1

The Intellectual Property Law vis-a-vis

The Indigenous Peoples Rights to their
Cultural Musical Creations

A Research Paper
Submitted to Atty. Jason R. Barlis

In Partial Fulfillment
Of the Requirements of the Course
Intellectual Property Law

By:
Samuel Poking, Jr.
Eleasar Pido
Vivian Diwas
Aimer Tumbaga
Kennt Jhensen Agurrie
Berto Balicdang

November 28, 2016

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Table of Contents
CHAPTER I: INTRODUCTION

1. Background of study.4

2. Statement of the Problem4

3. Theoretical Framework.5

4. Scope and Limitation6

5. Definition of Terms6

CHAPTER II: The Intellectual Property Law vis--vis the Indigenous Peoples
Rights to their Cultural Musical Creations

1. The indigenous people's musical creations...7

1.1. The Sound of the Gangsa.....8

1. 1.2. Instruments in Playing Gangsa...8
1.2.1.The Gangsa (Gong)..8
1.2.2. The Takik....9
1.2.3. The Solibao and the Gimbal......9
1.3. Order of Playing10
1.4. The Different Kinds of Tribes and their cultural music..10
1.4.1. The Ibalois..10
1.4.2. The Kankanaeys of Mountain Province..11
1.4.3. The Ifugaos..11
1.4.4. The Kalingas12
1.5. Prohibition in Playing the Gangsa12

2. The intellectual property law and its application to the Cultural Musical
creations..13
2.1. The intellectual property law of the Philippines particularly on the
copyright... 13
2.1.1.Elements...14
 3

2.1.2. Rights of a copyright owner....14

2.1.3. Ownership of a copyright.14
2.1.4. Term of protection of a copyright.14
2.1.5. Implications of intellectual property law on copyright over indigenous
musical compositions.15

2.2. The IPRA Law.16

2.2.1. Pertinent Provisions.16

2.2.2. Protection of traditional knowledge systems and indigenous practices: Free

and Prior Informed Consent and
Royalties...............17
2.2.3. Protection to Intellectual property...........20

2.3. The International Intellectual Property Laws/Rules in relation to the rights of

indigenous peoples..21
2.3.1. The Draft Declaration on the Rights of Indigenous peoples and principles
and guidelines for the protection of the heritage of indigenous. 23

2.3.2. The United Nations Declaration on the Rights of Indigenous Peoples

(2007).. 23

2.3.3. World Intellectual Property Organization Roundtable on Intellectual

Property and Traditional Knowledge in Geneva (1999)..24

2.3.4. The response of some countries25

3. Proposed Bill.. 27

Conclusion.....28
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CHAPTER I

INTRODUCTION

1. Background of the Study

The intellectual property Law grants entitlement to individuals to their original

creations. These inventions and compositions are protected by law because they become
private property of the inventors and the composers. The scope of the laws protection,
however, does not provide adequate protection to the rights of the indigenous with regard
to their cultural products and expressions.

Studies show that Indigenous peoples live in more than sixty nations and have
estimated their total number worldwide as 300 million. They are among the most
economically deprived members of the human family. They also encounter adverse
treatment, including forced assimilation, destruction of their cultures, racism, and loss of
lands, properties and other resources to colonizers, government, and commercial entities.

Internationally, the predominantly affluent industrialized countries of knowledge take

advantage of the knowledge and expressions of indigenous peoples. It is a sad fact that
indigenous peoples cultural products and expressions are patented and copyrighted
without due recognition being given or benefits distributed to the indigenous communities.
This often happens to (a) due lack of the support from the government in their endeavor
to develop their cultural products and expressions; and (b) Inadequacy of laws.

It is this reality that had evoked the propensity of the feelings and had awakened the
intellect of the researchers to spare most of their time unravelling the scope of protection
under the intellectual property law. And with the end view in mind of proposing a bill to
the intellectual property law in order to give justice to the indigenous peoples.

2. Statement of the Problem

An illustration of this problem that shows the flaws to the intellectual property laws
could best be illustrated through this high profile case that happened at the 2004 U.S.
Grammy awards, The Hip-hop duo OutKast performed their song Hey Ya! to popular
 5

and critical acclaim. The performance featured choreography in which scantily clad
backup dancers-dressed in backspin bikinis, with long braids and feathers in their hair-hit
their open mouths in an apparent imitation of a traditional Plains tribe war cry. The
performance provoked numerous complaints by Native American communities.
Complaints ranged from a feeling of violation over the use of Indian symbols reserved for
ceremonial purposes. The melody used to introduce the He Ya! song at the Grammy
performance was sacred Navajo (dine) beauty Way song. Navajo leaders complained
that it was improper for OutKast to use the song for entertainment purposes. Ironically the
performers have been vocal critics of unlicensed downloading of copyrighted-protected
material. Yet, as Angela Riley has explained, intellectual property law makes an
important distinction between the unauthorized downloading of Hey Ya!...and the
appropriation of the Navajo Beauty Way song: the former is protected by copyright law,
and the latter is not. In fact, no law currently exists to protect against OUtKasts
appropriation of Native culture, Native symbols, native dance, or Native music.1

It is in this context that prompted the researchers to dwell on this topic in order to shed
light on the following issues:

1. Protection of the Indigenous Peoples Musical Creations particularly the usage of

Gongs, Takik, and Solibao;
2. Recognition of the indigenous Peoples as original composers;
3. Possibility of granting royalties and other benefits to the Indigenous Peoples due
to their original musical contributions.
4. The promotion of these musical compositions and the prevention against
possibility of being degraded.

3. Theoretical Framework

In a systematic way of discussing the problem, the researchers will be considering the
following sub-topics:

1
Laurence R. Helfer and Graeme W. Austin, Human Rights and Intellectual Property(United States: Cambridge
University Press 2011), 433.
 6

1. The indigenous people's musical creations.

2. The intellectual property law and its application the cultural musical creations
3. The Proposed bill

The discussions on the Indigenous peoples creations would be explained first to show
the fact they their ancestors are the original composers. After which an analysis of the
intellectual property laws of the Philippines, IPRA law and the international intellectual
property laws. Then the application of these laws to the issues to be addressed as
presented in the above statement of the problem.

