Writer : Wend B. Wendland
Year : 2009
In partnership with the American Folklife Center/Library of Congress and the Center for Documentary Studies at Duke University, WIPO ran a pilot training programme for the Maasai community of Laikipia, Kenya and the National Museums of Kenya in September 2008. The intensive, hands-on curriculum included project planning, research ethics, photography, sound and audio-visual recording techniques, digital archiving methods and database and website development. In cooperation with the US Copyright Office, WIPO staff provided the IP component of the training. WIPO will purchase a basic kit of recording equipment and knowledge management software for the community, help the community and museum to develop their own IP protocols, continue to foster a mutuallybeneficial working relationship between the community and the museum and further develop links established between the community, the museum and the national IP offices in Kenya. Lying at the interface between the safeguarding of living heritage and its legal protection, the programme seeks to advance a range of valuable policy goals - promoting cultural diversity, fostering economic development, using culture as a communications tool in development, bridging the ‘digital divide’, promoting responsible tourism and creating local cultural content. Early results from evaluation of the pilot are encouraging, and WIPO and its partners have received several requests from other communities and museums and archives to participate in such a programme. However, something so ambitious presents many challenges and it remains an unpredictable cultural and legal experiment. This article will describe how and why the programme was conceived, its various objectives, the challenges, expected results and lessons learned so far.
New technologies provide communities with fresh opportunities to document and digitise expressions of their traditional cultures. This can meet the strong desire of communities to preserve, promote and pass on their cultural heritage to succeeding generations. Yet these new forms of documentation and digitisation can leave this cultural heritage vulnerable to unwanted exploitation beyond the immediate community. The WIPO training programme recognises both the usefulness of technology for indigenous communities and the paramount need to empower communities to make informed decisions about how to manage IP issues in a way that corresponds with community values and development goals.
The pilot programme began in September 2008, when two members of a Maasai community from Laikipia, Kenya and an expert from the National Museums of Kenya travelled to the American Folklife Center (AFC) and then to the Center for Documentary Studies (CDS) in the United States of America for intensive, hands-on training in the documentary techniques and archival skills necessary for effective community-based cultural conservation. WIPO staff provided relevant IP training. WIPO will also provide the Maasai community with a basic kit of field equipment, a computer and software for their own use. The pilot programme is a collaboration between WIPO and the AFC at the Library of Congress in Washington D.C. and the CDS at Duke University in North Carolina.
This innovative capacity-building partnership with the Maasai community of Laikipia addresses a pressing yet legally and practically complex question – how can indigenous and local communities record and disseminate their traditional cultural expressions without ceding authority over how those recordings are used by third parties? The goal of the programme is to empower tradition-bearers to preserve and pass on their own traditional cultures, if they wish to do so, while safeguarding their IP interests. The results of the pilot will be shared with other indigenous communities and, depending on the feedback, WIPO and its partners could envisage offering similar programmes to other communities and to museums, libraries and archives from other countries.
The training programme enables the Maasai to acquire the requisite technical skills and equipment so they can themselves record their own cultural traditions. The National Museums of Kenya, which also participated in the programme, will be available to provide ongoing institutional support. The Maasai community and the National Museums of Kenya have participated directly as partners in evaluating this pilot initiative and together will make recommendations for its improvement and further development.
This programme tests a number of complex and controversial assertions in a very practical context. This article describes how it all began, and its main features, including the intellectual property dimension and how the programme aligns with other WIPO activities and projects. The article seeks to initiate reflection on the possible impact of such a programme and on the policy, legal, logistical and other challenges it faces. As an interim report, this article acknowledges that its intended and unintended consequences are not likely to be known for some years.
Of particular interest to WIPO was that the perceived threats to the community’s culture included the exploitation of cultural resources, the patenting of traditional knowledge and the commercialisation of Maasai culture without the prior and informed consent of, and benefit-sharing with, the community. As the written submission eloquently put it, the disintegration, assimilation and erosion of cultures particularly in Africa, have transformed communities into spectators rather than rights holders.
In order to combat what it sees as cultural erosion and piracy, the community advised WIPO that it had established a corporate entity, the Maasai Cultural Heritage Foundation (MCH), to spearhead a collaborative process in which the community would be empowered to document its own cultural traditions and creative expressions. It wished to do so in order to safeguard these traditions and expressions, protect them against unauthorised use, promote Maasai culture, derive economic benefit and use Maasai cultural expressions in teaching, conflict mitigation, conflict resolution and awareness-raising on issues such as HIV/AIDS.
The community set out its objectives clearly (this is quoted verbatim from the submission):
WIPO reacted positively to the community’s request for assistance. At its invitation, WIPO first made an exploratory visit to the community in late 2006, together with the International Labor Office in Geneva (ILO), which is working with the same community on human rights and local economic development. The community lives on the Il Ngwesi group ranch which is located some seven hours by four-wheel drive from Nairobi. The group ranch is owned by the community. The community also owns and manages the award-winning Il Ngwesi Lodge.
This first visit was crucial as it enabled a certain level of trust and cooperation between WIPO and the community to be established. It was, and remains, key that this development project be soundly based on the principle of free, prior and informed consent (FPIC)). WIPO provided some initial IP training, and time was spent in laying out options for decision by the elders and other members of the community. The consultation took place over three full days under a large tree at the community’s manyatta (village); both men and women participated. WIPO’s visit to Kenya was also used to facilitate contact between the community and key governmental agencies in Kenya, such as the Copyright Office, Kenya’s Traditional Knowledge Task Force and the Kenyan Intellectual Property Institute (KIPI).
