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INTELLECTUAL PROPERTY IN INDIGENOUS

SOCIETIES: CULTURE, CONTEXT, POLITICS
AND LAW
BY JO RECHT*

“Intellectual property” is a Western legal construct. Until recently, it had little

relevance within indigenous societies. This is no longer the case. Globalization,
urgent concerns about the loss of languages and cultures, and the increasing
sophistication 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 Western
individuals, governments, NGOs, the World Intellectual Property Organization and
UNESCO to develop frameworks of protection for indigenous knowledge. Using
structures and reasoning drawn from Western intellectual property systems, as well as
from the indigenous societies themselves, the process is painstaking and difficult. This
article 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 use
the terms “intellectual property” and ‘“indigenous” or “traditional”
knowledge 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 a
central 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 an
A.B. from Princeton University. She has practiced both intellectual property and entertainment
law.
277
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278 THE DARTMOUTH LAW JOURNAL Vol. VI:3

things, property rights, First Amendment rights, monopoly interests, and an

ideology about the advancement of knowledge. Indigenous or traditional
knowledge, on the other hand, was something arcane and mysterious. It
was studied by anthropologists in the context of on-the-ground fieldwork in
exotic locales and constituted the stuff of academic dissertations and
treatises. International or comparative intellectual property law focused on
other countries that had embraced Western notions of intellectual property
rules and systems. Missing from the picture were the smaller societies of
the developing world, or indigenous societies living within post-colonial
nations.
In recent years, that picture has been filled in. Intellectual property,
indigenous knowledge, and the rights of indigenous peoples now share the
same canvas. When I first went to Fiji in 1995 to do anthropological
research, I discovered that Fijian potters traditionally “own” their vessel
shapes and surface designs. Why would such a system be embraced in a
non-market economy in which personal property is minimal and economic
return from craftsmanship is often hard to quantify? At the time, there did
not seem to be widespread knowledge or awareness of “copyright” or other
European-based protection frameworks for knowledge. There was just a
simple statement from the village of Nasilai’s master potter Wati Taraivini
that, after she gave her pot design to Nakabuta’s master potter Daiana
Tuqea, she had to request permission from Daiana to make that type of pot
again.
When I returned to Fiji in 2004, the conceptual landscape had changed
dramatically. In Fiji, throughout the Pacific, and in indigenous
communities around the world, there had been a remarkable increase in
awareness about Western-inspired knowledge protection systems. People
now 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 Fiji’s largest island – there were posts
made from indigenous trees that had been carved to look like ancient
artifacts. These “traditional” markers had all appeared since 1995. As
stated by a representative of the Pacific Islands Forum: “Traditional
knowledge is close to the heart of Pacific Island peoples. It gives them
hope.”1
Well-organized movements to protect indigenous knowledge have
existed 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 and
far-flung indigenous groups. In 2007, for instance, the global Rastafarian
community 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 objectives

of the Council, which has opened a dialogue with the World Intellectual
Property 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 far
back as Bronislaw Malinowski and Margaret Mead in the 1920’s and
1930’s, had observed and documented the apparent importance and
protection of rights in intangible goods, the subject received little sustained
attention in anthropological studies until the 1990’s. It received even less
attention from lawyers. It was not until the passage of the Trade Related
Aspects of Intellectual Property (TRIPS) Agreement into international law
in 19943 that the Western legal world began to take notice of the
indigenous context, and the differing interpretations of “property” in
general and “intellectual property” in particular that have been embraced
by indigenous societies for many generations. It was the TRIPS agreement
that linked intellectual property with international trade practices and
policies. In the years leading up to the World Trade Organization’s
(WTO’s) passage of TRIPS, and with increasing intensity and number
since, international organizations such as the United Nations Educational
Scientific and Cultural Organization (UNESCO) and the World Intellectual
Property Organization (WIPO) (both operating under the umbrella of the
United Nations) have begun to explore the multifaceted complications
raised 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 the
industrialized world on the intangible heritage of the developing world. TRIPS was developed by
the "rich" nations to address the dual facts of globalization in economic markets and the meteoric
rise in value of "information industries" with their associated incorporeal properties. As
copyrighted and patented properties increased in economic importance, industrialized countries
and their corporate counterparts realized that they needed to come up with a remedy for the
general lack of recognition and enforcement of "intellectual property rights" in the developing
world. The remedy was the TRIPS Agreement, which was designed to protect the producers of
intangible materials against encroachment or uncompensated exploitation in developing world
markets, 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 the
developing world, both because developing countries are required to comply with extensive (and
expensive) enforcement regulations, and because these countries are net importers of intellectual
property. Coenraad Visser, Making Intellectual Property Laws Work for Traditional Knowledge,
in POOR PEOPLE’S KNOWLEDGE: PROMOTING INTELLECTUAL PROPERTY IN
DEVELOPING COUNTRIES 207, 208 ( J. Michael Finger & Philip Schuler eds. 2004).
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280 THE DARTMOUTH LAW JOURNAL Vol. VI:3

