V. TK Protection in Taiwan
2. Current protection of TK in Taiwan
Although TK is very abundant around Taiwan, Taiwan has no special laws concerning the protection of TK. As such, TK protection in Taiwan is in its beginning stages. The following section discusses the main types of protection of TK in Taiwan.
2.1 Research and establishment of TK databases in Taiwan
Although Western naturalists visited Taiwan before 1900, the Japanese were the first to take intensive ethnological and ethnobiological studies. They began in the beginning of the 1900s. During the fifty years of the Japanese rule of Taiwan, these researchers published a great deal of their research and monographs. However,
34 For example, Atayal tribal hunting rule, so called “GAGA”.
these studies are by no means extensive. Since the 1945, intensive ethnological and ethnobiological studies have been scarce. In recent years, however, research into these fields has started to revive.
2.1.1 Ethnobotany
Many anthropologists and botanists conducted research concerning ethnology during the Japanese Occupation. Anthropologists Torii Ryuzo (鳥居龍藏, 1898) and Ino Kanori ( 伊 能 嘉 矩 , 1899) were among the most recognized. Anthropology periodicals published most of their researches, but related botanical studies did not begin until 1911. Ethnobotanists such as Yaichi Shimada (島田彌市), Sasaki Syuniti (佐佐木舜一), and Yamada Kinji (山田金治) were among the most famous. Periodicals such as Taiwan’s Mountains and Forests (台灣的山林), Tropical Horticulture (熱帶園 藝), and compilations of the Taiwan Forestry Research Institute published some of these botanical researches.
In recent years, a few academic and non-professionals devoted researches to indigenous usage of plants. Current research in Taiwan includes the following categories:
2.1.1.1 Field observation
The groundwork of field observation is to record systematically the usage of plants by or between different tribes. However, the push to expedite plant recording and the failure to understand local culture may result only in a list of plants uses of each tribe, which fails to take into account the full importance of the TK associated with this plant. Nevertheless, some results are promising. For example, Han-Wen Zheng published more than two hundred plant species that the Tao (of Orchid Island) use.35 Moreover, Chiung-Shi Liu recorded 207 plant species that the Rukai use.36
2.1.1.2 Quantitative ethnobotany
These kinds of study began in the middle of the 1980s, mainly by quantifying data.37 Wang et al. focused on the Tao’s usage of mountain forests, coastal forests,
35 Zheng, Han-Wen (鄭漢文) 1996 Vulgar plants of the Tao. Eastern Taiwan Study, no. 1, p. 67-104.
36 Liu, Chiung-Shi (劉炯錫) 2000 Investigation on traditionally useful plants of Taromak tribe of the Rukai, Taitung. Bulletin of National Taitung Normal College, 11: 29-60.
37 Wen-Chao Chang (張汶肇) 2003 Study on the Ethnobotany of Seediq Atayal in Nantou, Master Thesis, Graduate Institute of Horticulture, National Taiwan University, Taipei.
and growing plants in Lanyu.38 Huang examined the plant use habits of the Atayal tribe, especially investigating uses of forest plants.39
2.1.1.3 Experimental ethnobotany research
This method is based on field observation, focusing on how those plants were used as medicines, foods, insect repellants, aromas, and dyes.40 For example, He and Hsu (2000) recorded the names of plants used as dye, studied the dyeing techniques of the Ami tribe of Hualien, and conducted dyeing experiments based on field observations.41
2.1.1.4 Applied ethnobotany
This field of research is to integrate experiences about how local residents use plants and manage natural resources through regional investigation. For example, works had been done to develop new products (arts and crafts, edible plants, etc.), natural resource management, ecological tourism, medicine/health, plant protection, and cultural protection.42
2.1.1.5 Establishing Databases 43
The first author of this article conducted a complete survey of the Table of Contents section of each journal published in Taiwan during Japanese ruling era (1895 to 1945) and held in the archives of National Taiwan University, the Taiwan Forestry Research Institute, and the Taiwan Agricultural Research Institute. Twenty one articles concerning ethnobotanical reserach had been selected. We also took a look at post-WWII studies (1945 to 2000), and found 24 articles concerning plant uses of the indigenoue peoples.
According to our survey, Taiwanese indigenoue peoples have used about 700 plants species. We created a database through Microsoft Access. The database
38 Wang, [Hs/Sh]iang-Hua (王相華), Jeng, Han-Wen and Pan, Fu-Yi (潘富俊) 2000 Plant usage of [the] Yami tribe, p. 228-248.
39 Huang, Shih-Yen (黃詩硯) 2003 Study on Ethnobotany and Vegetation Utilization in Cinsbu, Atayal. Master Thesis, Graduate Institute of Botany, National Taiwan University, Taipei.
