Published online by Cambridge University Press: 18 October 2005
The twenty-first century has ushered in new debates and social movements that aim to structure how culture is produced, owned, and distributed. At one side, open-knowledge advocates seek greater freedom for finding, distributing, using, and reusing information. On the other hand, traditional-knowledge rights advocates seek to protect certain forms of knowledge from appropriation and exploitation and seek recognition for communal and culturally situated notions of heritage and intellectual property. Understanding and bridging the tension between these movements represents a vital and significant challenge. This paper explores possible areas of where these seemingly divergent goals may converge, centered on the Creative Commons concept of some rights reserved. We argue that this concept can be extended into areas where scientific disciplines intersect with traditional knowledge. This model can help build a voluntary framework for negotiating more equitable and open communication between field researchers and diverse stakeholding communities.
We are developing organizational and technological methods to enhance data sharing for research in both the social and environmental sciences. These challenges include information quality control, protections for sensitive data (such as the specific locations of archaeological sites and their vulnerabilities to looting), copyright issues, incentives to share data, and financial sustainability. Initially, we had expected to simply mimic preexisting, off-the-shelf solutions for such areas as terms and conditions, copyright and data-accession policies, and procedures for handling disputes. We quickly learned that the intellectual-property status of these types of content represent a challenge where there are few solutions readily at hand.
At the heart of this problem is the tension between the potential for universal access and enhanced creative possibilities of digital content and the need to ensure that the sources of digital content benefit from these new options. For example, publishing an ethnomusicology study on the World Wide Web can vastly increase the audience of the study and spark creative reapplications of the source content, in this case music. At the same time, because online data are so easily replicated, distributed, and manipulated, this content is at risk of appropriation and exploitative uses. Both the researcher who performed the study and members of the indigenous society whose music she collected stand to both benefit and suffer from the power of online dissemination. These issues are widely recognized and debated. In our attempt to explore these issues, we found two prominent movements with very different perspectives, models, and goals. The goal of the traditional-knowledge movement is to protect certain forms of knowledge from unfair exploitation.1
Coombe, “Fear, Hope, and Longing.”
Samuelson, “Preserving the Positive Functions.”
The convergence emerged around the idea of a framework that enables flexibility in determining rights and conditions for the use and distribution of content. The traditional model for content control has been all-or-nothing. Copyrights and patents claim exclusive rights over creative or technological works, whereas the public domain does not allow for the retention of any rights whatsoever. This binary scheme forces some communities to choose between imperfect fits for their own needs. Moreover, many communities lack the resources (legal, political, or economic) to even exercise the right to choose between these two imperfect options. Having identified the need for a low-cost, easy-to-implement solution, our conversations turned to the “some rights reserved” model of voluntary licensing tools pioneered by Creative Commons (http://creativecommons.org). These licensing tools allow users to structure permissions and conditions that create incentives for communication, while at the same time respecting the restrictions placed on data by the originating authors or communities. The licenses, now with several million applications, are one of the more visible developments of the open content movement, especially in the arts.
In this paper, we describe a rationale and possible process for expanding these licensing approaches to more successfully accommodate the tensions outlined earlier. We focus our discussion on the realm of field research, where current intellectual-property frameworks are unsatisfactory for both researchers and the communities they work with. We discuss how new approaches have the potential to simultaneously encourage protection of traditional knowledge, enhance collaboration and interdisciplinary research, and facilitate communication among field scientists and indigenous communities. To frame the discussion, we first introduce some background on various intellectual-property issues surrounding different types of content important to the field sciences as well as indigenous-rights groups. We then describe how intellectual-property frameworks help shape incentives for disclosing and communicating versus hoarding and restricting these different types of content. Finally, we outline how the some-rights-reserved framework of voluntary licensing can be developed to encourage more open and more equitable communication of these various types of content.
As narrated earlier, new communication technologies expose us to complex and uncharted new territories of legal risks and ethical pitfalls.3
M. Brown, Who Owns Native Culture?
Current IP practices, institutional structures, and professional pressures can negatively impact field-based research (especially archaeology, anthropology, and environmental sciences) in a number of ways. One of the most commonly articulated complaints, especially within the university community, centers on the escalating costs of scholarly material. Subscription and purchase costs of scientific journals have jumped by some 210% (or more) over the past 15 years.45
Beshears, The Case for Creative Commons Textbooks.
While these costs go up, larger trends in copyright law and publication practices make these materials increasingly difficult to use. Academic publishers typically require authors to sign away copyright on their contributions.678
Vaidhyanathan, “The State of Copyright Activism.”
Cost, access, and intellectual-property debates now see growing attention in the sciences and beyond. As demonstrated by recent editorial debates in the prestigious journal Nature, knowledge accessibility is emerging as a significant issue for the sciences.91011
Promoting the continued use of information (its incorporation into new creative and technical works) also aids digital preservation, because it builds communities likely to continually migrate data into current standards. In that more flexible IP frameworks relax restrictions on copying and using information, they too can be important enablers of digital preservation.