knowledge posed by globalization – through the loss of languages and local

cultural 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 General
Conference of UNESCO.6 Pursuant to Article 34 of the Convention, it
entered into force on April 20, 2006, three months after ratification by 30
member states.7 UNESCO is currently publishing “The Intangible Heritage
Messenger,” a quarterly newsletter intended to keep “intangible cultural
heritage professionals” abreast of developments relating to the Convention
and its goals. On a parallel track, WIPO convened the "Intergovernmental
Committee on Intellectual Property and Genetic Resources, Traditional
Knowledge and Folklore” (IGC) in 2000, which held its Thirteenth Session
from October 13-17, 2008. The IGC is an international forum that includes
representatives of developed and undeveloped nations, NGO’s, indigenous
communities and multinational corporations. Its meetings have aired wide
and varied policy positions while generating extensive volumes of
materials.8 The past several sessions have highlighted a stronger indigenous
voice, and sophisticated arguments blend regional and national initiatives
for protection with an internationally-sanctioned regime in order to protect
indigenous knowledge.9
Independently of the IGC, regional and national initiatives designed to
protect indigenous knowledge have multiplied. In 1993 – the United
Nations’ “Year for the World’s Indigenous Peoples” – the Mataatua
“Declaration on the Cultural and Intellectual Property Rights of Indigenous
Peoples” was produced by indigenous representatives from Asia, the
Pacific and the Americas who met in the Bay of Plenty region of New
Zealand.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 Folklore
against Illicit Exploitation and other Prejudicial Actions was promulgated as far back as 1982 by
a joint committee of WIPO and UNESCO. Marilyn Strathern and Eric Hirsch, Preface, in
TRANSACTIONS AND CREATIONS: PROPERTY DEBATES AND THE STIMULUS OF
MELANESIA vii, xi (Strathern and Hirsch eds. 2004). The Model Provisions were used as the
basis of a draft treaty, but a panel of experts convened to critique it determined that it was
premature, 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 Messenger
No. 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 the
work 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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Fall 2008 INTELLECTUAL PROPERTY IN INDIGENOUS SOCIETIES 281

articulates the imperative for indigenous peoples to define their own

cultural and intellectual property and develop appropriate mechanisms and
administrative 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 addressing
indigenous intellectual property now exist in Panama,15 Peru16 and the
Philippines.17
To accompany these developments, there has been an explosion of
legal and anthropological writing about the intersection of indigenous
knowledge and Western intellectual property law. Rather than simply
adding another voice to the theoretical discussions about the desirability
and feasibility of protecting indigenous knowledge, this article will first
take a step back to examine the differing contexts of knowledge and its
protection in Western and indigenous societies. It is easy to get caught up
in the intricacies of the theoretical and technical questions surrounding
protection, and lose sight of the fundamental cognitive and policy
differences which delineate the widely-varied approaches of the West and
indigenous societies in their categorizing, collecting, sharing, and
protecting of knowledge. As noted by Rosemary Coombe: “As a lawyer
and an anthropologist I think that the debates around intellectual property
are neither sufficiently careful in their articulation of the law nor
ethnographically sensitive to the contexts in which intellectual property
assertions arise as rhetorical claims.”18 It is only after considering
indigenous knowledge within its own conceptual framework, without
superimposing the values and assumptions of the West, that we can
develop an effective and beneficial approach to protecting that

www.wipo.int/export/sites/www/tk/en/folklore/creative_heritage/docs/mataatua.pdf (last visited

Dec. 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 Rights
of 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 Brown’s “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 requirements

and assumptions (such as originality, fixation, a designated and identifiable
author, and a limited duration of protection20) which make a conventional
intellectual 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 indigenous
knowledge. 22 International and indigenous actors, however, now recognize
as vital the initiatives to protect such knowledge. Protection is necessary
not only to preserve the economic value of traditional knowledge, but also
to maintain the expressive forms that give each indigenous community a
distinct identity, and shape its social, cosmological, ecological, and ritual
world views.
The problems with IPR, however, do not end with the framework’s
failure to protect indigenous subject matter. Western assumptions about
ownership and authorship, and the assignment of most indigenous

