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Current Anthropology Volume 45, Number 3, June 2004
2004 by The Wenner-Gren Foundation for Anthropological Research. All rights reserved 0011-3204/2004/4503-0002$3.00
Copyrighting the
Past?
Emerging Intellectual Property
Rights Issues in Archaeology1
by George P. Nicholas and
Kelly P. Bannister
Rights to intellectual property have become a major issue in ethnobotany
and many other realms of research involving Indigenous
communities. This paper examines intellectual-propertyrights-related
issues in archaeology, including the relevance of
such rights within the discipline, the forms these rights take,
and the impacts of applying intellectual property protection in
archaeology. It identifies the "products" of archaeological research
and what they represent in a contemporary sociocultural
context, examines ownership issues, assesses the level of protection
of these products provided by existing legislation, and discusses
the potential of current intellectual property protection
mechanisms to augment cultural heritage protection for Indigenous
communities.
george p. nicholas is Associate Professor of Archaeology
at Simon Fraser University and the Secwepemc Education Institute
(Kamloops, British Columbia V2H 1H1, Canada [nicholas@
sfu.ca]) and directs their joint Indigenous Archaeology Program.
He holds adjunct faculty positions in the Department of Anthropology
of the University of Massachusetts, Amherst, and the Department
of Archaeology of Flinders University, Adelaide, Australia.
He has a B.A. from Franklin Pierce College, an M.A. from
the University of Missouri, Columbia, and a Ph.D. from the University
of Massachusetts, Amherst. Among his publications are
"Wetlands and Hunter-Gatherers: A Global Perspective" (current
anthropology 39:720­33), "The Past and Future of Indigenous
Archaeology: Global Challenges, North American Perspectives,
Australian Prospects" (Australian Archaeology 52:29­40),
and the edited volume Holocene Human Ecology in Northeastern
North America (New York: Plenum Press, 1988).
kelly p. bannister is Assistant Professor and Post-Doctoral
Fellow in the School of Environmental Studies, University of
Victoria, and Research Associate with the POLIS Project on Ecological
Governance of the Faculty of Law of that university. She
received her B.Sc. (1988) and M.Sc. (1993) degrees from the University
of Victoria and her Ph.D. (2000) from the University of
1. This paper has benefited from discussions with many individuals,
particularly Michael Brown, Julie Hollowell, Jock Langford, Nola
Markey, Claire Smith, and Alison Wylie. We are indebted to Larry
Zimmerman, Peter Whiteley, and five anonymous reviewers for
their useful comments on a previous version. We also extend our
appreciation to the numerous Aboriginal groups and individuals
with whom we have worked and discussed many of these issues.
This work was supported by the Social Sciences and Humanities
Research Council of Canada through a post-doctoral fellowship to
K. P. Bannister.
British Columbia. Her publications include "Indigenous Knowledge
and Traditional Plant Resources of the Secwepemc First Nation,"
in Indigenous Intellectual Property Rights: Legal Obstacles
and Innovative Solutions, edited by M. Riley (Walnut Creek:
AltaMira Press, in press) and (with K. Barrett), "Weighing the
Proverbial `Ounce of Prevention' versus the `Pound of Cure' in a
Biocultural Context: A Role for the Precautionary Principle in
Ethnobiological Research," in Ethnobotany and Conservation of
Biocultural Diversity, edited by T. J. Carlson and L. Maffi (Advances
in Economic Botany 15, in press).
The present paper was submitted 3 x 02 and accepted 15 ix 03.
"Intellectual property" is defined by Dratler (1994:1­2)
as "intangible personal property in creations of the
mind." Intellectual property rights are legal rights to precisely
defined kinds of knowledge. In general, intellectual
property laws "protect a creator's expression in artistic
and literary works, the proprietary technology in
inventions, the words and symbols used to identify products
and services and the aesthetic aspects of product
designs" (Cassidy and Langford 1999:1).
Intellectual property rights are a rapidly expanding
topic of discussion in academic and other circles and a
major issue in ethnobotanical and other research involving
Indigenous communities.2
Interested parties represent
a convergence of natural and social scientists from
government, academia, and industry, members of Indigenous
communities, lawyers, corporate representatives,
environmentalists, and others. Key concerns expressed
by these diverse parties relate to the sociocultural, ethical,
and economic aspects of current intellectual property
rights legislation, among them the implications of
patenting higher life forms (e.g., CBAC 2001, 2003). For
the most part, archaeologists have yet to find themselves
thrust into this complex milieu. We argue that archaeologists
should examine whether and in what ways intellectual-property-rights-related
issues are relevant to
their research, particularly when claims to such rights
may be made by Indigenous peoples affected by that
research.
The absence of archaeologists from the intellectual
property rights debate may be linked to the complexity
of the issues and to the challenges of defining "intellectual
property" beyond the realm of technological innovation
with commercial application. Such is the case
with living systems, where what qualifies as intellectual
property and is protectable by law is continually being
debated and tested, often in the courts.3
Of particular
relevance to archaeology is the application of the idea of
intellectual property rights to the protection of the cul2.
We use "Aboriginal," "Indigenous," and "Native" interchangeably.
"Aboriginal" tends to be used more commonly in Canada and
Australia. In Canada it includes First Nations, Métis, and Inuit.
3. See, for example, Harvard College v Canada (Commissioner of
Patents) 2002 SCC 76. File No. 28155 December 5 (http://
www.texum.umontreal.ca/csc-scc/en/pub/2002/vol4/html/
2002scr4_0046.html) and the reexamination of U.S. Plant Patent
No. 5,751, the "Da Vine Patent" on the Amazonian rain-forest plant
Banisteriopsis caapi, issued June 17, 1986, to Loren S. Miller and
rejected by the U.S. Patent and Trademark Office on November 3,
1999 (CIEL 1999).
328 F current anthropology Volume 45, Number 3, June 2004
tural knowledge and property4
of Indigenous societies.
This application is complicated by a lack of consistent
terminology across interested or affected parties, Indigenous
and non-Indigenous alike. For example, what is it
that needs protecting and from whom? As Mann (1997:
1) notes, "No one definition [of indigenous knowledge]
has been universally endorsed or accepted by either Aboriginal
or non-Aboriginal peoples in Canada. What is
clear, however, is that indigenous knowledge as a concept
concerns information, understanding, and knowledge
that reflects symbiotic relationships between individuals,
communities, generations, the physical
environment and other living creatures, and the spiritual
relationships of a people." Likewise, according to the
Union of British Columbia Indian Chiefs (Hampton and
Henderson 2000:ii), "There is no universally accepted
definition for cultural property. . . . Most academic commentators
assert that Indigenous knowledge issues are
stretching the existing legal categories so that only a
fuzzy line exists between intellectual, spiritual and culture
rights." The foregoing largely concerns living people,
but what of deceased societies? Archaeological research
involving Indigenous societies tends to blur past
and present.
National and international laws protecting cultural
and intellectual property are often seen as inconsistent
with emerging views on what aspects of Indigenous cultural
knowledge and heritage require protection. According
to Battiste and Henderson (2000:145), the problem
involves "negotiating with the modern concept of
property" in that Eurocentric legal approaches "treat all
thought as a commodity in the artificial market"
whereas Indigenous societies tend to see property as "a
sacred ecological order" that should not be commodified.
They suggest further (p. 250) that intellectual property
laws have
problems dealing with forms of knowledge in the
area of high art or high technology (e.g., computer
software and biotechnology). The major push for
amendment of the law comes from the top, so that
areas such as computer technology or biogenetic engineering
are receiving a lot of attention, and the
law is gradually being altered to accommodate these
forms of knowledge. Culture and knowledge on the
"bottom"--where Indigenous knowledge is so often
situated--tend to be ignored.
The perceived inadequacy of applying existing laws to
the protection of Indigenous cultural knowledge and heritage
has led to recommendations for the expansion of
legal definitions and protection mechanisms and calls
for alternative and complementary nonlegal ones. For
4. Bell and Patterson (1999:206) define "Aboriginal cultural property"
as "movable objects that have sacred, ceremonial, historical,
traditional, or other purposes integral to the culture of a First
Nations community and may be viewed as collective property of
an Aboriginal people" and continue: "Aboriginal perspectives on
identification of cultural property and persons with authority to
alienate or convey such property may vary in accordance with the
laws, traditions and property systems of the claimant group."
example, Janke (1998:3) proposes the term "Indigenous
cultural and intellectual property rights" to refer to "Indigenous
people's rights to their heritage," wherein "heritage
comprises all objects, sites and knowledge, the nature
or use of which has been transmitted or continues
to be transmitted from generation to generation, and
which is regarded as pertaining to a particular Indigenous
group or its territory." Artifacts, archaeological sites, and
some types of information generated by archaeological
research clearly fit this definition. In fact, there is a notable
similarity between a statement from Hampton and
Henderson's discussion paper that "generally, cultural
property is anything exhibiting physical attributes assumed
to be the results of human activity" (2000:ii) and
definitions of an archaeological site as "any place where
objects, features, or ecofacts manufactured or modified
by human beings are found" (Fagan 1997:478) and "any
place where material evidence exists about the human
past" (Thomas 1998:95).
In this paper we explore the concept of Indigenous
cultural and intellectual property rights in an archaeological
context. The central questions posed are: What
relevance do intellectual property rights have to archaeology?
What forms do these rights take? How might future
claims to intellectual property affect archaeology?
We begin by describing the "products" of archaeological
research and explaining what they represent in a contemporary
sociocultural context. We assess the level of
protection of these products provided by existing legislation
(specifically, cultural heritage acts) and the potential
of current intellectual property protection mechanisms
to augment that protection. Our focus is on
knowledge and its physical manifestations (such as images
and "art") that are derived from or otherwise pertain
to the past.
We consider also whether and in what way our understanding
of these emerging issues in archaeology can
be informed by trends in related disciplines such as anthropology
and ethnobotany. One possibility is that Indigenous
peoples may seek control of the knowledge and
other products of archaeological research conducted in
their traditional lands--perhaps much as they have of
the results of ethnobotanical research on their traditional
knowledge and plant medicines (Bannister 2000, Bannister
and Barrett n.d., Brush and Strabinsky 1996,
Greaves 1994, Posey and Dutfield 1996). In our final section
we turn to this related academic field for insights
and comparative examples.
The scope of this paper ranges from local to international.
Our examples are drawn from Canada (particularly
British Columbia, where intellectual property
rights are an important topic in current treaty negotiations),
the United States, Australia, and elsewhere. The
implications for archaeology are of regional significance
and global interest.
Michael Brown's (1998) article "Can Culture Be
Copyrighted?" provides an initial point of reference for
nicholas and bannister Copyrighting the Past? F 329
our discussion.5
Copyright is one of several legal instruments
under statutory and common law that can be used
to enforce exclusive rights in the marketplace in creations
that meet certain legal criteria (i.e., novelty and
material fixedness). In particular, copyright protects the
physical expression of ideas but not the ideas themselves
or any substantive or factual information. Ownership of
copyright is established by the author's fixing the work
in a material form and is used to protect rights to novel
literary, artistic, dramatic, or musical works (as well as
computer software). Protection is for a limited term (e.g.,
in Canada, the life of the author plus 50 years).6
Rather
than suggesting that copyright is the only--or the most
appropriate--tool for protecting rights to intellectual
property in archaeology, our title questions the common
perception that this is the case. Other forms of intellectual
property protection that may be relevant to archaeology
include patent, trademark, industrial design, and
trade secret.7
Arguably, some of these mechanisms already
have approximations in Indigenous societies--for
example, family or clan ownership of songs, stories, or
motifs and possession by healers of specialized medicinal
knowledge that is not widely shared within the community.
While ownership is not a Western8
concept,
these examples of Indigenous ownership are not given
legal status in most countries. It is important to distinguish
between creations that are legally protectable under
current legislation and those that are not. Opportunities
or pressure (internal or external) to exploit
ownership rights and privileges for commercial purposes
present challenges to many Indigenous communities--
particularly elders, traditional healers, storytellers, and
other knowledge holders, who must often reconcile their
reservations about sharing cultural knowledge with the
wider society (thereby contributing to recognition and
potential commercial development, as well as misappropriation
or misuse) with cultural beliefs and responsibilities
that embody sharing. Such challenges are complicated
by a widespread lack of understanding of what
can and cannot be legally protected. Archaeology will
not move beyond being a colonialist enterprise unless it
actively seeks to understand the underlying issues of
ownership and control of material and intellectual property
as related to cultural knowledge and heritage.
