Creative Commons Aotearoa New Zealand discussion

[Jane Hornibrook <janehornibrook AT gmail.com>]

Beautifully said.

You're a valuable friend and asset for CC Aotearoa and others interested in this area.

On Sat, Jun 12, 2010 at 5:20 AM, <cc-nz-request AT lists.ibiblio.org> wrote:

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Today's Topics:

  1. Indigenous Knowledge (was: CC parochial) (Danyl Strype)


---------- Forwarded message ----------
From: Danyl Strype <strypey AT disintermedia.net.nz>
To: cc-nz AT lists.ibiblio.org
Date: Fri, 11 Jun 2010 16:14:43 +1200
Subject: [Cc-nz] Indigenous Knowledge (was: CC parochial)
He mihi mahana teenei
ki te whanau o CC Aotearoa/ NZ

Ti hei mauriora!

He kaupapa taumaha tenei ki oku nei whakaaro, te kaupapa of te
matauranga o ngaa Tangata Whanua o te ao.

That which lives breathes!

This topic of indigenous knowledge is very important to me, and I have
been giving it a lot of thought since the idea of drafting an indigenous
license for the CC framework was propsed.

Some weeks ago, Hamish wrote:
>> Any protection should apply to everyone, waving the bogey of
"corporate" exploitation in the direction of the indigenous particularly
seems, patronising.  Though if such protection is applied I look forward
to my share of the licencing royalties for the platonic solids my
ancestors codified a millennia or so back.

("The Platonic solids have been known since antiquity. Ornamented
models of them can be found among the carved stone balls created by
the late neolithic people of Scotland at least 1000 years before Plato
(Atiyah and Sutcliffe 2003)."
http://en.wikipedia.org/wiki/Platonic_solid) <<

Hamish, as with the other thread on the concerns driving the licensing
of art, you seem to have missed the frame of my argument here. I wonder
if this is because I'm assuming a common viewpoint that doesn't exist?
In an attempt to avoid this, I'll answer this in some detail - apologies
if I'm stating the obvious in parts.

The Modern Pakeha/ European philosophy (for this discussion, I'm going
to nickname this 'western' philosophy) of knowledge derives from
Aristotle, and the categorisation imperative. It breaks knowledge into
packets of information assets, assigns them to isolated hierarchies
(art, science, religion), and categorises them into two broad domains -
public and private. It also assumes that there are two possible owners
of information:
- a person, in the legal sense, this can be a human being, or legal
entity like a company
- and a society, as represented by a formal government, usually a
nation-state

Indigenous peoples tend to have a different view of knowledge. For
Tangata Whenua, knowledge is matauranga, a unified system for
understanding and relating to the world. Matauranga is made up of three
interrelated parts:
Kete Aronui - practical knowledge (the arts?)
Kete Tuaauri - knowledge of incantations and rituals (ethics/
spirituality?)
Kete Tuatea - knowledge of the unknown (science?)
(the bracketed statements, with the question marks, are my
interpretations, I am unsure how they compared to other interpretations)

Rather than as asset as such, matauranga is taonga tuku iho - a
responsibility passed down from the ancestors, and held in trust by the
present generation for the benefit of future generations. There are two
scales at which knowledge can be held:
- whanau/ hapu/ iwi, collective ownership of that which is sacred
- he tangata, the people (of the universe)

So in traditional Tanagata Whenua philosophy, knowledge is either:
- specific to a person or group of people, in which case it is sacred/
secret - nobody else needs to know, or has any claim of right to know
OR
- nonspecific, in which case anyone has a claim of right to know and
benefit from it

In practice, these two cultures of knowledge management come into
conflict in a number of ways, but I would say they fall into one of
these two broad categories. Either things that are 'private' knowledge
(ie collective knowledge specific to a tribe or community) being
publicised, or things that are common knowledge being privatised, often
(but no always) by corporations, using mechanisms like copyright,
patents, PVRs (Plant Variety Rights - the biological DRM), trademarks
etc.