At the same time, the social context of field-based research is also changing. Scholars have a growing appreciation for the potential impact their investigations have on local and/or indigenous communities. Prior and continuing abuses, inequities, and appropriations of biological knowledge and culturally significant icons highlight human-rights failings and negatively impact research and cross-cultural education. The expanding reach of information technologies makes questions of attribution and ownership all the more urgent. Traditional knowledge, whether stored in the minds of indigenous peoples, or represented in ethnographer notes, museum records, or arcane research publications, was often relatively inaccessible and therefore less vulnerable to exploitation. However, easy global travel and the explosive growth of the World Wide Web, coupled with increasingly powerful search engines (such as Google and Google Scholar), now expose this formerly inaccessible knowledge to the glare of the global media. Therefore, the “security through obscurity” that formerly offered sensitive information some safety is quickly crumbling.
Because of this rapid pace of development, addressing IP concerns surrounding traditional knowledge becomes ever more pressing and will likely increasingly shape the research process. In the field sciences, research depends on access to, and often active cooperation of, local communities. Many such communities are closing access because of historical abuses and rising fears of the misappropriation of religiously and culturally significant traditional knowledge.1415
ICOMOS, “International Cultural Tourism Charter”; Isager, Theilade, and Thomsen, “People's Participation”; Miller and Hobbs, “Conservation Where People Live and Work”; Warden-Fernandez, “Indigenous Communities and Mineral Development.”
Much field research has its foundation in the diversity of human experience. Access to local and indigenous communities is often critical to understanding key biodiversity, health, and environmental questions.18
Cox, “Will Tribal Knowledge Survive?”; Dutfield, Intellectual Property, Biogenetic Resources and Traditional Knowledge; Lewis and Ramani, “Ethics and Practice in Ethnobiology”; Moller et al., “Combining Science and Traditional Ecological Knowledge.”
When considering the open-knowledge and traditional-knowledge movements together, it would appear that they are heading in opposite directions on questions of opening or restricting access and use of certain kinds of knowledge. For example, much traditional knowledge and cultural heritage has been relegated to the public domain, as defined by international intellectual-property frameworks.1920
I. Alexander, “White Law, Black Art.”
While not discussing traditional knowledge specifically, negotiation between extreme states of overprotection and underprotection is a common theme articulated by Lessig. He explores this in detail in Lessig, How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, 282–86.
The growing dissatisfaction with rigid and inhibitory intellectual property legal frameworks motivated some to seek more flexible alternatives. Creative Commons licenses strive to address the middle ground between the “all rights reserved” stance of traditional copyright protection and the “no rights reserved” of the public domain. They do not abandon any copyright protections or dedicate any part of a work to the public domain. Rather, they merely adjust the default permissions that copyright owners grant to the world regarding the use of their work. By default, copyright law reserves all rights in a work to the copyright owner, except those uses that would qualify as fair or otherwise privileged under applicable law. However, because these qualified uses are often ill-defined, there is legal uncertainty as to what one can actually do with a work without gaining explicit permission from the copyright owner. Moreover, the high transactions costs of gaining permission, especially when a copyright owner is difficult to identify or locate, can limit the opportunity to lawfully gain appropriate permissions.
Creative Commons licenses resolve these problems by changing these defaults. Rather than reserving all rights in a copyright, these licenses only reserve some of them. For example, some movie makers, musicians, and authors do not mind if their fans make noncommercial copies of their works to post on the Internet or send to friends as long as they properly attribute the works to their respective creators and do not profit from their activities. For these copyright owners, Creative Commons offers a non-commercial-attribution license that automatically grants permission to distribute the work in any medium to as many people as one wants, as long as one does not make money off such distribution and properly attributes authorship. Because the license is attached to the work as it is distributed, subsequent users have no need to get further permission. This scheme dramatically lowers the transaction costs of distributing a work for both the creator and the user, especially over electronic networks such as the Internet. Instead of having to negotiate dozens, hundreds, and potentially thousands of requests for permission, the author simply chooses the right CC license and her fans to do the rest. Numerous musicians, movie makers, and authors have used these licenses, leading to an unprecedented explosion of electronic dissemination and creativity.22
See Internet examples: (http://creativecommons.org/wired/), (http://creativecommons.org/getcontent/features/doctorow), and (http://akma.disseminary.org/archives/001253.html)
While Creative Commons has enjoyed enormous success, these licenses were not designed or customized to meet many needs in the research and traditional-knowledge communities. Nevertheless, the flexible approach of the some-rights-reserved model can be extended to meet these needs if it is properly applied. There are many aspects of both the traditional-knowledge and open-knowledge movements that favor collaborative some-rights-reserved solutions.