5. This theme is expanded upon in Brown's book Who Owns Native
Culture? (2003), which is highly recommended as a comprehensive
review and discussion of many key issues.
6. Copyright Act. R.S., c. C-30, s. 1, Canada (http://laws.justice.
gc.ca/en/C-42/37844.html).
7. A patent is the right to exclude others for a defined period of
time (e.g., 20 years in Canada) from making, using, or selling an
invention that involves a new process, structure, or function. A
trademark is a word, symbol, picture, or group of these used to
distinguish the products or services of one individual, organization,
or company from those of another. An industrial design protects
the shape, pattern, or ornamentation of an industrially produced
object. A trade secret is practical knowledge that has commercial
value, provides a competitive advantage, and is not widely known
(Industry Canada 1995, Posey and Dutfield 1996, Stephenson 1999).
8. However limited the term is, we use "Western" here in its usual
colonial/post-colonial sense, as in the distinction between "the
West and the Rest" (Sahlins 1976).
Material property issues have certainly arisen in archaeology
and will continue to frame key aspects of the
discipline. Especially contentious are the repatriation of
artifacts and reburial of human remains (e.g., Bray 2001,
Ferguson 1996, Mihesuah 2000, Rose, Green, and Green
1996). Issues related to intellectual property have been
less prominent,9
although trends in other fields suggest
that this will soon change. This is particularly true in
former colonized lands such as the Americas, Africa, and
Australia, where the archaeological record is mostly the
product of the ancestors of the present Indigenous population(s)
and not that of the dominant culture. Archaeological
research in the latter context is often seen as
appropriating Indigenous knowledge and rights or affecting
the sanctity of Indigenous beliefs--even when the
archaeologists involved believe that they are working to
the benefit of Indigenous communities.
The Products of Archaeological Research and
Their Protection
Archaeology is the study of human behavior and history
through material culture. It is concerned with what happened
in the past, when it happened, and the processes
by which things changed and with the application of that
knowledge in the modern world. The archaeological record
is made up of both the individual and the cumulative
responses of humans to a suite of social, demographic,
cultural, and environmental opportunities over the
course of hours, years, or millennia. Archaeologists seek
to discover and explain this record and the cultural diversity
it represents. The products of archaeological research
thus constitute scientific knowledge in the sense
of understanding the (past) world in new ways and at the
same time reflect the knowledge of Indigenous cultures.
Archaeology is also very much a contemporary sociocultural
phenomenon that seeks to locate, create, classify,
objectify, interpret, and present the past in ways that
reflect the particular views of its practitioners (see Pinsky
and Wylie 1995).10
A key concern in contemporary
archaeology is the degree of participation and control
that Indigenous peoples have over the archaeological process.
In Canada, for example, control issues have centered
on the limitation of access to sites in traditional
territories by way of a permit system (e.g., Denhez 2000).
Little attention has been paid to the products of archaeological
research.
Aside from unearthed artifacts, what is it that archaeological
research produces? In its many forms, archae9.
Asch (1997) has examined the issue of ownership of cultural
property in an archaeological context but not that of intellectual
property rights per se.
10. We are very much aware that archaeology has frequently been
conducted in the context of an unequal power relationship in which
descendant communities have had little participation or say. This
has been true for Native Americans (e.g., Jemison 1997, Watkins
2000) and African-Americans (e.g., McDavid 2002, Singleton 1995).
The situation has changed notably in recent years (see e.g., the Code
of Ethics of the World Archaeological Congress).
330 F current anthropology Volume 45, Number 3, June 2004
ology establishes chronology and precontact history (as
a supplement or a corollary to oral history) and illuminates
the processes by which things have changed. Specific
products of archaeological research take the form
of site reports, site, artifact, and feature descriptions and
classifications, radiocarbon dates, and faunal remains,
among other materials. These are analyzed to produce
information on past technologies, dietary patterns, landuse
patterns, environmental settings, demographic
trends, social relationships, and other topics. Such studies
may have a very short-term focus (e.g., reconstruction
of life at a particular time and place) or a very long-term
focus (e.g., shifts in dietary practices over millennia). A
central question raised by consideration of intellectual
property rights is whose property these products are and
how they are protected.
The lack of explicit consideration of these issues in
archaeology to date is partly the result of a societal perception
that the outcomes of archaeology have limited
practical application. While information of substantial
public value may be produced, archaeologists often have
difficulty communicating the contemporary relevance of
their field.11
Intellectual property rights issues may be
especially relevant in cases where the benefits of archaeological
research are based directly upon Indigenous
cultural knowledge, such as the recognition and restoration
of raised-field farming (Erickson 1998) and chinampas
farming (Coe 1964) in Central and South America.
In such cases, the issues faced by archaeologists may
include (1) publication and ownership of copyright in
books, reports, and articles, (2) access to, public disclosure
of, and ownership of copyright in photographs of
artifacts, (3) fiduciary duties related to the secrecy of
sacred sites, which could also include copyright in maps,
(4) ownership, secrecy, and publication of traditional
knowledge that may result from archaeological research,
and (5) ownership of, copyright in, or trademarks related
to the artifacts, designs, or marks uncovered during archaeological
research.
Archaeological sites represent the major physical manifestation
of cultural heritage for all human societies.
Despite broad concerns with preserving sites, buildings,
and objects of historical or cultural value, the degree of
preservation and protection varies from country to country
and between different states, provinces, and territories.
In the United States, for example, there is extensive
federal cultural heritage legislation, but archaeological
sites on private property are generally not protected (Patterson
1999). The Native American Graves Protection
and Repatriation Act (NAGPRA), which protects human
remains and "associated funerary objects, unassociated
11. For example, the long-term study and excavation of landfills in
the United States by William Rathje has demonstrated their ineffectiveness
and contributed to their redesign (Rathje 1991, Rathje
and Murphy 1992). Carlson's (1995) study of fish remains from archaeological
sites in northeastern North America correlates the
substantial--and anomalous--historic salmon population with the
Little Ice Age cooling, thereby explaining why many expensive
salmon restoration projects may be unlikely to reach projected
goals.
funerary objects, sacred objects, and cultural patrimony,"
also excludes private property.12
In Canada, federal legislation
is very limited, with most heritage protection
being conducted at the provincial level. For example,
under the British Columbia Heritage Conservation Act
of 1996, all archaeological sites, whether on public or
private lands, are protected in principle. There is no provision
for site identification surveys for all proposed developments,
and therefore many sites are lost. Likewise,
artifacts are not covered and are openly bought, sold, or
traded at flea markets, auctions, and other venues.13
Whatever the level of legislated heritage protection, protection
of archaeological materials in the United States
and Canada is based exclusively on the notion of physical
property (e.g., artifacts and sites).
General legislation protecting intellectual property is,
however, extensive in both countries. Thus, it is worth
exploring intellectual property rights from the perspective
of determining whether any aspect of them offers
additional protection to archaeological resources and/or
provides new avenues that Indigenous peoples can pursue
to protect their cultural and intellectual property.
Certain products of archaeological fieldwork and research
are the result of the creative works of past Indigenous
societies. Do they qualify as intellectual property
in a legal sense? Should the descendants14
of those responsible
for the archaeological record have rights to that
record?
To date, applications of intellectual property rights in
fields closely related to archaeology such as anthropology
and ethnobotany have largely been concerned with protecting
traditional knowledge and the related biological
resources (see Bannister 2000, Bannister and Barrett n.d.,
Brush and Stabinsky 1996, Greaves 1994, Posey and Dutfield
1996). Is access to a site by archaeologists any different
from access to traditional knowledge and plant
resources by ethnobotanists? From the point of view of
archaeology, traditional knowledge can be understood as
incorporating historic/modern land-use and health practices,
oral and written histories, and expressions of
worldview. One reason that little attention has been paid
to archaeology may be that only limited material expressions
of potential intellectual property are preserved
in the archaeological record and even that material tends
to be so old as to make issues of ownership moot from
12. "Cultural patrimony" is "an object having ongoing historical,
traditional, or cultural importance central to the Native American
group or culture" (NAGPRA 1990:sec. 2).
13. Export of artifacts out of the province is prohibited by the British
Columbia Heritage Conservation Act, while the export of many
materials out of Canada is regulated or prohibited by the Cultural
Property Export and Import Act.
14. We must be careful about making assumptions as to who the
descendants of a particular population are. In the Kennewick Man
case, there is little scientific evidence that the 9,000-year-old skeletal
remains can be directly related to modern Umatilla and other
claimants. In the case of the Navajo claim to association with Anasazi
sites, archaeological data indicate that it is the Pueblo tribes
that are strongly linked to those sites, the Navajo having moved
into the Southwest only relatively recently.
nicholas and bannister Copyrighting the Past? F 331
a legal perspective. For example, Brown (1998:196)
notes,15
The principal goal of intellectual property laws . . .
is to see that information enters the public domain
in a timely fashion while allowing creators, be they
individuals or corporate groups, to derive reasonable
financial and social benefits from their work. Once a
work enters the public domain, it loses most protections.
I am free to publish Uncle Tom's Cabin or to
manufacture steel paper clips without paying royalties
to their creators, whose limited monopoly has
expired. The same principle applies to prehistoric
petroglyphs or to the "Mona Lisa," both of which
have become part of our common human heritage,
whatever their origins.
Brown's comments raise two important points that
require further examination. First, many Indigenous
groups simply do not accept that their archaeological
past is first and foremost part of a shared human heritage--at
least at the expense of their claims to it. Second,
intellectual property protection has a limited time span
after which the intellectual property becomes part of the
public domain. If "time" is considered largely a Western
construct (Gould 1987, Zimmerman 1987), the phenomenon
it represents may be perceived differently in Indigenous
cultures. In Western society time is viewed as
linear and worldview is characterized by a series of clear
dichotomies: past/present, real/supernatural, male/female,
good/evil, and so on. In many Indigenous societies,
however, not only is there greater flexibility in classifying
the world but the basic conception of time may be
significantly different (e.g., Williams and Mununggurr
1989).16
Where there is no cognitive separation between
past and present, ancestral spirits are part of the present.
This conceptual difference requires us to avoid an exclusively
Western orientation in interpreting prehistoric
lifeways (as in evaluating site significance and the implications
for cultural resource management practices),
and this presents a major challenge to the fundamentals
of intellectual property law. In other words, the petroglyphs
that Brown refers to may be timeless. Thus, intellectual
property laws that are constrained by Western
conceptions of time may be severely limited in utility
and appropriateness to Indigenous cultures.
Given the products of archaeological research, what
are potential points of concern with regard to intellectual
property rights? If other academic disciplines are any indication,
the concerns of the descendants of the people
responsible for the archaeological record may include appropriation,
misrepresentation, or misuse of knowledge,
15. The "Mona Lisa," however, is owned by the Louvre and may
not be entirely in the public domain in a copyright sense. The
museum controls access to it and access to quality reproductions.
Petroglyphs have been trademarked (as official marks) in British
Columbia and therefore are not necessarily part of our common
human heritage.
16. Morris (1984:11), for example, notes that "ancient peoples believed
that time was cyclic in character," ignoring the fact that
many contemporary Aboriginal peoples also believe this.
loss of control of knowledge, and loss of access to the
products of research or their benefits. Non-Indigenous
researchers,17
for their part, fear loss of control, censorship,
or restrictions on use of knowledge--concerns that
relate to suppression of academic freedom and restrictions
on publication, which, in turn, may affect academic
credentials, promotion, and continued research funding.
The issues are not limited to efforts of Indigenous peoples
to control their own past but also surface in religious
contexts. In Israel, archaeology and related research have
been severely limited by objections of ultra-Orthodox
Jewish groups over the sanctity of human remains. As a
result of a 1994 ruling by the Israeli Attorney General,
all human remains must be "immediately handed over
to the ministry of religious affairs for reburial" (Balter
2000:35). This has effectively halted most physical anthropology,
and it extends to remains not affiliated with
the modern Israeli population, including early human
remains.
The issue of censorship will likely be raised more frequently
as Indigenous peoples in many parts of the world
regain greater control over their affairs. Academics are
often complacent about their "freedom" until it is threatened.
With freedom, however, comes responsibility.
