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.
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
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
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