Protection of the Indigenous People’s Intellectual Property Rights

By:

Sokande, Omar Eisa

Presented to:

De La Salle University
Department of History

1
 ABSTRACT

It is no doubt that the Philippines is known for its diverse culture and traditions, coming
from every region, which, most of them are still practiced today. They are our traditional
knowledge, like performing art or artistic works. They are preserved and protected against
extinction and unnecessary modifications and alterations. We, as Filipino citizens, are encouraged
to instill culturalism in the next generations, through the principle of intergenerational
responsibility. The culture and traditional heritage are distinguishing marks of Filipinos; it is
distinguished from most countries. The best portrayal of their identity comes from artistic works
and performances worldwide. Our Philippine history plays a great role with regards to the shaping
of our cultural heritage as well as the creation of artistic and literary works, especially of our
indigenous people belonging to specific tribes and groups in every region of our country.

Indigenous peoples have argued consistently that if indigenous knowledge is to be

respected and protected then attention needs to be given to the manifold indigenous laws and
governing structures that historically and contemporarily exist for regulating knowledge use. That
is, indigenous laws need to be treated as legitimate and given appropriate authority, rather than
dismissed and/or supplanted with national or international laws.1

However, the downside of the commercialization of ethnic and cultural knowledge is the
opening of the door to alteration, modification, and usually infringement. The essence of our
Philippine history is vague nowadays when it comes to an understanding of how to protect
traditional knowledge and practices in our Intellectual Property Code. In addition to the latter,
modern people, including us, do not give significance to history anymore because of the modern
world where technologies and machines portray convenience towards our artistic creations. We
are fortunate that we get to experience and easily learn the benefits of the modern world, but what
about our Indigenous People belonging to secluded areas where modern technologies cannot
reach? We will study how history plays a great role in shaping the culture and traditions of
Indigenous Persons, as well as how history shaped some of the manners of their artistic and historic
designs, which became known due to its distinct and unique features.

CHAPTER I: 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.2

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
1
Center for Study of the Public Domain. Indigenous/Traditional Knowledge & Intellectual Property
2
WIPO. Traditional Knowledge and Intellectual Property

2
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. 3

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
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. 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.4

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.

Significance 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.

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

3 Cruz, C. (2017). Intellectual Property of Indigenous Peoples (IP of IP): Challenges in Protecting
Traditional Knowledge in the Philippines
4 Ty. Indigenous Peoples in the Philippines: Continuing Struggle. 2010

3
people’s traditional knowledge, rites, practices, and art from commercial exploitation brought by
global trends, by enforcing historical measures and means necessary.

Limitations

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
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.

Conceptual Framework

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.

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.

4
 CHAPTER 2: REVIEW OF RELATED LITERATURE

With the arrival of the Spaniards in the Philippines during the 16th century, Filipinos were
introduced to artistic paintings. During the 16th-19th century, Catholics controlled Filipino art and
the Spanish took over the Philippines. This led to most paintings in the Philippines is done to aid
the Catholic church. In contemporary Philippine art, we mean art that has been created within the
past few years. Filipino art has been influenced by a wide range of cultures and traditions . As a
result of the colonizers who arrived in the country, it possessed qualities of the Renaissance,
Baroque and Modern Periods. Philippine art is what makes it Filipino. By depicting scenes from
everyday life and the surroundings without idealizing them, the artist hoped to represent the
Filipino soul and native land in its true spirit. The local magic realists maintain a sense of genre,
keeping them from becoming completely derivative.5

In the paper presented by the De La Salle University (DLSU) at the 10th DLSU Arts
Congress in 2017 entitled, Intellectual Property of Indigenous Peoples (IP of IP): Challenges in
Protecting Traditional Knowledge in the Philippines6, they discussed that with their unique
traditions, cultures, and practices, indigenous people have been set apart from the conventional
world and as a result has become alienated from the mainstream societies. Indigenous people have
been branded as “different” and, as a consequence, neglected by the states that govern them and
by society as a whole. They have become aliens to their homeland. It presented the challenges in
protecting traditional knowledge and made recommendations on how to better protect traditional
knowledge through harmonizing existing intellectual property protection to traditional knowledge,
if this is possible, and having a sui generis kind of protection.

