Culture, Autonomy and Djulibinyamurr: Individual and Community in the Construction of Rights to Traditional Designs

AuthorKimberlee Weatherall
Publication Date01 Mar 2001
DOIhttp://doi.org/10.1111/1468-2230.00317
Culture, Autonomy and Djulibinyamurr: Individual and
Community in the Construction of Rights to Traditional
Designs
Kimberlee Weatherall*
The possibility of granting proprietary rights in indigenous intangible cultural
property – including artwork, cultural items and, more recently, traditional
knowledge – has been and continues to be an area of considerable controversy,
and the subject of discussions in various international organisations. It is widely
accepted that present intellectual property regimes are structurally inadequate.
The author focuses on the particular problem of traditional designs, and seeks to
analyse critically the justifications that are advanced for extending existing
regimes or introducing a sui generis right: in particular, the protection of
‘cultural integrity’. The aim is to elucidate some of the theoretical problems with
this rationale, and to extrapolate, from arguments regarding the importance of
culture and cultural integrity, to the form and scope of rights that such an
argument might require. In particular, the author believes that such a rationale
has implications in determining how conflicts between communal and individual
interests are to be resolved.
[T]here are situations which no amount of reflection will resolve and where thoughts act out,
as it were, a conflict of interest. . .. I could not bring my two minds together.1
Thus did Marilyn Strathern describe the intellectual dilemmas regarding the
application of intellectual property rights to traditional knowledge; her comments
are equally applicable to the whole spectrum of indigenous intangible cultural
property. When considering legal protection of indigenous ‘folklore’, now more
commonly (and broadly) referred to as indigenous cultural and intellectual
property,2one is invariably pulled in contradictory directions, both morally and
logically. Strathern’s statement captures well the inevitable sense of intellectual
schizophrenia.
It is therefore hardly surprising that such issues have long been debated in
numerous fora without resolution.3Several factors have contributed to a recent
increase in the international profile of this area: the rising value of indigenous art;4
publicity concerning (and protests over) efforts to exploit traditional knowledge by
multinational pharmaceutical companies; World Intellectual Property Organization
(WIPO) discussions regarding a possible international convention;5the discussions
ßThe Modern Law Review Limited 2001 (MLR 64:2, March). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 215
* LL.M Candidate, Yale University. The author would like to thank Dr Michael Spence of St Catherine’s
College, Oxford for his invaluable comments; any mistakes are the author’s own. The author would also
like to thank the British Foreign & Commonwealth Office and the Oxford-Australia Fund for their support
at Oxford University.
1 M. Strathern, ‘Exploitable knowledge belongs to the creators of it’ (1998) 6 Social Anthropology
109,109.
2 A compendious term of contested content: M. Blakeney, ‘What is Traditional Knowledge?’ (1999)
(WIPO/IPTK/RT/99/3) 2.
3 T. Janke, ‘UNESCO-WIPO World Forum on the Protection of Folklore: Lessons for Protecting
Indigenous Australian Cultural and Intellectual Property’ (1997) 2 Art, Antiquity & Law 405, 406.
4 T. Janke, Our Culture, Our Future (1999) ch 2 (available at www.icip.lawnet.com.au).
5 WIPO Secretariat, Protection of Traditional Knowledge, A Global Intellectual Property Issue, WIPO/
IPTK/RT/99/2 (22/10/1999) (note that this is an idea that WIPO refused to acknowledge as within its
mandate only as recently as 1995).
