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Tourism, culture and intellectual property law: Hidden risks and dangers

by Editor

August 22, 2013 | 12:00 am
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There are many benefits associated with tourism. Poverty can be a tool for rural development, poverty alleviation, employment creation, women and youth empowerment, and economic development generally. However, tourism also poses a threat to the environment, to indigenous people, to cultural property in general, and to traditional knowledge in particular. One of the greatest threats is the loss of valuable cultural property (e.g. a nation’s cultural heritage and art), cultural expressions (e.g. songs, craft, and designs) and intangible intellectual property (e.g. traditional knowledge of medicinal plants) are misappropriation by outsiders. Sacred traditional sites are sometimes destroyed in order to make way for tourism infrastructure such as roads, airports and golf courses. A recent example is the case of a Maya temple in Noh Mul, an ancient city in Northern Belize, which was reduced to rubbles by a construction company retained to upgrade Belize roads.Even more disturbing, damaging and destructive to local communities is the loss that occurs when cultural property is stolen and/or misappropriated by outsiders. Across the globe, examples abound of the misappropriation of traditional knowledge and theft of other forms of cultural property. In February 2013, the French Embassy in Abuja returned certain Nok Terracotta pieces that were stolen from Nigeria but subsequently seized in France. During the Nok Terracotta handing over press conference, the French Ambassador, Jacques Champagne De Labriolle, also disclosed that France will also be returning a soapstone statuette of Esie origin that was also reportedly seized by custom officials in France.

Sustainable tourism exposes a nation’s cultural heritage to outsiders and inadvertently renders them vulnerable to theft and misappropriation. The U.S. Immigration and Customs Enforcement (ICE), the principal investigative arm of the U.S. Department of Homeland Security (DHS) and the second largest investigative agency in the US federal government, rightly notes that “The theft and trafficking of cultural heritage and art is a tradition as old as the cultures they represent. What has changed is the ability of cultural pirates to acquire, transport and sell valuable cultural property and art swiftly, easily and stealthily.”

What is important to underscore is that it is not just cultural heritage and art that can be stolen or misappropriated. Intangible property such as indigenous knowledge about plants and herbs can also be stolen.As this article indicates, misappropriation of cultural property is occurring in every sector of the global economy including the entertainment industry, the food industry, the pharmaceutical industry, the fashion industry, and in the art world.Cultural property is broadly defined to include genetic resources (GR), traditional knowledge (TK), and traditional cultural expression (TCE).

Genetic Resource, Traditional Knowledge and Traditional Cultural Expression Defined

Nigeria is rich in GRs, TKs, and TCEs. However, a complete inventory of the country’s rich resources has not been carried out and necessary laws are not yet in place to ensure that the country’s tangible and intangible cultural assets are accorded maximum protection.  GRs refer to genetic material of actual or potential value. According to WIPO, Genetic material “is any material of plant, animal, microbial or other origin containing functional units of heredity.”  Medicinal plants, agricultural crops and animal breeds are all examples of genetic materials. According to WIPO, TK is “knowledge, know-how, skills and practices that are developed, sustained and passed on from generation to generation within a community, often forming part of its cultural or spiritual identity.” Broadly defined, TK covers “the content of knowledge itself as well as traditional cultural expressions, including distinctive signs and symbols associated with TK.” Narrowly defined, TK refers specifically to “knowledge as such, in particular the knowledge resulting from intellectual activity in a traditional context, and includes know-how, practices, skills, and innovations.” TCE is a broad category that covers all artistic manifestation and expressions of traditional life and culture.  TCEs are important because, according to WIPO, they “[f]orm part of the identity and heritage of a traditional or indigenous community” and “Are passed down from generation to generation.”  TCEs extend to “music, dance, art, designs, names, signs and symbols, performances, ceremonies, architectural forms, handicrafts and narratives, or many other artistic or cultural expressions.”

Theft, Loss and Misappropriation of Cultural Property: Recent Examples

There are many historical and contemporary accounts of the theft and/or misappropriation of cultural property. Many TCEs have left Nigeria’s shores and remain unaccounted for. Sadly, a lot is lost when cultural property is misappropriated. The direct and indirect cost of loss of cultural property can be astronomical. Theft and misappropriation of cultural property:

• undermines a country’s biodiversity goals;

• compromises the export of biological resource-based inventions to foreign markets;

• undermines the development of domestic pharmaceutical industry;

• contributes to the devaluation of religious and sacred sites and symbols;

• leads to unjust enrichment, as the communities affected rarely benefit from the commercialization of products that are derived from their cultural property; and

• deprives indigenous groups and other local communities of important sources of income.

a. The Film Industry: Indiana Jones and the Kingdom of the Crystal Skull.: 

In 2012, Dr. Jaime Awe, the director of the Institute of Archaeology of Belize, filed a lawsuit against the producers of the Indiana Jones movies (Walt Disney Company and Lucasfilm Ltd.), alleging that the film – Indiana Jones and the Kingdom of the Crystal Skull – profited from the use of a replica of an actual artifact that he believes was stolen from Belize nearly a century ago. Dr. Awe claims that the crystal skull in question was stolen from Belize 88 years ago by the Mitchell-Hedges family. Although Indiana Jones and the Kingdom of the Crystal Skull grossed about $800million worldwide, none of the profit from the movie went to Belize. “Lucasfilm never sought, nor was given permission to utilize the Mitchell-Hedges Skull or its likeness in the Film,” the complaint reportedly states. The complaint also asserts that “To date, Belize has not participated in any of the profits derived from the sale of the Film or the rights thereto.” The claim is still pending.

b. The Fashion Industry – Tribal-inspired Prints, Beadings, etc.

