Conventional IP laws fail to protect indigenous community works---exclude TCEs (traditional culture expressions) for a multitude of reasons

Figueroa 21 [Paul Figueroa is the Assistant Professor, University of New Mexico School of Law. Prior to joining the academy, the author served for four years as a Resident Legal Officer for the United States Agency for International Development Office in Guatemala City, Guatemala, and chaired for five years the international advisory group for the Consultative Group of the International Research Centers, 2021, “When Imitation Is Not Flattery: Addressing Cultural Exploitation in Guatemala Through a Sui Generis Model”, https://advance-lexis-com.proxy.lib.umich.edu/document/?pdmfid=1516831&crid=caba6909-8b5d-4d5d-a573-0007bdf09714&pddocfullpath=%2Fshared%2Fdocument%2Fanalytical-materials%2Furn%3AcontentItem%3A62R5-YFV1-JB7K-22H0-00000-00&pdcontentcomponentid=142671&pdteaserkey=sr0&pditab=allpods&ecomp=h6yyk&earg=sr0&prid=ffa1c13c-276e-4289-9635-3e454756e9ed, accessed 7/5/24]staghi

Intellectual property laws are a relatively recent legal construct initially adopted in England to secure the rights of publishers and writers. [75] Over time, copyright protection has expanded to cover new subject matter, including maps, performances, paintings, photographs, sound recordings, motion pictures, and more recently, architectural works and computer programs. [76] The trend has been to strengthen IP laws in terms of scope (new subject matters are covered) and duration (longer protection terms). [77] For instance, copyright protection has increased to a point where the term is, practically speaking, perpetual. [78] Also, it is undisputed that the expansion of the IP system primarily supports the interests of corporations. [79] In contrast to this dramatic trend of expansion of IP laws to accommodate corporate interest, efforts to [*995] protect traditional knowledge and expressions have progressed slowly, particularly in developed countries. [80]

Scholars and commentators vastly agree that Western-based IP laws are not designed to and do not protect TCEs. [81] Conventional copyright laws require fixation (that the expression be embodied on a physical object), originality (that the work be independently created and have a modicum of creativity), and that there be a known author or authors. [82] TCEs often fail to meet the required elements to qualify for protection:

TCEs are too old and do not meet the originality requirement;

TCEs do not have an identifiable “author” or authors, as they were created by communities over many generations; and

TCEs are owned “collectively” by Indigenous groups for cultural claims and not by individuals or corporations for economic claims [83]

A traditional rhythm that is not recorded, for example, would not meet the fixation requirement, and it might not be considered original if it has been known for centuries. Even if the song is recorded and considered original, it would not qualify for copyright protection if the song does not have a known author or authors [84] A modern-day artist who composes and records a song incorporating this rhythm (not subject to protection) into a derivative work can obtain copyright protection, as the fixation, originality, and known author requirements are met. [85] Presumably contemporary indigenous musicians could also seek protection [*995] under similar derivative works doctrines, but claiming individual authorship would clash with their deeply held beliefs that their communities created and own the traditional rhythm.

Creations are a collective endeavor

The emphasis on individuality by Western-based IP laws does not align with how indigenous communities create and own their works, nor does it align with the science of creativity in general. Informed by the psychology and science of creativity, Bradford Simon’s unique analysis finds that [86] “the classic economic incentive model and notions of romantic authors and genius inventors are, at best, impoverished simulacra of humanity and, at worst, fundamentally incorrect. More remarkably, the conception of creativity as framed in the TK discourse is revealed to be a more accurate characterization of human creativity.” [87] Psychologists’ studies on the science of creativity support the conclusion that cognitive work and creation are largely collective endeavors shaped by cultural contexts. [88] Notwithstanding the communal nature of creation, the binary discourse over the protection of TK is not constructive. That discourse generally pits Western views of creation and ownership focused on individuality against indigenous views of creation and ownership focused on communal creation. [89] In reality, creation is both communal and individual. The view of TK as a communal creation based on cumulative innovations aligns closely with how many creations happen, from movies to architecture. Corporations are the perfect example of communal creation of ideas, inventions, and works. While conventional IP laws have adapted to recognize corporate IP ownership under work-for-hire doctrines, they largely fail to recognize indigenous communities’ collective ownership over TK and TCEs. [90]