Issues regarding intellectual property laws of traditional knowledge, indigenous peoples,

and indigenous cultural Communities sparked the plug when different claims arose nationally and
internationally. Concerning the article posted online by Inquirer.net, One of the most apparent
news that broke out in 2018 is the Nas Academy and Whang-od case. In 2018, Nas Academy had
advertised tattoo lessons of Apo Whang-od, a Kalinga Tattoo Artist in the Philippines, who uses
traditional tattooing, the former alleging to have obtained the consent of Apo Whang-od in
vlogging the said tattoo lessons. Nas Academy was called out for committing “cultural
appropriation” since the consent made by Apo Whang-od was vitiated, considering that there was
no proper disclosure of the details and impact of the online content of Nas Academy.7

Even assuming that the consent of Apo Whang-od was not vitiated, Nas Academy violated
the right of the whole cultural community of Apo Whang-od since the tattoo art, design, and
technique of the latter is communally owned and requires the free prior consent of the members
belonging to Apo Whang-od's indigenous community. From the case of Apo Whang-od, it can be
inferred that there are no sufficient laws to protect the intellectual property rights of Indigenous
Peoples, and history is being swayed or left vaguely by our legislators. In short, the history of the
5 Britney. What did the Philippines create in art? 2021.
6 Cruz, C. (2017). Intellectual Property of Indigenous Peoples (IP of IP): Challenges in Protecting
Traditional Knowledge in the Philippines
7 Cabreza. NCIP finds Nas Daily deal with Whang-od ‘onerous’. 2021.

5
intellectual creations like the artistic way of Wang-od's making a body tattoo is not given essence
that is why, it is not protected as intellectual property of Whang-od, resulting in the alienation of
foreign persons like Nas Daily, to generate profit. In the assumption that the protection afforded
by the Intellectual Property Code on the tattoo designs is no longer viable, the only remedy left is
compliance with the free and prior informed consent process. However, a problem arises when the
community consents to the exploitation of their intellectual rights which leaves the IPs/ICCs
without legal remedy and just easily gives up the historical essence of why such intellectual
creations emerged.

Another case relates to the entry of fake indigenous weaves into the Philippines from
China. Cloth weavings are a living tradition that is kept and is preserved until today. During the
pre-colonial years of the Philippines, such art is created by Cordilleran tribes coming from the
Northern part of the Philippines. We can see that such weavings of its kind are still being made
until now. One example is the Pinya cloth which came from the province of Antique, Aklan. The
said Pinya cloth has been made using the fragile hands of women in such tribes. Their hands are
said to be so soft that they are the only ones who can make such fabrics coming from Pinya and
resulting into a cloth, either used for garments, or as daily clothing. Until today, Pinya has been
the main or indispensable material in making the Philippine costumes such as the Barong Tagalog,
and the Baro’t Saya. Unfortunately, these counterfeit garments featured the designs of the
country’s famous Cordillera weaves. Reports revealed that the machine-made replicas have spread
throughout local markets, urging local weavers to demand protection from the government. Some
Provinces like Mountain Province have promulgated resolutions prohibiting the sale of machine-
made replicas. The same with Baguio City Council introduced and in the process of creating a bill
that has a similar purpose of protecting the creations of the indigenous people. The purpose of the
said bill was to promote the historical and traditional process of making the weavings.

The first historical traces of weaving in the Philippines were found in a cave in Cagayan
Province and Palawan Island dated 1255 – 605 BCE. Archaeologists found a stone tool (Bark-
Cloth Beater) used for the preparation of bark cloth that was used to pound the bark to loosen the
pulp from the fiber to use for weaving textiles. Panay Island in the Philippines is considered the
heart of Philippine textiles. According to the legends that were passed on over the generations, a
few Datus (chief) from Borneo including Datu Lubay went to the island and introduce the art of
weaving. 8

Traditional Knowledge

Traditional knowledge (TK) has been defined as “a living body of knowledge passed on from
generation to generation within a community. It often forms part of a people’s cultural and spiritual
identity.” This embodies the soul of the community and the essence of what they are. Specifically,
traditional knowledge consists of "knowledge, know-how, skills, innovations, and practices that
8 Tristram. Weaving in the Philippines: Arts and heritage for the next generation. 2021

6
are passed between generations in a traditional context; and that form part of the traditional
lifestyle of indigenous and local communities who act as their guardian or custodian.” Despite
these definitions, traditional knowledge is still considered abstract and vague. While there are
suggested definitions, “there is not, as yet, any generally accepted, formal definition of these terms.
At best, working definitions are used.9 The fact that folkloric art is often not fixed in a tangible
medium further confounds the issue. However, unless the folkloric works of indigenous peoples
can somehow be treated as their rightful intellectual property, commercial exploitation by others
will continue. Such a scenario threatens to destroy the meaning and sanctity of the work to its
owners without recourse.10

World Intellectual Property Organization

The World Intellectual Property Organization (WIPO) has defined Intellectual property as
"creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names,
and images used in commerce."15 Except for inventions, the relevant intellectual property for
traditional cultural expressions in the said definition include literary and artistic works, designs,
names, and symbols. In the conventional system of intellectual property protection under the law,
these works are protected in the most part as copyright, trademark, and designs: (1) Literary and
artistic works are protected by copyright and related rights; (2) Designs are protected by industrial
design; and (3) symbols, names, and images are protected by trademark. While there are other
forms of intellectual property (like geographical indications and trade secrets) that may protect
traditional cultural expressions, this paper shall limit its discussion to these three kinds.11