As Creative Commons has demonstrated, enhancing communication requires recognition of the motivations and interests of content creators.23
For convenience, we can divide the content of interest (especially for the many field sciences) into four broad categories:
Syntheses, the desired end-product of individual research agendas, are typically communicated in scholarly books, journal publications, conference proceedings, and so forth. This discussion does not focus on syntheses, because many other important initiatives examine IP issues and researcher incentives related to this type of scholarship (see below). Instead, we devote our attention to incentives and IP issues relating to biological and cultural heritage and raw data. Obviously, these categories are not absolute. Nevertheless, they do have heuristic value to help frame this discussion.
The distinction between fact and expression in copyright law has important, though as of yet not fully explored, implications for scientific data. In the United States, much raw data can be legally considered as factual and therefore is not protected by copyright (though some other international jurisdictions, including the European Union, extend protection over some factual data sets).24
Lessig, The Future of Ideas, 105–6.
Feist Publications, Inc. C. Rural Tel. Service Co., 499 U.S. 340 (1991), Cited by Harlan Onsrud et al., Public Commons of Geographic Data: Research and Development Challenges (www.spatial.maine.edu/geodatacommons/), 2004).
In many cases, this legal distinction does not easily translate into the realm of scientific documentation. For example, the specific manner in which data (facts) are presented, their expressions, do see protection by copyright law. Thus, a data table or graph may be protected by copyright, because there may be some originality in the actual expression of the facts presented in that data table or graph. Also, researcher field notes and interviews may take the form of written or recorded narratives. Copyright law would inhibit some attempts to reproduce and distribute such documentation in a form where the facts are embedded within their expression; on the other hand, copyright law would still permit other authors to extract the facts from the narrative and republish them separately. Similarly, photographs, drawings, and other types of recording all mix fact and expression. Thus, the copyright status of much field documentation is likely to be mixed (depending on the specifics of the records involved) and likely open to interpretation. In any case, the threshold for copyrightable originality is very low and the risks of infringement are extremely high, so a typical user must almost always assume that copyright protections pertain, even if data compilations seem very factual.
Digital technologies are rapidly transforming the significance and breadth of data dissemination. Thus, there is a clear need for the participants in online communication to better understand the role of copyright protection in the sciences. Because field documentation will likely contain both protected expressions and unprotected facts, copyright-licensing issues become important in the dissemination of this material. The growing recognition that much of this information will have multiple claims of ownership further highlights the need for clear intellectual-property frameworks appropriate for the field sciences.
Encouraging the growth of an open-knowledge commons requires understanding the incentives and needs of researchers, because they are an important source of content. Researchers have clear incentives to use a knowledge commons, but their incentives to contribute to such a commons need more exploration. Publication brings professional advancement to researchers, and some publication can take place openly. Creative Commons licenses may see application in a growing number of scholarly e-journals, such as the Public Library of Science (PLoS) (http://www.publiclibraryofscience.org), which currently publishes two journals in molecular biology and medicine. As yet, there are only a few other examples of peer-reviewed syntheses that are immediately available for public review using the Creative Commons model. On the other hand, most scholarly journals allow unrestricted (or at least less restricted), online access to their publications after some period of time has elapsed (generally a year or less). Other efforts focus on the development and open dissemination of instructional content. For example, through its Open Courseware system, MIT now posts a large fraction of its faculty's course material online under Creative Commons licenses. There are several examples of MIT course material being translated and adapted for use across the globe, including in educational institutions in the developing world.26
Diamond, “MIT Everyware.”.
Henry, Baraniuk, and Kelty, “The Connexions Project.”
The growing success of open-knowledge approaches in e-journals and instructional material is inspiring for those of us interested in sharing raw or primary research data. Such raw data often have rich and underrealized interpretive potential and are often collected at great expense, time, and effort.29
For examples in genetics and the environmental sciences: Campbell et al., “Data Withholding in Academic Genetics”; Helly et al., “The State of Computational Ecology”; for examples in archaeology and museums: Gaffney and Exon, “From Order to Chaos”; Jones et al., From the Ground Up; Jones et al., “From the Ground Up.”
The original dataset is published in Hermon Carey Bumpus, “The Elimination of the Unfit.”
Some of these papers include: Calhoun, “The Role of Temperature”; Crespi and Bookstein, “A Path-Analytic Model”; Grant, “Centripetal Selection and the House Sparrow”; Harris, “A Neglected Paper”; Johnston, Niles, and Rohwer, “Hermon Bumpus and Natural Selection”; Lande Arnold, “The Measurement of Selection”; Manly, “Detecting and Measuring Stabilizing Selection”; Manly, “Some Examples”; O'Donald, “A Further Analysis of Bumpus' Data”; Schluter, “Estimating the Form of Natural Selection.”
Frank Price, “Bumpus' House Sparrow Data (Poster)” (paper presented at the Biology in Action: New Approaches To Teaching And Learning Science, Radford, VA, 1996).
