Abstract

Excerpted From: Maria Regina Martinez, Batok in the East, Aloha in the West: Intellectual Property Protections of Indigenous Peoples in the Philippines and the United States, 58 University of San Francisco Law Review 541 (2024) (180 Footnotes) (Full Document)

Apo Whang-Od is a 106-year-old mambabatok, or traditional tattoo artist, from the Philippines. Hailing from the remote village of Buscalan, she is the oldest member of the Kalinga indigenous group to practice batok, the ancient art of hand-tapped tattoos, which showcases the group's sacred symbols. Though she lives in a small village in the mountains, her work is the topic of various intellectual property disputes. In 2019, a Filipino government agency tasked to protect and promote the interests and well-being of indigenous peoples directed a global clothing brand named New Era Co. to obtain the Kalinga group's Free Prior and Informed Consent (“FPIC”) before it could use traditional Kalinga tattoo designs on its products. In 2020, the NCIP mandated the well-known Vans Philippines brand to seek the Kalinga's informed consent prior to using the group's python tattoo design on Vans merchandise. Most recently, Nuseir Yassin, an Israeli-Palestinian social media influencer known as Nas Daily, arranged for Whang-Od to teach a batok class on Yassin's online learning platform. The online class sparked nationwide controversy and was discontinued after news broke that Yassin did not receive proper FPIC. Instead of obtaining the Kalinga group's required consent before using collectively owned indigenous knowledge for commercial purposes, Yassin allegedly only communicated with Whang-Od and her representatives.

On the other side of the world, another group faces a similar challenge to protect its heritage from appropriation. “Aloha” is an expression known and used as a greeting or a farewell. In native Hawaiian culture, “aloha” is more than a word--it expresses that thinking and showing good feelings to others is an integral way of life. As a Native Hawaiian poke restaurant owner in Anchorage, Alaska, the word's cultural meaning may have contributed to Tasha Kahele's reluctance in changing the name of her business from “Aloha Poke Stop” to “Lei's Poke Stop” after she received a surprising cease and desist letter. Jeff Sampson, co-founder of the Honolulu restaurant Aloha Poke Shop, received the same letter. Kahele and Sampson were not alone; several Native Hawaiian business owners across the United States received the same cease and desist letter by Aloha Poke Company, a Chicago-based restaurant chain. Aloha Poke Company representatives claimed the company successfully registered a trademark for “Aloha Poke.” Thus, any use of “aloha” in relation to food products and services is an infringement of its federally registered trademark.

The Philippines and the United States are geographically and culturally distinct from each other. However, the two countries have a decades-long history of cooperation and collaboration. Their alliance spans matters such as military, economy, education, human rights, environment, and health. Now, the two countries also share a similar problem. Indigenous peoples, such as the Kalinga group of the Philippines and the Native Hawaiians of the United States, are engaged in a continuous battle to protect their cultures.

In line with the ongoing collaborative relationship between the Philippines and the United States, this Comment seeks to explore and compare the intellectual property protections available to their respective indigenous peoples for the purpose of protecting their traditional cultural expressions. Part I explains how the term “indigenous peoples” is identified, rather than defined, in international law and provides an overview of the many indigenous communities in the Philippines and in the United States. Part II explores how the World Intellectual Property Organization (“WIPO”) impacts how the Philippines and United States interpret traditional cultural expressions. Part III outlines existing international legal frameworks, the implementation of statutes and agreements in the Philippines and the United States, and problems surrounding these laws. Lastly, Part IV discusses each country's observed strengths and weaknesses with respect to their protection of indigenous intellectual property. Part IV concludes this Comment by offering suggestions for how the two countries may further develop protections in the future.

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On a world map, the Philippines and the United States lie on opposite ends--the former in the east and the latter in the west. The two countries are vastly different, yet they face similar issues with respect to the intellectual property protection of indigenous peoples' TCEs. Though these legal mechanisms have existed for years, gaps and gray areas persist, allowing the exploitation of vulnerable parties and misappropriation of heritage.

In dissecting the intellectual property protection of TCEs in the Philippines and in the United States, it is clear both frameworks have their own strengths and weaknesses. The Philippines has an established framework rooted in its constitution. The Philippine Constitution highlights the value of indigenous peoples to the country and this sets the tone for enacting related legislation. This foundation is strengthened by the IPRA and reinforced by government agencies, which came together to implement supportive regulations. Given the variety of indigenous groups that exist in the United States, protection over indigenous TCEs may be more difficult because each group has its own culture, rules, and traditions. Its strength lies in the ability of its indigenous peoples, advocacy groups, government officials, and other citizens to come together and call for action from the federal government. Because of its power as a nation, the United States has tools within its reach to improve its existing legal framework.

On the surface, the legal framework in the Philippines appears strong--in reality, it has no teeth. Current protections lack meaningful enforcement. Due to insufficient education, support, and funding, indigenous peoples living in remote areas are unaware of their rights. This combination makes indigenous peoples in the Philippines susceptible to cultural exploitation and misappropriation by businesses and corporations. In comparison, the U.S. framework appears weak and decentralized due to its different sources of protection and classification for indigenous peoples and their TCEs. The lack of a single authority for its TCE protection creates a possibility of confusion as to indigineous peoples' rights, thereby making indigenous groups vulnerable. Different classifications of indigenous peoples cause discrimination such that non-federally recognized Native Hawaiians receive less rights, protection, and government support.

Because of the relationship between the Philippines and the United States, it is the hope of this Comment that a better understanding of indigenous peoples and their current intellectual property protections will encourage the development of stronger intellectual property protections. Despite these countries' different approaches to TCE protection, there is much room for them to learn from each other in this matter.

Maria Regina Martinez is a Master of Laws in Intellectual Property and Technology Law student at the University of San Francisco School of Law.