The Case Against Property Rights in Old Intangible Indigenous Cultural Property

This article critically reviews some of the recent literature calling for intellectual property rights in indigenous cultural knowledge. In an earlier piece, we argued generally against the notion of defining a new class of “indigenous cultural property” analogous to copyright and patent rights. Rather, we must analyze demands for more protection for old cultural property by building from the ground up, using judicial interpretation or carefully tailored statutory amendments to determine whether the work in question is one that should be protected by a new right and, if so, deciding both the scope and term of protection. Intellectual property involves a tradeoff between rewarding the legitimate demands for protection and society’s overall interest in allowing information generally to be used freely.

Hence the term of protection for both patent and copyright has always been limited. Here we review some of the commentary that has appeared in the interim seeking to establish rights in old cultural property. We conclude that many of the assumptions underlying calls for such protection cannot withstand critical analysis and that a one-size-fits-all definition of indigenous cultural property is both unwise to try and impossible to achieve.