This post was co-authored by CC’s Open Policy Manager Brigitte Vézina and Legal and Policy Intern Alexis Muscat.
Tomorrow is International Day of the World’s Indigenous Peoples, a day that seeks to raise awareness of and support Indigenous peoples’ rights and aspirations around the world. We at Creative Commons (CC) wish to highlight this important celebration and acknowledge that, internationally, measures need to be taken to protect Indigenous peoples’ rights and interests in their unique cultures. One measure, which intersects with our policy work at CC on Open GLAM, addresses the open, online sharing of Indigenous cultural heritage cared for within cultural heritage institutions.
Creative Commons and the Open GLAM movement
Many galleries, libraries, archives, and museums (known collectively as “GLAMs”) work hard to make cultural heritage collections available to the public. For these institutions, providing access to knowledge and culture is a core aspect of their duty and public interest mission. Many institutions are digitizing and making cultural heritage collections available online in an effort to both preserve and openly share cultural heritage materials. The Open GLAM movement acknowledges this mission and actively promotes this premise, helping GLAMs make the most out of CC licenses and tools to communicate what users can do with digitized material. At CC, we strongly advocate for open access to public domain material held in GLAM collections for the benefit of all. CC firmly believes that digital reproductions of public domain material within these collections should remain in the public domain and be accessible online as openly as possible.
Indigenous cultural heritage and Open GLAM
Reuse freedoms associated with public domain materials, and fostered through digitization, can create tension when it comes to Indigenous cultural heritage. Existing copyright law, steeped in Western concepts and values, does not adequately protect Indigenous traditional cultural expressions, nor does it sufficiently reflect or account for Indigenous cultural values. By default, many forms of Indigenous heritage or “traditional cultural expressions” (which may include secret, sacred, or sensitive content) are inequitably deemed public domain under conventional copyright law.1 One of the challenges is that the copyright system does not properly account for the ways in which traditional cultural expressions are created, collectively held, and transmitted through the generations. The copyright eligibility criteria, such as originality and authorship, are often at odds with Indigenous notions of creativity and custodianship over a community’s cultural heritage. As a result, it may seem that such heritage is freely available for use and reuse, when in truth this may not be the case. Permitting this level of access and use raises ethical concerns which must be fully considered.2
Existing copyright law, steeped in Western concepts and values, does not adequately protect Indigenous traditional cultural expressions, nor does it sufficiently reflect or account for Indigenous cultural values.
The notion of the “public domain” is relevant within the confines of the copyright system. So, while Indigenous cultural heritage may be regarded as public domain under copyright rules, and thus free to use, other rights and interests may still attach to it, stemming from various sources. These include other legal restrictions like privacy rights, other intellectual property rights (including sui generis rights to protect traditional cultural expressions), and personality rights, as well as Indigenous customary laws and protocols. In practice, this means that access to and use of Indigenous materials may be limited, and justified, on grounds found outside of the copyright system. Because these rights and interests are not protected under copyright law, they are not licensed under CC’s licenses and tools, which operate solely within the copyright system. This means that specific terms or conditions on access and use that are based on Indigenous rights, interests, or wishes are not fully addressed when applying CC licenses and tools only and that additional measures might be advisable to correctly reflect the conditions associated with access and use of traditional cultural expressions. Local Contexts, a labeling system inspired by Creative Commons, was designed to address this issue by alerting reusers to local protocols established by communities.
GLAMs are in a pivotal position to take active steps in support of Indigenous cultural interests and values. Through thoughtful, intentional, and respectful decision making, GLAMs can enable the ethical treatment of cultural heritage materials, going beyond the application of conventional copyright law and the determination of a work’s public domain status. GLAMs should take account of Indigenous peoples’ rights and interests, particularly regarding digitization, access, and reuse of Indigenous cultural heritage.
A study of GLAM policies on Indigenous cultural heritage
In an effort to better understand how GLAMs are tackling this tension, we undertook desk-based research aimed at surveying and analyzing GLAM policies and practices dealing with the treatment of Indigenous cultural materials.3 After collecting a diverse range of resources from various GLAMs located in different world regions, we studied them to find common trends, best practices, strategies and rationales. 4
We found that some institutions attempt to strike a balance between their aim to share collections openly and the need to prioritize Indigenous peoples’ interests in their cultural heritage. The policies in place at Auckland War Memorial Museum (discussed here with Open GLAM on Medium), Museum of New Zealand Te Papa Tongarewa, and Museum of Applied Arts and Sciences are great examples of institutions working to strike this balance.
Additionally, we were able to identify three key themes in the surveyed policies:
- Acknowledgment—GLAMs should recognize and affirm the interests Indigenous peoples have in their cultural and intellectual property, existing both inside and outside conventional copyright law.
- Consultation—GLAMs should form authentic and meaningful relationships with source communities, understanding customary law and protocols, and determining community needs and wishes with regard to their cultural heritage.
- Guardianship—GLAMs should actively respect community decisions regarding digitization, access, and use, giving Indigenous communities full agency over how their cultural material is treated.
While this research provides us with initial insight, it is only the first step in understanding the important but complex interrelations between the goals of the Open GLAM movement and the celebration of the public domain on the one hand, and the ethical, and at times legal, obligation to respect Indigenous cultural heritage. Looking at institutional policies probes a narrow aspect of a much larger conversation. More work needs to be done, and CC will continue to explore ways to bring attention to this issue. In the meantime, we remain convinced that as far as Indigenous cultural heritage is concerned, GLAMs should acknowledge that access and reuse restrictions might be justified in certain situations. With continued efforts, we hope to better inform the Open GLAM movement of best practices when digitizing and making material available online, accounting for more than just the “public domain” status of Indigenous cultural heritage.
We remain convinced that as far as Indigenous cultural heritage is concerned, GLAMs should acknowledge that access and reuse restrictions might be justified in certain situations.
Moving forward, we at Creative Commons intend to explore paths to find ways to resolve this tension in the GLAM space and beyond. Ideally, we would like to conduct further research to develop informed policy options, hold open conversations and consultations with relevant stakeholders on these important issues based on the principles of collaboration, inclusivity, and transparency, and continue to clarify how CC licenses and tools work and develop ways to better reflect and account for Indigenous rights and interests in their cultural heritage.
1. Some countries have sui generis (tailor-made) systems of protection in place designed specifically to protect traditional cultural expressions from misappropriation and misuse. For further information, see WIPO’s “Compilation of Information on National and Regional Sui Generis regimes for the Intellectual Property Protection of Traditional Knowledge and Traditional Cultural Expressions.” However, no such regime exists at the international level. The Intergovernmental Committee of the World Intellectual Property Organization is the forum in which negotiations take place to develop a sui generis international legal instrument for the protection of traditional cultural expressions.
2. In the case of museums, the International Council of Museums (ICOM) Code of Ethics provides one basis for recognizing Indigenous cultural interests as an ethical consideration.
3. For the sake of compatibility, we modeled our approach on the Open GLAM survey.
4. Note that the sample of policies reviewed was relatively small next to the large number of GLAMs. As such, the results are not comprehensive nor are they necessarily representative of GLAM practices more broadly.