Intellectual Property Rights of the Aboriginal Peoples of Taiwan

Yvonne Lin Mei-Jung

Translated by Martin Williams

1. Introduction

World Intellectual Property Organisation (WIPO) regulations regard intellectual property rights to apply to property produced on the basis of intellectual creation, particularly inventions and works of literature or art. “Property rights” pertain to situations in which inventions or creative works with copyright protection may only be utilised with the agreement of the inventor, author or other “owner of rights”.

The Aboriginal peoples of Taiwan - there are currently nine groups officially recognised - are a crystallisation of rich and highly diverse human knowledge, and were the objects of general curiosity during the Dutch and Japanese periods of rule in Taiwan. However, having suffered the impact of several hundred years of colonial rule, the earliest inhabitants and original masters of Taiwan have been unable to secure the dignity to which they are entitled by relying on the resources of their anthropological and cultural heritage, agricultural practices, botanical heritage and genetics, traditional lifestyles, traditional medicine and biological diversity, or even on the research of the Human Genome Diversity Project (HGDP) conducted in recent years.

What do we associate with “intellectual property rights”? How are they related to Taiwan’s Aboriginal peoples? What about the general concept in the international context? And what is it understood to mean in Taiwan? Before we can guarantee the intellectual property rights of Taiwan’s Aboriginal peoples we must determine what action ought to be taken. The goal of this paper is to discuss the issue of intellectual property rights of Taiwan’s Aboriginal peoples before a wider audience.

2. The meaning of intellectual property rights

There are some disparities between Taiwan and the international community regarding the concept of intellectual property rights. What do intellectual property rights refer to? Cultural heritage? "Mental" property? Or industrial property?

The WIPO definition of “intellectual property rights” is as follows: “Intellectual Property means property rights in intellectual creations, particularly inventions and literary and artistic works. Intellectual property rights exist also in registered trademarks and industrial designs, integrated circuits, trade names and geographical indications and relate to the repression of unfair competition, including the protection of undisclosed information. 'Property' implies that protected inventions, works under copyright protection, and other objects of protection, can be used only with the consent of the inventor, author or other owner of rights.” (NOTE 1)

“Intellectual property rights” are defined in the 1967 WIPO Convention (Article 2 (viii)) as relating to: "(1) literary, artistic and scientific works, (2) performances of performing artists, phonograms, and broadcasts, (3) inventions in all fields of human endeavor, (4) scientific discoveries, (5) industrial designs, (6) trademarks, service marks, and commercial names and designations, (7) protection against unfair competition, and (8) all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields".

Put most simply, creations of the human intellect, such as inventions, designs, poetry, prose, drama, patterns and symbols, computers, software, cartoon characters such as Mickey Mouse and Donald Duck, or fictional human characters such as Asia the Invincible, fall under the definition of intellectual property (Feng Chen-yu 1994).(NOTE 2)

The South American indigenous movement "Tupay Katari" points to traditional indigenous artistic heritage in their conception of intellectual property, including: (1) forms of oral expression such as folktales, legends, poetry and riddles, (2) forms of musical expression such as songs and instrumental folk music, (3) forms of physical expression such as folk dances, plays and ceremonies, (4) forms of tangible expression such as drawings, paintings, sculptures, pottery, woodwork, jewellery and basketry, and (5) musical instruments and architectural works. These categories refer back to the essence of a report by the Group of Experts on the International Protection of Expressions of Folklore by Intellectual Property convened in October, 1984 by UNESCO and WIPO. That report also stated: "States [shall] recognise as the permanent traditional artistic heritage of indigenous communities, the body of artistic works created within indigenous territories by anonymous authors, and transmitted from generation to generation". (NOTE 3)

