• Introduction - NZCIEL

last modified July 24, 2013 by strypey

Paper for NZCIEL 2010  

This motivation to research and write this paper came from the suggestion that an 'indigenous licence' could be added to the CreativeCommons (CC) framework. CC is a social movement that has aggregated around a suite of customised copyright licenses, designed to allow creative workers to specify how their publicly shared work may be used. All CC licences allow works to be shared noncommercially, while crediting the author (attribution). Additionally authors may allow commercial use, or the creation of derivatives, or require that the conditions of the licence be passed on to derivative works - the "copyleft" condition (1) pioneered by free code software licences. Like free software (2), and open education resources (3), CC is an attempt to ease the growing pains of a society struggling to reconcile the ability to infinitely reproduce, remix and mashup digital information, with an economic system which emerged as a means of rationing limited physical resources, like land and minerals.

In the age of digital "read/ write culture",  according to CC founder Lawrence Lessig (4), audiences and other artists are increasingly one and the same, and the goals of CC go beyond merely depenalising the free sharing of cultural works. The broader vision is about liberating culture from the sterile cell blocks of exclusive ownership, without doing away with any notion of ownership altogether as the anti-copyright movement advocates (5).

The implementation of CC hacks all-rights-reserved copyright, so it is subject to the limitations of that law with regard to legal enforceability. As a Pākehā CC Aotearoa/ New Zealand (A/NZ) volunteer, with a background in Te Reo Māori and bicultural issues, the purpose an indigenous licence would serve and the problems it would solve were less than clear to me. Pistacchi has described the use of modern texts by indigenous individuals, covered by all-rights-reserved copyright, as a tool for challenging mainstream perceptions of indigenous people, and ensuring their "cultural survivance" (6). There are certainly examples of indigenous individuals and projects using CC licences in similar ways, for example on TangataWhenua.com, but how could the CC strategy of modifying copyright be useful to indigenous peoples as culturally distinct groups, requiring a special licence?

My first tactic in investigating this question was to brainstorm a number of use cases where the knowledge and cultural heritage of tangata whenua might need to be legally protected from exploitation, and consider whether CC could apply in these cases. One possible answer to the question of why an indigenous license was proposed is the inclusion of the CC framework in the NZ Digital Strategy, as a proposed substitute for Crown Copyright. The Te Ara online encyclopedia, currently licensed under Crown Copyright (7), contains retellings of tangata whenua stories, such as the story of the three baskets of knowledge. Placing the contents of Te Ara under a permissive CC license could be seen as giving license to use such stories, and their elements, in a potentially offensive fashion. Perhaps the indigenous licence was being proposed to create legal protection from such cultural misappropriation?

I then looked into a number of cases in which tangata whenua, and other indigenous peoples, have sought such legal protection for aspects of their cultural heritage, and the challenges and pitfalls involved. It quickly became clear to me that the ways knowledge is conceptualised and categorised in pākehā laws regulating copyrights, patents, and trademarks; the public domain; and privacy; are fundamentally different to the way knowledge is understood by tangata whenua.

Next: Mātauranga: Unity of the Big Three