19 Aspects of the "conceptual divide" were discussed in a recent WIPO document: "[I]t has
been stated that the very conception of 'ownership' in the conventional IP system is incompatible
with notions of responsibility and custodianship under customary laws and systems. While
copyright confers exclusive, private property rights in individuals, indigenous authors are subject
to dynamic complex rules, regulations and responsibilities, more akin to usage or management
rights, 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, 11
CARDOZO 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 in
Aboriginal art works, despite the apparent incongruities between the remedies sought and the
statutory 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 indigenous
artist's imagery belonged to his community, and were held in trust by the artist for his
community's benefit. This recognition of a legitimate communal right to copyright built on a
previous court decision, Milpurrurru v. Indofurn Pty Ltd, 54 FCR 240 (1994), which similarly
found 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 inured
in a community and were bound up with issues of authorship, ownership and, ultimately, social
structure within the community. Within the larger framework, Jane Anderson notes that "[t]he
importance of the Aboriginal art and copyright cases lies in the reality that Indigenous
aspirations, whilst modified and reworked, contribute to the broader intellectual property
conversation." Jane Anderson, The Politics of Indigenous Knowledge: Australia's Proposed
Communal Moral Rights Bill, 27 UNSW L. J. 589, 590 (2004). The two cases effectively
reversed an earlier case, Yumbulul v. Reserve Bank of Australia, 21 I.P.R. 481(1991), which had
dismissed 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 create

their own protectible, derivative subject matter from indigenous raw
materials. IPR is double-edged, and both edges cut off indigenous
protections and rights. Thus, a Western pharmaceutical company may
appropriate indigenous knowledge about a medicinal plant that is deemed
by Western intellectual property law to be in the “public domain,” and then
create commercial products to which it has exclusive rights. The royalties
go to the Western company rather than to the indigenous keepers of the
knowledge, and the exclusive rights that the company might apply for
under Western patent law will make the end products inaccessible to the
indigenous population.23
Similarly, when non-technological products are considered, such as
songs, images, paintings, or other forms of traditional cultural expression,
outside actors, whether individual or corporate, can take indigenous
products deemed by Western law to be free to the public, and establish
exclusive rights in the derivative works created from them.24 This is not an
accident: the intellectual property system was expanded and developed in
the nineteenth century by the European imperial powers, who used it to
preserve for themselves the resources of their colonies.25 In the
contemporary context, one commentator has noted that “WIPO and TRIPS
have focused on teaching the poor how to protect the intellectual property
of the West.”26 Conventional intellectual property law, therefore, provides
neither a sword nor a shield to protect indigenous subject matter.27

23 The Indian government has attempted to combat this problem by creating the Traditional
Knowledge Digital Library ("TKDL"). After being forced to prosecute expensive lawsuits to
prevent the awarding of patents to individuals abroad for turmeric, basmati rice and neem, India
devised the TKDL to protect traditional Indian knowledge from being appropriated by outsiders
and subsequently patented. "After years of watching Westerners plagiarize its traditional
knowledge – from yoga poses to ayurvedic medicine – India has decided to put an end to
generous free lunches people have been helping themselves to. The government is in the process
of translating millions of ancient transcripts of traditional knowledge areas to create an exhaustive
database in English and other foreign languages, hoping that patent offices abroad would refer to
them 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 collected
traditional 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 AND
INTELLECTUAL 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 Cultural
Expressions Section, Traditional Knowledge Division of WIPO: "[T]he notion of 'protection' is
used in at least two senses, one denoting 'positive' protection (aimed at gaining intellectual
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284 THE DARTMOUTH LAW JOURNAL Vol. VI:3

Protection of intellectual property in indigenous societies implicates

issues of human rights, cultural survival, and physical subsistence of those
societies. Rosemary Coombe argues that protecting traditional knowledge
has become a matter of profound moral and legal importance. Speaking
specifically about the indigenous knowledge referred to by WIPO as
“traditional knowledge” (rather than “traditional cultural expressions”),28
Coombe notes: “Primarily. . .when we talk about protecting traditional
knowledge we are talking about protecting the livelihoods of the poor.”29
In 1993, the UN Subcommittee on the Prevention of Discrimination and
Protection of Minorities and its Working Group on Indigenous Populations
produced “The Study on the Protection of the Cultural and Intellectual
Property of Indigenous Peoples,” which placed protection of indigenous
knowledge into the context of human rights. The document was released as
the landscape was changing, and both international and indigenous groups
began to look at the subject in a different and more urgent way. As
summarized by Richard Kurin, Director of the Smithsonian Institution
Centre for Folklife and Cultural Heritage: “By the mid-1990’s,
international awareness of and discourse about the consequences of
globalization had increased dramatically. Many cultural observers around
the world believed that local, regional, even national traditions were
devalued or endangered or both. The onslaught of global mass culture
raised 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/or
prevent others from doing so) and the other denoting a form of 'defensive' protection (aimed at
preventing the gaining of intellectual property rights over traditional cultural expressions and
derivations therefrom)." Wend Wendland, Intangible Heritage and Intellectual Property:
Challenges and Future Prospects, 56 MUSEUM INT'L 97, 100 (2004). In the current intellectual
property framework, both forms of protection are denied to indigenous communities, and they are
both of critical importance.
28 Indigenous knowledge falls into two general categories, according to WIPO: “traditional
knowledge” and “traditional cultural expressions.” The former category includes what might be
termed scientific know-how, and includes medicine and other biological products, as well as
technology. Such knowledge would likely be susceptible of patent and trade secret protection in
the West. The latter category consists of songs, dances, art, poetry, rituals – what was once
referred to as "folklore" before that term was rejected as demeaning. Analogous productions in
the 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 income
through 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 encroachments
and 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 UNESCO
Convention: A Critical Appraisal, 56 MUSEUM INT'L 66, 68 (2004).
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Fall 2008 INTELLECTUAL PROPERTY IN INDIGENOUS SOCIETIES 285

