Academic journal article Northwestern Journal of Technology and Intellectual Property

The Case against Property Rights in Old Intangible Indigenous Cultural Property

Academic journal article Northwestern Journal of Technology and Intellectual Property

The Case against Property Rights in Old Intangible Indigenous Cultural Property

Article excerpt

Note-This article expands on a chapter to be published as "The Failed Case for Property Rights in Intangible Indigenous Cultural Property", in Christoph Antons and William Logan (eds.) Intellectual Property, Cultural Property and Intangible Cultural Heritage (Routledge, forthcoming, 2017).


In an earlier work,1 we argued that resolving the problem of protecting intangible indigenous cultural heritage should not take the form of defining a new class of "indigenous cultural property" that would be subject to rights under, or analogous to, those recognized by the intellectual property regimes of patent and copyright. We concluded, rather, that a "one size fits all" approach was incapable of balancing the tensions between understandable demands from indigenous peoples to have control over their cultural heritage, on the one hand, and fundamental policy values reflected in the intellectual property regimes and in basic notions of free expression, on the other. We outlined a number of specific situations in which careful judicial interpretation of existing laws or modest amendments to existing statutory regimes can meet many of the needs and demands of indigenous peoples. In many cases, there is no fundamental clash between western legal traditions and the legitimate demands for privacy, confidentiality, or recognition that indigenous claimants might make. In some cases, however, especially those involving outsider use of publicly available but "old" indigenous works (that is, those works no longer protected by copyright), attempting to give control to the group is fundamentally antithetical to basic notions of free expression and the overall development and dissemination of culture.2 For such cases, a value judgment must be made. We concluded that a regime of perpetual rights in the indigenous group from which the work derived is both practically impossible and theoretically unsound: "[I]ndigenous cultural tradition must give way to the modern creative spirit."3

Since our article appeared, there has been a good deal of activity, both at the United Nations and in various countries.4 In addition, the commentators have been active.5 Most approaches, however, continue down the path of asserting that western legal concepts are "inappropriate" to meet the needs of indigenous peoples and therefore must be modified in one way or another. An implicit assumption in many of these commentaries is that "indigenous peoples" do, in fact, have some common needs or demands that are in conflict with "western" traditions. They also seem to assume that all members within a particular indigenous culture have the same goals with respect to the use, by insiders or outsiders, of the group's intangible heritage. To the extent a given proposal does rely on inter- or intra-group homogeneity, we are skeptical that it can provide a meaningful general resolution. Some groups might find, for example, that the commodification of their music or certain artistic images is offensive on religious grounds. Others might find the same use offensive simply because it is, in their opinion, in bad taste. Others might not object to the commodification so much as to their exclusion from the profits derived from it.6

Another problem that remains extant in the literature is the general assumption that "indigenous cultural property" can be defined in a meaningful way and that the individuals or groups who are to be given a certain degree of control rights can be identified. There is also an implicit assumption that these control rights can be appropriately circumscribed to assure that those in control do, in fact, exercise their power with the goals and needs of the group in mind.7

One of the more important commentaries on these topics attempts to obviate some of these difficulties by reframing rights in indigenous cultural property within traditional western property law concepts.8 Professors Carpenter et al. offer the notion of "stewardship" as a limitation on ownership rights in cultural property, both tangible and intangible, so that an "owner" of property might not necessarily be able to use it to the full extent otherwise allowed but would negotiate with relevant cultural groups or their representatives over uses that impinge on aspects of the group's cultural heritage that the group has an obligation to maintain. …

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