Forcing a Western IP regime onto Indigenous Communities leads to Commodification of traditions

The gap that exists between Western intellectual property regimes and traditional works reflects, in part, a tension between a market culture and a communitarian, gift-based culture. 102 Western intellectual property regimes incentivize creation for a market economy. 103 In the Western system, intellectual property rights "connote that the property has value as a means to accumulate more wealth or money." 104 In this way, works protected by Western intellectual property laws are useful in any context; they possess a market value separate and distinct from [*88] culture. 105 In contrast, indigenous peoples' traditional knowledge is borne of a community economy, which emphasizes qualities such as sharing within the community, where members benefit from reliance upon others. 106 Rather than seeking to commercialize traditional knowledge, indigenous groups generally desire to assert ownership and control over it in order to protect it. The goal is to preserve the integrity of the knowledge and to keep it safe from appropriation, destruction, deformation, and extinction. 107 Thus, transplanting a truly Westernized system of intellectual property to an indigenous community will likely "lead to economic transformation or adoption of the market form exactly among those people whom it is said to protect." 108 This could mean, for many indigenous groups, an unwanted departure from tribal culture and tradition. Moreover, indigenous intellectual property need not be "incentivized" in the same sense as Western works because, in part, much of the traditional knowledge that indigenous communities seek to protect already exists. 109 This is not to say, of course, that traditional knowledge need not be incentivized at all. Traditional knowledge is not static, but exists as a living, breathing entity within the indigenous world. 110 Its constant recreation is necessary to keep the works alive and relevant to the changing circumstances of the tribe. 111 The keeper of sacred songs or stories may infuse that knowledge with new meaning to keep the ceremonies strong. Thus, holders of traditional knowledge, though not motivated by the same incentives at work in a market economy, are nevertheless inspired by unique, community-based goals to constantly [*89] re-create and re-envision their works. 112 Another reason why tribal law, rather than top-down models, should supply the framework for protecting intangible cultural property is that controversial proposals for the protection of traditional knowledge are now being introduced at the international level. For example, there is currently a strong push to create databases for the protection of traditional knowledge. 113 One author contends, for example, that knowledge from communities wishing to participate in the project should be catalogued and deposited in a restricted access database. Each community would have its own file in the database. The system would serve many purposes. Checks would be made to see whether each entry is not already in the public domain and whether other communities have the same knowledge. 114 While the efficacy of such databases is apparent - there is a value, after all, to articulating, organizing, and putting others on notice of protected materials - such proposals have been met with opposition in some indigenous communities. 115 Opponents believe that databases will only make it easier for those who wish to exploit cultural heritage and appropriate secret and sacred traditions. 116 They question how the disclosure of a tribe's sacred or confidential knowledge could possibly protect it from infringement, with one scholar calling the proposal "entirely wrong-headed." 117 The idea of disclosing traditional knowledge within a public forum - even one with controlled access - represents a risk of exploitation and destruction that is, for many, far too great. 118