PROTECTING THE INDIGENOUS PEOPLE’S INTELLECTUAL PROPERTY RIGHTS

A SENIOR HIGH SCHOOL RESEARCH PAPER

PRESENTED TO THE

FACULTY OF SENIOR HIGH SCHOOL

OF AMA BAGUIO

IN PARTIAL FULFILLMENT OF THE

REQUIREMENTS

FOR THE SUBJECT INQUIRIES,

INVESTOGATION AND IMMERSION

ESGUERRA, MARIA LANCE CEREZO

JUNE 2, 2022

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INTRODUCTION

The current international system for protecting intellectual property was fashioned during

the age of industrialization in the West and developed subsequently in line with the perceived

needs of technologically advanced societies.1 The Philippines is home to many indigenous peoples

and communities. Away from the megacities of Manila, Cebu, and Davao, there exist indigenous

communities living in far-flung areas and mountainous regions in the Philippines mostly

untouched by the technological advancements of urban life where the internet and skyways are

mostly unheard of. For better or for worse, these indigenous communities have remained mostly

insulated from the rigors of city life and have survived the trials of everyday life using traditional

methods of hunting, fishing, cooking, and expressing themselves through dance, music, and other

rituals. Some have ventured into living in urban towns and cities to experience the harsh realities

of modern living, only to go back to their communities in the mountains to which they truly belong.

In Philippine history, our country has been conquered by the Spaniards for more than three

hundred years. During those times, the manner of making artistic creations by our Filipino

ancestors have been influenced by the Spaniards. The latter, not just only conquered our country

for their benefit, but also helped our ancestors during those times especially to the country's

1
WIPO. Traditional Knowledge and Intellectual Property
2Cruz, C. (2017). Intellectual Property of Indigenous Peoples (IP of IP): Challenges in Protecting
Traditional Knowledge in the Philippines

2
economy, lifestyle and culture. Thus, most of our ancestors’ artistic creations are heavily

influenced by Spanish culture and less than the American and Japanese cultures.

BACKGROUND OF THE STUDY

This study aims to identify issues and needs of the Indigenous People for the protection of

their intellectual properties. It is to establish the historical essence which has long been existing,

even before modern technologies emerged as well as for the Philippine government to legislate

measures in giving importance to the recognition of these historical traditions of the Indigenous

peoples. This study will be beneficial to the NGOs, since some of them lacks information on how

to address the social issues with regards to the intellectual property rights of our indigenous people.

It has been repeatedly said, with the right information, we can achieve greater lengths.

Indigenous people in the Philippines have a vibrant and diverse culture. It is reflected in

the various traditional and cultural knowledge, rites, practices, and art. Indigenous peoples have

the right to protect these intellectual properties, including the right to protect such rights against

their inappropriate use or exploitation. This study aims to seek the protection of indigenous

people’s traditional knowledge, rites, practices, and art from commercial exploitation brought by

global trends, by enforcing historical measures and means necessary.

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THEORETICAL AND CONCEPTUAL FRAMEWORK

By studying the laws that are already present in our Philippine Laws and Jurisprudence,

the researcher intends to inculcate the traditions that have been long practiced by the indigenous

people. By studying history and other laws, the researchers would be able to determine the

possibility of creating a new understanding of our Philippine history, that would directly and

specifically protect the Intellectual Property of Indigenous Peoples’ Culture or Traditional

Knowledge.

STATEMENT OF THE PROBLEM

This paper will focus on achieving to answer the historical foundation of the emergence of

intellectual property rights of our indigenous people, by analyzing the laws, especially the

historical traditions for Intellectual Property and their application to the protection of Intellectual

Property and knowledge. Traditional or historical knowledge like the practices and the art are to

be determined as to what kind of artwork will be categorized to determine the extent of protection

it can afford under the present Intellectual Property Code of the Philippines. The inapplicability of

our present laws in protecting this traditional knowledge will then be compared or related with the

historical foundation, influences, and original Filipino culture, that are focused on protecting the

Indigenous Culture or Traditional Knowledge in their country.