Philippines’ Indigenous History being distinct among other countries

Indigenous peoples in the Philippines belong to different ethnic groups and reside in
different parts of the country. There are more than one hundred indigenous communities, about
61% of whom are in Mindanao, 33% in Luzon, and 6% in the Visayas. The indigenous peoples in
the Cordilleras in Northern Luzon are called Igorot. They belong to different ethnic groups, such
as Bontoc, Ibaloi, Ifugao, Isneg, Kalinga, Kankanaey, and Tingguian. The Gadang, Ilongot, and
Ivatan are found in the Cagayan Valley, Isabela, Nueva Vizcaya, and Quirino. The Negrito groups
are found in North, Central, and Southern Luzon. They include the Aeta and Dumagat. The
Mindoro Island has seven distinct Mangyan groups. Palawan islands have the Batak, Palawana,
and Tagbanwa. The indigenous peoples in Mindanao, collectively called Lumad, do not consider
the Bangsa Moro and the Christianized Filipinos as indigenous peoples given their adoption of

9 Cruz, C. (2017). Intellectual Property of Indigenous Peoples (IP of IP): Challenges in Protecting
Traditional Knowledge in the Philippines
10 Fuentes. Protecting the rights of indigenous cultures under the current intellectual property system: Is it

a good idea?
11 Ibid.

7
non-indigenous religions. The major Lumad groups are (1) the Monobo, (2) the Bagobo, B’laan,
T’boli, and Teduray groups, (3) the Mandaya and Mansaka groups, (4) the Subanen, and (5) the
Mamanwa.12

The Philippines ' indigenous art, reflects the range of artistic influences on the country’s
culture, including indigenous forms of the arts, and how these influences have honed the country’s
arts. These arts are divided into two distinct branches, namely, traditional arts and non-traditional
arts.13 Traditional art has been described as the literary or artistic creations that came from pure
history. As we can see, the Spanish colonized our country for a very long time, more than 300
years. Such time gave our Filipino ancestors an idea of what to create, given the limited materials
that they have been given. Since our colonizers restrict us from the use of any other materials,
other than the ones which are useful and necessary for everyday living, the environment our
ancestors are revolving in, includes trees, mostly coconut, pineapple, and many tropical trees only
found in the Philippines. Since we, Filipinos are described to be creative, our ancestors thought
that some parts of a tree or a plant can be used in making garments which is useful during such
period. Filipino traditional arts include folk architecture, navigation, weaving, carving, performing
arts, folk literature (oral), folk graphic and plastic arts, ornaments, textile art, pottery, and other
types of cultural expression. On the other hand, with regards to the non-traditional arts, our
ancestors are very inventive in creating literary and artistic pieces that they collaborate with the
different adaptations they have with the environment. An example of this is including creative
Aztec designs and many many more, which symbolizes the tribe they belonged to.

Indigenous Knowledge System and Practices in the Philippines (IKSP)

Indigenous Knowledge Systems and Practices (IKSPs) are local knowledge developed over
centuries of experimentation and are passed orally from generation to generation. The author, Ms.
Xylene Grail Donato Kinomis, is an Education Program Specialist who studied these Indigenous
Knowledge Systems and Practices as part of the education process. She explained that IKSPs are
important catalysts for sustainable development but are quickly deteriorating due to the
assimilation of different trends and social spectacles that lessen the interest, among people, to
continue these practices. She also recommended further understanding of educators regarding
Indigenous Peoples, the National Government Units, and the National Commission for Indigenous
Peoples (NCIP).14

In another article, Solicitor-Director Terrie Janke of Terri Jankie and Company Pty Ltd.
published a study regarding Indigenous cultural and intellectual property.15 It focused on the issues
of the Indigenous Arts Industry in 2006. The author had expounded on the problems of Indigenous

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

13 Fleming. Why is indigenous art in the Philippines important? 2019
14 Donato-Kinomis. Indigenous Knowledge Systems and Practices in the Teaching of Science.
15 Janke. Indigenous cultural and intellectual property: the main issues for the Indigenous arts industry in

2006 (2006)

8
artists who are struggling in the art world making a name for themselves and respecting the
traditional works of art at the same time. It is unlikely that the performances and the traditional
works of art would be highly distinguished in art galleries, not only museums. The author made
mention of instances that artists receive little to no share at all for works sold a second or
subsequent time during auctions or dealings. ICMR or indigenous communal moral rights, also,
only exist in a copyrighted work. ICMR cannot apply to cultural materials since they are
unauthorized appropriations, they are not in the first instance as they are so old, which are mostly
for a lot of indigenous cultural materials.16

