The Production of Indigenous Knowledge in Intellectual Property Law
Chapter 6: A Tale of Two Cases
The previous chapter argued that governmental agendas, articulated through two key bureaucratic reports, have consolidated the extent that indigenous knowledge is positioned within legal discourse. This chapter will extend analysis of these dynamics by directly examining the importance of case law in facilitating the production of such categories. Furthermore the chapter will illustrate how judicial attempts at reconciling legal categories and legal language with indigenous knowledge are an inevitable and pragmatic response of governance. Case law provides a space where the theoretical considerations highlighted in previous chapters can be considered through the practice of the law, constituting in its clearest form, legal action. Legal decisions are an event formative to the law itself.1 In determining what the law says it becomes possible to recognise the limits and expectations of intellectual property law in relation to the indigenous knowledge category. This approach also inevitably reveals a hidden component that underpins copyright case law: the way in which the law seeks to determine (and even create) the essential core of the intangible matter that it seeks to protect.2 However, the inevitably unstable nature of the intangible, and hence of intellectual property subject matter, means that determining the metaphysical nature of the intangible ‘property’ remains the key problematic for intellectual property law. Presented with ‘indigenous knowledge’ as the intangible subject matter and Aboriginal art as the tangible form, the law predominately determines the essential core of indigenous knowledge through tropes of ‘tradition’, ‘Indigenous as Culture’ and (cultural) diﬀerence. Signiﬁcantly this solidi...
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