Anthropologists in Taiwan point out that indigenous ecological wisdom (or "intellect") is a collective resource for cultural and biological diversity and a precious form of “environmental wealth” or “natural capital” (Wang Chun-hsiu 1998). (NOTE 4) Wang advances the argument that the symbiotic relationship between indigenous people and the land generates a philosophy of ecology that is most worthy of study. Compared to the Western notion that “culture develops through the agency of man”, the indigenous view that “culture develops through the agency of the land” is much more in character with the idea of the “unity of people and nature”. “Thus, ecological wisdom becomes a common resource for cultural and biological diversity and even moreso a cultural theme of flourishing biological diversity.” (NOTE 5). Wang divides the study of indigenous ecological wisdom into the two general categories of thought and conduct, the former category including the pronouncements of the world’s indigenous peoples, and the latter including indigenous methods of ecological management. Wang’s investigations into how Taiwan’s Aboriginal peoples practice agriculture, how they fish and hunt, and into the nature of their ceremonies and taboos are a valuable record of ecological wisdom within the conduct of Taiwan's Aboriginal people. Wang proposes that an Aboriginal-controlled “community trust” will rectify deficiencies in the present “state trust” method and will also entrust Aboriginal people with the role of “ecological guardians” in managing national parks and nature reserves.

3. Taiwan case studies

(a) When portions of the “Elders' Drinking Song”, as sung by the Amis Aborigines Difang (Chinese name: Kuo Ying-nan) and his wife Igay (Chinese name: Kuo Hsiu-chu), were first broadcast on Taiwan television as part of a short film promoting the 1996 Atlanta Olympics, many did not realise that the sounds were in fact those of the Amis people of Taitung in southeast Taiwan. Indeed, the singers themselves were not aware of their inclusion in the material. On the eve of the Olympics, the former mayor of Taipei, Chen Shui-bian, and the former head of the Taipei City Council of Aboriginal Affairs, Kao Cheng-shang, invited Difang and Igay to Taipei to hold a press conference entitled “The Return of the Original Music”; "the goal was to draw attention to the issue of securing the intellectual property rights of indigenous people". (NOTE 6) A lawyer, Huang Hsiu-lan, then received instructions from Difang to take legal action over the matter. The incident had its origins in 1988 when an academic, Hsu Chang-huei, led a group of Aboriginal people - including Difang - to perform in France. A recording of their performance was then transferred to compact disc by the Maison des Cultures du Monde (Institute for World Cultures) and given a limited release. The German rock group Enigma remixed the performance and this was used as the Olympic Games promotional song. Subsequent mediation and negotiation by Hsu Chang-huei saw the French pay out a symbolic 15,000 francs, which was given to the France-based Folk Arts Foundation in trust. The problem of who owns copyright to this Amis song has not been resolved, and so the money has not been passed on to the members of the Aboriginal group who travelled to Europe. What Hsu Chang-huei is fighting for on behalf of Difang and other Aboriginal people is not only the recording's copyright, but also copyright relating to musical arrangement.

(b) During the period of Japanese rule in Taiwan (1895-1945), the musicologist Kurosawa Takatomo travelled to more than one hundred and fifty Aboriginal communities and compiled nearly one thousand songs, producing more than twenty phonograph records. Further, in 1952, the material was presented to UNESCO and Kurosawa published a thesis introducing the revelation that was “ethnic music”. This was the first time that Taiwan Aboriginal music had been placed on the world stage, and to this day it has been very influential in facilitating the detailed research of Aboriginal music by musicologists. (NOTE 7)

These examples lead us to the following points:

(a) In fighting for compilation, transcription and arrangement copyright, is it a just situation for intellectual property rights to become copyrighted to an individual when those rights originally belonged to an entire ethnic grouping? Some have proposed that “shared control” property rights be returned to the original ethnic group, requiring that half of any money or other gifts obtained be deposited with an organisation along the lines of an “Aboriginal Culture Foundation”. The case of Kurosawa Takatomo demonstrated respect and affirmation in the recording of Aboriginal culture; the struggle over copyright in the case of the Olympic Games promotional film arose, however, from conduct relating to commercial profit. There is still much work to be done in addressing the relationship between commercial profit, the protection and promotion of culture, and where intellectual property rights apply.

