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 20: Racial discrimination laws as a means of protecting collective reputation and identity

David Rolph

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

Extract

There are limits on the law’s ability to protect collective reputations and identities. The course of action which is principally concerned with the protection of reputation, defamation law, does not adequately protect such reputations and identities. This is unsurprising, as it is not intended to do this. Reputation, as protected by defamation law, is purely personal to the particular plaintiff. Each person’s reputation is unique to him or her and is therefore radically subjective. To the extent that defamation law protects collective reputations and identities, it does so because those entities seeking to rely upon it have, or are deemed to have, a sufficiently coherent and distinct existence from their constituent members. Thus, defamation law recognises that corporations and partnerships have business, trading or commercial reputations separate and distinct from their members, whereas it does not protect the reputation of governmental bodies. The dynamic and heterogeneous nature of governmental bodies means that their reputations cannot be vindicated by defamation law. They must be vindicated, to the extent that they can be, through the political process. Defamation law also provides minimal protections for slurs cast against a group. Such aspersions are only actionable if a reasonable person could regard them as reflecting upon the reputations of each member of the group or upon the reputation of the particular plaintiff who brings the proceedings.

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