4. Scope and Limitation

The study includes within its bounds the musical creations of indigenous peoples from
the Cordillera particularly the people of Benguet. But the focus of this study are musical
creations that uses Gangsa, Takik and Solibao.

The discussions on intellectual property laws include the laws of the Philippines and
the International Laws. The study would also touch the Indigenous Peoples Rights Act
for the purpose of analyzing the provisions regarding the intellectual property of the
indigenous Peoples.

5. Definition of Terms

The following are defined for the purposes of this work:

(a). Traditional Cultural Expressions- Include religious rituals, sacred objects,
rite of passage, songs, dances, myths, stories, and folklore, which can also evolve
over decades and centuries.
(b). Cultural Musical creations- This pertain to the indigenous music that involves
the usage of Gongs, Takik and Solibao.
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CHAPTER II

The Intellectual Property Law vis--vis the Indigenous Peoples Rights to their
Cultural Musical Creations
1. The indigenous people's musical creations.

To fully understand music and culture of others, it is important to know the

environment and living situation they are in. Such knowledge will provide the reason why
certain music sounds or functions as such. It will also explain the existence of their
traditional instruments and the system on how these instruments are utilized for music
making. Hopefully, understanding differences in people and their music will eventually
lead to its appreciation by others. 2
In the provinces of Cordillera Administrative Region (CAR), the indigenous
peoples traditional music involves the playing of the gongs (Gangsa), Solibao and the
Takik. As a whole, these instruments comprise the playing of the Gangsa whether they
may be Kankanaeys of Benguet or Mt. Province, Ibalois, Kalanguyas, Isnegs or Kalingas.
The playing of the Gangsa differs in different areas of CAR as well as the beat or strokes,
and the rhythm. Also, the beat, stroke and the rhythm varies depending on the occasion
being celebrated.
The Indigenous People of CAR play the gongs (Gangsa) during thanksgiving
ceremonies. In the early days, the Gangsa is played to commemorate the victory of the
indigenous people of a certain tribe against the tribe of another place. However, as time
goes by, playing the Gangsa has expanded to several occasions. Nowadays, the Gangsa
is played to celebrate the conciliation or appeasement between two tribes.
The Gangsa is also played to thank the Almighty for a bountiful and fruitful harvest.
During weddings, the Gangsa is played accompanied by a chanting in between by
the elders to ask the Almighty to bring fortune to the newly-wed to enable them to provide
for their family and to bless them with children.
Just like during weddings, in asking the healing power of the Anito (spirits) or
Kabunian (almighty), the Gangsa is played with a chanting in between to ask for their

2
Granda Standard. Traditional Music Culture from North: The Cordillera Administrative Region (CAR).
August 14, 2011.
 8

healing power and to drive the evil spirits surrounding the sick.
At present, the elders allow the playing of the Gangsa during barangay or town
fiesta or foundation days and other community activities or feasts. However, the elders
must have to be consulted first in advance before the occasion in order for the elder to
determine the validity of the cause in playing the Gangsa.
The above mentioned activities are associated with the butchering of native pigs
and other animals such as cows or carabaos and the distribution of Wat-wat (meat
pierced by a stick) to all families.

1.1. The Sound of the Gangsa

The sounds of the Gangsa, solibao and a piece of iron, patitik, when synchronized
together, produce a sensational effect in the Sida rites. The sound alone reminds the
people assembled that the ritual is being solemnly celebrated. The participants to this
ritual dance, act according to the solemnity of the rite with high relish of enjoyment.3

1.2. Instruments in Playing Gangsa

The Gangsa as a whole is played and performed using gangsa, solibao, and the
takik. Playing the gangsa is usually composed of three to six (3-6) gangsa, one (1) takik
and one (1) solibao. The increase in the number of gangsa, takik and the solibao can also
be made to produce a louder sound. However, the increase in the number of instruments
must be made proportionately in order that one instrument shall not muffle the sound and
rhythm of one instrument. The increase also is utilized in order to fill in the gaps made by
the playing of gangsa.

1.2.1.The Gangsa (Gong)

These instruments are about 35 centimeters in diameters, with perpendicular rim
about 6 centimeters high. Both instruments are suspended from a V-shaped wooden bone
handle which is held by the left hand with the open side of the gangsa away from the
hand. Among the Ibaloi, gangsa have specific names. One gong with brilliant tones

3Sacla, Wasing D. Treasury of Beliefs and Home Rituals of Benguet (Baguio City: BCF Printing
Press,1987)
 9

(Pinsak) sounds a counter-beat drums, while the other gong with more prolonged and
ringing sounds and slight pitch (Kalsa) furnish a simple improvisation for the whole
ensemble. The Kalsa has longer tone vibrations. Besides the usual components of copper
and tin, the Kalsa may also contain silver. In general, it has the higher trade value than
the Pinsak.4
The gangsa is a circular brass or bronze metal with seam approximately more than
an inch to less than two inches according circumference. They differ in sizes according to
the right pitch or timber played. The gangsa is classified to the following;
a. Solnob is the biggest in size from the set with a lower pitch. This is described as
the barker or caller because there is a time it is beaten with a strong distinctive sound in
different point or period of time during the play. The verbal sounds goes'' ki-dong, dong,
dong, dongdongdongdong--.
b. Pinsak is next from the solnob and smaller in size. It is played with continuous
set of pattern in tempo with the solibao. The verbal sound goestanak-takik.
c. Katlo (third gangsa) is played in harmony with gimbal. The verbal sound is
''itatta''.
d. Kap-at (fourth gangsa) is the tailing or the filler in the gaps of sets of patterns.
The verbal sound is ''tong tong''.