The former is excused using the public domain argument that you put
forward here, and is analogous to the argument for the seizure by the NZ
state of the foreshore and seabed (all those parts of not owned under
private title). The latter is excused on the basis that since no legal
claim of right has been made by the indigenous innovators, the
privatising body can claim protection of their derivative work as if it
were entirely novel. This is analogous to the 'terra nullius' notion
that is used to justify claiming indigenous land as private property if
it is not 'inhabited' or 'developed' by the standards of the coloniser.

The comparison between indigenous approaches to protecting traditional
knowledge and traditional territory is interesting. In both cases,
complications come in when the realities of colonisation forces
indigenous communities to interact with the wider world in ways that are
mediated by western philosophy. It has proved problematic to translate
traditional forms of collective land ownership into western legal terms.
This has lead two a number of hybrid approaches, including holding
private title to traditional lands in iwi corporations, which pursue
economic benefits for members of the iwi grouping according to the
standard practice of western business, This including treating knowledge
as "intellectual property".

Another variant is having 'indigenous title' to land and other assets
recognised in an inalienable form, which protects it as taonga tuku iho,
but make it more difficult to realise economic benefits from it in the
dominant context - the money-driven market economy. Since "intellectual
property" is currently the dominant approach to the management of rights
to knowledge in the world, even where indigenous communities are
organised in more traditional ways, they are investigating whether the
statutes and structures of "IP" can be used to defend their knowledge
from exploitation.

You say that corporate exploitation of indigenous knowledge is a
"bogey". This is certainly not the way indigenous peoples see things.
Representatives of Tangata Whenua were concerned enough to file a Tiriti
o Waitangi claim, generally known as the WAI262 claim, in an attempt to
protect their traditional knowledge, and their cultural approach to
knowledge in general.

The Mataatua Declaration on indigenous knowledge included a statement
that the attendees:
"Acknowledge that Indigenous Peoples have a commonality of experiences
relating to the exploitation of their cultural and intellectual
property..."
http://www.idrc.ca/en/ev-30143-201-1-DO_TOPIC.html

Vandana Shiva's writings on biopiracy document the attempts by western
biotech corporations to patent plants that have been bred for
generations by indigenous people in India. One example:
"U. S. Patent No. 5,900,240 was granted recently to Cromak Research
Inc., based in New Jersey. The assignees are two non-resident Indians,
Onkar S. Tomer and Kripanath Borah, and their colleague, Peter Gloniski.

The use of `karela', `jamun' and brinjal for control of diabetes is
common knowledge and everyday practice in India. Their use in the
treatment of diabetes is documented in authoritative treatises such as
the ``Wealth of India'', the ``Compendium of Indian Medicinal Plants''
and the ``Treatise on Indian Medicinal Plants''."
http://www.sedos.org/english/shiva.htm

While I agree with your equalitarian argument in principle, experience
shows us that achieving fair one-to-one outcomes often means applying a
principle differently in different cultural situations. Those of us that
are ngati pakeha - descendants of european colonists - are in a
different situation from those who are descendants of tangata whenua, no
less in relation to traditional knowledge than in other areas.

The cultural heritage of pakeha has been spread across the world by
colonization. We are in no immediate danger of our language and other
knowledge-related aspects of our culture disappearing. It is written
into the fabric of our modern lives through the language we speak, our
forms of government and economic management, our approach to land use,
and our attitude to knowledge. This includes established norms about the
privacy of our personal information and relationships, and the notion
that generic information like the platonic solids you mention are part
of a commons, not something that can be owned or charged for.

We might have to argue in defence of aspects of our personal privacy as
society and technology change, but we don't have to establish the
*concept* of personal privacy. We might have to argue for the defence
and expansion of the public domain, but we don't have to prove it isn't
a unicorn first.

What indigenous peoples are looking for is a way of institutionalising
similar protection for their collective privacy - admittedly a difficult
concept for individualized moderns like us to grasp - and sharing their
non-specific knowledge, while maintaining their rights of attribution,
and their moral rights. Perhaps it is because indigenous peoples
understand knowledge as a unified whole, that they find it comfortable
to argue for protection of their rights and responsibilities in taonga
tuku iho as "intellectual and cultural property" in the Mataatua
Declaration.

