INTRODUCTION
We are developing organizational and technological methods to enhance
data sharing for research in both the social and environmental sciences.
These challenges include information quality control, protections for
sensitive data (such as the specific locations of archaeological sites and
their vulnerabilities to looting), copyright issues, incentives to share
data, and financial sustainability. Initially, we had expected to simply
mimic preexisting, off-the-shelf solutions for such areas as terms and
conditions, copyright and data-accession policies, and procedures for
handling disputes. We quickly learned that the intellectual-property
status of these types of content represent a challenge where there are few
solutions readily at hand.
At the heart of this problem is the tension between the potential for
universal access and enhanced creative possibilities of digital content
and the need to ensure that the sources of digital content benefit from
these new options. For example, publishing an ethnomusicology study on the
World Wide Web can vastly increase the audience of the study and spark
creative reapplications of the source content, in this case music. At the
same time, because online data are so easily replicated, distributed, and
manipulated, this content is at risk of appropriation and exploitative
uses. Both the researcher who performed the study and members of the
indigenous society whose music she collected stand to both benefit and
suffer from the power of online dissemination. These issues are widely
recognized and debated. In our attempt to explore these issues, we found
two prominent movements with very different perspectives, models, and
goals. The goal of the traditional-knowledge movement is to protect
certain forms of knowledge from unfair exploitation.1
This movement emphasizes the need to
respect the rights and claims of disadvantaged communities; as such, it
seeks recognition for communal and culturally situated notions of
heritage, property, and knowledge. The open-knowledge movement aims to
open access to information.
2 This movement seeks to counter legal and
commercial forces that inhibit individual free expression, knowledge
sharing, and creativity.
The convergence emerged around the idea of a framework that enables
flexibility in determining rights and conditions for the use and
distribution of content. The traditional model for content control has
been all-or-nothing. Copyrights and patents claim exclusive rights over
creative or technological works, whereas the public domain does not allow
for the retention of any rights whatsoever. This binary scheme forces some
communities to choose between imperfect fits for their own needs.
Moreover, many communities lack the resources (legal, political, or
economic) to even exercise the right to choose between these two imperfect
options. Having identified the need for a low-cost, easy-to-implement
solution, our conversations turned to the “some rights
reserved” model of voluntary licensing tools pioneered by Creative
Commons (http://creativecommons.org). These licensing tools allow
users to structure permissions and conditions that create incentives for
communication, while at the same time respecting the restrictions placed
on data by the originating authors or communities. The licenses, now with
several million applications, are one of the more visible developments of
the open content movement, especially in the arts.
In this paper, we describe a rationale and possible process for
expanding these licensing approaches to more successfully accommodate the
tensions outlined earlier. We focus our discussion on the realm of field
research, where current intellectual-property frameworks are
unsatisfactory for both researchers and the communities they work with. We
discuss how new approaches have the potential to simultaneously encourage
protection of traditional knowledge, enhance collaboration and
interdisciplinary research, and facilitate communication among field
scientists and indigenous communities. To frame the discussion, we first
introduce some background on various intellectual-property issues
surrounding different types of content important to the field sciences as
well as indigenous-rights groups. We then describe how
intellectual-property frameworks help shape incentives for disclosing and
communicating versus hoarding and restricting these different types of
content. Finally, we outline how the some-rights-reserved framework of
voluntary licensing can be developed to encourage more open and more
equitable communication of these various types of content.
BACKGROUND
As narrated earlier, new communication technologies expose us to
complex and uncharted new territories of legal risks and ethical
pitfalls.3
Within the
heart of this territory lies a key area of focus, intellectual property
(IP). IP affects the incentives researchers have to contribute data, the
potential value of our information to enable further innovation and
creativity, and much of how research works within and between interested
communities. At its core, IP is a system of permission-based restrictions.
Those who “own” the property set the default limits for those
who wish to use it, subject to certain public policy constraints such as
fair use. Ideally, such a system protects the incentive to author and
disseminate research, analysis, and data, while simultaneously serving the
public interest in accessing knowledge.
Current IP practices, institutional structures, and professional
pressures can negatively impact field-based research (especially
archaeology, anthropology, and environmental sciences) in a number of
ways. One of the most commonly articulated complaints, especially within
the university community, centers on the escalating costs of scholarly
material. Subscription and purchase costs of scientific journals have
jumped by some 210% (or more) over the past 15 years.4
Students also see inflating textbook prices,
which have become 60% more expensive between 2000 and 2005.
5 These escalating costs
restrict access to content, because many individuals and institutions
(especially small or community colleges) work with tightly constrained
budgets. Costs are important factors in exasperating knowledge gaps
between nations.
While these costs go up, larger trends in copyright law and
publication practices make these materials increasingly difficult to use.
Academic publishers typically require authors to sign away copyright on
their contributions.6
This grants to power to give access to
scholarship entirely to commercial institutions that tend to be
profit-maximizing rather than knowledge-maximizing. Researchers now expose
themselves to legal risk when they distribute
even their own
published research (in cases where copyright is signed away) to colleagues
or on the Internet. This risk has added significance because of the
increasingly severe nature of copyright enforcements coupled with the
ambiguities and uneven protections of “fair use.”
7 One might assume that these developments
are only a concern for scholarship in the relatively wealthy West, because
the easy accessibility of bootleg music, movies, and software in other
areas of the world demonstrates that intellectual-property laws are not
universally enforceable, especially in nations with weak institutions.
Nevertheless, restrictive copyright practices do have important effects,
even if legal enforcement is locally weak. For example, copyright laws
brand any unauthorized user a pirate or thief of property, thereby
reducing the likelihood that any substantial insight or creation would be
contributed back to the global cultural and intellectual discourse. In
particular, this creates disincentives for indigenous scholars to
publicize their own comments and analysis if they did not receive full
permissions to access the original works on which their analysis is based.
Also, even if laws are not enforceable in certain jurisdictions,
communication technologies themselves often act to enforce restrictive
controls over content, and such restrictions often work globally. These
mechanisms are even used to block, threaten, or censor traditional fair
uses of content, such as quoting a short passage of a source.
8 Cost, access, and intellectual-property debates now see growing
attention in the sciences and beyond. As demonstrated by recent editorial
debates in the prestigious journal Nature, knowledge
accessibility is emerging as a significant issue for the sciences.9
Major
granting foundations, in particular the National Institutes of Health
(NIH), have signaled their interest in ensuring that the results of
publicly funded research remains accessible to the public.
10 Many critics believe that
keeping information inaccessible and proprietary, either locked away in
file cabinets or the basements of museums, or held behind restrictive
publishing practices, inhibits both the process of scientific innovation
and the equitable distribution of the benefits of science.