(b) The songs of Aboriginal people are orally transmitted and their sources cannot be traced. They are a collective creation and therefore do not have an “original author”. For this reason the former head of the Taipei City Council of Aboriginal Affairs, Kao Cheng-shang, made a general appeal that there should be a different approach to the intellectual property rights of Taiwan’s Aboriginal people. He has proposed that a “Intellectual Property Rights Foundation for Taiwan Aboriginal Collective Works” be established to deal with this issue.

Apart from the example of music, the distribution of commemorative coins and postage stamps and the digitalisation of embroidery patterns have complicated the issue of intellectual property rights. Under the impact of modern technology, the question of who retains the rights to intellectual property such as the “totems” of each Aboriginal community - symbolic patterns, handicrafts and so on - has suddenly become very urgent.

4. Local laws and safeguards

In general, the commercial sector’s concern for intellectual property focuses on patents, trademarks, copyright and the protection of undisclosed information. Less stringent concern is afforded to the layout of publications and computer circuits. Naturally, the intellectual property rights of Aboriginal people are not of concern to mainstream society in this kind of framework. The range of applicable laws and safeguards currently in force in Taiwan are set out below:

(a) Laws which cover distinguishing markings of industries or goods: These are the Trademark Law for trademarks and logos, the Company Law for company names, the Commercial Registration Law for names of other commercial entities, and the Trade Law and Measures for the Administration of Goods for Export for indicating place(s) of production and names of original place(s) of production. Regarding the Trademark Law, protection of commercial reputation and customer support services is available to those goods that are distinctive, practical and which have a fixed application. The period of protection for such products is ten years; first applicants will receive protection and may, without restriction, apply for extensions of ten years at a time.

(b) Laws which protect the creative product of the human intellect: These are the Patents Law covering applications for inventions or new models; the Botanical Seeds Law for new microorganisms, industrial designs and new botanical types; the Integrated Circuit Protection Law for semi-conductor wafers; and with regard to undisclosed information protection there is the Trade Secrets Law covering specialised skills. The Patents Law provides protection for new inventions with industrial value, but requires them to be of a novel, practical and creative nature and sufficiently specialised. The period of protection for new inventions is twenty years, new patterns twelve years, and new models twelve years. In principle these cannot be extended. Protection of medical goods and pesticides, however, may be extended from two to five years. Protection of undisclosed information and specialised skills applies to all specialised skills and data; they must be of a confidential nature and have commercial value. Where undisclosed information exists it will then receive protection; if undisclosed information is developed and not leaked it is then protected. Extensions do not apply. The Integrated Circuit Protection Law protects integrated circuits if they are an original creation and not of a general nature. The period of protection is ten years with no extension possible and requires registration, as unregistered products will not recieve protection.

(c) The Copyright Law which protects works in the cultural, artistic, scientific and academic spheres and which covers rights to both the character of a work and rights to a work as property. The law is conceptual in that it protects creativity; protection expires fifty years after an individual's death or, in the case of corporate entities, fifty years after the date of first publication. The law also embraces the creative aspect in that once a creative work is completed it is protected. No extensions are possible.

(d) Laws which prevent unfair competition: These are the Fair Trading Law, the Trademark Law and the Consumer Protection Law.

5. Taiwan’s Aboriginal peoples and intellectual property rights: difficulties and challenges

(a) Establishing the boundaries of Aboriginal intellectual property rights.

(b) Making laws to protect Aboriginal intellectual property rights prior to entering the World Trade Organisation (WTO) according to its regulation that all member states must pass laws protecting information with commercial value and which has yet to be publicly disclosed, even if that information does not qualify to attract royalties or for patent protection. This regulation is much broader than the concepts of "undisclosed information" or "technique" mentioned previously, and is sufficient to cover the many creeds, ceremonies, songs, dances and designs regarded as sacred and secret by Aboriginal people but which are under threat of commercial use. Therefore, the Republic of China, in entering and becoming a member nation of the WTO, should make laws to protect the cultural heritage and intellectual property rights of our nation's Aboriginal peoples by employing legal safeguards of an international standard.

