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INTELLECTUAL PROPERTY IN INDIGENOUSSOCIETIES: CULTURE, CONTEXT, POLITICS

AND LAWBY JO RECHT *

Intellectual property is a Western legal construct. Until recently, it had littlerelevance within indigenous societies. This is no longer the case. Globalization,urgent concerns about the loss of languages and cultures, and the increasingsophistication in indigenous societies regarding Western ways of thinking are some of the factors that have led to intense activity on the part of indigenous and Westernindividuals, governments, NGOs, the World Intellectual Property Organization and UNESCO to develop frameworks of protection for indigenous knowledge. Usingstructures and reasoning drawn from Western intellectual property systems, as well as

from the indigenous societies themselves, the process is painstaking and difficult. Thisarticle examines the historical and contemporary contexts of intellectual property in

indigenous societies, while providing a brief summary of the development of intellectual property in the West.

I. INTRODUCTION ................. ....................... .................... ....................... .... 277 II. THE IMPERATIVE TO PROTECT INDIGENOUS KNOWLEDGE .................. 282 III. THE HISTORY OF INTELLECTUAL PROPERTY PROTECTION IN THE

WEST .................... ....................... .................... ....................... ........ 285 IV. THE INDIGENOUS CONTEXT OF KNOWLEDGE AND ITS PROTECTION .. 287 V. THE CONTRAST BETWEEN INDIGENOUS AND WESTERN

APPROACHES TO PROTECTING KNOWLEDGE ................................. 289 VI. STRATEGIES TO PROTECT INDIGENOUS KNOWLEDGE IN THE

GLOBAL CONTEXT .................. ....................... ................... .............. 292

VII. CONCLUSION .................... ...................... .................... ....................... . 297

I. INTRODUCTION

Fifteen years ago, it would have been surprising to hear someone usethe terms intellectual property and indigenous or traditionalknowledge in the same breath. The subjects were studied separately:intellectual property was an artifact of the Euro-American, or Western,legal system. It had a long pedigree, an able and well-established Bar, and acentral role in numerous political and legal battles concerning, among other

* Jo Recht is a Ph.D. candidate in Anthropology at the University of Pittsburgh. She has a J.D.from Columbia University, an M.A. in Anthropology from the University of Pittsburgh, and anA.B. from Princeton University. She has practiced both intellectual property and entertainmentlaw.

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278 THE DARTMOUTH LAW JOURNAL Vol. VI:3

things, property rights, First Amendment rights, monopoly interests, and anideology about the advancement of knowledge. Indigenous or traditionalknowledge, on the other hand, was something arcane and mysterious. It

was studied by anthropologists in the context of on-the-ground fieldwork inexotic locales and constituted the stuff of academic dissertations andtreatises. International or comparative intellectual property law focused onother countries that had embraced Western notions of intellectual propertyrules and systems. Missing from the picture were the smaller societies of the developing world, or indigenous societies living within post-colonialnations.

In recent years, that picture has been filled in. Intellectual property,indigenous knowledge, and the rights of indigenous peoples now share thesame canvas. When I first went to Fiji in 1995 to do anthropologicalresearch, I discovered that Fijian potters traditionally own their vesselshapes and surface designs. Why would such a system be embraced in anon-market economy in which personal property is minimal and economicreturn from craftsmanship is often hard to quantify? At the time, there didnot seem to be widespread knowledge or awareness of copyright or otherEuropean-based protection frameworks for knowledge. There was just asimple statement from the village of Nasilais master potter Wati Taraivinithat, after she gave her pot design to Nakabutas master potter DaianaTuqea, she had to request permission from Daiana to make that type of potagain.

When I returned to Fiji in 2004, the conceptual landscape had changeddramatically. In Fiji, throughout the Pacific, and in indigenouscommunities around the world, there had been a remarkable increase inawareness about Western-inspired knowledge protection systems. Peoplenow speak about copyright and the need to protect traditional knowledge.Along the Queens Highway, near Sigatoka, and in the village of Nakabuta

both on the southwestern coast of Fijis largest island there were postsmade from indigenous trees that had been carved to look like ancientartifacts. These traditional markers had all appeared since 1995. Asstated by a representative of the Pacific Islands Forum: Traditionalknowledge is close to the heart of Pacific Island peoples. It gives themhope. 1

Well-organized movements to protect indigenous knowledge haveexisted for decades among native North American peoples, the Maori of New Zealand, and Australian Aboriginal communities. In the past decade,

intellectual property protection has exploded as a theme among diverse andfar-flung indigenous groups. In 2007, for instance, the global Rastafariancommunity formed the Ethio-Africa Diaspora Union Millennium Council

1 Gail Olsson, personal communication (2004).

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Fall 2008 INTELLECTUAL PROPERTY IN INDIGENOUS SOCIETIES 279

(EADUMC). Intellectual property protection is one of the main objectivesof the Council, which has opened a dialogue with the World IntellectualProperty Organization (WIPO) in an effort to protect Rastafarian cultural

property.2

Issues concerning indigenous knowledge and rights have also entered

into mainstream legal discourse. While numerous anthropologists, as farback as Bronislaw Malinowski and Margaret Mead in the 1920s and1930s, had observed and documented the apparent importance andprotection of rights in intangible goods, the subject received little sustainedattention in anthropological studies until the 1990s. It received even lessattention from lawyers. It was not until the passage of the Trade RelatedAspects of Intellectual Property (TRIPS) Agreement into international lawin 1994 3 that the Western legal world began to take notice of theindigenous context, and the differing interpretations of property ingeneral and intellectual property in particular that have been embracedby indigenous societies for many generations. It was the TRIPS agreementthat linked intellectual property with international trade practices andpolicies. In the years leading up to the World Trade Organizations(WTOs) passage of TRIPS, and with increasing intensity and numbersince, international organizations such as the United Nations EducationalScientific and Cultural Organization (UNESCO) and the World IntellectualProperty Organization (WIPO) (both operating under the umbrella of theUnited Nations) have begun to explore the multifaceted complicationsraised by these issues. 4 The threat to cultural diversity and indigenous

2 Krista Henry, Rastas Seek Council on Rights , JAMAICA GLEANER, Sept. 16, 2007,available at www.jamaica-gleaner.com/gleaner/20070916/ent/ent1.html.

3 Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994,Marrakesh Agreement Establishing the World Trade Organization [hereinafter WTO agreement],Annex 1C, Results of the Uruguay Round 33 I.L.M. 81(1994) [hereinafter TRIPS Agreement].