11 Reformers believe
that encouraging people to freely share and repurpose images, databases,
videos, drawings, maps, and other types of data makes all this information
more valuable and meaningful. They see that the freedom to build on,
recombine, and reevaluate research will promote scholarship in a
fundamental way.
12 A knowledge commons that is openly
disseminated has the potential to create “communities of
stewardship” that preserve information through active use.
13 Promoting the continued use of information
(its incorporation into new creative and technical works) also aids
digital preservation, because it builds communities likely to continually
migrate data into current standards. In that more flexible IP frameworks
relax restrictions on copying and using information, they too can be
important enablers of digital preservation.
At the same time, the social context of field-based research is also
changing. Scholars have a growing appreciation for the potential impact
their investigations have on local and/or indigenous communities.
Prior and continuing abuses, inequities, and appropriations of biological
knowledge and culturally significant icons highlight human-rights failings
and negatively impact research and cross-cultural education. The expanding
reach of information technologies makes questions of attribution and
ownership all the more urgent. Traditional knowledge, whether stored in
the minds of indigenous peoples, or represented in ethnographer notes,
museum records, or arcane research publications, was often relatively
inaccessible and therefore less vulnerable to exploitation. However, easy
global travel and the explosive growth of the World Wide Web, coupled with
increasingly powerful search engines (such as Google and Google Scholar),
now expose this formerly inaccessible knowledge to the glare of the global
media. Therefore, the “security through obscurity” that
formerly offered sensitive information some safety is quickly
crumbling.
Because of this rapid pace of development, addressing IP concerns
surrounding traditional knowledge becomes ever more pressing and will
likely increasingly shape the research process. In the field sciences,
research depends on access to, and often active cooperation of, local
communities. Many such communities are closing access because of
historical abuses and rising fears of the misappropriation of religiously
and culturally significant traditional knowledge.14
Disputes over commercial
appropriations of traditional knowledge also fuel increasing
restrictions,
15 and some field research (especially
relating to ethnopharmacology) has commercial applications.
16 Inequitable sharing of these benefits
creates disincentives for indigenous communities to grant researcher
access and collaboration. Finally, field research may affect government
policy decisions and bring welcomed or unwelcomed media attention. In both
developed and undeveloped countries, landowners and other stakeholders
have real concerns about how research can lead to undesirable legal or
economic ramifications.
17 As a result, there are many
gaps in our knowledge of species distributions, ecosystem health, and
other conservation issues.
Much field research has its foundation in the diversity of human
experience. Access to local and indigenous communities is often critical
to understanding key biodiversity, health, and environmental
questions.18
Some of these questions have
global significance. However, local concerns mean that field research must
aim for more than abstract understanding. Working with local communities
and learning from native cultures should be a two-way process of
communicating and reciprocal sharing. Traditional knowledge rights
advocates believe that as active participants in research, local people
should benefit from research. They too should have access to the
knowledge, solutions, creations, and commercial opportunities that come
from studies in their backyards. Moreover, awareness of the history and
struggles of a culture or society, as expressed through their stories and
creations, can lead to respect and political support in international or
national conflicts. In short, the insights and observations made in field
research can, and should, more directly benefit those outside the
scholarly community.
When considering the open-knowledge and traditional-knowledge
movements together, it would appear that they are heading in opposite
directions on questions of opening or restricting access and use of
certain kinds of knowledge. For example, much traditional knowledge and
cultural heritage has been relegated to the public domain, as defined by
international intellectual-property frameworks.19
Many members of indigenous
communities rightly see the arbitrary inclusion of their cultural
knowledge as part of the public domain as either inappropriate or as a
highly damaging strategy of cultural appropriation.
20 In contrast, open-knowledge advocates work to
unleash information bound by strong IP laws from what they see as
inappropriate constraints and overprotection. As will be discussed, both
movements must navigate a course between polarized states of
all-or-nothing protections found in current international
intellectual-property frameworks.
21 We
believe that there is an opportunity to reconcile the aims of both
traditional-knowledge protection and open-knowledge advocates (see
Figure 1). Mutual benefit for both movements (and many
other stakeholders besides) may be found using the some-rights-reserved
model as discussed later.
Possible pathways of rights reconciliation for traditional knowledge
and research content.
Creative Commons Licenses
The growing dissatisfaction with rigid and inhibitory intellectual
property legal frameworks motivated some to seek more flexible
alternatives. Creative Commons licenses strive to address the middle
ground between the “all rights reserved” stance of traditional
copyright protection and the “no rights reserved” of the
public domain. They do not abandon any copyright protections or dedicate
any part of a work to the public domain. Rather, they merely adjust the
default permissions that copyright owners grant to the world regarding the
use of their work. By default, copyright law reserves all rights in a work
to the copyright owner, except those uses that would qualify as fair or
otherwise privileged under applicable law. However, because these
qualified uses are often ill-defined, there is legal uncertainty as to
what one can actually do with a work without gaining explicit permission
from the copyright owner. Moreover, the high transactions costs of gaining
permission, especially when a copyright owner is difficult to identify or
locate, can limit the opportunity to lawfully gain appropriate
permissions.
Creative Commons licenses resolve these problems by changing these
defaults. Rather than reserving all rights in a copyright, these licenses
only reserve some of them. For example, some movie makers, musicians, and
authors do not mind if their fans make noncommercial copies of their works
to post on the Internet or send to friends as long as they properly
attribute the works to their respective creators and do not profit from
their activities. For these copyright owners, Creative Commons offers a
non-commercial-attribution license that automatically grants
permission to distribute the work in any medium to as many people as one
wants, as long as one does not make money off such distribution and
properly attributes authorship. Because the license is attached to the
work as it is distributed, subsequent users have no need to get further
permission. This scheme dramatically lowers the transaction costs of
distributing a work for both the creator and the user, especially over
electronic networks such as the Internet. Instead of having to negotiate
dozens, hundreds, and potentially thousands of requests for permission,
the author simply chooses the right CC license and her fans to do the
rest. Numerous musicians, movie makers, and authors have used these
licenses, leading to an unprecedented explosion of electronic
dissemination and creativity.22
See Internet
examples: (http://creativecommons.org/wired/),
(http://creativecommons.org/getcontent/features/doctorow),
and
(http://akma.disseminary.org/archives/001253.html)
RAW DATA, BIOLOGICAL AND CULTURAL HERITAGE,
AND INTELLECTUAL PROPERTY: A CONVERGENCE OF INTERESTS
While Creative Commons has enjoyed enormous success, these licenses
were not designed or customized to meet many needs in the research and
traditional-knowledge communities. Nevertheless, the flexible approach of
the some-rights-reserved model can be extended to meet these needs if it
is properly applied. There are many aspects of both the
traditional-knowledge and open-knowledge movements that favor
collaborative some-rights-reserved solutions.
