Academic journal article Marquette Intellectual Property Law Review

The Emerging Right to Communal Intellectual Property

Academic journal article Marquette Intellectual Property Law Review

The Emerging Right to Communal Intellectual Property

Article excerpt

INTRODUCTION I. THE RIGHT TO COMMUNAL INTELLECTUAL PROPERTY IN INTERNATIONAL INSTRUMENTS AND NATIONAL CONSTITUTIONS    A. The Right to Communal Intellectual Property in Latin America      and the Right to Property in the American Convention of        Human Rights    B. The Right to Communal Intellectual Property in Africa and the      African Charter on Human and Peoples' Rights II. DIFFICULT QUESTIONS BORDERING THE RIGHT TO COMMUNAL INTELLECTUAL PROPERTY    A. The Bearers of the Right to Communal Intellectual Property    B. The Scope of the Right to Communal Intellectual Property        1. The International Convention on Social and Cultural          Rights        2. The United Nations Declaration on the Rights of          Indigenous Peoples        3. Regional and National Approaches CONCLUSION 

INTRODUCTION

This article addresses the extent to which national and international law regards the entitlement of communities to protect and preserve their intellectual property in the form of traditional knowledge, expressions of folklore, and genetic resources as a communal right. In particular, communal intellectual property is a right collectively held by communities over their intellectual property. Such rights arise because the creation, maintenance, enhancement, and transformation of intellectual property is done by the community as a whole. The communal nature of the right does not diminish the fact that individuals are the physical agents in the creation of communal intellectual property. Still, such contribution happens in the context of communal values, and often with the vision, supervision, and authority of the community. In general, the existence of communal creations and knowledge is universally acknowledged. Yet, it is a different matter when a claim is asserted that a community has exclusive rights over the products and the processes resulting from these creations and knowledge. This difference is where, both at the international and national level, heated debates and controversies have dominated the discussion about whether intellectual property rights could be asserted by communities as opposed to individuals.

A simple way to approach this issue is to identify existing norms in national constitutions where such a communal intellectual property right is recognized. Given that intellectual property rights are essentially territorial, the recognition by national constitutions of communal rights is usually, although not exclusively, the clearest evidence of the recognition of such rights. In this respect, this article argues that a combination of recent constitutional provisions in regions such as Latin America and Africa, as well as international treaty provisions, support the assertion of the existence of communal intellectual property rights. However, the lack of widespread state recognition of communal intellectual property rights, in the background of the ongoing controversy of the relationship between intellectual property and human rights, suggests that communal intellectual property rights are still emerging. That is, such rights have yet to be firmly established as a general legal principle in many jurisdictions. Moreover, these rights confront significant obstacles as well, some of which are specifically addressed in this article.

In this context, it is worth highlighting that part of the difficulty of asserting communal intellectual property rights is because the nature of intellectual property rights remains largely unclear. Given the controversies surrounding recognition of individual intellectual property rights in the background of the development of human rights as a liberal conception and protection of individual rights, it would appear problematic to assert that communities have a right to their intellectual output. Still, provisions in international treaties such as Article 15 of the International Covenant for Economic Social and Cultural Rights--as well as Article 27 of the Universal Declaration of Human Rights--do offer some support for the recognition of intellectual property rights as human rights. …

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