1.2.2. The Takik

The takik is a pair of short iron rods about 4 to 6 inches long. It is played with the
verbal sound '' takik-takik'' continously.

1.2.3. The Solibao and the Gimbal

The Solibao is a long cylindrical wood and tubular becoming smaller at the tail end
with a hole. This is used to give tempo and constant beat of the music and dance.
Meanwhile, the Gimbal is similar with the Solibao but the verbal sound it makes is
''tong - tong''. It amplifies or gives stress to the main beating of the pattern on time with
the Solibao.

4 Jose Maceda, Musical Instruments of the Cordillera taken from the Filipinos Heritage (Volume 2)
 10

1.3. Order of Playing

Playing the gangsa requires at least five (5) persons and follows a specific order
of playing. Each person will play the Gimbal, Solibao, Pinsak, Kalsa, and the Takik. The
first to make a sound is the Kimbal which starts with a constant one-stroke beat.
The Solibao follows which picks the basic time and sets up its own rhythm.
The Pinsak is the third instrument in the order of entrance. The rhythmic pattern
consists of two strokes, one a short vibrating sound, the other as dampened sound. This
sound is muffled by the stick which is pushed against the back of the gongs surface.
Moreover, the left arm is pressed against the back side of the gong and stops any sound
vibration.
Kalsa plays fourth in musical succession. Wherein the variety of its sound and
elasticity of its rhythms has corresponds to the function to that of a melody instruments.
The Kalsas sound is soft with degrees of dampening and lengthening that is left
in the direction of the player. Only the kalsa has more freedom in the choice of its rhythm
and its tones. It requires real artistry to play Kalsa. It also offers the most showmanship.
The performer can turn the gong around its string; swing it to and fro, assume different
positions of striking, strike loudly or softly, stop playing, hit forcefully, dance with the gong,
muttering the vibrations with the elbow, the wrist or the mallet. The Kalsa player leads the
two other instrumental performers in the dance circle. He also has the duty to offer ritual
blankets or long shawls to each succeeding male dancer and receive them back.
The last instrument in the group to come into the ensemble and the dance circle is
the pair of iron rods (Takik). The performer holds one rod on one hand and the other rod
by the other hand and dance to its rhythm of the instruments. Its airy metallic tones
provide a sort of an ornamental accompaniment of the rest of the ensemble. Altogether,
the music of the five instruments makes up a surprisingly subtle mood of sounds-sparkling
and lively, but refined and never boisterous.

1.4 The Different Kinds of Tribes and their cultural music

1.4.1 The Ibalois
The traditional music and dance of the Ibalois are generally played during rituals
amng others called Peshit/Pechit, Sangbo, Chilus, Batbat and Kafe.
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The Pechit/Peshit is a rich mans feast for the people to partake and enjoy. The
Pechit/Peshit and Sangbo are strictly practiced as a thanksgiving ritual. Meanwhile, the
Chilus is performed to relieve the sick of his sufferings or illness. Batbat is similar to
Peshit.
In these ceremonies, it is coupled with the playing of the gongs and the traditional
dance of the Ibalois.

1.4.2 The Kankanaeys of Mountain Province

The Kankanaeys of Mountain Province play the Gangsa during Begnas or Bognas.
Begnas or Bognas is both a thanksgiving ceremony and a calamity avoidance ceremony.
Begnas/Bognas as a thanksgiving ceremony involve that all residents of the Barangay do
not go to the fields for work. All residents gather at the Dalipey or Dalipoy (a place in the
barangay where affairs of the barangay are usually carried out, like conciliation
proceedings and barangay meetings) or the plaza of the barangay for the thanksgiving
ceremony. After the eldest among the villagers finishes the prayer to Kabunian, the
gongs are played and the traditional dance called Tayaw/Tayao (for men) and Salibi (for
women) are performed. Usually, the playing of the Gangsa is initiated by the eldest
villagers. Younger villagers only get to play the Gangsa when the elders pass the Gangsa
to the younger villagers.
The Kankanaeys of Mountain Province also play the Gangsa in times of Bayas.
Bayas is a ritual performed in order to ask Kabunian to help ease or to cure the grave
illness of a villager. The illness must be of grave nature or when the person might die in
an injury sustained by him in an accident. The eldest among the villagers is consulted
whether the Bayas is proper. Only upon determination of the eldest before the Bayas is
performed.

1.4.3. The Ifugaos

In some part of Ifugao province, the Ifugaos play their gongs during their Baki
(called Upi in other areas of the province). Baki or Upi is a sort of Caao. They also play
the gongs during Honga which is a birthday celebration or thanksgiving of grandparent
to thank the Almighty for the long life given to them.
 12

In some areas of Ifugao, they also play the gongs during burial. However the beat
is different to that during the Baki.

1.4.4. The Kalingas

In Kalinga, the people play the gongs during Chawak which is equivalent to
Caao. The people gather in the community plaza for such celebration. The people get
to perform their traditional dance. The celebration is coupled with the butchering of native
pigs and other animals for the consumption of the whole community and the distribution
of meat unconsumed.
In some areas of the province, they also play the gongs during Sisiwa to ask the
Almighty and the Spirits to extend their healing power to the gravely ill and those who met
a grave accident.

1.5 Prohibition in Playing the Gangsa

The elders of the Kankanaey in Mountan Province prohibit playing the Gangsa
without any valid ground as it will upset the Anitos or Kabunian. Upsetting the Anitos
or Kabunian will bring misfortune and bad luck among the family members. It could
result to grave illness among the family members or even death of any family members.
Playing the Gangsa anytime in the home is prohibited by elders. According to
tradition, the music is sacred and could be played only in appropriate rituals. The
Sida/Kedot is the right time to play gangsa. It is further believed that just the sound of
the gangsa could awaken the spirits and anito, to come around so that just the sound of
the Gangsa could awaken the spirits, anito, to come around so that if the Gangsa sounds
without any ritual purpose offends the anito and may cause sickness and misfortune. It is
the avoidance of these inflictions caused by untimely playing of gangsa is the bases of
this taboo. In the absence of rituals, the gangsa instrument are kept and brought out only
when needed.
Where the rituals involve the playing of the Gangsa, the start of which must begin
from the elders including the ritual dancing to be followed later by the other elders.5
The gangsa and solibao are played to give music for the Tayaw and Sadong. When

5Sacla, W. D. Treasury of Beliefs and Rituals of Benguet.

