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A Framework for Managing Disputes Over Intellectual Property Rights in Traditional Knowledge
Major controversies in moral and political theory concern the rights, if any, Indigenous peoples should have over their traditional knowledge. Many scholars, including me, have tackled these controversies. This Article addresses a highly important practical issue: Can we come up with a solid framework for resolving disputes over actual or proposed intellectual property rights in traditional knowledge? Yes, we can. The framework suggested here starts with a preliminary distinction between control rights and income rights. It then moves to four categories that help to understand disputes: nature of the traditional knowledge under dispute; dynamics between named parties to disputes; unnamed Indigenous claimants; and the various normative systems (for example, custom, U.N. documents, treaties, statutes, administrative regulations) within which disputes are decided. Throughout, examples that inform the framework come principally from Indigenous peoples in the Pacific rim. Lastly the Article tests the framework against some disputes over traditional knowledge in Samoa and New Zealand. This framework is comprehensive and sensitive to context. It is flexible regarding which normative systems are best suited to settling disputes. A test run shows that the framework helps to resolve practical legal issues.
The Discriminatory Effect of U.S. Intellectual Property Law on Black Artists
By: Shelly Feldman, Associate Editor, Vol. 27 In many areas of the law, facially neutral legal doctrines do not affect groups equally in practice.[i] This is well known and documented in America’s criminal justice system, which has historically oppressed racial minorities in disproportionate numbers.[ii] Though less…Disparaging Trademarks: Who Matters
For more than a century, non-majority groups have protested the use of trademarks comprised of or containing terms referencing the group—albeit for various reasons. Under the 1946 Lanham Act, Congress added a prohibition against registering disparaging trademarks, which could offer protection to non-majority groups targeted by the use of trademarks offensive to members of the group. The prohibition remained relatively unclear, however, and rarely applied in that context until a group of Native Americans petitioned to cancel the Washington NFL team’s trademarks as either scandalous, offensive to the general population, or disparaging, offensive to the referenced group. In clarifying the appropriate test for disparaging, however, the decision makers have overly analogizing the two prohibitions, rendering the disparaging trademark prohibition less effective in protecting non-majority groups from offensive trademarks.Protecting Intangible Cultural Resources: Alternatives to Intellectual Property Law
Cultural resources can be defined as "the tangible and intangible effects of an individual or group of people that define their existence, and place them temporally and geographically in relation to their belief systems and their familial and political groups, providing meaning to their lives." The field of cultural resources includes tangible items, such as land, sacred sites, and religious and finerary objects. The field also includes intangible knowledge and customs, such as tribal names, symbols, stories, and ecological, ethnopharmacological, religious, or other traditional knowledge. The tangible cultural resources of tribes can fall under the protection of statutes such as the Archeological Resources Protection Act of 1979 and the Native American Graves Protection and Repatriation Act, 1990 (NAGPRA). The protection of intangible cultural resources, however, is less codified. The provision of legal protection for intangible cultural resources has focused almost entirely on either linking such protection to human rights or defining intangible culture as intellectual property (IP). Early work on defining intangible cultural resources as IP was conducted jointly by UNESCO and the World Intellectual Property Organization (WIPO), which led to the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (1985). Work by WIPO continues today through its Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. This is complemented by a growing body of law, mostly in other countries, using property law to halt cultural appropriation from indigenous communities. However, as it stands, IP law, in general, may be a poor fit for tribes. This Comment explores alternatives that exist in the form of regulation of research and tort actions against researchers who violate these regulations. It is premised on the observation that one of the primary means by which culture has been appropriated from American Indian communities has been through social scientific research. Indians are among the most heavily studied groups in fields like medicine, public health, and, recently, genetics. Yet anthropology, more than any other discipline, has made American Indians the subjects of research.Black Musical Traditions and Copyright Law: Historical Tensions
This Note begins with a discussion of copyright law and then examines Black musical traditions and how they have conflicted with American copyright law through the years. Part I explains the history of American copyright law and its theoretical underpinnings. Part II relates common Black musical traditions in more detail. Part III illustrates how the foundations of Black musical traditions can be found in Negro Spirituals. Part IV outlines the notion of Black music as it evolved in ragtime. Part V describes how copyright undermined the traditions of blues, jazz, and R&B. Part VI explains how rock 'n' roll's prominence embodied copyright's clash with the Black musical tradition. Part VII portrays the history of the hip-hop musical phenomenon and illustrates how copyright's negative treatment of digital sampling continues to denigrate the Black musical tradition. Part VIII discusses the need for a more culturally inclusive copyright regime. Part IX concludes the Note by discussing the importance and benefits of amending the current copyright laws.