Most problems relating to publication of archaeological
data can likely be avoided with some conscientious forethought
and proactive effort. For example, where the potential
for conflict exists, researchers will do well to
work closely with community participants from the start
and make clear what the project goals and products will
be. Researchers should also be clear about how the products
of their research may constitute intellectual property
and whose property this will be.
Claire Smith (1994:96) offers the following position:
My view is that Barunga people have the right to
censor any aspect of my research that they find distressing
or offensive. However, in order to avoid extensive
censoring of the research I designed its parameters
in consultation with them. Having done
this, I do not believe that Barunga people have the
right to decide whether the research as a whole
should be published, unless we had negotiated this
provision prior to the research being undertaken. . . .
Nor do I agree with some Aboriginal people who
maintain that results of research should be owned
by indigenous people. . . . In my opinion the intellectual
property arising from the research belongs to
the researchers involved though they have an overriding
responsibility not to offend the people with
whom they work.
The question raised is whether the intellectual value or
creative contribution of the cultural knowledge being
disclosed exceeds that of the research or transcription
17. Concerns faced by Indigenous researchers would presumably
include some elements from both of these points of view and be
further influenced by whether they were members of the communities
in which they were working. Such individuals may also
expose themselves to criticism for having "sold out."
332 F current anthropology Volume 45, Number 3, June 2004
process. This issue is at the heart of editorial control,
restrictions on publication, and claims to intellectual
property. Who owns the intellectual property arising
from the research is in some cases institution- or funderspecific.
The policies of most academic institutions may
be characterized generally as "institution as owner" or
"inventor as owner," the former clearly limiting the discretionary
power of an individual researcher on the matter
(Bannister 2003).
The desire of many Indigenous peoples to control or
censor information about their past may have two triggers.
One is the largely political motivation to regain
control over their own affairs; the other is a response to
the unwillingness of some archaeologists to listen to
and/or integrate Indigenous perspectives and interpretations
into their own. As Whiteley (1997:203) notes,
"Archaeologists . . . have more often than not systematically
excluded the knowledge and interpretations of
living Pueblo descendants--as they have with non-Western
indigenous peoples worldwide. . . . The intellectual
grounds for exclusion, particularly in the now-old `new
archaeology,' exalt cold `scientific analysis' of mute material
remains over indigenous oral histories: Natives
need not apply." Essentially, the validity of the power
inequities inherent in the conventional academic research
approach (i.e., the archaeologist as expert on Indigenous
culture) is in dispute. It is instructive to examine
some commonalities between academic and
Indigenous communities in the general concerns noted
previously. The ultimate risk to both sides is loss of control
of knowledge. An obvious tension between the different
actors exists in terms of the importance, potential
utility, and meaning of knowledge. In archaeology at
least, this tension is better understood when knowledge
is seen as both part of cultural property and integral to
cultural identity. From this perspective, the appropriation
and commodification of knowledge acquire added
complexity, and control of knowledge becomes vital to
cultural integrity.
Archaeological Research Products as Cultural
and Intellectual Property
Every human society is the embodiment of a particular
system of knowledge. The cultural knowledge possessed
by contemporary Indigenous societies is part of a compendium
of wisdom that extends back through time, a
significant portion of which is represented in archaeological
materials and information. This information not
only reflects what happened and when it happened in
the past but is symbolic of cultural identity and worldview
still important to many of the descendants of the
sites' creators. Archaeological sites thus constitute not
only cultural property but intellectual creations, raising
questions of how archaeologically derived knowledge
contributes to cultural identity and what aspects of cultural
identity qualify as intellectual property. Here we
are referring not to archaeological approaches to cultural
identity (i.e., using archaeology to define ethnicity [e.g.,
Shennan 1989]) but rather to the appreciation of archaeological
material as a component of cultural identity
(Jones 1997) that makes the products of archaeology potential
forms of intellectual property. Archaeological
sites and materials fit the above-mentioned definitions
of Indigenous cultural and intellectual property proposed
by Janke (1998) and Hampton and Henderson (2000) in
their contributions to cultural identity, worldview, cultural
continuity, and traditional ecological knowledge.
cultural identity
Archaeological artifacts and sites have long served as
symbols of national identity worldwide. Stonehenge is
not only one of the best-known archaeological sites in
the world but also strongly associated with British identity
(see Golding 1989). When Rhodesia gained independence
in 1980 and became Zimbabwe, it took its new
name from an archaeological site and chose as its national
symbol a carved soapstone bird from that site. In
many parts of the world, Aboriginal communities relocated
by government mandate, epidemics, or other factors
have retained a strong association with their former
homes, whether through occasional visits or through oral
histories (e.g., Kritsch and Andre 1997, Myers 1986). Artifacts
and heirlooms also play a vital role in the identity
of Indigenous peoples, serving as a link both to past generations
and to the systems of knowledge that sustained
them. This may help to explain the widespread use of,
for example, arrowheads--objects that have likely not
been in use for a century or more--in the contemporary
logos of many Aboriginal groups in North America.
Aboriginal peoples may choose to represent themselves
or seek confirmation of their cultural identity by
continuing to use (or, in some cases, adopting) precontact
objects or traditions (e.g., Merrill, Ladd, and Ferguson
1992). These may include architecture, traditional foods
and cooking practices, and rock art imagery. In the Interior
Plateau of British Columbia, the image of the
semisubterranean pit house (fig. 1) is widely used by the
Secwepemc (or Shuswap) people on letterhead, signage
(fig. 2), sweatshirts, and promotional items. Full-scale
reconstructions of pit houses are found in Aboriginal heritage
parks and communities; some individuals have
even built and seasonally use their own pit houses. Underground
pit-cooking (a practice well-documented in
the archaeological record) continues, although only infrequently,
and pit-cooked food is prized (Peacock 1998).
Pictographs are also widely viewed by Secwepemc and
other Plateau peoples as an important part of their heritage
(e.g., York, Daly, and Arnett 1993), although no new
ones have been painted for many generations. Among
other things, pictographs provide an expression of worldview
and clear indications of a distinctive Aboriginal
presence in the landscape.
nicholas and bannister Copyrighting the Past? F 333
Fig. 1. Reconstructed pit house, Secwepemc Museum
and Heritage Park, Kamloops, B.C. (photo G.
Nicholas).
Fig. 2. Example of stylized pit house used as the logo
of the Secwepemc Museum, Kamloops, B.C. (photo G.
Nicholas).
worldview
Certain types of archaeological sites and artifacts, such
as pictographs, petroglyphs, medicine wheels, vision
quest sites, and burial sites, have long been associated
with the worldviews of Indigenous peoples. While few
of these are still in use today, those that are reflect continued
use since precontact times; offerings are left at
sacred places today much as they have been for possibly
millennia (e.g., Andrews and Zoe 1997). In Australia, the
National Aboriginal Sites Authorities Committee distinguishes
two types of Aboriginal sites: (1) archaeological
sites, whose significance is defined "on the basis of
scientific enquiry and general cultural and historical values,"
and (2) "sites which are the tangible embodiment
of the sacred and secular traditions of the Aboriginal
peoples of Australia." It is noted that the latter sites may
include the former and that the "relative significance of
these sites may only be determined by the Aboriginal
custodians" (NASAC 1991, cited in Ritchie 1994:233).
The role of these types of sites is not necessarily static
but reinterpreted or even augmented to meet current
needs. Dreamtime sites are places in the landscape where
ancestral beings went about creating the land and all it
contained, including themselves (see Stanner 1998). To
Aboriginal Australians, the Dreaming is a timeless phenomenon
relayed through oral traditions linked to specific
places and objects. While most of these tell how things
came into being, they also reflect contemporary issues.
As noted by Chatwin (1987:12), almost anything "can
have a Dreaming. A virus can be a Dreaming. You can
have a chickenpox Dreaming, a rain Dreaming, a desertorange
Dreaming, a lice Dreaming. In the Kimberleys
they've now got a money Dreaming." Contemporary influences
on traditions are also found in North America.
Offerings left at sacred places often include tobacco, pebbles,
and food, as well as coins and other "modern" items.
Such versatility is also seen in rock art, which may include
both an objective record of life in the past (e.g., animals
seen) and a subjective one (e.g., personal visions, dreams,
magic). These images may be interpreted differently today
from when they were created.18
In some places, the tradition
continues of repainting or even painting over old
images (e.g., Chaloupka 1986).
Mortuary practices and the treatment of human remains
are also expressions of worldview, and the reburial
issue goes to the core of worldview and cultural identity
in indigenous societies everywhere (e.g., Bray 2001, Carmichael
et al. 1994, Davidson, Lovell-Jones, and Bancroft
1995, Zimmerman 1997). Cemeteries have long been important
places in the cultural landscape and served as
territorial markers. Some cemeteries have been in use
for thousands of years (O'Neill 1994). Such locations are
of importance to the associated contemporary Indigenous
communities and may also play a significant role
in land claims and political movements.
cultural continuity
Cultural continuity may be reflected in the occupation
of the same lands for millennia, in the retention of the
technologies used in the past to produce the same household
goods (e.g., ceramics in the American Southwest),
and in other ways (e.g., Jones 1997). Archaeological sites
serve as important personal and societal touchstones
(i.e., as links between past and present) that reaffirm basic
values and provide a sense of place. This is indicated
by Chase's (1989:17) observations on the significance of
18. This is likely the case with the Nlaka'pamux elder Annie York's
interpretation of pictographs in her band territory in the Interior
Plateau of British Columbia (York, Daly, and Arnett 1993). The
degree to which her interpretations of imagery match those of its
creators hundreds or thousands of years ago is debatable (Nicholas
2001).
334 F current anthropology Volume 45, Number 3, June 2004
precontact archaeological sites for North Queensland
Aboriginal people in Australia. In cases where the colonial
experience and a century or more of acculturation
have dramatically changed the lives of Aboriginal peoples,
there often remain core cultural values that indicate
the persistence of traditional beliefs and worldview.
These may take the form, for example, of a strong emphasis
on family values and respect for community
elders.
The strong connection between cultural continuity
and Indigenous claims to land and cultural or archaeological
materials has significant implications for the recognition
of ownership in matters of repatriation and reburial.
However, the continuity may sometimes be more
apparent than real; as a result of population movements
in the distant past or historic federal tribal relocation
and the often capricious nature of tribal boundary recognition,
one group may occupy a territory that contains
the archaeological record of another. Even in central Australia,
where until recently the effects of colonialism
were limited, the degree of relatedness between the Aboriginal
Australian groups mapped by Tindale (1974) and
their late Pleistocene predecessors in the area merits
examination.
Where cultural discontinuities are recognized in the
archaeological record, residents of the area may deal with
this information in different ways. For example, the
group may lack any concrete knowledge of earlier residents
and accept the entirety of the local archaeological
record as its own; some Secwepemc people insist that
their ancestors always lived in pit houses and harvested
salmon when the archaeological record suggests that
these are later Holocene developments (Nicholas 2003).
Alternatively, the newcomers may recognize the legacy
of an earlier occupation and integrate knowledge of ancient
unrelated beings into their histories and worldviews
as Hamann (2002) has documented for Mesoamerica.
Finally, the group may consciously co-opt the
archaeological record for cultural or political reasons, as
is the case with current Navajo claims to Anasazi archaeological
sites.
traditional ecological knowledge
"Traditional ecological knowledge" has been described
as an Indigenous system of knowledge that is based on
observation, testing, and replicated results and therefore
directly comparable with "science." Berkes (1993:3) defines
the term as "a cumulative body of knowledge and
beliefs, handed down through generations by cultural
transmission, about the relationship of living beings (including
humans) with one another and with their environment.
[It] is an attribute of societies with historical
continuity in resource use practices; by and large, these
are non-industrial or less technologically advanced societies,
many of them Indigenous or tribal." Traditional
systems of knowledge have become an important subject
of intellectual property rights (e.g., Simpson 1999) and
are increasingly recognized by both Indigenous and nonIndigenous
people as a manifestation of the acquired
knowledge of particular Indigenous societies. This body
of knowledge includes not only the intellectual tradition
itself (i.e., the information preserved and transmitted)
but also the traditional use sites that are the geographic
expression of that knowledge.