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HYPOTHESIS

The Spanish and American colonialization of the Philippines institutionalized the

distinction among peoples in the country into mainstream Christian/Muslim and peripheral

tribal/minority/ indigenous populations. Through laws, the tribal/ minority/indigenous

communities were deprived of the right to their ancestral domains. Through so-called

“development” activities, they were dispossessed of the land they till for their livelihood . Their

marginalization, dispossession, and other forms of injustices continued long after the colonial rule

had gone.3 In the furtherance of our study, we will learn that there are real advantages brought

about by such countries, especially when it comes to intellectual creations of our ancestors and

also up to today. Since the intention for the creation of artistic and literary works of our indigenous

peoples is to make the exhibition of Filipino everyday life and its surroundings as authentic and as

similar to the Filipino culture as possible.

SCOPE AND DELIMITATION OF THE STUDY

This study shall be limited to studying further the history of the intellectual property rights

of indigenous people in the Philippines, with regards to their traditional knowledge. How the

history of our country during the Spanish, American, and Japanese conquest. Furthermore, how

3 Ty. Indigenous Peoples in the Philippines: Continuing Struggle . 2010

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Intellectual Property Law was made following traditional knowledge and history. As being

implemented for the benefit of the Indigenous peoples’ Intellectual Property rights. How history

still plays a great role in protecting their rights.

The researchers’ data collection is limited to the data collection from a review of existing

related literature, such as publicly available information, peer-reviewed articles, government, and

industry reports, among others, to have a better understanding and appreciation of the issues

regarding traditional cultural expressions on one hand, and the conventional intellectual property

system on the other, there is a need to discuss each separately. After knowing each component, a

discussion of how one intersects with the other shall be made. A survey of the laws on intellectual

property relevant to traditional cultural expressions shall be made followed by an analysis of its

applicability to traditional cultural expressions.

RESEARCH INSTRUMENT

In this research, I, the researcher used different questions with regards to my respondents

and they are further explained in the interviews that are conducted.

RESEARCH QUESTIONS

Interview with one of the persons available, Ms. Rose De Guzman, in Narda’s weaving, located

in Baguio City on January 31, 2022;

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 I have thought of interviewing several prospective persons, which are about indigenous

persons and their intellectual creations. The long list continues to belong, but I have chosen a store

that repeatedly catches my attention whenever I pass through the Upper Session Road in Baguio

City. Ms. Rose De Guzman is one of those persons that is available for an interview during such

time. During our talk, she agreed that many people are coming to our country, the Philippines, and

trying to get credit for everything that Indigenous People have, from natural sciences to musical

instruments, from patent laws to copyright laws. Some people come over to harness these materials

that we have and he insists that we must report it to the authorities after confirming with the elders

of the community and gaining free and prior informed consent on the matter. Getting in touch with

the elders and leaders of the community will comply with the requirement of FPIC or free and

prior informed consent.

She had shared that Narda’s weaving started in the early '70s, when its founder, Narda

Capuyan, which is where Narda’s is named after, was fond of making knits as her hobby. As it

was said that women in the early times are meant to stay at home and for them to be able to keep

themselves busy, aside from doing house chores, is to make knits, resulting in clothes, and similar

to such, by expressing distinct and unique patterns, evincing their creativity and talents, as well as

what indigenous tribe or group they belonged to. I agreed with what Ms. De Guzman explained

and raised a question regarding copyright issues of Sagada Weaving and Narda's as examples of

commercializing the original arts of the Cordillera, specifically their weaving patterns that are used

as designs of bags, sashed, clothes, and other materials. She expounded on connecting traditional

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designs and techniques with weaving textiles being commercialized. She made mention of having

no concrete laws to define the delineation between what can be controlled by the community and

which one could be commercialized and the limitations of the latter.

