You say tomato - I can’t say anything at all?
I’m a bit behind the times on this one as the story largely broke back in November but I wanted to weigh in with a few thoughts and resources.
The story in brief is that the Mapuche people of Chile are suing Microsoft for the company’s decision to release a version of its Office suite of applications in Mapudungun - the language of the majority of the Mapuche.
In an interview with Lautaro Loncon on the CBC Radio program ‘And Sometimes Y’, there was a lot of talk of the Mapuche owning their language. This is a pretty controversial assertion.
Reading and listening a bit more, though, I think the more fundamental issues are about control of culture and free and prior informed consent. A 2005 letter sent by Mapuche representatives to Bill Gates quotes from a report by a Special Rapporteur to the Sub-Commission on the Protection and Promotion of Human Rights of the UN’s Commission on Human Rights:
“Indigenous peoples’ ownership and custody of their heritage must continue to be collective, permanent and inalienable, as prescribed by the customs, rules and practices of each people. […] To protect their heritage, indigenous peoples must control their own means of cultural transmission and education. This includes their right to the continued use and, wherever necessary, the restoration of their own languages and orthographies. […] The free and informed consent of the traditional owners should be an essential precondition of any agreements which may be made for the recording, study, use or display of indigenous peoples’ heritage.”
I suppose the logic is that language forms part of heritage, we own our heritage ergo we own our language but personally, I can’t say I’m a big fan of this reasoning. Ownership of language strikes me as being dangerous for all sorts of reasons, not least being concerns associated with freedom of expression.
I do sympathize, however, with the Mapuche’s comments regarding free and prior informed consent. They are upset that Microsoft, in conjunction with the Chilean Ministry of Education, undertook to develop the software in Mapudungun without the consent, participation or counsel of the Mapuche people. Furthermore, Microsoft will undoubtedly gain some form (or even multiple forms) of intellectual property protection over the software and the company’s objectives in producing the software are obviously commercial.
There are any number of international obligations that require the prior informed consent and involvement of indigenous peoples in activities such as these. The one that I’m probably most familiar with is Article 8(j) of the CBD:
Each Contracting Party shall, as far as possible and as appropriate: … Subject to its national legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application with the approval and involvement of the holders of such knowledge, innovations and practices and encourage the equitable sharing of the benefits arising from the utilization of such knowledge, innovations and practices.
The UN Permanent Forum on Indigenous Issues held a workshop in 2005 that provides a good overview of free and prior informed consent.
I guess my point is that I don’t think the Mapuche are likely to succeed in court if they base their arguments on an assertion of some form of intellectual property right to their language. (I haven’t seen if they have any specific type of right in mind or if they are contending they have a sui generis right.) If, on the other hand, they argue that their rights to free and prior informed consent have been violated - even if these are rights that ‘only’ exist at international law and haven’t been implemented in national Chilean law - I think they are more likely to find a sympathetic ear both with the judiciary and in the court of public opinion.
Further resources:
There’s any number of news pieces on this story.
The interview with Lautaro Loncon from ‘And Sometimes Y’ can be found here. The interview starts at about the 4 minute mark of part 2 of the show. Listen to the beginning of part 3 for Cory Doctorow’s thoughts on the matter.
Microsoft’s page on the project (in Spanish) is here.
And don’t see the link between language and biodiversity? Check out this paper from WorldWatch Institute as just one explanation. A sample:
Indigenous homelands also shelter a disproportionate share of the earth’s biological diversity. Of the nine countries that together account for 60 percent of human languages, six are also what biologists call “megadiversity” countries– those with exceptional numbers of unique plant and animal species.
- from “Guardians of the Land: Indigenous Peoples and the Health of the Earth”
Posted on March 20th, 2007 under CBD, Intellectual property, Traditional knowledge • 
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April 19th, 2007 at 6:57 pm
[...] in the language of the Mapuche people of Chile. This immediately made me think of my earlier blog post on the Mapuche’s efforts to assert some sort of intellectual property right over their [...]
June 17th, 2007 at 3:39 pm
If Microsoft needed Prior Informed Consent (PIC) before writing Office in Mapudungun, how come you didn’t need PIC before analysing my patent application on your blog?
Is it ’cause I isn’t Indigenous?
Cheers, Tim
17 June
July 11th, 2007 at 5:13 pm
I can see a few reasons why I didn’t need your PIC before analysing your patent application. First, I think it probably constitutes ‘fair dealing’ under the Canadian Copyright Act although this is a bit outside my area of expertise.
Also, as I’ve said before, I’m not making money off my blog whereas Microsoft is using the Mapuche language in a commercial enterprise. (Not that I think PIC is only necessary in commercial undertakings but I think it’s a relevant consideration.)
More fundamentally, though, while I’m sure you have some cultural rights that may be akin to those of different indigenous peoples, I have hard time seeing how a requirement to obtain your PIC before discussing your patent application would protect these rights or your cultural heritage.
I can see the counter-argument already, of course. That the British (or English?) are well-known for their humour and innovative forms thereof (exhibit A: Monty Python; exhibit B, perhaps, the aforementioned Jasper Fforde) and that your patent application is a continuation of this tradition.
I’m not convinced, though, that you speak for the British people in the same way that the Mapuche representatives may speak for the Mapuche people. And I see cultural rights as being group rights of which an individual would have difficulty asserting violation all by him or herself.
December 16th, 2007 at 5:51 pm
I’m clear you didn’t infringe my rights under Canadian copyright law in quoting from my patent application. However, that doesn’t necessarily get you out of jail free (if you’ll excuse a rather inappropriate metaphor). The Rothschilds didn’t infringe the rights of the Mapuche people under Canadian copyright law (I’m fairly confident). The Mapuche may say (or someone may say on their behalf) that they are not founding their claims on national law but on international equity - possibly inducing someone to discover (or invent) a way of implementing their claimed rights in national law. If ‘prior informed consent’ is an important moral principle, perhaps it could be extended from the rights of groups to the rights of individuals - and then I would have a claim not to have my application quoted without PIC (despite having no case under copyright law).
Some other reflections.
1. WIPO doesn’t think languages count as protectable ‘traditional knowledge’. Nevertheless, this may remain an open question.
2. Article 8j seems to be the basis of most claims for protection of traditional knowledge. I’m not sure that it will take the weight often put on it. Interestingly, the word ‘protect’ doesn’t occur in the article at all: to ‘respect, preserve and maintain’ the TK is the obligation. Nothing is said about stopping other people using it. Encouraging its use with the ‘approval and involvement’ (PIC?) of the holders is perfectly consistent with tolerating its use without such A&I. It does not mandate laws that prevent such use - these must be shown to be desirable for other reasons.
3. The Human Rights report is strong on assertion and weak on support. Most of what it says may seem reasonable, but it isn’t clear why use of indigenous heritage - broadly defined - should be subject to informed consent.
4. Another way of looking at this is from the viewpoint of the public domain. People are entitled to use publicly available information without accounting to anyone, unless there’s a good reason why not. IP laws provide (arguably) some good reasons - should they be added to? Maybe, but not without clear justification (and making it reasonably clear to people what they can and cannot do).