Case Studies

Source for the abridged case study: Brown, Michael F. 2003. Who Owns Native Culture? Cambridge, MA: Harvard University Press. 

Some Native Americans resort to registered trademarks to protect symbols that are sacred to them or of great cultural importance in their societies. Unlike a copyright, a trademark has the advantage of potentially never expiring, provided that those who own the trademark protect it and prevent it from entering into general circulation. However, since this form of intellectual property also operates within the market system, some people say that it is not necessarily the most suitable approach for indigenous populations.

The United States Patent and Trademark Office has begun to implement a policy that refuses to register marks that refer to―but do not represent―Native Americans, encouraging Native Americans to document and register their important symbols. Yet, after centuries of colonialism, subordination, and deception in their relations with the U.S. government, Native Americans have shown little interest in registering their symbols in these databases. Moreover, it proves quite problematic to store information about sacred and/or secret symbols in US government databases. Some Native Americans ask why they should turn over secret and sacred materials to those entities that represent their colonizers; such acts seem to contradict the very idea of the secret and the sacred? 

However, other approaches―such as focused and contextualized dialogue―have produced interesting agreements. For example, in the year 2000, Southwest Airlines reached an agreement with the Pueblo Zia to use the latter’s sun symbol in exchange for establishing a Pueblo Zia student scholarship fund. To reach this settlement, the Zia did not turn to the government or to the law; nor did they seek to profit from their symbol. 

Rather they entered a dialogue with Southwest, which led to a benefit for their youth, and which reflected negotiations based on concepts of respect, control, and dignity. 

• What are the advantages and disadvantages of the widespread registration of cultural expressions in Bolivia? 
• Within Bolivian culture, are there some things that should not be registered in this way? 

Source for the abridged case study: Anderson, Jane. 2010. Indigenous/Traditional Knowledge & Intellectual Property. Duke University School of Law: Center for the Study of the Public Domain. 

In 2001, the Lego toy company began selling so-called “Bionicle” action figures. These figures come from the imaginary Island of Mata Nui. In its toy narrative, Lego used several words from Polynesia including some Maori words. A New Zealand lawyer working for the Maori wrote to Lego denouncing the use of Maori words; the Maori thought this use showed disrespect for their culture, especially in the case of words that have spiritual meanings. At first, Lego ignored the complaint, but after much negative publicity, a Lego representative travelled to New Zealand to meet with Maori groups. After the meeting, Lego acknowledged its error, ceased using Maori words and promised not to use Maori words in the future. While the Maoris never went as far as threatening legal action, the possibility of damaging publicity convinced Lego to initiate a dialogue with them.

• What are the advantages and disadvantages of resolving disagreements through dialogue and arrangements that fall outside the formal legal system? 
• Can you imagine a better outcome to what actually happened? What might this have been?

Source for the abridged case study: Demers, Joanna. 2006. Steal This Music: How Intellectual Property Law Affects Musical Creativity. Forward, Rosmary Coombe. Athens and London: University of Georgia Press. 

Sampling practices in hip-hop, in which musicians use segments of music and sound that previous artists have recorded, can be considered a form of transformative appropriation consistent with other African American traditions that honor previous generations. The recorded fragments hip hop musicians use are protected under intellectual property law, even though in many cases the royalties go to a record company rather than to the original composer or recording artist. As well, hip-hop artists significantly transform the sampled materials they use, creating other musical expressions and works of art with identities of their own. Yet, following numerous legal suits against hip-hop creators, many musicians now pay licensing fees in advance for their “samples”. Creators prefer to pay for a license, rather than wait to see if their work is legally classified as a completely “new” piece, or if it falls under the US doctrine of fair use (see glossary). When hip hop artists pay in advance for the right to sample recordings, the possibility for robust creative practices is drastically reduced because artists assume that their raw materials for new creations are already enclosed within protective property frameworks; here intellectual property logic trumps traditions of transformative appropriation and honoring. These legal tactics contradict a basic point about creativity: any new work in any field is always built upon models from the past. 

• For the case of Bolivia, what examples exist of reworking or remixing previous works to create something new? Should rules or protocols exist for such cases? 

Source for the abridged case study: Preface In: Aoki, Keith, James Boyle, Jennifer Jenkins. 2006. Tales from the Public Domain: Bound By Law (Portuguese Trans., “Prisioneira da Lei,” 2009). Durham: Duke Center for the Study of the Public Domain. 

Documentary filmmakers face ever more difficult circumstances as they attempt to create films about the world in which we live. As they focus their cameras on the world, they capture soda cans, background music, posters, and high-rise buildings. Those who claim rights over these sounds and images have been known to sue the film’s producers if proper licenses are not obtained prior to a film’s release. Filmmakers even have to think about someone who might claim rights over something that was long assumed to be in the public domain. 