Archaeological sites by any definition are traditional
use sites, and therefore the knowledge represented at
these sites is worth considering in the context of cultural
and intellectual property. Various types of sites (e.g., fish
weirs) represent the operation or practice of past landuse
and resource-harvesting practices that, in turn, are
the embodiment of traditional ecological knowledge,
while those of a particular region collectively reflect
compositional and distributional changes that occurred
over millennia as past occupants responded to shifts in
the natural and social environment. Traditional ecological
knowledge is also frequently used by archaeologists
to locate archaeological sites (e.g., Greer 1997). Site information
is typically obtained through interviews with
elders and community members or from published
ethnographies.
Should intellectual components of the archaeological
record such as these be protected as proprietary? If so,
by whom? No explicit protection exists under any provincial
or state heritage protection mechanisms in Canada
or the United States. Most archaeologists, in fact,
may not recognize an intellectual component at all.
However, the situation is likely very different for those
with a vested interest in their own heritage sites. In Australia,
for example, Aboriginal peoples have expressed
concern that "the focus of cultural heritage laws is on
tangible cultural heritage, such as specific areas, objects,
and sites. The intangible aspects of a significant site,
such as its associated stories, songs, and dreaming tracks,
are not protected" (Janke 1998:xxiv; also Roberts 2003).
Even if an intellectual component is recognized, an argument
may be made that the great age of most archaeological
sites puts this information in the realm of shared
heritage, thus making its exploitation legally acceptable.
In the following section we return to the two-sided issue
of control of knowledge in archaeology and evaluate
threats to Indigenous cultural and intellectual property
rights through appropriation and commodification--taking
and affixing a price to what many would consider
inalienable and priceless.
Appropriation and Commodification of the
Past
Appropriation and commodification of cultural knowledge
and property affect the cultural identity and integrity
of contemporary Indigenous societies. Should cultural
knowledge and property be protected from such
exploitation? If so, should protection be from outside
interests only or from all users, including Indigenous
peoples themselves? Mutability (distortions) and transferability
(easy dissemination) may be reasons to explore
the usefulness of intellectual property mechanisms for
nicholas and bannister Copyrighting the Past? F 335
protecting some aspects of cultural knowledge and property
from exploitation. But what if Indigenous groups
want to exploit their own past for commercial gain?19
Should intellectual property laws be used discriminately
to protect the past--to support Indigenous rights? We do
not address these important and complicated questions
here. Rather, our aim is to raise issues and outline potential
consequences of appropriation and commodification
of artifacts and information with the intention of
informing and stimulating discussion in this growing
area of concern.
artifacts
The collection of antiquities extends back in time for
thousands of years (Trigger 1989:27­72). Today, however,
the acquisition of antiquities, often by illegal or unethical
means, is occurring at unprecedented rates to satisfy
the growing interest of collectors and museums in historic
or prehistoric items that are prized for their age,
rarity, exoticness, or "Aboriginalness." Sometimes Indigenous
peoples themselves contribute to the appropriation
and commodification of artifacts; the often impoverished
Indigenous Central and South Americans
known as huaqueros loot tombs and sell the artifacts to
support their families: "Many of Latin America's indigenous
peoples see themselves as the legitimate heirs to
both seeds and artifacts, which are conceived of as ancestor's
gifts, given to humanity by real or mythological
patrons to be harvested, or excavated, as it were, by later
generations" (Matsuda 1998:88). "Subsistence digging"
also occurs in North America (Hollowell 2003, Staley
1993), and its profits may provide the means of acquiring
the knowledge or skills that allow Aboriginal people to
improve their circumstances. Zimmer (2003:306­7), for
example, reports: "Once a young [Native] woman
brought a newly-found artifact to show me, an ivory animal
worth many thousands of dollars on the market. `I
know I shouldn't sell this, Julie,' she said, `but it will
help pay for my college education.' " Subsistence digging
is not limited to Aboriginal peoples, as is evidenced by
the tombaroli of Italy and pothunters in the United
States, and in some cases Indigenous subsistence diggers
do not consider the archaeological remains part of their
culture.
The appropriation and commodification of artifacts
may also take less obvious forms. For example, reproductions
of artifacts in various media and the public dissemination
of information, objects, and images derived
from the archaeological record are often found among
the technologically assisted and mass-produced products
introduced into modern society. These include images
of artifacts and sites, sometimes including those cherished
by or sacred to past or present Indigenous peoples,
19. This is but one facet of a larger and more difficult question: If
a group "owns" or controls its cultural heritage, should it not have
the freedom to do what it wishes with it? Many who agree in
principle with this reasoning are dismayed when it is put into practice
(for example, when repatriated human remains are reburied).
that appear on postcards, T-shirts, and billboards and in
magazine advertisements, books, and films. For example,
Sherwin-Williams uses images of the Upper Paleolithic
Lascaux Cave paintings to sell house paint, and AT&T
digitally inserts its logo into Egyptian tomb carvings.
Through these advertisements, the past is appropriated
and commodified in the sense that it is marketed in ways
parallel to other, original or more contemporary ideas
and resources.
Appropriation and commodification are accompanied
by the objectification of the past--a focus on artifacts
rather than on the people behind them. In a book on the
pictographs of British Columbia, Corner (1968:1) states
that "the freedom to wander unrestricted through the
rugged and beautiful Kootenay country made me appreciate
the feelings of the Indians, and created an intense
interest in their life and culture." He goes on to report
that "a diligent search of the recorded data on pictographs
in North America failed to reveal a simple key
that would unlock the mystery of what these fascinating
paintings really mean,"20
overlooking the possibility that
contemporary Aboriginal peoples could have assisted
him in this effort.
Although anthropologists and archaeologists ought to
be more sensitive than others to issues of cultural appropriation
and commodification, they, too, sometimes
assume that ancient objects become divorced from contemporary
cultural impacts when they enter the public
domain. When a seated-figurine bowl was illustrated on
the program cover of the 1992 Northwest Anthropology
Conference, several First Nations individuals in attendance
considered this use inappropriate because such
bowls still have spiritual value. A similar bowl was illustrated
by Winter and Henry (1997) but only with the
permission of the Saanich Native Heritage Society. Perhaps
the most common example of such appropriation
is the use of artifacts and rock art imagery as part of the
cover designs of books and journals.21
If permission to
reproduce such artifacts is sought, it is generally from
the museum that today curates or owns them.
In marketing the past, the accomplishments of earlier
societies are not only removed from their original physical
and cultural context but sometimes otherwise altered.
The transformation of the unique into the commonplace
radically changes the value of things. For
centuries, the great Renaissance frescoes of Europe could
be viewed only from inside the buildings in which they
were painted. Addressing this point, John Berger (1977:
19) writes: "Originally paintings were an integral part of
the building for which they were designed. . . . The
uniqueness of every painting was once part of the
uniqueness of the place where it resided. . . . When the
20. While many Aboriginal people had commented on the appropriateness
of Corner's book, the recent publication of another book
on British Columbia rock art (Nankivell and Wyse 2003), this one
including GPS locations, has raised the ire of some First Nations.
21. Including American Antiquity, Australian Archaeology, the
Canadian Journal of Archaeology, Latin American Antiquity, the
Mid-Continental Journal of Archaeology, and Northeast Anthro-
pology.
336 F current anthropology Volume 45, Number 3, June 2004
camera reproduces a painting, it destroys the uniqueness
of its image. Or, more exactly, its meaning multiplies
and fragments into many meanings." Berger is writing
here of Western art, but his comments pertain also to
Indigenous representations, both historic and prehistoric.
The same is true of the Upper Paleolithic cave
paintings of Lascaux and of Native American rock art,
all of which were previously part of fixed landscapes.
Regardless of the original intention of their creators,
the appreciation of these representations is very different
when they are widely disseminated--and perhaps even
altered--through a variety of media. The following anecdote
(from Nicholas) illustrates how easy it is to alter
an idea expressed in tangible form, how little control we
have over dissemination of the original idea, and how
difficult it is to make proprietorial claims of an intellectual
nature in various high-tech media:
About ten years ago I was preparing a lecture on
hunter-gatherer economy. I was thinking about "access
to the means of production" and other ideas influenced
by the work of Karl Marx while making
overhead transparencies of !Kung hunters. The next
thing I knew, the old boy's head had been pasted
onto a hunter's body and then onto an Upper Paleolithic
"Venus" figurine. Soon after, I sent copies of
this inspired artwork to several colleagues, including
Martin Wobst of the University of Massachusetts­Amherst,
where I had completed my Ph.D.
Last year I learned from Wobst that my Venus/Marx
figure had appeared on a T-shirt prepared for the
25th anniversary of the department. I was amused
and honored that this late-night whimsy had its 15
minutes of fame. However, in thinking about IPR issues,
I began to wonder where the design on this
shirt might ultimately end up. Perhaps an enterprising
entrepreneur, seeing someone wearing it, will
decide to create a series of T-shirts featuring famous
people on Venus-figurine bodies.
The unauthorized appropriation of Aboriginally produced
images, whether ancient or modern, has been a
topic of discussion in Australia for some time (see Johnson
1996). Much attention has been given to the theft
of Aboriginal design, particularly those created by contemporary
Aboriginal artists. Still another dimension of
this relates to the theft of intellectual property through
the appropriation of Aboriginal art. Brown (1998:219)
notes that in a recent legal case in Darwin the plaintiffs
were "asking the federal court to recognize the clan's
economic and moral rights in the artisťs graphic designs,
rights tied to the clan's territory and ritual knowledge."
At least some pictographs and petroglyphs in North
America represent graphic designs tied to traditional territories
and the ritual knowledge of past people whose
descendants may still occupy that territory. These designs
may subsequently appear in books and other me-
dia,22
seldom with attribution to the traditional peoples
concerned.
Even when there is approval by Aboriginal persons for
the publication of such images or interpretations thereof,
is the approval at the level of family, community, tribe,
or nation? In some cases it may be Aboriginal peoples
themselves that commodify the past. For example, the
native people of St. Lawrence Island, Alaska, have been
digging and selling artifacts from their ancestral sites for
many years (see Hollowell 2003, Hollowell-Zimmer
2001, Staley 1993, Zimmer 2003). However, as Zimmer
(2003:307) notes, "Perhaps a Euro-American notion in
which objects of material culture are venerated as `heritage'
is somewhat foreign to a people whose heritage is
performed and experienced in daily practices like speaking
their own language, whaling, eating Native foods,
and drum-dancing sans tourists."
Appropriation of the North American archaeological
record has been facilitated by Indigenous and non-Indigenous
parties alike. One example involves the Zia Pueblo
sun symbol. Zia Pueblo has demanded $73 million from
the state of New Mexico for the use of its zia sun symbol
on the state flag. The symbol, adopted by the state in
1925, had been developed by Harry Mera, a physician
and anthropologist at the Santa Fe Museum of Anthropology,
on the basis of a pot on display in the museum
that had been made by an anonymous Zia potter in the
late 1800s (Healy 2003). (The symbol had likely appeared
much earlier.) Another example concerns the cancellation
of a mural of images from Pottery Mound ruin commissioned
for the new archaeology building at the University
of New Mexico in deference to objections raised
by Acoma Pueblo. Pottery Mound is an 800-year-old site
near Albuquerque that was excavated in the 1950s and
1960s. The Acoma admit that their ancestors had nothing
to do with the artwork at the site. A statement by
the muralist, Tom Baker, raises an important point beyond
the issue of political correctness: "Public Mound
images were excavated by a taxpayer-supported institution
on public land, and thus are public property" (Duin
2003).
information
What has occurred with material property is also occurring
with the know-how of Indigenous peoples. Knowledge
that was once restricted to specific cultural systems
has now been made widely available, seldom because of
decisions of the communities themselves. Immense public
interest in things Aboriginal has for centuries
prompted collection, study, and even imitation of Native
curios and lifeways. This interest is increasingly specialized
through fields like anthropology, which aims to
understand the totality of humankind through detailed
22. The cover of Australian Archaeology shows two stylized human
figures that are based on but not direct copies of rock art images.
Amy Roberts (personal communication, 2001) notes that Aboriginal
people have complained but thinks that this "has to do with the
figures' being naked." In 2000, the Australian Archaeological Association
membership voted to keep the design.
nicholas and bannister Copyrighting the Past? F 337
studies of selected societies, often in collaboration with
representatives of those societies. In some cases information
recorded by anthropologists has been of immense
value to community members decades later; that collected
and published by Franz Boas (1897, 1969 [1930])
has aided the Kwakiutl of British Columbia in restoring
aspects of their ceremonies that had been outlawed in
1885 (Holm 1990). Until the Indian Act was revised in
1951, it was illegal to hold certain ceremonies; individuals
or communities who persisted were often jailed and
their masks, regalia, and other items confiscated.23
For
the almost 70 years in which they were banned, potlatches
and Winter Dances continued secretly, but many
of their components were changed or lost in the process.