As Creative Commons has demonstrated, enhancing communication requires
recognition of the motivations and interests of content creators.23
By
extension, recognition of the motivations and interests of researchers and
members of indigenous communities must be a priority. In the case of
traditional knowledge and field sciences, we must similarly explore how to
facilitate negotiations that reconcile the needs and interests of all the
diverse stakeholders. It is only by considering these diverse perspectives
and interests that we can hope to build communication frameworks that
encourage both greater respect for multiple claims of ownership and
enhanced openness, sharing, and creative use of information.
For convenience, we can divide the content of interest (especially for
the many field sciences) into four broad categories:
- Biological heritage (ecological relationships, genetic and
behavioral information, evolutionary history, and geospatial
information)
- Cultural heritage (traditional knowledge, lifeways, sacred sites,
medicine, art, religion, etc.)
- Raw data (primary sources, field notes, databases, image archives,
analytic data, etc)
- Syntheses (narrative interpretations and theoretical syntheses of
the above)
Syntheses, the desired end-product of individual research agendas, are
typically communicated in scholarly books, journal publications,
conference proceedings, and so forth. This discussion does not focus on
syntheses, because many other important initiatives examine IP issues and
researcher incentives related to this type of scholarship (see below).
Instead, we devote our attention to incentives and IP issues relating to
biological and cultural heritage and raw data. Obviously, these categories
are not absolute. Nevertheless, they do have heuristic value to help frame
this discussion.
IP Issues Related to Raw Data
The distinction between fact and expression in copyright law has
important, though as of yet not fully explored, implications for
scientific data. In the United States, much raw data can be legally
considered as factual and therefore is not protected by copyright (though
some other international jurisdictions, including the European Union,
extend protection over some factual data sets).24
Alphabetical telephone white
pages represent a quintessential example of unprotected facts.
25 They
contain only lists of numbers (facts) and no original or creative
information in their organization or expression. Similarly, many
standardized lists and databases of measurements collected during field
research will probably not be protected by current copyright law. Such
data represent an important component of much field research.
In many cases, this legal distinction does not easily translate into
the realm of scientific documentation. For example, the specific manner in
which data (facts) are presented, their expressions, do see protection by
copyright law. Thus, a data table or graph may be protected by copyright,
because there may be some originality in the actual expression of the
facts presented in that data table or graph. Also, researcher field notes
and interviews may take the form of written or recorded narratives.
Copyright law would inhibit some attempts to reproduce and distribute such
documentation in a form where the facts are embedded within their
expression; on the other hand, copyright law would still permit other
authors to extract the facts from the narrative and republish them
separately. Similarly, photographs, drawings, and other types of recording
all mix fact and expression. Thus, the copyright status of much field
documentation is likely to be mixed (depending on the specifics of the
records involved) and likely open to interpretation. In any case, the
threshold for copyrightable originality is very low and the risks of
infringement are extremely high, so a typical user must almost always
assume that copyright protections pertain, even if data compilations seem
very factual.
Digital technologies are rapidly transforming the significance and
breadth of data dissemination. Thus, there is a clear need for the
participants in online communication to better understand the role of
copyright protection in the sciences. Because field documentation will
likely contain both protected expressions and unprotected facts,
copyright-licensing issues become important in the dissemination of this
material. The growing recognition that much of this information will have
multiple claims of ownership further highlights the need for clear
intellectual-property frameworks appropriate for the field sciences.
Researcher Incentives
Encouraging the growth of an open-knowledge commons requires
understanding the incentives and needs of researchers, because they are an
important source of content. Researchers have clear incentives to
use a knowledge commons, but their incentives to
contribute to such a commons need more exploration. Publication
brings professional advancement to researchers, and some publication can
take place openly. Creative Commons licenses may see application in a
growing number of scholarly e-journals, such as the Public Library of
Science (PLoS) (http://www.publiclibraryofscience.org), which
currently publishes two journals in molecular biology and medicine. As
yet, there are only a few other examples of peer-reviewed syntheses that
are immediately available for public review using the Creative Commons
model. On the other hand, most scholarly journals allow unrestricted (or
at least less restricted), online access to their publications after some
period of time has elapsed (generally a year or less). Other efforts focus
on the development and open dissemination of instructional content. For
example, through its Open Courseware system, MIT now posts a large
fraction of its faculty's course material online under Creative
Commons licenses. There are several examples of MIT course material being
translated and adapted for use across the globe, including in educational
institutions in the developing world.26
Rice University has a similarly
successful initiative, Connexions, that also boasts a rapidly growing body
of Creative Commons–licensed instructional content.
27 These
initiatives are demonstrating that scholarly communication can be adapted
to build an open-knowledge commons.
28 The growing success of open-knowledge approaches in e-journals and
instructional material is inspiring for those of us interested in sharing
raw or primary research data. Such raw data often have rich and
underrealized interpretive potential and are often collected at great
expense, time, and effort.29
An example from the biological sciences helps
to illustrate this point. In 1898, Hermon Bumpus published a landmark
study on the evolutionary process of stabilizing selection by
investigating mortality among house sparrows. Unlike most of his
contemporaries, he comprehensively published his primary observations
along with his theoretical interpretations.
30 This set of raw data has proven to be
tremendously valuable to later researchers and has helped inspire the
publication of many (sometimes highly influential) peer-reviewed
papers.
31 Some of these papers include:
Calhoun, “The Role of Temperature”;
Crespi and Bookstein, “A Path-Analytic
Model”; Grant, “Centripetal
Selection and the House Sparrow”; Harris, “A Neglected Paper”; Johnston, Niles, and
Rohwer, “Hermon Bumpus and Natural
Selection”; Lande Arnold, “The
Measurement of Selection”; Manly, “Detecting and Measuring Stabilizing
Selection”; Manly, “Some
Examples”; O'Donald, “A Further
Analysis of Bumpus' Data”; Schluter, “Estimating the Form of Natural
Selection.”
If one measures the value of raw data by
the number of publications they spawn, then sharing this set of raw data
made it at least 10 times more valuable than it would have been without
dissemination. Such exponential reuse is likely to increase dramatically
if the raw data are made available over general public networks such as
the Internet. This dataset has even more value if we consider how useful
it has proven for student instruction and exploration of real world
data.
32 In contrast, hoarded data
sets are very vulnerable to loss through overly restrictive
intellectual-property policies or simple neglect.