Oral performance art and rock art are examples enunciated in the study that are not
protected under the copyright laws of their country. Due to this exclusion under their copyright
law, instances of a dim relationship between the artists and the galleries are apparent. There are
instances of non-indigenous artists trying to imitate indigenous art which can only gain negative
criticisms from the public but a concrete sanction or protocol is wanting.17 Due to these prevalent
circumstances, the author highly suggests that potential government responses should include the
drafting of sui generis laws and FPIC or prior informed consent methods or mechanisms.18 Janke
suggests that a foundational principle underlying the development of IP Culture and the arts would
aid in creating a clear-cut policy against easy-going infringers. The indigenous peoples (IPs) need
to be in control of their intellectual and cultural property. They should be able to manage it in the
ways appropriate. It is important to consider those positive contributions to the integrity of IP's
culture like, their arts and infrastructure should support control of the ICIP management. 19

Beyond Intellectual Property

In the book of Posey and Dutfield entitled Beyond Intellectual Property20, the authors
discussed traditional resource rights which refer to a bundle of rights that can be used for
protection, compensation, and preservation concerning knowledge and traditional resources of
indigenous peoples, which are central to the maintenance of their identity. Since control over these
resources is of central concern in their struggle for self-determination, privatization or
commoditization of their resources is not only foreign but incomprehensible.
Posey also discussed the model community intellectual rights act that was suggested in a
Third World Network discussion paper (Nijar 1994) as a means of bringing about the evolution of
new criteria for claiming patent rights compatible with cultural values and practices of indigenous
peoples. The purpose of the act would be to prevent the” privatization and usurpation of
community rights and knowledge through existing definitions of innovations.” It would assert the
existence of knowledge that is communally owned and shared, given that ownership of property
is not a concept accepted by many indigenous peoples. Therefore, a more suitable form of
16 Ibid. p.18
17 Ibid. p.14
18 Ibid. p.3
19 Ibid. p.10
20 Posey, D.A. & Dutfield, G. (1996). Beyond Intellectual Property: Toward Traditional Resource Rights for

Indigenous Peoples and Local Communities. International Development Research Centre.

9
description for knowledge that is of value, not privatized, and cumulative would be “community
intellectual rights”.

The concepts of traditional resource rights and community intellectual property rights are
alternatives to existing intellectual property rights systems that accommodate more adequately the
concern of traditional communities to prevent others from privatizing their knowledge and
resources.

Threat to the Rich Cultures of Indigenous Population

There are many threats to the rich cultures of our indigenous populations.21 These threats
include theft of designs of Indigenous People, infringing of their work, and creating replicas in
cheaper materials. The threats have remained widely unresolved. Protection of the intellectual
property (IP) of indigenous peoples is lacking due to actions giving insignificance to history. It is
high time that the government promulgates and implements more accessible, effective, and
protective measures for making known the history of these indigenous creations.

Despite their growing number and influence today, indigenous peoples are still considered
part of the marginalized and poor sectors of society. In a 2018 report of World Mission, a Catholic-
based missionary group, "they (indigenous communities) lag in terms of social and economic
development, being the most impoverished groups in their countries. They are poor, illiterate and
unemployed, making up 15 percent of the world's poor." In a report of the United Nations
Permanent Report on Indigenous Issues in 2010, indigenous people "makeup fully one-third of the
world's poorest peoples, suffer disproportionately in areas like health, education, and human rights,
and regularly face systemic discrimination and exclusion.” In some areas in Mindanao, they are
being displaced from their homes and their traditional practices disrespected. This has resulted in
conflicts that even led to violence and war. Indeed, these circumstances have threatened not only
the use of traditional knowledge but the very existence of the indigenous communities
themselves. For these reasons, there is a need to protect and uphold the cultural heritage and
traditional knowledge of the indigenous people not only in the Philippines but the entire world.
One of the things that make indigenous people unique is their cultural heritage and traditional
knowledge. This is what makes them united as a people and affirms their identity to the “outside
world”. Traditional knowledge is in the form of traditional cultural expressions (TCE) and
traditional genetic resources (TGR). Traditional cultural expressions (TCE) are artistic expressions
of the community that is handed down from generation to generation and become part of their
everyday life. These include writings, songs, dances, designs that make up the cultural fiber of the
community. On the other hand, traditional genetic resources (TGR) are the unique ways of living
in the community like planting, hunting, and fishing, or ways of curing illnesses. To illustrate,

21 Cerilles. Indigenizing the Intellectual Property System (2021)

10
TGR includes the use of the play-noi plant to treat ulcers and the hoodia plant of the San people to
curb hunger during hunting.22

