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Looking Beyond Intellectual Property in Resolving Protection of Intangible

Cultural Heritage of Indigenous Peoples
Dennis S. Karjala
Robert Kirkwood Paterson


This article evaluates the various claims and desires of indigenous peoples, and others
whose needs arguably justify specific legal recognition and protection, against the
background of the often conflicting constitutional and social policies that establish the
structural framework of modern democratic societies, paying particular attention to the
policies underlying intellectual property law and the basic human rights of free speech
and free expression. The authors consider the social policy tradeoffs that are involved in
recognizing, or not recognizing, intellectual property rights
in indigenous cultural property.

2. Indigenous Peoples and Intellectual Property

Stephen M. McJohn
Lorie Graham


This paper, following on Michael F. Brown's “Who Owns Native Culture?” suggests
that intellectual property law, negotiation, and human rights precepts can work
together to address indigenous claims to heritage protection.
Granting intellectual property rights in such spheres as traditional
knowledge and folklore does not threaten the public domain in the same way that
expansion of intellectual property rights in more commercial spheres does.


The last few decades have indeed seen a steady increase in intellectual
property protection in every area. Intellectual property laws have been created to
protect indigenous peoples right over indigenous art. But that does not eradicate the
issues on whether indigenous peoples can protect their art and culture under existing
intellectual property laws and whether the intellectual property is really the answer.

In the article of Karjala and Paterson, they tackle the problem by identifying first
the degree of success of the intellectual property law in addressing the current issues.

a. Copyright – it is designed to prevent unauthorized reproduction of artistic works.

Indigenous cultural heritage reiterates the expressions of past generations, and in their
desire to preserve that, indigenous authors will actually limit their eligibility for copyright
b. Moral Rights – offer an adjunctive protection to that afforded by copyright. The right
of integrity lets an author prevent distortion, mutilation, modification or other treatment
of his/her work that is prejudicial to the authors reputation. Indigenous peoples may
think that the right to integrity may offer protection against distortion through
unauthorized use of their cultural symbols. Despite its potential advantage for
indigenous persons, however, moral rights law remains focused on the individual author
and not the community as a whole.

c. Patent Law – insofar as the protection of artistic designs, symbols, literature, or music,
patent law simply does not apply because these types of works are not technological
and are therefore not patent subject matter.

We now deal with the “Indigenous Peoples and Intellectual Property” article.
Brown does not categorically reject the use of intellectual property law to protect
native cultures, despite the many cautions he raises. To the contrary, he suggests that
some judicious modifications of intellectual property law would have a role to play. The
most extended specific proposal he makes is the use of compulsory licensing in the
area of traditional knowledge. Compulsory licensing, the requirement that commercial
interests pay fees in order to make use of the knowledge, would permit payment to
indigenous groups while at the same time permitting the general benefits of
commercialization. But compulsory licensing removes control over traditional
knowledge and cultural elements, leaving only the price to be determined. In the end,
Brown's focus on "Total Heritage Protection" draws attention away from the many
attempts to devise balanced ways to use intellectual property law to protect native
cultures while accommodating other interests.

We therefore conclude that there are no easy solutions against commercial

exploitation of indigenous culture. The real use of these intellectual property laws is to
prevent unauthorized dissemination of their arts, and those indigenous peoples who
want to prevent their art from being used in the commercial world are not satisfactorily
protected by the existing intellectual property regimes. Ultimately, indigenous artists can
adapt techniques and styles from outside their group and incorporate them into new
designs based on their own cultural heritage without harming artistic traditions outside
their group, but proper attribution should be given when an outsider takes one of their
known designs and commodifies it.