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 12: Geographical indications and Indigenous intellectual property

William van Caenegem

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

Extract

In this chapter the term ‘Indigenous’ in ‘Indigenous intellectual property’ is taken to imply a legal order that persists but has been deprived of its previously sovereign status. It has been rendered subordinate by an introduced normative system. Thus ‘Indigenous intellectual property law’ exists but cannot be universally enforced within the relevant jurisdiction. This passage from the Western Australian Law Reform Commission’s Discussion Paper on Customary Law explains the difficulty faced by Indigenous Australians in terms of recognition and enforcement of their law more generally: Historically, Australian ‘settlement’ was seen as an opportunity for transplanting European/British sovereignty and legal discourse. Within European colonial discourse, Indigenous inhabitants were seen to not exist, or at a minimum to have no rights regarding their lands. Indigenous peoples were treated as romantically ‘discovered’ as a passive, homogenous group named ‘Aborigines’ by the colonisers. As such, appropriation of Aboriginal works should be seen in the context of settlement narratives that explicitly sought to exclude Aboriginal peoples from the emerging polity. Overt acts of oppression, justified as necessary for constructing a new, ‘better’, ‘civilised’ home for new arrivals (those who claimed to have ‘discovered’ a land which was, in their eyes, terra nullius) underpinned the dominator’s efforts to systematically destroy the meaning that Aboriginal people ascribed to themselves, their families and their communities.

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