The documentary filmmaker, Davis Guggenheim said his production of the Oscar winning “An Inconvenient Truth” came to a standstill when he was unable to satisfy the studio lawyers about possible rights claims in several shots and sequences. In another one of his films, “The First Year,” a documentary that followed first year teachers in public schools, a key scene of a teacher driving his students in a van had to be cut because they could not clear the licenses for the use of the song “Stairway to Heaven” that was playing on the radio. The difficulty was not one of paying the license fees, but rather of being unable to track down the multiple rights holders involved. Guggenheim said that ten years ago, the scene would have been included in the film, but that in today’s intellectual property environment, fair use has lost ground (see glossary). Lawsuit-averse studio and distribution lawyers will opt for cutting scenes entirely, if there are any doubts about possible rights holders’ claims. If this is the case for those who can pay, what happens in productions where paying expensive licenses is not even an option?

• In Bolivia, what similar problems do documentary filmmakers face? 
• How should filmmakers reuse the work of others during the creation of something new? How should one acknowledge the roots of these new creations? 

Source for the abridged case study: McCann, Anthony. 2001. “All That is Not Given Is Lost: Irish Traditional Music, Copyright, and Common Property,” Ethnomusicology 45 (1): 89-106. See also: McCann, “Beyond the Commons, Music and Copyright,” http://musicandcopyright.beyondthecommons.com/vallely.html 

The “session,” an important tradition in Irish music, involves musicians meeting together in a pub―a public place―to share music. Sometimes the “session” can have regular participants, called “anchors,” but generally speaking, anyone may join in, as long as they follow the generally unspoken rules of etiquette. In this environment, beginning, skilled, and professional musicians meet and the hierarchy among them usually works outside a market logic. It is not a concert; no one buys a ticket; and the musicians are not usually paid. However, pub owners sometimes offer the musicians food and drink, and “anchors” may receive some form of remuneration. The circulation of music in this public context includes traditional repertoire and melodies whose authors and composers can be identified. 

Ireland’s music copyright society, the IMRO (Irish Music Rights Organisation) ―equivalent to Bolivia’s SOBODAYCOM―counts very few traditional musicians among its members. For the IMRO, each tune or song represents a commodity, but for those participating in a “session”―whether musicians or audience―each piece belongs to that social and shared moment that stands outside the logic of the market. Authorship here has more to do with respect and cultural capital than with property. Even if professional musicians also circulate in other spaces ruled by the market, the “session” is a space where everyone meets, where everyone learns from each other, and where the music is shared – like a gift or a reciprocal exchange. When IMRO declared its intention to charge royalties for music performed during “sessions,” Irish musicians rejected the proposal and campaigned to raise consciousness around the true meaning of a "session." 

Social exchange in the session highlights the practiced but unstated principle of: what is NOT GIVEN shall be lost. If tunes are not given, the social tradition of sharing music may be lost, not to mention the Irish tradition of informally training new musicians. 

• In what Bolivian musical and festive contexts should the principle “what is not given shall be lost” be taken into consideration? What does this mean for copyright societies such as SOBODAYCOM? 

Source for the abridged case study: Noble, Brian. 2007. “Justice, Transaction, Translation: Blackfoot Tipi Transfers and WIPO’s Search for the Facts of Traditional Knowledge Exchange,” American Anthropologist 109 (2): 338-349.

Among the Native American Blackfoot of Montana, (United States) and Alberta (Canada), certain people are designated as guardians (keepers, holders, owners) of a series of ceremonial elements that encompass specific designs painted on the sides of tipis (a traditional plains Native American dwelling). According to Blackfoot custom, the original designs were derived from the visions and dreams of ancestors, and transferred from one family to the next. A design cannot be used without a ceremony of transfer, which includes songs and rituals that set out the conditions of transfer and use by the new guardian. For example, the new guardian may not reproduce multiple copies of the design. Thus, the keeper may duplicate the design to replace a destroyed tipi that previously displayed the design, but a guardian is not permitted to create several copies of the same design. 

Because these designs exhibit some characteristics of property, it is conceivable that they might be recognized under intellectual property regulations and copyright protections. The World Intellectual Property Organization (WIPO), despite recognizing the problems that could ensue, has proposed using intellectual property legislation to protect these traditional forms of knowledge. 

Difficulties emerge when traditional knowledge is treated as a person’s property and when the ritual practices involved in transferring such knowledge are abandoned, as these ritual practices serve to reinforce creativity and expand social relations within a community.