The fashion industry is frequently accused on misappropriating cultural property. Today, African Kente and Adire design flood stores in the West. In the U.S., aboriginal “inspired” trends (e.g. Navajo prints, tribal-inspired beading, and feathered hair extensions) are also in vogue. Often those profiting from the designs are not the communities from which the designs originated but designer labels such as Proenza Schouler and Rodarte, and retail chains such as Zara and Urban Outfitters, Inc. Is this “a mass cultural rip-off” or strictly business? In 2011, Urban Outfitters came under fire for its “Navajo” collectionclothing and accessories. Some of the company’s products were even labeled “vintage Navajo”. Not surprising, many in the Native Americans community found the collection to be “cheap, vulgar and culturally offensive.”  Despite objections from Native Americans including a cease and desist letter, Urban Outfitter continued to market the products. The result was a lawsuit: The Navajo Nation v. Urban Outfitters Inc. et al.

c. The Food Industry: Tea, Spicesand More

Indigenous plants and genetic resources from Africaand indigenous names are increasingly the basis of patent and trademark applications in the West. The case of Rooibos and Honey bush, plants indigenous to South Africa, are good examples.

Rooibos and Honeybush Patent Dispute: Rooibos tea (the red tea or bush tea) comes from the leaves of a shrub indigenous only to South Africa in the sense that it grows only in Western Cape and Northern Cape of South Africa. In South Africa, many consider Rooibos to be a national beverage. Rooibos is sold in many countries and is an export earner for South Africa. Honeybush (Cyclopia) reportedly grows only in small areas in the southwest and southeast of South Africa and has many similarities with rooibos.Controversy arose when food giant, Nestlé, filed several patent applications over the use of Rooibos and Honeybush for the treatment of certain hair and skin conditions and also claimed the use of Rooibos for the preparation of a product to prevent inflammatory disorders. Civil Society groups allege that Nestlé never obtained the necessary research permit nor did it enter into appropriate benefit-sharing arrangement in contravention of the South African Biodiversity Act (which implements the Convention on Biodiversity in South Africa).According to François Meienberg with the Swiss non-governmental organization, Berne Declaration,“Nestlé builds its new business on illegally accessed material, precluding South Africa of their rightful share of benefits.” Nestlé denies the allegation.

Rooibos Trademark Disputes: In Europe and United States, commercial entities have also sought to register the terms “Rooibos” or “South African Rooibos” as their exclusive trademark.  In 1994 Texas-based Burke International successfully trademarked the term “rooibos” in the US and demanded royalties from any entity that used the term. This meant that even South African companies could not sell their tea in the US using the term “Rooibos.”  Following cancellation petition from the American Herbal Product Association (AHPA) and other  rooibos importers, Burke International  was forced to “voluntarily surrender” the mark on June 24, 2005.In 2005, a US District Court ruled that the trademark was invalid and should be cancelled following a lawsuit brought by the Republic of Tea. In 2012, a French company made moves to register the terms “Rooibos” and “South Africa Rooibos” as the company’s exclusive trademark. It is reported that South Africa’s department of Trade and Industry together with the department of agriculture, forestry and fisheries, have raised strong objections with the French Embassy in South Africa as well as with the European Commission Delegation in Pretoria regarding this recent attempt to “steal” the rooibos name. South African daily, The Mail & Guardian, quotes the Minister of Trade and Industry Rob Davies as saying that “The [department] stands ready to defend South Africa’s trade and intellectual property interests vigorously.”

d. The Pharmaceutical Sector – Hoodia

Theft of traditional knowledge is particularly rampant in the pharmaceutical sector. The economic loss to a community and a country of loss of traditional knowledge over medicinal plants is also highest in this sector.

Hoodia (South Africa): A recent example has to do with Hoodia, a plant indigenous to Southern Africa. For generations, the San people (a.k.a. Bushmen, Sho, Basarwa, Kung, or Khwe)– an indigenous group of about 100,000 people based primarily in Botswana but also in South Africa, Namibia and Angola – have used the Hoodia plant to fight off hunger and thirst.In 2001, without the knowledge, consent or participation of the San people, the Council for Scientific and Industrial Research (CSIR) in South Africa filed several patent applications relating to the Hoodia plant. CISR then reportedly leased their rights over Hoodia’s active ingredient to Phytopharm, a British Company. Phytopharm subsequently licensed the drug to Pfizer for US $21 million. Following broad public outcry and pressure from civil society groups, CSIR subsequently negotiated a benefit-sharing agreement with the San people. A  Working Group of Indigenous Minorities in Southern Africa (WIMSA) has since been established to protect the rights and interests of the San people.

