• Conclusion - NZCIEL

last modified January 21, 2016 by strypey

While I agree in principle with the egalitarian arguments for placing universally beneficial knowledge in the public domain, experience shows us that achieving equal one-to-one outcomes often means applying a principle differently in different cultural situations. Here in Aotearoa, those of us that are Ngāti Pākehā - descendants of European colonists - are in a different situation from those who are descendants of tangata whenua, no less in relation to traditional knowledge. The cultural heritage of Pākehā has been spread across the world by colonisation. 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, read and write in every day, 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 structures of arithmetic, and cultural heritage like folk music, 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 first have to establish the *concept* of personal privacy. We might have to argue for the defence or expansion of the public domain, but we don't have to prove it isn't a unicorn first, and that all knowledge isn't privately owned.

After experiences like the cancelling of Toi Iho, tangata whenua active in this field may be skeptical of any framework that derives from Western epistemology and Pākehā law, and depends on state funding. The Mataatua Declaration asserts that "...existing protection mechanisms are insufficient for the protection of Indigenous Peoples’ intellectual and cultural property rights."

Still, the CC framework may be useful in informing a public discussion of the various facets of indigenous knowledge issues. CC licenses distinguish between issues of; copying (allowed in all licences), attribution (BY in all licences), commercial use (NC if commercial use disallowed), creation of derivatives (ND if derivatives not allowed), and obligations to receivers of copies or derivative versions (SA if obligations are passed on). CC also has a role in educating about the implications of 'moral rights', and limitations on copyright monopolies, including fair dealing/ use, and copyright duration. Understanding these issues, and how they related to different forms of knowledge, could help to create a more nuanced public debate than a tug-of-war over whether governments are morally obliged to enforce exclusive property boundaries around indigenous knowledge. 

CC also offers a model of knowledge ownership that is compatible with free sharing, which can inform the development of a model where indigenous people can both assert their moral rights as custodians of their traditional knowledge, and gift it to the wider human society where appropriate. The implementation of CC as a plug-in to copyright limits its usefulness to indigenous groups who wish to assert a perpetual right of guardianship over their people's knowledge. However, the "deed" that explains the terms of each licence in plain language arguably transcends those limitation, proposing a new social contract around the sharing and re-use of knowledge and its embodiments that may iterate beyond the expiry of copyright. Indeed, the Public Domain Mark does not use copyright at all, and the CC0 licence cancels all copyright claims, including attribution, effectively placing a work in the public domain.

These tools may point the way towards a way of tagging expressions of indigenous knowledge with attribution of their origin, and requests for mindful and appropriate handling of the knowledge. What is needed may be more than a single indigenous license, but a complete framework which engages with the aspirations expressed in the Mataatua Declaration for "...an additional cultural and intellectual property rights regime incorporating the following: collective (as well as individual) ownership and origin; retroactive coverage of historical as well as contemporary works; protection against debasement of culturally significant items; cooperative rather than competitive framework; first beneficiaries to be the direct descendants of the traditional guardians of that knowledge; multi-generational coverage span". Ultimately though, whether these tags or the culture they represent is respected depends on a widespread understanding of Tikanga, as the first law of Aotearoa, and a genuine desire for to provide justice and utu (reciprocity) for the many benefits modern New Zealand has gained from tangata whenua.