however, is how that protection can be accomplished. The designation of

indigenous knowledge as “property” and the impulse to “protect” it, for
example, implicitly import a Western frame of reference and beg the
question of whether a Western-style legal framework can serve the interests
of indigenous societies.31 A creation of the Euro-American legal system,
intellectual property is a paradigm that does not rest comfortably upon
indigenous societies. The emphasis is on the individual, as defined by the
European Enlightenment, and entitlements to rewards for what are deemed
to be acts of personal inspiration. There is an underlying notion of the
“romantic author” which informs Western intellectual property law. In
addition, “the expression ‘intellectual property rights,’ emphasizes the
mind and connotes abstraction, decontextualization, formalization, and the
use of written information. Through the concept of intellectual property
rights we deploy widely accepted Western assumptions.”32
In order to allow traditional knowledge to help protect indigenous
societies and their cultures from disappearing in a globalized world, it is
critical to tailor any system of protection to the particular needs and
circumstances of those indigenous groups, as well as to their fundamental
assumptions about the world and the place of knowledge within it. “How
people view the world influences their beliefs and philosophies as well as
the nature of their knowledge and their way of knowing.”33 It is no gift to
set the rules and then force indigenous societies to bend and mutate so as to
fit within those externally-imposed constraints. New rules should be
devised – new frameworks for and of protection—which allow for the
protection of indigenous knowledge without altering or destroying its
purposes, its nature and its social meanings. An understanding of those
meanings both within their own context and in contrast to fundamental
Western social assumptions is a prerequisite to developing effective new
frameworks of protection.

III. THE HISTORY OF INTELLECTUAL PROPERTY PROTECTION IN THE WEST

The legal regime governing copyright protection in the West

developed from the English system, which originated in the sixteenth
century.34 While the objectives and values of this system have changed
radically 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 INTELLECTUAL
PROPERTY RIGHTS 102, 103, supra.
33 Unaisi Nabobo-Baba, KNOWING AND LEARNING: AN INDIGENOUS FIJIAN
APPROACH (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 the

United States, it has been argued since colonial times that providing a
monopoly to the authors of intellectual property enhances the public good
by encouraging creativity and innovation. This encouragement stems from
the promise of financial gain, arguably the greatest incentive in Western
culture. On a more theoretical level, contemporary notions about granting
rights in intellectual property stem from a basic understanding that
individuals have entitlements to certain things. With respect to property,
those entitlements result either from a notion of fairness or from the
principle that labor is justly rewarded by ownership.35
While the current rationales and objectives of copyright protection are
often spoken of by Western legal experts as being intrinsic to a system of
protecting knowledge or any form of intangible property, the copyright
system actually developed to advance different goals. In 1557, in order to
curtail the spread of Protestant writings, the Catholic Queen Mary Tudor
granted the Stationers’ Company a charter which allowed its members an
effective monopoly on printing36 and gave the Queen control of the press.
This restrictive system survived in some form until 1695, having been
formally reinstated after the Civil War by Charles II as “The Licensing Act
of 1662,” which was officially titled: “An Act for preventing the frequent
Abuses in printing seditious treasonable and unlicensed Bookes and
Pamphlets and for regulating of Printing and Printing Presses.”37 This
statute made it illegal to publish anything without securing a license from
the appropriate authority. The act provided for censorship, limited the
number of master printers and printing presses, restricted the importation of
books, and allowed the Stationers’ Company almost total control of the
English book trade. “It was, in other words, not just a licensing statute but a
comprehensive act for publishing control. . .”38 The act was not renewed
upon its expiration in 1695, having fallen victim to a strenuous campaign
waged by authors such as John Milton and John Locke.
The idea of a system to regulate published works continued to have
substantial support, however, and the first Parliamentary copyright act – as
distinct from a licensing or a censorship act—was passed in 1710.39 Called
“The Statute of Anne,” it was a trade regulation statute enacted to bring
order 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 VICTORIAN
ENGLAND (1999), at 3.
37 Mark Rose, AUTHORS AND OWNERS: THE INVENTION OF COPYRIGHT (1993), at
31.
38 Id.
39 Id. at 36; Patterson, supra, at 3 n. 3, 12.
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Fall 2008 INTELLECTUAL PROPERTY IN INDIGENOUS SOCIETIES 287

