NOTE: While we are discussing matters relating to the law, this post is not meant as legal advice.
Fans of Mukurtu CMS, a digital archeology platform, as well as intellectual property nerds may already be familiar with Traditional Knowledge labels and licenses, but for everyone else here’s a quick introduction. Traditional Knowledge labels and licenses, were specifically created for researchers and artists working with or thinking of digitizing materials created by indigenous groups. Although created more educational, rather than legal value, these labels aim to allow indigenous groups to take back some control over their cultural heritage and to educate users about how to incorporate these digital heritage items in a more just and culturally sensitive way. The content that TK licenses and labels cover extends beyond digitized visual arts and design to recorded and written and oral histories and stories. TK licenses and labels are also a standard to consider when working with any cultural heritage created by marginalized communities. They also provide an interesting way to recognize ownership and the proper use of work that is in the public domain. These labels and licenses are administered by Local Contexts, an organization directed by Jane Anderson, a professor at New York University and Kim Christen, a professor at Washington State University. Local Contexts is dedicated to helping Native Americans and other indigenous groups gain recognition for, and control over, the way their intellectual property is used. This organization has received funding from sources including the National Endowment for Humanities, and the World Intellectual Property Organization.
Traditional knowledge, or TK, labels and licenses are a way to incorporate protocols for cultural practices into your humanities data management and presentation strategies. This is especially relevant because indigenous cultural heritage items are traditionally viewed by Western intellectual property laws as part of the public domain. And, of course, there is a long and troubling history of dehumanizing treatment of Native Americans by American institutions, as well as a lack of formal recognition of their cultural practices, which is only starting to be addressed. Things have been slowly improving; for example, the Native American Graves and Repatriation Act of 1990 was a law specifically created to address institutions, such as museums, which owned and displayed people’s relative’s remains and related funerary art without their permission or the permission of their surviving relatives (McManamon, 2000). The World Intellectual Property Organization’s Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (IGC) has began to address and open up conversations about these issues in hopes of coming up with a more consistent legal framework for countries to work with; though, confusingly, most of what Traditional Knowledge labels and licenses apply to are considered “Traditional Cultural Expressions” by WIPO (“Frequently Asked Questions,” n.d.).
To see these labels and licenses in action, take a look at how how these are used is the Mira Canning Stock Route Project Archive from Australia (“Mira Canning Stock Route Project Archive,” n.d.).
The main difference between TK labels and licenses is that TK labels are an educational tool for suggested use with indigenous materials, whether or not they are legally owned by an indigenous community, while TK licenses are similar to Creative Commons licenses — though less recognized — and serve as a customizable supplement to traditional copyright law for materials owned by indigenous communities (“Does labeling change anything legally?,” n.d.).
The default types of TK licenses are: TK Education, TK Commercial, TK Attribution, TK Noncommercial.
TK Licenses so far (“TK Licenses,” n.d.)
Each license and label, as well as a detailed description can be found on the Local Contexts site and information about each label is available in English, French, and Spanish.
The types of TK labels are: TK Family, TK Seasonal, TK Outreach, TK Verified, TK Attribution, TK Community Use Only, TK Secret/Sacred, TK Women General, TK Women Restricted, TK Men General, TK Men Restricted, TK Noncommercial, TK Commercial, TK Community Voice, TK Culturally Sensitive (“Traditional Knowledge (TK) Labels,” n.d.).
A TK Women Restricted Label.
“This material has specific gender restrictions on access. It is regarded as important secret and/or ceremonial material that has community-based laws in relation to who can access it. Given its nature it is only to be accessed and used by authorized [and initiated] women in the community. If you are an external third party user and you have accessed this material, you are requested to not download, copy, remix or otherwise circulate this material to others. This material is not freely available within the community and it therefore should not be considered freely available outside the community. This label asks you to think about whether you should be using this material and to respect different cultural values and expectations about circulation and use.” (“TK Women Restricted (TK WR),” n.d.)
Wait, so is this a case where a publicly-funded institution is allowed to restrict content from certain users by gender and other protected categories?
The short answer is that this is not what these labels and licenses are used for. Local Contexts, Mukurtu, and many of the projects and universities associated with the Traditional Knowledge labels and licensing movement are publicly funded. From what I’ve seen, the restrictions are optional, especially for those outside the community (“Does labeling change anything legally?,” n.d.). It’s more a way to point out when something is meant only for members of a certain gender, or to be viewed during a time of year, than to actually restrict something only to members of a certain gender. In other words, the gender-based labels for example are meant for the type of self-censorship of viewing materials that is often found in archival spaces. That being said, some universities have what is called a Memorandum of Understanding between a university and an indigenous community, which involve universities agreeing to respect the Native American culture. The extent to which this goes for digitized cultural heritage held in university archives, for example, is unclear, though most Memorandum of Understanding are not legally binding (“What is a Memorandum of Understanding or Memorandum of Agreement?,” n.d.) . Overall, this raises lots of interesting questions about balancing conflicting views of intellectual property and access and public domain.
Does labeling change anything legally? (n.d.). Retrieved August 3, 2017, from http://www.localcontexts.org/project/does-labeling-change-anything-legally/
Frequently Asked Questions. (n.d.). Retrieved August 3, 2017, from http://www.wipo.int/tk/en/resources/faqs.html
McManamon, F. P. (2000). NPS Archeology Program: The Native American Graves Protection and Repatriation Act (NAGPRA). In L. Ellis (Ed.), Archaeological Method and Theory: An Encyclopedia. New York and London: Garland Publishing Co. Retrieved from https://www.nps.gov/archeology/tools/laws/nagpra.htm
Mira Canning Stock Route Project Archive. (n.d.). Retrieved August 3, 2017, from http://mira.canningstockrouteproject.com/
TK Licenses. (n.d.). Retrieved August 3, 2017, from http://www.localcontexts.org/tk-licenses/
TK Women Restricted (TK WR). (n.d.). Retrieved August 3, 2017, from http://www.localcontexts.org/tk/wr/1.0
What is a Memorandum of Understanding or Memorandum of Agreement? (n.d.). Retrieved August 3, 2017, from http://www.localcontexts.org/project/what-is-a-memorandum-of-understandingagreement/
Christen, K., Merrill, A., & Wynne, M. (2017). A Community of Relations: Mukurtu Hubs and Spokes. D-Lib Magazine, 23(5/6). https://doi.org/10.1045/may2017-christen
Educational Resources. (n.d.). Retrieved August 3, 2017, from http://www.localcontexts.org/educational-resources/
Lord, P. (n.d.). Unrepatriatable: Native American Intellectual Property and Museum Digital Publication. Retrieved from http://www.academia.edu/7770593/Unrepatriatable_Native_American_Intellectual_Property_and_Museum_Digital_Publication
Project Description. (n.d.). Retrieved August 3, 2017, from http://www.sfu.ca/ipinch/about/project-description/
Thank you to the Rare Book and Manuscript Library and Melissa Salrin in the iSchool for helping me with my questions about indigenous and religious materials in archives and special collections at public institutions, you are the best!