The detailed information collected by Boas and his assistant
George Hunt has thus become a vital source for
those interested in restoring the ceremonies to their original
form. Intellectual aspects of cultural property and
cultural identity have been appropriated and sometimes
commodified in various ways, including traditional use
studies, use of human remains, cultural reconstructions
of life (i.e., cultural tourism/living museums), and applications
of archaeological research results to modern
problems.
Traditional use studies. In British Columbia between
1995 and 2000, provincially funded "traditional use studies"
provided Aboriginal communities with the "opportunity"
to identify and map the cultural resources in
their territories systematically.24
Through these studies,
site-specific biological and cultural information on traditional
activities was compiled by the participating
community and/or hired consultants. As part of the associated
"sharing agreement," the resulting data were
submitted to the Provincial Heritage Registered Database
for use in the governmenťs natural-resource management
decisions. Information-sharing agreements
were established through a memorandum of understanding
between the province and the Aboriginal community
as part of the final phase of the study (i.e., after the data
had been compiled), but an interim sharing agreement
(signed by all parties prior to the initial phase of the
project) was required for final project funding. Sharing
agreements addressed the storage and distribution of inventory
data, confidentiality and security, and continued
reporting and management of information (Aboriginal
Affairs Branch, Ministry of Forests, TUS Program 1996,
cited in Markey 2001:71). Issues of data ownership and
intellectual property rights were not specifically ad23.
Many of these materials became part of the collections of the
National Museum of Man and the Royal Ontario Museum, among
others (Lohnse and Sundt 1990:92).
24. These land-use and occupancy studies (cancelled in 2002) were
a product of British Columbia government policy responses to legal
obligations in land-use management as defined by the Court of
Appeal in Delgamuukw v The Queen (1993) (Culhane 1998). The
goal of the program was "to inventory TUS data to provide the
province and industry with the tools to facilitate meaningful consultation
with participating First Nations in land use planning" as
well as to "[assist] First Nations participating in the treaty process,
[and develop] cultural education and capacity" (http://www.for.gov.
bc.ca/aab/int_msrs/pim_tus.htm).
dressed--a serious omission that was recognized by
many First Nations and made them unwilling to participate
because of uncertainty about the future use of the
data. In her critical analysis of the traditional use study
as a model for data gathering and interpretation of traditional
ecological knowledge in British Columbia, Markey
(2001:14) concludes that such studies "continue to
produce inventory-based data, reflecting minimal concern
for Aboriginal perspectives and knowledge by taking
cultural information out of context."
Appropriation of human remains. The Kennewick
Man controversy (Chatters 2000, Preston 1997) has become
a landmark case on the disposition of prehistoric
human remains. Aboriginal groups in the Northwest
have argued in the courts since 1996 that the remains
of this 9,000-year-old individual should be repatriated
and reburied under the provisions of the NAGPRA,
which states that Aboriginal human remains must be
turned over to the representative Aboriginal group where
affinity can be determined. A group of archaeologists has
countered that because of their great age these remains
cannot be related to the Aboriginal groups laying claim
to them and has sued the U.S. government for the right
to study them (Bonnichsen v United States, 969 F Supp
628 [1997])25
--essentially asserting themselves as the
rightful owners or stewards of the information contained
in the skeletal remains. In September 2000 a federal judge
ruled that the remains were to be turned over to the tribal
claimants. The case was subsequently appealed. In August
2002 U.S. Magistrate John Jelderks ruled that the
skeletal remains could be studied by the archaeologists.
The ultimate fate of the remains and the information
they embody is uncertain; an appeal of the decision is
planned by the tribal claimants.26
This case has obvious
implications for the appropriation of material property
and, pending the results of legal decisions on ancestry
and custodianship, may raise issues of intellectual property
in relation to the appropriation of Indigenous world-
view.
Reconstruction of Indigenous lifeways. Cultural tourism
has become a significant industry worldwide, and
living museums and theme parks are widespread. Many
of these include reenactments of life in the past utilizing
speech and people in period clothing to represent both
the colonizers and the colonized. The "best" of these
include or are led by bearers of the culture involved,27
25. D. Ore (1997), cited in the final court brief (http://www.
kennwick-man.com/documents/doi.html).
26. Non-Aboriginal organizations have also made claims, including
the Asatru Folk Assembly, which insists that the remains are those
of an ancient European: "the Asatru Folk Assembly . . . practices
an ancient religion known as Asatru, with roots in northern Europe.
. . . Asatru emphasizes the spiritual importance of ancestral bonds.
Since Kennewick Man may well be related to modern-day people
of European descent, the AFA filed suit in 1996 in federal court to
prevent the U.S. government from giving the skeleton to local Indian
tribes, and to ensure the remains were studied and results
released to the public" (http://www.runestone.org/kmfact.html).
27. For example, those of African-American slaves at Colonial Williamsburg
(Virginia) offered through an interpretive program called
"The Other Half Tour."
338 F current anthropology Volume 45, Number 3, June 2004
Fig. 3. Campfire, from the series Karl May Festival, by Andrea Robbins and Max Becher 1997­98 (reproduced
by permission of the photographers and courtesy of Sonnabend Gallery, New York).
but some of them blatantly exploit and stereotype Indigenous
peoples. Living museums allow visitors to take
home the experience of an "authentic" (and safe) encounter
with the Other. There is also today a proliferation
of Aboriginal heritage parks, tours, workshops, and
"experiences" that are Aboriginally conceived, developed,
and run.28
The way in which Aboriginal communities
choose to present themselves is critical to whether
the experience is appreciated by visitors as one of cultural
education and sharing or criticized as cultural
"prostitution."
Other examples are worth noting. The German Indian
clubs (Calloway, Gmunden, and Zantop 2002, Robbins
and Becher 1997­98) consist of individuals who "play
Indian" at several removes from the Native Americans
they emulate (fig. 3). Going a step farther, the Smokis of
the American Southwest have actually appropriated and
violated Hopi ceremonies. Founded in 1921 by white
businessmen, the Smokis put on public performances
28. For example, Xa`:ytem (Hatzic Rock) and Tla-o-qui-aht cultural
tours by Tla-ook Adventures in British Columbia and the co-managed
Kakadu National Park in Australia.
that are essentially parodies of the Hopi Snake Dance
(Whitely 1997:178). Added to threats to the sanctity of,
loss of access to, or destruction of sacred places (e.g., Mt.
Graham, Arizona) and the commodification of religious
objects, symbolism, and artifacts (Whiteley 1997; Pearlstone
2000, 2001), these activities leave little of the cultural
knowledge and property of Southwestern Indigenous
peoples unscathed.
Applications of archaeological research. Two types of
archaeologically derived information have particular relevance
in the modern world.29
The first is information
derived from studies of long-term shifts in subsistence
practices or settlement patterns, which can be used to
evaluate the potential impact of climate change on modern
populations. The second is information on prehistoric
technology. Both types may be appropriated and
commodified.
One example of the development of new ideas through
archaeologically obtained knowledge of prehistoric tech29.
Archaeological information is also relevant to other realms,
such as education.
nicholas and bannister Copyrighting the Past? F 339
nology is the use of obsidian blades as surgical scalpels.
Obsidian was widely utilized for stone blade production
in many parts of the world. Aware that such blades had
an edge up to 1,000 times sharper than surgical steel,
Payson Sheets (1989) developed obsidian scalpels for use
in eye surgery, where the shaper edge promotes faster
healing and reduces scarring. Even though stone blade
production was practiced by virtually all past human
societies, this technology was potentially patentable because
it represented a new use.30
Other modern flintknappers
had observed how quickly obsidian cuts healed,
but Sheets was the first to capitalize on it. Another example
is the reintroduction of raised-field farming techniques
by Clark Erickson and his colleagues as a means
of assisting native communities to improve their agricultural
yields. There is extensive archaeological evidence
of raised fields throughout Central and South
America (Parsons and Denevan 1967), but this technology
appears to have fallen out of use until it was promoted
by Erickson and his colleagues (Erickson 1998).
This is not the case with the chinampas, a type of raisedfield
farming constructed in swamps (Coe 1964), that
were the economic basis of the Aztec economy in Mexico
and of other societies in Central and South America and
have continued to be used to the present and introduced
into new areas. Does the reintroduction of forgotten
raised-field farming represent intellectual property? If so,
for whom--the archaeologists or the descendants of the
people who developed the technology in the first place?
Erickson's (2000) more recent work on precontact artificial
fisheries in the Bolivian Amazon suggests yet another
area of potentially commercially valuable Indigenous
knowledge.
So far we have explored the notion that some products
of archaeological research represent cultural and intellectual
property according to Janke's (1998) definition
and outlined some of the ways in which archaeologically
derived knowledge has been appropriated or commodified.
We next focus on the means by which Indigenous
peoples are seeking (or may seek in future) to regain control
over this knowledge through existing legal rights,
including intellectual property ownership mechanisms.
Who Owns the Future?
"Everyone now speaks of their culture," says Sahlins
(1999:x), "precisely in the context of national or international
threats to its existence. This does not mean a
simple and nostalgic desire for teepees and tomahawks
or some such fetishized repositories of a pristine identity.
A `nai¨ve attempt to hold peoples hostage to their own
histories,' such a supposition, Terence Turner remarks,
would thereby deprive them of history. What the self30.
On the basis of a search of the U.S. Patent Office database (http:
//www.uspto.gov/patft/) and personal communication with a representative
of Fine Science Tools Inc., a Vancouver-based company
that currently sells "Stone Age scalpels" made from obsidian (http:
//finescience.com/fst/ScalpelsKnives/10110-01.html), we conclude
that obsidian scalpels were not patented.
consciousness of `culture' does signify is the demand of
the peoples for their own space within the world cultural
order." A strong association between cultural knowledge
and cultural identity is reflected not only in a society's
material culture (e.g., the pit house in Interior British
Columbia) but in the intellectual aspects of cultural
traditions. Language, for example, is a very important
contributor to Indigenous cultural identity (see Maffi
2000). Given the strength of this association, it is clear
why control of knowledge is at the heart of the issue--
not simply for economic reasons but because control is
integral to the definition or restoration of cultural identity
for present and future Indigenous societies.
It can be argued that whoever owns (or controls records
of) the past also owns or otherwise shapes the future of
that past. Archaeologists have, to date, controlled the
dissemination of information derived from the archaeological
record through publication practices, restriction
of access to site locations, and other means. While this
management of knowledge has done much to help preserve
archaeological resources, it has had several drawbacks.
For one, much information has been kept from
Indigenous communities, often inadvertently. Since archaeologists
are in the position to choose what they will
or will not publish, information potentially useful to Indigenous
peoples may simply not be available because it
fell outside of the interests of the investigator and was
not pursued. Access to knowledge is obviously the first
of several key steps in establishing control of it. Yet publication
itself is a double-edged sword in terms of sharing
research findings versus protecting knowledge from
third-party exploitation (see Bannister 2000; Bannister
and Barrett 2001, n.d.; Laird et al. 2002). Beyond simply
relying on heritage protection legislation, is it possible
to increase Indigenous control of cultural knowledge and
property through existing intellectual property laws and
complementary nonlegal tools? If so, what are the implications
for future archaeological research? In this final
section, we explore several current examples that may
begin to elucidate answers to these complex questions.
control through contracts and local
protocols for research
Examples of Indigenous groups' seeking to control access
to and/or use of their past are definitely on the rise.
Brown (1998:194) cites a 1994 letter to several museums
from the chair of the Hopi Tribe that "states the tribe's
interest in all published or unpublished field data relating
to the Hopi, including notes, drawings, and photographs,
particularly those dealing with religious matters." He
notes also that
the Hopi initiative was soon followed by a declaration
issued by a consortium of Apache tribes demanding
exclusive decision-making power and control
over Apache "cultural property," here defined as
"all images, text, ceremonies, music, songs, stories,
symbols, beliefs, customs, ideas and other physical
and spiritual objects and concepts" relating to the
340 F current anthropology Volume 45, Number 3, June 2004
Apache, including any representations of Apache
culture offered by Apache or non-Apache people (Inter-Apache
Summit on Repatriation 1995:3).
