In the age of globalization, as intellectual property rights have grown in importance, the Internet has proliferated, and new indigenous knowledge has become available, awareness of the insecurity of indigenous peoples of the Russian Arctic culture has become urgent. It is well known that the traditional cultural expressions and traditional knowledge of the indigenous peoples of the Russian Arctic have long been unrecognized as objects of intellectual property, due to the impossibility of determining the subject of law in relation to the collective rights of indigenous peoples. Traditional cultural expressions refer to tangible and intangible forms in which traditional knowledge and culture are expressed. Indigenous traditional knowledge usually refers to knowledge, skills, and practices created by indigenous peoples (World Intellectual Property Organization 2017).
The complexity of developing legal regulation of collective intellectual property in this context is determined primarily by the difference between the worldview of indigenous peoples of the Russian Arctic and the principles of European law; the latter is based on the idea of establishing rights and obligations of legal entities and individuals, especially in terms of property rights, as clearly defined by legal acts in time and space. But the cultural values of indigenous peoples, which have a complex nature, are difficult to define and fix in terms of modern legal norms.
The difficulty also lies in the fact that indigenous peoples insist on protecting their rights to traditional knowledge, which is common knowledge and has been developed by indigenous peoples and rightfully belongs to them. At present, it is legally difficult to provide legal protection and to prevent the further use of traditional knowledge for commercial purposes and to bind it with legal obligations or prohibitions.
An urgent problem for legal regulation is the collective nature of the intellectual property rights of indigenous peoples, because we are talking about a society whose composition is constantly changing as some members are born and others die, yet the rights relating to cultural heritage belong to them as bearers of tradition. This is fundamentally different from the general approach of European law, which rigidly establishes the range of subjects of ownership and the terms of the ownership rights. Therefore, the collective nature of the intellectual property rights of indigenous peoples requires theoretical justification as a new phenomenon and a definition of the term, as well as special legal regulation.
The cultural heritage of indigenous peoples is what they have rightfully inherited from previous generations and are obliged to pass on to the next; this constitutes the formal (unwritten) rights and obligations of these peoples in the sphere of intellectual property rights (Sleptsov and Petrova 2019).
In addition, the cultural heritage of the indigenous peoples of the North (living in the Russian Arctic) is inextricably linked to the circumstances and territory of traditional nature use. Accordingly, the protection of cultural heritage cannot be carried out in isolation from the preservation of territories of traditional nature use (hereinafter TOTU) and the biodiversity of these places, which, in turn, determines the protection of collective intellectual property rights as a whole set of measures—from the creation of TOTU to the regulation of predator populations to preserve biodiversity. The protection of the cultural heritage of northerners is inextricably linked to the protection of the natural environment and biological resources in the territories of traditional nature use, which corresponds to the norms of international law and the national legislation of the Arctic countries (Sleptsov 2015).
The geographical and natural features of the Russian Arctic—its remoteness from modern centers of civilization and extremely cold climate—have largely determined the vector of development of Arctic societies. As a result of adaptation to the extreme natural conditions of the Arctic Ocean coast and tundra, the traditional occupations of the indigenous population were reindeer herding, hunting, and fishing, and the associated gathering of wild-growing products and mammoth tusks. At the same time, it should be emphasized that the collective intellectual property of the indigenous peoples of the Arctic is used and developed in their everyday life and economic activities and is passed on to the younger generation of nomads.
Arctic Indigenous Peoples and Intellectual Property Law
Recently, in connection with globalization, climate change, and industrial development of natural resources of the Arctic, the issues of protection of traditional knowledge and cultural heritage of the indigenous peoples of the Arctic are especially relevant. It should be emphasized that the knowledge, skills, and abilities passed on from previous generations of aborigines, primarily in reindeer herding, are subject to protection. It is in nomadic reindeer herding that native languages, traditions and customs (unwritten rules), and the traditional food of reindeer herders are routinely used. It is only in this sphere of labor activity that the indigenous peoples do not meet with competition from representatives of the dominant society (Burtseva et al. 2019). Aspects of cultural heritage subject to protection include the names of sacred places in the Even language, spoken in Chukotka, Kamchatka, the Magadan Region, Khabarovsk Territory, and the Republic of Sakha (Yakutia); and Even traditions and customs such as nimat (the custom of giving prey as a gift to an elder to distribute it equally among neighbors) (Robbek, 2007: 144).
