Intangibles, Appropriation, and Intellectual Property Law: The Problem(s) With Copyright for Native American Oral Traditions

• DOI: https://doi.org/10.1016/S1059-4337(05)38006-9
• Date: 27 March 2006
• Pages: 173-190
• Published date: 27 March 2006
• Author: Emily Clark

INTANGIBLES, APPROPRIATION,

AND INTELLECTUAL PROPERTY

LAW: THE PROBLEM(S) WITH

COPYRIGHT FOR NATIVE

AMERICAN ORAL TRADITIONS

Emily Clark

ABSTRACT

The question of how to address copyright’s insufficiencies with respect to

Native American creative production is at the center of an ongoing legal

debate; however, more important is whether Native American oral forms

should be protected by copyright. Although some late twentieth-century

court decisions have opened the door for courts to consider including

intangibles within intellectual property law, copyright is not the answer to

the problem of protecting Native American oral traditions from appro-

priation. Expanding the scope of copyright to envelop Native American

oral traditions is antithetical to the creation and function of these forms

within their host communities and would do more harm than good.

Throughout the latter part of the twentieth–century, and particularly follow-

ing the 1990’s Native American Graves Protection and Repatriation Act

(NAGPRA) and theIndian Arts and Crafts Act (IACA),protection of Native

American creative production has increasingly been a topic of discussion in

Studies in Law, Politics, and Society, Volume 38, 173–190

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ISSN: 1059-4337/doi:10.1016/S1059-4337(05)38006-9

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the legal community. A host of legal and interdisciplinary scholars have called

for greater legal and non-legal protection of Native American creative pro-

duction, and, inparticular, intangible formsof production. Intangible creative

production is not covered under either of the 1990 Acts. Legal protection of

the oral traditions and stories (also referred to as ‘‘oral forms’’) of Native

Americans is at the heart of many of these discussions. Legal scholars and

others have written about the problem of protecting this particular kind of

Native American creative production to varying ends. Two camps essentially

emerge out of this conversation: those who recognize that Native American

oral traditions are vulnerable to misuse and appropriation but who see this as

an issue ill-suited to intellectual property (IP) law, and those who call for

revisions or additions to IP law to formally protect intangible forms. In her

article ‘‘Recovering Collectivity: Group Rights to Intellectual Property in In-

digenous Communities,’’ Angela Riley (2000) states the problem mildly when

she asserts that ‘‘The authorship requirement of the Copyright Act neglects

the complex and nuanced methods of creation and production found in the

non-Western world’’ (p. 194). Rileygoes on to discuss the problems of Native

American creative production and copyright, which hinge on copyright’s re-

quirements of individual authorship, originality, tangibility, and durational

limits. How to address copyright’s insufficiencies with respect to Native

American creative production is at the center of an ongoing and voluminous

debate, and Riley’s article exemplifies one end of that debate’s spectrum.

In her article, Riley presents her own solution to the problem of protect-

ing Native American oral traditions, writing that:

This paper seeks to generate a radical reconception of copyright laws as they relate to

Native Americans. By its very nature, the Copyright Act blatantly omits and denigrates

the intangible creations of indigenous communities. In order to prevent the complete

annihilation of indigenous cultures, the Copyright Act must be adapted to accommodate

the oral, collective, and inter-generational works of Indian peoples (p. 216).

Riley’s reference to the ‘‘annihilation’’ of Native American culture is an

allusion to the problem of cultural appropriation, which she and others

point to as a primary and motivating factor behind their calls for the pro-

tection of oral forms. Riley proposes that copyright law be amended to

include oral works. Her argument is a provocative one, particularly in its

attempt to ameliorate objections to her proposal. In articulating her re-

sponse to objections that could be raised about Constitutional requirements

of fixation, Riley offers recent case law on technological innovations:

Admittedly,oral traditions arenot ‘‘fixed’’ in the way thatthe Constitution envisioned. But

recent cases interpreting the ‘‘fixation’’ requirement in relation to modern technological

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