"Trademark, Intellectual Property and Anti-Counterfeiting Interests"

The question of indigenous rights and the use of cultural heritage on the Internet is long overdue for consideration. The formation and implementation of the ICANN and its supporting organizations and advisory groups represents an excellent opportunity for bringing the concerns of indigenous peoples to light and for ensuring that policy and implementation efforts adequately address indigenous rights, while bringing policies other than "first come, only served" to the allocation of resources in the Internet namespace.

This proposal for the (Indigenous) Intellectual Property Constituency (IIPC) will provide a vehicle for this goal, consistent with the fundamental goal of providing a constituency vehicle for all trademark, intellectual property and anti-counterfeiting interests in the Internet Communities.

1. BACKGROUND

Somewhat ironically, in today’s modern world, increasing attention is being paid to various aspects of traditional cultures and indigenous knowledge. In some cases, the focus of such attention is on the possible economic advantages that can come from indigenous knowledge regarding farming, medicine, land use and other topics. In other cases, scholars seek knowledge about the culture and history of indigenous peoples for academic purposes. In still other instances, spiritual and religious information is sought by both those who would adopt the spiritual ways of native peoples, and those who would profit through the sale of some "new age" version of native spirituality. And in many cases most relevant to the domain name issues important to ICANN, indigenous names and cultural heritage is used to identify commercial ventures of non-indigenous people.

Questions of ownership, control, compensation, and protection arise in each instance of exploitation, economic or otherwise, of indigenous cultures. Not surprisingly, many turn to concepts of intellectual property laws and concepts when attempting to answer these questions. There are, however, serious definitional and implementational difficulties when attempting to use western concepts of intellectual property rights to address the protection of native cultural heritage and compensation for the use of indigenous knowledge. To move forward, it will become necessary to explore more deeply the nature of indigenous knowledge and cultural heritage rights and to define in each case just what these rights are, to whom they belong, and how and why they must be protected.

The scope of indigenous knowledge and cultural heritage rights have never been adequately defined, and are routinely exploited with no benefit to the owners of the knowledge used or consideration of the need for protection. Moreover, when the issues of compensation or protection are raised, claims of public domain and scientific freedom are often used to justify such exploitation. Indigenous peoples are becoming increasingly aware of their rights in this area, however, and many have begun to explore methods for enforcing these rights. In order to deal effectively with these issues, we must begin to address the threshold issues that will form the foundation and framework for any solutions.

These issues arise wherever indigenous knowledge or cultural heritage may be exploited. This includes within the domain name space to be administered by ICANN. This is not a new issue. Early on, several US Tribes attempted to register within the DNS, and were rebuffed by Jon Postel and Michael St. Johns because they lacked ISO 3166 country code status and were not given International status under the UN Treaty. The US registrar later established a municipalities.state.nation model utilizing the .NSN.US domain name approach. The NSN, standing for Native Sovereign Nation, second level domain name fundamentally alters the government-to-government and treaty relationships central to Federal Indian Law.

This situation and the .US registrar's treatment of US-situated bands which are not presently recognized by the United States, the Jay Treaty Tribes, and the completely policy-free ad hoc administration of the .CA domain, resulted in Tribal preferential use of the .NET, .ORG and .COM registries. This situation also lead to an awareness of indigenous interests in the DNS (circa 1995), and discussion of the issues and actors involved in the IANA transition within the TribalLaw list began in 1997. Identifiable Tribal interests in the name space were initially focused upon correcting the municipalities.state.nation (.NSN.US) model, but cases increasingly came to light which involved the misuse of indigenous knowledge and cultural rights. "Cyber-squatting" has become a problem for indigenous people, examples include:

• makah.org is used by critics of whaling, not the Makah Tribal Council,
• abnaki.org is used by Girl Scouts, not the Ab[e]naki bands, presently awaiting US recognition, of VT, NH, ME, MA or RI,
• pequot.com, three people doing business, not the Mashantucket Pequot Nation,
• crazyhorse.com, a cyber-sex site, and not the Estate of Tasunke Witko [aka "Crazy Horse"].

In October 1998 the Kwataqnuk Conference (Colonialism through Biopiracy) participants brought to the TribalLaw community the larger intellectual property issues, and an awareness of the Biodiversity Convention, the Kari-Oca and Mataatua Declarations, and contact with the Working Group on Indigenous Populations, United Nations Human Rights Commission (Rapporteur Erica-Irene Daes).

The issues raised in these fora are still developing and the process for analyzing and addressing indigenous concerns is far from complete. Indigenous peoples and groups are only now developing an understanding of the concerns for, threats to, and opportunities for cultural heritage posed by the Internet. The constituency will be working in the near future to focus attention on these issues and to develop a set of issues and working goals.