The World Intellectual Property Office and the Indigenous Peoples

It has been pointed out that Indigenous peoples have wildly expressed their concerns about
issues regarding Indigenous Intellectual Property. A few of the international declarations were
raised by IPs in the country. Some of these include the Manila Declaration on the World
Declaration for Cultural Development (1988), the Kari-Oca Declaration (1992), the Mataatua
Declaration (1993), and the Beijing Declaration of Indigenous Women (1995). 23 A study
conducted by the WIPO's Global Intellectual Property Issues Division researched several activities
related directly to the Indigenous Peoples. The draft report of the fact-finding missions was
published resulting in the development of information and familiarization of traditional knowledge
as a way to further find ways to recognize the indigenous people’s traditional ownership of
traditional knowledge and have their fair share of economic, social, and medical benefits that
accrue from using this traditional knowledge and practices.24

By this, we can further argue that the government does not completely disregard the
upholding or making known of indigenous people's intellectual history of their artistic creations in
any field, but some discrepancies contribute or shed darkness upon our traditional history,
furthering a result of insignificance to where these intellectual creations came from, as well as how
they are influenced and made.

Indigenous People’s Voice Through Intellectual Property

Indigenous peoples’ cultures, traditions, knowledge, systems, and practices have given the
country invaluable gifts of art to satiate Filipinos’ aesthetic urges. They may well support the
achievement of national creative excellence as such is commonly attained through access to a wide
array of sources that can stimulate our creative minds. Beyond celebrating their enrichment of the
local art scene, indigenous peoples have set in motion the engines of industrialization in essential
sectors such as agriculture and medicine, owing to their farming techniques and extensive
knowledge in biological resources as cornerstones of such economic advancements.
Furthermore, indigenous peoples are expected to continue having a vital role as calls for
environmental protection to fight climate change grow stronger than ever. From their belief
systems that are rooted deep in their spiritual reverence for nature, societies can learn ways of
living in harmony with the environment. Despite their huge contributions and importance to
society, indigenous peoples remain in a constant struggle to make their voices heard, whether in

22 Cruz, C. (2017). Intellectual Property of Indigenous Peoples (IP of IP): Challenges in Protecting
Traditional Knowledge in the Philippines
23 WIPO and Indigenous peoples. Leaflet No.12
24 Ibid.

11
asserting their basic rights to land ownership or respect for their cultural beliefs and practices.25
Against all odds, the indignities of colonization, and the lures of modern society, indigenous
peoples have survived as communities with a strongly felt, time-honored identity. Their claims
and aspirations are diverse, but their common ground is a quest for the preservation and flourishing
of a culture inextricably, and often spiritually, tied to their ancestral land. This specific relationship
to the land distinguishes them from other communities or groups dispossessed in terms of power
or wealth.26

Moral Rights as regards to the Intellectual Creation of Indigenous People

Distinct from any kind of economic right, moral rights directly address the relationship
between the creators/artists/authors and their work. Thus, there have been suggestions that moral
rights could offer an effective means for protecting indigenous peoples’ rights in works that utilize
or derive from indigenous knowledge. Certainly, a primary concern for indigenous peoples has
been the limited acknowledgment or attribution associated with works. While there are numerous
examples of works being misused and maltreated, for instance, sacred images being simplified and
transferred onto carpets, fabric, and other mediums that distort and denigrate the significance of
the imagery for indigenous people, there is yet to be a case that utilizes current moral rights
legislation. Moral rights are premised upon the creators’ and/or artists’ relation to their work. Such
concepts are dependent upon historical constructions of authorship and legal subject, and works
that are capable of being identified according to the culturally specific modes of classification
inherent to intellectual property law. Moral rights are ineffective, for example, if an indigenous
work is not recognized as a legitimate copyright subject matter. Also, moral rights only protect the
rights of individuals not of communities or collectives. Generally, sound recordings are excluded
from moral rights protection. This is a problem because, with the ongoing patterns of oral cultural
transmission and low literacy levels, significant amounts of indigenous knowledge have been
recorded and exist as sound recordings.27

Government Actions; Trademarks and Copyrights existing

Legislators in an attempt to improve the protection of the intellectual property rights of the
Indigenous People have introduced the bill titled An Act Safeguarding the Traditional Property
Rights of Indigenous Peoples. Through the National Commission for Culture and the Arts,
National Museum, National Commission on Indigenous Peoples, and local government units, this
bill shall create a comprehensive cultural archive, which shall organize and provide an inventory
of all cultural properties of the different ethnolinguistic groups of the Philippines. The bill also
mandates the payment of royalties for the use of the cultural property of the indigenous groups.28

25 Ipophil. Giving Indigenous Peoples a Voice Through Intellectual Property. 2020

26 Wiessner. The Cultural Rights of Indigenous Peoples: Achievements and Continuing Challenges
27 Center for Study of the Public Domain. Indigenous/Traditional Knowledge & Intellectual Property
28 Legarda. Act Safeguarding the Traditional Property Rights of Indigenous Peoples House bill No. 7811

12
 The Intellectual Property Office of the Philippines now requires the disclosure of
indigenous elements in application forms for the registration of IP rights. 29

CHAPTER 3: 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.