She had also repeated the fact that those who venture into these businesses, like them,

Narda’s weaving and Sagada weaving are also indigenous peoples themselves. The question here

is, where can we make a compromise so much so that even if entrepreneurs like Narda’s and

Sagada Weaving can develop these materials, there is a way by which they can also share it with

the community because this weaving tradition, for instance, is not just owned by families but by

the whole community just like tattooing. As my interview goes further with Ms. De Guzman, I

have learned that another example of intellectual creations is the cultural dances, which in modern

times, are allowed to be modernized to adapt to present society. That is why the protection

guaranteed in this ritual is among the following: First, people are coming into the office of NCIP

who would like to implement these rituals and traditions, but as a source of protection, and to

ensure cultural sensitivity they have to undergo the NCIP process. There is a need to be culturally

sensitive because there are areas or there are certain rituals or traditions, like traditional

performances, that require a certain process for the proper performance.

I have also shared with my interviewee the current issue about Whang-od and Nas Daily.

She states that, when it comes to this ritual connected to Wang-Od, there are certain requirements

of the community. For instance, before they can perform one activity or event, they have to appease

the spirits. They have to perform the ritual to ask permission from their ancestors. Whang-od is an

artist, which is widely known as the “mambabatok” doing the traditional way of making tattoos on

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any part of the body. We cannot prohibit her from working or from performing her craft as a tattoo

artist. She can perform but what NCIP is trying to protect is the Intellectual Property of the

community regarding these tattoo designs. These designs are not only attributed to Apo Whang-

od, but because it belongs to the community in general, they own the designs

Senator Lauren Legarda introduced the house bill with the title An Act Safeguarding the

Traditional Property Rights of Indigenous Peoples which aims at the protection and promotion of

indigenous knowledge, systems, and practices. Under IPRA there is a protection of community

property rights, this includes weaving designs. But these weaving designs, under the existing law

in the intellectual property law, have become community property. In the recent controversy, the

weaving designs, which are hand weaved by IPs, are printed with a machine, which results in the

disregard of the pattern's historical significance. With the Intellectual property law enforceable at

the present, the IPs creation cannot be protected in a way as to give significance to historical

tradition. But the bill introduced by Legarda seeks to address the said issues.

With the active participation of our weavers, at least the attention of the public and the

proper authorities are being called out regarding this issue. If the pattern that is used in the design

is the same as that of the community, the consent of the community is needed and may agree to

some stipulations wherein there will be a benefit-sharing. The right of the indigenous people to

share on the benefits in the utilization of these Intellectual Property Rights or these designs

attributable to them or this literature attributable to them. Under the IPRA, we have protection but

this protection is lacking that is why guidelines are issued on acquisition of consent. But for more

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protection, there should be registered so that at least these designs of the communities will be

perpetually protected by law, and this is the reason behind the bill which is being pushed by Loren

Legarda.

RESEARCH METHODOLOGY

The following, are the methods used in gathering specific data:

1. Researched the different cultures of indigenous people, and how the society protects their

intellectual creation, through online PDFs, journal articles, and Philippine history.

I have further researched certain papers, and topics, on how I would interrelate all the

pertinent facts I have gathered. I have researched the different historical and cultural

traditions existing, at the current time, and the knowledge and literacy of the persons

involved in my research - the indigenous people, about their intellectual properties’

protection. I have compared the information that I have gathered and collated every

information with each other. Indeed, every law that was established by the government has

similarities but varies depending on the specific rights and interests that are protected, and

most especially, laws are made in connection with the indispensable requirement, that is

the history of intellectual creations.

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2. Interview with one of the persons available, Ms. Rose De Guzman, in Narda’s weaving, located

in Baguio City, May 28, 2022;

During the interview, I have prepared several questions for the manager of Narda’s

weaving to answer. I have classified the questions in a manner that our interviewee would

be able to smoothly explain the current issues, stand, and ways of protection, with regards

to the intellectual property rights of the indigenous people. The questions focused on her

opinions and stand towards the questions, which is about intellectual property rights of

indigenous persons since they are persons belonging to indigenous groups, who create a

distinct and unique weaving to express their tradition, history, and culture, as well as to

earn profit.

