Wed, Aug 23, 2000 page4

• IPR draft law for Aborigines under attack

  CULTURAL PROTECTION While 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 / STAFF REPORTER
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  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 concepts.

  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.

  

  A July 1999 file photo of Difang, right, a famous Amis singer, whose song was plagiarized by the German band Enigma prompting a lawsuit over Aboriginal property rights.

  PHOTO: CHEN CHENG-CHANG, TAIPEI TIMES

  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 phenomena.

  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 material.

  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 (排灣琉璃珠) 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 Times.

  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."
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