Indigenous Rights and Intellectual Property Law: A Comparison of the United States and Australia

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SYNOPSIS

"Works of art are the property of mankind and ownership carries with it the obligation to preserve them. He who neglects this duty ... will be punished with the contempt of all educated people, now and in future ages."--Attributed to J.W. von Goethe (1)

"Much of what they want to commercialize is sacred to us. We see intellectual property as part of our culture. It cannot be separated into categories, as [Western] lawyers would want."--North American Indian Congress, Ray Apoaka (2)

"The indigenous view of the world ... is the antithesis to the Western paradigm: communitarian, not individual, focused on sharing rather than shielding things, respect for land and all living things as sacred rather than as objects ripe for exploitation and consumption." (3)

These statements illustrate a fundamental tension between individualist, or "Romantic," views of property rights typically associated with Western thought, and the communal view of property rights held by indigenous peoples. Goethe's view of works of art is in keeping with the "Romantic" view of authorship, a perception that highly values the individual experience of artistic production. (4) The traditional indigenous view, in contrast, envisions property, knowledge and nature as part of an interconnected world. (5)

Indigenous concerns are common throughout the world. What qualifies as an "indigenous" concern? The United Nations (UN) defines indigenous peoples according to three general characteristics. (6) First, indigenous peoples have a historical continuity with the societies that developed in particular territories before they were conquered or colonized. Second, they consider themselves to be a distinct and non-dominant sector of the present society of the territory. Third, they are "determined to preserve, develop and transmit to future generations their ancestral territories, and their ethnic identity, as the basis of their continued existence as peoples, in accordance with their own cultural patterns, social institutions and legal systems." (7)

The UN's definition provides a starting point for analyzing indigenous concerns. But it should be kept in mind that other factors are also relevant. For example, a 1993 International Labour Organization (ILO) (8) report revealed that, as compared to national populations, the world's indigenous people have higher rates of infant mortality, unemployment, alcoholism, disease, ill health, and incarceration. (9) Sadly, as a general rule, "indigenous and tribal peoples are always, always at the bottom of the social and economic heaps." (10)

The historical backgrounds and unique characteristics of indigenous people require and justify special protection). (11) Can intellectual property rights help rectify this problem? This paper addresses this essential question by analyzing and comparing the divergent legal systems of the United States and Australia. Although these legal regimes faced similar requirements relative to indigenous populations, they have responded quite differently. In this article I will closely examine the United States and Australia's diverging legal developments in order to illuminate the underlying factors that may shape legal responses in the future. Part I will compare and contrast the respective legal systems of the United States and Australia. Part II will identify key legal decisions from each of these countries and will analyze them with respect to the "individualist" and the indigenous, communal view of intellectual property. Part III will consider certain international approaches to indigenous intellectual property rights, and will compare this to U.S. and Australian experiences. Finally, Part IV will propose how the heritage and culture of indigenous peoples can indeed be preserved through expanded intellectual property rights.

I. DIVERGENT APPROACHES TO INDIGENOUS POPULATIONS: THE LEGAL REGIMES OF THE UNITED STATES AND AUSTRALIA

In certain respects, the United States and Australia share similar colonial histories. …