33 Hoarded digital data tends to decay very rapidly, because
digital media are often fragile and data file formats (especially common
proprietary formats) change rapidly. Frances Condron et al., Strategies for Digital Data—Findings and
Recommendations from Digital Data in Archaeology: A Survey of User
Needs (Archaeology Data Service, University of York, 1999
[cited March 14 2002]); available from
http://ads.ahds.ac.uk/project/strategies/; Richards,
“Preservation and Re-Use of Digital
Data.” Sharing data enables institutions and communities to
migrate data to new systems and open, nonproprietary file formats, which
tend to be accessible over much longer time periods. Maintaining and
widely distributing multiple copies of digital information secures data
through redundant backups and is also an important digital preservation
strategy, see Reich and Rosenthal, “LOCKSS.”
The traditional (paper) publication process rarely promotes the
sharing of raw data, because such data sets are often far too large and
complex to print. Many technological frameworks are in use and in
development to meet this need. However, complaints about data hoarding
remain very common, even in disciplines that favor information openness
and have established systems for raw-data dissemination.34
The question remains as to whether
Creative Commons licenses can be easily extended for data-dissemination
applications. One problem is that researchers seem more eager to access
digital repositories than to contribute to them.
35 Incentives play an important role in this
tepid enthusiasm. Published articles, the currency of the academic market
place, are more valuable if they are influential, cited, and spark
secondary research. Therefore, mechanisms to enhance the distribution of
articles (and their creator's attribution and reputation) will likely
be favored by scholars. The success of Creative Commons licensing with
e-journals and instructional repositories results from such incentives
among contributing authors to build reputations within their communities.
Unfortunately, simple attribution is not a sufficient incentive for many
researchers to share their raw data or primary observations. Published
articles are typically narrative syntheses of primary data. Sharing
unsynthesized primary data is typically not highly valued, because such
data are mainly considered meaningful only as part of a compelling
synthesis. Researchers often fear opening access to raw data, because this
would provide resources for competing academic rivals to publish their own
syntheses.
36 Viewed in another way, control over
content provides opportunities for professional advancement and financial
gain. A tenure-track position at American universities may be worth a few
million dollars over the course of a career.
We believe that new voluntary academic publishing licenses may protect
researchers from unethical rivalries and still create incentives to share
large datasets. These new licenses may be modeled after (or extend) the
Creative Commons some-rights-reserved copyright licenses. A
noncompete/do not republish term, for example, might allow
the public free access and use of primary research, so long as these uses
do not include use of the data in an unauthorized publication in a
peer-reviewed journal or similar outlet. Under this licensing term, anyone
can read and reanalyze the underlying data set, but no one can
use the dataset to compete with the research or publications of
the original researcher/author. Thus, access to knowledge is increased
without decreasing the value of the data to its publisher. This approach
parallels Creative Commons' non-commercial term, a tool that
encourages sharing without weakening one's position in the commercial
marketplace. A do not republish term similarly counters
disincentives to sharing in the academic market by recognizing the
prestige of publication.
Moreover, a noncompete/do not republish term may actually
encourage greater collaboration between researchers than exists currently.
For example, an interested researcher may develop significant
interpretations while exploring large open datasets available under a
license from another researcher. With a do not republish term in
effect,37
We imagine that such a term should
expire after a number of years (its exact duration may vary across
disciplines) to encourage more open uses of raw data. Another possible
variant of this term would be to quantify how much of a raw data source
would have to used to require inclusion of its creator as a coauthor. For
example, one researcher conducting a synthesis project may use only small
portions (5% or less) of many raw data sets developed by other
researchers. In this case, the researcher doing the synthesis would only
have to attribute (cite) the raw data creators, but not have to include
them as coauthors in a publication.
however, the interested
researcher would then have to negotiate terms, including coauthor
arrangements, with the original creator of the raw data to publish his
findings professionally. Such negotiations would encourage greater
collegiality within academic professions, lead to proper recognition and
attribution in the publication process, and also promote the types of
interactions where synergies and early peer-review could emerge.
Researchers who openly disseminate raw data can thereby attract more
coauthoring partners, enhancing their own publication record as well as
enhancing the quality of overall research and analysis based on their
work.
Developing Country38 The
term developing country is used as a convenient and widely
understood shorthand for nations (mostly recently decolonized) with less
access to capital and less infrastructure than wealthy heavily
industrialized countries. It is and not meant to assume any predetermined
developmental path.
Just as researchers both desire and fear various levels of access to
their works, traditional-knowledge advocates and communities both fear and
desire various levels of access to their culture. Indigenous groups often
lose control over information they regard as sacred or important to their
community identity (as is the case when certain artistic motifs become
appropriated).39
Environmental research can lead to commercialization pressures or
governmental policy changes, with profound effects on local economies and
community life. Such communities are therefore very direct stakeholders in
the research process.
40 The working assumption of many field sciences is that their research
materials and subjects constitute public-domain resources. In contrast,
many Traditional Knowledge rights advocates emphasize the proprietary
nature of some domains of culture, and view the
“public-domain” as a concept that some have uncritically
romanticized.41
Thus the definition and boundaries of the
public-domain is inherently politicized. Its positive value comes from its
role as a context for the free exchange and development of knowledge. By
definition, use of public-domain materials has little regulation with
either legal rules or more informal customs. Because of this lack of
governance, people are free to use public-domain materials in any way they
see fit. Although this lack of regulation may fuel creative reapplication
and use of public-domain materials, the benefits of the public domain are
not necessarily equitably shared. The rich and powerful often have more
ability to appropriate public-domain material and recast such material as
their own. For public-domain content that falls under the category
traditional knowledge, such appropriations are the source of resentment
and conflict.
To encourage better equity and fairness in the communication of
cultural heritage, methods and frameworks for negotiating across different
systems of property must be developed. Experience garnered from other
approaches to protecting traditional knowledge can inform this
development. Among the various methods attempted to protect traditional
knowledge, licensing seems to have some advantages.42
However, international conventions
and specific national protection laws (e.g.,
sui generis
statutes) offer geographically limited and highly variable protection;
such laws are difficult to manage and often see little enforcement. They
are also often premised on “all-or-nothing” systems of
protection. As an example of another protection strategy, some databases
attempt to document traditional knowledge and use existing laws to
establish that this knowledge represents items of “prior
art.”
43 Prior
art claims would inhibit commercial appropriation of traditional knowledge
through patenting. While such databases often serve as useful tools to
document traditional-knowledge claims, their efficacy as an instrument to
protect such knowledge (without other complementary mechanisms) is
limited.
44 Unfortunately, this protection can often be
circumvented, and such prior art claims may even undermine commercial
opportunities for the indigenous communities themselves.
45 Nevertheless, traditional-knowledge databases have a variety of
purposes, some of which include cultural preservation (attempts
to document cultural knowledge through digital archiving). Many of these
projects are sensitive to the requirements of different indigenous
communities, some are built in collaboration with different indigenous
groups, and some indigenous communities maintain their own digital
archives.46
Development of culturally specific rules
for regulating access and use of these digital collections is also being
explored. The Indigenous Collections Management Project created new
data-security software and metadata standards for the dissemination of
culturally sensitive materials.