As we can see, the difference in the general legal approach to the protection of intellectual property rights is quite significant. Nevertheless, to a limited extent, the usual means of protecting intellectual property rights can also be applied to protect the collective intellectual property rights of indigenous peoples of the Arctic. Such means should include some provisions of copyright, patent law, and trademark law.
At the same time, we should especially note the problems of law enforcement in practice, for example, in terms of distinguishing between copying traditional cultural expressions (which is usually forbidden) and works created on the basis of traditional cultural expressions that served as a source of inspiration for the authors. For example, the minority peoples of Yakutia do not support the unauthorized copying of traditional cultural expressions by entertainers or the use of national pattern elements and products made of reindeer kamus (processed skin from the legs of a deer or moose) and fur for commercial purposes by migrants from China.
The norms of patent law are primarily aimed at promoting technological innovation and protecting new, original products and services. But for traditional knowledge, they do not meet these legal criteria. Nevertheless, the possibility for indigenous peoples to obtain patents exists if they patent not traditional knowledge, but inventions made based on traditional knowledge—the result of joint research projects, such as mobile nomadic lodges of Arctic reindeer herders or models of traditional clothing. This might include, for example, the Even technology known as chora (tripods forming the lower framework of the conical dwelling known as a chum), or models of national clothing. Even seamstresses use diamond-shaped pieces of reindeer fur (kongkechegche) as ornaments on hand-made boots (torbasy) as well as on handbags, aprons, and belts. Another design, ostakagcha (“deer hooves”) are found on aprons and sometimes on torbasy.
Trademarks, because they grant an exclusive right of use in a particular territory for specific goods and services, can be used by indigenous peoples to sell handicrafts, such as artisanal bone carvings or Sakha hunting knives. There is a precedent for Arctic indigenous peoples registering collective trademarks: the Cowichan tribe in Canada registered the Cowichan trademark on knitted garments in order to protect them from counterfeiting (World Intellectual Property Association 2017).
Changes in social attitudes toward indigenous peoples and their cultural heritage have recently begun to receive constitutional recognition. Constitutional provisions on the plurality of cultures within states, reflecting the existence of indigenous peoples, are present in various formulations in the constitutions of a number of Latin American countries (in Bolivia, Colombia, Guatemala, Nicaragua, etc.) (Andreeva 2017) .
Article 69 of the Constitution of the Russian Federation also enshrines state guarantees of the rights of indigenous peoples in accordance with generally recognized principles and norms of international law and international treaties of the Russian Federation. The state is charged to protect the cultural identity of all peoples and ethnic communities, and guarantees the preservation of ethnocultural and linguistic diversity.
Protection of collective intellectual property at the constitutional level indicates its recognition as a supreme value, which allows citizens to seek protection not only in federal and magistrate courts, but also in the constitutional court.
In Northern Europe, for example, a 2016 court decision in Norway in favor of a member of the indigenous Sami people, who refused to comply with the authorities’ order to obligatorily reduce the number of reindeer from 116 to 75, became famous. She argued in court that this violated her right to her traditional lifestyle and culture, because such a reduction in the reindeer herd would make it impossible to maintain the former traditional lifestyle in the Arctic (Hansen et al. 2017).
Also notable is the Decision of the Constitutional Court of the Russian Federation of May 28, 2019 No. 21-P on the appeal of citizen G. K. Shchukin, the head of the Dolgan community of Krasnoyarsk Territory. In 2014, Shchukin proposed to the heads of other communities that they hold a one-time hunt of wild reindeer, with a quota of eight reindeer per person, or 217 reindeer (calculated based on the population of the communities). The courts found Shchukin guilty of inciting illegal hunting. According to the Dolgan man, the application of these restrictions does not comply with the norms of the Constitution of the Russian Federation: the legislative prohibition of community members’ delegation of the right to hunt, within the established limits, to authorized hunters, is not justified. The Constitutional Court of Russia supported the position of a representative of the indigenous Dolgan people and noted the special position of the peoples of the North among other peoples of the country due to the geographical and climatic features of their habitat, almost all of which is located in the Russian Arctic. It is because of these features that the traditional livelihoods of these peoples are reindeer herding, fishing, and hunting.
Recently, questions have frequently arisen in the academic community about the rights of organizations creating digital databases of cultural heritage that rightfully belongs to indigenous peoples. There has been discussion about creating new legal mechanisms of interaction between these organizations and indigenous peoples represented by their regional ethnic associations for the realization and use of products of the collective intellectual property of individual peoples, including for educational and commercial purposes.
