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Aboriginal copyrights
to be reviewed next year
PROTECTION: Applications by Aboriginal tribes
for the return of naming rights and intellectual property rights to the tribes
will be assessed by March, authorities say
By Yang Chiu-ying and Jake Chung / Staff reporter, with Staff
writer
Members of the Sakizaya tribe
perform a ritual to the fire god in this undated photo.
Photo provided courtesy of the Sakizaya Association for Cultural and Educational
Promotion
A traditional Kavalan wood
carving.
Photo provided courtesy of the Kavalan Development Association
Applications by Aboriginal tribes to have
the ownership of original Aboriginal naming rights, intellectual property and
other items returned to the tribes, in accordance with the Indigenous Peoples
Intellectual Property Act (原住民族傳統智慧創作保護條例), are to be reviewed by March next
year.
According to Huang Chu-cheng (黃居正), Institute of Law for Science and Technology
assistant professor at Tsing Hua University — the facility commissioned to
review the applications — the nation’s 14 officially recognized Aboriginal
tribes have from earlier this year gradually started to apply for protection of
their respective tribal intellectual property.
The 14 Aboriginal tribes are the Amis, Atayal, Paiwan, Bunun, Puyuma, Rukai,
Tsou, Saisiyat, Tao, Thao, Kavalan, Truku, Sakizaya and Sediq. Each of the
recognized tribes has their own distinct language, culture, customs, traditions
and social structures.
Huang said that the applications for protection range from the rights to the
name Kavalan, rights to the symbols on glass beads reserved for use by the
Paiwan chieftains and the clothing worn by the Tsou, to the Sediq’s witchdoctors
and their traditional ways.
All ownership rights connected with the items, names, symbols and other
intellectual property that pass the review next year would be returned to the
applicable Aboriginal tribes, he added.
The act is retrospective, in accordance with the concept of transitional justice
— reparations made by a democratic government to people it had previously
wronged — meaning any trademarks formerly granted would be revoked, unless the
former trademark applicant agreed terms with the new holder of the registration
rights and agreed to compensate the owner, in return for authorization to use
trademarked items, Huang said.
Companies or people that use names or items that originally belonged to
Aboriginal tribes could potentially be restricted from using that item, product
or name, should the tribe’s application pass the review, he said.
Huang said that the Council of Indigenous Peoples (CIP) has recently refused
nearly every request to use names or any item of Aboriginal intellectual
property forwarded to the agency by the Ministry of Economic Affairs.
He added that corporations and companies should avoid using any pictures,
objects of art, music or names that could be subject to Aboriginal intellectual
property claims.
Netizens should also avoid posting pictures and symbols of particular Aboriginal
signs online. If such signs have to be posted on the Internet for a particular
reason, permission from the relevant tribes should be obtained to prevent future
problems, Huang said.
According to the act, if a business owner does not cease current usage of
Aboriginal names or objects, the rights owner may ask for governmental action to
exclude or prevent the business from using the copyright.
Purposeful or accidental infringement of exclusive rights to intellectual
property are obliged to be compensated, and the owner of the rights may demand
an amount after calculating damages according to regulations under the act.
If damages cannot be easily calculated, the rights owner can ask the court to
fine the copyright violator with a fine ranging from NT$50,000 (US$1,709) to
NT$3 million. If the court finds that an infringement of copyright was
intentional and the form of infringement is great, the fine may be raised to
NT$6 million.
However, Huang also noted difficulties in policy implementation because of
difficulties getting into contact with the tribes in question.
Citing popular singer A-mei (張惠妹) as an example, Huang said that A-mei — a
member of the Puyuma (卑南) tribe — had incorporated parts of the tribe’s music
into an album she released three years ago, but when the company asked whom it
should ask for authorization of the music’s use, nobody knew who should be
contacted.
The Daba Lioujiou Community (大巴六九部落) in which A-mei grew up offered a temporary
solution by giving authorization to the record company in the community’s name,
but pointed out that proper channels were hard to follow because no one knew
what the channels were, Huang said.
Commenting on the issue, CIP Minister Sun Ta-chuan (孫大川) said the act is still
in its trial-run phase and there were indeed some difficulties in the
implementation of the policy.
A balance between the protection and promotion of Aboriginal culture must be
struck to ensure a win-win situation, Sun said, adding: “This is a double-edged
sword and we must proceed extremely cautiously precisely because it is
difficult.”
Lee Chun-jun (李俊仁), CEO of Kamalan (葛瑪蘭) Bus Inc, whose Chinese characters are
homophonous to that of the Kavalan tribe’s, said his company is willing to
recompense the Kavalan tribe for the use of its name and would be negotiating
with the tribe over the details.
The company would receive the necessary authorization and do the necessary
paperwork, he added.
However, the Taiwan Railway Administration (TRA) was not so understanding. TRA
spokesperson Lu Chieh-shen (鹿潔身) said the retrospective application of the act
would not only impact heavily on the TRA, but also make the whole of Taiwan more
chaotic.
Singling out the TRA’s Taroko and Puyuma trains, as well as Taimali (太麻里),
Jhihben (知本) and other stations that have Aboriginal names, Lu said that as
these were either given local area names or were named after certain events,
they should not be penalized by the act.
The TRA would continue to study the Act and acquaint itself with its particulars
before making any decisions, he said.
Formosan Naruwan Hotel & Resort Taitung assistant general manager Chen
Hsiu-chieh (陳修頡) said that the word “Naruwan” means “welcome” and “hello” in the
Puyuma language and is similar to the Hawaiian word “Aloha.”
It is widely used in many song titles and official video clips, Chen said,
adding that although the resort would further study the Act to determine how to
react, the hotel currently does not feel that it has violated the law.
Meanwhile, the director of the blockbuster film Warriors of the Rainbow: Seediq
Bale, Wei Te-sheng (魏德聖), praised the Act, saying: “I feel it is good to have
such a law. Now movies, TV shows and other cultural and creative industries that
need to use Aboriginal intellectual properties can find the proper people to go
to and obtain legal authorization to use them.”
Additional reporting by Tseng Hung-ju and Tsai Po-chieh
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