Table of Contents

Indigenous Intellectual Property

Indigenous Intellectual Property

A Handbook of Contemporary Research

Research Handbooks in Intellectual Property series

Edited by Matthew Rimmer

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.

Chapter 10: The Indian Arts and Crafts Act: the limits of trademark analogies

Rebecca Tushnet

Subjects: law - academic, cultural heritage and art law, human rights, intellectual property law


The Indian Arts and Crafts Act 1990 (US) (IACA) is an attempt to provide specific, limited protection against deceptive marketing of ‘Indian’ arts and crafts from non-Indian sources. Classic examples of such marketing include jewelry sold under the brand name ‘Indian Maid’, (phonetically equivalent to ‘Indian-made’), and Indian goods made in a Philippine village whose name had been changed to ‘Zuni’ so that a manufacturer could label goods ‘made in Zuni’, falsely suggesting an origin in Zuni, New Mexico, and a connection with Indians of the Zuni tribe. While IACA has been amended several times in order to ease enforcement, it is not a general protection for cultural heritage, traditional knowledge, or traditional cultural expressions. In the US, IACA has been understood as not much more than an ordinary trademark law that has a specialized subject matter, with significant consequences for its scope even within the confines of deceptive marketing. My argument here will not be that IACA has been misinterpreted by administrative agencies or courts, but rather that its purely economic rationale means that it will continue to be unsatisfying to those who seek greater protection for noneconomic values, including cultural heritage. In addition, in the context of the American First Amendment, the analogy to trademark law makes IACA’s definitional project – identifying in advance and without empirical consideration of consumer understanding what is an ‘Indian’ product – seem dodgy from the outset, leading to a cramped interpretation of the law even from the perspective of pure economic protectionism.

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