4 It is something of an irony that it was the TRIPS Agreement that focused the gaze of theindustrialized world on the intangible heritage of the developing world. TRIPS was developed bythe "rich" nations to address the dual facts of globalization in economic markets and the meteoricrise in value of "information industries" with their associated incorporeal properties. Ascopyrighted and patented properties increased in economic importance, industrialized countriesand their corporate counterparts realized that they needed to come up with a remedy for thegeneral lack of recognition and enforcement of "intellectual property rights" in the developingworld. The remedy was the TRIPS Agreement, which was designed to protect the producers of intangible materials against encroachment or uncompensated exploitation in developing worldmarkets, because "[g]lobal markets require global regimes of control to protect IPR." Michael F.Brown, Heritage Trouble: Recent Work on the Protection of Intangible Cultural Property, 12

INT'L J. of CULTURAL PROP. 44 (2005). The practical result of TRIPS is hardship in thedeveloping world, both because developing countries are required to comply with extensive (andexpensive) enforcement regulations, and because these countries are net importers of intellectualproperty. Coenraad Visser, Making Intellectual Property Laws Work for Traditional Knowledge ,in POOR PEOPLES KNOWLEDGE: PROMOTING INTELLECTUAL PROPERTY INDEVELOPING COUNTRIES 207, 208 ( J. Michael Finger & Philip Schuler eds. 2004).

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knowledge posed by globalization through the loss of languages and localcultural knowledge has been recognized as a priority. 5

On October 17, 2003, the Convention for the Safeguarding of the

Intangible Cultural Heritage was adopted in Paris by the GeneralConference of UNESCO. 6 Pursuant to Article 34 of the Convention, itentered into force on April 20, 2006, three months after ratification by 30member states. 7 UNESCO is currently publishing The Intangible HeritageMessenger, a quarterly newsletter intended to keep intangible culturalheritage professionals abreast of developments relating to the Conventionand its goals. On a parallel track, WIPO convened the "IntergovernmentalCommittee on Intellectual Property and Genetic Resources, TraditionalKnowledge and Folklore (IGC) in 2000, which held its Thirteenth Sessionfrom October 13-17, 2008. The IGC is an international forum that includesrepresentatives of developed and undeveloped nations, NGOs, indigenouscommunities and multinational corporations. Its meetings have aired wideand varied policy positions while generating extensive volumes of materials. 8 The past several sessions have highlighted a stronger indigenousvoice, and sophisticated arguments blend regional and national initiativesfor protection with an internationally-sanctioned regime in order to protectindigenous knowledge. 9

Independently of the IGC, regional and national initiatives designed toprotect indigenous knowledge have multiplied. In 1993 the UnitedNations Year for the Worlds Indigenous Peoples the MataatuaDeclaration on the Cultural and Intellectual Property Rights of IndigenousPeoples was produced by indigenous representatives from Asia, thePacific and the Americas who met in the Bay of Plenty region of NewZealand. 10 The Mataatua Declaration is a short but powerful document that

5 A set of Model Provisions for National Laws on the Protection of Expressions of Folkloreagainst Illicit Exploitation and other Prejudicial Actions was promulgated as far back as 1982 bya joint committee of WIPO and UNESCO. Marilyn Strathern and Eric Hirsch, Preface , inTRANSACTIONS AND CREATIONS: PROPERTY DEBATES AND THE STIMULUS OFMELANESIA vii, xi (Strathern and Hirsch eds. 2004). The Model Provisions were used as thebasis of a draft treaty, but a panel of experts convened to critique it determined that it waspremature, and the treaty was abandoned.

6 Available at unesdoc.unesco.org/images/0013/001325/132540e.pdf at 2 (last visited Dec.28, 2008).

7 Intangible Heritage Messenger No. 2, April 2006, available at unesdoc.unesco.org/images/0014/001454/145415e.pdf (last visited Dec. 28, 2008). As of September 18, 2008, 103 countries had ratified the Convention. Intangible Heritage MessengerNo. 10, October 2008, available at unesdoc.unesco.org/images/0016/001631/163171e.pdf (last

visited Dec. 28, 2008).8 Documents from the most recent IGC meeting, as well as other information about thework of the Committee, available at www.wipo.int/tk/en/igc.

9 Id.10 Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples

(1993), available at

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articulates the imperative for indigenous peoples to define their owncultural and intellectual property and develop appropriate mechanisms andadministrative bodies to protect it. 11 Since that time, regional frameworks

for the protection of intellectual property have been developed in Africa,12

the Pacific, 13 and the Andean region, 14 while national laws addressingindigenous intellectual property now exist in Panama, 15 Peru 16 and thePhilippines. 17

To accompany these developments, there has been an explosion of legal and anthropological writing about the intersection of indigenousknowledge and Western intellectual property law. Rather than simplyadding another voice to the theoretical discussions about the desirabilityand feasibility of protecting indigenous knowledge, this article will firsttake a step back to examine the differing contexts of knowledge and itsprotection in Western and indigenous societies. It is easy to get caught upin the intricacies of the theoretical and technical questions surroundingprotection, and lose sight of the fundamental cognitive and policydifferences which delineate the widely-varied approaches of the West andindigenous societies in their categorizing, collecting, sharing, andprotecting of knowledge. As noted by Rosemary Coombe: As a lawyerand an anthropologist I think that the debates around intellectual propertyare neither sufficiently careful in their articulation of the law norethnographically sensitive to the contexts in which intellectual propertyassertions arise as rhetorical claims. 18 It is only after consideringindigenous knowledge within its own conceptual framework, withoutsuperimposing the values and assumptions of the West, that we candevelop an effective and beneficial approach to protecting that

www.wipo.int/export/sites/www/tk/en/folklore/creative_heritage/docs/mataatua.pdf (last visitedDec. 28, 2008).

11 Id.12 African Model Law for the Protection of the Rights of Local Communities, Farmers,

Breeders and Regulation of Access to Biological Resources, Organization of African Unity(1998), available at www.opbw.org/nat_imp/model_laws/oau-model-law.pdf (last visited Jan. 2,2009).

13 Model Law for the Protection of Traditional Knowledge and Expressions of Culture,Pacific Islands Forum Secretariat (2002).

14 Common Intellectual Property Regime, Andean Community Commission, Decision 486(2000), available at www.comunidadandina.org/INGLES/normative/D486e.htm (last visited Jan.2, 2009).

15 Panama Act No. 20, Special Intellectual Property Regime Governing the Collective Rightsof Indigenous Peoples for the Protection and Defense of their Cultural Identity and their

Traditional Knowledge, Gaceta Oficial No. 24,083 (2000).16 Peru Law No. 27811, Introducing a Protection Regime for the Collective Knowledge of Indigenous Peoples Derived from Biological Resources (2002).

17 Philippines Indigenous Peoples Rights Act, No. 8371 (1997)18 Rosemary Coombe, Comment to Michael Browns Can Culture be Copyrighted? 32

CURRENT ANTHROPOLOGY 207 (1998).

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knowledge. 19

II. THE IMPERATIVE TO PROTECT INDIGENOUS KNOWLEDGE

The Western intellectual property system is composed of requirementsand assumptions (such as originality, fixation, a designated and identifiableauthor, and a limited duration of protection 20 ) which make a conventionalintellectual property rights framework unworkable for the protection of indigenous knowledge. 21 Therefore, Western intellectual property rights(hereinafter IPR) cannot provide an umbrella of protection for indigenousknowledge. 22 International and indigenous actors, however, now recognizeas vital the initiatives to protect such knowledge. Protection is necessarynot only to preserve the economic value of traditional knowledge, but alsoto maintain the expressive forms that give each indigenous community adistinct identity, and shape its social, cosmological, ecological, and ritualworld views.