 13

the gongs are sounded, its music goes beyond the mountains to give information that a
family is performing a ritual or feast and that all neighbors, relatives, and friends are
welcome to join. 6

2. The intellectual property law and its application to the Cultural Musical
creations.

2.1. The intellectual property law of the Philippines particularly on the copyright

The Intellectual Property Code or Republic Act, the Patent Law, and the Trademark
Law are the responses to the 1987 Philippine Constitutions mandate to protect and
secure the exclusive rights of scientists, inventors, artists, and other gifted citizens to their
intellectual property and creations, particularly when beneficial to the people, for such
period as may be provided by law.

Megan M. Carpenter states that intellectual property laws are rooted from western
notion of ownership. And part of ownership of a thing is that which one has created or
invented. It highlights individualistic approach of ownership. This concept of ownership of
property by western standards has been the foundation of ownership over intellectual
properties by many countries. The Philippines itself derived its property laws from
Western Countries for the protection of ones literary, artistic and scientific works.

The scope of copyright protection are as follows: (a) Literary and artistic works
provided under section 172 of the IPL; and (b) Derivative works which are alterations of
literary and artistic works. They are considered new works.

2.1.1. Elements

Originality and expression are the elements that must be present so that a work
may be protected by copyright. In the case of Ching Kin Chuan v. Court of Appeals, G.R.
No. 130360, August 15, 2001, the court had ruled that the work must have been created
by the authors own skill, labor, and judgment without directly copying or evasively

6Dangpa-Subagan, Cony C.Kankanaey of Benguet. 2009

 14

imitating the work of another. Originality further must possess the following: it is
independently created by the author; and it must possess some minimal degree of
creativity. Expression on the other hand is that there must be a physical or tangible
manifestation of the idea of the author. It must be contained in a medium sufficiently
permanent to allow, reproduction or communication for a period more than a transitory
duration.

2.1.2. Rights of a copyright owner

Automatic Protection principle In copyright provides that works are protected

by the sole fact of their creation. Rights are conferred over the same from the moment of
creation Economic right is a right to carry out, authorize or prevent the reproduction,
making a derivative work out of the original work, first distribution, rental right, public
display, public performance and other communications to the public.

Moral rights is a personal right of the author to such as attribution of the work to him,
to make alterations over the same, to preserve integrity of his work, to restrain the use of
his name with respect to any of his work.

2.1.3. Ownership of a copyright

The owner of the copyright pertains to the author of the original literary and artistic
work. In case of works of joint authorship, in the absence of agreement, their rights shall
be governed by the rules on co-ownership. If the works can be used separately, then the
author of each part shall be the owner of the one which he has created.

2.1.4. Term of protection of a copyright

The term of protection of a copyright is the lifetime of its creator and for 50 years after
his death. After which, no economic and moral rights shall pertain to the creator of the
same.
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2.1.5. Implications of intellectual property law on copyright over indigenous

musical compositions

Intellectual property laws as well that of the Philippines is by its characteristics

banking on a western idea of property as to ownership, invention and creation. A careful
perusal of the intellectual property law of the Philippines seems to suggest that the cultural
creations of various indigenous peoples specifically their musical compositions have been
overlooked. The law to be specific is in fact silent in relation to this.

First, under IPL, ownership shall belong to the author of the musical creation.
Authorship is the first inventor, from whom arises the idea, and from his labor arises the
creation as tangible representation of his idea. This idea therefore must be original. This
runs counter to the concept of authorship by indigenous groups which is communal. Their
musical creations are product of cultural life that has perpetuated society since time
immemorial. Hence, the authors of the indigenous music are unknown because it is
unlikely for records of authorship being passed from generation to generation. Moreover,
these musical creations can be said to have arose from the practices of the community
collectively and not by reason of individual innovativeness.

Second, the term of protection granted to copyright works is limited to the lifetime of
the author plus 50 years after his death. It is therefore insufficient in providing protection
of traditionally and culturally created musical creations. If we are to apply the law, it is in
effect saying that after the lapse of the term of protection, the indigenous creations may
be exploited by others. Exploitation is detrimental to preservation of ones cultural creation
and expression.

Third, the economic and moral right accruing to the owner of the thing are limited
rights incapable of protecting the indigenous peoples creations because it is in a sense
generic rights granted to all scientists, inventors and artists whether or not he belongs to
an indigenous group. The rights that pertain to indigenous peoples over their creations
are a multitude array of rights more than just economic and moral rights. Their creations
are their identification and their way of life and carry with it the right of identity and right
to a way of life which economic and moral rights alone cannot afford to protect.
 16

2.2. The IPRA Law

2.2.1. Pertinent Provisions

Section 32 of the IPRA provides:

Indigenous cultural communities/indigenous peoples have the right to

practice and revitalize their own cultural traditions and customs. The State
shall preserve, protect and develop the past, present and future
manifestations of their cultures as well as the right to the restitution of
cultural, intellectual, religious and spiritual property taken without their free
and prior informed consent or in violation of their laws, traditions and
customs.7
The provision specifically touches on the Indigenous Peoples community
intellectual property right. To implement the above provision, Section 10, Rule VI of the
Implementing Rules and Regulations (IRR) of the act provides for the right to ownership,
control, development and other measures of protection by the IPs/ICCs of the said
community intellectual property/ rights.8 It likewise covers cultural integrity which
provides for the holistic and integrated adherence of indigenous peoples to their
respective customs, beliefs, traditions, indigenous knowledge systems and practices(of
which musical compositions form part) and the assertion of their character and identity as
peoples shall remain inviolable9 within ancestral domains/ lands.

