Registration of such cultural expressions would make modern IP law more useful to protect them, but registration includes disclosure—exactly what the pueblo wanted to avoid. Where secrecy is not an issue, registration can be useful. Wüger describes the “Cultural Goods Registry” provided by Guatemala’s Cultural Heritage Protection Law _._ Protection of cultural values becomes particularly troublesome when the proposed commercial use of traditional knowledge is in a country different from where the indigenous community is located. A patent on a variety of the Ayahuasca plant granted by the USPTO raised a controversy over patenting a product that had major spiritual significance for a foreign community.

Ayahuasca is South American vine with hallucinogenic properties. It is used in traditional Amazonian rituals to produce a ceremonial drink; the drink is used to treat sicknesses, to contact spirits, and to foresee the future. The preparation and administration of the drink is strictly regulated by customary law, and the drink may be prepared only under the guidance of a shaman.

The patent holder obtained in the Amazon samples of a particular variety, brought it back to the United States, and claimed a patent on it as a newly discovered plant. The COICA opposed the patent on grounds that the plant was widely known in scientific literature (nonnovelty) and that the patent would violate the religious beliefs of South American indigenous peoples (nonutility). In response, the USPTO first revoked the patent but later reinstated it, on grounds that the variety discovered by the patent holder is not identical to specimens of Ayahuasca found in U.S. herbarium collections. U.S. patent law excludes the consideration of unpublished foreign sources when determining novelty. The USPTO did not address the question of whether the vine being a sacred religious symbol precluded its patentability. The patent does not, however, limit the traditional use of the vine.

Ethiopian practice illustrates another approach to protecting folklore. Ethiopia requires prior authorization by the Ministries of Culture and Information and payment of a fee for any reproduction or adaptation of folklore. The ministry has authorized the Musicians’ Association as the agent to license the use of folklore music. Wüger explains a case in which one musician obtained permission from the Ethiopian Musicians’ Association to use several songs—the Musicians’ Association claiming authority on grounds that the songs were part of Ethiopian folklore. Another musician claimed that he had written the songs; however, the court denied him copyright protection. In making its determination, the court did not consider whether the adaptations that the second musician made of the traditional folklore songs constituted derivative works protected under copyright laws. The novelty value of the songs was captured by the regulatory authority rather than by the composer. The tradeoff here, Wüger points out, is that artists who are unable to protect their works will be unable to live from their profession—the same complaint brought forward by many Senegalese musicians in the Africa Music project.

In several other countries, as well as in Ethiopia, the protection of cultural property is assigned to a central agency. Wüger points out that legislation could assign authority directly to indigenous communities, provided that the communities have corporate or NGO status or otherwise have standing in the legal system.

The _Arogyapacha_ incident, also described in the study by ten Kate and Laird, brings out a problem that can arise when protection of cultural property revolves on a 21