Looking Beyond Intellectual Property in Resolving Protection of Intangible Cultural Heritage of Indigenous Peoples

While modern indigenous artists, and especially collectives, have been able to resort to traditional property rights concerning moveable cultural property, many native peoples have found their claims to ownership of their intangible cultural property, such as motifs, songs, prayers, ceremonies, music, legends and folklore, frustrated by the limits of established intellectual property and other legal regimes. These groups face commoditization and commercialization problems, but are stuck in a catch-22 by rejecting intellectual property regimes but facing the consequence of lost control over their own cultural property. This article evaluates the various claims and desires of indigenous peoples, and others whose needs arguably justify specific legal recognition and protection, against the background of the often conflicting constitutional and social policies that establish the structural framework of modern democratic societies, paying particular attention to the policies underlying intellectual property law and the basic human rights of free speech and free expression. The authors consider the social policy tradeoffs that are involved in recognizing, or not recognizing, intellectual property rights in indigenous cultural property. They conclude that the legitimate concerns of indigenous people can be accommodated without recognizing new intellectual property rights, either through modest reinterpretation of existing legal regimes concerning contract, privacy, and unfair competition law, or through carefully tailored but general statutory amendment or incrementally developed common law principles aimed at leveling what might otherwise be seen as an unfair playing field. Intellectual property rights seem to be an unsatisfactory foundation on which to build a viable cultural heritage legal edifice. Rather than try to fit the justifiable claims of indigenous peoples into legal property-rights categories that were not designed to accommodate their essential characteristics, this article focuses on those aspects of indigenous peoples' claims that can be addressed outside the intellectual property rights regimes of patent and copyright. Traditional concepts of contract, privacy, trade secret, and trademark can go a long way in the desired direction. This approach, however, would not recognize all the claims that have been asserted on behalf of indigenous peoples.

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