Western IP is incompatible with indigenous cultural knowledge and perpetuates dangerous stereotypes of what ‘intellectual property’ is – inevitably leading to cultural impoverishment

B. Intellectual Property Rights Laws Intellectual property rights laws exist in most countries of the world and Western concepts of intellectual property rights usually prevail in national laws. 38 "These concepts are based on the idea that innovation is the product of the genius of individuals. Such people, by sharing the fruits of their genius with society are deemed to be deserving of economic rights granted by the state on behalf of society." 39 Since the United Nations World Intellectual Property Organization conception of intellectual property rights in the is based upon the philosophical model of the individual, there exists a major paradigmatic dissonance that results in intellectual property rights law being insufficient for representing indigenous interests since indigenous peoples' philosophy and traditional knowledge is considered collectively created and owned by an entire tribal unit. Consequently, Western individualized intellectual property rights can pose a threat to indigenous cultures. Forcing collective tribal cultural resource rights to fit into a framework that was meant for individuals' property rights is difficult, undesirable, and sometimes impossible for tribes. Not only do intellectual property rights have to be acquired by a process that can be difficult, time-consuming and expensive, but they also have to be defended. 40 Acquiring and defending intellectual property rights protection requires access to information, good legal advice and financial resources, all of which may be beyond the reach of many indigenous peoples. 41 Within the system of intellectual property rights, patents, trademarks and copyrights are some common forms that IPR can take, each having a specific market application. Patents confer the right to secure the enforcement power of the state in excluding unauthorized persons, for a specified number of years, from  [*668]  making commercial use of a clearly defined invention. 42 They can be used on products such as new pharmaceutical drugs. Because of the array of biodiversity that exists in indigenous territories such as forests, many companies will send a researcher there to attempt to find "new" plants that cure ailments. This has been a continuing practice, one that is very detrimental to indigenous peoples, in which companies patent seeds, genes and other parts isolated from flora that have been cultivated by indigenous people for thousands of years, in some cases effectively eliminating a tribe's ability to use them. Vandana Shiva makes the point that, "Patenting living organisms encourages two forms of violence. First, life-forms are treated as if they are mere machines, thus denying their self-organizing capacity. Second, by allowing the patenting of future generations of plants and animals, the self-reproducing capacity of living organisms is denied." 43 Copyrights are intended to provide legal protections for authors of literary works, dramatic and musical works, artistic works and works of applied art, maps and technical drawings, motion pictures or sound recordings. 44 These protections include allowing the author to take legal action to stop others from copying or reproducing the work, performing the work in public, making a sound recording of the work, etc., for a specified period of time. 45 These may be useful to a tribe, but copyrights are still intended for individuals or companies, and are difficult to apply to the cultural rights of an entire tribe, or unit within a tribe. Many of the cultural rights protections that tribes seek are meant to be enjoyed in perpetuity, not for a limited amount of time. Certain aspects of culture, such as oral tradition, known in Western parlance as expressions of folklore, evolve as time moves forward, making copyrights inapplicable to the issue of protection of indigenous peoples' cultural rights. Trademarks are generally for company logos or company or product names. They protect the owners of the trademarks from other entities using their words or images in advertising a product. 46 There may be some instances when trademark protections can assist the cultural protections sought by tribes. An "indigenous alliance consisting of representatives of different communities selling similar products could register a trademark  [*669]  that could be used by participating communities." 47 This may work for some tribes, but it will certainly not apply to the majority of tribes. In the case of the people of the Zia Pueblo, as documented by Michael F. Brown in his book, Who Owns Native Culture?, the tribe has been involved in a long dispute with the State of New Mexico and private companies that exploit their sacred Zia sun symbol for personal gain, and private and commercial use. 48 The Zia sun symbol appears on the New Mexico state flag. As a result of this ongoing conflict, PL105-330 was passed, "which called on the U.S. Patent and Trademark Office (USPTO) to examine its policies relating to the official insignia of Indian tribes." 49 Although the tribe still cannot claim the sole ownership of its symbol, the State of New Mexico issued a joint memorial that "acknowledges that the sun symbol belongs to the Pueblo of Zia, that they appropriated the symbol without proper permission and authority." 50 The Zia Pueblo tribe has not reached a settlement that allows their sacred cultural property to be protected, and its use continues to be abused, to the detriment of the tribe. 51 Intellectual property rights and the components of intellectual property rights, including patents, copyrights and trademarks, are inadequate to deal with concerns specific to indigenous cultural rights as they exist in the current system of laws and international trade agreements. Because they are based upon individuals' rights rather than the collective rights recognized by tribes, and cannot equitably address the close relationship of traditional indigenous values to their lands, intellectual property rights can actually be more damaging than useful. Michael Brown asks, "How can we promote respectful treatment of native cultures and indigenous forms of self-expression within mass societies?" 52 The answer to this question remains to be found. Vandana Shiva objects to intellectual property rights as they stand today, and states that they will inevitably lead to intellectual and cultural impoverishment by displacing other ways of knowing, other objectives for knowledge creation, and other modes of knowledge sharing … . Central to the ideology of IPRs is the fallacy that people are creative only if they can make profits and guarantee them through IPR protection.  [*670]  It negates the creativity of those not spurred by the search for profits. It negates the creativity of traditional societies. 53 For indigenous people, traditionally, the concept of private property is not equivalent to the Western concept. In general, indigenous peoples' worldviews hold communally owned property and stewardship as paramount. While tribes must navigate their people through a changing world, it is imperative to retain core values that can remain unaltered by colonization. This is a key concept of decolonization and also an underlying substrate of the language and landscape of indigenous cultural rights.