An important question to consider is to what degree archaeological
research products might be included here.
Local Indigenous protocols are increasingly being used
as the basis for research contracts or agreements between
the communities and outside researchers. Protocols have
been developed by many Aboriginal groups in British
Columbia, and some require a permit in lieu of one issued
by the B.C. Heritage Branch under the Heritage
Conservation Act. The Sto:lo Nation, for example,
states: "We hereby declare that all artifacts recovered
from our traditional campsites, ceremonial sites, villages,
burial grounds and archaeological sites are the
rightful property of the Sto:lo people" (quoted in Mohs
1987:169). The protocol of the Cultural Resources Management
Department (CRMD) of the Kamloops Band,
Secwepemc Nation, contains even more inclusive terms
and provisions for an archaeological permitting system,
stating that "all data, maps, journals, and photographs,
and other material generated through or as a result of
the study are the exclusive property of the Band," that
"there shall be joint copyright between the Permittee
and the Band over any such publications, unless otherwise
agreed between the parties," and that "all material
found or generated by the proponent as a result of heritage
investigations shall be deemed the property of the
Kamloops Indian Band." How effective is this agreement,
and what rights are ceded upon signing? The provisions
of the archaeological permit refer to physical property/
results but do not specifically mention intellectual property
ownership aside from "joint copyright." The provisions
do, however, specifically include "data," and the
fact that the term is not defined enables the Kamloops
Band to interpret it broadly, perhaps allowing some forms
of intellectual property to be included.
Should such permits explicitly include reference to intellectual
property rights? If so, is it possible or likely
that at some point a contemporary Aboriginal group will
lay claim to a major archaeological site and exercise exclusive
control over the site name, images of the artifacts,
or related items? What if there are competing interests
due to overlapping land claims (e.g., Franklin and
Bunte 1994)? These are complex control issues that have
yet to arise. It is important to note, however, that regaining
control, such as repatriation of human remains,
is often just the beginning of a series of related challenges;
control of knowledge or resources without the
capacity to manage them can have significant consequences.
As Winter and Henry (1997:222) note,
An associated issue is the intrinsic power of excavated
materials. While the [Saanich] Society has a
responsibility for the preservation of artifacts of cultural,
artistic, and historical value to the Saanich
people, in some cases it is difficult to accept such
objects. Some artifacts carry with them a constellation
of responsibilities. To accept care of certain artifacts
brings onerous cultural and spiritual obligations.
Some need extensive ritual care. Some
artifacts may only be returned to individuals who
are culturally appropriate by reason of family, lineage,
gender, or initiation. Such people may not be
available, or may not be willing to personally undertake
the effort and personal expense.
control through intellectual property
ownership mechanisms
Beyond contractual approaches to controlling Indigenous
cultural and intellectual property, existing intellectual
property ownership tools are beginning to be employed.
Academic researchers are increasingly required to negotiate
issues related to publication, including standard
copyright issues (authorship and moral rights), editorial
control (restrictions on publication), and benefit sharing.
For example, "joint copyright between the Permittee and
the Band" for all resulting publications is required by the
heritage investigation permit of the Kamloops Indian
Band referred to above. With most archaeological
publications, copyright is held by the publishers. With
greater collaboration between archaeologists and Aboriginal
communities, publishers will need to accommodate
the need for more flexible copyright arrangements.
This is already under way with some ethnobotany
publications (e.g., Turner 1997, 1998). Furthermore,
some archaeologists have turned over copyright to
the Indigenous peoples with whom they work (e.g., Roberts
2002). Sharing or transferring copyright may require
(and benefit from) review by the community collaborator(s)
prior to publication--an extension of existing concepts
of peer review to include community experts. Such
collaborative approaches to publication, however, often
require additional time. Another issue is copyright ownership
and access to photographs of Aboriginal designs,
which raises the question which of these is the true creation
or artistic work, the design or the photograph. Here
one could suggest a parallel with the patenting of isolated
and purified plant chemicals by drug companies that use
cultural knowledge as a guide; which creativity is most
deserving of protection, the laboratory manipulation or
the original knowledge?
Trademark is also gaining recognition as a potentially
useful legal tool for protecting Indigenous images and
designs. For example, several members of Pauktuutit, a
Canadian Inuit women's organization, are currently examining
how a variation on trademark that they term a
"cultural property mark" might be employed to protect
the amauti, an innovative traditional form of clothing
with both practical and holistic attributes. The concept
of a cultural property mark is similar to a trademark but
would apply to the collective knowledge of Indigenous
peoples rather than the knowledge of individuals or corporations
(Blackduck 2001a, b). Aboriginal groups in
British Columbia such as the Cowichan Band Council
have registered certain words as "certification marks"
(another form of trademark) for commercial use. For ex-
nicholas and bannister Copyrighting the Past? F 341
ample, "Cowichan," "Genuine Cowichan," and "Genuine
Cowichan Approved" are registered for use in the
marketing of handmade clothing created by Coast Salish
knitters using traditional materials, methods, and pat-
terns.31
These marks have potential application in the
protection or promotion of other aspects of cultural heritage.
While trademark use typically involves protection
of exclusive rights to an image intended for commercial
purposes, defensive uses of trademark law have been documented.
In February 2000 the Snuneymuxw Nation
successfully registered some ancient petroglyphs in their
traditional territory as "official marks" to prevent their
being copied and reproduced by anyone for any purpose,
arguing that they are sacred and copying them for any
reason would be sacrilegious (Associated Press 2000,
Tanner 2000). The Comox Indian Band has protected the
place-name of a sacred site, Queneesh,32
as an official
mark.
Patents may seem unrelated to archaeological research.
At the molecular level, however, archaeological
research may involve the recovery of ancient DNA, a
potentially patentable material.33
DNA has, for example,
been extracted from 8,000-year-old brain tissue (Doran
et al. 1986). Access to and study of DNA from contemporary
populations is a very contentious issue, in part
because it brings up serious issues of privacy and prior
informed consent but also because the genetic information
derived through analysis may be seen as a valuable
commodity. Given that human genetic material is
patentable in Canada, the United States, and many European
countries, one can speculate that if, for example,
ancient DNA from prehistoric human remains were to
play a critical role in informing future medical treatments
for contemporary diseases there might be important
issues to be resolved regarding both cultural heritage
and intellectual property rights. At best, intellectual
property and other laws offer a piecemeal approach to
protecting certain aspects of cultural heritage. This contrasts
with the blanket approach that Brown (2003:209)
calls "total heritage protection" and describes as "a benign
form of quarantine that safeguards all elements of
cultural life. Entire cultures would thus be defined as
off-limits to scrutiny and exploitation. Within this sheltering
umbrella, communities would remain free to devise
appropriate ways to defend their philosophical or
31. Canadian Intellectual Property Office web site (http://strate-
gis.ic.gc.ca/SSG/0792/trdp079217400e.html).
32. Canadian Intellectual Property Office web site (http://strate-
gis.ic.gc.ca/SSG/0908/trdp090857300e.html).
33. For example, deCODE Genetics of Delaware has been creating
databases of Icelanders' genes and their medical and genealogical
records. The company cross-references these data and markets
them and other bioinformatics software products to drug developers
(Industry Standard web site [http://www.thestandard.com/companies/dossier/0,1922,276205,00.html]).
DeCODE "will license the
genes that it discovers (all of which it intends to patent) to drugmakers
only if they agree to provide medicines developed as a result
to all Icelanders without charge" (Gibbs 1998). The Mannvernd
Association for Ethics in Science and Medicine in Iceland is opposing
the databases through a lawsuit on the grounds that they
violate human rights (http://mannvernd.is).
scientific or artistic achievements." He points out the
contradictions inherent in this approach (pp. 217­18):
To defend indigenous peoples, it promotes official
boundaries that separate one kind of native person
from another, and native persons from non-native
ones, thereby threatening the fluidity of ethnic and
family identities typically found in aboriginal communities.
In the name of defending indigenous
traditions, it forces the elusive qualities of entire
civilizations--everything from attitudes and bodily
postures to agricultural techniques--into ready-made
legal categories, among which "heritage" and "culture"
are only the most far-reaching. In the interest
promoting diversity, Total Heritage Protection imposes
procedural norms that have the paradoxical effect
of flattening cultural difference.
While much of the recent intellectual property rights
discussion has centered on the use or expansion of existing
legal mechanisms, Brown (1998:199) contends that this
strategy serves primarily to "convert information into
property" but that "property discourse replaces [emphasis
ours] what should be extensive discussion on the moral
implications of exposing Native people to unwanted scrutiny,
on the one hand, and sequestering public-domain
information, on the other." We strongly support Brown's
call (p. 202) for "public discussion about mutual respect
and the fragility of native cultures in mass societies."
Given that the establishment of an adequate process for
such a dialogue has been slow, however, we suggest that
the existing legal and nonlegal protection mechanisms
discussed herein merit consideration.
cultural prospecting? lessons from other
disciplines
Non-Indigenous archaeologists have long held a monopoly
on the recovery of prehistoric materials and scientific
knowledge of past peoples. In general, they have also
profited the most from archaeological research in the
sense of creating personal careers and building their professional
field. Indeed, archaeological exploration of the
past could be viewed as cultural prospecting, parallel to
biodiversity prospecting. This being the case, are there
lessons to be gleaned from the current intellectual property
rights debate in ethnobotany? Archaeology is based
on physical evidence that is often seen as lacking in contemporary
value. In contrast, the intellectual contributions
(e.g., language, traditional plant knowledge) of living
Indigenous societies are integral to ethonobotany and
are in many cases highly regarded in contemporary human
and environmental health applications. Some archaeological
research products are protected by federal,
state, or provincial laws. While such legislation appears
to be inadequate to protect cultural and intellectual property,
it is often supplemented by well-developed local
protocols, contracts, and/or permit systems. By comparison,
no provincial or federal policy in Canada specifically
limits access to or use of ethnobotanical knowledge
342 F current anthropology Volume 45, Number 3, June 2004
or plant biodiversity on public lands. The ethnobotanical
research policies and guidelines that have been developed
are mainly institutionally derived (i.e., university,
industry, professional society). Relevant international
statements and declarations are emerging (e.g., Kari-Oca
Declaration 1992, Mataatua Declaration 1993), but protocols
developed by Indigenous groups themselves are
largely recent developments.34
Through publication of their data, archaeologists increase
access to the historical record, as archaeological
information is often not readily available to communities.
Not surprisingly, copyright relating to the publication
of results has been largely perceived as the main
intellectual property issue, although there is the potential
for patent issues and trademark applications are
emerging. Indeed, if marketers can seek and often gain
legal protection of "proprietary" phrases, symbols,
names, and even odors (see Brown 2003:76), then the
notion of Indigenous peoples' seeking protection for
medicine wheels, rock art, or other aspects of their cultural
heritage cannot be viewed as outlandish or unprecedented.
In ethnobotany, by comparison, publication
raises important issues (see Bannister and Barrett n.d.,
2001; Laird et al. 2002), but copyright is viewed as inadequate
protection in that it serves only to limit the
physical reproduction of published works rather than
protecting their intellectual components. Copyright is
also very difficult to monitor or enforce. Patents are the
mechanisms of choice for researchers interested in protecting
intellectual property rights to "inventions" with
commercial potential based on traditional plant knowledge.
Ethnobotanists are increasingly having to consider
patent issues and trade secrecy (fiduciary duty) in connection
with traditional medicines or foods.
Significant differences between archaeology and ethnobotany
are obvious in the types of information sought
and the ways in which that information is utilized. Archaeology
and ethnobotany approach intellectual property
issues from opposite ends of the spectrum--archaeology
from the material record of past culture with
supposed limited present use and ethnobotany from the
intellectual aspects (and related biological resources) of
living (or recently living) peoples with perceived high
contemporary value. Perhaps the two disciplines can inform
one another. Archaeologists have the potential to
become leaders in dealing with issues of intellectual
property rights in their own field by becoming aware of
debates in related disciplines and considering their
implications.