Guided by the lessons learned during this visit, WIPO recognised that the starting point – in order to really empower the community to participate in their own development, as the community had rightly put it - should be to train the community in cultural documentation and on how to manage IP issues and options when doing so. This seemed preferable to having the community’s cultural expressions documented and managed by outsiders.
As indigenous communities increasingly wish to record and represent their own cultures, and in keeping with a human rights and development-centred approach, it seems only appropriate that indigenous communities should lead and direct these recording projects, with WIPO playing a supportive and facilitatory role only.
Following the programme in Washington D.C. and Durham, the trainees visited WIPO in Geneva, for debriefing and evaluation. The evaluation is still ongoing. If the pilot is deemed a success, WIPO and its partners hope to offer the programme annually to indigenous communities and museums from different countries.
The community was invited by WIPO to select two members to receive the training. The community selected Mr. John Ole Tingoi and Ms. Anne Tome Sintoyia. These were excellent choices. The gender balance was valuable. Both trainees are development workers within the community, relatively young and computer literate, but not experts. They had both had some prior experience in conducting interviews with community members. They embraced the training with enthusiasm and seemed ideally placed to apply what they have learned in the community.
With this perspective in mind – and while deeply conscious of the sensitivity, complexity and even controversial nature of this perspective – WIPO’s approach has been, as far as possible, to involve national and local museums, libraries and archives in its training programme.
WIPO accordingly invited a representative of the National Museums of Kenya, Mr. Kiprop Lagat, to join in the consultative visit to the community in October 2006 and in the training programme that took place in September 2008. As expected, Mr. Lagat participated more as trainer than trainee, and the three Kenyan participants worked together as a team. Longer term, the community is likely to benefit considerably from the ongoing support of Mr. Lagat and his colleagues at the National Museums of Kenya.
During the training in Washington D.C., it emerged that the community had in the past made recordings of music and oral histories on audio cassette tapes. These tapes were not necessarily in the best of condition. The AFC kindly offered to clean and digitise these recordings, which the community could immediately archive and catalogue and make available to the public (if it so wished). In this way, the two community members could rapidly apply some of the training they had received. At the time of writing, this cleaning and digitisation process has been completed and the digitised recordings have been transmitted to the community.
Representatives of the three organisations will travel to the community in mid 2009 to complete the training programme (‘Phase Two’). This visit will include a formal handover of the equipment purchased by WIPO for the community, a return of the tapes cleaned and digitised by the AFC, further on-site training provided by the AFC and CDS, and an IP workshop conducted by WIPO which will aim to assist the community in developing its own IP policy and protocols. The visit will also serve as an occasion to launch an IP handbook for the community written by Mr. Ole Tingoi with the support of WIPO.
Longer term, the National Museums of Kenya, WIPO, the AFC and CDS will remain available to provide ongoing advice and guidance to the community. Should the community so wish, it could, for example, be helped to establish a website in order to make some of its recordings available to the broader public. It may even wish to commercialise some of its recordings. However, these decisions lie exclusively with the community. The community owns the IP rights to the recordings and this empowers it to make decisions in accordance with its own developmental objectives.
Furthermore, the programme lies at the interface between the ‘safeguarding’ of living heritage and its ‘legal protection’. The protection of IP and the safeguarding of intangible heritage have always had a somewhat uncertain and awkward relationship. This may stem in part from an inherent ambiguity in the meaning of ‘protect’ and a need to clarify the relationship between the safeguarding of cultural heritage and the legal protection of creativity against unauthorised use.
This uncertainty appears particularly visibly in the recording and documentation of intangible heritage. Many initiatives are underway––internationally, nationally and locally––to document, record and digitise intangible heritage, and these play an invaluable role in preserving the rich cultural heritage of our planet, fostering educational opportunities and promoting respect for the cultural expressions, traditions and ways of life of the world’s diverse peoples and cultural communities. However, indigenous and local communities sometimes express concerns that documentation activities do not take adequate account of their rights and interests, and that documenting and displaying an element of intangible heritage––for instance, the recording of a traditional song or a tribal symbol––may make it vulnerable to intellectual misappropriation. There is particular concern over safeguarding activities for ‘traditional’ cultural expressions (or ‘folklore’) and culturally sensitive materials that may be perceived as being ‘in the public domain’ by conventional IP laws, as mentioned earlier. Indigenous and other local communities argue that they do not have adequate control over research conducted into their cultures, nor over how their cultures are recorded and presented to the public at large. The handling of secret and sacred materials held within such collections can be a particularly acute source of concern. The ethnographic collections of museums and other institutions often include invaluable, even unique, records of ancient traditions, lost languages and community histories which are integral to indigenous peoples’ identity and continuity. Yet the intellectual content of such material is often not owned by the indigenous people, but rather by the people who ‘made’ the film, sound recording, photographs or manuscript. By enabling communities to record and document their own cultural expressions, the WIPO programme described in this article seeks to vest intellectual ownership in the records in the hands of the communities, thus empowering them to decide who may have access to the records and under what conditions.
The programme may also directly, and indirectly, advance a number of other valuable policy goals, such as promoting cultural diversity, fostering economic development, bridging the ‘digital divide’, promoting responsible tourism and ‘nation branding’, and creating local cultural content.
Perhaps in the interim it may be useful to catalogue some of the challenges already apparent. These may be classified as follows:
Evaluation is ongoing and the true value and impact of the programme will probably only be measurable longer term, and it will take time to observe and understand its foreseen and unforeseen consequences.