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.
[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"). (8) But whatever their origins, the fact remains that 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 increasing globalization of markets and commodification of content, is to deny indigenous peoples both a powerful legal shield and a powerful legal sword. It is essential that, when found inadequate or inapposite, intellectual property laws are not discarded, but rather adapted to accommodate indigenous situations.
The intellectual property legal regime is a powerful one, its component parts comprising a complex body of law, an existing mind share, and a cache--all of which have developed over the years, and from which all peoples should benefit. Thus, if the workings of the intellectual property machine involve culturally-specific components, that machine should not be discarded when it is found ineffectual for all cultures; rather, the machine should be reconstructed such that it works for all cultures. The inclusion of indigenous peoples' cultural knowledge, inventions, expressions, and works within an intellectual property regime requires some rewiring of the parts, but does not diminish the potential legal value of the machine itself. This Article discusses the means by which indigenous interests can, and should, be incorporated into intellectual property law. (9) Copyright laws, in their current formulation, are inadequate to protect the fruits of human creativity of indigenous peoples. Thus, I will argue that copyright laws can, and must, be expanded in three ways so as to protect and maintain the vitality of the artistic and literary works of indigenous cultures: incorporating collective and communal authorship; expanding originality requirements to reflect collective and communal authorship; and applying limits on the duration of protection in a broader community context. I also propose that a variety of intellectual property mechanisms be drawn upon to provide special protection for "sacred" cultural works. In Part One, I use the debates over terminology to illuminate briefly some of the cultural issues at play with respect to the protection of the literary, artistic, and scientific works of indigenous peoples. In Part Two, I discuss the parameters of "intellectual property" and introduce the concept and operation of copyrights. In Part Three, I argue that the legal construction of authorship within the copyright context must be expanded to accommodate indigenous interests. In this Section, I examine in detail notions of authorship as they are embedded in intellectual property law and show that they run contrary to fundamental principles of authorship held by indigenous peoples. I argue that authorship must be reconstructed to accommodate cultural difference. I discuss developments toward that end in Australian case law and suggest additional intellectual property concepts that can be drawn upon to further that objective. In Part Four, I address the need to recast originality requirements to reflect an expanded notion of authorship, and in Part Five, I explore the various alternatives to basing the duration of rights on the "life of the author" within this expanded framework, noting both practical and policy conflicts over the duration of rights. Finally, in Part Six, I advocate special protection for sacred cultural works, and explore some of the already established legal mechanisms, in addition to copyright, through which this protection can be sought.
TERMINOLOGY AND CULTURAL ISSUES SURROUNDING THE PROTECTION OF LITERARY, ARTISTIC/AND SCIENTIFIC WORKS OF INDIGENOUS PEOPLES
Indigenous peoples have a variety of reasons for seeking protection of their traditional knowledge, including the conservation of traditional knowledge, protection against commercial exploitation, attribution, and benefit-sharing. (10) Their motives may arise from concern over misappropriation, the preservation of biodiversity, promotion of the use of traditional knowledge for development, or external pressures exerted upon the groups. (11) The protection of this knowledge may be sought from within and without intellectual property legal regimes; that is, indigenous peoples may look to existing intellectual property structures for protection, and may also advocate the development of sui generis forms of protection for their traditional knowledge. Differing objectives have led, in turn, to distinct methods of casting the terms of the debate.
There has been an active debate regarding the proper terminology for the cultural properties and expressions of indigenous peoples since the mid 1980s, when the World Intellectual Property Organization ("WIPO"), and the United Nations Educational, Scientific, and Cultural Organization ("UNESCO") brought together a Group of Experts on the Protection of Expressions of Folklore by Intellectual Property. (12) Until this time, the products of the intellectual labor of indigenous peoples fell under the rubric of "folklore." (13) At this meeting, some representatives asserted that the term "folklore" had the negative connotation of being associated with lower or superseded civilizations. (14) WIPO and UNESCO responded by providing a definition of the term, (15) which persisted until the World Forum on the Protection of Folklore in 1997. (16) The debate over terminology that occurred at this Forum illuminates some of the cultural issues surrounding copyright protection, including communal authorship and the need to recognize the ongoing vitality of indigenous works.
At the Forum, many delegates raised issues related to the inadequacy of the term "folklore." Some representatives continued to assert that the term was commonly understood to cover static, antiquated traditions meant to be collected and preserved, rather than...