The Production of Indigenous Knowledge in Intellectual Property Law
Chapter 10: Community and Culture/Community Claims
In Australia, two initiatives have been developed in order to work towards accommodating indigenous interests in intellectual property. They are the Labels of Authenticity and more recently the (draft) Communal Moral Rights legislation. Both potentially position Australia at the forefront internationally in terms of developing alternatives in response to indigenous requests for legal action. Importantly, they seek to enhance existing parts of current law: trademark law to help with relations with the art market, and moral rights as commensurate (in an odd way) with community rights within a derived work (communal moral rights). The goodwill behind these initiatives can be taken at face value. There is a legitimate eﬀort on behalf of policy makers and legislative drafters to address indigenous concerns. These are also governmental responses to broader social pressures that demand that indigenous issues be addressed – for instance, I have never come across any literature, academic or otherwise that argues against indigenous interests in intellectual property. These attempts should be seen as innovative: they really do try and tackle a diﬃcult problem and provide remedy through the law. But certain diﬃcult legacies remain, and these are implicitly contained within each initiative. They are evidenced in the very naming of the initiatives ‘authenticity marks’, ‘communal moral rights’, through to the inevitable eﬀects of certain kinds of legal codiﬁcation (the presumption of community as a stable legal object for example) and their accessibility and applicability to indigenous circumstance. THE LABELS OF AUTHENTICITY There are a variety...
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