On May 15th, the IIPC will host a special session at the Digital Council Fires Conference (National Indian Telecommunications Institute, sponsor) on the subject of indigenous interests in intellectual property. Moreover, IICP will participate in a number of international proceedings. In Geneva during June and July the 17th Session of the Working Group on Indigenous Populations will address the same subject. In August WIPO's 2^nd Roundtable on Intellectual Property and Indigenous Peoples will take place, followed in September, by WIPO's 1^st Conference on Intellectual Property and Electronic Commerce, and in November, the Working Group on Biotechnology and Implementation of the Convention on Biological Diversity will study the intellectual property aspects of biotechnology and of the implementation of the Convention on Biological Diversity. The organizers of the IIPC proposals shall submit substantive contributions to these International Law fora, as we presently do before the US Patent and Trade Office, and the US Senate. In addition, we are scheduling a presentation on the subject again this summer to the National Congress of American Indians, which is being held jointly with the Assembly of First Nations in Vancouver, BC.

1. DEFINITION OF THE CONSTITUENCY

The purpose of the (Indigenous) Intellectual Property Constituency (IIPC) is to be a consensus-based advisory body within the ICANN framework. The Constituency will represent the interests of the indigenous groups, co-equally with industrialized peoples, as creators and custodians of human knowledge with respect to the development of domain name policies and processes and the Internet in general. The Constituency will seek to develop positive law consistent with the work of the United Nation Human Rights Commission towards the end of "fair and equitable sharing of the benefits arising out of the utilization of [knowledge] resources" within the Internet.

The representation of the Constituency will primarily be through individuals and institutions delegated by principle knowledge custodians, Old World and New, as qualified to represent custody interests. Exemplars are the Office of Cultural Preservation at Hopi, the Smithsonian Institution, the British Museum, the Te Puni Kokiri, Ministry of Maori Development, and the faculty, judiciary and practitioners of the principle Indigenous Law Program Schools, Tribal Courts, and regional Indigenous ISPs in North and South America, Africa, East Asia and Oceania, and their industrialized counterparts.

The Constituency will also seek to track existing law and novel application of existing law to non-indigenous intellectual property, and its creators, custodians, and beneficiaries, in the context of the DNS and more generally should the need arise.

2. ORGANIZATIONAL STRUCTURE AND INTERIM DECISION-MAKING

The Constituency shall consist of a Council and three advisors, the Chairperson of the United Nations Working Group on Indigenous Populations (UNHRC), the Director General of World Intellectual Property Organization (WIPO) and the current Chair of the Internet Architecture Board (IAB), or their designates.

The initial Constituency Council shall designate members to the Names Council of the DNSO, and shall prevent participation in this activity from unduly burdening and otherwise distracting its members by means of rotation.

The governing body of the Constituency shall be the Council (IIPC) composed of at least [x] members that will be responsible for:

1. funding, staffing, and related NGO activities,
2. establishing the ethical and technical standards of the constituency,
3. formally interacting with indigenous knowledge holders, and with WIPO, the IAB, and other DNSO constituencies,
4. maturation of the Constituency's base documents and publications.

The initial Council shall consist of the following persons or their designates:

• Frank Blythe, Director, Native American Public Telecommunications
• Robert Williams, Professor of Law, University of Arizona
• Aroha Te Pareake Mead, Manager, Cultural Heritage and Indigenous Issues, Te Puni Kokiri, Maori Ministry of Development
• Robert P.W. Gough, Attorney at Law, Estate of Tasunke Witko (Crazy Horse); Secretary, Intertribal Council on Utility Policy
• Randy Ross, Lincoln Indian Center
• Alan Mandell, Nevada Indian Environmental Coalition
• Eric Brunner, Nokia Research Center
• Karen Buller, National Indian Telecommunications Institute
• Vivian Ayoungman, Treaty 7 Tribal Council
• Debra Harry, Indigenous Peoples Coalition Against Biopiracy
• Laurie Anne Whitt, Professor of Philosophy, Michigan Technical University
• Dr. James H. May, Dean of Instruction Information Resources and Technology, California State University Monterey Bay
• Gregg J. Bourland, Tribal Chairman, Cheyenne River Sioux Tribe

1. MEMBERSHIP

The membership of the Constituency will develop over the coming year. Initial members include the Council members and their respective organizations. The primary criteria for membership is ability, an acceptance of the moral framework expressed in the Biodiversity Convention, paraphrased above and repeated here:

fair and equitable sharing of the benefits arising out of the utilization of [knowledge] resources within the Internet,

and a relationship with an owner or custodian of indigenous knowledge and/or cultural heritage rights.

This Constituency is neither "closed" nor "exlcusive". Qualified non-indigenous individuals and organizations, are eligible for membership. There is the obvious problem to address at some future point of ensuring equitable representation for both indigenous and industrialized peoples, institutions, and polities.
2. PROCESS

The Constituency shall develop a process similar to the model of the IETF's POISSON Working Group, a historically effective vehicle for distributed collaboration by intellectually coherent working groups, and regional meetings.

 

3. Contact