The definition and scope of intellectual property and associated
laws are under intense debate in the emerging discourse
surrounding intellectual property and human rights. These
debates primarily arise within the context of indigenous peoples'
rights to protection and ownership of culturally specific
properties. It is true that intellectual property laws are based on
Western, developed markets, Western concepts of creation and
invention, and Western concepts of ownership. But whatever
their origins, those laws have been, and currently are, the
primary vehicle for the protection of artistic, literary, and
scientific works worldwide. To segregate indigenous interests
from this international legal regime, particularly in light of the
increasing globalization of markets, is to deny indigenous
peoples both a powerful legal shield and a powerful legal sword.
This Article argues that copyright laws can, and must, be
expanded so as to maintain the vitality of, and protect, the
creative artistic and literary works of indigenous cultures. The
Article proposes three major changes to international copyright
law: the incorporation of collective and communal notions of
authorship, the expansion of the originality requirement to
reflect these forms of authorship, and the application of limits on
the duration of copyright protection in a broader community
context. The Article further proposes that a variety of
intellectual property mechanisms be drawn upon to provide
special protection for "sacred" cultural works.
Megan M. Carpenter,
Intellectual Property Law and Indigenous Peoples: Adapting Copyright Law to the Needs of a Global Community,
Yale Hum. Rts. & Dev. L.J.
Available at: https://digitalcommons.law.yale.edu/yhrdlj/vol7/iss1/2