The Production of Indigenous Knowledge in Intellectual Property Law
Viewing law as the mutual interpenetration of the formal legal system and daily life invites us to consider the interaction of the legal and the non-legal as sources of both self-conscious and unself-conscious action.1 In all the writing that has been produced about indigenous interests in intellectual property law there is a notable absence. This absence is of a jurisprudential and critical reading of the history and development of intellectual property law as a speciﬁc cultural form, one integrally involved in managing relationships around knowledge use and circulation. This absence explains why intellectual property is repetitively understood and interpreted as a relatively naturally occurring and stable area of law. This, of course, is not so. Intellectual property is historical, political and contested, and this is ultimately what makes for its messiness in dealing with particular issues when they arise. This messiness within IP law is consistent regardless of whether the concern raised is one of regulating emerging digital technologies or protecting indigenous knowledge. Understanding the history fundamentally alters how we interpret what is going on when indigenous knowledge enters an intellectual property discourse. Thus, in responding to an urgent need for a little history work, this ﬁrst part of the book will reﬂect on the making of intellectual property law. When it comes to indigenous interests in intellectual property law, it is readily assumed that the problem is with the law. For example, that it doesn’t protect collective interests, doesn’t recognise the legitimacy of oral cultures, and can’t...