3. Watched several documentary films and videos with regards to the cry of our indigenous

peoples’ protection of their intellectual property rights, which are long not addressed by proper

authorities.

To support my findings on this topic, I have researched the different documentary films

about the battle cry of our indigenous peoples. One of the things these indigenous tribes

are being deprived of is education. Having an education is a privilege and not all of us,

citizens of the Philippines have the privilege to study. It has also been long said that

education is the key to success. Once a person has finished education, at least at the basic

level, he has already a piece of knowledge on how the world revolves and how money and

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 career make the world go around. Having been located in a secluded area where such is far

from the commercial and business areas of a province or a city, our indigenous peoples are

having a hard time adapting to the modern changes brought by science and technology. As

for them, they are contented with the way they live, the way they do things, as well as the

manner of their survival, so long as their basic needs are met. Concerning my topic, their

intellectual creations are easily being copied and exploited by persons who are more

knowledgeable with regards to making money out of such creations. The just compensation

that our indigenous people are entitled to, with regards to their intellectual creations are

being deprived of them, and absent of the recognition that they deserve.

PRESENTATION, ANALYSIS AND INTERPRETATION OF DATA

It is embodied in our Philippine history that, our country “recognizes and promotes the

rights of indigenous cultural communities within the framework of national unity and

development.” 4 This aligns with the mandate of the Indigenous Peoples Rights Act stating that

"the State shall protect the rights of ICCs/IPs to their ancestral domains to ensure their economic,

social and cultural well-being and shall recognize the applicability of customary laws governing

property rights or relations in determining the ownership and extent of ancestral domain.” 5 This

cultural well-being should inculcate traditional knowledge as part of the identification being

4 Section 22, Article II, 1987 Constitution.

5 Section 2 (b) R.A. No. 8371

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protected and recognized in the laws. But policies are not the primary consideration in the conduct

of this research. The essence of Philippine history continuous to become vague, especially to the

younger generations, that we forget to value our country’s cultural traditions and knowledge with

regards to these matters. If our legislators and proper authorities are knowledgeable enough with

regards to our ancient history with regards to our indigenous persons, then the laws to be made

and implemented shall follow.

Table of indigenous peoples’ intellectual creations protected, and their examples:

(1) Literary and artistic works (2) Designs are protected by (3) symbols, names, and

are protected by copyright and industrial design; images are protected by

related rights trademark.

Examples:

Examples: Examples:
WIPO has defined an

(a) Books, pamphlets, articles industrial design as “Signs capable of

and other writings; (b) “constitutes the ornamental or distinguishing the goods or

Periodicals and newspapers; aesthetic aspect of an article. services of one enterprise from

(c) Lectures, sermons, An industrial design may

those of other enterprises."18
addresses, dissertations consist of three-dimensional
In commercial business, it is
prepared for oral delivery, features, such as the shape of
the visible sign that

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whether or not reduced in an article, or two-dimensional differentiates the products or

writing or other material form; features, such as patterns, services of one from that of

(d) Letters; (e) Dramatic or lines, or colors.6 another. It creates name recall

dramatico-musical and goodwill that serves

compositions; choreographic several functions to the
works or entertainment in product or service that it
dumb shows; (f) Musical
represents. It may include a
compositions, with or without
name, symbol, logo, emblem,
words; (g) Works of drawing,
figure, letter, or word. The
painting, architecture,
most popular trademarks in the
sculpture, engraving,
world include Google,
lithography or other works of
Facebook, and IBM.7
art; models or designs for

works of art; (h) Original

ornamental designs or models

for articles of manufacture,

whether or not registrable as

an industrial design, and other

works of applied art; (i)

Illustrations, maps, plans,

sketches, charts and three-

6Cruz, C. (2017). Intellectual Property of Indigenous Peoples (IP of IP): Challenges in Protecting
Traditional Knowledge in the Philippines
7 Ibid.

