the aff is an unneffective method at protecting IPR – we need to go beyond the restrictions of the status quo and create new frameworks

The point is that intangible property – information – is given certain degrees of protection depending on the nature of the information and overall social goals. The default position is that information is free for anyone to use as he or she will. With trade secret law, society seeks to improve economic efficiency with respect to information that, in any event, would not be made available to the public, by reducing the effort the possessor of the information must make to keep the information of value. With trademark law, society cabins off a tiny bit of information so that it can serve a signaling function for offerors of goods and services and their customers. With patent and copyright, society seeks to supply an incentive to create new and desirable works, with the details depending crucially on whether the information relates to technological function or to the nonfunctional world of art, literature, and music.19 Thus, any call to protect information that does not fall within traditional information-protection regimes needs to supply a reason both for protection at all and for the specific scope and duration of such protection. We do not believe that a single rationale exists for protection of a broad category of information under the rubric of “indigenous cultural heritage.” We do believe, however, that reasons can be given for a degree of protection of specific types of information that many would classify as “indigenous cultural heritage.” It is simply a matter of articulating the need for protection in terms beyond “I would like to have exclusive rights in X.” (We would each like to have exclusive rights to, say, the works of Shakespeare.) Once the necessity or desirability case has been made, we can set about limiting both the scope and duration of protection to meet the articulated need, subject to countervailing interests of the public for allowing the information to remain in the public domain. The basic problem for cultural heritage protection does not, therefore, lie in the absence of a known single author or group of authors. If a legitimate basis for protection can be articulated, it is relatively easy to write statutory language that accomplishes the task.20 Similarly, the problem does not inhere in the absence of a writing or other fixation of the work, such as stories handed down by means of oral tradition. While it is true that the United States does require fixation for the attachment of federal copyright protection, most countries do not have a fixation requirement, and even within the United States unfixed works may be protected, at least against unauthorized publication, by state law.21 The real problem for intangible cultural heritage protection, as a general matter, is that it requires us to go beyond patent and copyright, and beyond the default position that information is in the public domain, to protect information for an indefinite, potentially infinite, time. We know why nonprotection is the default position for information, and we know why (more or less) we make limited exceptions to that position for patent and copyright. If we are to go beyond the boundaries of these two paradigms, we must know why we are doing so.22