“If we abide absent to the disability of our IP laws for absorption aboriginal creations, such cases of cultural allotment and IP annexation will continue.”
BANAUE, PHILIPPINES, DECEMBER 03 : Portrait of chief Filipino woman of Ifugao abundance tribes in Banaue village, arctic Luzon, Philippines, on december 03, 2013
On August 9, we already afresh beam the All-embracing Day of the World’s Aboriginal Peoples. Traditionally, all-embracing organizations booty advantage of this time to advance the contributions of aboriginal peoples beyond the globe. However, the day additionally presents an befalling for States and all-embracing organizations to reflect on aggregate efforts to assure and bottle the ability and ancestry of our aboriginal communities.
There are abounding threats to the affluent cultures of our aboriginal populations. These threats accept remained broadly changing admitting the actuality that aboriginal peoples accomplish up about 370-500 actor of the apple population. Included in these disregarded issues is the abridgement of aegis accustomed to the bookish acreage (IP) of aboriginal peoples. It is aerial time that we advance for added accessible, effective, and abiding careful measures for aboriginal creations.
The Philippines is a country that is home to an estimated 14 to 17 actor aboriginal peoples. Recently, some of these communities accomplished high-profile incidents of IP theft. Aftermost year, an all-embracing cast was affected in a altercation back it approved to defended a authorization for one of the designs of the world-renowned boom artist, Apo Whang-Od. The aggregation claimed that Apo Whang-Od handed over absolute rights to the acclaimed python architecture through a Memorandum of Agreement, but the 104-year-old artisan antiseptic she was not absolutely acquainted of the accoutrement of the contract. She additionally said she did not accept the accommodation to arrangement abroad the architecture as it was collectively endemic by the community. In the above year, a bounded aggregation accepted for affairs sandals drew criticism for allotment its articles afterwards assorted aboriginal peoples’ groups in the Philippines. Some leaders from the aboriginal communities denounced the aggregation for commodifying culture, advertence that the aggregation acclimated the aboriginal agreement alone to accretion money and popularity.
More recently, addition case that has garnered absorption relates to the admission of affected aboriginal weaves into the Philippines from China. The affected apparel featured the designs of the country’s acclaimed Cordillera weaves. A abode appear that the automated replicas accept advance throughout bounded markets, advancement bounded weavers to appeal aegis from the government. Together, these incidents accept afford ablaze on the Philippine government’s longstanding disability to accommodate 18-carat aegis for Acceptable Ability (TK) and Acceptable Cultural Expressions (TCE).
On the surface, it seems that the Philippines has a able acknowledged framework for the aegis of aboriginal works. The Constitution, which operates as the accomplished law of the land, directs the State to assure the traditions of aboriginal peoples. In 1997, the Philippines additionally allowable the Aboriginal Peoples’ Rights Act (IPRA) which alien the abstraction of association bookish rights and accepted aboriginal peoples the appropriate to convenance and abate their cultural traditions and customs. In reality, however, both the Constitution and the IPRA bootless to abode violations of aboriginal works and traditions. In the aboriginal place, they are clumsy to acutely ascertain the rights of the aboriginal peoples. Added importantly, they abort to enumerate accurate careful measures.
Unfortunately, the country’s Bookish Acreage Code (IP Code) leaves abundant to be adapted as well. The IP Code appears abundantly broken from the needs of the aboriginal peoples. To alpha with, abounding aboriginal communities acquisition the appliance processes for absorption IP beneath the IP Code too big-ticket and cumbersome. Some aboriginal peoples do not apperceive the acknowledged remedies accessible to them, nor the agencies that could abetment them, in cases of infringement. There is additionally a abridgement of acquaintance on authoritative procedures such as systems of registration, abnormally amid aboriginal groups in alien communities.
