Critical perspectives like the aff can transform the way we think about IPR, but remain consistent with the constitutional mandate of “IP protection”

III. TRADITIONAL KNOWLEDGE/INDIGENOUS PEOPLES AND INTELLECTUAL PROPERTY

“Critical” perspectives in the context of international IP law are now emerging.105 Taking up the challenge to apply the lens of critical race and other “critical theories,”106 scholars such as Margaret Chon contend that globalization and the gap between rich and developing nations of the former colonial period in conjunction with IP have “injected human rights and social justice debate into a field dominated by commercial instrumentalism and economic rationales . . . .”107 The debate over traditional knowledge reflects tensions between the developed world and the Third World over culture and control of resources.108 Scholars such as Peter Yu explore the connection between IP and human rights.109 Angela Riley urges making distinctions between IP rights that further the interest of a mere few but dominant entities, for example the Walt Disney Corporation, “and those that are designed to put indigenous peoples on equal footing with other actors in the global market.”110

The debate over traditional knowledge, indigenous peoples and IP appropriation can provide insight into the dynamic of African-American cultural appropriation. While African-Americans are not an “indigenous” people to North America, many commonalties exist between the treatment of early blues artists and native peoples.111 In the area of traditional knowledge (“TK”), asymmetries of power between the developed and the colonial or developing world in the nineteenth century “led to certain types of knowledge that were concentrated in the Third World as essentially being deemed public domain resources that were freely appropriable.”112 Although no single definition of TK exists, it has been described as “indigenous and local community knowledge, innovations, and practices . . . often collectively owned and transmitted orally from generation to generation.”113 As Paul Kuruk has noted, the group-focused, collective nature of TK makes it difficult to protect under traditional IP law norms.114

Christine Haight Farley was one of the first scholars to analyze the disadvantages IP imposed on traditional knowledge and indigenous peoples.115 Professor Farley noted that indigenous people in recent decades have attempted to use IP law “to protect their cultural heritage from external poaching.”116 Traditional knowledge of indigenous peoples, like the works of early black blues artists, has presented challenges to IP protection, and often for the same reasons.

As Professor Farley noted, the fixation requirement of copyright, for example, can constitute a barrier to protection because folklore and traditional knowledge “may never be recorded in any tangible form.”117 Traditional knowledge, such as folklore, has existed “beyond the reach of conventional IP models of ownership and moral rights.”118 Daniel Gervais has provided three main areas in which IP has been incompatible with TK protection.119 One, TK has been under-protected because it is too old and therefore in the public domain.120 Two, TK does not qualify for IP protection because the author of the material cannot be identified.121 Three, TK is often created by large, diffused groups, whereas western IP paradigms are based on creation by individuals.122 In contrast, aboriginal or indigenous cultures seek to protect cultural resources “in the name of the relevant community.”123

Analysts in the TK arena assert that the cultural appropriation of indigenous people’s works “causes cultural devastation” and reinforces systems of subordination used to oppress native groups.124 The harm of appropriation in the TK context is exacerbated “because of the spiritual or sacred element in much indigenous, creative material.”125

Just as blues men and women found their musical works routinely appropriated, a similar dynamic impacted native peoples. The most famous example is the song “The Lion Sleeps Tonight,” derived from the composition of a Zulu tribesman, who sold the rights for a pittance.126 The song went on to become a massive hit, subsequently used in the Disney movie “The Lion King.”127 Similarly, a Taiwanese tribal people known as the Ami found their traditional folk songs recorded without compensation and used by the artist Enigma.128 As in the case of blues artists, it is “abundantly clear that intellectual property regimes fail to adequately capture all of the cultural and economic significance” of the works of indigenous peoples.129

IV. CONCLUSION

Taken together, critical race, feminist, and internationalist critiques of IP have the potential to transform the way we think of IP rights and protection. IP itself is in a period of analytical and practical turbulence, and a focus on critical perspectives can be invaluable to re-imagining an IP system that actually provides real incentives to artists at the bottom of society, rather than multi-national conglomerates concentrated across IP industries.

The critical project of IP examination can provide ways to achieve racial and gender equality, rather than reinforcing unequal social constructs through the dynamics of IP protection. Critical perspectives locate IP in a social construct, just as race and gender are socially constructed.130 Therefore, IP can be re-engineered to bring about results of distributive justice and to foster norms of racial and gender equality. These results would be in keeping with the constitutional mandate of IP protection, which is designed to insure a robust marketplace of ideas, and to compensate those who add intellectual, scientific, and artistic value to society. Further, a critical examination of IP rights is consistent with a human rights perspective of IP being developed by scholars using international norms to inform IP entitlements.