The problems with IPR, however, do not end with the frameworksfailure to protect indigenous subject matter. Western assumptions aboutownership and authorship, and the assignment of most indigenous

19 Aspects of the "conceptual divide" were discussed in a recent WIPO document: "[I]t hasbeen stated that the very conception of 'ownership' in the conventional IP system is incompatiblewith notions of responsibility and custodianship under customary laws and systems. Whilecopyright confers exclusive, private property rights in individuals, indigenous authors are subjectto dynamic complex rules, regulations and responsibilities, more akin to usage or managementrights, which are communal in nature." WIPO/GRTKF/IC/13/4(b), August 2008, Annex I at 11.

20 17 U.S.C. Sec. 102; Sec. 301-305.21 See, e.g., Robert K. Paterson and Dennis S. Karjala, Looking Beyond Intellectual Property

in Resolving Protection of the Intangible Cultural Heritage of Indigenous Peoples, 11CARDOZO J. OF INT'L. & COMP. L. 633, 638-645 (2003), for a discussion of the inability of copyright, patent and moral rights laws to adequately protect indigenous knowledge.

22 In the 1990's, two landmark cases attempted to allow for intellectual property rights inAboriginal art works, despite the apparent incongruities between the remedies sought and thestatutory IPR system. In Bulun Bulun v. R & T Textiles Pty Ltd ("Bulun Bulun"), 86 FCR 244(1998), the court recognized as a matter of law that the "communal rights" held in an indigenousartist's imagery belonged to his community, and were held in trust by the artist for hiscommunity's benefit. This recognition of a legitimate communal right to copyright built on aprevious court decision, Milpurrurru v. Indofurn Pty Ltd, 54 FCR 240 (1994), which similarlyfound that the harm caused by an infringement of an indigenous design in commercially-distributed carpets went beyond commercial disadvantage because the rights to the design inuredin a community and were bound up with issues of authorship, ownership and, ultimately, socialstructure within the community. Within the larger framework, Jane Anderson notes that "[t]heimportance of the Aboriginal art and copyright cases lies in the reality that Indigenous

aspirations, whilst modified and reworked, contribute to the broader intellectual propertyconversation." Jane Anderson, The Politics of Indigenous Knowledge: Australia's Proposed Communal Moral Rights Bill , 27 UNSW L. J. 589, 590 (2004). The two cases effectivelyreversed an earlier case, Yumbulul v. Reserve Bank of Australia, 21 I.P.R. 481(1991), which haddismissed a lawsuit brought by an Aboriginal artist whose sculpture was reproduced on a ten-dollar bank note.

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knowledge to the public domain, allow non-indigenous actors to createtheir own protectible, derivative subject matter from indigenous rawmaterials. IPR is double-edged, and both edges cut off indigenous

protections and rights. Thus, a Western pharmaceutical company mayappropriate indigenous knowledge about a medicinal plant that is deemedby Western intellectual property law to be in the public domain, and thencreate commercial products to which it has exclusive rights. The royaltiesgo to the Western company rather than to the indigenous keepers of theknowledge, and the exclusive rights that the company might apply forunder Western patent law will make the end products inaccessible to theindigenous population. 23

Similarly, when non-technological products are considered, such assongs, images, paintings, or other forms of traditional cultural expression,outside actors, whether individual or corporate, can take indigenousproducts deemed by Western law to be free to the public, and establishexclusive rights in the derivative works created from them. 24 This is not anaccident: the intellectual property system was expanded and developed inthe nineteenth century by the European imperial powers, who used it topreserve for themselves the resources of their colonies. 25 In thecontemporary context, one commentator has noted that WIPO and TRIPShave focused on teaching the poor how to protect the intellectual propertyof the West. 26 Conventional intellectual property law, therefore, providesneither a sword nor a shield to protect indigenous subject matter. 27

23 The Indian government has attempted to combat this problem by creating the TraditionalKnowledge Digital Library ("TKDL"). After being forced to prosecute expensive lawsuits toprevent the awarding of patents to individuals abroad for turmeric, basmati rice and neem, Indiadevised the TKDL to protect traditional Indian knowledge from being appropriated by outsidersand subsequently patented. "After years of watching Westerners plagiarize its traditionalknowledge from yoga poses to ayurvedic medicine India has decided to put an end togenerous free lunches people have been helping themselves to. The government is in the processof translating millions of ancient transcripts of traditional knowledge areas to create an exhaustivedatabase in English and other foreign languages, hoping that patent offices abroad would refer tothem before granting applicants the rights to use what is not theirs." Made in India: Government Plans Yoga Database , ECONOMIC TIMES (India) Dec. 12, 2005.

24 See, for example, Cynthia Callison, Appropriation of Aboriginal Oral Traditions, Material Culture in Flux: Law and Policy of Repatriation of Cultural Property , U.B.C. L. REV. 165, 176-77 (Special Issue 1995), which discusses a situation where a non-indigenous writer collectedtraditional stories in British Columbia and declared a copyright in them for herself.

25 Surendra Patel, Can the Intellectual Property Rights System Serve the Interests of Indigenous Knowledge? in VALUING LOCAL KNOWLEDGE: INDIGENOUS PEOPLE ANDINTELLECTUAL PROPERTY RIGHTS 305, 310 (Stephen Brush and Doreen Stabinsky, eds.

1996).26 Madhavi Sunder, The Invention of Traditional Knowledge, 70 L. AND CONTEMP.PROBS. 97, 100 (2007).

27 As characterized by Wend Wendland, head of the Traditional Creativity and CulturalExpressions Section, Traditional Knowledge Division of WIPO: "[T]he notion of 'protection' isused in at least two senses, one denoting 'positive' protection (aimed at gaining intellectual

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Protection of intellectual property in indigenous societies implicatesissues of human rights, cultural survival, and physical subsistence of thosesocieties. Rosemary Coombe argues that protecting traditional knowledge

has become a matter of profound moral and legal importance. Speakingspecifically about the indigenous knowledge referred to by WIPO astraditional knowledge (rather than traditional cultural expressions), 28 Coombe notes: Primarily. . .when we talk about protecting traditionalknowledge we are talking about protecting the livelihoods of the poor. 29 In 1993, the UN Subcommittee on the Prevention of Discrimination andProtection of Minorities and its Working Group on Indigenous Populationsproduced The Study on the Protection of the Cultural and IntellectualProperty of Indigenous Peoples, which placed protection of indigenousknowledge into the context of human rights. The document was released asthe landscape was changing, and both international and indigenous groupsbegan to look at the subject in a different and more urgent way. Assummarized by Richard Kurin, Director of the Smithsonian InstitutionCentre for Folklife and Cultural Heritage: By the mid-1990s,international awareness of and discourse about the consequences of globalization had increased dramatically. Many cultural observers aroundthe world believed that local, regional, even national traditions weredevalued or endangered or both. The onslaught of global mass cultureraised the question of whether valuable traditions, practices, and forms of knowledge rooted in diverse societies would survive the next generation. 30

The critical threshold question that faces proponents of protection,

property rights over traditional cultural expressions in order to commercialize them and/orprevent others from doing so) and the other denoting a form of 'defensive' protection (aimed atpreventing the gaining of intellectual property rights over traditional cultural expressions andderivations therefrom)." Wend Wendland, Intangible Heritage and Intellectual Property:Challenges and Future Prospects, 56 MUSEUM INT'L 97, 100 (2004). In the current intellectualproperty framework, both forms of protection are denied to indigenous communities, and they areboth of critical importance.