Hoarded digital data tends to decay very rapidly, because digital media are often fragile and data file formats (especially common proprietary formats) change rapidly. Frances Condron et al., Strategies for Digital Data—Findings and Recommendations from Digital Data in Archaeology: A Survey of User Needs (Archaeology Data Service, University of York, 1999 [cited March 14 2002]); available from http://ads.ahds.ac.uk/project/strategies/; Richards, “Preservation and Re-Use of Digital Data.” Sharing data enables institutions and communities to migrate data to new systems and open, nonproprietary file formats, which tend to be accessible over much longer time periods. Maintaining and widely distributing multiple copies of digital information secures data through redundant backups and is also an important digital preservation strategy, see Reich and Rosenthal, “LOCKSS.”
The traditional (paper) publication process rarely promotes the sharing of raw data, because such data sets are often far too large and complex to print. Many technological frameworks are in use and in development to meet this need. However, complaints about data hoarding remain very common, even in disciplines that favor information openness and have established systems for raw-data dissemination.34
Campbell et al., “Data Withholding in Academic Genetics.”
Foster, “Papers Wanted.”
Campbell et al., “Data Withholding in Academic Genetics.”
We believe that new voluntary academic publishing licenses may protect researchers from unethical rivalries and still create incentives to share large datasets. These new licenses may be modeled after (or extend) the Creative Commons some-rights-reserved copyright licenses. A noncompete/do not republish term, for example, might allow the public free access and use of primary research, so long as these uses do not include use of the data in an unauthorized publication in a peer-reviewed journal or similar outlet. Under this licensing term, anyone can read and reanalyze the underlying data set, but no one can use the dataset to compete with the research or publications of the original researcher/author. Thus, access to knowledge is increased without decreasing the value of the data to its publisher. This approach parallels Creative Commons' non-commercial term, a tool that encourages sharing without weakening one's position in the commercial marketplace. A do not republish term similarly counters disincentives to sharing in the academic market by recognizing the prestige of publication.
Moreover, a noncompete/do not republish term may actually encourage greater collaboration between researchers than exists currently. For example, an interested researcher may develop significant interpretations while exploring large open datasets available under a license from another researcher. With a do not republish term in effect,37
We imagine that such a term should expire after a number of years (its exact duration may vary across disciplines) to encourage more open uses of raw data. Another possible variant of this term would be to quantify how much of a raw data source would have to used to require inclusion of its creator as a coauthor. For example, one researcher conducting a synthesis project may use only small portions (5% or less) of many raw data sets developed by other researchers. In this case, the researcher doing the synthesis would only have to attribute (cite) the raw data creators, but not have to include them as coauthors in a publication.
The term developing country is used as a convenient and widely understood shorthand for nations (mostly recently decolonized) with less access to capital and less infrastructure than wealthy heavily industrialized countries. It is and not meant to assume any predetermined developmental path.
Just as researchers both desire and fear various levels of access to their works, traditional-knowledge advocates and communities both fear and desire various levels of access to their culture. Indigenous groups often lose control over information they regard as sacred or important to their community identity (as is the case when certain artistic motifs become appropriated).3940
The working assumption of many field sciences is that their research materials and subjects constitute public-domain resources. In contrast, many Traditional Knowledge rights advocates emphasize the proprietary nature of some domains of culture, and view the “public-domain” as a concept that some have uncritically romanticized.41
To encourage better equity and fairness in the communication of cultural heritage, methods and frameworks for negotiating across different systems of property must be developed. Experience garnered from other approaches to protecting traditional knowledge can inform this development. Among the various methods attempted to protect traditional knowledge, licensing seems to have some advantages.42
Stephen A Hansen and Justin W. VanFleet, “AAAS Project on Traditional Ecological Knowledge,” Washington, D.C.: American Association for the Advancement of Science, 2003; Lewis and Ramani, “Ethics and Practice in Ethnobiology.”
M. Alexander et al., “The Role of Registers.”
Nevertheless, traditional-knowledge databases have a variety of purposes, some of which include cultural preservation (attempts to document cultural knowledge through digital archiving). Many of these projects are sensitive to the requirements of different indigenous communities, some are built in collaboration with different indigenous groups, and some indigenous communities maintain their own digital archives.4647
Jane Hunter, “Rights Markup Extensions”; Hunter, Koopman, and Sledge, “Software Tools for Indigenous Knowledge Management.”
Buca, Introduction to Metadata.
Because the Indigenous Collections Management Project aims for wide applicability across diverse cultural contexts, it has developed customization strategies to meet diverse needs. It also acknowledges potential implementation problems where the rules governing content are contested between and within communities.4950
Nicholas and Bannister, “Copyrighting the Past?”