Thus, the Indigenous Cultural Communities (ICCs) or the Indigenous Peoples (IPs)
now have the right to own, control, develop and protect the past, present and future
manifestations of their cultures, such as but not limited to, archaeological and historical
sites, artifacts, designs, ceremonies, technologies and visual and performing arts and
literature as well as religious and spiritual properties.10 Since most of the tribal, cultural
and/or indigenous musical compositions form part of the ICCs/ IPs traditional and other
religious ceremonies, as well as their performing arts and literature, it is undeniable that

7
Rules and Regulations Implementing Republic Act No. 8371, Otherwise Known As The Indigenous Peoples Right
Act of 1997

8
Ibid., Rule II.

9
Ibid., Paragraph c, Rule 1.

10
Ibid., Paragraph a, Section 10, Rule VI.
 17

the said indigenous and traditional musical compositions, as part of their culture, are
entitled to be given protection by the State. Moreover, under the IRR, the ICCs/IPs shall
also have the right to own, control, develop and protect language, music, dances, script,
histories, oral traditions, conflict resolution mechanisms, peace building processes, life
philosophy and perspectives and teaching and learning systems. 11 This particular
provision has expressly provided for the inclusion of music of the IPs/ICCs in the
protection of community intellectual property by the State.

The National Commission on Indigenous Peoples or NCIP was created under

IPRA which shall primarily be the government agency that is responsible for the
formulation and implementation of policies, plans and programs to recognize, protect and
promote the rights of ICCs/ IPs12 And in partnership with the ICCs/IPs, the NCIP shall
come up with effective mechanisms to protect the community intellectual property rights
of the IPs together with the First Impression First Claim principle, the Convention on Bio-
diversity, the Universal Declaration of Indigenous Peoples Rights, and the Universal
Declaration on Human Rights.13

Furthermore, Section 34 of the IPRA provides for the right of the indigenous
peoples or indigenous cultural communities to knowledge systems and practices, as well
as other visual and performing arts, to wit:

Indigenous cultural communities / indigenous peoples are entitled to the

recognition of the full ownership and control and protection of their cultural
and intellectual rights. They shall have the right to special measures to
control, develop and protect their sciences, technologies and cultural
manifestations, including human and other genetic resources, seeds,
including derivatives of these resources, traditional medicines and health
practices, vital medicinal plants, animals and minerals, indigenous

11
Rules and Regulations Implementing Republic Act No. 8371, Otherwise Known As The Indigenous Peoples Right
Act of 1997. Section 10, Rule VI.

12
Ibid., Paragraph r, Section 1, Rule II.

13
Ibid., Paragraph c(2), Section 10, Rule VI.
 18

knowledge systems and practices, knowledge of the properties of flora and

fauna, oral traditions, literature, designs and visual and performing arts.14
With respect to the foregoing, indigenous musical compositions and other musical
traditions are considered as part of the IPs/ICCs traditions, literature, and/or performing
arts. Hence, the IPs /ICCs have the right to control, develop and protect the same through
various measures.

2.2.2. Protection of traditional knowledge systems and indigenous

practices: Free and Prior Informed Consent and Royalties
According to the 1999 World Intellectual Property Organization Roundtable on
Intellectual Property and Traditional Knowledge, taking it from the perspective of IPRA,
Indigenous knowledge systems and practices are systems, institutions, mechanisms,
technologies comprising a unique body of knowledge evolved through time embodying
patterns of relationships between and among peoples and between peoples, their lands
and resource environment, including such spheres of relationship which may include
social, political, cultural and economic, religious, and which are the direct outcome of the
indigenous peoples to survive and thrive within their given socio-cultural and biophysical
conditions.15

The question now is how shall the said knowledge systems and indigenous
practices, particularly those indigenous activities that employ indigenous musical
elements in the course of its performance, be protected? Under Section 15 of the
Implementing Rules and Regulations of the IPRA, the following guidelines are adopted to
safeguard the rights of IPs to their indigenous knowledge systems and practices, to wit:

a) The ICCs/IPs have the right to regulate the entry of researchers into their
ancestral domains/lands or territories. Researchers, research institutions, institutions of
learning, laboratories, their agents or representatives and other like entities shall secure

14
RA 8371., Section 34.

15
Efforts at Protecting Traditional Knowledge: The Experience of the Philippines. World Intellectual Property
Organization Roundtable on Intellectual Property and Traditional Knowledge (Geneva, November 1999).
Document Prepared by Mr. David Aoas, Attorney, Chairperson, National Commission on Indigenous
Peoples, Presidents Office, Manila, 10.
 19

the free and prior informed consent of the ICCs/IPs, before access to indigenous peoples
and resources could be allowed;

b) A written agreement shall be entered into with the ICCs/IPs concerned regarding
the research, including its purpose, design and expected outputs;

c) All data provided by the indigenous peoples shall be acknowledged in whatever

writings, publications, or journals authored or produced as a result of such research. The
indigenous peoples will be definitively named as sources in all such papers;

d) Copies of the outputs of all such researches shall be freely provided the ICC/IP
community; and

e) The ICC/IP community concerned shall be entitled to royalty from the income
derived from any of the researches conducted and resulting publications.16

The foregoing measures of protection focused on the conduct of research.