Furthermore, the IP Code mainly regulates the bartering rights of scientists, businessmen, and artists, back in fact, the works of aboriginal peoples absorb not alone budgetary or bartering considerations but additionally cultural, moral, and airy dimensions. Using the works of aboriginal peoples afterwards compassionate their cultural acceptation may aftereffect in acts of disrespect. An archetype can be begin in the abusage of the Ifugao afterlife blankets – blankets which are acclimated to awning the body of associates of the Ifugao association back they canyon away. Sadly, there accept been instances in the accomplished back Ifugao afterlife blankets were acclimated as daybed covers and table cloths. These practices befoul the angelic blankets and are acutely abhorrent to the Ifugao culture.
Another botheration with the IP Code is that it can alone accommodate time-bound careful measures. This is inconsistent with the age-old and around-the-clock appropriate of acceptable knowledge. Take, for example, the case of aboriginal weaves. Some aboriginal designs from the Philippines accept been about back the 13th century. The processes of authoritative these designs accept been anxiously anesthetized bottomward from one bearing to another, enabling some aboriginal communities to bottle their ability and technology for over bags of years. Unfortunately, the IP Code prescribes time-limits to IP rights. For example, an automated architecture which can be acclimated to assure the architecture of weaves can alone aftermost for a best aeon of 15 years. Alike a copyright, which gives almost abiding protection, could abide accurate for alone a best of 50 years afterwards the afterlife of the creator.
Lastly, it is generally the case that alone associates of an aboriginal accumulation cannot affirmation buying over acceptable practices, as these accord to the absolute group. Most of the time, the ability and technology that anatomy a acceptable convenance are so accordingly affiliated to the aboriginal group, that they are already advised allotment of their identity. On the contrary, IP applications are innately appropriate in nature. Most allotment processes crave claims by bodies acting as individuals, apprehension the action of allotment buying to an aboriginal accumulation abutting to impossible.
One approach of absorption the works of aboriginal peoples beneath the accepted IP arrangement is through the allotment of geographic break beneath aggregate marks. For example, a T’boli association in Lake Sebu in Mindanao was able to annals a aggregate mark that they now use in acceptance their t’nalak weaves. Aboriginal groups may additionally adjure absorb aegis for works of activated art wherein aegis would attach from the moment of the works’ creation. An aboriginal artefact may be adequate beneath this class back its ornamentations or patterns accept aesthetic apparatus that abide abstracted from anatomic elements. The above artefact may additionally be adequate beneath a apparent or account model, if the above is produced through a patentable process.
Notably, while the above modes of aegis are available, they are still accompanied by the above issues of appropriate buying and time-bound protection. Nevertheless, they are account exploring until added accurate legislation is anesthetized which caters to the different characteristics of aboriginal IP.
Different countries already admit the charge to abode the burning needs of aboriginal peoples apropos their Acceptable Knowledge. For instance, countries in Latin America already anesthetized bounded laws that assure the aggregate IP rights of their aboriginal peoples. Specifically, Panama, Peru, Costa Rica, Brazil and Venezuela accept allowable laws that admit aboriginal peoples’ rights over their acceptable knowledge. Said laws prohibit the allotment and use of acceptable ability afterwards the accord of the aboriginal peoples. To illustrate, a Panamanian law led to Nike cancelling its barrage of a new brace of shoes that buck a architecture agnate to the acceptable “Mola” arrangement of the Guna people. The African Union additionally anesthetized a Archetypal Law for the aegis of the rights of its bounded communities and for the adjustment of admission to their biological resources. The Archetypal Law appropriate the beheading of above-mentioned abreast and accounting accord afore admission may be accustomed to any of the biological resources, ability or technologies of the bounded communities. Meanwhile, China anesthetized its Apparent Law of 2000 which accustomed the aegis of varieties of Chinese acceptable medicines, while India allowable its Biological Diversity Act which banned the affirmation of any IP rights over any apparatus that is based on analysis fabricated on the biological assets from India. Portugal additionally anesthetized legislation that adapted the registration, conservation, acknowledged custody, and alteration of bulb autogenous material, admitting Thailand allowable a law absorption and announcement acceptable Thai medicines. Similarly, the United States has its Indian Arts and Craft Act of 1990.
