Attempting to unmask legal uniqueness in indigenous artistic manifestations

Abstract

An international conversation about intellectual property protection for traditional cultural expressions has been underway for more than three decades with varied momentum. WIPO and other entities and individuals have contributed very important analyses to set the stage for a new chapter in the discussion, which may include a range of points of view from outside the intellectual property sphere. One of WIPO’s best contributions to the discussion is a gap analysis from 2008, which highlights the differences between current copyright regimes and some of the wishes expressed by the Indigenous peoples who would be potential beneficiaries of a legal instrument on the topic. This paper aims to pause and refresh the conversation and to showcase how some of the larger policy questions may not be questions for intellectual property professionals; but rather for other types of attorneys and for non-attorneys as well. Using the touchstone of a particular putative traditional cultural expression – a set of Alutiiq masks that was relocated to France in the 1800s – the paper walks through some outstanding policy questions that are seated in copyright concerns but layered with other policy questions that fall outside the intellectual property rubric. Any legislative solution to these questions is neither obvious nor easy.