concerning Article 8(j) of the Convention on Biological Diversity (CBD),6and the
heightened visibility of indigenous peoples’ concerns worldwide, including
assertions by non-government organisations (NGOs) and various indigenous fora
of ownership of intangible cultural property.7
Many who advocate legal protection for indigenous cultural and intellectual
property argue that a sui generis regime is required.8There is broad agreement in
the literature that Western intellectual property law does not fully protect such
intangibles, particularly owing to structural features such as the duration of rights,
requirements of originality (copyright) or novelty and inventive step (patent) and
the focus on protecting the work of individual, identifiable authors or inventors.9In
addition, the whole structure of Western intellectual property law is arguably
inconsistent with indigenous customary law, worldviews, and attitudes towards
intangible property.10 Such structural issues have been extensively considered
elsewhere. In this paper, I am concerned with analysing in some depth the
justifications that are most commonly raised in support of the grant of proprietary
rights in intangible cultural property, and the implications that the pursuit of such
rationales have for the form and scope of such rights or interests. In particular, I
will consider arguments founded on a concern with the protection of culture; the
communal nature of the interests to which such a rationale leads. I then draw on the
literature regarding group rights and group interests in looking at how such
interests interact with other potential interests in the relevant cultural products.
Some provisos are required. First, in order to confine the issues, I will focus on
traditional (‘pre-existing’11) designs in Australian Aboriginal art: designs handed
down through generations of an Aboriginal community and re-embodied in new
‘artworks’ by individual artists. I thus distinguish between different subject-matters
in a way many consider illegitimate;12 nevertheless, I hope that at least some of this
discussion will be relevant to other subject-matters.
6 Convention on Biological Diversity Executive Secretary, Legal and Other Appropriate Forms of
Protection for the Knowledge, Innovations and Practices of Indigenous and Local Communities,
UNEP/CBD/WG8J/1/2 (10/1/2000) (available at www.biodiv.org).
7UN Draft Declaration on the Rights of Indigenous Peoples (‘UNDDRIP’),Art. 29, 12; and indigenous
declarations: Mataatua Declaration on the Cultural and Intellectual Property Rights of Indigenous
Peoples (1993); Kari-Oca Declaration (1992); Charter of the Indigenous-Tribal Peoples of the
Tropical Forests (1993); Recommendations from the Voices of the Earth Congress (1993); Statement
from the COICA/UNDP Regional Meeting on Intellectual Property Rights and Biodiversity (1994);
Julayinbul Statement on Indigenous Intellectual Property Rights (1993). These instruments are
reprinted in D. Posey and G. Dutfield, Beyond Intellectual Property: Towards Traditional Resource
Rights for Indigenous Peoples and Local Communities (Ottawa: International Development Research
Centre, 1996).
8 Most submissions to Janke, n 4 above, favoured a sui generis response (§18.2); E. Daes, Protection of
the Heritage of Indigenous People E/CN.4/Sub.2/1995/26 (United Nations Sub-Commission on the
Prevention of Discrimination and Protection of Minorities, Final Report, 1995) Guidelines 13–15. Sui
generis protection is not universally endorsed: K. Puri, ‘Cultural Ownership and Intellectual Property
Rights Post-Mabo: Putting Ideas into Action’ (1995) 9 IPJ 293, 327. Arguments against include
enforcement difficulties, and access to legal resources: M. Brown, ‘Can Culture be Copyrighted?’
(1998) 39 Current Anthropology, 193, 204; S. Brush, ‘Whose Knowledge, Whose Genes, Whose
Rights?’ in S. Brush and D. Stabinsky, Valuing Local Knowledge (Washington DC: Island Press,
1995) 1, 10; R. Coombe, ‘Intellectual property, human rights and sovereignty’ (1998) 6 Ind J Global
Legal Stud 59, 96.
9 J. McKeogh and A. Stewart, ‘Intellectual Property and the Dreaming’, in E. Johnson, M. Hinton and
D. Rigney, Indigenous Australians and the Law; (1997) 53, 62; Puri, ibid 305 ff.
10 A. Pask, ‘Cultural appropriation and the law: an analysis of the legal regimes concerning culture’
(1993–4) 8 IPJ 57, 61–62.
11 D. Ellinson, ‘Unauthorised Reproduction of Traditional Aboriginal Art’ (1994) 17 UNSWLJ 327, 330.
12 E. Daes, Protection of the Heritage of Indigenous Peoples (UN Human Rights Series, UN Office of
the High Commissioner for Human Rights, 1997) s 21; Declarations, n 7 above.
The Modern Law Review [Vol. 64
216 ßThe Modern Law Review Limited 2001

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