As discussed earlier, both the open-access and traditional-knowledge movements are striving towards a future where licensing and other IP practices have increased flexibility in meeting the diverse interests of the various stakeholders. However, the currently disparate and ad hoc efforts in both movements are likely to lead to confusion for both creators and users, which may not be better in practice than the faulty system that already exists. We believe that the some-rights-reserved model of standardized, yet flexible, licensing terms derived from Creative Commons licenses offers a resolution to this problem. For both traditional-knowledge and open-access interests, the some-rights-reserved model offers the opportunity for a convergence of interests and resolutions, which should make each of these movements (broadly speaking) stronger.
Creative Commons focuses largely on advancing individual freedoms for expression and seeks to maximize the personal freedom of people to use and create culture, while at the same time preserving the core rights that the original creators cherish. Their licenses should be understood as attempts to express and further these values. The individualism advanced by Creative Commons sees its clearest expression in the attribution term, which is a default setting for Creative Commons licenses. This term requires crediting the authorship of a work in return for granting dissemination and other privileges. These values are also embedded within the context of a globalized technocratic society where information is often imagined as endlessly replicable and remixable (capable of being divorced from its original context and reused in novel applications). In this world, commercial concerns are paramount in shaping the creation, flow, and application of information. These concerns are built into the license choices offered by Creative Commons. Creative Commons offers options for restricting commercial appropriation of content but nothing for addressing other types of concerns and values (moral, spiritual, or even taste).51
Part of their licensing system stems from practical considerations. Creative Commons developers made several judgments about the feasibility of developing licensing terms for different areas of concern. For example, moral rights or author rights (noneconomic rights over works, including the right to maintain the integrity of a creative work from mutilation or distortion) are not directly addressed by Creative Commons licenses. Creative Commons developers felt that crafting licensing terms around this issue would have been too difficult/inappropriate given the wide variability of moral rights across different international jurisdictions. This experience will no doubt provide invaluable guidance in any cultural heritage licensing effort. See Lawrence Lessig's weblog for a fascinating discussion: (http://www.lessig.org/blog/archives/002449.shtml)
Neeru Paharia, License Distribution.
There may be more fundamental value differences between the Creative Commons approach and the world views of people outside its relatively elite, technocratic context. Creative Commons-supported individualistic goals may be at odds with other systems that place culture and expression within webs of social obligations, local systems of authority, rules and traditions, and political struggles.53
M. Brown, “Heritage Trouble.”
Coombe and Herman, “Rhetorical Virtues.”
Open-knowledge advocates favor voluntary Creative Commons–type licenses, because they allow people to share information under terms that are more open and free than the all-rights-reserved terms of standard copyright. By leaving some rights reserved, these licenses do not put information into the public domain. Creators can choose various restrictions and requirements for certain uses of their content.56
G. Brown, “Out of the Way.”
Crafting licenses that are replicated when works are copied and used to create derivative works represents a potentially powerful tool for traditional-knowledge applications. This viral replication of licenses can enable members of indigenous societies to legally shape how traditional knowledge is communicated and applied beyond their communities and beyond individual Web sites or databases. Other aspects of the Creative Commons model may also have relevance. As stated, Creative Commons expresses its licenses in machine-readable metadata, legal jargon, and simplified nontechnical terms. All three aspects are important for wide application. Standard metadata tags enable Creative Commons licenses to function across the many diverse information systems that make up the Internet. The legal code was developed by some of the world's leading intellectual-property legal firms, thus ensuring that the licenses have legal credibility. Human-readable expressions ensure that the terms of the licenses are widely understood and intelligible, both for creators and consumers of content. In addition, Creative Commons has a relatively simple and straightforward process that enables users to choose different licensing options. This simplicity encourages use of licenses customized for different needs and can be extended to newly developed licensing options appropriate for cultural and community heritage.
New traditional-knowledge and data sharing licenses may help remedy current problems by providing a ready-to-use framework where attribution, commercialization, and other use rights can be negotiated and expressed in an easily intelligible manner. By explicitly structuring a flexible set of permissions and conditions among multiple stakeholders, incentives for collaboration and information sharing should emerge. Such a license should be highly customizable to suite diverse needs and contexts.
What would cultural heritage and data sharing licenses look like and how would they be developed? We have compiled some specific options and areas for future investigation, including:
[bull ] Broad-based, stakeholder-driven process: We should establish a broad-based process involving representatives of indigenous communities concerned about traditional knowledge, scholarly societies and their ethics committees, researchers, anthropologists, IP lawyers, and museum and library representatives. Broad-based adoption depends on each community viewing cultural heritage and data sharing licenses as a viable strategy to meet their particular needs and interests.
[bull ] Exploration of common themes and needs: The archaeologist George Nicholas and his collaborators are building a database comprising the IP policies of several traditional communities. His project will provide an important resource for understanding commonalities in the needs and concerns of several indigenous groups and can help guide future licensing efforts.
[bull ] Develop licensing terms to recognize community authorship: In the case of cultural heritage, “authorship” is sometimes distributed across generations and individuals from different communities. This form of ownership lacks explicit recognition in contemporary IP law. Appropriate contractual licensing agreements can promote the recognition and attribution of local communities as trustees and stakeholders of traditional knowledge.