The social logic, which is so important for the transfer of knowledge about tipi painting, goes against the neoliberal logic invoked today in development language―against the language spoken by those, like WIPO advisors, who promise that the next great path to economic development runs precisely through ever better organized intellectual property.

• While it is important to recognize the need to work within the particular parameters as determined by different local contexts, are there cases in Bolivia that resonate with the example of the Blackfoot tipis? 

Source for the abridged case study: Anderson, Jane. 2010. Indigenous/Traditional Knowledge & Intellectual Property. Duke University School of Law: Center for the Study of the Public Domain.

In 2006, the cosmetic company AVEDA brought an array of skincare products onto the market under the name “Indigenous.” As part of the marketing process, AVEDA registered the word “Indigenous” as a brand name, provoking protests from indigenous groups around the world. In the face of intense pressure but before any legal action was initiated, AVEDA decided to discontinue the “Indigenous” line of products and to renounce the brand name. Following these events, AVEDA established several associations for “shared benefits” with indigenous groups in Australia and the Americas. This included an agreement to provide benefits to a community in Australia from where AVEDA sourced sandalwood oil. Under this agreement, the Katkabubba Aboriginal community is paid for their land and their knowledge, which are accessed in the sourcing of sandalwood. 

• How can social groups pressure multinational corporations so that they assume a more sensitive perspective towards indigenous peoples, and become more aware of their responsibilities to the world?
• What advantages and disadvantages might come from shared benefits agreements?

Source for the abridged case study: Tan, Shzr Ee. 2008. “Returning to and from ‘Innocence’: Taiwan Aboriginal Recordings,” Journal of American Folklore 121 (480): 222-235. 

In 1978, the Taiwanese ethnomusicologist Hsu Tsang-houei, working in his own country, recorded a traditional song associated with weeding fields. The song was performed by an aboriginal man who belonged to the Amis community. Ten years later, Hsu deposited the song in the Maison des Cultures du Monde in Paris, France, which in turn published this song on the vinyl LP entitled Polyphonies vocales des aborigènes de Taiwan (1989). The German group Enigma incorporated a “sample” of the recording in their hit song, Return to Innocence (EMI, 1993), which went on to be selected as the official song for the 1996 Olympic Games in Atlanta. For many people around the world, this was the first time that they had heard aboriginal music from Taiwan, even if it was mixed with electronic sounds. Before using the recording, Enigma had cleared the rights with La Maison des Cultures du Monde and paid for the transfer of rights. Although Enigma’s actions were within the law, nobody had attempted to track down the original singer or to ask his or his community’s, permission to use the song. By chance, the original Amis singer known as Diwang heard his voice on the recording and requested that EMI recognize his participation. When his petition was denied, Diwang filed a lawsuit against Enigma, which was resolved in 1999 with an out of court settlement that brought him considerable wealth and fame. Diwang later recorded two other albums with the producer of Deep Forest for the Taiwanese label Magic Stone Music (where his voice was mixed with electronics). As a consequence of the Diwang-Enigma case, aboriginal people of Taiwan have become much more aware of copyright and intellectual property. 

• What might be some of the advantages and disadvantages of using the law to assert pressure, even if final agreements are reached out of court? 
• What do you think about individuals from a community (such as the Amis) being recognized in this way? Can we identify comparable examples in Bolivia? 

Source of the abridged case study: Anderson, Jane. 2010. Indigenous/Traditional Knowledge & Intellectual Property. Duke University School of Law: Duke Center for the Study of the Public Domain. 

In order to protect its batik designs, the local government of Solo, Indonesia, has adopted a defensive approach to intellectual property. This action responds to local artists’ anxieties about the production of this “traditional art” in other parts of Indonesia and in neighboring countries, where the designs might be reproduced without an understanding of their meanings or the broader social practices associated with them. The process the Solo government has developed to patent batik designs involves registering thousands of designs. Not only must those who use the designs--whether designers or other professionals--pay for permission for each reproduction, but each registration also entails a cost for the artist. Sometimes the small-scale producers of Solo do not have sufficient funds to register or copy their own designs. As an unintended consequence of this policy, divisions have emerged among batik producers, and in particular, small-scale producers have been marginalized. 

• What do you think about using intellectual property as a defensive strategy if it leads to divisions within communities and marginalizes those who are less fortunate? 

Source of the abridged case studies: Copy/South Research Group. 2006. The Copy/South Dossier: Issues in the Economics, Politics and Ideology of Copyright in the Global South, Alan Story, Colin Darch, and Debora Halbert, eds. 