One of the threats to indigenous knowledge, according to La vina, as cited in the 1999
Geneva Roundtable, is the misappropriation of indigenous knowledge by outside
researchers, hence increasing the rate of danger to indigenous knowledge. 17 Moreover,
Section 16, Rule VI of the Implementing Rules and Regulations of the IPRA prohibits the
commercialization and use for tourism and advertisement purposes of indigenous culture,
without the free and prior informed consent of the indigenous peoples concerned. 18
Furthermore, access to biological and genetic resources and to indigenous knowledge
related to conservation, utilization and enhancement of such resources shall be allowed
within ancestral lands and domains of the ICCs/IPs, provided there is a free and prior
informed consent of such communities, obtained in accordance with customary laws of
the concerned community.19

16
RA 8371., Paragraph a-c, Section 15.
17
Efforts at Protecting Traditional Knowledge: The Experience of the Philippines. World Intellectual Property
Organization Roundtable on Intellectual Property and Traditional Knowledge (Geneva, November 1999).
Document Prepared by Mr. David Aoas, Attorney, Chairperson, National Commission on Indigenous
Peoples, Presidents Office, Manila, 5.
18
The Rules and Regulations Implementing The Indigenous Peoples Rights Act of 1997, Section 16, Rule VI.
19
RA 8371., Section 35.
 20

The free and prior informed consent is a built in mechanism in the IPRA which
protect the protection of the traditional knowledge of the indigenous peoples. Thus, before
one can obtain the consensus of all members of the indigenous peoples, which is
requirement before once can proceed with his/her activity and which shall be determined
by the indigenous peoples respective customary laws and practices, the intent and scope
of the activity must first be disclosed fully, in a language and process understandable to
the concerned community.20 If the said activities are intrusive, community assemblies
shall be held, and once the consent is obtained, the terms and conditions agreed upon
shall be embodied in a memorandum of agreement between the IPS, the applicant, and
the ICCS, per Revised Guidelines on Free and Prior Informed Consent and Related
Processes of 2012. The said free and prior informed must also be free from external
manipulation, interference and coercion.

In addition, when instances call for the presentation of indigenous culture

and artistic performances, the IPs shall have the right to control such performances as to
the content and manner of presentation thereof, according to their customary laws and
traditions.21 If there is any violation thereof, the concerned IPs is also given the right
impose penalties, in accordance with their customary law. The IPRA also entitles the
indigenous peoples to equitable share in the benefits of such presentation or
performance, and all funds collected from these activities shall be managed directly by
the community concerned through the registered IPO, otherwise, the same shall be held
in trust by the NCIP for the benefit of the concerned IP community.22

2.2.3. Protection to Intellectual property

According to Peria of Biodiversity, Innovation, Trade and Society (BITS)

Policy Center, Inc., the Intellectual Property Office of the Philippines does not have the
legal mandate to deal with anything at all related to the traditional knowledge (TK) or
indigenous knowledge systems and practices (IKSP) of indigenous peoples in the

20
The Rules and Regulations Implementing The Indigenous Peoples Rights Act of 1997, pararaph k, Rule II.
21
See supra 23, Paragraph 2, Section 16, Rule VI.
22
Ibid., Section 16, Rule VI.
 21

Philippines.23 Peria said that the IP Code has somehow made Traditional Knowledge or
indigenous knowledge systems and practices (IKSP) of indigenous peoples in the
Philippines as a non-patentable subject matter. It is up to Congress to pass a law dealing
with a sui generis protection of plant varieties, animal breeds as well as a system of
community intellectual rights protection, a provision in the old draft which has now
become Section 32 of the IPRA. 24

He also said that Sec. 32 of IPRA covers intellectual rights, with an omission of the
notion of the concept of property. Hence, the former can be distinguished as a separate
concept from intellectual property since community intellectual right gives a notion that it
is a collective right, one that is different from intellectual property right contemplated under
the Intellectual Property Code.25 This interpretation somehow contradicts the Roundtable
Discussion in Geneva where the latter recognized the existence of Community Intellectual
Property.26 It is also noteworthy that the term Community Intellectual Property is
provided under Sec.10, Rule VI of the Implementing Rules and Regulations of the IPRA
while Section 32 of the IPRA itself merely used Community Intellectual Rights. 27

2.3. The International Intellectual Property Laws/Rules in relation to the rights

of indigenous peoples.

The rights of the indigenous peoples is one of the concerns that is put into the limelight
in this 20th century. States as well as international organizations are exerting an effort to
address these issues that seem to be neglected. One of these issues is the rights of the
indigenous people with respect to their cultural music. The following discussions would

23
Peria, Elpidio. 5 Reminders Concerning Traditional Knowledge Protection in the Philippines, B.I.T.S. In Bits, 2015.
Retrieved from https://bitsinbits.wordpress.com/2015/03/16/5-reminders-concerning-traditional
knowledge-protection-in-the-philippines/. Accessed in November, 2016.
24
Ibid.
25
Ibid.
26
Efforts at Protecting Traditional Knowledge: The Experience of the Philippines. World Intellectual Property
Organization Roundtable on Intellectual Property and Traditional Knowledge (Geneva, November 1999).
Document Prepared by Mr. David Aoas, Attorney, Chairperson, National Commission on Indigenous
Peoples, Presidents Office, Manila.
27
The Rules and Regulations Implementing The Indigenous Peoples Rights Act of 1997, Administrative Order No.
1, Series of 1998, Section 10, Rule VI.
 22

not discuss international laws in its entirety but only some relevant declarations with
respect to musical creation of the Indigenous people.

Helfer and Austin, both professors of law at duke and Melbourne University
respectively; and known authors and lectures of intellectual property throughout the world
have discussed that beginning in the early 1990s, political bodies in the United Nations
human rights systems began to devote significant attention to the rights of indigenous
communities. Among the many claims made by these communities was the right to
recognition of and control over their culture.28 This clamor arose due to the fact that
national intellectual property laws categorized traditional knowledge as part of the public
domain, and therefore unowned, but it made it available to third parties to privatize such
knowledge thru patents and copyrights without recognizing the indigenous communities.
The Agreement on Trade-Related Aspects of Intellectual Property Rights national
intellectual property laws viewed cultural intellectual creations to be part of the public
domain, either because it did not meet established subject matter criteria or because the
indigenous communities eschewed its private ownership.29 This assumption leads to a
belief that nobody is prejudiced and no laws are broken when individuals and corporations
use it freely.