the licensing act.40 Despite its characterization as an “Act for the

Encouragement of learned Men to compose and write useful Books” it
functioned 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 time
the English Copyright Act of 1842 was passed, copyright was an economic
entitlement of authors. It is this understanding which informs contemporary
Western 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 Western

commentators, indigenous societies have a rich history of protecting their
intangible heritage. While intellectual property is subject to detailed
statutory schemes in Western countries, the property comprised of
knowledge is a more ambiguous, multivalent subject in indigenous
societies. Each society has a unique pattern of protection for its indigenous
knowledge; there is no unitary “indigenous system.” Different societies
include different types of knowledge in their categories, and choose to
protect, reveal and transmit that knowledge in culturally specific ways. At
its 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 from
Western intellectual property protection.
To a far greater extent than in Western societies, the role of
knowledge is integrated into and representative of an indigenous society’s

40 David Saunders, Dropping the Subject: An Argument for a Positive History of Authorship
and the Law of Copyright, in OF AUTHORS AND ORIGINS 93, 94 (Brad Sherman and Alain
Strowel, 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. In
this regard, the Constitution empowers Congress '[t]o promote the Progress of Science and useful
Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries.'" Scafidi, WHO OWNS CULTURE? APPROPRIATION
AND AUTHENTICITY IN AMERICAN LAW 17 (2005), citing the Copyright Clause of the
United States Constitution, Article I, section 8, clause 3). Others, however, take a more nuanced
view: "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 commercial
misrepresentation, keep valuable secrets, recognize non-pecuniary interests in works, respect
public sensibilities, and enable the valuation of local distinctions." Rosemary Coombe, Steven
Schnoor 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 earthly

identity are intertwined with the knowledge generated, transmitted, and
perpetuated in indigenous communities. “A society’s knowledge, and its
system for generating and maintaining that knowledge are cornerstones of
its culture. Legal systems – whether codified or customary – dealing with
the use and protection of knowledge thus involve fundamental human
rights. . .”43
Recognition of value in incorporeal products in indigenous societies
has long been noted by anthropologists. While most of the writing on the
subject has appeared in the past twenty years, the phenomenon was
recognized by early ethnographers. Malinowsky wrote of the exclusive
ownership of magic and rituals in the Trobriand Islands; 44 Margaret Mead
spoke of the commerce of the Mountain Arapesh of Papua New Guinea in
songs, magic and divining;45 Lowie46 and Hoebel47 identified ritual and
other incorporeal items of value in North America; and Elkin described
them in Aboriginal Australia.48
From the Tannese in the South Pacific’s island nation of Vanuatu to
the Tiv in Africa, and from the Kwakiutl on the Northwest Coast of North
America to the Australian Aborigines, property rights in songs, dances,
ritual complexes, paintings, designs, magic, and names occupy an
important category of cultural and economic goods. The roles served by
this protection, and the patterns and rules of protection, vary from place to
place. Underlying them all, however, is the recognition that such goods
constitute protected property. In most cases, that property may be
transferred by descent and, in some cases, it may also be bought, sold, or
the subject of exchange.
In his classic study of “primitive” law, A.E. Hoebel describes the early
debate about whether notions of “property” could be applied to items of
intangible value in indigenous societies.49 Hoebel notes two arguments that
challenge the notion of incorporeal property in indigenous societies: (1)
ideas of incorporeal property are limited to modern law systems because
“primitive people” lack the mental sophistication necessary for so abstract
a 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); CORAL
GARDENS 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 person50.

Hoebel rejects both of these lines of reasoning to conclude that there are a
“sufficiently 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. “Artistic
works, traditional designs and oral folklore are not simply viewed as
commodities owned by individuals, to be protected for the economic
benefits they may yield, but as integral parts of the heritage and identity of
the community to which they belong.”52 Indigenous knowledge does not
only serve the interests of the material survival of a people, but also of their
cultural survival. Cultural identity is wrapped in the specifics of a society’s
language, stories, rituals, music, medicine and agriculture. Disintegration or
disappearance of indigenous knowledge heralds the disintegration or
disappearance of the society to which it belongs. It is this realization that
underlies the urgency with which individuals, societies and international
organizations are now approaching the conundrum of how to effectively
protect indigenous knowledge in the international arena.