28 Indigenous knowledge falls into two general categories, according to WIPO: traditionalknowledge and traditional cultural expressions. The former category includes what might betermed scientific know-how, and includes medicine and other biological products, as well astechnology. Such knowledge would likely be susceptible of patent and trade secret protection inthe West. The latter category consists of songs, dances, art, poetry, rituals what was oncereferred to as "folklore" before that term was rejected as demeaning. Analogous productions inthe West would most likely be subject to copyright protection. Both traditional knowledge ("TK")and traditional cultural expressions ("TCE") have been recognized by indigenous societies as of paramount importance. Protection of TK creates the possibility of generating substantial incomethrough royalties and licenses assessed for the use of such knowledge by outsiders. TCE has

come to be recognized as crucial for protecting an indigenous culture against the encroachmentsand dilution brought by post-colonial globalization.

29 Rosemary Coombe, The Recognition of Indigenous Peoples and Community Traditional Knowledge in International Law , 14 ST. THOMAS L. REV. 275, 278 (2001).

30 Richard Kurin, Safeguarding Intangible Cultural Heritage in the 2003 UNESCOConvention: A Critical Appraisal , 56 MUSEUM INT'L 66, 68 (2004).

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however, is how that protection can be accomplished. The designation of indigenous knowledge as property and the impulse to protect it, forexample, implicitly import a Western frame of reference and beg the

question of whether a Western-style legal framework can serve the interestsof indigenous societies. 31 A creation of the Euro-American legal system,intellectual property is a paradigm that does not rest comfortably uponindigenous societies. The emphasis is on the individual, as defined by theEuropean Enlightenment, and entitlements to rewards for what are deemedto be acts of personal inspiration. There is an underlying notion of theromantic author which informs Western intellectual property law. Inaddition, the expression intellectual property rights, emphasizes themind and connotes abstraction, decontextualization, formalization, and theuse of written information. Through the concept of intellectual propertyrights we deploy widely accepted Western assumptions. 32

In order to allow traditional knowledge to help protect indigenoussocieties and their cultures from disappearing in a globalized world, it iscritical to tailor any system of protection to the particular needs andcircumstances of those indigenous groups, as well as to their fundamentalassumptions about the world and the place of knowledge within it. Howpeople view the world influences their beliefs and philosophies as well asthe nature of their knowledge and their way of knowing. 33 It is no gift toset the rules and then force indigenous societies to bend and mutate so as tofit within those externally-imposed constraints. New rules should bedevised new frameworks for and of protectionwhich allow for theprotection of indigenous knowledge without altering or destroying itspurposes, its nature and its social meanings. An understanding of thosemeanings both within their own context and in contrast to fundamentalWestern social assumptions is a prerequisite to developing effective newframeworks of protection.

III. THE HISTORY OF INTELLECTUAL PROPERTY PROTECTION IN THE WEST

The legal regime governing copyright protection in the Westdeveloped from the English system, which originated in the sixteenthcentury. 34 While the objectives and values of this system have changedradically over the centuries, the current role of copyright protection is to

31 Patel, supra. 32

Stephen Gudeman, Sketches, Qualms, and Other Thoughts on Intellectual Property Rights, in VALUING LOCAL KNOWLEDGE: INDIGENOUS PEOPLE AND INTELLECTUALPROPERTY RIGHTS 102, 103, supra .

33 Unaisi Nabobo-Baba, KNOWING AND LEARNING: AN INDIGENOUS FIJIANAPPROACH (2006), at 37.

34 Lyman Ray Patterson, COPYRIGHT IN HISTORICAL PERSPECTIVE (1968), at 3-4.

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guarantee economic rewards to the creators of intellectual property. In theUnited States, it has been argued since colonial times that providing amonopoly to the authors of intellectual property enhances the public good

by encouraging creativity and innovation. This encouragement stems fromthe promise of financial gain, arguably the greatest incentive in Westernculture. On a more theoretical level, contemporary notions about grantingrights in intellectual property stem from a basic understanding thatindividuals have entitlements to certain things. With respect to property,those entitlements result either from a notion of fairness or from theprinciple that labor is justly rewarded by ownership. 35

While the current rationales and objectives of copyright protection areoften spoken of by Western legal experts as being intrinsic to a system of protecting knowledge or any form of intangible property, the copyrightsystem actually developed to advance different goals. In 1557, in order tocurtail the spread of Protestant writings, the Catholic Queen Mary Tudorgranted the Stationers Company a charter which allowed its members aneffective monopoly on printing 36 and gave the Queen control of the press.This restrictive system survived in some form until 1695, having beenformally reinstated after the Civil War by Charles II as The Licensing Actof 1662, which was officially titled: An Act for preventing the frequentAbuses in printing seditious treasonable and unlicensed Bookes andPamphlets and for regulating of Printing and Printing Presses. 37 Thisstatute made it illegal to publish anything without securing a license fromthe appropriate authority. The act provided for censorship, limited thenumber of master printers and printing presses, restricted the importation of books, and allowed the Stationers Company almost total control of theEnglish book trade. It was, in other words, not just a licensing statute but acomprehensive act for publishing control. . . 38 The act was not renewedupon its expiration in 1695, having fallen victim to a strenuous campaignwaged by authors such as John Milton and John Locke.

The idea of a system to regulate published works continued to havesubstantial support, however, and the first Parliamentary copyright act asdistinct from a licensing or a censorship actwas passed in 1710. 39 CalledThe Statute of Anne, it was a trade regulation statute enacted to bringorder to the book trade, which had fallen into chaos after the expiration of

35 Carol Rose, PROPERTY AND PERSUASIAN (1994), at 55-58.36

Catherine Seville, LITERARY COPYRIGHT REFORM IN EARLY VICTORIANENGLAND (1999), at 3.

37 Mark Rose, AUTHORS AND OWNERS: THE INVENTION OF COPYRIGHT (1993), at31.

38 Id.39 Id. at 36; Patterson, supra, at 3 n. 3, 12.

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the licensing act. 40 Despite its characterization as an Act for theEncouragement of learned Men to compose and write useful Books itfunctioned as a charter for publishers rights. 41 Throughout the next

century, the notion of individual economic rights grew in importance,accompanied by a gradually increasing emphasis on the significance of authors. As a result, the premises of copyright began to change. By the timethe English Copyright Act of 1842 was passed, copyright was an economicentitlement of authors. It is this understanding which informs contemporaryWestern copyright, as well as other intellectual property, systems. 42

IV. THE INDIGENOUS CONTEXT OF KNOWLEDGE AND ITS PROTECTION

Although not always recognized or acknowledged by Westerncommentators, indigenous societies have a rich history of protecting theirintangible heritage. While intellectual property is subject to detailedstatutory schemes in Western countries, the property comprised of knowledge is a more ambiguous, multivalent subject in indigenoussocieties. Each society has a unique pattern of protection for its indigenousknowledge; there is no unitary indigenous system. Different societiesinclude different types of knowledge in their categories, and choose toprotect, reveal and transmit that knowledge in culturally specific ways. Atits core, knowledge is a consummately local phenomenon. There are,however, certain commonalities in the premises of indigenous systems of protection which link them analytically while distinguishing them fromWestern intellectual property protection.

