Return to Taiwan Aboriginal Rights Webpage

This article is from:

Title: IPR draft law for
Aborigines under attack

some cite the theft of a Taiwan
Aboriginal song by German band
Enigma a few years ago as an
example of why traditions need to
be protected, others say a law
would actually limit the culture that
it is trying to preserve

By Chong Hui-yeung

A draft law intended to give
Aborigines better intellectual property
protection has come under fire from some of
those it was designed to protect.

Some critics argue that the law, drafted
within the framework of modern intellectual
property rights jurisprudence, does not
accord with basic Aboriginal cultural

Others argue that the law would stop the
spread of Aboriginal cultural artifacts and
thus limit outside appreciation of these
cultures at a time when their best hope of
survival lies in wider cultural dissemination.

The draft of the Protection of Traditional
Aboriginal Intellectual Property Rights Law
(原住民族傳統智慧創作保護法) was released
by the Executive Yuan's Council of Aboriginal
Affairs (原住民委員會) last Wednesday.

Director of the Council's Planning
Department Jeng Tian-tsair (鄭天財) said
that the bill was timely. "Conserving the
culture and defending the rights of
indigenous people are very much part of
current global trends," he said.

The bill was drafted by Tsai Ming-cheng
(蔡明誠), a
National Taiwan University
professor, at the request of the Council for
Aboriginal Affairs.

Currently, the folklore of Taiwan Aborigines,
including traditional ceremonies and art
forms, is treated as ordinary intellectual
property -- "property that results from
original creative thought," according to
Webster's Dictionary -- which includes, as
well as copyright material, patents and
trademarks. All are currently protected
mainly under the Copyright Law (著作權法).

The current law is said by advocates of new
legislation to give inadequate protection to
Aborigines because it does not cover rituals
and other expressions of Aboriginal folklore,
such as tattoos. The current law grants
automatic protection from the moment of
creation of the property, while the
Aborigines' concept of "creation" is different,
allowing for reinterpretation, variation and
the continuing development of cultural

Different concept of property

Aborigines also adhere to a radically different
concept of ownership from that covered by
the current law. In the Aboriginal view,
folklore is a group creation, belonging to the
tribe in question, rather than to any sole
individual, particularly as it is seen to have
its origins in a collective Aboriginal heritage.

"Under copyright law, property rights are
protected for 50 years after creation.
Traditional folklore surely exists for more
than 50 years. But is it reasonable not to
protect folklore?," asks Chang Chung-hsin
(章忠信), section chief of the copyright
department of the Ministry of Economic
Affairs' (MOEA) Intellectual Property Office.
Moreover, said Chang, folklore and rituals
don't stop emerging but continue to develop
and evolve.

Chang goes on to cite the case of Kuo
Ying-nan (郭英男), better known under the
name of Difang, and his wife, as a landmark
example of folk-song copyright infringement.
Seven years ago, the Amis tribe's (阿美族)
"Elders' Drinking Song" (飲酒歡樂歌), sung
by Difang, was plagiarized by the German
rock band, Enigma. The rhythm was remixed
into another song, "Return to Innocence"
which was adopted as a theme tune during
the 1996 Atlanta Olympic Games. EMI and
Magic Stone records (acting for Difang)
settled out of court and agreed to give Difang
and his wife credit for the song in future
recordings. EMI paid substantial
compensation. The money was used by
Magic Stone to set up a fund for conserving
recordings of Amis music last year.

Under the draft bill, Aboriginal intellectual
property would be forever protected.
Protected items would include religious
ceremonies and other rituals, music, dance,
sculpture, needlework, totems, clothing and,
expressly, "other expressions of folklore."

Also under the bill, transfer of ownership is
forbidden. Others may be granted use if an
agreement is reached between the tribe in
question and the party seeking to use the

Unlike ordinary copyright law, under which
protection commences automatically upon
creation of the property, the draft bill
requires that items be registered and judged
by a screening committee of experts before
protection may be granted.

Omass Roladeng (雷賜), a well-known
Paiwan bead (排灣璃珠) artist welcomed
the new draft. "Fifteen years ago, I started to
collect the totems of the Paiwan tribe and
later chose nine of the totems to produce
cloth for the Paiwanese people. But after two
months, I found cloth with similar totems,
produced by Taiwanese capitalists, in the
market. As they could make cloth at a
cheaper price in mass production, I couldn't
compete with them," Omass told the Taipei

Avoiding mass production

Referring to his business producing Paiwan
beads, Omass adds, "Sometimes we reject
orders from foreigners as we haven't the
capacity to fill them. Expanding production is
risky because of the possibility of faking,
which would cost us dearly. A better law,
however, will surely defend our rights and
conserve our culture," Omass said.

There is opposition to the bill among
Aborigines, however.

"The draft bill isn't comprehensive. Medical
items, such as special herbs and medicinal
remedies should also be protected," said
anthropologist Taipou Sasala (趙貴忠).

Jack Chang (張俊傑), Atayal (泰雅族)
member of a famous independent band, Fei
Yu Yun Bao (Fly Fish Cloud Leopard,
飛魚雲豹音樂工團) also opposes the bill.
"Surely this bill can only block, not protect
the spread of our culture," he asserts.

His comments are the prelude to a litany of
objections. "Our folklore," he goes on, "is
something totally different from the
intellectual products that abound in the
modern world. They have hit upon the
concept of intellectual property rights to
conserve our culture, but this is not the way
to go. How to conserve our culture should be
determined by Aboriginal traditions, not by
modern law.

Pointing to the ravages inflicted upon
Aboriginal life by powerful commercial
interests, he rails. "Also, such a bill would
only protect Aboriginal singers backed by big
record companies. The commercialization of
Aboriginal music, rather than the mere theft
of folklore, is the biggest threat to our
culture. Only big record companies can take
advantage of the law."

Finally, highlighting perhaps a fundamental
divergence of Aboriginal views about the role
of the culture, he says, "We should
encourage the spread of our songs, not set
limits to prevent people from singing them.
Improper protection will simply curb the
development of our culture."


Copyright 1999, 2000 The Taipei Times. All rights
Return to Taiwan Aboriginal Rights Webpage