Legalizing Community Resources — Experiences Learned from Implementing the Indigenous Traditional Intellectual Creations Protection Act (ITICPA)

Abstract

The indigenous societies in Taiwan have passed through the era which used to assert them as barbaric and uncivilized ‘Others', and were officially de-colonized with promulgation of certain legislation such as the Indigenous Fundamental Law. However, they can still not formalize their customary laws, which are prerequisite to their entitlement of community resources, such as indigenous traditional knowledge and cultural expression. In December 2007, a sui generis regime to the civil law intellectual property regulations, the Indigenous Traditional Cultural Expression Protection Act (ITCEPA), was promulgated. ITCEPA was the very first law in Taiwan to substantiate diversified modes of indigenous cultural expression, such as songs, dance, weaving, dyeing, ceremonies, and even witchcraft as community resources entitled to the tribal unit. When certified and registered, these collective rights will be legalized retrospectively. Any established acquisition and exploitation of the resources by non-indigenous peoples will be revoked, no matter in what form (copyright, or trade mark). Yet to implement the ITCEPA, a tribal units’ based decision making process and management plan are needed, since the sui generis rights are entitled to the community only. But with extended prewar Japanese colonial rule, and the consequent encroachment of Christian missionaries and mainstream political institutions over their communities, primitive tribal leadership barely survived. This article will show how twelve indigenous Taiwanese tribes have attempted to reestablish and re-integrate their political organizations and decision making processes.