Academic journal article Marquette Intellectual Property Law Review

Indigenous Peoples' Rights at the Intersection of Human Rights and Intellectual Property Rights

Academic journal article Marquette Intellectual Property Law Review

Indigenous Peoples' Rights at the Intersection of Human Rights and Intellectual Property Rights

Article excerpt

INTRODUCTION I. INDIGENOUS PEOPLES' RIGHTS IN THE INTERNATIONAL HUMAN RIGHTS FRAMEWORK   A. BEYOND HUMAN RIGHTS   B. THREE CONVENIENT FRAMEWORKS FOR INDIGENOUS RIGHTS     1. THE INTERNATIONAL BILL OF RIGHTS     2. SPECIFIC TREATY INSTRUMENTS     3. RECENT DEVELOPMENTS--UNDRIP II. HUMAN RIGHTS AND INTELLECTUAL PROPERTY RIGHTS III. MAPPING INDIGENOUS RIGHTS ONTO HRS-IPRS INTERFACE CONCLUSION 

INTRODUCTION

Dedicated exploration of the interface between human rights (HRs) and intellectual property rights (IPRs or IP) is a venture still in its gestational stage. Early outcomes of the conversations seem to agree on a few first impressions.

First, even though HRs and IPRs developed along different paths, the foundation of their underexplored intersection is historically rooted. (1) Second, the development of both legal domains is influenced by the same historical factors; such as the industrial revolution and the expansion of international trade, which were catalysts for social, political, and economic transformations. (2) Third, at no time has the empirical importance of the relationship between HRs and IPRs been more palpable than the period beginning in the mid-1990s, and symbolized by the coming into effect of the Trade-Related Agreement on Intellectual Property Rights (TRIPS) of the World Trade Organization (WTO). (3)

Fourth, as a conjecture, the normative outlook of the relationship between HRs and IPRs is clouded by complex paradoxes and are allergic to simple resolution. On the face of it, HRs cater to the optimal realization of human potential; while intellectual creativity, which is the concern of IP, is integral to realization of human capability and progress. Fifth, early enthusiasts of this important conversation have a historic opportunity to frame and influence the understanding of a subject matter that is developing at the pace of its equally growing relevance. (4) In that expectation, the mapping of indigenous peoples' rights onto the interface between HRs and IP is a critical aspect of the ongoing conversation. However, present attempts to explore the interface of broader HRs jurisprudence with its IPRs counterpart reveal apparent conceptual obfuscation in regard to how indigenous peoples' rights are implicated.

The extent to which indigenous peoples' rights are integrated into core HRs instruments, especially the international bill of rights (IBRs) (5) and other international or regional HRs instruments is not apparent; and is at best peripheral. Similarly, the status of indigenous peoples' rights--as "group" or "collective rights"--continues to pose normative challenges to HRs jurisprudence, which evolved, in part, as a counterpoise to group tyranny. (6) Perhaps, more important, as an aggregation of rights, indigenous peoples' rights constitute analogous misfits to any specific head of conventional HRs or IPRs. Put differently, as opposed to paralleling any specific class of HRs, indigenous peoples' rights are complementary components of virtually every conventional HR category; (7) the same is true, to some degree, in relation to conventional categories of IPRs.

Indigenous peoples' rights, especially those relating to their knowledge systems; continue to be treated with disdain under the conventional IP system. Indigenous peoples' attitude towards the IP system remains dialectical. As summarized by analysts, "[a]ssertions of rights by indigenous peoples in the context of intellectual property encompass two distinct and opposing elements--claims to intellectual property protection, and claims to be protected from intellectual property laws and institutions." (8) Given the inability of IPRs to account for indigenous knowledge, let alone indigenous peoples' rights, it is logical to look to HRs to fill the gaps in IPRs in these areas.

The evolution and details of indigenous peoples' rights within HRs theory remains a work in progress. Rather than being a fait accompli, indigenous peoples' rights are part of the inchoate, yet progressive elaboration of indigenous issues within HRs jurisprudence. …

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