Indigenous people are demanding expanded copyright eligibility. Allowing creative uses of the law is vital to protection of cultural survival

Over the last few decades there has been an outcry in the United States, Canada, and Australia for governments to do something to protect indigenous communities from the poaching of their artworks.

Naturally, indigenous peoples and advocacy groups are concerned about this problem and have sought legal avenues of redress. In an effort to prevent the appropriation and manipulation of their cultural images and texts, indigenous peoples, fighting for their cultural survival, are increasingly turning to intellectual property laws to protect their cultural heritage from external poaching.** Significantly, indigenous groups are willing to participate in the western intellectual property rights scheme from which they feel they have been excluded and therefore disadvantaged. They have invoked intellectual property laws to use as a shield to prevent further intrusions into their already pillaged culture.

Indigenous peoples seek to use these intellectual property laws in an effort to control and restrict the flow of images, thereby securing the meaning of their art. They want to be able to deny certain uses of their art, especially those that would amount to spiritual violations.

They also want the ability to authorize certain uses of their art. They want to end the current situation in which only non-indigenous peoples are making money off their culture. Therefore, they want the ability to license certain uses and to collect royalties. They want to be able to authorize those uses of their art that would celebrate their culture and to use certain mass media imagery as a means of articulating their community identity to the outside world. As the leader of one of the Aboriginal rights groups made explicit, they want to use copyright law to "tak[e] back" their culture.S!

What to the consumer market may look like the same problem actually involves two different sets of concerns. First, some indigenous peoples want to be able to benefit from the economic rights provided by intellectual property laws. They want to be compensated for their contribution to the artwork through licensing, and they want to exclude non-indigenous competitors from the market by preventing unauthentic products from being marketed as made by indigenous people. Assuming that the circulation of indigenous art is inevitable, some indigenous artists want to be sure to participate in this celebration of indigenous culture. By gaining control over the circulation of their imagery, they want to ensure that the public gets an accurate account of indigenous culture and that the investment in that culture goes back to their communities. These concerns are illustrated in the first example described at the beginning of this Article involving the use of the Navajo rug patterns. Perhaps a subset of this group is the individual artists who want to be able to draw on and develop the imagery of their ancestors in a way that may lead to commercial success. Throughout this Article, I will refer to this first group as the "realist group."

But the second set of concerns is more profound. Some indigenous peoples also want to use intellectual property laws to prevent what may be characterized as a cultural or psychological harm caused by the unauthorized use of their art.2 They see intellectual property laws as offering a means to control the circulation of their art. They want to be able to restrict its dissemination and, in some cases, prevent dissemination altogether.$3 They fear for the well-being of the indigenous community in the face of commercial exploitation, and they worry that the expropriation of their living culture will cause their imagery to lose its original significance which will lead to a disruption of their practiced religion and beliefs and a dissolution of their culture. These concerns are illustrated in the second example involving reproduction of sacred imagery on carpets. I will refer to this second group as the "traditional group."