34. Examples of protocols or guidelines developed by indigenous
groups include Guidelines for Respecting Cultural Knowledge
(Alaska Native Knowledge Network) (http://www.ankn.uaf.edu/
standards/knowledge.html), Mi'kmaq Research Principles and Protocols
(http://mrc.uccb.ns.ca/mci/default.htm), Code of Ethics for
Researchers Conducting Research Concerning the Ktunaxa Nation
(http://www.law.ualberta.ca/research/aboriginalculturalheritage/
casestudies.htm), and `Namgis First Nation Guidelines for Visiting
Researchers/Access to Information (http://www.law.ualberta.ca/
research/aboriginalculturalheritage/casestudies.htm).
costewardship of the future
Unless archaeologists consider the implications of existing
intellectual property laws and the subject matter
that might lead to intellectual property disputes (e.g.,
publication of academic research, fiduciary duties with
regard to secret knowledge, reproduction of images of
cultural artifacts or symbols, use of traditional knowledge
derived from archaeological digs) they may be
caught unawares by restrictions on data access or use
imposed on them by tribes that have gained legal rights
or developed the capacity to conduct research on their
own. The situation is analogous in some respects to the
events leading up to drafting of the NAGPRA. For decades
professional archaeologists and their antiquarian
predecessors were complacent about the recovery and
treatment of human skeletal remains, assuming that
they had the unlimited right to claim these precontact
materials for their own use and that Native Americans
had little or no interest in those materials (see Thomas
2000 for overview). Those who held this view were
"shocked and outraged" by the ease of passage of this
powerful piece of legislation (e.g., Meighan 1992).
We advocate a more active role for archaeologists
working with Indigenous peoples (or on Indigenous territories)
in considering the implications of their research.
We believe that solutions to disputes between archaeologists
(or archaeology) and tribes will be found in the
recognition of what archaeological knowledge means
and what control of that knowledge means beyond simply
economics or professional rewards and advancement.
There must be recognition of ethical obligations at both
the individual and the collective level. Adopting participatory
research approaches, supporting meaningful collaboration
with Indigenous colleagues, sharing decisionmaking
responsibilities and benefits in research
processes and outcomes, and working cooperatively with
all those who have an interest in Indigenous cultural
heritage will be key to identifying, understanding, and
addressing the conflicts that may arise in claiming ownership
of the past.
Comments
michael f. brown
Department of Anthropology and Sociology, Williams
College, Williamstown, MA 01267, U.S.A. (mbrown@
williams.edu). 14 i 04
Nicholas and Bannister have done anthropology a great
service by offering these reflections on archaeology's
place in the contemporary debate about indigenous intellectual
property and its protection. On the principle
that praise, however justified, makes for dull reading, I
will comment briefly on two elements of their argument
that merit clarification.
A persistent flaw of contemporary writing about in-
nicholas and bannister Copyrighting the Past? F 343
digenous intellectual property rights is that it rarely situates
the issues within the broader context of information
ecology, on the one hand, and the political dilemmas
of pluralist democracy, on the other. For instance, there
is much talk about the implementation of special protections
for indigenous intellectual property rights but
little concern for how these arrangements might spill
over into information policies elsewhere in society--in
science, industry, public life, and so on. Likewise, advocates
of expansive indigenous intellectual property
rights assume that the nature of indigenous sovereignty
facilitates the compartmentalization of special protections
so that only indigenous groups are affected. As I
have argued elsewhere (Brown 2003:222­27), however,
sovereignty is a problematic doctrine when applied to
culture in general and knowledge in particular. The casual
and, in my view, erroneous assumption that the
"repatriation" of knowledge is identical to the repatriation
of objects is part of the problem. Knowledge answers
to different rules. It is also more readily manipulated,
to the potential detriment of intellectual exchange
and political freedom. I hope I am not alone in dreading
the day when history comes to be regarded as the exclusive
intellectual property of specific interest groups, indigenous
or otherwise.
My doubts intersect Nicholas and Bannister's arguments
in a few places. For instance, they note that archaeologists'
accounts threaten the "sanctity of Indigenous
beliefs" by offering views of history that contradict
indigenous ones. The same can be said about the impact
of archaeology on the beliefs of those Christians who
reject the study of human evolution in favor of biblical
versions of prehistory. Must archaeologists therefore
mute their professional opinions lest creationists have
their feelings hurt and their theology undermined? What
about the highly spiritualized notions of history embraced
by devout Muslims, Mormons, Orthodox Jews,
and other religious groups? Unless Nicholas and Bannister
are saying that archaeologists have an ethical obligation
to scrub all potentially hurtful facts and assertions
from scientific accounts, they need to explain why
"sensitivity" in one case is an ethical imperative and in
the other a matter of no concern at all. The rejoinder
that the belief systems of indigenous peoples are more
vulnerable than those held by followers of major world
religions is accurate but more or less irrelevant, given
the tendency of liberal democracies to insist that the
same rules apply to everyone.
I am also uneasy about the upbeat belief that collaboration
between archaeologists and indigenous communities
will resolve all questions about the ownership
and control of archaeological information. Collaboration
is a good thing, of course, and I find Nicholas and Bannister's
own success in collaborative research entirely
praiseworthy. But if we take the hypothetical statement
"I signed a collaborative research agreement with First
Nation X that assigns copyright to the community and
gives it power over what I say in my publications" and
then replace "First Nation X" with "Microsoft" or "the
National Rifle Association" or the name of any other
group or institution in society, one immediately recognizes
that the ethics of prior editorial review are far
murkier than they seem at first glance. I would welcome
guidance from Nicholas and Bannister about where one
draws the line between legitimate collaboration and the
willful surrender of professional truth standards in order
to secure a research permit.
Happily, such stark contrasts between indigenous and
scientific perspectives are more the stuff of academic
debate than of the real world, where native people and
anthropologists have shown themselves capable of learning
to shuttle between apparently irreconcilable ways of
knowing (see, e.g., Ferguson 1996, Loring 2001, Watkins
2000). Nicholas and Bannister offer a vision of how archaeologists
can rethink disciplinary practices to build
the level of trust that makes movement between cultural
worlds the norm rather than the exception. We may
never get to a place where the divide between indigenous
and nonindigenous views of history and prehistory disappears
completely, but this essay suggests paths worth
following, questions worth asking, in anthropology's
quest for more ethical ways to pursue research on the
human condition.
yannis hamilakis
Archaeology, School of Humanities, University of
Southampton, Avenue Campus, Southampton S17 1BF,
U.K. (y.hamilakis@soton.ac.uk). 20 i 04
In 1992 a Coca-Cola advertisement published first in an
Italian newspaper caused a furore in Greece because it
included a manipulated photograph of the Parthenon
with its columns refashioned as Coca-Cola bottles.
Much of the press and several public commentators and
politicians condemned the "sacrilege" committed on the
national symbol, the ownership rights of which are seen
as belonging firmly to Greece (cf. Hamilakis and Yalouri
1996). More or less at the same time, a diplomatic and
political dispute arose between the same country and one
of its northern neighbours, the former Yugoslav Republic
of Macedonia. The clash, which threatened the geopolitical
stability of the region, was apparently over the
symbols chosen for the newly established national flag
of the latter country: a widely found decorative motif
from ancient Macedonia but one which has been associated
with the Vergina excavations in Greek Macedonia.
Greece claimed that the choice constituted a theft of a
national symbol, an act indicating expansionist aspirations
(cf. Brown 1994).
These two cases help to illustrate the point that the
phenomenon discussed by Nicholas and Bannister is already
at the heart of a number of conflicts and at the
intersection of cultural, political, and diplomatic wars.
These cases also show that the phenomenon is highly
diverse rather than simply something to do with what we
call indigenous communities. Nicholas and Bannister's
discussion touches upon a number of important issues and
makes significant points, but it deploys a variety of loaded
concepts that need unpacking: "property," "copying
344 F current anthropology Volume 45, Number 3, June 2004
and replication" (and, by implication, "authenticity"),
"rights," and "stewardship of the past and its material
traces." It also makes certain assumptions about the nature
of archaeological practice which are far from being
settled and universally accepted. "Stewardship," for example,
while it is conventionally accepted (and enshrined
in various archaeological codes of ethics and practice) as
the archaeologisťs primary ethical and professional responsibility,
is increasingly recognized as ontologically
and epistemologically problematic and ethically self-serving.
The "record" has not been entrusted toarchaeologists,
who then become its stewards; rather, archaeologists are
instrumental in producing that record out of the fragmented
material traces of past social practices. Their selfappointed
role as stewards of that record, therefore, is ethically
spurious and may imply the desire to exclude others
from engaging with the material traces of the past (cf.
Hamilakis 1999, 2003). If the concept of stewardship is
therefore an inadequate basis upon which to discuss issues
of ethics and responsibility, the notion of shared stewardship
(involving various indigenous groups and publics as
well as archaeologists) that Nicholas and Bannister propose
can be equally problematic. It simply extends the
authority of archaeologists' own problematic concepts to
incorporate indigenous groups and publics rather than
imagining new concepts and forging new modes of en-
gagement.
While I would contend that the underlying issues have
to do with the epistemology and the ethics (and, by implication,
the politics) of archaeological practice and are
therefore inadequately explored within a legalistic framework,
the discourse on intellectual and cultural property
can act as a "forceful sound bite" (Strathern 1998:217); in
other words, it can open up space for inequities to be
debated and power dynamics exposed. The debates on the
restitution of cultural property, for example, are often entangled
with legal, objectifying and depoliticizing arguments
and ignore the essentialist and static conceptions
of identity that often underpin these claims. At the same
time, however, they have made possible a debate on colonialist
and imperialist archaeological and anthropological
practices and exposed structures of exploitation that
would have otherwise gone unexplored. The various ethical
and political clashes are context-specific, and as such
they demand a context-specific response that takes into
account the power inequalities and dynamics in each case.
For example, in the present climate of the commodification
of the past, the domination of neoliberal economics,
and the tyranny of the market, a defense of the concept
of the public sphere and of common property is an urgent
need. That discourse of the public domain, however, may
be deployed in such a way as to deprive marginalized and
disenfranchised people of the only "resources" left to
them: cultural artifacts, knowledge, and ideas. To return
to the two case studies that I started with, legal frameworks
would have been completely inadequate here, as
the issues involved have to do with conceptions of national
identity, ancestry, and ideas of cultural superiority,
as well as issues of authenticity and its authority. An exploration
of these issues would have led us to the very
heart of the matter at hand: the genesis of the discipline
of archaeology as a device of Western modernity which
was called upon to create "facts on the ground," the material
signifiers of national and European identities--a discourse
that in the following centuries would be appropriated,
modified, and deployed in various ways as a potent
weapon in various political negotiations and clashes.
sven ouzman
Department of Anthropology, 232 Kroeber Hall,
University of California, Berkeley, CA 94720-3710,
U.S.A. (ouzman@uclink.berkeley.edu). 15 i 04
"Make everything count not once, but three times" was
the formative maternal advice given to that grasping
agent of empire, Lord Baden-Powell, to guide his subjugation
of the indigenous in India. This "audit culture"
(Strathern 2000) has not diminished, and anthropology
and archaeology both support and question knowledge
corporatization (Ouzman 2003). Knowledge systems and
their control have a direct impact on the futures of these
intertwined disciplines. In solidarity with the rich ideas
of this article I examine two key issues--the valence and
violence of words and archaeology's object-centricity--
before considering indigenous and archaeological knowledge-system
entanglements.
This article should more have strictly defined words
like "native," "indigenous," and "aboriginal," especially
with the authors lamenting a "lack of consistent terminology."
Evaluating intellectual property rights requires
clear terms of reference that are also capable of
nuance. There are, for example, different scales of indigeneity,
not all synonymous with "First Nation" status.
Also, homogenizing the "West" elides the diversity of
Western intellectual property rights. It would have been
interesting had the approach of historical archaeologists,
often Westerners studying their own history, been juxtaposed
with indigenous archaeological practice. Adding
"citizen(ship)" and "authentic" and dwelling longer on
"sovereignty" would have better shown people's ability
both to participate in a larger nationhood and to maintain
a distinct identity that is not a "subnationhood" but
supranational and capable of making nation-states decidedly
uneasy.