47 The goal of this
project is to develop a metadata framework that is flexible enough to
encompass most, if not all, culturally specific rules relating to content.
Metadata are usually defined as information about information; most
scholars are familiar with metadata from library information systems,
where users can search for books or articles based on author, title, or
key word, all of which are metadata that describe specific items of
content. Metadata also see widespread application for
intellectual-property-rights management, where use rights and permissions
can be tagged to an item of content. Along with human-readable and
lawyer-readable code, Creative Commons licenses are also expressed in a
series of standard metadata tags that let software know how to handle use
rights and conditions. A metadata standard works best if it is widely
adopted, because widely adopted standards facilitate interoperability
between different systems.
48 Because the Indigenous Collections Management Project aims for wide
applicability across diverse cultural contexts, it has developed
customization strategies to meet diverse needs. It also acknowledges
potential implementation problems where the rules governing content are
contested between and within communities.49
Tapping into this body of experience
can go a long way in facilitating the development of new Creative
Commons–type licenses for cultural heritage. Because licensing can
be used to structure conditions and protections on dissemination, it has
great potential for customizing and delineating proper use of traditional
knowledge. Licensing has great flexibility in how terms are negotiated and
is generally recognized throughout the world as enforceable. Some
indigenous communities already require license-like agreements for
research conducted in their territories.
50 This
flexibility offers advantages over other traditional-knowledge protection
strategies, because licensing terms can be tailored to diverse
circumstances. In some ways, licensing enables the participants in
communication (including members of indigenous societies) to create
customized “laws” to structure that communication.
DEVELOPING A JOINT SOLUTION BASED ON THE
SOME-RIGHTS-RESERVED MODEL
As discussed earlier, both the open-access and traditional-knowledge
movements are striving towards a future where licensing and other IP
practices have increased flexibility in meeting the diverse interests of
the various stakeholders. However, the currently disparate and ad hoc
efforts in both movements are likely to lead to confusion for both
creators and users, which may not be better in practice than the faulty
system that already exists. We believe that the some-rights-reserved model
of standardized, yet flexible, licensing terms derived from Creative
Commons licenses offers a resolution to this problem. For both
traditional-knowledge and open-access interests, the some-rights-reserved
model offers the opportunity for a convergence of interests and
resolutions, which should make each of these movements (broadly speaking)
stronger.
Creative Commons focuses largely on advancing individual freedoms for
expression and seeks to maximize the personal freedom of people to use and
create culture, while at the same time preserving the core rights that the
original creators cherish. Their licenses should be understood as attempts
to express and further these values. The individualism advanced by
Creative Commons sees its clearest expression in the attribution term,
which is a default setting for Creative Commons licenses. This term
requires crediting the authorship of a work in return for granting
dissemination and other privileges. These values are also embedded within
the context of a globalized technocratic society where information is
often imagined as endlessly replicable and remixable (capable of
being divorced from its original context and reused in novel
applications). In this world, commercial concerns are paramount in shaping
the creation, flow, and application of information. These concerns are
built into the license choices offered by Creative Commons. Creative
Commons offers options for restricting commercial appropriation of content
but nothing for addressing other types of concerns and values (moral,
spiritual, or even taste).51
Part of their
licensing system stems from practical considerations. Creative Commons
developers made several judgments about the feasibility of developing
licensing terms for different areas of concern. For example, moral rights
or author rights (noneconomic rights over works, including the right to
maintain the integrity of a creative work from mutilation or distortion)
are not directly addressed by Creative Commons licenses. Creative Commons
developers felt that crafting licensing terms around this issue would have
been too difficult/inappropriate given the wide variability of moral
rights across different international jurisdictions. This experience will
no doubt provide invaluable guidance in any cultural heritage licensing
effort. See Lawrence Lessig's weblog for a fascinating discussion:
(http://www.lessig.org/blog/archives/002449.shtml)
Uses of Creative Commons licenses similarly reflect this concern over
commercial appropriation. According to statistics recently released by
Creative Commons, about three fourths of all 10 million applications (in
the Yahoo search directory) include the noncommercial term.
52 Thus, while there is certainly
overlapping interest in managing commercial applications among indigenous
societies and boosters of Creative Commons licenses, the current scope of
Creative Commons licenses is too narrow to adequately address the myriad
concerns of indigenous societies in protecting their cultural heritage. We
explore some of these challenges and limitations later.
There may be more fundamental value differences between the Creative
Commons approach and the world views of people outside its relatively
elite, technocratic context. Creative Commons-supported individualistic
goals may be at odds with other systems that place culture and expression
within webs of social obligations, local systems of authority, rules and
traditions, and political struggles.53
54 Finally, Creative Commons licenses
represent clever
legal hacks, novel applications of existing
intellectual property and contract law. According to commentary from
“The Ethical Use of the Public Domain,”
Creative Commons' reliance on existing legal structures is inherently
flawed, because its attempts to revitalize the public commons rely on the
same oppressive (and even implicitly violent) legal structures that
constrain culture and free expression.
55 This publication
criticizes what is seen as the legal/bureaucratic determinism behind
Creative Commons and argues that the public domain should be promoted more
by action motivated by respect and kindness.
Open-knowledge advocates favor voluntary Creative Commons–type
licenses, because they allow people to share information under terms that
are more open and free than the all-rights-reserved terms of standard
copyright. By leaving some rights reserved, these licenses do not put
information into the public domain. Creators can choose various
restrictions and requirements for certain uses of their content.56
These include requirements to attribute the
creative source of the content, restrictions against commercial use, and
requirements that others must openly share any derivative works under the
same terms they took (
share alike). This last
share-alike requirement was inspired by the open-source software
movement and its popular GNU-GPL license. In essence, the GPL and
share-alike terms work to ensure that both a specific body of
content and its derivatives remain part of the public commons. These
licenses require distribution of all copies and derivatives of a work
under the same licensing conditions, both online and offline.
Crafting licenses that are replicated when works are copied and used
to create derivative works represents a potentially powerful tool for
traditional-knowledge applications. This viral replication of licenses can
enable members of indigenous societies to legally shape how traditional
knowledge is communicated and applied beyond their communities and beyond
individual Web sites or databases. Other aspects of the Creative Commons
model may also have relevance. As stated, Creative Commons expresses its
licenses in machine-readable metadata, legal jargon, and simplified
nontechnical terms. All three aspects are important for wide application.