To a far greater extent than in Western societies, the role of knowledge is integrated into and representative of an indigenous societys

40 David Saunders, Dropping the Subject: An Argument for a Positive History of Authorshipand the Law of Copyright , in OF AUTHORS AND ORIGINS 93, 94 (Brad Sherman and AlainStrowel, eds. 1994).

41 Id.42 As summarized by Susan Scafidi: "In the United States, the primary justification for the

legal creation and protection of intellectual property is utilitarian or economic incentive-based. Inthis regard, the Constitution empowers Congress '[t]o promote the Progress of Science and usefulArts, by securing for limited Times to Authors and Inventors the exclusive Right to theirrespective Writings and Discoveries.'" Scafidi, WHO OWNS CULTURE? APPROPRIATIONAND AUTHENTICITY IN AMERICAN LAW 17 (2005), citing the Copyright Clause of theUnited States Constitution, Article I, section 8, clause 3). Others, however, take a more nuancedview: "Although stimulating innovation and protecting investment has become the dominant

ideological rationale for IPR's, there are other values embedded within intellectual property ("IP")regimes. They permit us to protect traditional production systems, prevent commercialmisrepresentation, keep valuable secrets, recognize non-pecuniary interests in works, respectpublic sensibilities, and enable the valuation of local distinctions." Rosemary Coombe, StevenSchnoor and Mohsen Ahmed, Bearing Cultural Distinction: Informational Capitalism and New

Expectations for Intellectual Property , 40 U.C. DAVIS L. REV. 891, 892 (2007).

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religious and political weltanschauung . Matters of cosmic and earthlyidentity are intertwined with the knowledge generated, transmitted, andperpetuated in indigenous communities. A societys knowledge, and its

system for generating and maintaining that knowledge are cornerstones of its culture. Legal systems whether codified or customary dealing withthe use and protection of knowledge thus involve fundamental humanrights. . . 43

Recognition of value in incorporeal products in indigenous societieshas long been noted by anthropologists. While most of the writing on thesubject has appeared in the past twenty years, the phenomenon wasrecognized by early ethnographers. Malinowsky wrote of the exclusiveownership of magic and rituals in the Trobriand Islands; 44 Margaret Meadspoke of the commerce of the Mountain Arapesh of Papua New Guinea insongs, magic and divining; 45 Lowie 46 and Hoebel 47 identified ritual andother incorporeal items of value in North America; and Elkin describedthem in Aboriginal Australia. 48

From the Tannese in the South Pacifics island nation of Vanuatu tothe Tiv in Africa, and from the Kwakiutl on the Northwest Coast of NorthAmerica to the Australian Aborigines, property rights in songs, dances,ritual complexes, paintings, designs, magic, and names occupy animportant category of cultural and economic goods. The roles served bythis protection, and the patterns and rules of protection, vary from place toplace. Underlying them all, however, is the recognition that such goodsconstitute protected property. In most cases, that property may betransferred by descent and, in some cases, it may also be bought, sold, orthe subject of exchange.

In his classic study of primitive law, A.E. Hoebel describes the earlydebate about whether notions of property could be applied to items of intangible value in indigenous societies. 49 Hoebel notes two arguments thatchallenge the notion of incorporeal property in indigenous societies: (1)ideas of incorporeal property are limited to modern law systems becauseprimitive people lack the mental sophistication necessary for so abstracta concept; and (2) incorporeal rights cannot be classified as property

43 Mita Manek and Robert Lettington, Indigenous Knowledge Rights: Recognizing Alternative Worldviews , 24 CULTURAL SURVIVAL Q. 8 (2001).

44 Bronislaw Malinowski, ARGONAUTS OF THE WESTERN PACIFIC (1922); CORALGARDENS AND THEIR MAGIC Vol. 2 (1935).

45 Margaret Mead, SEX AND TEMPERAMENT IN THREE PRIMITIVE SOCIETIES

(1935).46 Robert Lowie, Incorporeal Property in Primitive Societies, 37 YALE L. J. 551 (1928);PRIMITIVE SOCIETY 235-43 (1920).

47 A. E. Hoebel, THE LAW OF PRIMITIVE MAN 60-63 (1954).48 A. P. Elkin, Yabuduruwa at Roper River Mission, 1965 , 42 OCEANIA 110 (1971).49 Hoebel, supra .

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because in indigenous societies they are merely extensions of the person 50 .Hoebel rejects both of these lines of reasoning to conclude that there are asufficiently large aggregate of rights denoted by ownership in indigenous

societies to make it unambiguously clear that incorporeal property exists.51

Moreover, the subject matter of incorporeal property the indigenous

knowledge is the fabric from which cultural identity is woven. Artisticworks, traditional designs and oral folklore are not simply viewed ascommodities owned by individuals, to be protected for the economicbenefits they may yield, but as integral parts of the heritage and identity of the community to which they belong. 52 Indigenous knowledge does notonly serve the interests of the material survival of a people, but also of theircultural survival. Cultural identity is wrapped in the specifics of a societyslanguage, stories, rituals, music, medicine and agriculture. Disintegration ordisappearance of indigenous knowledge heralds the disintegration ordisappearance of the society to which it belongs. It is this realization thatunderlies the urgency with which individuals, societies and internationalorganizations are now approaching the conundrum of how to effectivelyprotect indigenous knowledge in the international arena.

V. THE CONTRAST BETWEEN INDIGENOUS AND WESTERN APPROACHES TOPROTECTING KNOWLEDGE

While intellectual property has been set apart as a discrete categoryof ownership and rights in Western systems, this is not the case inindigenous societies. Discussing the Tannese of Vanuatu, Lindstrom states:Island tropes. . . objectify what is perceived and therefore known.Knowledge is a thing. . .Knowledge is a possessed commodity. 53 Knowledge property is not a discrete and separable category within mostindigenous contexts. Valuable incorporeal items may be classed withmaterial goods: their significance lies in what they represent, rather thanthe form they inhabit. For example, the Tiv of Western Africa place theirknowledge property of magic and ritual prerogatives in the prestigegoods sphere, which also contains iron rods, cattle, cloth and medicine. 54

Annette Weiner divides cultural assets into categories of alienable

50 Hoebel, supra , at 60-61.51 Id. at 63.52 Kamal Puri, Preservation and Conservation of Expressions of Folklore , 32 UNESCO

COPYRIGHT BULL. (1998) at 6.53 Lamont Lindstrom, KNOWLEDGE AND POWER IN A SOUTH PACIFIC SOCIETY(1990), at 44.

