0.8 Traditional knowledge  (Page 3/24)

In  Australia , TCEs are protected through traditional copyright law. For example, in  Milpurrurru v. Indofurn Ply Ltd. , aboriginal Australian artists sued to prevent the importation by a Perth-based company of carpets manufactured in Vietnam, upon which were reproduced the designs of several prominent aboriginal artists without their permission. The designs had been copied from a portfolio of artworks produced by the Australian National Gallery. The federal court awarded the aboriginal artists substantial damages for copyright infringement and granted an injunction against any further infringement. The court pointed out that the unauthorized use of the artwork involved the pirating of cultural heritage and that such behavior could have far reaching effects on the Australian cultural environment. It was deemed especially offensive that the images had been used on a medium (carpet) that was designed to be walked upon.

Other nations have begun using trademark law to protect TCEs, even when TCEs are not mentioned in national statutes. For example, in  Canada, New Zealand  and the  United States , as well as  Australia , indigenous people have sometimes relied (with varying degrees of success) upon trademark law or its equivalent to protect tribal names and other designs and motifs against unauthorized use by others. Considerable efforts have also been made to protect sacred and culturally significant symbols as well as collective and certification marks under traditional trademark law. For instance,  Australia provides for design registration, which allows for the registration of features of shape, configuration, pattern or ornamentation applicable to an article. This system protects the visual form for 16 years, provided that it is new and original and is not based on a pre-existing design. Still, because of the originality requirement, this system has not yet been effective for protecting folklore. More effective is the system used in  New Zealand . There, the recently adopted  Trade Marks Act of 2002 , prevents the registration of trademarks based on Maori text or imagery where the use or registration of such marks would be offensive to the Maori. The Commissioner of Trade Marks has set up a Maori Advisory Committee to advise on whether the proposed registration or use of a mark is likely to be offensive.

Although the  United States  has not acted to provide general protection for indigenous peoples' traditional knowledge, it has sometimes adopted narrow statutes in response to Native Americans' attempts to regain self-governance and to control the use of their traditional knowledge by non-community members. Efforts of this sort include:

• the  Antiquities Act of 1906  (16 U.S.C. §§ 431-33 (2000)), giving the President power to set aside as national monuments certain historic landmarks, structures and other objects of historic interest,
• the  Historic Sites, Buildings and Antiquities Act of 1935  (16 U.S.C. §§ 461-67), empowering the National Park Service to restore, reconstruct, and maintain sites and objects of historic interest,
• the  National Historic Preservation Act of 1966  (16 U.S.C. § 470), providing for the maintenance of a National Register of Historic Places and requiring the Secretary of the Interior to establish a program to help Native American tribes to preserve their properties, taking into account tribal values,
• the  Native American Arts and Crafts Act  (25 U.S.C. § 305 (2000)), intended to assure the authenticity of Native American artifacts, and
• the  Native American Graves Protection and Repatriation Act  (“NAGPRA”)( 25 U.S.C. § 3001(1)-(13) (2000)), which provided that the ownership or control of Native American cultural items excavated or discovered on federal or tribal lands remained with lineal descendants, Native American tribes, or Hawaiian Organizations.