Standard metadata tags enable Creative Commons licenses to function across
the many diverse information systems that make up the Internet. The legal
code was developed by some of the world's leading
intellectual-property legal firms, thus ensuring that the licenses have
legal credibility. Human-readable expressions ensure that the terms of the
licenses are widely understood and intelligible, both for creators and
consumers of content. In addition, Creative Commons has a relatively
simple and straightforward process that enables users to choose different
licensing options. This simplicity encourages use of licenses customized
for different needs and can be extended to newly developed licensing
options appropriate for cultural and community heritage.
New traditional-knowledge and data sharing licenses may help remedy
current problems by providing a ready-to-use framework where attribution,
commercialization, and other use rights can be negotiated and expressed in
an easily intelligible manner. By explicitly structuring a flexible set of
permissions and conditions among multiple stakeholders, incentives for
collaboration and information sharing should emerge. Such a license should
be highly customizable to suite diverse needs and contexts.
What would cultural heritage and data sharing licenses look like and
how would they be developed? We have compiled some specific options and
areas for future investigation, including:
[bull ] Broad-based, stakeholder-driven process: We should establish a
broad-based process involving representatives of indigenous communities
concerned about traditional knowledge, scholarly societies and their
ethics committees, researchers, anthropologists, IP lawyers, and museum
and library representatives. Broad-based adoption depends on each
community viewing cultural heritage and data sharing licenses as a viable
strategy to meet their particular needs and interests.
[bull ] Exploration of common themes and needs: The archaeologist
George Nicholas and his collaborators are building a database comprising
the IP policies of several traditional communities. His project will
provide an important resource for understanding commonalities in the needs
and concerns of several indigenous groups and can help guide future
licensing efforts.
[bull ] Develop licensing terms to recognize community authorship: In
the case of cultural heritage, “authorship” is sometimes
distributed across generations and individuals from different communities.
This form of ownership lacks explicit recognition in contemporary IP law.
Appropriate contractual licensing agreements can promote the recognition
and attribution of local communities as trustees and stakeholders of
traditional knowledge.
[bull ] Shared stakeholder authorship: Relating to the issue of
authorship, we should explore ideas of joint and shared ownership,
including rights in trade secrets, trademarks, copyright, and patents.
Some stakeholders are concerned about the issue of secret knowledge
(locations of sacred sites, some artistic motifs, narratives, and rituals)
and time-delayed release of knowledge (e.g., until publication of a
synthetic work). These issues should be explored to see if trade-secret
law can provide a useful framework for needed protections. One way to
approach the secret-knowledge issue from an archival perspective would be
to grant people access to different parts of a data archive based on who
they are and what their purpose is (later we discuss controversies and
problems). For example, users can fill out a form every time they want to
do a search, which asks them if the purpose is commercial or not and then
give them more or less access based on the terms of the licenses from
which the data came. By agreeing to these terms, the licensee then comes
under a duty of confidentiality. Violations of this duty could then be
enforced either locally or in the licensee's home jurisdiction. This
type of restricted access is already in use for some data archives within
the field sciences.
[bull ] Protecting Commercial Rights: A common concern regarding
traditional knowledge and biological heritage often centers around
protections against commercial exploitation.57
Future research should explore how existing
Creative Commons licenses could be built into the research agreements
between institutions and principal investigators and the communities they
are researching, especially regarding the noncommercial term.
[bull ] Possible New Licensing Terms for Cultural Heritage: Several new
terms may underlie any new Creative Commons–type cultural heritage
license. The suggested terms (following) should be explored in light of
case studies and collaborators from indigenous communities:
[bull ] Cultural Integrity: Licensee agrees to
maintain the integrity of the information or object as much as possible in
its original context; the information or object should not be changed in
any way that is inconsistent with the values of the culture from which it
came.
[bull ] Reporting Back: Licensee agrees to report
back to the licensor at least once every year regarding any new public use
of the information or objects covered by this license of which licensee is
aware. Report will include, at a minimum, location of use, a brief
description of the use, and contact information for at least one person
responsible for said use.
[bull ] Cultural Identity/Attribution Term:
Licensee agrees to always identify in any subsequent publication, whenever
possible, the complete cultural origins of any information or object
licensed under this agreement, either as specified in the agreement or
based on good-faith efforts of the licensee.
[bull ] Required Translation Term: Licensee agrees to
provide to licensor a native translation of every publication in which
licensee or any of its sublicensees use information or objects covered
under this license.
[bull ] Share-back Term: Licensee agrees to grant
identical permissions to licensor for any knowledge, analyses, or products
derived from information gained under this license.
We recognize that many of these terms, as currently understood, may
appear to some as controversial or vague; in addition, this list is far
from complete. As with any limitation on use, there will be some costs
involved that will need to be negotiated among the licensors themselves.
For example, a translation requirement, while potentially useful and
satisfying for the indigenous groups involved, will often be so costly
that it may deter potential users from repurposing and disseminating
materials from those groups. Thus, such a restriction might reduce global
exposure and economic benefits for the groups that could otherwise be
enjoyed. The important point is that the creators and indigenous societies
must negotiate and decide for themselves what makes the most sense for
them. The cultural heritage licenses will hopefully prove sufficiently
flexible so that the IP perspectives of indigenous groups can be
successfully incorporated into a more widely recognized legal
framework.
[bull ] Possible New Licensing Terms for Research Datasets and
Dissemination: Several new terms may also underlie any new Creative
Commons-type open-access licenses, serving the interests of academic
researchers. Thus, opportunities for greater communication and
understanding among researchers and indigenous communities can arise from
this shared legal framework for open access and IP issues. Some possible
terms include:
[bull ] Noncompete/Do not Republish: Licensee
agrees not to use the information or objects in this work in any
professional scholarly article, book, or presentation without prior
permission from licensor.
[bull ] Time-limit: Licensee agrees not to use the
information or objects in this work in any publication or presentation
within two years of receiving access to said information.
[bull ] Reporting Back: Licensee agrees to report
back to the licensor at least once every year regarding any new public use
of the information or objects covered by this license of which licensee is
aware. Report will include, at a minimum, location of use, a brief
description of the use, and contact information for at least one person
responsible for said use.
[bull ] Attribution: Licensee agrees to always
identify in any subsequent publication, whenever possible, the name and
professional affiliation of licensor in conjunction with use of any
information or object licensed under this agreement (either as specified
in the agreement or based on good-faith efforts of the
licensee).
[bull ] Licensing and Prior Informed Consent: These licensing choices
can also be discussed in a prior-informed-consent process, where
researchers negotiate intellectual-property terms with members of
indigenous communities. Given the complications of cross-cultural
communication and the widely diverse political, economic and social
contexts of research, establishing prior informed consent will often be a
difficult process.58
Nevertheless, this process can be
facilitated by the Creative Commons approach, which makes licensing terms
relatively easy to understand and communicate. Offering choice in specific
license terms may also make the prior-informed-consent process a more
flexible negotiation process suitable for diverse needs and contexts.
