The emerging right to communal intellectual property.

• Author: Nwauche, Enyinna S.

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. Moreover, the recent jurisprudence (1) from national courts, the European Court of Human Rights, and the European Court of Justice has established that the right to property protects intellectual property, (2) and that intellectual property and human rights remain valuable individual rights. (3) As a result of these decisions, it no longer seems possible to disregard the importance of intellectual property as a human right.

Similarly, even though a number of national constitutions do not recognize intellectual property rights, (4) several others do. Accordingly, if intellectual property is protected as a part of the right to property in these constitutions, the fact that some constitutions recognize collective rights of communities seems to support the assertion that, in addition to individual intellectual property rights, there may also be a peoples' right to communal intellectual property. (5) Within this context, this article supports the right of communities over their products and processes that derives from their creativity and knowledge which is better described as a peoples' right. (6) A peoples' right is a group right that belongs to the people who hold the right. (7) Starting from this proposition, this article seeks to address the challenges that the bearers of this peoples' right face with respect to claiming communal intellectual property rights, as well as the nature and content of this right and its relationship to human rights in general. In particular, Part II addresses the legal basis of communal intellectual property rights in international treaties and national laws. Part III attempts to dissect the difficult questions concerning the recognition and acceptance of a right to communal intellectual property, including: identifying the bearers, the specific content, and the limits that define the scope of this right.

1. THE RIGHT TO COMMUNAL INTELLECTUAL PROPERTY IN INTERNATIONAL INSTRUMENTS AND NATIONAL CONSTITUTIONS

   In this section, I explore the normative foundations of the right to communal intellectual property in international instruments and national constitutions. It is the recognition of this right in national constitutions that justifies the assertion that a right to communal intellectual property exists in addition to the recent jurisprudence interpreting regional human rights treaties, such as the American Convention of Human Rights. To illustrate this point, examples are drawn from the recognition of collective rights in the constitutions of certain Latin American countries, coupled with the decisions emanating from the American Convention of Human Rights. In addition, recent constitutional proposals from Kenya, Egypt, and Tunisia are explored with respect to the potential recognition of intellectual property rights in these constitutions, as well as the protection of group rights as it is found in the African Charter on Human and Peoples Rights. (8)

   1. The Right to Communal Intellectual Property in Latin America and the Right to Property in the American Convention of Human Rights

      The fact that communal intellectual property is implicated in the collective rights of indigenous people is based on the jurisprudence that has developed around Article 21 of the American Convention of Human Rights (American Convention), which recognizes communal property. In this regard, Article 21 (9) of the American Convention has become the fulcrum of the collective rights of indigenous and tribal peoples. In a number of decisions, including Saramaka v. Suriname, (10) Awas Tigni v. Nicaragua, (11) Yakya-Axa v. Paraguay, (12) Moiwana Village v. Suriname, (13) Sawhoyamaxa Indigenous Community v. Paraguay, (14) Xakmok Kasek Indigenous Community v, Paraguay, (15) and Sarayaku v. Ecuador, (16) the Inter-American Court of Human Rights has recognized the rights of tribal and indigenous peoples to communal property based principally on Article 21 of the American Convention. (17) These decisions were particularly relevant because the Court did not significantly differentiate between indigenous peoples and other tribal peoples in reaching its conclusions in the various cases. (18)

      In Yakya Axa, for example, the Inter-American Court recognized the "right to cultural Identity" even though such right is not expressly stated in the American Convention. In Xakmok Kasek, the Court linked the right to cultural identity to Article 21 of the American Convention. The nature of the right to property recognized by Article 21 was reconfigured in Saramaka to include the right of tribal and indigenous communities to "freely determine and enjoy their own social cultural and economic development.... " (19) In this case, the Court further held that tribal and indigenous communities "may continue living their traditional way of life, and that their distinct cultural identity, social structure, economic system, customs, beliefs and traditions are respected, guaranteed and protected by States." (20) In addition to recognizing the right to communal property, the Court in Sarayaku also recognized, for the first time, that indigenous people suffered harm as a group. This approach broke from the traditional focus of individual harm and embraced a group focus in facilitating protection for the community as group.

      As a result, even though these decisions concerned primarily land-related interests, there is little doubt that the reasoning of the Court in these decisions can be extended to create the basis for recognizing the right to communal intellectual property. (21) However, the decision leaves unanswered the question of whether the identified obligations, arising out of Article 21 of the American Convention, require the effective participation of tribal and indigenous people. In general, these decisions seem to indicate that the recognition of a right to communal intellectual property would nonetheless require other practical manifestations, such as the ability to...