Copyright enforcement in the Global South often translates into restricted access to knowledge for the less fortunate, and libraries have been a contested ground in this area. For example, Random House in Colombia, a division of the German multinational publisher Bertelsmann, has tried to restrict circulation of works by the Colombian Nobel laureate, Gabriel García Márquez. With one of his books, they tried to extract payment not only for copying the book, but additionally for its circulation to the public through public libraries. 

In other cases, university officials have had to remove public photocopy machines from libraries, under threat of losing their accreditation with an affiliated university in the Global North. In another case, national collections in a South African library are deteriorating and in need of digitization. But such a project is held up by the extremely difficult work of securing the rights to digitize these materials. Some rights holders cannot be found. Others want to charge exorbitant fees and impose heavy restrictions on how the materials circulate.

• What would  happen if photocopy shops around Bolivian universities suddenly had to close their doors under orders to respect copyright? How would this limit access to knowledge and education?

Source for the abridged case study: Aguilar R., Grethel. 2000. “Derechos de propiedad intelectual, acceso a recursos genéticos y conocimiento tradicional.” The article emerged from the Doctoral Thesis entitled: “Instrumentos jurídicos para el acceso a los recursos genéticos y el conocimiento tradicional asociado en territorios indígenas”. Universidad de Alicante. España; and RAFI. 1998. “Quinoa Patent Dropped: Andean Farmers Defeat U.S. University,” http://www.etcgroup.org/sites/www.etcgroup.org/files/publication/411/01/rafigenoquinoa98.pdf 

The Pilón Lajas Biosphere Reserve and Communal Lands (largely located in the Alto Beni region of Bolivia), is home to a plant locally known as “evanta.”(Galipea longiflora). Indigenous people use the bark as a poultice to treat the well-known tropical skin disease, leishmaniasis, which is transmitted by mosquitos and affects more than 12 million people worldwide. The primary symptoms resemble leprosy, with severe sores, mainly on the nose and lips, which can develop into terrible facial disfigurement and sometimes even result in death. Current treatment using western medicine is very expensive and highly toxic.

In the late 1980s, French and Bolivian researchers conducted trials in French and Bolivian laboratories to assess evanta’s treatment potential. The active components of the plant were baptized “chimaninas” in honor of the Tsimane (Chimane) indigenous people who provided the scientists with the traditional knowledge that enabled them to identify the plant and learn about its properties. However, these scientists claimed to have “discovered” this plant and, without consulting the Tsimane, presented their “discovery” to the international patent system (PCT). A patent was subsequently granted to the French Institute for Scientific Research for Development in Cooperation (ORSTOM) with no recognition that knowledge about the plant came from the Tsimane people. Not only do the Tsimane have no say about how this product was developed, they have little chance of receiving any benefits if it is commercialized. 

In similar cases companies or institutions have registered patents of biological or genetic resources without recognizing their sources. For example, during the 1990s, researchers at Colorado State University patented the Andean grain quinoa (Apelawa variety). However, thanks to pressure from Andean peasant groups and to Bolivia’s National Association of Quinoa Producers (ANAPQUI), the university abandoned its patent in 1998. 

• What should Bolivians do to protect themselves from the privatization of biological materials that are fundamental to their way of life and health? 
• Should indigenous communities receive any form of recognition and/or compensation for the traditional knowledge and wisdom they have developed regarding medicinal or edible plants? What form should such recognition take?

Sources for the abridged case study: Bubba Zamora, Cristina. 1997. “Collectors Versus Native Peoples: The Repatriation of Sacred Weavings of Coroma, Bolivia,” Museum Anthropology 20 (3): 39-44; Yates, Donna. 2012. “Coroma Textiles,” Trafficking Culture: Researching the Global Traffic in Looted Cultural Objects, http://traffickingculture.org/encyclopedia/case-studies/coroma-textiles/ 

While tourists often purchase colorful weavings as souvenirs on their travels to Bolivia, some textiles hold sacred meaning for Andean indigenous communities. The Coroma community has several sacred bundles of weavings that are thought to be the grandmothers and grandfathers of the community, literally the ancestors of the community. Special permission must be obtained from the community before viewing these textiles, which are authorized for use in fertility rituals around All Saints Day and are consulted about key problems the community faces. 

