Kia ora koutou,
In late 2013, CCANZ organised a meeting about the potential development of an indigenous knowledge notice. This notice – similar in motivation to the Traditional Knowledge labels from Local Contexts – was intended to provide a tool to make it easier for kaitiaki of indigenous works to give clear statements about what could or could not be done with digital reproductions of their works, where they chose to release those works more openly.
The existing Creative Commons licences are intended to provide clear, open permissions for others to reuse works that are in copyright. The licences are available in many different languages, including te reo Māori, so any copyright holder can release their work in a legally robust – and human-readable – way, without having to pay a lawyer for the privilege.
So why do we need another legal tool? The problem is three-fold.
First, many indigenous works have fallen out of copyright, which means that there are no longer any copyright restrictions on their reuse. This means that the Creative Commons licences, which require attribution and can be used to restrict derivative and non-commercial use, cannot be used, as these licences are based on copyright.
Second, the Creative Commons licences intentionally do not attempt to restrict perceived misuse of a work. This is an important part of the licences, which are intended to grow a commons of culture and knowledge that can be accessed, copied and reused by anyone. However, this also means that the licences are not appropriate for every kind of work, including some indigenous works.
Third, there is no legal recognition of indigenous works as a special or unique type of intellectual property. While New Zealand law provides different protections for various kinds of works, including patents, trademarks and copyrights, there is no specific protection to recognise the special character of indigenous works.
This may change in the future, but in the meantime we have a problem. A potential solution is to create a notice that allows the kaitiaki of indigenous works to give others clear guidance on what can and cannot be done with the work.
This solution has its limits. As mentioned above, the notice won’t necessarily have any legal teeth for works that have fallen from copyright. Those who break the terms of the CC licences will have infringed copyright, but there is no equivalent protection for a notice of this kind.
The purpose of the notice, then, will initially be more cultural than legal. The purpose will be to give people clear guidance about what can and cannot be done with certain works. The presumption, here, is that most incidents of misuse of indigenous works are done less from malice than from ignorance. The notice will aim to address this ignorance, in terms chosen by the kaitiaki of the work.
After the meeting in late 2013, Professor Susy Frankel agreed to investigate how such a notice could be derived from the existing Creative Commons licences. With this work complete, the next step is for Karaitiana Taiuru, Creative Commons Aotearoa New Zealand and other interested parties to organise hui to learn more about the needs of any interested individuals or communities. If you’re interested in participating, get in touch via the form below, or email firstname.lastname@example.org
The logo used for this post is ‘Comment’ by Akiko Kunugi from The Noun Project, and is licensed CC-BY.
Kia ora koutou,