels and forms of protection. The legal concepts are already in place in various fields of law; it is combining them in a new way that will render sui generic protection for intellectual property of indigenous cultures. The global marketplace is rapidly expanding and participants are realizing that cultural diversity and the customs and ideas of indigenous cultures are assets worth fostering and cultivating. Therefore, it seems hopeful that these issues will receive the requisite attention to spur the development of a new body of law that is comprised, ironically, of old ideas.
II. Research, Scholarship and Advocacy in this Realm of International Law is Relatively New and is Still Developing
The World Intellectual Property Organization and the United Nations Educational, Scientific, and Cultural Organization (UNESCO) have been cooperating to understand and contribute to an effort to protect expressions of folklore and traditional knowledge since the late-1970s. Thirty years is a relatively brief window during which these two organizations have explored the contours of the issue, including the ramifications of intellectual property protection for these cultures respective history, philosophy and law. Some of the problems in the international discussion of traditional knowledge remain in definitional and semantic differences; other problems arise from overgeneralization of different indigenous cultures, lack of international support or education on the issue, and incompatible points of view on the most effective manner in which to protect these cultural expressions.
Traditional knowledge encompasses several different kinds of things, all of which could be classified under the aegis of intellectual property. As of 1999, WIPO defined traditional knowledge (TK) as tradition-based literary, artistic or scientific works; performances; inventions; scientific discoveries; designs; marks, names and symbols; undisclosed information; and all other tradition-based innovations and creations resulting from intellectual activity in the industrial, scientific, literary or artistic fields. This definition demonstrates the breadth of the TK issue in general; much study has been dedicated to traditional medicinal practices, for example. This writing seeks only to explore the lack of legal protection for the narrower field of cultural expressions.
WIPO uses the term traditional cultural expressions and expressions of folklore interchangeably. These terms were born from the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and other Prejudicial Actions in 1982. The term folklore has been criticized as having something of a negative connotation, suggesting antiquated traditions to be recorded and remembered, rather than used or celebrated in modern life. Although both terms are used in WIPO parlance, this article will refer to the concept as traditional cultural expressions or TCEs.
Because of discrepancies in different parties ideas for definitions and the proper manner in which to address the interplay between international intellectual property regimes, traditional knowledge, genetic resources, traditional cultural expressions, and various ideas for remuneration schemes, WIPO established an Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) in 2000. Among other duties, the IGC is responsible for the planning and oversight of research, fact-finding missions, and working with other international entities in an effort to recommend a workable intellectual property regime for these various areas of law by fostering debate and study in the IGC forum.
III. A Single Model for Protecting Traditional Knowledge May Be Insufficient
Indigenous communities, whose TCEs an eventual scheme may one day protect, are not all alike. Just as the Western model of law does not provide adequate protection for these communities various forms of intellectual property, so are there differences among the communities needs, understandings, and desires for the protection of their heritage that refute the creation of a strict or narrow law for all indigenous communities. Thus, a body of law or declaration of understanding should be developed, rather than specific legislation.
In the 1991 Australian case Yumbulul v. Reserve Bank of Australia, the Galpu clan of Australia brought suit to prevent a bank from reproducing its design of a Morning Star pole on a bank note. A Galpu member, who had designed it, had gained his knowledge and authority to create the pole by way of sacred ceremonies and an initiation. The Galpu people considered it a communal obligation to prevent an outside entity from misusing the pole, and they considered its replication by the Bank a misuse. As such, this indigenous group views its cultural property not as property in the Western sense, but rather as a significant expression of culture for which clan members are temporary stewards. A similar issue was raised in the 1998 Australian case Milpurrurru & Ors. V. Indofurn Pty. Ltd. & Ors, wherein the Australian Yolngu clan artist whose work had been appropriated and copied onto rugs by non-clan people stated, as an artist, whilst I may own copyright under Western law, under aboriginal law, I must not use an image or story in such a way as to undermine the rights of all the other Yolngu.