[bull ] Shared stakeholder authorship: Relating to the issue of authorship, we should explore ideas of joint and shared ownership, including rights in trade secrets, trademarks, copyright, and patents. Some stakeholders are concerned about the issue of secret knowledge (locations of sacred sites, some artistic motifs, narratives, and rituals) and time-delayed release of knowledge (e.g., until publication of a synthetic work). These issues should be explored to see if trade-secret law can provide a useful framework for needed protections. One way to approach the secret-knowledge issue from an archival perspective would be to grant people access to different parts of a data archive based on who they are and what their purpose is (later we discuss controversies and problems). For example, users can fill out a form every time they want to do a search, which asks them if the purpose is commercial or not and then give them more or less access based on the terms of the licenses from which the data came. By agreeing to these terms, the licensee then comes under a duty of confidentiality. Violations of this duty could then be enforced either locally or in the licensee's home jurisdiction. This type of restricted access is already in use for some data archives within the field sciences.
[bull ] Protecting Commercial Rights: A common concern regarding traditional knowledge and biological heritage often centers around protections against commercial exploitation.57
M. Brown, Who Owns Native Culture?
[bull ] Possible New Licensing Terms for Cultural Heritage: Several new terms may underlie any new Creative Commons–type cultural heritage license. The suggested terms (following) should be explored in light of case studies and collaborators from indigenous communities:
[bull ] Cultural Integrity: Licensee agrees to maintain the integrity of the information or object as much as possible in its original context; the information or object should not be changed in any way that is inconsistent with the values of the culture from which it came.
[bull ] Reporting Back: Licensee agrees to report back to the licensor at least once every year regarding any new public use of the information or objects covered by this license of which licensee is aware. Report will include, at a minimum, location of use, a brief description of the use, and contact information for at least one person responsible for said use.
[bull ] Cultural Identity/Attribution Term: Licensee agrees to always identify in any subsequent publication, whenever possible, the complete cultural origins of any information or object licensed under this agreement, either as specified in the agreement or based on good-faith efforts of the licensee.
[bull ] Required Translation Term: Licensee agrees to provide to licensor a native translation of every publication in which licensee or any of its sublicensees use information or objects covered under this license.
[bull ] Share-back Term: Licensee agrees to grant identical permissions to licensor for any knowledge, analyses, or products derived from information gained under this license.
We recognize that many of these terms, as currently understood, may appear to some as controversial or vague; in addition, this list is far from complete. As with any limitation on use, there will be some costs involved that will need to be negotiated among the licensors themselves. For example, a translation requirement, while potentially useful and satisfying for the indigenous groups involved, will often be so costly that it may deter potential users from repurposing and disseminating materials from those groups. Thus, such a restriction might reduce global exposure and economic benefits for the groups that could otherwise be enjoyed. The important point is that the creators and indigenous societies must negotiate and decide for themselves what makes the most sense for them. The cultural heritage licenses will hopefully prove sufficiently flexible so that the IP perspectives of indigenous groups can be successfully incorporated into a more widely recognized legal framework.
[bull ] Possible New Licensing Terms for Research Datasets and Dissemination: Several new terms may also underlie any new Creative Commons-type open-access licenses, serving the interests of academic researchers. Thus, opportunities for greater communication and understanding among researchers and indigenous communities can arise from this shared legal framework for open access and IP issues. Some possible terms include:
[bull ] Noncompete/Do not Republish: Licensee agrees not to use the information or objects in this work in any professional scholarly article, book, or presentation without prior permission from licensor.
[bull ] Time-limit: Licensee agrees not to use the information or objects in this work in any publication or presentation within two years of receiving access to said information.
[bull ] Reporting Back: Licensee agrees to report back to the licensor at least once every year regarding any new public use of the information or objects covered by this license of which licensee is aware. Report will include, at a minimum, location of use, a brief description of the use, and contact information for at least one person responsible for said use.
[bull ] Attribution: Licensee agrees to always identify in any subsequent publication, whenever possible, the name and professional affiliation of licensor in conjunction with use of any information or object licensed under this agreement (either as specified in the agreement or based on good-faith efforts of the licensee).
[bull ] Licensing and Prior Informed Consent: These licensing choices can also be discussed in a prior-informed-consent process, where researchers negotiate intellectual-property terms with members of indigenous communities. Given the complications of cross-cultural communication and the widely diverse political, economic and social contexts of research, establishing prior informed consent will often be a difficult process.58
Rosenthal, “Politics, Culture and Governance.”
