Community knowledge and the limits of individual ownership

A designer is invited to contribute a pattern to a commercial collection. The pattern comes from a tradition passed down through generations of her community. The first question sounds simple: who can give permission? Answer it in this order: separate what is being used, find out who in the community decides, agree the terms in writing, protect what must stay private, and then check what the law covers.

Separate the things being used

WIPO describes traditional knowledge as know-how, skills and practices developed, sustained and passed on from generation to generation within a community, often as part of its cultural or spiritual identity.1 Traditional cultural expressions are the forms that heritage takes: music, dance, art, designs, names, signs and symbols, performances, ceremonies, handicrafts and narratives.2

In the designer’s project, list four subjects separately, because each one is handled differently:

• The new drawing. Contemporary adaptations of folklore can be protected by copyright.2 That right covers the designer’s own contribution, not the tradition behind it.
• The underlying pattern. Traditional knowledge as such is not protected by conventional IP systems.1 Some countries have special laws for folklore:2 Ghana’s Copyright Act, for example, protects kente and adinkra designs whose authors are unknown and vests those rights in the President on behalf of the people of Ghana.3
• Photos and recordings of it. Recording traditional material can create new rights in the recording, and they belong to whoever made it, not to the community whose tradition it is.4
• The brand on the collection. Trademarks can identify authentic indigenous arts.2 A community can own a collective mark, as the Taita Baskets Association in Kenya does, or set standards for a certification mark that anyone who meets them may use.3

The designer’s copyright in her drawing does not settle the other three.

Find out who decides

Do not assume that any one member of a community can authorize every use of its heritage. In WIPO’s example of Aboriginal Dreaming stories, the right to use a clan’s designs and totems usually sits with a group of traditional owners who together decide whether the images may be used, by whom, where they may be published and on what terms.3

Ask the community how it makes this kind of decision. Consent may come from elders, community representatives, traditional authorities, an assembly, or whatever body the community’s customary law names; work through that process rather than around it.4 If several communities share the tradition, sometimes across borders, consult as widely as you can.4 The community is entitled to say no, and a no ends the plan.4 Schedule this before the design deadline, not as a signature collected at the end.

Put the proposal in plain terms

Consent counts only when it is given freely, beforehand, and with full information about the purpose, the procedures and the risks.4 Give the community that information early and in a form it can use.4 Write down:

1. Who will see the material and where it will appear.
2. Whether it will be sold, and what the community receives in money or in kind.
3. How it may be adapted, and who approves changes.
4. Which material stays restricted or out of the project entirely.
5. How later requests for reuse will be handled, and who answers them.
6. How the community will be credited.

A promise of “exposure” is not a term anyone can evaluate. Even when consent is given orally or through a traditional act, record it in writing with the conditions attached, including what may be disclosed and for what purpose.4 Give the community a copy it can read and come back to, including any concerns still unresolved.

Protect what must stay private

Recording or digitizing traditional material can make it easier for others to copy, even when the goal is to preserve it.4 Once secret knowledge is revealed, the community can lose rights that would have helped it control its use.4 So:

• Leave sacred or secret material out unless the community decides otherwise, and restrict access to anything that has to be recorded.4
• Let the community check how its material is recorded and credited, and remove or correct it when its spiritual or cultural integrity is at stake.4

Confidentiality law can back this up: an Australian court granted an injunction stopping the sale of a book that revealed secret Pitjantjatjara ceremonial information given to the author in confidence.3

Know what IP law can and cannot do

The IP system does not solve every problem communities face with their traditional knowledge and cultural expressions, but it has tools that help.3 Use them with these limits in mind:

• Copyright lets others be inspired by a work, but copying a material part of it is not allowed.3
• A missing individual copyright does not make every use acceptable. Confidentiality law, special folklore laws, trademarks and unfair competition law, which covers false claims that a product is authentic or endorsed by a community, can still apply.23
• National copyright laws vary, so check the law of the country where the material is used and ask its national IP office.3 Find the office in WIPO’s directory.5

If someone has already copied the material or claimed rights in it, have an IP lawyer in the country where the copying happened review the options before you respond: that country’s law decides what is protected and which procedures you must follow.3

If you are teaching this topic

Use an invented example in an IP session. Do not ask participants to reveal restricted knowledge to make the topic engaging. Use the session to help people name whose voices must be present before any real proposal goes ahead.