However, there appears to be an inconsistency or bias against the indigenous peoples

under the TRIPS and national intellectual property laws because it categorized this
cultural music or traditional knowledge as freely unowned, but the very same laws made
it freely available for corporations or to appropriate them by granting patents and
copyrights. Adding insult to the injury, these corporations or individuals do not even
bother to share the financial and technological benefits to the indigenous communities.30

The United Nations human rights bodies sought to solve the problem in the intellectual
property laws by establishing a special group to draft a declaration.

28
Helfer and Austin, Human Rights and Intellectual Property, 49.
29
Ibid.
30
Ibid.
 23

2.3.1. The Draft Declaration on the Rights of Indigenous peoples and

principles and guidelines for the protection of the heritage of
indigenous

The documents contained in this declaration provides a silver lining to the noble
endeavor of letting the Indigenous communities to finally reap the fruits of their traditional
knowledge and expressions. These documents urge states to protect traditional
knowledge using legal mechanisms that fit comfortably with existing intellectual property
paradigms, such as allowing indigenous communities to seek injunctions and damages
for unauthorized uses. They also define protectable subject matter more broadly than
existing intellectual property laws, and they urge states to deny patents, copyrights, and
other exclusive rights over any element of indigenous peoples heritage that do not
provide for sharing, ownership, control, use and benefits with those peoples.31

As a result of this draft, comes the United Nations Declaration on the rights of
Indigenous Peoples

2.3.2. The United Nations Declaration on the Rights of Indigenous Peoples

(2007)

The declarations includes two provisions relating to intellectual property, to wit: (a)
Article 31 provides, Indigenous peoples have the right to maintain, control, protect and
develop their cultural heritage, traditional knowledge and traditional cultural expressions,
as well as the manifestations of their sciences, technologies and cultures, including
human and genetic resources, seeds, medicines, knowledge of the properties of fauna
and flora, oral traditions, literatures, designs, sports and traditional games and visual and
performing arts. They also have the right to maintain, control, protect and develop their
intellectual property over such cultural heritage, traditional knowledge, and traditional
cultural expressions.32 Article 31 contains a description of protectable subject matter and
of the rights that the Declarations beneficiaries enjoy; and (b) Article 11 which provides,

31
Helfer and Austin, Human Rights and Intellectual Property, 50.
32
United Nations Declaration on the Rights of Indigenous Peoples (2007).
 24

States shall provide redress through effective mechanisms, which may include
restitution, developed in conjunction with indigenous peoples, with respect to their
cultural, intellectual, religious and spiritual property taken without their free, prior and
informed consent or in violation of their laws, traditions and customs.33

However, the declaration was faced with opposition in the voting during the general
assembly by some of the states with prominent indigenous communities such as
Australia, Canada, New Zealand, and the United states. Among the reasons given for
such disapproval were the provisions of the intellectual property. Another source of
uncertainty relates to the legal status of the declaration. All observers agree that the
Declaration dos not itself create a legally binding obligationsWhat remains contested is
whether certain parts of the documents are declarative of customary international law,
and if they are not, whether the document will or should influence the development of the
rules through future state practice.34

2.3.3. World Intellectual Property Organization Roundtable on Intellectual

Property and Traditional Knowledge in Geneva (1999)

During the 1999 World Intellectual Property Organization Roundtable on

Intellectual Property and Traditional Knowledge in Geneva, pointed out Boquirens idea
that indigenous knowledge is borne by centuries of direct experiences in land and
resources nurturing, guided by a prescribed set of regulations and beliefs for each type
of land use, as [e]thnic identity, and socio-cultural integrity, relies on the persistence of
these regulations and beliefs.35 It was also discussed and emphasized that the use of
the three criteria for claiming a patent namely: novelty, inventive step, and capability of
industrial application, is contradictory to our basic values and perspectives.36 Thus, [o]ur
innovations, practices and knowledge systems were developed collectively, accretionally

33
United Nations Declaration on the Rights of Indigenous Peoples (2007).
34
Helfer and Austin, Human Rights and Intellectual Property, 52.
35
Efforts at Protecting Traditional Knowledge: The Experience of the Philippines. World Intellectual Property
Organization Roundtable on Intellectual Property and Traditional Knowledge (Geneva, November 1999).
Document Prepared by Mr. David Aoas, Attorney, Chairperson, National Commission on Indigenouss
Peoples, Presidents Office, Manila, 6.

36
Ibid.
 25

over time, and inter-generationally. Nobody can claim exclusive ownership over this
knowledge which is what patent claims is all about.37 This is in opposition to the idea that
the ones who can apply for IPR protection are individuals, corporations or states since it
marginalizes communities or collectivities such as tribes, clans or nations,38 due to the
Western Intellectual property right system that promotes the commercialization and
commodification of cultural products and expressions at the expense of indigenous and
local cultures.39

According to the said Geneva roundtable in 1999, due to the governments various
programs for tourism, traditional music, dances and literature, such as the kundiman and
harana of the Filipinos, are being appreciated by the international community, as a result,
while traditional IP music is being exploited commercially.40

2.3.4. The response of some countries

One of the countries that have responded positively to this call despite the fact that
they are not obligatory is the Country of Taiwan. The Protection Act for the Traditional
Intellectual Creations of Indigenous Peoples was promulgated in 2007 and the guidelines
for implementing it took effect on March 1, 2015. Officials with the council say the laws
were passed to preserve the traditional knowledge and culture of indigenous peoples,
safeguard their cultural rights and promote the sustainable development of indigenous
knowledge systems and practices. The intellectual creations involved may be traditional
religious ceremonies, music, dance, sculptures, weaving, patterns, clothing, folk crafts or
any other expression of the cultural achievements of indigenous peoples.41