V. THE CONTRAST BETWEEN INDIGENOUS AND WESTERN APPROACHES TO

PROTECTING KNOWLEDGE

While “intellectual property” has been set apart as a discrete category

of ownership and rights in Western systems, this is not the case in
indigenous 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 most
indigenous contexts. Valuable incorporeal items may be classed with
material goods: their significance lies in what they represent, rather than
the form they inhabit. For example, the Tiv of Western Africa place their
knowledge property of magic and ritual prerogatives in the “prestige
goods” 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 African
Spheres 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 help
constitute 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 authenticating
ideologies associated with mana, ancestors and gods that give shape and
drive to political processes. . .These encompassing ideologies are active
forces that both validate the absolute value of inalienable possessions and
verify the difference among individuals who own these coveted objects.”57
While Weiner denominates these items “inalienable,” she does not intend
the term to be absolute: “Because inalienable possessions succeed their
owners through time, transferability is essential to their preservation.”58
Carol Rose offers another theoretical framework. In discussing the
objectives of any society in establishing and enforcing a property rights
regime, Rose distinguishes between systems that base property rights on a
theory of “preference satisfaction” and those that see property as stemming
from “propriety.”59 “This [second] version of property did not envision
property 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 first
category, with notions of fairness and reward for labor constituting the
social preferences embraced by these societies. By contrast, knowledge
protection in indigenous societies often fits into the second. Rights in
knowledge items are deemed to stem from inherent entitlements of certain
persons or groups. Rose argues that viewing property entitlements as
appropriate to specified owners “treats individuals as trustees for
succeeding generations of their families” and plays an important part “in
keeping good order; [where] the normal understanding of order [is] indeed
hierarchy – in the family, in the immediate community, in the larger
society. . ., in the natural worlds, and in the relation between the natural and
the spiritual worlds.”61 In keeping with this, indigenous knowledge is often
held communally, and rules about control, access, and use form an integral
part of the fabric of social hierarchies and relationships.
The divergence between Western intellectual property and knowledge
protected 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 than

authorship.62 With some limited exceptions, the intangible property
protected in indigenous societies – which includes ritual complexes, songs,
dances, magic spells, designs, and names—has value expressly because it is
deemed to be of ancient or supernatural origin, handed down from the
gods, animal spirits, or a primary ancestor.63 Spells and names, for
example, are often considered to be objective properties of the world rather
than human creations.64 Any notion of individual creation or invention
would destroy the value of the property by negating its cosmological and
ontological significance. “Knowledge is revealed, not individually created.
It is passed down, not made up.”65 Authorship, then, a hallmark of Western
IPR, is not a central concept in indigenous societies.
This principle is demonstrated even in some instances in which it
appears that indigenous societies protect innovation or independent
creation of intangible goods. For example, the composition by a Sioux
warrior of new songs which become his protectible property results,
according to the Sioux, from inspiration granted to the warrior by a
guardian animal spirit which appears during a vision quest,66 and songs
dreamt by Aboriginal Australian men are believed to be revealed as the
result of visionary skills bequeathed from father to son.67 Similarly, the
creative power of the master carvers who carve the kula boats on Kitawa
island is believed to come from an enveloping external power that spreads
the creative force of the mystical images through the body of the carver.68
The phenomenon is explained by Lamont Lindstrom: “People perceive
knowing how to know as a process not so much of individual mental
creativity or meditation but of mediation. Men who suggest explanations or
interpretations say they received this knowledge from powerful sources. . .
[P]eople likewise presume that those who invent new songs have
experienced ancestral inspiration rather than some flash of mental
creativity.”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 PEOPLE’S NAMES (1990), at 56; Malinowski,
ARGONAUTS OF THE WESTERN PACIFIC (1922), at 398; Helen Codere, FIGHTING WITH
PROPERTY (1950), at 118; Howard Morphy, Myth, Totemism and the Creation of Clans, 60
OCEANIA 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 from

acknowledgement that it has survived through generations and refers back
to an ancestral creation, while intellectual property in the West is granted
protection only if it is deemed to have originated with the contemporary
author. Further, while Western intellectual property law provides a limited
term of protection for the original creations of authors, rights in the
ancestral material protected in indigenous societies are of unlimited
duration.
With respect to “fixation” of a work, which is necessary for a work to
be protectible in the West, the divergence in indigenous societies is equally
clear. In the first place, most of these societies were non-literate at the time
their systems of protection developed. Not only do non-literate societies
have no rules requiring that knowledge be fixed in order to be worthy of
protection, it appears that one of the rationales in indigenous societies for
granting proprietary rights in knowledge stems from a perceived need to
limit access to these goods to preserve the integrity of critical ritual or other
sacred and ancestral knowledge. “Discursive limits on the number of
people qualified to talk about something legitimately work to reduce the
number of competing versions in the field, and to retard transformations
within. . . local knowledge.”70
Knowledge protection has played numerous roles in indigenous
societies, including preserving social status differentials (because
ownership of knowledge property often correlates with prestige);71 creating
commercial trading networks;72 delineating social and cultural boundaries;
and preserving religious and ritual frameworks.73 In other words, rights in
indigenous knowledge may serve all or some of a medley of social,
economic, political or religious objectives. The indigenous legal
frameworks built around traditional knowledge have been "constructive of
social life, … not just reflective of it."74