[bull ] License Enforcement: One issue of concern with such licensing
terms, whether for cultural heritage or open access, is that of
enforcement. How will people be able to monitor and protect their works
from unauthorized use? It's important to recognize that there are
already many violations, both intentional and accidental, of the
all-rights-reserved IP laws that exist today. The limits on enforcement
have more to do with detection of the violators than with successfully
defending a claim. We believe that enforcement will actually be much
easier with greater dissemination of protected works, simply because there
will be more people who will be able to detect violations, be familiar
with different works, and be committed towards some-rights-reserved
frameworks. When violations are detected, legal enforcement measures can
be enacted by members of indigenous communities, advocacy groups, or other
organizations.
Managing the Commercialization of Bio/Cultural
Heritage: An Area of Special Concern
A recently published paper raises additional points relevant to
licensing strategies.59
As already described, traditional knowledge
is often shared across multiple communities; thus, even if the ownership
of traditional knowledge were recognized, someone wanting to commercially
exploit that knowledge could bargain with many different actors in
negotiating royalties for the same set of rights. Because of this
situation, there would be a race to the bottom on setting royalties,
because there would be clear incentives to underbid others who could claim
ownership of the specific item of traditional knowledge. As a result,
local communities would likely see very little benefit from this kind
protection.
To avoid such competitive undercutting, Chander and Sunder suggest
possible alternatives, such as the use of liability rules and the
establishment of international bodies to set fair prices for traditional
knowledge. It may be possible to incorporate these ideas in future
versions of Creative Commons licenses adapted for traditional knowledge.
Such licenses can include a special kind of noncommercial term that may
read like:
“This information is traditional knowledge and is owned
by (unnamed) indigenous inheritors of this knowledge; any commercial use
of this information requires payment of royalties set by XXXXXX (a
designated board of indigenous-rights
representatives).”
This board would have exclusive rights to negotiate royalties over the
information, thereby eliminating the risk of a race to the bottom.
Multiple boards may be organized to help ensure that local communities
have choice in negotiating bodies. The problem of how royalties get
distributed remains to be resolved, probably most effectively by
indigenous communities themselves. Note that such a board could also be
involved in enforcing the law and setting penalties in a manner similar to
tribunals or mediation boards, as suggested by other authors.60
By placing the IP rights of
indigenous peoples into an internationally recognized framework, these
licensing terms offer a promising route for increasing the
self-determination and viability of many indigenous cultures.
MOVING FORWARD
The success of Creative Commons at encouraging communication suggests
that its some-rights-reserved model deserves exploration for both data
sharing and traditional-knowledge applications. At issue is how the worlds
of individualistic interests and governance found in the World Wide Web
(and manifest in Creative Commons) intersect and conflict with the rights
of collectivities, the use of public goods, and alternative systems of
trust.61
To
encourage better equity and fairness in the communication of cultural
heritage, methods and frameworks for negotiating across different systems
of property must be developed. Much research and discussion remain on how,
and even if, data sharing and cultural heritage licenses can be made
workable. What are the specific terms of the licenses? How should rights
be negotiated among stakeholders? How are stakeholders to be identified?
How should licensing be communicated when the concept is alien to many
cultural contexts? At this preliminary stage, few specifics are offered.
This paper merely points to a direction where we may see positive future
developments.
Because this is an active area of research, we anticipate that any
cultural heritage license and other licensing terms would see multiple
revisions as we gain experience in building collaborative relationships
between stakeholding groups. Experimentation with new licensing models
will involve uncertainties and unanticipated consequences. These
uncertainties require that development should take place within ethical
frameworks designed to ensure equitable interactions between members of
the research community and members of indigenous communities. As urged by
Brendan Tobin, an attorney with great experience in this area, building an
inclusive and broad-based process that includes representatives of
indigenous peoples is a vital first step. Ideally, this process can be
used to create a licensing framework that helps level the playing field
and helps balance the inevitable power inequities between negotiating
partners. License experimentation should also be guided by the ethical
imperatives of the precautionary principle, where participants should
avoid potentially damaging uses of traditional knowledge.62
Because of the uncertainties and
high stakes of these endeavors, license experimentation should first
proceed with less sensitive bodies of content. The process of negotiating
prior informed consent may provide valuable feedback for identifying
bodies of content safe for testing new licensing ideas.
An iterative process of community evaluation will provide the feedback
needed to refine and enhance intellectual-property frameworks, including
the effectiveness of any new licensing terms, should they be developed.
This evaluation requires application to real-world research data and
interaction with both the academic and indigenous communities. By applying
the licenses to research data, we will lead the research community by
example and provide a proof of concept. Long-term follow-up studies will
help evaluate if these licenses do indeed help create incentives for
greater information sharing and collaboration with local communities and
other interested parties.
Once created, such licensing strategies and frameworks may be of
particular use in shaping professional ethical guidelines as well as
structuring access and ownership concerns for museums and digital
libraries, including such organizations created by indigenous societies.
Developments in information-ownership and use-rights can be further
expanded to meet the needs of other communities and disciplines as well.
Licensing developments may see application with the often contentious
arena of bioprospecting, where the interests of biotechnology firms and
indigenous cultures sometimes clash. These and other licensing
developments will also likely provide an important foundation to explore
other biological and cultural heritage IP issues, including patenting and
trademarks.
RISKS
From the open-knowledge perspective, there is very little to be lost
in experimentation with cultural heritage licenses. The default setting
for all creative works is “all rights reserved” copyright.
Opting into open-knowledge frameworks now is strictly voluntary, and even
if cultural heritage licenses become more restrictive than many
open-knowledge advocates would like, less restrictive alternatives will
still remain.
From the point of view of traditional-knowledge advocates, cultural
heritage licensing is something more risky and problematic. It entails
putting information into global circulation where abuses may occur, and
the enforcement of licensing terms will always be less than perfect. While
it is conceivable that licensing terms can be developed that have very
broad application and meet many needs, there may never be a perfect fit
for every conceivable circumstance. Nevertheless, we still see cultural
heritage licensing strategies as valuable since they have the potential to
provide people with choices. We currently face a binary decision between
extremes—either leaving culture vulnerable to exploitation and
appropriation or creating legal and technical barriers that hermetically
seal bodies of knowledge. Cultural heritage licensing can represent a
third option that enables communication to take place along the lines of a
negotiated framework.
Perhaps more risk is inherent in the choice of licensing terms
themselves. Creating a licensing system that functions on tests of highly
politicized aspects of a person's identity (race, ethnicity,
religious affiliation, sexual orientation, gender) may be seen as
reinforcing social categories often linked with violence and oppression.