The Tulalip Tribe of Washington State has also noted its own exceptions to Western ideas of property. For example, there is often no analogous concept of a public domain for the Tribe. Instead, the Tulalip tribe notes that knowledge is a gift from the Creator. There is no clear distinction between sacred and other kinds of knowledge
. Similarly the New Zealand Maori people do not condone the existence of legal rights for their TCEs without talking about the tribal or clan restraints and obligations imposed on those rights arising from their cultural responsibilities. The Western intellectual property regime neither reflects their motivations for creation, nor their wishes for the use or appreciation of those creations. A representative from the American Folklore Society raised a parallel point at an IGC meeting: traditional knowledge and folklore are part of the culture of both indigenous peoples and non-indigenous peoples. Thus, he urged WIPO to recognize the existence of multiple systems of law and custom in human societies.
These differences are demonstrated again in the aforementioned Bulun Bulun case. Testimony of various parties showed that the water hole depicted by the aboriginal artist, and then used by the unauthorized third party, was one of two sites to which the clan ascribed enormous spiritual significance. A watering hole would likely not be so important to a different tribe. Whereas the appropriation of an image of this site was highly offensive to the Ganalbingu, the tribal repercussions would be different to Native American Navajos, who do not have a similar system for inheriting rights to create imagery.
In 2002, WIPO commissioned a study called National Experiences with the Protection of Expressions of Folklore / Traditional Cultural Expressions: India, Indonesia and the Philippines. The author of the study, Valsala G. Kutty, remarked throughout her report that an important aspect of these countries individual approaches to traditional expression protection was national recognition that each community or tribe is an entity in and of itself and that domestic law is best designed when it provides gap fillers for tribal law, and that deference to local laws provides the best protection. She thought that a laudable feature of the Philippines legislation is the importance placed on customary laws. All through the Act, the prevalence of customary laws of the community concerned has been established as a determinant factor for management and protection of the rights conferred by the Act. In India, the author noted the same phenomenon:
The diversity of Indian culture and the large expansion of its territories calls for a system based on flexibility to build up on requirements based on the specific environments
there may be a need to build or develop institutions with representatives of the communities to discharge the function of administration and management of the rights conferred over [traditional cultural expressions].
Rosemary Coombe, a noted scholar in the area of cultural and intellectual property, emphasizes the same insistence on rejecting overgeneralization: The need to recognize and in many instances comply with customary legal norms with respect to traditional knowledge is acknowledged by the WIPO IGC and is from my perspective one of the most important aspects of (an intellectual property regime) proposal. Indeed, while the study undertaken for WIPO was focused on the indigenous communities within three different countries, the study was not meant to study the cultural attributes or practices of the countries themselves, but rather their domestic practices for protecting these unique, indigenous communities. The UNESCO-WIPO Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions are specifically meant for communities that do not share Western ideas of intellectual property; what is protected is not the entire cultural heritage of a nation, but only the artistic heritage, owned by the community concerned.
Other scholars and experts agree that individual tribes customary laws must be the basis for any overarching or international laws. Dr. Silke von Lewinski, of Germanys Max Planck Institute for Intellectual Property, Competition and Tax Law, wrote that customary law of indigenous communities already provides for distinct rules regarding (TCEs), which determine exactly which person in a community may exclusively permit the reproduction or other specific uses of a particular (TCE) and in what context. Justice Ronald Sakckville of Australia agrees: The policy questions are complex, not least because the cultures and histories of indigenous peoples are strikingly diverse, as are the societies in which the indigenous peoples of the world live.
While it is useful to lay out basic principles of respect regarding TCEs, and apply them to cultures that do not wish to participate in Western intellectual property law, it is also essential to recognize that every cultures needs and traditions are unique. There is no consistent way to measure the sanctity of a certain song or a specific image or to create a single law that would make sense for the best way to protect them all. The current draft on the Convention on the Protection of the Diversity of Cultural Contents and Artistic Expressions emphasizes the importance of respect for cultural diversity of all cultures. Therefore, [i]t is inappropriate for countries to come up with a one-size-fits-all sui generis system. Any new international norms will have to be flexible enough to accommodate the jurisprudential diversity of traditional societies. If not, they will fail.