Efforts at Protecting Traditional Knowledge: The Experience of the Philippines. World Intellectual Property
Organization Roundtable on Intellectual Property and Traditional Knowledge (Geneva, November 1999).
Document Prepared by Mr. David Aoas, Attorney, Chairperson, National Commission on Indigenouss
Peoples, Presidents Office, Manila, 6.
38
Ibid.
39
Ibid.
40
Ibid., 4.
41 Elaine Hou and Sophia Yeh. Regulations on indigenous rights take effect TAIPEI, CAN, March 2, 2015

retreived fromhttp://www.chinapost.com.tw/taiwan/national/nationalnews/2015/03/02/430073/Regulations-
on.htm
 26

The article explained that the law allows Taiwans indigenous peoples to apply to the
Council of Indigenous Peoples for protection of their cultural rights. Once granted, the
Indigenous people would have exclusive intellectual property rights over cultural
creations, such as traditional religious ceremonies, music and dance, came into force on
Sunday in a move that will help preserve aboriginal cultural heritage.

SUMMARY OF SUBTOPICS 1 AND 2

The first part of this work discusses the cultural musical creations of the cordillera
especially the people of Benguet. It provides a general picture of how unique, diverse and
culturally influenced their music is by their tradition and belief. Their music originates from
their ancestors who pass from generation to generation. Their type of music varies from
tribe to tribe.

The second part provides an overview of the intellectual property law of the
Philippines, the IPRA law, and international intellectual property laws to the cultural
musical creations of the indigenous people. The IPL is insufficient to provide protection
for these musical creations of the form of copyright. Though the IPRA law mentions about
the protection of intellectual property rights in its implementing rules and regulation, the
same is not a strong basis to claim the protection under the intellectual property law on
copyright. In like manner, international intellectual property laws view the cultural musical
creations as part of the public domain since it naturally existed and developed through
time and collectively owned by the community.

From the foregoing discussions, the researchers after examining and evaluating the
issues sought to be addressed, conclude that the existing intellectual property laws are
insufficient in providing protection, recognition, and conferment of benefits as well as the
control of these indigenous musical creations.

The researchers therefore deem it proper to propose a bill to fill the gaps that have
been overlooked by the existing intellectual property laws.
 27

3. Proposed Bill
AN ACT TO RECOGNIZE AND PROTECT THE RIGHTS OF INDIGENOUS
PEOPLE OVER THEIR INTELLECTUAL MUSICAL CREATIONS AND THE
REGULATION OF ITS UTILIZATION 0F 2016

Pointers to consider:

The IPRA law has already provided guidelines as to the protection of these
intellectual musical creations. This bill does not seek to repeal the existing intellectual
property law but serves as an addition to accommodate the need of protecting indigenous
peoples rights over their

A. Reconceptualization of the concept of originality of intellectual ownership of

indigenous peoples
1. Originality necessitates independent creation by the author arising from his
own labor and personal idea. The indigenous peoples intellectual musical
creations, however, do not satisfy this requirement. Their creations are handed
down from generation to generation. Moreover, it is not an individual product but
of collective belief, practice and tradition.

B. Reconceptualization of the concept of authorship of intellectual property

Authorship in the present intellectual property law dwells on individualistic
approach of ownership. The bill that is sought to be proposed seeks to modify
this concept to fit the communal ownership which is recognized by indigenous
peoples. Ownership of documented musical creation remains with the
indigenous community to protect community intellectual property rights.
Automatic passage of protection from generation to generation.

C. Expanding the term of protection of intellectual property rights of indigenous

peoples
The protection under the IPL is limited. This is insufficient in protecting the
rights of Indigenous peoples. The term of protection suggested by the researhers
is the co-existence of the community or the indigenous peoples that are practicing
it. There must be automatic passage of protection from generation to generation

D. The conferment of additional rights of indigenous peoples over their

intellectual properties

a. The IPL merely provides for economic and moral rights. These rights are
limited. There must be inclusion of rights that are capable of preserving their
culture as well as to ensure that the musical creations will be performed in
 28

accordance to the correct and accurate way that will not degrade the
sacredness of the musical creation and it must observe customary laws.

E. Free Prior Informed Consent

No musical creation of indigenous people will be performed without free

and prior informed consent (FPIC). Before performing any musical creations of
IPs, any person must sign Prior Informed Consent (PIC) agreement whether
for commercial purpose or not.The purpose of a PIC agreement is to clearly
define the reasons and methods, potential impacts, and expected outcomes of
any performance that will affect indigenous peoples culture or their
communities.

Such agreements may include following:

b.1. the purpose/s of the conduct or performance

b.2 arrangements for compensation if the performance is for

commercial purpose.

b.3. proper usage of gongs, Takik, solibao and other instrument and
its limitation.

b.4. proper recognition or attribution if for educational or scientific

purposes

That the compensation derived from such agreement will be devoted for
scholarship programs for the IPs willing, qualified and determined to pursue
their careers

Conclusion

The indigenous peoples are the living embodiment of originality, creativeness and
innovativeness of the cultures of human race. It is various, dynamic and flows out of their
veins with vitality and vigor. Their cultural expressions is life itself.

What more can we do to reward this but no other than by giving what is due them
in the eyes of the law. As the saying goes, the minimum expression of love is justice. It is
the giving to every man what is due to him because of the simple reason that it rightfully
belongs to him.
 29

This research has come up with guidelines on how our present intellectual
property laws can be expanded to provide a room for protection of indigenous musical
creations. Their concept of intellectual property different as it is from the concept of
property of others must not be put in oblivion or thrown in the abyss by reason of its
unconventionality or nonconformity with intellectual property laws. We must not do so
when their cultural expressions have persisted the passage of time and existed prior to
any other intellectual property laws.

The researchers are hopeful that this seeming dilemma can be reconciled by the
law which the law itself fell short of addressing.