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dimensional works relative to

geography, topography,

architecture or science; (j)

Drawings or plastic works of a

scientific or technical

character; (k) Photographic

works including works

produced by a process

analogous to photography;

lantern slides; (l) Audiovisual

works and cinematographic

works and works produced by

a process analogous to

cinematography or any

process for making audio-

visual recordings; (m)

Pictorial illustrations and

advertisements; (n) Computer

programs; and (o) Other

literary, scholarly, scientific

and artistic works.

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 Indigenous Peoples refer to those who have continuously lived as organized communities

in defined territories (ancestral domains) since time immemorial, and they have retained some or

all of their own social, economic, cultural, and political institutions8. The culture, tradition, and

history of Indigenous peoples that should be protected do not only include their ancestral lands

and domains but extends to their intellectual creations. Further, ICCs/IPs have the right to practice

and revitalize their cultural traditions and customs. Intellectual creations of IPs/ICCs are

considered traditional knowledge which is in the form of traditional expressions, practices, and

beliefs, and which is an important community right of indigenous communities that must be

respected and protected. Furthermore, there is a present insufficiency in recognizing the essence

of Philippine history towards the manner of protection for the intellectual property of our

indigenous people because our legislators also lack the proper knowledge in understanding ancient

history about intellectual creations.

As cited above, in the case of Apo Whang-od, while there were settlements made with Nas

Academy, according to Ms. De Guzman, the team handling the case intended to use as legal basis

the free prior and informed consent to litigate the case, premised on the fact that the tattoo design

and traditional method of tattooing are communally owned by a tribe of Apo Whang-od. They did

not intend to use the Intellectual Property Code since traditional knowledge such as the tattoo

8 Republic Act No. 8371, Sec. 3

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designs and methods of Apo Whang-od are not protected under that law. However, a problem

arises when all the IPs consented or all their consent was vitiated, which means that the free prior

and informed consent would no longer lie as a defense. By this, we can infer that not only that the

problem lies whether or not the designs made by Apo Whang-od should be protected even though

they shall be copied by Nas Daily, but the fact that the essence or the purpose on how Apo Whang-

od’s art is inspired by her cultural tradition and knowledge towards the indigenous or tribal group

she belonged to.

Also, according to Ms. De Guzman, the commercialization of the intellectual creations of

IPs/ICCs, whether by the IPs/ICCs or third persons, still requires the free prior and informed

consent of the whole indigenous community, as a consequence of communal ownership.

Furthermore, while commercializing such intellectual creations promotes cultural development, it

may be prone to more cases of infringements and unfair competition. As a consequence, the

historical value of the intellectual creations of our indigenous persons has been becoming less, for

it is slowly not being known and recognized. The significance of making such is that indigenous

persons express their cultural knowledge and traditions to making such arts and literary pieces, for

us, the society to recognize. Not only to recognize but to make them feel that they are part of the

community, despite the modernization introduced by foreign entities and personalities.

As discussed above, Narda’s Handwoven Arts and Crafts are just one of those companies,

wherein an Igorot entrepreneur helped popularize Cordillera's woven fabrics locally and overseas

in the 1970s. Concerning the findings above, weaving is one of how our indigenous people express

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their traditions, and it also serves as their representation. Sadly, none of our laws specifically

protects such weaving, as an art and expression, created by our indigenous people. The lack of

intellectual property protection gives way for manufacturers in earning a profit, by effortlessly

copying specific designs, through the use of machines and high-technology processes. As

discussed, our country lacks specific intellectual property protection, which is clamored by our

indigenous people.

In essence, most of the people in our society nowadays continue to patronize foreign and

imported goods, well, in fact, domestic goods like the ones made by our indigenous persons should

be patronized first by us, the citizens of the Philippines. We can also learn that, many foreigners

who visit the country are very fond of learning our traditions, cultures, and history, that they go

beyond means to learn such. Eating our traditional foods, learning our traditional or tribal dances,

and even speaking Tagalog, are just ways on how foreign people appreciate the existence of our

traditional cultures, which we, ourselves slowly forget and despise to patronize. It is also very

rampant that many foreign persons gave positive feedback with regards to the history of our

country. We are so busy patronizing and being fond of foreign products and practices that it is the

reason for the extinction of our original culture and historical foundation.