2. Interview with one of the persons available, Ms. Rose De Guzman, in Narda’s weaving, located
in Baguio City, January 31, 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,

29 Ibid.

13
 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
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.

CHAPTER 4: FINDINGS

Interview with one of the persons available, Ms. Rose De Guzman, in Narda’s weaving, located
in Baguio City on January 31, 2022;

Because I have been given the luxury of time to research more on my topic, 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. She also stated that we do have the NCIP as a formal office
but they cannot feasibly and physically reach all the villages in time before any dilemmas will
occur. She further suggests that what we can do now is to strengthen the historical traditions that
have been dying, and for proper offices to improve and instill to the minds of the Filipino citizens,
the essence of such historical foundation of these indigenous creations. She had disclosed that she
does agree that it is very difficult to control these things because they can get materials even
without asking permission. So, it does remain a challenge. 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.

14
 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. Later,
the said founder attracted women in such time, making knits their 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. We also connected the issue of designers, IP or not, for using the Cordilleran
patterns in their fashion and design line that they claim ownership of. Ms. De Guzman seems to
be standing in the gray area between copyright infringement and Economic freedom. She
expounded on connecting traditional 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. Of course, these are areas that have not been fully
chartered yet. She further mentioned we are to the point that commercialization is already
something that we cannot do away with, it is a fact of the day. Ms. De Guzman reiterated her
suggestion regarding royalties to make the profit from commercialization more equitable, because
according to her, by such way, the society does not put into the dark, the historical foundation and
efforts of our indigenous persons in creating their intellectual creation, and in this case, it is focused
on their weaving, the mainline of Narda’s business, where our interviewee works.

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. Like the gangsta as musical instruments are incorporated
which were allowed by some communities. Another example is our ritual, specifically our burial
rites, which cannot be subject to alterations. 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. She explained that we need to secure them in
the community if they can be documented. There are restrictions to safeguard the performance of
these rituals. There is a need to be culturally sensitive because there are areas or there are certain

15
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
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. The community does not prohibit performing talents.
They are only concerned about the 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. In
commercializing the tattoo, there is a need to go through the community and ask for their consent.
But as a tattoo artist herself, she is not restricted from performing. Just like the people rip-rapping,
NCIP cannot restrict them from doing their job. However, certain areas are attributed to the people
in Buguias as their standard way of rip-rapping and can be included in the restrictions.

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. IPRA, particularly the IKSP, is one of the subjects in the senate bill
filed by Legarda. In the intellectual property law, it is not registrable but in IPRA these weaving
designs and weaving patterns are covered for the intellectual properties of the indigenous peoples.
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.

In some provinces, the local government has already passed a resolution banning machine-
printed weaving. 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 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
16
by Loren Legarda.

DISCUSSION

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.” 30 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.” 31 This
cultural well-being should inculcate traditional knowledge as part of the identification being
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.

Traditional Knowledge

The World Intellectual Property Organization, in its Booklet No.2 entitled, “Intellectual
Property and Traditional Knowledge,”32 defines Traditional knowledge as encompassing all the
Indigenous Cultural practices, arts, customs, rites, and traditions. Under its article, it discusses how
different cultures all over the world aim to protect tradition and cultural identification as part of
their intellectual property claims against disruption, modifications, and changes in the way they
have traditionally performed, created, or displayed their traditional arts. It refers to the generalized
expression about knowledge connecting people with time-honored practices and ideas.33

The article states that Traditional Knowledge is the key to the diversification and
sustainability of the future and future generations. The article also states the significance of
Traditional Knowledge is an important factor in the well-being, intellectual, and cultural vitality
of the indigenous people.34

30 Section 22, Article II, 1987 Constitution.

31 Section 2 (b) R.A. No. 8371
32 World Intellectual Property Office, & Carvalho, A. (2020).
33 Ryser (2011)
34 Supra note. 3

17
Indigenous Culture in our society

The Intellectual Property Code of the Philippines requires that this original work must be
independently created. However, we cannot negate the fact that Traditional Knowledge concerns
practices and literary and artistic works that have been passed down from generation to generation.

In furtherance of the above-mentioned provisions, IPRA law mandates the creation of

mechanisms, methods, Implementing Rules and Regulations, and instructions that would directly
face the problems dealing with customs, beliefs, traditions, and values.35 A vital requirement that
is so powerful for all cultural communities is the need for Free and Prior Informed Consent, which
is meant as gaining the consensus of all the members of the Indigenous Cultural Communities or
the Indigenous Peoples under their practices and customary laws which should be free from
coercion, external manipulation, or even interference, and which may be obtained after fully
disclosing their intent and scope for the activity while using the dialect or language which the
community will understand. 36 These communities have what we call Community Intellectual
Rights. These flights include the right of the community or members thereof to practice or
revitalize their cultural traditions and their customs. This concept includes the duty of the State to
protect the manifestations of the past, present, and future regards to their culture and their right in
restituting their cultural, religious, spiritual, and intellectual property that are taken without their
free and prior informed consent. 37 In addition, these communities also have the right to develop,
and not only practice, their religious and spiritual customs, and ceremonies.