VI. STRATEGIES TO PROTECT INDIGENOUS KNOWLEDGE IN THE GLOBAL

CONTEXT

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 ON
AUSTRALIAN 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 both
local and international contexts. Protection must be tailored to the specific
cultural values and needs of the indigenous knowledge in question. At the
same time, the definitions must remain coherent, applicable, and
enforceable in the global arena. Local forms of “customary protection” that
are useful to individual actors or groups to regulate ownership and use of
indigenous knowledge within a society will be powerless when extended
into an intercultural or international context. Therefore, the definitions and
rules provided by particular indigenous societies with respect to their
traditional knowledge must be incorporated into legal frameworks that are
embedded within a larger international context. They must look and feel
like a Western legal system, with familiar rules and modes of enforcement,
while they are protecting subject matter that has novel sets of meanings and
rules.
This approach, however, is far neater on paper than in practice. As
noted above, there are cognitive and conceptual differences between what
constitutes knowledge, who may own or use it, and how it is transmitted in
indigenous and Western societies. Can wholesale application of Western
rules to this disparate subject matter really work? For instance, if
ownership and authorship have no meaning, or have different meanings, in
indigenous societies, how will requirements that an author or owner claim
and prosecute intellectual property rights alter social and legal
relationships? Western intellectual property law “incorporate[s] a
conception of the agents of creation, especially of authors and inventors,
that reflects a post-Enlightenment, individualistic worldview,”75 and that is
dramatically at odds with most indigenous conceptions of the world.
A major concern when considering protection of indigenous
knowledge within a Western-style IPR framework is the fear that, in order
to fit within that framework, indigenous knowledge will have to be altered
or frozen. Culture is organic and dynamic, and cultural knowledge evolves
and develops through time and space. Defining and delineating it so that it
fits into legally-defined categories of protection could end up damaging
both the knowledge and its cultural context, and effectively negating the
benefits of the protection. Protected for whom? Protected as what? In order
to fit into the conceptual framework of Western intellectual property law,
will indigenous knowledge be stripped of its dynamism, its organic, holistic
nature and become commodified, reified, and subsequently
commercialized?76 “By dividing ideas and expressions, oral traditions and
written forms, intangible works and cultural objects, the law rips asunder
what 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 IPR

model appropriate when attempting to devise protection for the traditional
knowledge of indigenous cultures?78 If not, what are the alternatives?79
The best hope to maintain and protect indigenous knowledge appears
to 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) Legal
Protection Project was set up to promote sui generis legislation in the
Pacific Island nations for the protection of traditional knowledge and
expressions of culture.81 In 1999, the Pacific Islands Forum Secretariat was
mandated by the Trade Ministers meeting “to work towards the
development of national, regional and multilateral/international rules and
legislation to protect the intellectual property rights of indigenous
peoples.”82
The following year, the Forum Secretariat and the SPC were joined by
UNESCO in the joint enterprise of developing a regional framework for the
protection of traditional knowledge and expressions of culture. The Pacific
Model Law was produced, and it was endorsed by the Regional Secretariat
of 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 Pratima
Rao eds. 1997).
78 Jane Anderson, writing about Aboriginal Australians' efforts to make indigenous
knowledge a category within conventional intellectual property law, and thereby take advantage
of the protections therein offered, worries that "once instituted as a legal category, law has (quite
inevitably) 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 the
edited volume TRANSACTIONS AND CREATIONS: PROPERTY DEBATES AND THE
STIMULUS OF MELANESIA, supra, which is the end-product of a three-year research project
at Cambridge University entitled "Property, Transactions and Creations." The Introduction by
Marilyn 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 particularly
relevant to the issues discussed in this article.
80 While this will not remove the danger that indigenous knowledge will be artificially frozen
or changed in order to constitute a measurable, definable category of subject matter to protect, the
legislation could tailor the definitions in the sui generis framework to the particular indigenous
knowledge in question. Focusing on local knowledge in an ethnographically-sensitive framework
might introduce flexibility that would at least minimize the alteration of the protected indigenous
knowledge.
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 Community
Commission, 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 folklore
expressions (dances, music, songs, designs, handicraft and artwork) that
belong to the Pacific communities and for which no redress could be made
due to the absence of legislation,”84 the Pacific Model Law looks like a
Western statute in its form and structure.85 In contrast to Western IP rules,
however, owners of rights in the knowledge may be individuals, extended
clans, or communities;86 the rights persist in perpetuity,87 and they are
inalienable.88 Traditional knowledge and expressions of culture are
protected whether they are tangible or intangible, reflecting the indigenous
rather than the Western system of categorization.89 The Model Law is a
prototype, and Pacific Island nations must promulgate national statutes to
create an enforceable set of rights in indigenous knowledge. It is intended
to complement and not undermine conventional intellectual property
rights.90
Individual nations have also developed sui generis frameworks of
protection for indigenous knowledge. Panama promulgated the “Special
Intellectual Property Regime Governing the Collective Rights of
Indigenous Peoples for the Protection and Defence of their Cultural
Identity and their Traditional Knowledge,” which was passed in 2000 and
revised in 2001.91 The Panamanian law was developed expressly to protect

