A sui generis IP regime fits the needs of indigenous people better and its feasible – empirics

Many scholars have also argued for a sui generis intellectual property regime at the federal level that would address the special needs of intangible indigenous cultural property. Lucy M. Moran, in her article Intellectual Property Law Protection for Traditional and Sacred "Folklife Expressions" - Will Remedies Become Available to Cultural Authors and Communities?, suggests a system that would "conceive of regenerated folklife expressions as falling within the copyright category of "derived work' at the end of a statutorily defined time period, such as 100 years, [and be] automatically registered to a "new author,' the several subsequent generations of a regenerated folk community." 90 Professor Riley has proposed an Indian Copyright [*96] Act that would protect oral literature by defining the parameters of a "collective indigenous work" not subject to traditional copyright requirements. 91 This collective work would be inalienable by individuals and its scope would be determined by individual tribes. 92 Others have argued that a law reflecting international intellectual copyright laws would be more appropriate. In Owning the Sun: Can Native Culture Be Protected Through Current Intellectual Property Law?, Jill Koren Kelley explains: "Moral rights", also known as the "droit moral," reflect a view that a creator deserves respect for ingenuity and entitlement of inalienable rights to: be recognized as the author of a work; enjoy identification as the author; and to prevent others from modifying, distorting or otherwise interfering with the integrity of that work. These rights vest in the artist independently of the physical object. 93 Supporters of a moral rights framework feel that it provides a better fit to Native cultural rights because the protection is based on the idea that infringing upon and distorting the work of another is inherently morally wrong, as opposed to a basis in economic rights. 94 Professor Farley suggests looking to several models of international cultural property protection that have been developed. The first, the Tunis Model Law on Copyright, written in 1976 as a model for developing countries, 95 explicitly addresses folklore, giving it perpetual protection. 96 The second, The Model Provisions for National Laws on Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions, was created through a collaboration of the World Intellectual Property Organization (WIPO) and the United Nations Educational Scientific and Cultural Organization (UNESCO) in 1982. 97 The model provisions would cover a number of issues necessary to protect intangible indigenous cultural property, including recognizing collective ownership, granting perpetual protection, and foregoing traditional copyright requirements of fixation. 98 Besides providing guidance for possible legislation in the United States, both of these models, along with 1993's Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous People, 99 demonstrate the global need to address these issues, and the increasing awareness of them worldwide. Intangible indigenous cultural property protection through a federal statute [*97] could take a number of forms. Examining some of the federal laws that have already attempted to address some Native cultural issues might give us an idea of what such legislation could look like. The Indian Arts and Crafts Act of 1990 100 ("IACA") created an Indian Arts and Crafts board for the purpose of receiving and investigating complaints of people misrepresenting products as authentically Indian-made. 101 It also creates a cause of action for Misrepresentation of Indian Produced Goods and Products. 102 While the IACA only deals with tangible cultural products that are sold for profit, more directly addressing the concerns of those in the realist camp, and does not apply to those cases where someone creates a craft that looks Native in origin but does not claim to be authentic, its recognition of the need to protect Indian-made arts and crafts is a step in the right direction. The Native American Graves Protection and Repatriation Act ("NAGPRA"), also passed in 1990, provides a useful model as well. 103 This statute, which repatriates and protects human remains, sacred objects, and Native American cultural patrimony found on federal lands, creates several schemes that could be helpful in the protection of intangible cultural property. According to Lucy Moran, "NAGPRA demonstrates that the American legal system is capable of forging a definition of "sacred.' 104 … Trademarks remain protected as long as they are in use, and NAGPRA uses a similar concept in defining a "sacred object' as one in current use." 105 NAGPRA also distinguishes itself from IACA because it has actually been enforced on several occasions. In U.S. v. Carrow, a case not unlike Chilkat Indian Village v. Johnson, an ancient artifacts dealer was prosecuted for illegally trafficking in Navajo cultural patrimony. 106 While NAGPRA deals exclusively with tangible cultural property, it is not difficult to imagine a similar piece of legislation that could apply to less tangible sacred objects and cultural patrimony. It has also been proposed that a jurisdictional statute, like the Indian Child Welfare Act ("ICWA") 107 , is a possible solution. 108 As argued previously in Part II, Section A, tribes are in the best position to evaluate the damage done by an act of appropriation. 109 Such an act could be constructed in a number of ways, perhaps establishing a definition for cultural property that would cover certain intangible elements and giving tribal courts concurrent jurisdiction or a right to intervene in specific kinds of civil actions.