[bull ] License Enforcement: One issue of concern with such licensing terms, whether for cultural heritage or open access, is that of enforcement. How will people be able to monitor and protect their works from unauthorized use? It's important to recognize that there are already many violations, both intentional and accidental, of the all-rights-reserved IP laws that exist today. The limits on enforcement have more to do with detection of the violators than with successfully defending a claim. We believe that enforcement will actually be much easier with greater dissemination of protected works, simply because there will be more people who will be able to detect violations, be familiar with different works, and be committed towards some-rights-reserved frameworks. When violations are detected, legal enforcement measures can be enacted by members of indigenous communities, advocacy groups, or other organizations.
A recently published paper raises additional points relevant to licensing strategies.59
To avoid such competitive undercutting, Chander and Sunder suggest possible alternatives, such as the use of liability rules and the establishment of international bodies to set fair prices for traditional knowledge. It may be possible to incorporate these ideas in future versions of Creative Commons licenses adapted for traditional knowledge. Such licenses can include a special kind of noncommercial term that may read like:
“This information is traditional knowledge and is owned by (unnamed) indigenous inheritors of this knowledge; any commercial use of this information requires payment of royalties set by XXXXXX (a designated board of indigenous-rights representatives).”
This board would have exclusive rights to negotiate royalties over the information, thereby eliminating the risk of a race to the bottom. Multiple boards may be organized to help ensure that local communities have choice in negotiating bodies. The problem of how royalties get distributed remains to be resolved, probably most effectively by indigenous communities themselves. Note that such a board could also be involved in enforcing the law and setting penalties in a manner similar to tribunals or mediation boards, as suggested by other authors.60
I. Alexander, “White Law, Black Art.”
The success of Creative Commons at encouraging communication suggests that its some-rights-reserved model deserves exploration for both data sharing and traditional-knowledge applications. At issue is how the worlds of individualistic interests and governance found in the World Wide Web (and manifest in Creative Commons) intersect and conflict with the rights of collectivities, the use of public goods, and alternative systems of trust.61
Herman, “Rhetorical Virtues.”
Because this is an active area of research, we anticipate that any cultural heritage license and other licensing terms would see multiple revisions as we gain experience in building collaborative relationships between stakeholding groups. Experimentation with new licensing models will involve uncertainties and unanticipated consequences. These uncertainties require that development should take place within ethical frameworks designed to ensure equitable interactions between members of the research community and members of indigenous communities. As urged by Brendan Tobin, an attorney with great experience in this area, building an inclusive and broad-based process that includes representatives of indigenous peoples is a vital first step. Ideally, this process can be used to create a licensing framework that helps level the playing field and helps balance the inevitable power inequities between negotiating partners. License experimentation should also be guided by the ethical imperatives of the precautionary principle, where participants should avoid potentially damaging uses of traditional knowledge.62
Bannister and Barrett, “Weighing the Proverbial ‘Ounce of Prevention’.”
An iterative process of community evaluation will provide the feedback needed to refine and enhance intellectual-property frameworks, including the effectiveness of any new licensing terms, should they be developed. This evaluation requires application to real-world research data and interaction with both the academic and indigenous communities. By applying the licenses to research data, we will lead the research community by example and provide a proof of concept. Long-term follow-up studies will help evaluate if these licenses do indeed help create incentives for greater information sharing and collaboration with local communities and other interested parties.
Once created, such licensing strategies and frameworks may be of particular use in shaping professional ethical guidelines as well as structuring access and ownership concerns for museums and digital libraries, including such organizations created by indigenous societies. Developments in information-ownership and use-rights can be further expanded to meet the needs of other communities and disciplines as well. Licensing developments may see application with the often contentious arena of bioprospecting, where the interests of biotechnology firms and indigenous cultures sometimes clash. These and other licensing developments will also likely provide an important foundation to explore other biological and cultural heritage IP issues, including patenting and trademarks.
From the open-knowledge perspective, there is very little to be lost in experimentation with cultural heritage licenses. The default setting for all creative works is “all rights reserved” copyright. Opting into open-knowledge frameworks now is strictly voluntary, and even if cultural heritage licenses become more restrictive than many open-knowledge advocates would like, less restrictive alternatives will still remain.
From the point of view of traditional-knowledge advocates, cultural heritage licensing is something more risky and problematic. It entails putting information into global circulation where abuses may occur, and the enforcement of licensing terms will always be less than perfect. While it is conceivable that licensing terms can be developed that have very broad application and meet many needs, there may never be a perfect fit for every conceivable circumstance. Nevertheless, we still see cultural heritage licensing strategies as valuable since they have the potential to provide people with choices. We currently face a binary decision between extremes—either leaving culture vulnerable to exploitation and appropriation or creating legal and technical barriers that hermetically seal bodies of knowledge. Cultural heritage licensing can represent a third option that enables communication to take place along the lines of a negotiated framework.
