Intellectual Property Law and Indigenous Peoples: Adapting Copyright Law to the Needs of a Global Community

Article excerpt

The definition and scope of intellectual property and associated laws are under intense debate in the emerging discourse surrounding intellectual property and human rights. These debates primarily arise within the context of indigenous peoples' rights to protection and ownership of culturally specific properties. It is true that intellectual property laws are based on Western, developed markets, Western concepts of creation and invention, and Western concepts of ownership. But whatever their origins, those laws have been, and currently are, the primary vehicle for the protection of artistic, literary, and scientific works worldwide. To segregate indigenous interests from this international legal regime, particularly in light of the increasing globalization of markets, is to deny indigenous peoples both a powerful legal shield and a powerful legal sword. This Article argues that copyright laws can, and must, be expanded so as to maintain the vitality of, and protect, the creative artistic and literary works of indigenous cultures. The Article proposes three major changes to international copyright law: the incorporation of collective and communal notions of authorship, the expansion of the originality requirement to reflect these forms of authorship, and the application of limits on the duration of copyright protection in a broader community context. The Article further proposes that a variety of intellectual property mechanisms be drawn upon to provide special protection for "sacred" cultural works.

I. INTRODUCTION

[A]uthorship may reside in pre-human creator ancestors, such as the Wandjina of the Kimberley region. Authorship is replaced by a concept of interpretation through initiation. Ownership yields to a concept of custodianship of dreamings, or legends. Alienation, is contradicted by the concept of immutable communal property. Exploitation, is subject to cultural restraints and taboos. Incentivization also has to yield to concerns about spiritual adulteration. (1)

Intellectual property and human rights make strange bedfellows. Or, at least, so one would have thought until recently. Within a context of globalization and the increasing commodification of content, intellectual property and human rights are interacting in a variety of fora in unexpected ways. The definition and scope of intellectual property and associated laws are under intense debate in the emerging discourse surrounding intellectual property and human rights. These debates primarily arise within the context of indigenous peoples' (2) rights to protection and ownership of culturally specific "properties," (3) including arts, sacred works and knowledge, biocultural knowledge, ethnobiological knowledge, and cultural expressions. Participants in the ongoing theoretical debates decidedly differ over whether intellectual property rights are the appropriate mechanism by which such cultural works or embodiments should be protected. Some authors argue for a new legal regime specifically designed for indigenous peoples to protect and benefit from the expressions, knowledge, and works of their culture. (4) Others argue that property laws themselves should be sufficient. (5) Still others argue that natural resource laws can serve as a vehicle for the protection of cultural properties from exploitation by third parties. (6) Problems commonly outlined by these authors are significant, and dislodge some of the rooted legal operatives of intellectual property laws. (7)

However, if one deals with intellectual property exclusively as a subject matter, rather than a bundle of specific legal operatives established in international and domestic legal systems, the inclusion of indigenous peoples' cultural and scientific knowledge, expressions and artistic and literary works fits squarely within that realm. It is true that intellectual property laws are based on Western, developed markets, Western concepts of creation and invention, and Western concepts of ownership (as evidenced even by the use of the term "intellectual properties"). …