[d@DCC] Latest in Creators Connecting public letter series: letter

[Wallace J.McLean]

>  This needs a lot of exploration.  Is it material rights that are the
>focus of North American copyright, or a form of moral rights that would be
>very different?

material vs. moral
term
nature of TK protection

Those are just three of the problems with this area.


There's ownership: A legend (say Tshakapesh, or Nanabush, or Trickster)
can be shared across a whole spectrum of First Nations, heck some them are
intercontinental. There are bits of folklore that are common to the
Americas and to northeastern Asia.

Who owns such a legend?

Could the Innu sue the Dene or the Chukchi or the Nenets for TK infringment?


Who, if anyone, has rights to ancient artwork where the relationship of
the ancient author-nation to modern author-nations is unclear, unknown,
disputed, or simply unknowable? Or in the case where there probably is
none, for example, with Beothuk objets d'art?



There's availability: Why just Aboriginal or Aspirant peoples? I think the
Greeks should take the Americans to the cleaners for misappropriating
classical Greek architecture as the basis for "American Federal". (Let's
not even TOUCH the Elgin Marbles problem.)


There's justification: In patent medicines, we reward developers of new,
useful drugs with a limited-term monopoly so they can recoup their costs.
Then, in the interests of furthering access to the benefit of that drug,
the patent expires. Is this justification undermined by giving TK rights
to natural discoveries? And the ownership question pops up again. Who has
the TK rights to a circumpolar plant -- Ledum groenlandicum or Gaultheria
procumbens, for example -- which may have been used by 100 or more
peoples? Who owns these rights even if they are "merely moral" as opposed
to material?

And there's grave danger in acting as if they are already material. U de
M, I think, is working with the Cree of Northern Quebec on an ethnobiology
project, rumoured to involve Ledum. If they have a deal with the Cree on
sharing any future financial benefit from this research, why should it be
exclusive given the distribution of the plant, of its use and knowledge of
its uses, and the great age of that knowledge?



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