Intellectual property is not a monolith. Their links totalize.

But IP rights are not purely about commercial transactions. Copyright law, which protects literary and artistic works, has both economic and dignitary aspects. For example, the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention) recognizes moral rights, such as the right of the author to be named.22 The TRIPS Agreement, which emphasizes the economic utilitarian approach to IP protection, expressly excludes the protection of moral rights as an obligation. In addition, the TRIPS Agreement clarifies that copyright protection extends to databases. 23 This is not because databases have creative value, but rather because they have financial value. If these databases clearly met the standard requirements for copyright protection, there would be no need to specifically state in TRIPS that databases should be protected by copyright. They may not be sufficiently original and creative, but the copyright protection offers an economic incentive to compile databases. Though there were not many substantive changes to copyright under the TRIPS Agreement, the inclusion of databases and the exclusion of moral rights are illustrations of a willingness to expand the economic aspects of copyright while excluding the dignitary aspects.

The inclusion of geographical indications in the TRIPS Agreement was a significant addition because before the TRIPS Agreement, geographic source indicators had not achieved international acceptance. Prior agreements that protected appellations of origin, such as the Lisbon Agreement for the Protection of Appellations of Origin and Their International Registration (Lisbon Agreement), had relatively few parties. 24 Appellations of origin can be described as the predecessor to geographical indications, but the Lisbon Agreement has only thirty-one signatories as of 2021 and had even fewer when TRIPS came into effect in 1995.25

By comparison, the Berne Convention, which covers copyrighted works, and the Paris Convention for the Protection of Industrial Property (Paris Convention), 2 6 which addresses trademarks and patents, were widely accepted conventions. 27 While geographical indications, which are a variation of appellations of origin, had some recognition, the WTO significantly extended their reach. Importantly, the TRIPS Agreement was mandatory for all WTO members, which meant that member states could not opt out. Including minimum standards of protection for geographical indications was, therefore, a significant achievement. The inclusion of geographical indications in the TRIPS Agreement facilitates the protection of European cultural heritage, particularly with respect to the names and production methods for wines, spirits, and foods.

While the TRIPS Agreement extended protection to geographical indications and created harmonized standards for the classic forms of IP, traditional knowledge remains unprotected at the international level. There are many objections to protecting traditional indigenous knowledge, but the main objection to offering protection analogous to IP is that traditional knowledge does not fit within the traditional models for IP. For instance, copyright protection applies to literary and artistic works, but the works must be original, meaning that they are independently created and enjoy a modicum of creativity. However, a traditional cultural expression, such as a totem pole, becomes "traditional" because it is an accurate copy and not an original work. Furthermore, intangible cultural heritage is, by definition, communal rather than individual, but classic IP does not recognize the communitarian model where there is no identifiable individual creator. In addition, copyright protection is time limited, whereas intangible cultural heritage may require protection over a period that covers multiple generations. Trademarks can last indefinitely, as long as they are being used. However, trademarks for collective identity are not protected unless that identity is being used in commerce as a source indicator.

The traditional IP models were developed from a Western perspective, including Western concepts of ownership, which means that alternate approaches to intangible rights are unlikely to fit easily within the regime. For example, the focus under the current IP model is to protect and incentivize innovation. It is less inclined to focus on a communitarian model or a model that protects non-commercial identities. This can be a difficult barrier to overcome. If existing IP structures are based on a western model, it is not surprising that an alternate model that protects traditional knowledge would not meet the criteria established by the current model.

This failure of traditional knowledge to meet the existing criteria is then provided as a justification for not protecting traditional knowledge or other intangible indigenous cultural property. Yet, IP laws are not static, and the same IP model is expanded when there is a desire to expand it, even if the claimed justifications are not objectively supported. In addition, it is not clear how much IP protection actually incentivizes innovation. Some authors have argued that, at least in some industries, innovation flourishes where there are minimal IP rights.28

III. Collectives and Corporations

The objection to traditional knowledge as a collective right is an example of the way IP prioritizes the interests of major corporations. Prioritizing group interests raises some legitimate concerns about whether the group will oppress individual liberty. However, the law has demonstrated its capacity to address collective interests as well as individual rights. For example, if the collective is organized as a corporation, the questions relating to groups seem not to raise the same concerns. The leadership and structure of a corporation are made clear through corporate document. The leadership and structure of a cultural group that is claiming cultural IP rights can, and should, also be made clear. Importantly, the collective, structured as a legal corporation, does not become inherently more or less oppressive simply because it is commercial rather than cultural in its focus.

What we protect and how we protect it also has implications for who we protect. This is where the classic IP narrative enables the protection of major corporations and those who are well-informed and benefiting under the existing system. When looking at why we are willing to protect certain kinds of intangible goods but not others, it is impossible to simply dismiss the lens that Vats applies in her explanation of IP laws in the United States as a story of racial capitalism 29 and the systematic exclusion of people of color. The question we must ask is: what makes the economic, commercially driven model of IP justifiable, whereas a cultural or dignitary model is not acceptable? The analysis of this question is affected by original assumptions made by those who were most influential in creating the relevant legal structures. The current international IP system has not been structured with a view towards human rights, nor to the interests of collective groups or developing nations. Instead, it protects the national and international commercial interests of wealthy, industrialized countries.

International IP dearly protects commercial identities in the form of trademark and geographical indications. However, before IP law will protect cultural identity, those advocating for its protection are asked to identify the economic value that can be attached to these identities. We are also asked to explain how cultural identities, traditional knowledge, and traditional cultural expressions can be justified under labor or incentive theory. The argument is that these are not innovative, or creative works, and that there has been no labor invested in these creative creations; therefore, they should not be protected. Why, we might ask in reply, is labor theory the standard? Moreover, labor theory is not a consistent justification or rationale, because even when it comes to inventions and creative works, there is no requirement to demonstrate a significant investment of labor before IP protection becomes available. Nor do we give longer terms or broader rights to an invention that requires more investment in time and resources than we do to an accidental invention. Furthermore, it takes work to maintain one's identity, whether individual or collective.

The truth is that we could reject labor theory completely. Insisting on labor or incentive theory reinforces a structure that justifies property from a particular perspective. For instance, the Lockean notion that when you labor with something you take it out of the common state and can appropriate it to yourself is very much an individualistic approach, and not one that embraces a communitarian or collective vision. By default, this approach works against collective cultural identities as well as traditional knowledge and cultural expressions. Yet, this is not the only possible approach to IP rights. Indeed, IP rights are often justified based on labor theory, or utilitarian economic incentive theories. But other theories, such as human rights and human flourishing, could be integrated into the mainstream IP models. One way to shift the current model to one that is more inclusive of diverse cultures is to challenge the legal justifications and theoretical barriers that exclude recognizable cultural identities from obtaining legal protection because of their poor fit into an IP model that has yet to embrace diverse perspectives.

CONCLUSION

This essay has assessed the ideas of The Color of Creatorship from an international perspective, focusing on traditional knowledge and intangible cultural heritage. The challenge in obtaining international protection for traditional knowledge, despite decades of negotiations, is an example of the race-based critique that Vats presents in her book. While the critical traditional knowledge literature tends to be based on TWAIL and anti- colonial narratives, critical race theory and TWAIL both offer a structural critique that demands that human beings are placed at the center, regardless of race, color, or creed. Vats invites us to re-think the structure of IP law. Ultimately, what Vats proposes fits within a TWAIL critique of IP. It is also an argument in favor of a human rights approach to IP, in which human dignity is valued within IP law, rather than being subjugated to the commercial interests of multinational corporations.30