IV. Legal Philosophies that Contribute to a Workable Body of Law and Tension Regarding the Issue of Free Speech and Free Expression
As suggested above, an amalgam of various legal philosophies not necessarily specific domestic laws as they are currently written, but rather the rationales behind them could provide the foundation for the necessary legal protection for TCEs. By distilling the intention of various laws to match the needs of traditional cultures, a hybrid of current law and sui generis TK law could provide the groundwork for a workable model law for protecting TCEs. Some commentators on TK protection propose that current laws are adequate, but the manner in which those laws would have to be bent at times leaves a measure of logic to be desired. While it is possible, for example, to extrapolate concepts such as joint authorship to cover indigenous creations, most domestic laws have a very narrow understanding of what it is and how it can be applied; United States law defines a joint work as a work prepared by two or more authors with the intention that their contributions be merged into inseparable or interdependent parts of a unitary whole. While this definition may seem a workable fit for TCEs, it is impossible to know whether a particular work was meant to be perceived as a unit by two or more unknown authors, because authors are rarely nameable or even alive for many of the works at which TCE protection would be aimed.
Commentators have also suggested that trade secret, right of publicity and unfair competition laws be tailored to fit the needs of TCEs, but, here again, there is an inescapable philosophical gap between the aims of Western laws and tribal goals for protecting their TCEs; these laws all involve commodification and financial gain. Before finding a remuneration mechanism that will work for TCEs, it is essential to find the correct legal philosophy for protecting them on grounds that are not financial in nature, and most tribes would not base the sanctity or importance of their TCEs in commercialization. The non-monetary aspects of copyright law, combined with purposes of other domestic and international laws, when understood as a whole, can be interpreted to provide straightforward, logical protection of TCEs.
A. United States Indian Law and International Instruments Geared to Indigenous Peoples
As mentioned above, several jurisdictions recognize that indigenous cultures living in that jurisdictions country receive some type of sovereign status; a basic tenet of that status being the power of a people to govern themselves. American Indian tribal powers originate with the Constitution, which recognizes that Indian tribes are distinct governments; Congress was authorized to regulate commerce with foreign nations, among the several states, and with the Indian tribes. Supreme Court opinions and new legislation throughout American history demonstrate that the independence of the tribes to self-govern is intertwined with a unique relationship between the Federal government and the tribes, resembling a trust relationship of a ward to his guardian. State laws do not apply in Indian territories, and only Congress has power to override Indian affairs, which is a relief to some and a worry to others. Further evidence of the nation-to-nation relationship between the Federal government and the Indian tribes is evident in legislation like the Indian Child Welfare Act of 1978, establishing procedures that state agencies and courts must follow in handling child custody matters within tribes, and creating dual jurisdiction between states and tribes that heavily defers to tribal governments.
Tribal self-governance is an authority greater in many respects than that of the states. Indeed, the law provides that:
[T]he status of the cultures and languages of Native Americans is unique and the United States has the responsibility to act together with Native Americans to ensure the survival of these unique cultures and languages; special status is accorded Native Americans in the United States, a status that recognizes distinct cultural and political rights, including the right to continue separate identities.
In light of these provisions and other federal statutes dealing with Indian rights and governance, including the Indian Reorganization Act, the Native American Graves Protection and Repatriation Act, and the Indian Civil Rights Act, it is evident that the federal government has the objective of encouraging tribes to maintain their independence and uniqueness. To that end, offering a degree of protection for TCEs is entirely within the scope of current Indian law.
Furthermore, on the international platform, organizations like UNESCO are aware that the cultures of indigenous peoples are in danger of dying out. More than 70 countries have populations of indigenous peoples totaling more than 350 million individuals, representing more than 5000 languages and cultures. Today, many of them live on the fringes of society and are deprived of basic human rights, particularly cultural rights. Thus, the United Nations General Assembly launched the International Decade of the Worlds Indigenous People on December 10, 1994.