40 See supra note 35.
41 Id.
42 Huang, Chi-Reng 2000 Distinction in the Amis’ Market: An Alternative Ethnobotany. Master Thesis, Institude of Ethnic Relation and Culture, National Dong-Hwa University, Hualien.
43 http://tk.agron.ntu.edu.tw/ethnobot/DB1.htm
has several fields (i.e., commonly-accepted names, synonyms, common names, plant family, indigenous tribes, use, and description). As for use we have classified them by use: as food, as spice, as salt replacement, as medicine, for chewing, for teeth-dyeing, for dyeing generally, for cleaning, for wine-making, for decoration, for fish-poisoning, for construction, for boat-making, for use as a container, for use as fabric, etc. People can use this database to conduct searches in Chinese.
The database contains several categories concerning plant species (i.e., accepted names, synonyms, common names, plant family, indigen ous tribes associated with this plant, use, and description). The plants have been classified by use as food, as spice, as salt replacement, as medicine, for chewing, for teeth-dyeing, for dyeing generally, for cleaning, for wine-making, for decoration, for fish-poisoning, for construction, for boat-making, for use as a container, for use as fabric, etc.
2.2 New regulations
Taiwan has no law providing clear protection of TK, and only existing laws provide some protection to TK. Current legal protections include: (1) patent law, (2) the plant variety protection, (3) trade secret law, (4) trademark law. Recent amendments to the trademark law concern geographical indications. As long as the area’s TK has certain features or qualities, people may use geographical indicators on a product or service.
2.3 Bills for new legislation
In the year 2000, the Council of Indigenous Affairs under Taiwan’s Executive Yuan made a new bill concerning the protection of indigenous peoples’ folklore to prevent the disappearance of the TK of Taiwan’s indigenous peoples. This bill promotes the protection of expressions of folklore. In 2002, the Executive Yuan passed this bill, but the Legislative Yuan has yet to complete the required three readings for this bill to become law in Taiwan.
2.4 Infringed cases
2.4.1 Use of a Performance without permission
In 1998, lawyers for Difang (Chinese name Ying-nan Kuo) and his wife Igay (Chinese name Hsiu-chu Kuo), an indigenous couple of the Ami tribe, filed a copyright infringement suit in the United States against the German pop music group Enigma, related US and German record companies, as well as the International Olympic
Committee (IOC).
The couple claimed that Enigma, Virgin Records (Germany), Capitol-EMI Music, Charisma Records of America, Mambo Music (Germany) and the IOC failed to give the Ami couple credit for the use of their voices in Enigma's hit song, "Return to Innocence.”
The song contains extended portions of the Ami couple performance of their tribe's "Jubilant Drinking Song."
The Ami couple (both vocalists from the Ami tribe of Eastern Taiwan) sang the
"Jubilant Drinking Song" (an important song in Ami celebrations) in Paris in 1988, when the couple was members of a Taiwan mission taking part in a cultural exchange program sponsored by the French Ministry of Culture and Education.
French musicians heard the Ami couple's rendition of the song, a tune passed down from generation to generation among the Ami, and a French museum included their singing on a CD released later that year of Taiwan indigenous music.
The Ami couple were surprised when they learned that their song had been appropriated for Enigma's 1994 pop song "Return to Innocence,” and was being used by the IOC in its promotion of the 1996 Summer Olympic Games in Atlanta since the Ami couple did not know of or authorize these uses of the song. The song, boosted by the connection with the Olympics sold millions of copies worldwide.
The Ami couple was puzzled that they were not given any recognition for the Enigma recording.
In the end, this case was settled out of court. The defendants agreed to recognize the couple in future releases, and awarded the couple two platinum albums in respect of their contributions.44
2.4.2 Using without Permission
In 1990, the Paiwan brought a copyright infringement case against the manufacturer of bags that copied the sacred symbols of the tribe. However, since books introducing the indigenous peoples had already shown these sacred symbols,
44 Huang, S.L. (黃秀蘭) 1999 The Copyright infringement case of the “Joyously Drinking Song”
of Mr. In-Nan Kuo. Outline in “Taiwan Indigenous People cultural property” Seminar handbook, Taipei.
the judge found the items lacking original creation and found the defendant not liable for copyright infringement.45