54 Paul Bohannan, The Impact of Money on an African Subsistence Economy , 19 J. ECON.HIST. 491, 493 (1959); Charles Piot, Of Persons and Things: Some Reflections on AfricanSpheres of Exchange , 26 MAN 405, 406 (1991).

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and inalienable possessions. 55 She theorizes that certain possessions,which may be land rights, material objects, or mythic knowledge, 56 helpconstitute authority by imbuing the owners of these properties with an

authority that hearkens back to ancestral sacred or religious domains:Inalienable possessions are embedded with culturally authenticatingideologies associated with mana, ancestors and gods that give shape anddrive to political processes. . .These encompassing ideologies are activeforces that both validate the absolute value of inalienable possessions andverify the difference among individuals who own these coveted objects. 57 While Weiner denominates these items inalienable, she does not intendthe term to be absolute: Because inalienable possessions succeed theirowners through time, transferability is essential to their preservation. 58

Carol Rose offers another theoretical framework. In discussing theobjectives of any society in establishing and enforcing a property rightsregime, Rose distinguishes between systems that base property rights on atheory of preference satisfaction and those that see property as stemmingfrom propriety. 59 This [second] version of property did not envisionproperty as a set of tradeable and ultimately interchangeable goods; instead,different kinds of property were associated with different kinds of roles. 60 Intellectual property in contemporary Western societies falls into the firstcategory, with notions of fairness and reward for labor constituting thesocial preferences embraced by these societies. By contrast, knowledgeprotection in indigenous societies often fits into the second. Rights inknowledge items are deemed to stem from inherent entitlements of certainpersons or groups. Rose argues that viewing property entitlements asappropriate to specified owners treats individuals as trustees forsucceeding generations of their families and plays an important part inkeeping good order; [where] the normal understanding of order [is] indeedhierarchy in the family, in the immediate community, in the largersociety. . ., in the natural worlds, and in the relation between the natural andthe spiritual worlds. 61 In keeping with this, indigenous knowledge is oftenheld communally, and rules about control, access, and use form an integralpart of the fabric of social hierarchies and relationships.

The divergence between Western intellectual property and knowledgeprotected in indigenous societies continues with the requirement of originality in Western systems of copyright protection. Indigenous systems

55 Annette Weiner, INALIENABLE POSSESSIONS (1992), at 8-11.56

Id. at 11.57 Id. at 150.58 Id. at 37.59 C. Rose, supra, at 49-61.60 Id. at 59.61 Id.

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of knowledge protection may be said to emphasize authority rather thanauthorship. 62 With some limited exceptions, the intangible propertyprotected in indigenous societies which includes ritual complexes, songs,

dances, magic spells, designs, and nameshas value expressly because it isdeemed to be of ancient or supernatural origin, handed down from thegods, animal spirits, or a primary ancestor. 63 Spells and names, forexample, are often considered to be objective properties of the world ratherthan human creations. 64 Any notion of individual creation or inventionwould destroy the value of the property by negating its cosmological andontological significance. Knowledge is revealed, not individually created.It is passed down, not made up. 65 Authorship, then, a hallmark of WesternIPR, is not a central concept in indigenous societies.

This principle is demonstrated even in some instances in which itappears that indigenous societies protect innovation or independentcreation of intangible goods. For example, the composition by a Siouxwarrior of new songs which become his protectible property results,according to the Sioux, from inspiration granted to the warrior by aguardian animal spirit which appears during a vision quest, 66 and songsdreamt by Aboriginal Australian men are believed to be revealed as theresult of visionary skills bequeathed from father to son. 67 Similarly, thecreative power of the master carvers who carve the kula boats on Kitawaisland is believed to come from an enveloping external power that spreadsthe creative force of the mystical images through the body of the carver. 68 The phenomenon is explained by Lamont Lindstrom: People perceiveknowing how to know as a process not so much of individual mentalcreativity or meditation but of mediation. Men who suggest explanations orinterpretations say they received this knowledge from powerful sources. . .[P]eople likewise presume that those who invent new songs haveexperienced ancestral inspiration rather than some flash of mentalcreativity. 69 There is not only a dichotomy, but also a contradiction,between the perceived origin of knowledge in Western and indigenous

62 Lindstrom, supra (1990), at 44.63 See, eg., Simon Harrison, STEALING PEOPLES NAMES (1990), at 56; Malinowski,

ARGONAUTS OF THE WESTERN PACIFIC (1922), at 398; Helen Codere, FIGHTING WITHPROPERTY (1950), at 118; Howard Morphy, Myth, Totemism and the Creation of Clans , 60OCEANIA 312 (1990).

64 Harrison, Magical and Material Polities in Melanesia , 24 MAN 1, 15 (1989).65 Lindstrom, supra (1990), at 43.66

Hoebel, supra, at 61-62.67 W. E. H. Stanner, ON ABORIGINAL RELIGION (1966), at 35.68 Giancarlo Scoditti, Aesthetics: The Significance of Apprenticeship on Kitawa , 17 MAN 74,

79 (1982).69 Lindstrom, Doctor, Lawyer, Wise Man, Priest: Big Men and Knowledge in Melanesia, 19

MAN 291, 299-300 (1984).

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societies. The value of indigenous property devolves fromacknowledgement that it has survived through generations and refers backto an ancestral creation, while intellectual property in the West is granted

protection only if it is deemed to have originated with the contemporaryauthor. Further, while Western intellectual property law provides a limitedterm of protection for the original creations of authors, rights in theancestral material protected in indigenous societies are of unlimitedduration.

With respect to fixation of a work, which is necessary for a work tobe protectible in the West, the divergence in indigenous societies is equallyclear. In the first place, most of these societies were non-literate at the timetheir systems of protection developed. Not only do non-literate societieshave no rules requiring that knowledge be fixed in order to be worthy of protection, it appears that one of the rationales in indigenous societies forgranting proprietary rights in knowledge stems from a perceived need tolimit access to these goods to preserve the integrity of critical ritual or othersacred and ancestral knowledge. Discursive limits on the number of people qualified to talk about something legitimately work to reduce thenumber of competing versions in the field, and to retard transformationswithin. . . local knowledge. 70

Knowledge protection has played numerous roles in indigenoussocieties, including preserving social status differentials (becauseownership of knowledge property often correlates with prestige); 71 creatingcommercial trading networks; 72 delineating social and cultural boundaries;and preserving religious and ritual frameworks. 73 In other words, rights inindigenous knowledge may serve all or some of a medley of social,economic, political or religious objectives. The indigenous legalframeworks built around traditional knowledge have been "constructive of social life, not just reflective of it." 74

VI. STRATEGIES TO PROTECT INDIGENOUS KNOWLEDGE IN THE GLOBALCONTEXT

In order to provide effective and meaningful protection for indigenous

70 Lindstrom, supra (1990), at 80.71 See, eg., Lindstrom, supra (1984, 1990); Harrison, Anthropological Perspectives on the

Management of Knowledge , 11 ANTHROPOLOGY TODAY 10 (1995).72

E. Kolig, THE SILENT REVOLUTION: THE EFFECTS OF MODERNIZATION ONAUSTRALIAN ABORIGINAL RELIGION (1981).

73 Harrison, Ritual as Intellectual Property , 27 MAN 225 (1992).74 Clifford Geertz, Local Knowledge: Fact and Law in Comparative Perspective, in LOCAL

KNOWLEDGE: FURTHER ESSAYS IN INTERPRETIVE ANTHROPOLOGY 167, 218(1983).

