Legal framework and intellectual property : realizing the concept of indigenous cultural rights in the new millennium

Abstract

Indigenous knowledge of underdeveloped countries or of underdeveloped peoples within developed nations is a sought-after commodity in the marketplace of the new millennium. The pressure of this commercialization is sure to increase in the globalized climate of the new world economic order. Knowledge is intangible, and legal protection of the intangible is minimal. When knowledge is expressed in tangible form, societies have seen fit to offer protection under the rubric of intellectual property law. However, these developments have emerged from a \'western\' or \'developed\' legal tradition and are often inadequate for dealing with the scenarios in which indigenous knowledge tends to reside. Several examples of the commercialization of indigenous knowledge (artifact or expression) demonstrate these shortcomings. In addition, the cultural differences between concepts of developed versus underdeveloped (or under-exploited in the commercial marketplace) indigenous property further highlight the problem of achieving a harmonized and universal set of legal protections. Critical for the purpose of the present discussion is a recognition of the inadequacy of existing intellectual property regimes to protect indigenous culture and knowledge from development and, often, from exploitation. A variety of existing legal concepts (including trademark, right of publicity, misappropriation and moral rights) are discussed in an effort to demonstrate how strands of these various concepts might be woven into a new protection scheme.