Control and ownership of the intellectual property of the indigenous persons consist of the
following: “(a) the past, present and future manifestations of their cultures, such as but not limited
to, archeological and historical sites, artifacts, designs, ceremonies, technologies, visual and
performing arts and literature as well as religious and spiritual properties; (b) science and
technology including, but not limited to, human and other genetic resources, seeds, medicine,
health practices, vital medicinal plants, animals and minerals, indigenous knowledge systems and
practices, resource management systems, agricultural technologies, knowledge of the properties
of fauna and flora, oral traditions, designs, scientific discoveries; and, (c) language, script,
histories, oral traditions, and teaching and learning systems.” 38

The manifestations of the cultural heritage over time, those in the past and the future,
including artifacts, designs, ceremonies, visual and performing arts, as well as spiritual properties,
language, music, dances, and oral traditions are some of those given protection and control by
these cultural communities. 39

35 Section 2 (g) RA 8371

36 Ibid.
37 Ibid.
38 Section 1(j) Implementing Rules and Regulations of the IPRA Law.
39 Ibid.

18
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 industrial
(a) Books, pamphlets, articles and design as “constitutes the ornamental “Signs capable of distinguishing the
other writings; (b) Periodicals and or aesthetic aspect of an article. An goods or services of one enterprise
newspapers; (c) Lectures, sermons, industrial design may consist of from those of other enterprises."18
addresses, dissertations prepared for three-dimensional features, such as
oral delivery, whether or not reduced In commercial business, it is the
the shape of an article, or two- visible sign that differentiates the
in writing or other material form; (d) dimensional features, such as
Letters; (e) Dramatic or dramatico- products or services of one from that
patterns, lines, or colors.40 of another. It creates name recall and
musical compositions;
choreographic works or goodwill that serves several
entertainment in dumb shows; (f) functions to the product or service
Musical compositions, with or that it represents. It may include a
without words; (g) Works of name, symbol, logo, emblem, figure,
drawing, painting, architecture,
sculpture, engraving, lithography or letter, or word. The most popular
other works of art; models or designs trademarks in the world include
for works of art; (h) Original Google, Facebook, and IBM.41
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-
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.

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

19
Intellectual Property of Indigenous Peoples of the Philippines

Intellectual property has been defined as "creations of the mind, such as inventions; literary
and artistic works; designs; and symbols, names, and images used in commerce.” Currently, the
laws on intellectual properties are governed by the Intellectual Property Code.

On the other hand, 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 institutions42. The
indigenous peoples (IPs) and indigenous cultural communities (ICCs) are minority groups and
considered one of the most vulnerable sectors of the society, which the State gives extra
protection.43

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. The World Intellectual Property Office (WIPO)
of the United Nations, through its Traditional Knowledge Division (TKD), has been at the
forefront of efforts to protect the traditional knowledge of indigenous people. However, the present
legal framework in the Philippines for the protection of traditional knowledge may be said to be
insufficient as it does not give ample legal protection to works resulting from traditional
knowledge44. 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
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.

42 Republic Act No. 8371, Sec. 3

43 Isagani Cruz v. Secretary of Environment and Natural Resources, G.R. No. 135385, December 6, 2000
44 Background Brief No. 1, Traditional Knowledge and Intellectual Property (2015), WIPO, Geneva,

Switzerland.

20
 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 said by Ms. De Guzman,
people tend to buy machine-printed copies of weaved products, instead of the hand-made weaved
products of the IPs of Cordillera. 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
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.

“The weaving knowledge of master weavers of the Cordillera are now elderly women, and
the impact of oral tradition is now in a critical state and the tradition is in danger of being extinct,”45
To further explain, our ancestors have sacrificed so much effort to craft a weaving masterpiece .
Thus, modern persons who are more knowledgeable, have unconsciously caused threats among
our ancestors, with regards to the authenticity of their designs. Some people never understood why
the indigenous community continues to fight for their rights because a deeper understanding was
absent. An understanding that our ancestors have shed not just sweat, but all their heart to create
said weaving designs, incorporating different materials, symbolizing their culture and traditions.

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

45 Cabreza.Reviving ancient Cordillera textiles. 2020

21
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.

CHAPTER 5: CONCLUSION

The 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. 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.” This phrase means that 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. The case is
the same in this research. People nowadays do not care about their ancestors, where things came
from, the traditions and culture that shaped the community today. As long as people are living the
modern world today conveniently, they are okay and content.