B. Geographical Indications Law and Agreements
The World Trade Organizations Trade-Related Aspects of Intellectual Property Rights Agreement (TRIPS) establishes a minimum standard for member countries when fostering and protecting geographical indications (GIs). The degree to which countries should protect various names, how GI laws overlap with trademark and unfair competition laws, and whether certain categories of commodities should receive a higher degree of GI protection remain contentious and unresolved issues. While TRIPS is silent regarding TK issues, it provides a somewhat useful template for thinking about TCEs. If legally-recognized geographical indications are available for certain categories of products, based upon their inextricable relationship to a people and place, there is no reason to deny a similar protection to the creations of unique indigenous peoples for whom these creations exude or embody the particular qualities of their community.
Perhaps even more analogous to protection sought for TCEs in this realm is the French concept of appellation dorigine contrôlée [AOC]. An AOC, as defined in the 1958 Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration is the geographical name of a country, region, or locality, which serves to designate a product originating therein, the quality and characteristics of which are due exclusively or essentially to the geographical environment, including natural and human factors.
Within international conversations regarding GIs, however, there is a sometimes-overlooked definitional discrepancy. Whether a GI is related simply to the soil from which a product grows or whether it is also related to the methods and traditional practices of growing that product by a certain people remains unclear. The French concept of AOC certainly speaks to the latter concept; it is the combination of the land and the unique traditional practices of the people who tend to it that results in the unique wine bearing the AOC. The same could be said of TCEs, except that there is no aspect of commercialization involved. The collective AOC desired by many indigenous peoples would ensure some combination of respect, protection, recognition and privacy, which is not entirely different from the desires of the farmers and winegrowers who use AOCs.
Some countries have incorporated GI or GI-like tenets into their intellectual property laws to protect TCEs. The potentially permanent duration of trademark protection and the use of collective and certification marks are particularly advantageous. Russia, for example, has registered several old world industries as AOCs, such as Gorodets painting, Rostov enamel, and various toys. Their unique flavor of Russianness seems to be the basis for this special layer of protection. Gorodets painting, for example, is proudly explained on an official Russian government website.
C. Moral Rights Law and Philosophy
The Visual Artists Rights Act of 1990 (VARA) is the United States adoption of the concept of moral rights into codified law. In response to the Berne Conventions article 6bis, the United States made an effort to offer a degree of protection similar to the European versions of moral rights which are often more explicit and more deferential to the interests of artists and authors beyond remuneration than are available in VARA. Article 6bis of the Berne Convention provides:
(1) Independently of the author's economic rights, and even after the transfer of the said rights, the author shall have the right to claim authorship of the work and to object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his honor or reputation.
(2) The rights granted to the author in accordance with the preceding paragraph shall, after his death, be maintained, at least until the expiry of the economic rights, and shall be exercisable by the persons or institutions authorized by the legislation of the country where protection is claimed. However, those countries whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.
(3) The means of redress for safeguarding the rights granted by this Article shall be governed by the legislation of the country where protection is claimed.
The United States resisted joining the Berne Convention for more than one hundred years, in large part due to its opposition to offering moral rights protection as a codified law.
Upon the passage of VARA, one year after the United States joined the Berne Convention, Congress sought to provide uniformity for domestic copyright law, and recognized the benefits of Frances rationale for its similar, but more powerful droit moral: Artists play a very important role in capturing the essence of culture and recording it for future generations. Indeed, in France, copyright law is explicitly divided into economic rights and moral rights, and the moral right trumps that of the economic right. Furthermore, the moral right is perpetual, inalienable, non-seizable and universal. Herein lie some of the protections that should be extended to indigenous communities; if capturing the essence of culture
for future generations is generally regarded as a worthwhile endeavor, then a perpetual and inalienable protection should be granted to the TCEs that already exist.
Australia, as mentioned above, is exploring the possibility of introducing specific legislation for indigenous communal moral rights. The idea was originally introduced to the Australian Senate in 2000 by Senator Aden Ridgeway, but the proposal was not accepted. The concept received mounting publicity and the Australian Attorney General, along with the Minister for Indigenous Affairs, announced in 2003 that indigenous communities would receive a new protection for their creative works. The intent of the proposal is to offer these communities protection against inappropriate, derogatory and culturally insensitive use of copyright material.