However, in seeking protection in existing statute law and multilaterial
treaties, they find that rather than a unified system for acknowledging
rights and responsibilities for knowledge, "intellectual property" is
more like a grab bag of very different legal mechanisms designed to
grant temporary monopolies on different kinds of knowledge:
- Trademarks, for protecting the integrity of trading identities
- Copyright, for protecting the presentation of an idea, narrative etc
in a specific, novel form
- Patents, for protecting new techniques for doing things, regardless of
their implementation
- Plant Variety Rights, for protecting new, distinct varieties of a
species of plant
- Industrial Design Rights, for protecting distinctive product designs
- Trade Secrets, for protecting groups in competition for market share
from having their innovations duplicated or trumped by competitors.

It is in this context that CreativeCommons has come to be investigated
as a framework for protecting indigenous knowledge from corporate
exploitation. After all, CC asserts the right to share in every license,
and to attribution for originators of cultural works in every license
(except CC zero public domain attribution), which meets the desired
condition for universally available knowledge.

There are certainly opportunities for Tangata Whenua in CC, for example
generating shared learning and teaching resources for Te Reo Maaori
education. There are obvious benefits in maximising the work of the
relatively small number of trained teachers of Te Reo in preparing
lesson plans, creating opportunities for collaboration, and increasingly
both the availability and quality of learning materials. CC provides
ways to address various concerns that might arise:
- loss of mana for authors (addressed by attribution eg CC-BY)
- loss of quality control (CC-NoDerivatives)
- loss of income to material authors (CC-NonCommercial)

However, CC only covers works that can be copyrighted. Another attempt
to protect Tangata Whenua in the style of Industrial Design Rights was
Creative New Zealand's 'Toi Iho' (http://www.toiiho.com/), a trademarked
brand that indicated an artwork was not just Maaori-looking, but Maaori
made. CNZ have stopped funding this project, citing the lack of a
'viable business model'. CC Aotearoa/ NZ would do well to learn from
this example in any attempt to create an 'indigenous license'.

In trying to think of other use cases for a CC indigenous license, I
considered examples where words from indigenous languages have been used
as the names of software:
Wiki - (as in Wikipedia) from a Hawaiian word meaning fast
http://en.wikipedia.org/wiki/Wiki#History

Kete - open source digital archive software
http://kete.net.nz/

Mahara - open source portfolio software
http://mahara.org/

I would argue that many forms of indigenous knowledge do not benefit
from being protected by legal monopoly at all, and language is a good
example. The only argument I can think of for a closed language (for
example legal Latin) is to preserve its unique structure, vocabulary and
concepts. Seems to me that a closed language is by definition a dead
language. Conversely, the benefits of the 'open source' nature of living
languages are manifold. An open languages has more people speaking and
writing in it, so it's more likely to survive, and more discourse and
literature, thus more development of its ability to contain and transmit
meaning.

Te Reo Maori is viewed by tangata whenua as a taonga tuku iho that can
be upheld (whakamau) by anyone who has some relationship to this country
(after all, how else would they have heard of the language?). Yet for
precisely this reason, there may be objections to the trademarking of
generic words from Te Reo for business purposes, even for an open source
company whose business approach is otherwise compatible with the
matauranga principles of sharing knowledge.

In summary, it seems to me that what is needed is a unified framework
for the recognition of matauranga Maaori, one that addresses the
concerns raised in WAI262, and the Mataatua Declaration. This would be
more than an indigenous copyright license that might fit somewhere in
the CC framework, although this could be part of it.

I intend to rewrite and more thoroughly reference this and propose it as
a paper for the indigenous knowledge conference later in the year.
Comments and criticism are welcome.

Kotahi te ao
Kotahi te aroha
Kotahi te matauranga

Danyl Strype
Community Developer
Disintermedia.net.nz/contacts

"I would rather be exposed to the inconveniences attending too much liberty
than to those attending too small a degree of it."
- Thomas Jefferson

"But libertarians do not defend the right of people to smash holes
in the hull of a crowded ship, or to let off bombs in city centres.
Freedom does not include
the freedom to trash the habitat we all depend on for survival."
- Johann Hari, the Independent, 5.9.06


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-- 
Jane Hornibrook
Creative Commons Aotearoa New Zealand
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