In the 1970s and 1980s, Coroma entered in crisis when some of these sacred weavings went missing. They had been sold off to antiquities traffickers, and through the clever use of well-trained Bolivian peasant intermediaries, the sacred textiles had been substituted by other ones. To export them, the traffickers passed them off as handicrafts. The people of Coroma were devastated, believing that losing their weavings meant a loss of their collective strength as a community. Partly in response to this case, Supreme Decrees were signed and put into place by the Bolivian state to protect national heritage and to restrict circulation of cultural property. During this time, the United States also enacted emergency import restrictions on Coroma textiles. Supreme Decree 22546 deals with the Coroma case, and acknowledges indigenous rights in ancient and ethnographic objects. It frames the textile bundles as the inalienable collective property of the community. The public outcry about this case, the advocacy work of a Bolivian anthropologist (Cristina Bubba), and several years of legal efforts by the community, resulted in many of these textiles being repatriated to Coroma in 1992 and 2002. 

Sources of the abridged case studies: Lemos, Ronaldo. 2010. “Creative Commons and Social Commons: Creativity and Innovation in the Global Peripheries,” In Intelligent Multimedia: Managing Creative Works in a Digital World, Daniele Bourcier, Pompeu Casanovas, Mélanie Dulong de Rosnay, Catharina Maracke, eds. Pp. 175-197. Florence Italy: European Press Academic Publishing; Copy/South Research Group. 2006. The Copy/South Dossier: Issues in the Economics, Politics and Ideology of Copyright in the Global South, Alan Story, Colin Darch, and Debora Halbert, eds; Rohter, Larry. 2007. “Gilberto Gil and the Politics of Music,” New York Times, March 12; Maciel, Marilia. 2011. “Brazilian Ministry of Culture Removes Creative Commons Licenses from its Website (Blogpost) http://infojustice.org/archives/867 

Building on both resistance to US copyright regimes and interest in open source computer software, during the mid-2000s, Brazilians actively explored alternatives to copyright law. Especially influential was the appointment of the celebrated musician Gilberto Gil as culture minister (2003-2008). According to Gil, digital culture needed new approaches to intellectual property, and he thought an orientation towards sharing should inform government policies. Soon after his appointment, he formed an alliance with the fledgling US-based Creative Commons movement (founded in 2001). This more flexible system of licensing aimed to provide artists with greater control over their work, alongside increased opportunities for creators to sample, remix and copy work, while crediting the author (see glossary). 

Similar ideas of sharing, remixing, collective creation, and intellectual generosity also underlay the canto livre (‘free singing’) project, approved by the Ministry of Culture in 2005. Canto livre aimed to build an open and creative environment for Brazilian music including a Creative Commons licensed depository of digital music resources. However, open culture approaches have remained extremely controversial in Brazil. Many areas of copyright law (e.g. those that protect books) are fiercely policed and the new minister of culture, appointed in 2011, had the Creative Commons logo removed from the Culture Ministry website. Nonetheless, certain forms of music, such as tecnobrega, circulate entirely outside the copyright system, and can be considered part of the “social commons” as opposed to the “legal commons,” a distinction marked by Ronaldo Lemos, an academic and lawyer who is the project leader of Creative Commons Brazil. In tecnobrega, musicians gain their income from large-scale sound system parties; the CDs they produce are purely for promotion and handed free to street stall “pirate” vendors, who sell them at a low price.

• What advantages or disadvantages might Creative Commons have in relation to the current copyright system in Bolivia? 
• What are the major challenges to governments wishing to develop alternative copyright regimes? 
• Would the tecnobrega model, which works outside copyright, be relevant for many types of Bolivian music? 

Source for the abridged case study: Bigenho, Michelle. 2002. Sounding Indigenous: Authenticity in Bolivian Music Performance. New York: Palgrave Macmillan.

In the 1990s, an anthropologist produced 600 cassettes for a Bolivian indigenous community in Yura. The cassette production of this community’s music was discussed at meetings where collective decisions were made about how Yureños wanted to represent their music on this recording. On the cassette brochure, Yureños requested that their different tunes be recognized as belonging to the distinct indigenous communities or ayllus that make up the larger collective of Yura. They preferred collective representation, even though ethnography confirmed that Yureños can identify individual composers of the new tunes that emerge every year in Carnival season. Yureños also expressed a desire to have their music formally registered with authorities in La Paz.

When the anthropologist attempted to register these cassettes under the name of the Yura community, she was told that this was impossible and that the recordings would have to be entered under her individual name as “collector.” When she questioned this arrangement, she was told that the music could not be registered in the name of the community. Indeed, according to Bolivian copyright law, communities cannot stand as “authors,” and in these cases the State becomes the tutelary author of these creations, which are then seen as heritage of the nation-state.

• What do you think about the idea that “collectors” can be recognized as authors, but indigenous communities cannot? 
• What are the advantages and disadvantages when the State stands as tutelary author? 
• How might collective authorship be better represented in intellectual property law?