SUMMARY, CONCLUSION AND RECOMMENDATION

One of the factors that make history forgotten is the fact that people have different beliefs

and lacks the virtue of empathy. One of the famous quotes’ states, "No man is an island.” The

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cultural property, whether tangible or intangible, of the indigenous peoples is a vital part of their

identity, and therefore, must be protected. Their heritage has been passed on from their ancestors,

and the State as Parens Patriae shall ensure that they will still be passed onto future generations .

We can infer from our findings that our legislators do not give ample importance as regards the

historical foundation of the artistic and literary creations of our ancestors. No man can survive

alone without the help of others, or at least without the presence of others. Even though it can be

easy for us to say that we don't need other people and that we have all the things we want, such

thought hurts our personalities. One of the effects is that people often do not care about what others

are going through mainly because it does not primarily affect them. It is known that these creations

can generate more profit from those technology-based businesses. As such, they are not having

any economic benefits with regards to the artistic works they are creating. They are enduring a lot

of sacrifices in crafting such masterpieces but they do not get any reward, compensation, or

recognition towards such. We are wrong for expecting that they want such, what they only want

is for their works to be protected as well as to equally compete with the modern business in the

same line of business.

The internet is a powerful platform nowadays and especially now, during the time of

pandemic because most individuals are using it either as part of daily routine, for their business,

for education, or for many useful purposes. Some have formed organizations to support and protect

the rights of the indigenous people to their intellectual properties, some have taken advantage of

the weakness of the indigenous people by stealing or misappropriating their traditional knowledge.

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The help of modern technology, we can educate persons more about the creations of our indigenous

peoples, and how the viewers can help them in exhibiting as well as encouraging them to create

more of them, also as a form of earning for a living and producing products which are from their

original culture and traditions, distinct and genuine from every other indigenous tribe.

Even despite the difficulties that the current copyright system presents, it has a sufficient

basic framework to offer protection to the works of indigenous cultures. The creation of another

system would entail a waste of resources, which most countries could not afford. Another

important advantage to using copyright protection is that the entire world has a uniform system

about works subject to such protection. Efforts to adjust existing legal mechanisms will serve as

the foundation for preventing further violations of the rights of indigenous cultures and for

according respect to their works of art. Providing effective protection for works of indigenous

cultures ensures the survival of their history and gives citizens of developing countries a potential

source of income. With this protection, governments can obtain new economic resources and

promote prosperity in their countries, especially among indigenous peoples who are often forgotten

by their national authorities.9

In our small ways, we can help them by joining conferences, webinars, and other talks

which explain and tells the story of our indigenous peoples' struggles through the years as well as

how they battle with the challenges of the modern world. After all, we are stewards of God’s

creations. Thus, even though the principal subject of this research is about the literary and artistic

9 Ibid.

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creations of our indigenous people, tangible or not, their creators cannot fully protect them, so we,

the more educated ones, can help them in protecting such as well as to help them address further,

their needs to the government and proper authorities.

Due to the continuous failure of the government to protect the intellectual creation of our

indigenous peoples, they already lacked the trust and confidence in the former. Our social workers

are known to be skilled in such area, and by this, our indigenous peoples can take baby steps to

trust them as well as to build confidence to be reposed upon them, as representatives that they will

clearly and effectively address such problems, difficulties and challenges to the government, and

for the latter to enact proper measures to help our indigenous peoples. The researchers recommend

to future researchers that the conduct of additional learnings with regards to the way of life,

tradition, practice, and cultural heritage of our indigenous people is an indispensable requirement

for our legislators and proper authorities, to formulate an effective and genuine way to protect the

rights of the indigenous people. One of the effective ways to protect the intellectual art and literary

pieces that our ancestral tribes or groups make is to label them. Labeling them as one of that

precious art that is made creatively, and giving recognition to the indigenous people's talents and

skills, in exhibiting them to the public for consumption as well as returning to our indigenous

peoples', the just compensation that they are entitled to.

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