In recent years, [t]raditional designs, songs and dances have been used by the entertainment and fashion industries to create works which are protected by intellectual property [law]. In other words, people who make derivative works of TCEs will often receive full copyright authority for a particular design or etching or image by photographing it, for example, or somehow formatting it to fit Western intellectual property models. While this is arguably a method for both protecting and disseminating TCEs, it is awkward and often improper. While the best case scenario would be that an indigenous photographer is assigned the tribal authority to both take the photograph and publish it in a book exploring and explaining the culture, copyright would still vest with that single photographer. While he or she may give or share the remuneration with the tribal group, the absence of the concept of property embraced by the tribe is defeated. Furthermore, this kind of system is often antithetical to the tribal vision of communal ownership in a work. That photographers work, for example, is only one of several manifestations of the TCE and is not, in and of itself, the sole or defining sample.
This is an example of the possibility of squeezing TCEs into a Western ideal and presumes the best motives of the photographer. Even in cases like these, the foundationally different concept in many indigenous cultures, including non-fixation, non-authored and unownable culture is essentially subjugated to a system that is illogical for those cultures. Furthermore, a less-than-ideal and more common situation would involve a non-tribal person who has no knowledge of or appreciation for the culture, using a tribal symbol as a decoration for a bumper sticker and who does not funnel any of the financial proceeds to the tribe. Bumper stickers and decals of indigenous symbols, such as petroglyphs of turtles in Hawaii, for example, seem to have proliferated. 
D. First Amendment
In some cases, such as that of the Morning Star Pole and the Galpu people of Australia, the reproduction of the image on currency was regarded as blasphemous by the tribe. In the Bulun Bulun case, the unauthorized use of tribal imagery on rugs sold commercially was regarded as highly improper. In a sense, these cases are somewhat analogous to the sale of a gold crucifix necklace at Tiffanys or silk-screening a Star of David on a greeting card, because religious symbols are being sold for commercial gain. But the cultural contexts are too dissimilar to compare. If Catholicism were virtually unknown in the Western world and was practiced only by a small group of people in Rome, and the image of a Madonna and Child from a marble statue in a small Roman church was photographed and reproduced on welcome mats or bumper stickers as a kitschy souvenir, would the Catholics have any legal recourse? Should they? The gold crucifix at Tiffanys is likely not sold for $575 simply because it is a crucifix but rather because it is made from 18 karat gold and is sold at a well-known jeweler and was designed by a well-known jewelry designer. In other words, it is not the symbolism that is a novelty; it is the particular incarnation of that symbol that justifies the cost. Furthermore, a prospective purchaser or recipient of the necklace will likely have intended to wear it because of his or her belief in Christianity, not because the cross is an exotic or foreign artwork that does not hold personal significance for him or her.
This example demonstrates that context and societal misunderstandings are the factors that are overlooked within current Western copyright law, and this is one reason a sui generis body of law should be used in these contexts. Certainly, disrespectful, blasphemous or controversial uses are made of the crucifix, and neither the Catholic Church nor Catholic people would have standing to bring suit under intellectual property laws. But even the United States, in a limited way, has recognized that there is a measure of dignity that is to be extended to belief systems or religion or that is fundamental to our way of life.
One recent U.S. case where decency was taken into consideration was National Endowment for the Arts v. Karen Finley. At issue in the case were the grant-making procedures followed by the National Endowment for the Arts [NEA]; the artists challenged the constitutionality of the language in the National Foundation on the Arts and Humanities Act, alleging First Amendment violations. The legislation takes decency and respect into account for purposes of grant-making; it also takes cultural diversity into account. Ultimately, the Supreme Court decided that the NEAs consideration of decency and respect is facially valid and does not violate constitutional vagueness principles; the NEA has limited resources, making it impossible not to deny money to a large amount of constitutionally-protected expressions.
