CC licenses and public domain tools help individuals, organisations, and public institutions better disseminate digital resources and data, breaking down the typical barriers associated with traditional “all rights reserved” copyright. At the same time, CC licenses can’t do everything for everyone. First, the licenses operate in the sphere of copyright and similar rights. They do not attempt to license, say, personality rights, trademark, or patent rights. Also, the CC community recognizes that voluntary licensing schemes will never be a comprehensive solution for access to and reuse of knowledge and creativity around the world. This is one reason why CC works on international copyright reform issues, including the protection and expansion of user rights.

Another dimension of openness that could be better understood from the perspective of the “open” community is the sharing of cultural works related to indigenous communities. This has been talked about with terms such as “traditional knowledge”. Traditional knowledge consists of a wide range of skills, cultural works, and practices that have been sustained and developed over generations by indigenous communities around the world. These communities hold entitlement over this knowledge as well as responsibility for the preservation of their knowledge, but haven’t always had the autonomy to decide what can be done with their knowledge. International and national instruments have attempted to codify the value of traditional knowledge and rights of indigenous peoples, but the place of such knowledge within conventional intellectual property structures remains  deeply contested and uncertain.

These issues and more were brought up at the 2018 Creative Commons Global Summit as well, and has since started an important conversation within the CC community. I’m an attorney and doctoral candidate at UC-Berkeley Law, and over the summer I worked as a research fellow for Creative Commons to conduct an investigation into the current issues regarding traditional knowledge and its intersection with the open movement. A draft of the paper is complete, and we welcome your thoughts and suggestions to it.

In addition, we’ll be hosting a session on the topic on Thursday, September 27 at 3:00p at the 5th Global Congress on Intellectual Property and the Public Interest in Washington, D.C.

The tension between traditional knowledge protection and IP frameworks is exacerbated by digital technologies that have made the creation, dissemination, appropriation and remixing of knowledge and cultural artifacts easier than ever before. Indigenous communities’ preservation efforts and control over traditional knowledge sometimes also seem to conflict with the ‘open’ ecosystem, which consists of organizations, communities, and individuals supporting open and free culture, open licensing and access to knowledge. This is because traditional knowledge is often perceived as being part of the public domain by default, when it is not. 

There is a colonial history of this perception. The doctrine of discovery, which was used to legitimize and expand colonization, held the assumption that indigenous peoples were “uncivilized,” and hence could not own property like European settlers. Therefore, the land and knowledge of indigenous peoples were seen as part of the commons, open for ‘discovery’ and appropriation. Another oft repeated concern that traditional community representatives have voiced at global venues like WIPO is the misuse and appropriation of their knowledge. Appropriation refers not just to taking something of value to a community, but also reaping economic benefit from it. For these reasons, the public domain may be perceived as detrimental to the interests of indigenous communities. It’s important to recognize this because it affects how these communities might perceive open and free culture movements.

Copyright law in particular is based on a number of assumptions that are sometimes at odds with the protection of indigenous knowledge. For instance, sometimes it can be difficult to identify an author of a cultural work because “ownership” might vest in a community, is sometimes continually being invented, or might be passed from generation to generation. The categories of copyright law may not encompass the kinds of expressions found in traditional knowledge. For example, a dance could be manifested in several ways and may have a sequential unique style over several performances. One sequence might be removed and placed in a western song or performance. Not only would there be no protection for this disparate piece, any social or spiritual meaning that might be attached to that dance would also be lost. Furthermore, some traditions are conveyed and preserved orally, and this might not be ‘fixed’ in a tangible form to receive conventional copyright protection.

This perceived disconnect with copyright law in particular puts Creative Commons in a challenging position with regards to indigenous knowledge. On the one hand, Creative Commons strives to make knowledge and information as widely and freely accessible as possible. It seeks to empower individuals who want to define the terms of access to their works. On the other hand, Creative Commons must grapple with ownership structures of traditional knowledge, its position within copyright law, and the terms of access of different kinds of traditional knowledge online. The CC licenses were never meant to be applied to content that is not meant to be shared broadly — so to the extent such content is not intended to be shared broadly or if open licenses do not adequately meet the needs of these communities for reasons described above, then it makes sense not to expect acceptance or use of open licenses as currently available.

Despite these challenges, digital technologies also represent an opportunity to help resolve some of the tensions between IP structures and traditional knowledge and have been used by indigenous communities. Projects like Mukurtu and Local Contexts help preserve and label traditional works while giving indigenous communities autonomy to set the terms for sharing. Local Contexts also provides guidance to indigenous communities about controlling access and preservation of their knowledge. There are flexibilities within CC licenses that could be used in empowering ways by communities that want to make their works open. The conversation needs to involve more communities, policymakers and scholars and the Creative Commons team is exploring the possibilities of working with other projects and involving indigenous communities more closely to understand the role CC licenses could play in the protection and dissemination of traditional knowledge.