Legal and Policy Issues
Edited by Christoph Beat Graber, Karolina Kuprecht and Jessica Christine Lai
Chapter 1: Stimulating trade and development of indigenous cultural heritage by means of international law: issues of legitimacy and method
Under the effects of economic globalisation and the Internet, international trade in traditional knowledge (TK) and traditional cultural expressions (TCE) is gaining magnitude, and a debate about the law’s role in protecting indigenous cultural heritage (ICH) seems more necessary than ever. So far, the dominant attitude in this debate has been a defensive one. Scholars backed by prominent indigenous brokers have been arguing for some decades that the international legal order should work out efficient defences against flagrant misappropriation of ICH. The international restitution of stolen or illegally exported indigenous cultural property indeed leaves a lot to be desired and the existing intellectual property (IP) regime does not provide effective remedies against misappropriation of TK and TCE. Although these concerns need to be addressed, I think that the debate should not stop there. Instead, I suggest a shift from a defensive attitude to a proactive strategy and to study whether international trade in ICH could promote social and economic development of indigenous peoples and how the law could contribute to this aim.
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