Snake Beans (Zimbabwe) Controversy:SwartzierMadagascariensis(snake beans) is plant found in Zimbabweandhas also been the source of great controversy.The Zimbabwe National Healers’ Association, a group of witch doctors, submitted Swartzier Madagascariensis to the University of Zimbabwe for medical trial on patients suffering from candida, footrot and oral thrush. Unknown to them, the drug was subsequently sent to the University of Lausanne in Switzerland under a 1995 research agreement between the later and the University of Zimbabwe.  The University of Lausanne subsequently filed for patent over some molecules isolated from the plant without ever consulting the Zimbabwe National Healers’ Association or the University of Zimbabwe. Indeed, only Swiss names appeared on the patent application. In July 1999, the United States Patent and Trademark Office (USPTO) granted Patent #5,929,124, which covers antimicrobial uses of snake-bean-tree compounds.To critics, the patent application violated Article 5f of the research agreement between the University of Lausanne and the University of Zimbabwe which provided inter aliathat “a joint application will be made for any patent filed.” On the other hand, the Swiss take the position that their discovery of specific medicinal qualities of the snake beans was not based on traditional knowledge from Zimbabwe and that they conducted sophisticated research that Zimbabwean scientists and traditional healers are not and were never equipped to do. Regardless of which side is right or wrong, the case is a lesson in what can happen when appropriate laws are not in place to protect indigenous knowledge.

e. The World of Art: Hopi Mask and Native Americans

Even cultural property belonging to ethnic and indigenous groups in developed countries can be “taken” as the on-going Hopi mask saga demonstrates. In April 2013, the Hopi Indians in the United States (US) unsuccessfully fought to halt the auction of certain Hopi masks in Paris, France. Reuters (April 12, 2013) reports that the auction went ahead and fetched more than 750,000 euros (($984,500). According to historians, many of the Hopi artifacts were taken many years ago by people who found them unattended in shrines and on altars along the mesas of the Southwest.

Nigeria and Cultural Security

When it comes to potential loss of valuable cultural artifacts and traditional knowledge, Nigeria is clearly vulnerable as recent experiences demonstrate. To the Director-General of National Commission for Museums and Monuments (NCMM), Mallam Yusuf Abdallah Usman, the illegal export of Nigerian Artifacts has occurred in three waves. The first wave occurred during colonial period by invading forces, the second wave occurred  in the 1960s and 1970s against the backdrop of the Civil War, and the third wave is recent and on-going and involve the  “illegal excavation and looting of heritage, archaeological sites and museums by unscrupulous Nigerians and their foreign collaborators.” Given the proven vulnerability of Nigeria’s cultural properties, more needs to be done to protect the interest of communities in Nigeria.

Conclusion

Several lessons can be drawn from the case studies reviewed in this essay. First, theft of cultural property is alive and well and can be exacerbated by unregulated tourism. Second, to effectively protect their cultural property, countries and communities in Africa cannot simply rely on ethical standards and guidelines that art dealers and museums in the West adopt. Ethical standards regulating the conduct of museums and art dealers are few, not every museum or art dealer subscribes to existing standards, and most of the standards are not legally enforceable. Third, to effectively protect their cultural assets,Nigeria also cannot relysolely on the rising trend in the repatriation of antiquities from museums in the United States and Europe to “source nations.” Although international law exists on the subject of theft of cultural property, existing laws do not go far enough.

What is needed is an immediate and complete inventory of Nigeria’s natural, historical and cultural heritage coupled with adequate, coherent regulatory and institutional framework that can ensure that the country’s rich resources are adequately protected.  Nigeria’s National Commission for Museums and Monuments (NCMM) recently announced plans to to employ 600 security personnel to monitor heritage sites in the country. Although such a plan is commendable, it does not offer the comprehensive and coherent solution to the problem discussed in this article.First, while security personnel can stop the theft of tangible cultural property, they cannot stop the theft or misappropriation of intangible cultural property, including intellectual property belonging to indigenous groups in Nigeria. Second, a comprehensive regulatory framework must go beyond merely stopping the theft of cultural property. Such a framework must provide mechanism for ethnic and indigenous groups in Nigeria to benefit from their cultural property. Third, a focus on physical security completely ignores the role of law in protecting tangible and intangible cultural property.

   Law has a central role to play in the tourism strategy of any country. A sound, coherent, and up-to-date regulatory framework can facilitate tourism rather than impede it.  A coherent legal framework will ensure that cultures and the rights of ethnic and religious groups are not sacrificed on the altar of tourism. Such a framework will ensure that the benefits associated with tourism are maximized while the costs are minimized. Such a framework must go beyond a focus on physical security to a broader focus on intangible cultural property. Focusing on intangible property, the law must be flexible enough to accommodate effective use of intellectual property law as well as mechanisms and tools outside the intellectual property law framework.

 DR. UCHE EWELUKWA OFODILE

 LL.B. (Nigeria), LL.M. (London), LL.M. (Harvard), S.J.D. (Harvard)

Professor, University of Arkansas School of Law


by Editor

August 22, 2013 | 12:00 am
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