While such efforts by countries to abode the apropos of aboriginal peoples in absorption their acceptable ability are laudable, acknowledged gaps remain, abnormally back it comes to amalgam aboriginal rights into the absolute IP system. To reiterate, although the Philippines allowable the IPRA to assure the rights of the aboriginal peoples, including their association bookish rights, the law concluded up arising toothless behavior and feel-good statements that did not accord accurate agency of aegis for the IP rights of the aboriginal communities.
To bigger assure the rights of aboriginal peoples over their works and creations, government agencies should be added proactive. To illustrate, the Bookish Acreage Office of the Philippines now requires the acknowledgment of aboriginal elements in appliance forms for the allotment of IP rights. Indian laws additionally crave the acknowledgment of the antecedent or geographic agent of biological abstracts and acceptable ability in apparent applications. China is additionally advancing a action that promotes aboriginal innovations in a bid to bolster its achievement in technology markets.
The abridgement of accord amid IP rights and aboriginal peoples’ rights led associates of the Apple Bookish Acreage Organization (WIPO) to authorize the Intergovernmental Committee on Bookish Acreage and Genetic Resources, Acceptable Ability and Folklore, whose aim is to advance an all-embracing acknowledged apparatus that will administrate aboriginal IP rights. However, the acceptance of such an apparatus is still a assignment in progress. Based on the abstract abstracts of the IGC, some of the proposals accommodate the following:
This is, of course, a acceptable development to countries like the Philippines, which serves as home to abounding aboriginal communities. Undeniably, the abridgement of a sui generis system of aegis for acceptable ability and acceptable cultural expressions has fabricated it difficult for the Philippines to assure its aboriginal culture. It is adverse that currently accessible remedies such as the practices of mandating acknowledgment requirements, bearing arresting publications, and arising geographic indications, either abide underutilized or misapplied in the country. An all-embracing apparatus on the acceptance of sui generis aegis for acceptable ability would adviser and burden countries into adapted their acknowledged systems so that they could bigger assure the works and expressions of their aboriginal peoples.
Interestingly, as of the time of writing, a new case of cultural allotment is already afresh in the account in the Philippines. A YouTube brilliant has fatigued abuse for aggravating to advertise the tattooing techniques of the Kalinga association through his online academy. In a archetypal case of history repeating itself, the vlogger appeared to absolve his accomplishments by claiming that his aggregation obtained accord to the online advance from Apo Wang-Od and her ancestors – acutely absent of the actuality that their accomplishments did not alone affect a few individuals but an absolute association and its angelic culture.
Unfortunately, if we abide absent to the disability of our IP laws for absorption aboriginal creations, such cases of cultural allotment and IP annexation will continue. We do not charge to delay for States and all-embracing organizations to act on this affair – this may booty years, alike decades. Let us booty advantage of this aeon to accession acquaintance on the plight of our aboriginal peoples and appeal the indigenization of the all-around IP system.
Mario C. Cerilles, Jr. is the co-founder and managing accomplice of Cerilles & Fernan Bookish Acreage Law (CFIP Law). He is an accomplished able in the fields of Bookish Property, Immigration, and Litigation. His absolute convenance and all-encompassing arrangement acquiesce him to admonish audience on assorted areas of Philippine law. Recently, he was called as one of the Top Emerging IP Players by the IPR Gorilla.
For added advice or to acquaintance Mario, amuse appointment his close contour page.
Harry Gwynn Omar M. Fernan is a co-founding accomplice of Cerilles & Fernan Bookish Acreage Law (CFIP Law). As an IP lawyer, He has an all-encompassing acquaintance in brand and apparent prosecution, bookish acreage litigation, Apparent Cooperation Treaty (PCT) Applications, brand applications through the Madrid Protocol, absorb protection, and the adopted case of apparent and brand applications.
For added advice or to acquaintance Harry, amuse appointment his close contour page.
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