Intellectual property rights conflict often involves material
culture, which combines with a notion of "heritage"
as a largely open-access realm to form a deadly
combination predisposed to conflictual rights-speak. Michael
Brown's warning that this legalistic trajectory deflects
attention from indigenous people's rights not to
have their past or present studied highlights a central
tension over access to ideas and cultural material other
than one's own (Brown 2003). But I do not agree that the
price of access is only disseminating morally positive
findings, replacing divisive colonial stereotypes with inclusive
postcolonial ones. Censorship and intellectualfreedom
concerns need nonetheless to acknowledge that
access is not a right but a set of negotiated practices.
This is the case even if an originator or custodial indig-
nicholas and bannister Copyrighting the Past? F 345
enous community is not easily identifiable--and here
longer discussion dealing with such absence in the otherwise
excellent access-process-product section would
have been welcome. Perhaps less simplistic notions of
time are needed. "Westerners" do use elliptical time
(Kondratieff cycles), and indigenes situationally use linear
time (they meet deadlines). May we not productively
understand "tradition" as a fund of knowledge, objects,
places, and people that permits innovation (Ranger 1993),
allowing temporalities to soften and interdigitate? Associating
indigenous people with the past can imply an
inability to deal with the present. This article's discussion
of strategic indigenous usage of "Western" legal
mechanisms helps counter this perception.
Acknowledgment of the pasťs ever-presence and creativity
is sorely needed by a "First" World mired in managing
material culture. The recent dispute over a ca. 9,400year-old
person's remains exposes "Western" legal inertia
(Hurst-Thomas 2000). If indigenous sovereignty is honored
in letter and spirit, disputes between nations have
many mediatory possibilities, but a single jurisprudence
routinely and authoritatively adjudicating disputes is not
one of them. In Australian "keeping places," for example,
objects enjoy graded access (see, e.g., http://www.dcdsca.
nt.gov.au/dcdsca/intranet.nsf/pages/strehlowresearchcentre).
Some objects are accessible only by their originator
communities, while other objects and associated knowledge
require negotiated access with indigenous gatekeepers.
This is one way in which intellectual property rights
issues are "stretching the existing legal categories" by offering
blurring as a space for conflict resolution in which
the "intangible" can be accommodated in discussions of
"reasonable doubt." Similarly, how would St. Lawrence
islanders' subsistence looting allow less judgmental understandings
of "looting" in Iraq (Hamilakis 2003)? Engaging
with indigenous intellectual property rights is good
science because it allows evaluation through multiple enabling
and constraining criteria (Wylie 2000). In return,
perhaps archaeology can act as therapy. At the risk of
lapsing into California confessionalism, as a part-Afrikaner
whose ancestors authored apartheid I find the repetitive
techniques of archaeological surveillance useful in
confronting my ancestry. Archaeological study of the pastas-present
engenders broad-based debate on intellectual
property rights. For example, incorporating a San rock
painting and motto into South Africa's coat of arms (without
indigenous consultation; Smith et al. 2000) came at
the cost of state copyright over images of declared heritage
for the benefit of the "nation," thereby undermining First
Nation sovereignty. Similarly, well-intentioned New Age
homages to indigenous sacred sites assume unproblematic
access in the name of a politically lame "humanity" (e.g.,
Finn 1997). These debates may help broaden the binary
archaeologist-indigenous interaction, allowing more consensual
construction of best practice. We can ask whether
ethnography is not just a vehicle for neoliberal values and
whether indigenous gerontocracies would benefit from alternative
governance. Willful ignorance of intellectual
property rights leads to an avoidance of people and responsibilities--even
moving into "site-less fields" where
the human barely factors (Helmreich 2003). Cooperative
and politically engaged research is not to everyone's liking,
but we all need to be able to decide whether intellectual
property rights should become an intrinsic part of
archaeology.
karen d. vitelli
Department of Anthropology, Indiana University,
Bloomington, IN 47405, U.S.A. (vitellik@indiana.edu).
16 i 04
This is an important paper, and I hope that all my colleagues
will read it, think about it, and, probably most
important, talk about it, especially with colleagues in
other disciplines. (Photography, for example, has long
and complex experience with intellectual property rights
issues, and folklore and ethnomusicology could also be
added to those mentioned by Nicholas and Bannister.)
As I read this paper I could feel (and confess to sharing,
initially) a rising sense of panic among colleagues who
are already making Herculean efforts to be fully ethical
archaeologists as yet another thing is added to the long
string of issues we must consider. Those who are still
chafing over NAGPRA and proclaiming the death of science
may respond with anger. But intellectual property
issues are out there, and we will have to deal with them,
whether we choose to prepare now or wait for another
Kennewick. Certainly those of us who have focused on
the practice of archaeological ethics have found that
calm, earnest discussion among all affected parties meeting
as equals before a crisis erupts is the best hope for
reaching mutually acceptable outcomes. Although I have
no direct experience of such negotiations with indigenous
groups, my work with a local community in Greece
has taught me that relinquishing some control actually
brings many rewards, some far greater than any I have
found in the academic community. We might also remember
that we already accept many limitations on
what we publish--site locations come to mind, along
with various restrictions imposed by editors, reviewers,
and publishers.
We should also think carefully about our own intellectual
property rights. What do archaeologists bring,
uniquely, to the work they produce? Can we separate our
contributions from the data? What are the implications
for the group and for archaeology of turning over all excavation
and survey records to an indigenous group?
Reply
george p. nicholas and kelly p.
bannister
Kamloops, B.C., Canada. 23 ii 04
The commentators support many of our primary points.
The issues are of course broader than our stated focus
346 F current anthropology Volume 45, Number 3, June 2004
on Indigenous contexts, as Hamilakis suggests; in his
examples it is not simply a question of academic discourse
but one of real geopolitical consequence. Exploration
of intellectual property rights in archaeology will
make all stakeholders more aware of the issues that he
raises with respect to "archaeology as a device of Western
modernity"; the discipline cannot shake off its colonialist
legacy until we examine who benefits from the production
of knowledge. Aboriginal complaints about
threats to their cultural heritage have tended to be recognized
only when framed as a political strategy, which
ignores the very real threats to and loss of integrity of
their cultural heritage, past and present. Widespread appropriation
by advertisers of the inukshuk (the standing
stone figures of the Canadian Arctic) (Logan 2003) may
be no less damaging to the Inuit than the incorporation
of contested symbols in Hamilakis's Macedonian flag
example, but his example is more likely to be viewed as
an intellectual property issue because of its greater visibility
on the world political stage. The point is to recognize
the many contexts in which intellectual property
rights may apply and learn how to negotiate for more
equitable terms.
We agree with Brown that the wider implications of
Indigenous intellectual property rights cannot be ignored,
but his point can be turned on its head to examine
the lack of attention to Indigenous intellectual-propertyrights-related
issues in the information policies to which
he points. Could the "talk . . . of special protections for
indigenous intellectual property rights" be largely a reaction
to this? In other words, are Indigenous groups
often being "cornered" into considering intellectual
property rights protections to prevent others from appropriating
and commodifying aspects of their culture?
Violet Ford, vice president of the Inuit Circumpolar Conference,
which represents some 145,000 Inuit people,
notes that "more than 100 individuals and companies in
Canada alone have applied for a copyright on the Inukshuk"
(quoted in Logan 2003).
Hamilakis points to the inadequacy of legal frameworks
for a discussion of Indigenous intellectual property
rights, while Brown points out that knowledge is
"more readily manipulated" than objects. Indeed, just as
the line between cultural property and intellectual property
is blurred in an Indigenous context, so too are the
divisions between ethics, ideology, and law. It is important
to understand the parallels and differences and to
explore the potential legal and moral mechanisms for
redress that may yet evolve. Claims will be constructed
in the interests of those who put forward the argument,
and the rationales for these claims require exposure (see
Hollowell 2003).
Brown equates the potential impact of archaeology on
Indigenous cultures with the "hurt feelings" of Christians,
but we are talking about insensitive promotion of
views (presented as "scientific" and thus unquestionable)
that are contrary to the "stories and beliefs" held by
descendant communities. The vulnerability of Indigenous
belief systems is highly relevant to our argument
(Nicholas 2004). The fiduciary responsibility to Aboriginal
peoples acknowledged by the Canadian government
is evidence that equally applying the "rules" of Western
society to non-Western societies is in some cases
inequitable.
Ouzman notes that we should have more strictly defined
"Native," "Indigenous," and other terms, and
Hamilakas refers to "loaded concepts." Terminology is
very important, but our terms have been defined elsewhere
(e.g., Brown 1998, Janke 1998) and we sought to
move the discussion beyond terminology. Further discussion
will lead to a more nuanced treatment of these
terms that is much needed. We are encouraged to see
anthropologists such as Michael Brown and Julie Hollowell
and archaeologists such as Anne Pyburn, Lynn
Meskell, and Larry Zimmerman addressing these issues.
Hamilakis raises the issue of stewardship, but we are
not promoting the type of stewardship he and others (e.g.,
Wylie 2002, 2004) have critiqued. What is needed is a
more critical and pluralistic perspective on stewardship
as a negotiated practice--a recognition that for some
groups stewardship means just the opposite of what it
does in, say, a museum context. Furthermore, while we
agree with Hamilakis regarding the need for less archaeocentric
stewardship, we consider it presumptuous to
offer alternatives on behalf of descendant communities.
Brown's uneasiness about "collaboration" may stem
from his somewhat superficial treatment of the concept.
We are not suggesting Indigenous "power over" what is
said (e.g., veto), even though the power inequities of conventional
academic research favor the researcher over
the researched; rather, we call for sharing of power for
both moral and practical reasons. Indeed, a participatory
approach to research implies that academics ought to be
able to (as Brown notes) "replace First Nation X" with
any other group in society to share the benefits, risks,
responsibilities, and decision making of research. Power
sharing is, however, an unpopular concept in academe;
ultimately it is the awareness, preparedness, and integrity
of the individual that will influence whether the line
is placed closer to "legitimate collaboration" or to the
"surrender of professional truth standards."
We have learned firsthand the realities of collaboration
with Indigenous colleagues and communities. It was not
our intention to suggest "working together" as the solution.
We firmly believe that informed and honest dialogue
is the way to go, but there are often hurdles to
overcome (Nicholas and Andrews 1997). Mutual respect
is key (see Clifford 2004:5). The issues that we address
here are not simply legal but ethical matters. The legal
definition of intellectual property is narrow but dynamic.
Most archaeologists, however, will confront intellectual
property rights issues in terms of soft law and customary
law, in the form of negotiated agreements, protocols, international
standards, and what is agreed upon as ethical
practice. In addition to the general guidelines currently
available (e.g., Wax 1991, Wood and Powell 1993, Zimmerman,
Vitelli, and Hollowell-Zimmer 2003), we hope
to see some specific to intellectual property issues archaeology
in the near future.
Brown hopes that he is not alone in dreading the day
nicholas and bannister Copyrighting the Past? F 347
"when history comes to be regarded as the exclusive
intellectual property of specific interest groups, indigenous
or otherwise." We are not promoting or defending
copyright or other restrictions on the exchange of knowledge
(legal or not) as the answer. All restrictions on
knowledge flow have a cost. Unrestricted access to information
is, however, rare in human societies. Restrictions
on access to or use of information emerge when it
acquires or is seen as having the potential to acquire
value. Ouzman rightly notes that access is not a right
but a set of negotiated practices. Archaeologists already
negotiate access to information at many different levels,
ranging from seeking permission to reproduce illustrations
to obtaining permits or access to restricted siteinventory
files or submitting applications to university
ethics committees. Is it unreasonable to be expected to
seek permission to do certain things with archaeological
data from the descendants of those who created the artifacts
and sites in the first place?
Vitelli's point concerning how we deal with the unique
intellectual contributions that researchers bring to the
data goes to the heart of the matter (also see Chippendale
2003). In signing protocols with the various First Nations
with whom we work, we are no less concerned about
giving up rights to our own research contributions. The
key is meaningful dialogue on ways of doing things. "Negotiation"
is often taken to mean a surrender of some
type, but it is a form of dialogue, and an important element
of successful dialogue is establishing an understanding
of different points of view (see Wood and Powell
1993).
Perhaps the next step is to begin to understand the
foundations of these concerns and their cultural-historical-political
contexts. As Hamalakis notes, "rights" are
often constructed to meet the needs of a specific situation.
Archaeologists are not used to thinking in terms of
how contemporary peoples make use of the past. We
hope that our paper will serve both as an invitation to
"unpack" some of these questions of terminology, access,
and control and as a challenge to do so.
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