Document/Essai - Protecting indigenous women's intellectual property: Guiding principles to be used by indigenous peoples and/or their organizations

Indigenous peoples are aware that cultural diversity contributes to the creativity of the human race as a whole. As the principal guardians and interpreters of their art, indigenous peoples wish to pass their cultural heritage on to future generations via traditional means. They want to share their art with other indigenous peoples and thus contribute to humanity’s creativity.

However, given the unmitigated marketing, pillage, exploitation and use of their art, without compensation or respect for their traditional values, indigenous peoples believe that effective protection of their heritage will benefit all of humanity in the long run. Indigenous peoples must have control over the commercial use of their cultural heritage in accordance with their customs, laws and practices.

The indigenous women of the Americas, who are particularly affected by the illegal reproduction of their artistic product – notably their designs – consider that the following guiding principles should govern their trade relations.

Guiding principles to be used by indigenous peoples and/or their organizations

Indigenous peoples are the owners of their cultural heritage, particularly their designs;

Ownership is collective, permanent, inalienable and imprescriptible right, as set out in the customs, laws and practices of each people;

Indigenous peoples are the primary beneficiaries of their cultural heritage, particularly their designs.

1. - Contract

The controlled marketing of certain elements of indigenous cultural heritage, particularly certain designs, can benefit indigenous peoples. In order to control the use of elements of their cultural heritage, particularly their designs, and in order to receive just compensation and a share in the benefits generated by commercial activity, indigenous peoples may enter into contractual relations.

By entering into a contract, indigenous producer associations, a competent authority or, in the absence of such structures, individual authors reach an agreement on the way in which elements of their cultural heritage can be used by commercial companies.

2.- Prerequisites to entering into a contract:

To protect their cultural heritage and particularly their traditional designs, indigenous peoples that wish to enter into an agreement or a commercial contract must appoint an organization that has the necessary mechanisms, expertise and resources to make it possible to:

- control all of the research carried out on the indigenous peoples’ territory;

- have all of the resources and institutional capacity required to master and contribute to the commercial process

- reject commercial activities that are beyond their supervision;

- try to protect their cultural heritage and particularly their traditional designs using national intellectual and industrial property laws such as, for example, copyrights or trademarks.

- inform potential co-contractors of their customs, laws and practices regarding the keeping, protection and use of their cultural heritage and particularly their designs;

- to be informed or represented during trade negotiations.

3.- Conditions for contract validity:

The free and informed consent of traditional owners is an essential prerequisite to any agreement for the recording, study, use or exhibition of the heritage of indigenous peoples.

Consequently, the indigenous people concerned must appoint the traditional owners or persons empowered to provide free and informed consent according to their customs, laws and practices.

- The traditional owners can be the entire people, a family, a clan, an association or a company, (that is, individuals who are specially trained, initiated or appointed as guardians) chosen according to the customs, laws and practices of indigenous peoples;

- Co-contractors must be sure to inform the indigenous people with whom they are transacting of the scope of the commercial activity in which they are embarking;

- All agreements or contracts must be made available in the language of the indigenous people concerned;

4.- Elements that must appear in the contract

- Indigenous peoples are the sole owners of their cultural heritage and particularly their traditional designs, over which they have intellectual property rights;

- Indigenous peoples must receive their fair share of the profits generated by the commercial activity in which they are embarking:

- Financial profit or profit in another form must be determined according to the wishes of the indigenous peoples concerned, on the basis of their particular needs;

- The determination of profits must be previously discussed and decided upon by the people concerned according to their customs, laws and traditional practices;

- The share of profits attributed to the indigenous party in the contract must be divided between the individual creator and the group from which the element of cultural heritage – particularly the design – originates, according to the customs, laws and practices of the indigenous people concerned;

- There must be a guarantee that the peoples will continue to be the primary beneficiaries of all commercial uses of the element concerned;

- All commercial use of the cultural heritage, particularly traditional indigenous designs, must be authorized by the traditional owners designated by the indigenous people concerned and must be fairly compensated;

- All recording, study, use or exhibition of the cultural heritage of indigenous peoples, particularly traditional designs, must be previously authorized by the indigenous people concerned;

- All agreements for the recording, study, use or exhibition of indigenous peoples’ heritage must be removable.

5. Dispute settlement

The parties must determine the dispute-settlement mechanism they wish to use in case of litigation regarding the property, keeping or use of any given element of indigenous peoples’ cultural heritage;

The chosen dispute-settlement mechanisms must take into account the opinions of the elders of the indigenous people concerned;