
World Intellectual Property Day graphic, World Intellectual Property Organization.
By Makalika Naholowa’a, Executive Director
April 26th marks World Intellectual Property Day. Intellectual property (“IP”) law creates intangible assets from inventions, creative expressions, trade identifiers like brand names and logos, and trade secrets. IP rules in the United States (“US”) have pre-colonial roots going back centuries in the British Isles and Europe. As colonists from those societies established the US, they contemplated the recognition of intellectual property at the outset with specific reference in Article I, Section 8, Clause 8 of the Constitution, referred to by various names including the Intellectual Property Clause.
IP has evolved into a complex legal area both in the US and internationally and is now in significant part harmonized across many nations through treaties and other legal instruments. The United Nations (“UN,” established in 1945), and the World Intellectual Property Office (“WIPO,” established in 1967 as the part of the UN dedicated to the development and stewardship of the global intellectual property system), emerged in the mid-20th century as important forums for these global efforts. The first World IP Day was celebrated in 2000, by designation of WIPO member states, to increase understanding of IP.
Like many areas of US law, the development of IP law has often neglected and disrespected Indigenous peoples and their needs, traditions, customs, laws, human rights, and sovereignty. Notably, the US Patent and Trademark Office (“PTO”), which was established in 1836, held its first ever tribal consultation process with Native Americans only this year. The consultation included two webinars in January and an opportunity to submit written comments in February. No visits were made to Native communities. No capacity assistance was provided to Native peoples to engage meaningfully.
Over two centuries of legal indifference and exclusion have left much of the intangible that makes up Native American identity and heritage unprotected in the ways that comport with Native traditions and Indigenous human rights standards. In fact, in some ways intellectual property law, the behavior it incentivizes, and its disregard of Native peoples encourages abuse by rewarding it with legal rights and meaningful economic assets.
Consequently, Indigenous peoples often must rely on public opinion, consumer activism, and direct action to challenge unauthorized uses and legal claims to their cultures, including to their Native languages, arts, medicinal plants, foods, DNA, and more. Even getting notice of the abuse is uncertain, because the intangible nature of the content and material means that often abuse and theft occurs without victims even being aware of it.
Internationally, concerns about similar abuses have been reported by Indigenous people and are regularly discussed at the UN Permanent Forum on Indigenous Issues (often called “UNPFII”) and within the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (often referred to as the “WIPO IGC”). There are important efforts underway now to develop international legal instruments to better recognize and protect Indigenous rights in these forums. An effort to watch is a Diplomatic Conference on Genetic Resources and Associated Traditional Knowledge later this month in Geneva to negotiate a treaty regarding patents based on traditional knowledge associated with genetic materials.
In this context, many of the world’s 476 million Indigenous people, including many Kānaka Maoli, may find little to celebrate on World IP Day. There is, however, cause for celebration in the resilient and steadfast efforts of our knowledge stewards, cultural practitioners, and community leaders to advocate for change. Their advocacy has resulted in several important outcomes for Native Hawaiians:
- The adoption of the Paoakalani Declaration at Ka ‘Aha Pono, the Native Hawaiian Intellectual Property Rights Conference, in 2003. The declaration asserts Native Hawaiian rights of self-determination and to its cultural property; condemns commercial exploitation and biopiracy of Kanaka cultural property; and includes clear calls to action for new laws respecting Native Hawaiian traditional knowledge and other cultural property.
- The adoption of the Huamakahikina Declaration adopted in 2021 expanded on the assertions made by the Paoakalani Declaration as a way to recognize the need to guard against infringement in the practice of hula. The Huamakahikina Declaration outlines, among other things, what hula is, its history, best practices for the proper stewardship and transmission, amplifies the various dimensions of its importance, and express the opposition of kumu hula to exploitation and abuse. As such, the Huamakahikina Declaration has the potential to serve as another aid in developing legal protections for cultural intellectual property and traditional knowledge.
- The passage, in 2023, of a concurrent resolution by the Hawaiʻi State Legislature calling for the creation of a Native Hawaiian IP Working Group to “create and develop solutions to prevent Native Hawaiian intellectual property from being incorrectly appropriated” with a report of recommendations for the State. The Working Group’s report is due to the legislature in 2025. When published, the report will be an important tool for the State and cultural advocates to continue the evolution of intellectual property and other law to protect Hawaiian culture.
These actions reflect determined advocacy by Native Hawaiians to see the IP legal foundations developed to adequately protect the Hawaiian culture. For World IP Day, advocates and allies should look to these resources for guidance and seek out opportunities to kokua.
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