Current IP laws are Eurocentric---they lack indigenous focus, meaning they fail to provide sufficient protection for ECTK (expressions of culture and traditional knowledge)

Proof that indigenous ECTK deserves the full gamut of protection is the increasing exploitation, inappropriate commercialisation and commodification of ECTK by nonindigenous people. Due to the increase in worldwide demand for genuine indigenous artefacts, ECTK has become a commodity soaring in value, especially in areas of tourism, advertising and marketing.5 Despite the high commercial value of sales, indigenous peoples often derive little or no benefit from the market consumption of their traditions, knowledge and artworks. A 1998 study by the Australian government indicated that the Australian Aboriginal arts and craft industry had an estimated retail sales figure of AUD $18.5 million in 1988, with indigenous artists receiving less than one half of the retail value of their work.6 This figure grew to an estimate of a least AUD$100 million in 20007 and to USD $130 million in 2002.8 However, by comparison, at the same time in 2002, traditional owners received only $30 million of this turnover.9

Damage caused by cultural misappropriation can be so devastating that traditional owners often lose all interest in reclaiming debased ECTK. For example, the Navajo Native Americans currently believe that part of their ECTK has now become linked to evil due to misappropriation by a car manufacturer10 and consequently have no desire to claim the return of misappropriated ECTK.11

The main problem of enforcing rights for contemporary indigenous groups stems from the dichotomy between the value systems of Western and indigenous culture. The values of indigenous culture do not fit within the European concept of the egocentric individual that is the current focus of the legal regime today. Current Eurocentric intellectual property laws such as copyright, patent and trade mark laws provide protection for ECTK that is either insufficient, ad-hoc, or uncertain. For example, under copyright laws, a work must be the work of the author, and not copied from another's work, to qualify for protection.12 At one stage the originality requirement presented the largest hurdle for indigenous authors, given the relative age of the works in the public domain. Ancient ancient rock paintings are an example. However, since the late 1980s and the development of the case law, Australian indigenous artworks now qualify as original with ease relative to their international counterparts.13 In the case Milpurmrru v Indofurn Pty Ltd (Milpurrurru),14 the issue was whether originality subsisted in the artworks in question. Mr justice Von Doussa succinctly held that:

Although the artworks follow traditional Indigenous form and are based on dreaming themes, each artwork is one of intricate detail and complexity, reflecting great skill and originality.15 This statement is now generally cited by Australian courts in terms of the originality requirement for indigenous copyright works.16 However, other difficulties for protection of ECTK include the desire for perpetual protection, which is not available given the limited terms of Western intellectual property laws; and the notion of communal ownership of ECTK, which has not been recognised as an acceptable equivalent of the European legal concept of individual rights. In sum, ECTK are fundamental to indigenous people's cultural identity. Rights vested in ECTK are more than mere property rights, and accordingly, require specific sui generis protection. Intellectual property-type solutions may meet some objectives but at the same time, frustrate others.17 This is why sui generis laws based on indigenous customary laws are a more appropriate form of protection, given the unique elements of ECTK.

(ECTK – Expressions of culture and traditional knowledge)