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knowledge, the legal frameworks developed must make sense within bothlocal and international contexts. Protection must be tailored to the specificcultural values and needs of the indigenous knowledge in question. At the

same time, the definitions must remain coherent, applicable, andenforceable in the global arena. Local forms of customary protection thatare useful to individual actors or groups to regulate ownership and use of indigenous knowledge within a society will be powerless when extendedinto an intercultural or international context. Therefore, the definitions andrules provided by particular indigenous societies with respect to theirtraditional knowledge must be incorporated into legal frameworks that areembedded within a larger international context. They must look and feellike a Western legal system, with familiar rules and modes of enforcement,while they are protecting subject matter that has novel sets of meanings andrules.

This approach, however, is far neater on paper than in practice. Asnoted above, there are cognitive and conceptual differences between whatconstitutes knowledge, who may own or use it, and how it is transmitted inindigenous and Western societies. Can wholesale application of Westernrules to this disparate subject matter really work? For instance, if ownership and authorship have no meaning, or have different meanings, inindigenous societies, how will requirements that an author or owner claimand prosecute intellectual property rights alter social and legalrelationships? Western intellectual property law incorporate[s] aconception of the agents of creation, especially of authors and inventors,that reflects a post-Enlightenment, individualistic worldview, 75 and that isdramatically at odds with most indigenous conceptions of the world.

A major concern when considering protection of indigenousknowledge within a Western-style IPR framework is the fear that, in orderto fit within that framework, indigenous knowledge will have to be alteredor frozen. Culture is organic and dynamic, and cultural knowledge evolvesand develops through time and space. Defining and delineating it so that itfits into legally-defined categories of protection could end up damagingboth the knowledge and its cultural context, and effectively negating thebenefits of the protection. Protected for whom? Protected as what? In orderto fit into the conceptual framework of Western intellectual property law,will indigenous knowledge be stripped of its dynamism, its organic, holisticnature and become commodified, reified, and subsequentlycommercialized? 76 By dividing ideas and expressions, oral traditions and

written forms, intangible works and cultural objects, the law rips asunderwhat many First Nations people view as integrally related freezing into

75 Scafidi, supra, at 19.76 See, eg., Paterson and Karjala, supra .

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categories what Native peoples find flowing in relationships. 77 Is an IPRmodel appropriate when attempting to devise protection for the traditionalknowledge of indigenous cultures? 78 If not, what are the alternatives? 79

The best hope to maintain and protect indigenous knowledge appearsto reside in sui generis laws, which effect a constructive blending of customary and Western categories. In other words, they adopt Western-style IPR forms into which they place indigenously-informed content. 80 For instance, the Secretariat of the Pacific Community (SPC) LegalProtection Project was set up to promote sui generis legislation in thePacific Island nations for the protection of traditional knowledge andexpressions of culture. 81 In 1999, the Pacific Islands Forum Secretariat wasmandated by the Trade Ministers meeting to work towards thedevelopment of national, regional and multilateral/international rules andlegislation to protect the intellectual property rights of indigenouspeoples. 82

The following year, the Forum Secretariat and the SPC were joined byUNESCO in the joint enterprise of developing a regional framework for theprotection of traditional knowledge and expressions of culture. The PacificModel Law was produced, and it was endorsed by the Regional Secretariatof the Pacific Community in 2002. 83 Developed, in the words of the Pacific

77 Rosemary Coombe, The Properties of Culture and the Possession of Identity: Postcolonial Struggle and the Legal Imagination , in BORROWED POWER 74, 92-93 (Bruce Ziff and PratimaRao eds. 1997).

78 Jane Anderson, writing about Aboriginal Australians' efforts to make indigenousknowledge a category within conventional intellectual property law, and thereby take advantageof the protections therein offered, worries that "once instituted as a legal category, law has (quiteinevitably) sought to define and manage the boundaries of Indigenous knowledge." Intellectual Property in Australia , 12 INT'L. J. OF CULTURAL PROP. 349 (2005).

79 For a fascinating analysis of this question from an anthropological perspective, see theedited volume TRANSACTIONS AND CREATIONS: PROPERTY DEBATES AND THESTIMULUS OF MELANESIA, supra , which is the end-product of a three-year research projectat Cambridge University entitled "Property, Transactions and Creations." The Introduction byMarilyn Strathern and Eric Hirsch, and Chapter 2, Legal Options for the Regulation of

Intellectual and Cultural Property in Papua New Guinea , by Lawrence Kalinoe are particularlyrelevant to the issues discussed in this article.

80 While this will not remove the danger that indigenous knowledge will be artificially frozenor changed in order to constitute a measurable, definable category of subject matter to protect, thelegislation could tailor the definitions in the sui generis framework to the particular indigenousknowledge in question. Focusing on local knowledge in an ethnographically-sensitive frameworkmight introduce flexibility that would at least minimize the alteration of the protected indigenousknowledge.

81 Pacific Islands Forum, Regional Implementation Action Plan (RIAP): Pacific Islands

Protection of Traditional Knowledge and Expressions of Culture Development Programme (2002), at 3.

82 Id. at 6.83 Regional sui generis frameworks have also been developed in Africa (African Model Law,

supra) , and in the Andean region (Common Intellectual Property Regime, Andean CommunityCommission, supra ). These model laws address a narrower slice of indigenous knowledge than

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Islands Forum Secretariat, to prevent the increasing exploitation of knowledge (traditional medicinal and agricultural practices) and folkloreexpressions (dances, music, songs, designs, handicraft and artwork) that

belong to the Pacific communities and for which no redress could be madedue to the absence of legislation, 84 the Pacific Model Law looks like aWestern statute in its form and structure. 85 In contrast to Western IP rules,however, owners of rights in the knowledge may be individuals, extendedclans, or communities; 86 the rights persist in perpetuity, 87 and they areinalienable. 88 Traditional knowledge and expressions of culture areprotected whether they are tangible or intangible, reflecting the indigenousrather than the Western system of categorization. 89 The Model Law is aprototype, and Pacific Island nations must promulgate national statutes tocreate an enforceable set of rights in indigenous knowledge. It is intendedto complement and not undermine conventional intellectual propertyrights. 90

Individual nations have also developed sui generis frameworks of protection for indigenous knowledge. Panama promulgated the SpecialIntellectual Property Regime Governing the Collective Rights of Indigenous Peoples for the Protection and Defence of their CulturalIdentity and their Traditional Knowledge, which was passed in 2000 andrevised in 2001. 91 The Panamanian law was developed expressly to protect

the Pacific Model Law, targeting biological, technological and genetic resources belonging toindigenous communities.

