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

Abstract

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.