(c) Not neglecting the rights and interests of Taiwan's Aboriginal peoples when applying to enter international organisations (such as the World Health Organisation).

(d) Legislating standards for patentisation and commercialisation in regard to the Human Genome Diversity Project. It is understood that since 1992 Taiwan has undertaken genetic research on its Aboriginal peoples. In that year the University of Tokyo, through the Mackay Memorial Hospital in Taipei, took 900 blood samples as part of "systematic anthropological research". From 1992 to 1996, Shuntien Hospital in Taichung in collaboration with the Academia Sinica took 4,000 samples. In 1995 the Mackay Memorial Hospital undertook the collection of a further 1,000 samples. These nearly six thousand blood samples are likely to have undergone DNA sampling or else have been placed in long-term storage. Legal standards relating to this problem are urgently required.

Consent form for extraction of blood from the Aboriginal peoples of Taiwan

Dear friend from the__________tribe,

Hello! We are [staff] from_ ____________Hospital. We would like to visit you to collect a blood sample and conduct a health test. We are researching the uniqueness of your people's heredity as well as looking further into the origins of your people and how they migrated. We also want to make comparisons with the heredity of other Aboriginal people on the island [Taiwan]. You will also be offered a free blood test and check-up.

Our plan is to collect fifty samples from members of your tribe who are "full-blood" and not from the same family. In order to investigate and measure more characteristics of your heredity we will need about 20 millilitres of blood [about three tubes of blood] as well as about 5 millilitres of blood for your free blood test and check-up. The results of your examination will be sent to you shortly afterwards. We hope that all [Aboriginal people] who are interested in their ethnic group's origins will answer some simple questions below about themselves and their parents. We will be at the local church at______am/pm to collect blood and to conduct our courtesy examinations. We invite everyone to support this worthy project.

Yours sincerely,

_____________________ Date: / /

The above is a blood extraction consent form featured at the beginning of a paper by an Academia Sinica researcher discussing that institution's project entitled "Using hereditary characteristics in researching blood relations between Taiwan's Aboriginal peoples". In the paper she mentions her discovery during the research that some Aboriginal people already tested had not had their examination reports or research results sent back to the community (NOTE 8). It may also be seen from this that human genes in Taiwan are conceived mainly in terms of recognition of ethnicity. It has been said however that acknowledging blood as belonging to either the Shao or the Tsou peoples or to the Taroko people has no relation to acknowledgement of ethnicity by academia or the government; the latter is in fact a separate issue. (NOTE 9) There is not yet any evidence, however, demonstrating that the blood of Taiwan's Aboriginal ethnic groups has been subject to patent applications or used to devise new pharmaceutical products or that a general plan has been implemented. The latter requires careful recording of data from three generations of a given ethnic group, and of data relating to congenital conditions, the immune system, general constitutional circumstances and so on. Only in this way can basic data be compiled for reaching conclusions relating to genetic influence. However, the government must look carefully at the taking of blood samples for the purposes of DNA sampling or placing cells in long-term storage. Organisations and conferences around the world are now advocating the halting of such research to protect Aboriginal intellectual property rights. Aboriginal people believe that blood is bestowed, a sacred thing that cannot be violated, something that cannot be sold. Such patentising leads to the loss of Aboriginal legal and political rights.

6. Conclusion

In Taiwan, the concept of intellectual property rights is still confined to trademarks and copyright which are narrowly related to commercial profit. It is as if holders of intellectual property rights are unable to make any profit if they do not labour to commercialise those rights. The right to intellectual property is an intangible form of property right, so how are we to affirm its existence and value when, like the dignity and autonomy of the Aboriginal people themselves, these precious common products of humanity - the culture, traditional skills and traditional medicines of the Aboriginal ethnic groups on Taiwan and Lanyu - have been ignored, discriminated against and even belittled?