Perhaps more risk is inherent in the choice of licensing terms themselves. Creating a licensing system that functions on tests of highly politicized aspects of a person's identity (race, ethnicity, religious affiliation, sexual orientation, gender) may be seen as reinforcing social categories often linked with violence and oppression. Permissions and restrictions based on these categories have already been encoded into the metadata protocols developed by the Indigenous Collections Management Project.63
As discussed, some possible cultural heritage licensing schemes may highlight conflicts between indigenous values and other civil rights goals and policies (see also Brown's recent contribution to this journal).64
Brown, “Heritage Trouble.”
Another initial problem will be the startup costs of creating the first licenses. We foresee that a number of intensive rounds of discussion will be necessary within each community to establish baseline terms for a cultural heritage licensing system. The more communities vary in terms of values and needs, the more difficult it will be to develop globally applicable licensing terms. A major challenge will be choosing the “right level” of abstraction and generalization for licensing terms so that they will at least partially, meet a myriad of diverse needs. However, once these baseline terms are established, transaction costs for each subsequent access negotiation should drop dramatically and overall efficiency should increase.
Finally, the potential exists for complex problems regarding enforcement. For countries that have strong contractual or IP laws, this will be less of a problem, but for countries where there are weak legal enforcement mechanisms, cultural heritage licenses may be perceived as worthless or too expensive to use. These problems are beyond the scope of this paper to explore in depth, but some possible solutions would be to either establish jurisdiction for any dispute resolutions in a foreign country with stronger laws, through organizations like the World Intellectual Property Organization, or via the creation of stronger legal regimes in the country of origin.
It is the context of field-based research where much of this discussion has focused. Field research is a process that involves developing relationships among many different stakeholders (researchers, their colleagues and students, and members of local communities). The some-rights-reserved frameworks discussed here can help make building these relationships more equitable and collaborative.
For researchers, especially in the field sciences, a noncompete/do not republish licensing term may have important ramifications for a diversity of disciplines, many of which have the same disincentives for sharing raw data. Effective ecological management and conservation strategies require environmental understanding based on effective data sharing and communication. Structuring intellectual-property incentives along the lines of the some-rights-reserved model should encourage data sharing, which will promote better collaboration across the sciences, leading to more effective research, policy making, and instruction.
With respect to cultural heritage, past and ongoing abuses and perceived abuses of indigenous IP claims have created a regrettable and damaging climate of mistrust and antagonism between researchers and some indigenous communities. Such antagonism has led to increasing calls for restrictions on field science and disputes over the content and application of such science.66
IPCB, CBD'S International Regime: Indigenous Activist Organizations Call for No Access Zones to Genetic Resources and Indigenous Knowledge [Web Page] (Indigenous Peoples Council on Biocolonialsim, February 19, 2004 [cited February 28th, 2005]).
At the same time, attempts to respect and enforce indigenous IP rights and claims run the risk of inhibiting communication, innovation, and freedom by locking away native culture behind rigid legalistic barriers. Culture is continually created, contested, shared, mixed, and hybridized. This process unfolds within and between indigenous communities and with other communities across the globe. Sometimes people choose to hold information secret, sometimes they choose to share information according to culturally diverse rules and motivations. Rigid legal categorizations of elements of culture as belonging to a particular group can inhibit this dynamic process of culture creation, imagination, and communication. Such “reservations of the mind” (as expressed by Michael Brown67
M. Brown, Who Owns Native Culture? 228.
The importance of a vital global information commons must be recognized and is a major motivation for us to discuss traditional-knowledge, intellectual-property concerns along with research-data, intellectual-property issues. It is our sincere hope that voluntary, negotiated some-rights-reserved frameworks may do much to guard against both unfair exploitation of knowledge and rigid and damaging regimes of overprotection. Putting up predetermined barriers that impede communication, balkanize culture, and reinforce cultural and ethnic boundaries would profoundly curtail freedom of expression and inhibit scientific understanding in many vitally significant areas. Ideally, the power to structure how (and even if) communication will take place should be held by its participants. Thus, we see great benefit in the Creative Commons model of some rights reserved, since this model enables people to voluntarily negotiate and set flexible terms and conditions for communication as they deem appropriate.
We would like to thank the participants of the November 19, 2004, meeting hosted by the Alexandria Archive Institute (AAI) for their lively debate, cautionary tales, and suggestions for developing a process to explore cultural heritage licensing. Thanks also to Creative Commons and Science Commons, especially John Wilbanks, Heather Ford, and Lawrence Lessig, for their continued collaboration in this effort. Brendan Tobin, Brewster Kahle, Glenn Otis Brown, Ruth Tringham, Margaret Conkey, Suzanne Calpestri, and Rosemary Joyce also provided substantive and thought-provoking insights, both at AAI-hosted meetings and in informal conversations. Michael Brown, George Nicholas, Julie Hollowell, and Madhavi Sunder deserve special thanks for their invaluable comments and critiques, encouragement, and suggestions on earlier versions of this document. Needless to say, any omissions or errors in this work are solely the fault and responsibility of the authors. Finally, we owe special thanks to the William and Flora Hewlett Foundation for their generous financial support that enables this and other endeavors.