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Monday, 8 February 2016

Book Review: Indigenous Intellectual Property

Almighty tomes occasionally cross this Kat's desk for review, and she was very excited to receive her copy of Edward Elgar's Indigenous Intellectual Property. Part of the publisher's series of research handbooks on IP, this book, "considers the international struggle to provide for proper and just protection of Indigenous intellectual property (IP)" and is a collection of chapters by experts in the field.

This Kat is very pleased to see more attention devoted to this area of law and policy.  Many of the authors will be well-known to readers from their work in other parts of IP.   The book covers the major IP rights (patents, trade marks, copyright, design, and related rights), in addition to privacy law and identity rights. The strength and high concentration of Indigenous IP researchers in the Australasia region is reflected with a number of chapters looking at Australia and New Zealand. Slightly closer to this Kat's childhood home, a chapter on governance challenges in Canada analyses the Vancouver 2010 Olympic "Ilanaaq the Inuskshuk" logo, which borrows heavily from Nunavut official flags.  The authors note, with some irony, that the Aboriginal peoples of Canada were not allowed to use the logo under the Olympic and Paralympic Marks Act.

Some more from the publisher:
This Handbook considers the international struggle to provide for proper and just protection of Indigenous intellectual property. Leading scholars consider legal and policy controversies over Indigenous knowledge in the fields of international law, copyright law, trademark law, patent law, trade secrets law, and cultural heritage. This collection examines national developments in Indigenous intellectual property from around the world. As well as examining the historical origins of conflicts over Indigenous knowledge, the volume examines new challenges to Indigenous intellectual property from emerging developments in information technology, biotechnology, and climate change.
This book joins other titles in series, edited by founding Kat Jeremy Phillips, including Research Handbook on the Future of EU Copyright by Estelle Derclaye and the Research Handbook on Cross-border Enforcement of Intellectual Property by Paul Torremans.

Bibliographic information: Indigenous Intellectual Property: A Handbook of Contemporary Research,  Research Handbooks in Intellectual Property series. Edited by Matthew Rimmer, Professor of Intellectual Property and Innovation Law, Faculty of Law, Queensland University of Technology (QUT), Australia, 2015, 752 pp, Hardback, available for £175.50, E-book available February 18th for £48.00

8 comments:

Nicola said...

I forgot to mention how much I love the cover art. It's called Michael and I Are Just Slipping Down to the Pub for a Moment, and is by Australian artist Lin Onus. More here: http://dreamdogsart.typepad.com/art/2007/07/lin-onus-michae.html

The Pigs said...

What does the topic ("the international struggle to provide for proper and just protection of Indigenous intellectual property") even mean?

Who (exactly) is deciding the meaning of "proper and just" and under what established conditions of authority?

How is the oxymoron of "indigenenous intellectual property" even being construed? After all, what people typically think of as "indigenenous" is that which belongs to the commons, but having a certain geographical or homogeneous cultural loci. But (at least from the perspective of the "ugly americans"), anything "in the commons" is free to use by everybody - and exhibits a LACK of being labeled "property" and that which that label denotes (the ability to keep others from freely using).

This smells like more of the liberal paternalism that wants limitations imposed based on a liberal dogma of elevating certain things to a "you cannot use this" status.

I would daresay that this just boils down to a less "elevated" view of simply not allowing items already in the commons to be taken out of the commons. Such is far less "proper and just protection" and (merely) far more simply applying those laws already on the books that grant IP protection properly.

Nicola said...

I think you'll have to read the book to find out.

Pandemonium said...

Re: The Pigs

If you have a look at the law of Native Title in Australia you can see that efforts there, as well as in Canada, are largely directed towards trying to implement the traditional law of indigenous communities in the rigid western systems.

I recently attended a hearing for a native title determination near Darwin and it really showed the difficulties of communication between the communities, which have an understandable position of "We have lived on this land for a provable 10,000 years, this is our land to care for and we determine who does what", and the commonwealth's desire to administer those expectations and rights within the Australian legal system.

I wouldn't be surprised if following Native Title Land Rights, there will be a big push to implement similar rights over the use of sacred art, names and plants, which have a similar sacred/restricted place in indigenous law as the activities and rights over land, in corresponding intellectual property law.

This might start with a common law extension of trade secrets to cultural secrets, implying a duty of care to initiated persons (a big problem that has already occurred multiple times with anthropologists and pharmacology researchers). Or perhaps a "Native Mark" protection, for marks that have been demonstrably used in a restricted manner, to provide opportunities to enforce those restrictions in court.

It's an area that requires an uncommonly flexible legal mind that can look beyond provisions towards intent. I am personally very impressed with the Judges that handle these cases in Australia.

The Pigs said...

Thanks, but with the information given, I am simply not inclined to read the book at all.

Peter Bonetti said...

"This might start with a common law extension of trade secrets to cultural secrets, implying a duty of care to initiated persons (a big problem that has already occurred multiple times with anthropologists and pharmacology researchers)."

But they are not secrets, so should not be afforded protection as such. I should also be interested to hear what "problems" have arisen out of use of this sort of information by pharmacology researchers - they haven't had the temerity to try to turn this stuff into actual medicines have they?

I entirely endorse what has been said above by the The Pigs. "Indigenous" public information (however one is supposed to decide what that is) is worthy of no greater protection than any other public information. By way of your own example, the restriction on use of the Vancouver logo is no more objectionable than the blanket ban on the use of "London 2012" - the problem, such that there is one, is the incredible protections that are afforded to the IOC and has nothing to do with "indigenous" IP at all.

The Pigs said...

Pandemonium,

Thank you for your reasoned tone and rational response.

You have indeed identified a sticking point (trying to implement the traditional law of indigenous communities in the rigid western systems), but to me a critical element here is the initial presumption that the "traditional law of indigenous communities" trumps or overrides the law of the land.

This (at least here in the States) is typically the mantra of the revisionist liberal mindset that simply wants to disregard the plain fact that the law of the land IS the law of the land. There is simply too much of the liberal paternalism that the current laws of intellectual property MUST be wrong and must change in order to "honor" the previous indigenous peoples.

What is NOT looked at in this rush to "honor" is the very notion of what "property" means (especially in the context of IP - and the limited times notion of that property). The entire notion that something can belong freely to the commons but cannot be used by anyone outside the control of some select group simply collide. Here (at least) in the states, most** notions of intellectual property have a bedrock condition of limited times. Almost ALL of the items that are being classified as "indigenous rights" have long passed those timed protections.

**The exception of course is the trademark realm, which operates from a different part of the US constitution. But even that realm has rules of "genericide" and rules governing what may be applied for to obtain protection in the first instance and (again) most of what is being sought to be "protected" will not earn that protection in the trademark realm.

What is really happening here is a culture battle being clothed (improperly) in IP clothes.

To me it is absolutely critical that we stop pretending otherwise. As I indicated, I have lost any interest in reading a book that so apparently perpetuates a false premise. I simply have no tolerance for such liberal revisionism.

You may have my sympathy for recognition of culture, but you have NONE of my sympathy for the attempted means which only muddle intellectual property. To piggyback on a current meme in the US patent blogosphere, the ends do not justify the means.

FOARP said...

"I wouldn't be surprised if following Native Title Land Rights, there will be a big push to implement similar rights over the use of sacred art, names and plants, which have a similar sacred/restricted place in indigenous law as the activities and rights over land, in corresponding intellectual property law."

Why not simply enact a blasphemy law?

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