An investigation of intellectual property rights which bears in mind the dignity and humanity of Aboriginal people leads to the following proposals:

(i) That there be active acknowledgement of the dignity and autonomy of Aboriginal people.

(ii) That legal benchmarks for the intellectual property rights of all Taiwan's Aboriginal peoples be implemented according to the standards of international law currently practiced.

(iii) That the Aboriginal concept of "collective property" be respected and measures drawn up protecting intellectual property rights and returning economic benefits to Aboriginal people. That the different "collective property" of each Aboriginal people be respected and that corresponding organisations in the manner of a "Foundation for the Promotion of Intellectual Property of the [tribal name] Aborigines" be established with government assistance with the board of directors made up of people from the said Aboriginal people who shall administer benefits from and use of collective property.

(iv) That a national "Museum of Aboriginal Peoples" be established at the highest administrative level to preserve the material intellectual property of Aboriginal peoples.

(v) That recording and transcription of oral accounts be actively undertaken using resources provided by a state organ of the highest level, and that cultural and other intellectual property, regardless of form of expression, be recorded using contemporary language or technology and preserved in a "Museum of Aboriginal Peoples".

(vi) That young Aboriginal people be trained to record their intellectual property using modern forms and the latest technology. That funds be allocated encouraging young Aboriginal people resident in traditional communities to participate in international exchanges and conferences, and that human resources be provided to aid language communication in these arenas.

Notes:

1. The WIPO was formed in 1970, and in 1974 became a specialised organisation within the United Nations. However, its roots date to 1883, when the Paris Convention for the Protection of Industrial Property was adopted, followed by the Berne Convention for the Protection of Literary and Artistic Works in 1886. The two conventions had established secretariats with separate regulations, but in 1893 the two secretariats merged and after many years of development this structure became the WIPO (World Intellectual Property Organisation information sheet, undated).

2. Feng Chen-yu (1994): Understanding Intellectual Property Rights. Taipei: Yungjan, p17. Feng is a professor in the Department of Financial Economic Law, Chungyuan University.

3. United Nations Economic and Social Council Report E/CN.4/Sub.2/1996/22, p6.

4. Wang Chun-hsiu (1998): "Global Transformation and Aboriginal Ecological Wisdom: The Environmental Justice Perspective". Paper presented to the National Science Council Social Affairs Division Symposium on Globalisation, 16-17 January, 1998. Wang is a professor in the Department of Anthropology, National Tsing Hua University.

5. Ibid.

6. See Jackie Chen (Chen Shu-mei)(1997): "Ami sounds scale Olympian heights", tr. Phil Newell. In: Cheng Yuan-ching, Sinorama Magazine (eds): The struggle for renaissance: Taiwan's indigenous culture, Volume III. Taipei: Sinorama Magazine, pp44-59.

7. Ibid.

8. Chen Shu-cho (1997-1998): "Aborigines in a test tube". Yiwang zazhi (Medical Hope), 23, 45-47.

9. Translator's note: There is dispute over the ethnic status of the officially unrecognised Shao people, who number only a few hundred people and are resident in the Sun Moon Lake area in Nantou County. The dispute is largely over whether they are "assimilated" to the extent that they cannot be regarded as Aboriginal. Cultural similarities to the adjacent and officially recognised Tsou people, resident around the greater Alishan area (including Nantou, Chiayi and Kaohsiung counties), have also seen disputes over whether the Shao are actually "part of" the Tsou, and so on. The Shao themselves assert a separate identity despite these doubts. The Taroko people on the other hand are part of the officially recognised Atayal people, and are resident in the region of the famed Taroko Gorge; the argument has been put forward by certain members of the Taroko that they should be regarded as a distinct ethnic group.

　
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