Each indigenous community is different. But all indigenous communities struggle for the
right to self-determination and their ancestral domain. Under the stipulations of the 1987
Constitution, IPRA undertakes to improve the situation of indigenous peoples. But laws, such as
IPRA, have to be effectively implemented in light of the existence of other laws that violate the
rights of indigenous peoples. Finally, the resolution of the problems of the indigenous peoples
relates to the elimination of the deep-seated discrimination against them, a task that remains
difficult to achieve.46With regards to weaving as one of the intellectual creations of our indigenous
peoples, we can infer that it can be easily copied by businesses that are with a similar line of
business. It is known that these creations can generate more profit from those technology-based
businesses. They can produce more products within a period, compared to those indigenous
peoples who take months to produce such creations because they use the traditional method, which
is their hands and carefully crafting them.

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. They do not want
other people who are not part of their indigenous tribes to interfere or make amends as to how they
will improve their way of living about the traditions and culture they have used to. 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,

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

22
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.

CHAPTER 6: RECOMMENDATION

With the advent of globalization and the digital age, the traditional knowledge of
indigenous people has been discovered. 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.
While it is true that the modern world is more convenient, it has its advantages and disadvantages.
Might as well that we, people who use the internet or modern technologies more often, use them
as a weapon in creating advocacy to help our indigenous tribes to make exhibits on their artistic
and literary creations. 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. With 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.

We cannot deny that the most effective way to protect these intellectual creations is to
create effective implementing rules and regulations of their registration. The process of
harmonization of international intellectual property recognition and protection standards appears
to be inexorable. Copyright has a well-defined legal framework. Certain institutions facilitate the
registration of works of art, and others are dedicated to enforcing compliance with and respect for
the copyrights applicable to the registered matter. Most of the world's indigenous communities are
already properly identified. Thus, creating a special registry for the expressions of art of each one
could lead to effective protection. Also, protecting the artwork of indigenous cultures under
copyright will provide appropriate civil remedies against infringement such as injunctive relief,
impoundment, disposition, actual damages, and/or statutory damages. "Extending these. rights and
remedies to folklore would significantly improve the protection available under customary law. It
would mean that rights for folkloric works could be enforced within national boundaries instead
of under the limited jurisdictional confines of the local community." Measures such as requiring
authorizations or licenses that allow the use of indigenous artwork tied to appropriate
compensation, putting notices of origin or source on a work of art, and revising the copyright
system to protect folklore must be implemented. The survival of indigenous cultures' folklore
depends on the actions taken to protect their artwork. Thus, copyright protection would prevent
distortion, inaccuracy, and misattribution of folkloric works. Proponents of the extension of the
intellectual property system to include folklore also believe that clothing designs and marks on

23
agricultural implements could be protected as trademarks.47 In addition, the technological
processes involved in metal-working, cloth-weaving, and herbal medicine could be afforded
similar protection under patent laws. Copyright protection has extended beyond state borders with
the inception of international conventions. With some adjustments to international standards for
intellectual property protection, agreements such as the Berne Convention, and the Trade-Related
Aspects of Intellectual Property Rights (TRIPS)89 would enable the indigenous cultures of one
country to enforce exclusive rights in the foreign countries where their works are now being
distributed.48

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.49

Both the indigenous people and the capitalist must be informed that traditional knowledge
can be a source of intellectual property using the standards of the conventional intellectual property
system. Despite the existing laws and regulations to prevent abuse of the intellectual property
rights of indigenous people, infringing traditional knowledge continues here in the Philippines.
With the help of pertinent laws that are yet to be enforced, or hardly enforced, we must encourage
knowing to understand and immerse themselves with the history of our country, specifically those
of our indigenous people. 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 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. It is a big factor that we
know our culture. Including discussions on our ancestors and indigenous people’s way of living
during the day, and up until now, on our basic education, preferably on subjects about history and

47 Fuentes. Protecting the rights of indigenous cultures under the current intellectual property system: Is it
a good idea?
48 Ibid.
49 Ibid.

24
culture, will make the youth understand more, the importance of immersing themselves with how
our country evolved from our preserved traditions and cultures from history.

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. By this, we can
have the idea that the government should deploy social workers to study the possible means and
methods to address the battle cry and concerns of our indigenous people, as well as to help them
improve their lives, through the use of their intellectual creations, which will be a weapon in
helping them gain access to the benefits and convenience of the modern world as well as the
technologies and science without diminishing, modifying it altering the essence of their indigenous
culture and tradition. 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. Representation is very important for these indigenous people or
communities to represent them. In difficult circumstances, our indigenous people are not yet ready
for the changes that are brought by the modern world, thus, they are sometimes the reasons why
they continue to live their traditional life. We need to let them understand that embracing change
sometimes is beneficial and will make life easier.

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. While labeling
cannot itself provide the advantage that these indigenous people's is seeking or fail to address to
our national government, small acts of organizations that are concerned for the needs of our
indigenous peoples can educate people on how to make a specific distinction as to the genuineness
of such intellectual creations.

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