Don’t throw the baby out with the bath water! The perm assumes the neg’s links – IP may have originated in Western societies but it can be expanded to accommodate Indigenous knowledge protections. Anything else denies Indigenous people a valuable legal tool against appropriation.

Intellectual property and human rights make strange bedfellows. Or, at least, so one would have thought until recently. Within a context of globalization and the increasing commodification of content, intellectual property and human rights are interacting in a variety of fora in unexpected ways. The definition and scope of intellectual property and associated laws are under intense debate in the emerging discourse surrounding intellectual property and human rights. These debates primarily arise within the context of indigenous peoples' (2) rights to protection and ownership of culturally specific "properties," (3) including arts, sacred works and knowledge, biocultural knowledge, ethnobiological knowledge, and cultural expressions. Participants in the ongoing theoretical debates decidedly differ over whether intellectual property rights are the appropriate mechanism by which such cultural works or embodiments should be protected. Some authors argue for a new legal regime specifically designed for indigenous peoples to protect and benefit from the expressions, knowledge, and works of their culture. (4) Others argue that property laws themselves should be sufficient. (5) Still others argue that natural resource laws can serve as a vehicle for the protection of cultural properties from exploitation by third parties. (6) Problems commonly outlined by these authors are significant, and dislodge some of the rooted legal operatives of intellectual property laws. (7)

However, if one deals with intellectual property exclusively as a subject matter, rather than a bundle of specific legal operatives established in international and domestic legal systems, the inclusion of indigenous peoples' cultural and scientific knowledge, expressions and artistic and literary works fits squarely within that realm. It is true that intellectual property laws are based on Western, developed markets, Western concepts of creation and invention, and Western concepts of ownership (as evidenced even by the use of the term "intellectual properties"). (8) But whatever their origins, the fact remains that those laws have been, and currently are, the primary vehicle for the protection of artistic, literary, and scientific works worldwide. To segregate indigenous interests from this international legal regime, particularly in light of increasing globalization of markets and commodification of content, is to deny indigenous peoples both a powerful legal shield and a powerful legal sword. It is essential that, when found inadequate or inapposite, intellectual property laws are not discarded, but rather adapted to accommodate indigenous situations.

The intellectual property legal regime is a powerful one, its component parts comprising a complex body of law, an existing mind share, and a cache--all of which have developed over the years, and from which all peoples should benefit. Thus, if the workings of the intellectual property machine involve culturally-specific components, that machine should not be discarded when it is found ineffectual for all cultures; rather, the machine should be reconstructed such that it works for all cultures. The inclusion of indigenous peoples' cultural knowledge, inventions, expressions, and works within an intellectual property regime requires some rewiring of the parts, but does not diminish the potential legal value of the machine itself. This Article discusses the means by which indigenous interests can, and should, be incorporated into intellectual property law. (9) Copyright laws, in their current formulation, are inadequate to protect the fruits of human creativity of indigenous peoples. Thus, I will argue that copyright laws can, and must, be expanded in three ways so as to protect and maintain the vitality of the artistic and literary works of indigenous cultures: incorporating collective and communal authorship; expanding originality requirements to reflect collective and communal authorship; and applying limits on the duration of protection in a broader community context. I also propose that a variety of intellectual property mechanisms be drawn upon to provide special protection for "sacred" cultural works. In Part One, I use the debates over terminology to illuminate briefly some of the cultural issues at play with respect to the protection of the literary, artistic, and scientific works of indigenous peoples. In Part Two, I discuss the parameters of "intellectual property" and introduce the concept and operation of copyrights. In Part Three, I argue that the legal construction of authorship within the copyright context must be expanded to accommodate indigenous interests. In this Section, I examine in detail notions of authorship as they are embedded in intellectual property law and show that they run contrary to fundamental principles of authorship held by indigenous peoples. I argue that authorship must be reconstructed to accommodate cultural difference. I discuss developments toward that end in Australian case law and suggest additional intellectual property concepts that can be drawn upon to further that objective. In Part Four, I address the need to recast originality requirements to reflect an expanded notion of authorship, and in Part Five, I explore the various alternatives to basing the duration of rights on the "life of the author" within this expanded framework, noting both practical and policy conflicts over the duration of rights. Finally, in Part Six, I advocate special protection for sacred cultural works, and explore some of the already established legal mechanisms, in addition to copyright, through which this protection can be sought.