“Repatriating” Indigenous Digital Heritage: The Rise of TK Labels and Licenses

The indigenous communities worldwide treat their traditional knowledge as shared wisdom, know-how, skills, and fruits of intellectual exercises that pass down from generation to generation. On the flip side, Western intellectual property (IP) protection’s philosophical and legal basis emphasizes the proprietary right to exclude others from using owned knowledge. Such divergence corners the intangible cultural materials that belong to indigenous communities globally, putting them in a powerless position. However, there is a silver lining in harnessing more systematic, legal protections for traditional knowledge—through the Traditional Knowledge (TK) label and licensing.

Attribution
Murphy Yanbing Chen “Zitkála-Šá. ATribute.” March 29, 2019: Oil on Canvas 15 by 19 inches

Anthropological History of Traditional Knowledge

In 1878, Thomas Edison patented his wax cylinder phonograph, a machine that records and transcribes sound. Later, in the 1890s, anthropologist Jesse Walter Fewkes used Edison’s invention for his experimental, ethnographic audiodocumentation for the Passamaquoddy Tribe. Subsequently, a growing number of ethnographers in the late 19th century declared their “ownership” over the Native American tribal cultural materials, tangible and intangible alike.

Tangible materials—native tribe’s ancestral, ceremonial, secret, and sacred objects, human scalps—were mainlybought or taken from their ancestral grounds by teams of university-funded ethology departments or private patrons, such as the Mary and Francis Crane collection and Harvard’s Peabody Museum. Intangible materials—traditionalsongs, legends, folklore, and linguistic poetries—were captured by the wax cylinders and reformed into fragments of three to two-minute audio recordings.

Legal Protection of Indigenous Cultural Matter Before TK

Repatriation means going home again. The notion of repatriation is analogous to a “dignity taking,” a way forcolonized communities to restore Western colonization’s cultural and social loss. At first, the revolutionary legacy of NAGPRA, the Native American Grave Protection and Repatriation Act, invited waves of pan-national repatriating initiatives for overwhelming amounts of tangible artifacts in the 1990s. However, the equivalent enforceable effort in repatriating intangible traditional knowledge for the indigenous communities felt short.

Some early conventional efforts included the frameworks established by the United Nations Educational, Scientific and Cultural Organization (UNESCO), the World Intellectual Property Organization (WIPO), and the United Nations (UN). They represented the conventional forces employed to safeguard intellectual property rights for the global indigenous communities. For example, UNESCO set forth the Universal Declaration on Cultural Diversity; the UN set forth the Declaration on the Rights of Indigenous People; WIPO established the Intergovernmental Committee onIntellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC), and the African Regional Intellectual Property Organization (ARIPO) developed the Swakopmund Protocol on the Protection of TraditionalKnowledge and Expressions of Folklore. These are some of most predominant international guidelines for preserving traditional knowledge’s intangible expressions.

However, the legal protections for indigenous communities’ intangible creations were primarily visible in the field of trademark law. The U.S. Lanham Act/Trademark Act of 1946, the Australian Trademark Act of 1995, and the Indian Arts and Craft Act of 1990 contributed to the cause. They all laid down some concrete, schematic legal protection forindigenous marks (words, symbols, crafts, devices)—such as the racially discriminatory appropriation of genocidal slurs of NFL names, mascots, and the Native Tribal Insignia, which have been purged from the USPTO database. Nonetheless, domestic and international laws have yet to address the digital metes and bounds of traditional indigenous knowledge in the public domain. To confront this legal loophole, some have advocated for a TraditionalKnowledge (TK) label and licensing as an alternative way to provide protection and ownership acknowledgment forthe tribal community’s digital heritage.

TK Labels & Licensing, an Alternative Way to “Go Home”

TK label and licensing are platforms built to shelter digitalized information that concerns tribal heritage’s sensitivity from informational abuse and appropriation in the public domain. Before TK, most traditional knowledge wasblatantly displayed on the websites of public libraries and museums and remained digitally accessible. This open accessibility is problematic for two reasons: (1) such display disregards the colonial, anthropological trauma to the indigenous population behind these online cultural materials; and (2) such displays blindly open the digital channels for all to access some of the most sacred, secret, and ritual contents without obtaining the consent of indigenous communities—the original, rightful owners of these digitalized materials.

Suppose the tangible cultural material’s repatriation is legally enforceable, given they are culturally significant and sensitive to the tribes; then, why can’t the intangible traditional knowledge that shares the same anthropological contours and cultural sensibilities “go home” lawfully, too? Since the owners of digital archives cannot return the digitalized traditional knowledge to the tribe physically and literally by the process of conventional repatriation, then is there some way to acknowledge the tribal ownership and figuratively allow it to “go home?”

The Digital Infrastructure of TK Label and Alternative IP Advocacy

Anchoring on this idea of helping traditional knowledge to “go home” by repatriating tribal digital heritage, IP licensing organizations such as Creative Commons, Local Contexts, and Mukurtu CMS are leading the charge to develop alternative, grassroots IP advocates for indigenous communities. These digital cultural heritage channels built their systems by incorporating both copyright and contract law to create context-specific licenses tailored to the specific types and usage of traditional knowledge in the form of labeling. For example, the Creative Commons copyright license (“CC license”) allows users to retain the copyright for TK works with specific restrictions, depending on how one plans to use the label.

The CC license has a three-tiered design: Legal Code (legal documents), Common Deed (human- readable, user-friendly terms and agreement available for the public), and “machine-readable platform” (tech-recognizable format of the license). Ingeniously, these protective measurements augment the traditional copyright protection for license-creators who can attain the TK copyright while limiting their creative content’s attribution, commercial use, and derivative use.

In practice, one of the most active TK label and licensing protection participants is the Library of Congress (LOC).Recalling the beginning of this blog, anthropologist Fewkes used Edison’s wax cylinder phonograph to record Passamaquoddy Tribe’s traditional knowledge. Now, Passamaquoddy ancestors’ spoken words and songs have been digitalized by the LOC’s American Folklife Center (AFC) into audio recordings. Some of the recordings are publicly accessible in the Ancestral Voices Collection webpage under the TK protection. Specifically, browsing through thecataloged recordings, the about page listed that all 24 audios are subject to TK restriction from Attribution - Elihtasik(How it is done), Outreach - Ekehkimkewey (Educational), to Non-Commercial – Ma yut monuwasiw (This is not Sold).

In this new technological age, advocating for tribal data sovereignty and digital heritage is vital. This process gives indigenous communities’ dignity, allowing them to take back what is rightfully theirs and “go home.” The Native American Graves Protection and Repatriation Act (NAGPRA) which provides for the pan-national repatriation of tangible cultural materials cannot be the end of the story. Repatriation can be extended and used as a means to re-contextualize and decolonize culture—a legitimate way to go home and heal the intergenerational trauma that colonialism has deeply cut into the indigenous communities. Now, witnessing the incredible work of alternative advocacy employed by TK agencies, it appears there is hope of restoring the intangible IP rights to their rightful owners.

Originally written February 28, 2022.