Permissions and restrictions based on these categories have already been
encoded into the metadata protocols developed by the Indigenous
Collections Management Project.63
Although these
aspects of identity are important for many communities and may have less
controversial application in individual systems (such as a digital archive
maintained by a specific community), they may be inappropriate to
incorporate into systems intended for global information sharing. Thus,
careful attention must be placed on exploring the ethical implications of
potential licensing terms. A new licensing system will likely result from
a series of compromises between the often divergent concerns of
maintaining notions of cultural integrity and facilitating communication
and cross-cultural dialogue. It is important to recognize that one
potentially powerful aspect of using flexible licensing terms is that such
terms can be crafted to incorporate the legal and cultural viewpoints of
the creators and indigenous societies themselves. Thus, as already
mentioned, this approach allows for an extraordinary degree of
self-determination for indigenous societies.
As discussed, some possible cultural heritage licensing schemes may
highlight conflicts between indigenous values and other civil rights goals
and policies (see also Brown's recent contribution to this
journal).64
For example,
an indigenous group may wish to restrict access to certain images based on
the gender of the viewer.
65 Under such restrictions,
female students in a class would be denied to male pictures and male
students to female ones. Restricting access to educational materials in
this manner potentially violates numerous national civil rights laws. Such
conflicts, however, are not unique to online dissemination of information
or to use of permissive licensing systems. Currently, male and female
field researchers from state educational institutions must confront these
types of restrictions when they go to the physical sites to do their
research. Confronting them online and via dataset restrictions simply
reiterates the issue and brings it new focus. The most likely solution
would be for the institution subject to these laws to either negotiate
nondiscriminatory access with the indigenous group or refuse to accept the
licensing terms all together. Ethically, any educational institution that
does accept the terms must promise to enforce them. If they cannot, they
should not take the license. Lack of licenses and access to indigenous
cultures will raise the visibility of these cultural conflicts and promote
discussion and further research into ways of reconciling cultural
diversity differences.
Another initial problem will be the startup costs of creating the
first licenses. We foresee that a number of intensive rounds of discussion
will be necessary within each community to establish baseline terms for a
cultural heritage licensing system. The more communities vary in terms of
values and needs, the more difficult it will be to develop globally
applicable licensing terms. A major challenge will be choosing the
“right level” of abstraction and generalization for licensing
terms so that they will at least partially, meet a myriad of diverse
needs. However, once these baseline terms are established, transaction
costs for each subsequent access negotiation should drop dramatically and
overall efficiency should increase.
Finally, the potential exists for complex problems regarding
enforcement. For countries that have strong contractual or IP laws, this
will be less of a problem, but for countries where there are weak legal
enforcement mechanisms, cultural heritage licenses may be perceived as
worthless or too expensive to use. These problems are beyond the scope of
this paper to explore in depth, but some possible solutions would be to
either establish jurisdiction for any dispute resolutions in a foreign
country with stronger laws, through organizations like the World
Intellectual Property Organization, or via the creation of stronger legal
regimes in the country of origin.
SUMMARY
It is the context of field-based research where much of this
discussion has focused. Field research is a process that involves
developing relationships among many different stakeholders (researchers,
their colleagues and students, and members of local communities). The
some-rights-reserved frameworks discussed here can help make building
these relationships more equitable and collaborative.
For researchers, especially in the field sciences, a noncompete/do
not republish licensing term may have important ramifications for a
diversity of disciplines, many of which have the same disincentives for
sharing raw data. Effective ecological management and conservation
strategies require environmental understanding based on effective data
sharing and communication. Structuring intellectual-property incentives
along the lines of the some-rights-reserved model should encourage data
sharing, which will promote better collaboration across the sciences,
leading to more effective research, policy making, and instruction.
With respect to cultural heritage, past and ongoing abuses and
perceived abuses of indigenous IP claims have created a regrettable and
damaging climate of mistrust and antagonism between researchers and some
indigenous communities. Such antagonism has led to increasing calls for
restrictions on field science and disputes over the content and
application of such science.66
For field research to thrive, it must do more to
acknowledge indigenous IP claims and do more to formally recognize the
contributions and interests of such communities.
At the same time, attempts to respect and enforce indigenous IP rights
and claims run the risk of inhibiting communication, innovation, and
freedom by locking away native culture behind rigid legalistic barriers.
Culture is continually created, contested, shared, mixed, and hybridized.
This process unfolds within and between indigenous communities and with
other communities across the globe. Sometimes people choose to hold
information secret, sometimes they choose to share information according
to culturally diverse rules and motivations. Rigid legal categorizations
of elements of culture as belonging to a particular group can inhibit this
dynamic process of culture creation, imagination, and communication. Such
“reservations of the mind” (as expressed by Michael Brown67
) would further impoverish the
very indigenous societies that were being “protected”.
The importance of a vital global information commons must be
recognized and is a major motivation for us to discuss
traditional-knowledge, intellectual-property concerns along with
research-data, intellectual-property issues. It is our sincere hope that
voluntary, negotiated some-rights-reserved frameworks may do much to guard
against both unfair exploitation of knowledge and rigid and damaging
regimes of overprotection. Putting up predetermined barriers that impede
communication, balkanize culture, and reinforce cultural and ethnic
boundaries would profoundly curtail freedom of expression and inhibit
scientific understanding in many vitally significant areas. Ideally, the
power to structure how (and even if) communication will take place should
be held by its participants. Thus, we see great benefit in the Creative
Commons model of some rights reserved, since this model enables people to
voluntarily negotiate and set flexible terms and conditions for
communication as they deem appropriate.
ACKNOWLEDGMENTS
We would like to thank the participants of the November 19, 2004,
meeting hosted by the Alexandria Archive Institute (AAI) for their lively
debate, cautionary tales, and suggestions for developing a process to
explore cultural heritage licensing. Thanks also to Creative Commons and
Science Commons, especially John Wilbanks, Heather Ford, and Lawrence
Lessig, for their continued collaboration in this effort. Brendan Tobin,
Brewster Kahle, Glenn Otis Brown, Ruth Tringham, Margaret Conkey, Suzanne
Calpestri, and Rosemary Joyce also provided substantive and
thought-provoking insights, both at AAI-hosted meetings and in informal
conversations. Michael Brown, George Nicholas, Julie Hollowell, and
Madhavi Sunder deserve special thanks for their invaluable comments and
critiques, encouragement, and suggestions on earlier versions of this
document. Needless to say, any omissions or errors in this work are solely
the fault and responsibility of the authors. Finally, we owe special
thanks to the William and Flora Hewlett Foundation for their generous
financial support that enables this and other endeavors.