the Pacific Model Law, targeting biological, technological and genetic resources belonging to
indigenous 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 the
document 'Elements of a sui generis system for the protection of traditional knowledge' created
by the World Intellectual Property Organization for consideration by the Intergovernmental
Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore.
These questions include: what is the policy objective of the protection?; what is the subject
matter?; how are the rights lost or how do they expire etc. These questions are relevant to the
development of any effective legal system for the protection of property rights, and not just to the
particular 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 Explanatory
Memorandum (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 Rights
of Indigenous Peoples for the Protection and Defence of their Cultural Identity and their
Traditional Knowledge, supra. The legislation is complex and comprehensive, and provides both
a 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 are
protected, while simultaneously preventing outsiders from obtaining exclusive rights of any kind
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the collective rights of Panama’s indigenous people in their intellectual

property, such as the reverse-appliquéd “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 Expresiones
Folcloricas) to grant and administer collective ownership of copyrights of
unlimited duration for indigenous groups and to prevent registration by any
outside party.93 Peru has also passed legislation to protect collective
intellectual property rights of its indigenous peoples, although the Peruvian
legislation focuses exclusively on protecting the “collective knowledge of
indigenous peoples derived from biological resources.”94 The Philippine
Indigenous Peoples Rights Act of October 1997 deals primarily with rights
to ancestral lands. Chapter VI of the legislation, however, is titled
“Cultural Integrity,” and Chapter VI Section 29 states: “The state shall
respect, recognize and protect the right of the ICC’s/IP’s [the indigenous
communities] to preserve and protect their culture, traditions and
institutions. It shall consider these rights in the formulation of national
plans and policies.”95
In addition to IPR-like statutes to protect indigenous knowledge,
alternative and supplemental initiatives which provide a more specialized
slice 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 in
Western intellectual property circles96 and rely on traditional IPR principles
(analogous to trademark or certification laws) to link products to their
places of origin. India enacted the Geographical Indication Act in 2007 to
protect traditional knowledge associated with Indian handicrafts.97 In a
similar vein, the United States’ Indian Arts and Crafts Act of 1990 makes it
a serious offense to falsely suggest that copycat goods offered or displayed
for 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, Panama’s 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 not
cover 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 Canada99 and New Zealand.100 National

registries of crafts that will provide certification to indigenous products are
being developed in Colombia, Bolivia and Venezuela101, and Peru has
created the Central Interregional de Artesanos del Peru (CIAP), a union-
like organization of artisans “which works to prevent counterfeiting
through example, and pools together artisans who have the same values and
work ethic.”102 While the scope of protection of these provisions is
narrower than the more comprehensive national and regional IPR
frameworks, they are less cumbersome to enact and to administer, and, at
the very least, might help to recast perceptions of indigenous products as
eligible for intellectual property-like protections, while protecting the
commercial interests of the indigenous artists.

VII. CONCLUSION

Intellectual property has come to the village. In the contemporary

international environment, where information and knowledge are among
the most valuable of commodities, and where globalization threatens to
destroy the unique cultural repertoires of non-Western societies, it is
imperative to devise a way to protect the traditional knowledge of
indigenous societies. Despite profound differences in the way knowledge
is categorized and protected, indigenous societies and international
organizations are borrowing ideas and forms from Western law to fashion
protection for indigenous cultural knowledge.
There are significant pitfalls, however, to the application of Western
concepts and rules to indigenous settings. One must be careful that the
cure is not more dangerous than the disease: It is crucial to understand the
divergences between Western and indigenous categorizations of knowledge
and property, and to develop legal protections for traditional knowledge
that take into account the unique perspectives and conceptual foundations
of indigenous societies. Sui generis statutes, which adopt provisions from
Western intellectual property systems while being designed to fit local

99 The "igloo" mark, developed and registered by Canada's Department of Indian and
Northern Affairs in 1958 and enforced by the Government, authenticates Inuit art works. Julie
Hollowell, Intellectual Property Protection in the Market for Alaska Native Arts and Crafts, in
INDIGENOUS INTELLECTUAL PROPERTY RIGHTS: LEGAL OBSTACLES AND
INNOVATIVE 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 description
of 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 rights
in indigenous knowledge. There will be no “one size fits all” model for
protection. Numerous and complementary approaches are necessary.
Sustained interdigitation of Western and indigenous ways of thinking, as
well as careful molding of legal frameworks to fit local conditions, is
necessary to preserve the integrity of traditional knowledge while offering
protection to its rights-holders.