Indeed, after two situations in which the public was concerned with the content of U.S.-funded exhibitions, Congress enacted an amendment providing that no NEA funds may be used to promote, disseminate, or produce materials which in the judgment of [the NEA] may be considered obscene, including but not limited to, depictions of sadomasochism, homoeroticism, the sexual exploitation of children, or individuals engaged in sex acts and which, when taken as a whole, do not have serious literary, artistic, political, or scientific value. The exhibitions that induced this legislation included a 1989 retrospective of photographer Robert Mapplethorpes homoerotic work and artist Andres Serranos work Piss Christ, a photograph of a crucifix immersed in urine. Serrano had been awarded a $ 15,000 grant from the Southeast Center for Contemporary Art, an organization that received NEA support. This case is important to this writings argument because it demonstrates that First Amendment freedoms are not infinite. Just as the public was granted something of a right not to be offended by these artists works, so too must a tribe be granted a moral right not to have its collective work distorted, commodified or used in a way it finds derogatory. The very legislation upheld by the Supreme Court is aimed at promoting projects having substantial national or international artistic and cultural significance, giving emphasis to American creativity and cultural diversity and to the maintenance and encouragement of professional excellence; certainly the cultural diversity inherent in traditional cultural expressions should be given a degree of protection.
E. Cultural Property Treaties and Tenets
Western cultural property ideas add an essential ingredient of protection to the recipe of TCE protection. As Western monuments and artworks were pillaged and destroyed during the twentieth centurys world wars, many international efforts were made to provide a measure by which to protect great works of the past for future generations. The Convention for the Protection of Cultural Property in the Event of Armed Conflict was adopted at The Hague in 1954 in the wake of massive destruction of the cultural heritage in the Second World War, and was the first international agreement focusing exclusively on the protection of cultural heritage. 
The 1970 UNESCO Convention on cultural property dispersion established principles to regulate cultural property protection on an international scale, considering that it is essential for every State to become increasingly alive to the moral obligations to respect its own cultural heritage and that of other nations. Again, semantics plays a part in reinterpreting this philosophy to apply to TCEs. Without the Western sense of ownership attached to the concept of cultural property but rather a broad-based definition of cultural heritage that is applicable for many indigenous cultures, TCEs are implicated, and the 1970 UNESCO Convention suddenly becomes very relevant.
F. Human Rights Mandates
The Universal Declaration of Human Rights was adopted and proclaimed by the General Assembly of the United Nations in 1948. Among other provisions, the Declaration provides that [a]ll human beings are born free and equal in dignity and rights and that everyone, as a member of society
is entitled to realization
of the economic, social and cultural rights indispensable for his dignity and the free development of his personality. For several indigenous cultures, the peoples dignity and development of personality is inherently linked with aspects of their culture, such as TCEs. Their way of life, livelihood, religion and culture are inextricably intertwined with and dependent on the traditional environment in which they live. A Permanent Forum on Indigenous Issues was established within the United Nations to incorporate indigenous peoples voices in the international dialogue on human rights. The idea for the Permanent Forum was brought up at the culmination of a process started at the Vienna World Conference on Human Rights in 1993, and its establishment is a central objective of the International Decade of the Worlds Indigenous People.
Another core goal of the International Decade is the completion and adoption of the UN Declaration on the Rights of Indigenous People. Almost every article of the Draft Declaration on the Rights of Indigenous Peoples is applicable to this discussion; for example: Indigenous individuals and peoples are free and equal to all other individuals and peoples in dignity and rights, and have the right to be free from any kind of adverse discrimination, in particular that based on their indigenous origin or identity. More pointedly, indigenous peoples shall have the right,
to practise and revitalize their cultural traditions and customs. This includes the right to maintain, protect and develop the past, present and future manifestations of their cultures, such as archaeological and historical sites, artifacts, designs, ceremonies, technologies and visual and performing arts and literature, as well as the right to the restitution of cultural, intellectual, religious and spiritual property taken without their free and informed consent or in violation of their laws, traditions and customs.
Certainly, this combines several aspects of law already mentioned and even provides an arguable mechanism for making this new standard retroactive. The purpose of the Declaration is clear and important: The rights recognized [in the Declaration] constitute the minimum standards for the survival, dignity and well-being of the indigenous peoples of the world. As such, Western courts must work with indigenous courts to better understand their goals for their TCEs.