84 Pacific Islands Forum, supra , at 4.85 In the Explanatory Memorandum accompanying the Model Law, it is explained that "[t]he

development of the model law has been guided by responding to a range of questions posed in thedocument 'Elements of a sui generis system for the protection of traditional knowledge' createdby the World Intellectual Property Organization for consideration by the IntergovernmentalCommittee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.These questions include: what is the policy objective of the protection?; what is the subjectmatter?; how are the rights lost or how do they expire etc. These questions are relevant to thedevelopment of any effective legal system for the protection of property rights, and not just to theparticular approach taken in this model law." Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture (2002), available at www.wipo.int/tk/en/laws/pdf/spc_framework.pdf, on first unnumbered page of ExplanatoryMemorandum (last visited Jan. 2, 2009).

86 Model Law for the Protection of Traditional Knowledge and Expressions of Culture,Pacific Islands Forum Secretariat (2002), Part 1, sec. 4

87 Id. Part 2, sec. 9.88 Id. Part 2, sec. 10.89 Id. Part 1, sec. 4; Part 2, Sec. 8.90 Explanatory Memorandum, supra , on first unnumbered page.91

Panama Act No. 20, Special Intellectual Property Regime Governing the Collective Rightsof Indigenous Peoples for the Protection and Defence of their Cultural Identity and theirTraditional Knowledge, supra. The legislation is complex and comprehensive, and provides botha sword and a shield, addressing affirmative and defensive aspects of protection. In other words,it provides a framework within which the collective ownership rights of indigenous peoples areprotected, while simultaneously preventing outsiders from obtaining exclusive rights of any kind

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the collective rights of Panamas indigenous people in their intellectualproperty, such as the reverse-appliqud mola cloths of the Kuna people. 92 The statute creates a Department of Collective Rights and Forms of

Folkloric Expression (Departamento de Derechos Colectivos y ExpresionesFolcloricas) to grant and administer collective ownership of copyrights of unlimited duration for indigenous groups and to prevent registration by anyoutside party. 93 Peru has also passed legislation to protect collectiveintellectual property rights of its indigenous peoples, although the Peruvianlegislation focuses exclusively on protecting the collective knowledge of indigenous peoples derived from biological resources. 94 The PhilippineIndigenous Peoples Rights Act of October 1997 deals primarily with rightsto ancestral lands. Chapter VI of the legislation, however, is titledCultural Integrity, and Chapter VI Section 29 states: The state shallrespect, recognize and protect the right of the ICCs/IPs [the indigenouscommunities] to preserve and protect their culture, traditions andinstitutions. It shall consider these rights in the formulation of nationalplans and policies. 95

In addition to IPR-like statutes to protect indigenous knowledge,alternative and supplemental initiatives which provide a more specializedslice of protection have been launched by both governmental and non-governmental parties. A particularly promising one is the development of laws of geographic indication, or GI. These laws have a long history inWestern intellectual property circles 96 and rely on traditional IPR principles(analogous to trademark or certification laws) to link products to theirplaces of origin. India enacted the Geographical Indication Act in 2007 toprotect traditional knowledge associated with Indian handicrafts. 97 In asimilar vein, the United States Indian Arts and Crafts Act of 1990 makes ita serious offense to falsely suggest that copycat goods offered or displayedfor sale are made by native peoples. 98

Protection frameworks using registered trademarks as marks of authenticity to distinguish indigenous crafts from imposters in commercial

over indigenous intellectual products. Chapter I, Articles 1 and 2. 92 Aresio Valiente Lopez, Panamas Indigenous Intellectual Property Law (2002), available

at www.dd-rd.ca/site/publications/index.pp?id=1346&subsection=catalogue (last visited Dec. 28,2008). Panama's law focuses on artistic productions related to cultural identity, and does notcover biological resources.

93 Panama Act No. 20, supra , Chapter III, Art. 7.94 Peru Law No. 27811, Introducing a Protection Regime for the Collective Knowledge of

Indigenous Peoples Derived from Biological Resources, supra .95 Philippine Republic Act No. 8371, Indigenous Peoples Rights Act (1997).96 Coombe, Schnoor, and Ahmed, supra , at 899.97 Peter Ollier, MANAGING INTELLECTUAL PROPERTY, Issue 171 (Jul/Aug 2007).98 Indian Arts and Crafts Act of 1990, PL 101-644, as amended in the Indian Arts and Crafts

Enforcement Act of 2000.

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markets have been developed in Canada 99 and New Zealand. 100 Nationalregistries of crafts that will provide certification to indigenous products arebeing developed in Colombia, Bolivia and Venezuela 101 , and Peru has

created the Central Interregional de Artesanos del Peru (CIAP), a union-like organization of artisans which works to prevent counterfeitingthrough example, and pools together artisans who have the same values andwork ethic. 102 While the scope of protection of these provisions isnarrower than the more comprehensive national and regional IPRframeworks, they are less cumbersome to enact and to administer, and, atthe very least, might help to recast perceptions of indigenous products aseligible for intellectual property-like protections, while protecting thecommercial interests of the indigenous artists.

VII. CONCLUSION

Intellectual property has come to the village. In the contemporaryinternational environment, where information and knowledge are amongthe most valuable of commodities, and where globalization threatens todestroy the unique cultural repertoires of non-Western societies, it isimperative to devise a way to protect the traditional knowledge of indigenous societies. Despite profound differences in the way knowledgeis categorized and protected, indigenous societies and internationalorganizations are borrowing ideas and forms from Western law to fashionprotection for indigenous cultural knowledge.

There are significant pitfalls, however, to the application of Westernconcepts and rules to indigenous settings. One must be careful that thecure is not more dangerous than the disease: It is crucial to understand thedivergences between Western and indigenous categorizations of knowledgeand property, and to develop legal protections for traditional knowledgethat take into account the unique perspectives and conceptual foundationsof indigenous societies. Sui generis statutes, which adopt provisions fromWestern intellectual property systems while being designed to fit local

99 The "igloo" mark, developed and registered by Canada's Department of Indian andNorthern Affairs in 1958 and enforced by the Government, authenticates Inuit art works. JulieHollowell, Intellectual Property Protection in the Market for Alaska Native Arts and Crafts , inINDIGENOUS INTELLECTUAL PROPERTY RIGHTS: LEGAL OBSTACLES ANDINNOVATIVE SOLUTIONS 55, 79 (Mary Riley, ed. 2004).

100 The "toi iho Maori made" mark is a registered trademark which was developed by Maori

artists in 2002 to designate the products of the indigenous people of New Zealand. A descriptionof the use of the mark is available at www.toiiho.com .

101 Betsy Fowler, Preventing Counterfeit Craft Designs , in POOR PEOPLE'S KNOWLEDGE:PROMOTING INTELLECTUAL PROPERTY IN DEVELOPING COUNTRIES 113, 125,supra .

102 Id.

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cultural circumstances, offer the best hope for effective protection of rightsin indigenous knowledge. There will be no one size fits all model forprotection. Numerous and complementary approaches are necessary.

Sustained interdigitation of Western and indigenous ways of thinking, aswell as careful molding of legal frameworks to fit local conditions, isnecessary to preserve the integrity of traditional knowledge while offeringprotection to its rights-holders.

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