It cannot be overlooked that, on the one hand, indigenous peoples are interested in various new and innovative forms of preserving their original culture, including the use of digital technologies for education and for sharing information with other indigenous peoples. On the other hand, their knowledge often has a sacred side, which by its nature is not subject to wide dissemination, analogous to the protection of trade secrets. State authorities as well as scientific and cultural organizations must take this important fact into account.
Conclusion
This article shows that, on one hand, in recent years there has been significant progress in the protection of the intellectual property of indigenous peoples and an awareness of the need for such protection, using legal means and new innovative technologies.
The collective nature of indigenous intellectual property rights requires a theoretical justification of the new phenomenon and a definition of the term, as well as special legal regulations and the development of mechanisms for implementing the rights.
There is a need to develop an international legal act that would regulate the collective intellectual property rights of indigenous peoples, which would help ensure the effective protection of traditional knowledge and traditional cultural expressions. It should define the rights and obligations of individuals and organizations, as well as the status of objects in the sphere of the intellectual property rights of indigenous peoples.
The Constitution of Russia assigns the protection of the rights of indigenous peoples to the joint jurisdiction of the Russian Federation and the constituent entities of the Russian Federation. This means that the state is obliged to take into account the regional factor that reflects the specifics of indigenous life. Relevant articles of the United Nations Declaration of the Rights of Indigenous Peoples (2007) on the right to preserve and develop various aspects of culture (Articles 5, 8, 11, 12, 15, 31, etc.) are reflected in paragraph “m” of Article 72 of the Russian Constitution, which proclaims the protection of the original habitat and traditional way of life of small ethnic communities. This constitutional provision is specified in the Federal Law “On Guarantees of the Rights of Indigenous Minorities in the Russian Federation,” which guarantees the original socio-economic and cultural development of indigenous minorities, fixes the legal basis for the protection of their original habitat, their traditional way of life, their management and crafts, and along with other sectoral federal laws on wildlife, designates specially protected areas and protects indigenous education, culture, and native languages.
One of the first practical steps in the protection of the traditional cultural expression and traditional knowledge of indigenous peoples of the Arctic would be the development of an international register of the collective intellectual property of indigenous peoples under the World Intellectual Property Organization, based on a database of already registered copyrights, patents, trademarks, and geographical marks. It would be advisable to establish an international arbitration court for the collective intellectual property of indigenous peoples under the World Intellectual Property Organization. It is clear that the political will of governments as well as the creative initiative of Arctic indigenous peoples’ organizations and the scientific community are all necessary to solve this urgent problem of our time.
Acknowledgments
The article was prepared with the financial support of an RFBR grant (Project No. 20-010-00252) and a Grant of the Government of Russia No. 2020-220-08-6030
References
Andreeva, G. N. 2017. “Constitutional foundations of intellectual property rights in foreign countries.” In Pravo Intellektualnoi Sobstvennosti: Sbornik Nauchnykh Trudov [Intellectual Property Law: Collection of scientific works], ed.E. G. Afanas'eva, 9–19. Moscow: INION RAS.
Burtseva E. I., I. M. Potravny, V. V. Gassiy, et al. 2019. Ekonomika i prirodopol'zovaniia organizatsiia: vzaimodeistvie korennykh narodov Sibirii I bizneca rossiiskoj Arktike [Economics of traditional nature management: Interaction of indigenous peoples of the North and business in the Russian Arctic]. Moscow: Economics.
Hansen, Katrine Broch, Käthe Jepsen, and Pamela Leiva Jacquelin. 2017. El mundo indígena [The Indigenous World]. Copenhagen: IWGIA (International Working Group for Indigenous Affairs).
Robbek, M.E. 2007. Traditsionnaia pishcha evenov [Traditional food of the Evens]. Novosibirsk: Nauka.
Sleptsov, A. N. 2015. Regional aspects of the development of the Russian Arctic. The Arctic and the North 19: 115–133.
Sleptsov A., and A. Petrova. 2019. “Ethnological Expertise in Yakutia: The Local Experience of Assessing the Impact of Industrial Activities on the Northern Indigenous Peoples.” Resources 8(3): 123.
World Intellectual Property Organization. 2017. Protecting and Supporting Native Culture: A Practical Guide to IP for Indigenous Peoples and Local Communities. Geneva: WIPO.