G. Privacy Law
In 1890, Samuel Warren and Louis Brandeis authored a now-famous law review article on privacy law. In it, they argued that the law in the United States, because of its inseparable intertwining with political and social ramifications, had nurtured a new right that of privacy: the common law, in its eternal youth, grows to meet the demands of society. While this concept has been analyzed and taken apart several times over the past century, a definition and codification of the idea remain elusive. Whether it is essentially a right to be let alone, an expression of personhood or some other iteration on the basic theme of privacy ranging from autonomy to anti-totalitarianism remains debatable. Indeed, single one-size-fits all definitions of privacy have proven to be of limited value. Yet, privacy law demonstrates that a legal platform exists for a range of activities and expressions, which although undefined, are allowed to acquire a thin legal shield. Interestingly, while United States intellectual property law is typically viewed as focused on commercialization, it also provides more privacy protection and access control than do the intellectual property schemes of some other jurisdictions.
As with the concept of authorship in copyright law, however, the notion of privacy seems to evoke personhood in the individual sense. The sometimes-proffered right to be let alone, amongst other iterations of privacy law, has been invoked to provide protection for individualistic privacy. For many native communities, however, indigenous art and cultural expression is interwoven with indigenous identity both reinforce and define the other. The Western concept of privacy for an individual seems applicable to some indigenous cultures concept of tribal identity, and the quintessential concept of selfhood is shifted from one person to one people. If a tribe is granted a right to be let alone or to carry on its traditions autonomously without interference that tribes TCEs, inextricably tied to that tribes identity, should acquire a protective legal coating against misappropriation, derogation or uninvited scrutiny.
An interesting example of a privacy issue that has been litigated is Estate of Tasunke Witko a/k/a Crazy Horse v. Hornell Brewing Co. The plaintiffs did not assert an intellectual property claim, but based their argument in defamation and negligent infliction of emotional distress, among other complaints, including privacy. In 1993, Tasunke Witko, a descendant of Crazy Horse (Seth H. Big Crow), acting as the administrator for Crazy Horses estate, brought suit along with the Brule Lakota of the Rosebud Sioux tribe of South Dakota against the brewing company for using the name Crazy Horse in the manufacture, sale and distribution of a malt liquor product, beginning in 1992. Crazy Horse, a respected tribal leader, had adamantly criticized the abuse of alcohol during his lifetime and the plaintiffs brought suit asserting a variety of violations and claims. The case has gone through many procedural iterations and was eventually settled out of court but, interestingly, in 1992, Congress passed a specific bill banning the use of the name Crazy Horse and the Senate passed a resolution directing Hornell Brewing Company to negotiate with Sioux leaders to obviate the need for legislation. The former President Bush later signed and enacted a federal statute banning the use of the name Crazy Horse on any alcoholic beverage, although, the following year, a New York Federal court overturned the national ban, explaining that the law violated Hornell Brewing Companys right to free speech. Although this case involves a Native Americans actual name rather than a TCE, many of the issues involved are identical. Both the President and Congress recognized that, although intellectual property laws were not suited to rectify the situation, and although free speech issues were invoked, it would be fundamentally wrong to allow the brewing company to use Crazy Horses name. As the case was settled out of court early in 2004, it does not provide ideal legal precedent for future cases.
Another useful aspect of privacy law is known as intrusion upon seclusion. Generally, one who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. Several United States cases have utilized this concept to protect against shadowing and paparazzi. Perhaps this concept has heretofore not been applied to indigenous groups because the reasonable person standard is not useful for Western cultures judging non-Western cultures. Again, the differences between cultural beliefs and practices are relevant to proper application of the law. Appropriating a TCE for commercial exploitation or for any other use that a tribe would deem offensive could constitute an inclusion upon seclusion if the reasonable person is a reasonable Native person from the relevant tribe.
