Friday, March 26, 2010
Cultures live and cultures die. Cultures live by the transmission of law, knowledge, land, and resources from one generation to the next. Cultures die, in large measure, because of exploitation of peoples and the knowledge they possess. In reality, cultures are constantly under attack from politically-oriented societies bent on exterminating, exploiting, or commercializing any culture that is different. Commercialization or commodification of culture is akin to collecting culture for purposes of exploitation, observation, voyeurism, and objectification. The western approach to globalization is keen to recognize culture as an object rather than as a living, evolving organ to be shielded from exploitation. To respond to western commodification of culture, this article proposes that legal pluralism is necessary, in the interim, to protect culture from those who would, without authority or justification, exploit it and reduce it to a short term and short-lived commodity. The proposal to indigenize intellectual property law is for sure only an interim measure to protect Indigenous resources up to and until Indigenous Peoples has fully realized self-determination. In addition, the interim nature of this proposal reflects the legacy of colonization, with its complex extra- and intra-Indigenous power-oppression relationships. Because Indigenous Peoples are rarely in a position to exercise rights from a position of power, there is always risk in proposing legal rules or models for protection that may not fully account for the complex legacy of colonization. With this in mind, this article proposes that legal pluralism is one workable interim means to indigenize western intellectual property law in order to provide essential protections against the ongoing obliteration of Indigenous Peoples’ rights, identity, and resources.
Download the article from SSRN at the link.