V. A TCE Model Law Should be Flexible Enough to Accommodate Different Value Systems, but Specific Enough for Genuine Protection
Combining the reasoning and the legal bases for the aforementioned bodies of law, it seems inescapable that TCEs are a strain of intellectual property with a fundamentally different understanding of what intellectual property rights should entail, but they are due a type of protection that ensures a specific bundle of rights suited to the cultures from which they originate. Current United States laws do not provide adequate protection for TCEs, although the United States is party to a number of the international agreements mentioned in this writing. The United States is certainly not alone in its lack of legislation in this area, but as a world leader and proponent of human rights and cultural diversity, and as a country with several indigenous cultures that could benefit from new legislation, we are responsible to lead in an effort to begin discussions both domestically and internationally toward a better understanding of the issue and to suggest functional legal ideas. As a country that just opened the National Museum of the American Indian on the mall in Washington, D.C., we express a wish that the peoples of the Americas can come together in new mutual understanding and respect. That understanding and respect make possible the true cultural reconciliation that until now has eluded American history. Extrapolating this concept to the international level would be exponentially beneficial.
Australias Justice Sackville, mentioned above, has noted that common law and other Eurocentric legal concepts have proved to be more flexible and responsive to the legitimate concerns of indigenous people than conventional wisdom might suggest, and
while intellectual property regimes have an important part to play in protecting traditional cultural expressions, they are not the only legal mechanisms that can be invoked for that purpose. The same is true for the United States and probably for most other jurisdictions in the world. If we can understand the differences in society and culture that render Western intellectual property law a poor fit for TCE protection, we can reinterpret the basic concepts of intellectual property and other Western laws so that TCEs receive their due legal shield against misappropriation and misuse so that misconceptions about indigenous peoples and resultant disrespect are not so prevalent.
VI. A Proposed Declaration to Address International TCE Protection Would Include Policy Statements from Existing Treaties
In theory, the menu of domestic options for protecting TCEs is not difficult to reinterpret so that it applies to TCEs specifically and logically. It would not be difficult on the international level to extrapolate from this idea to offer legal protection for a level of dignity and respect extended to TCEs worldwide. Without creating a sentence of new law or implicating an agreement to which the United States is not party, part of the preamble to an eventual international agreement on traditional cultural expressions is already applicable and already exists. While the introduction of TCEs -- and how they relate to cultural property, cultural heritage, and intellectual property -- would need to be parsed through and made explicit, TCEs significance as a symbol of Native culture and identity could be affirmed by a new Declaration, which incorporates policy statements from existing treaties and proposals:
Recognizing the need to introduce new international rules and clarify the interpretation of certain existing rules in order to provide adequate solutions to the questions raised by new economic, social, cultural and technological developments,
Recognizing the profound impact of the development and convergence of information and communication technologies on the creation and use of literary and artistic works,
Considering that cultural property constitutes one of the basic elements of civilization and national culture, and that its true value can be appreciated only in relation to the fullest possible information regarding its origin, history and traditional setting,
Convinced that a system of copyright protection appropriate to all nations of the world and expressed in a universal convention, additional to, and without impairing international systems already in force,
Considering that deterioration or disappearance of any item of the cultural or natural heritage constitutes a harmful impoverishment of the heritage of all the nations of the world,
Considering that the existing international conventions, recommendations and resolutions concerning cultural and natural property demonstrate the importance, for all the peoples of the world, of safeguarding this unique and irreplaceable property, to whatever people it may belong,
It is declared that traditional cultural expressions shall be extended an understanding of protection against usage, dissemination, and the making of derivative works deemed inappropriate by the collective people by whom the TCE was created.
Indigenous people often live differently than do Western people. Their identity and way of life deserves the same respect and protection and, in todays society of digitization and world trade, an us-versus-them approach is outdated, insufficient and myopic. Lyndel Prott, former director of UNESCOs cultural heritage division states it best: You have to teach children from their earliest years to appreciate the cultures of their neighbors and even of their former enemies. If they, too, can see that these things are important for all of mankind and for them, theyre not going to have this urge to destroy. Or, in the case of TCEs, the urge to distort, disrespect or commercialize. A new body of law, comprised of existing legal theories and philosophies, would provide past-due domestic and international protection and would provide all parties an opportunity to learn about each other.