Law, Knowledge, Culture
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Law, Knowledge, Culture

The Production of Indigenous Knowledge in Intellectual Property Law

Jane E. Anderson

This informative book investigates how indigenous and traditional knowledge has been produced and positioned within intellectual property law and the effects of this position in both national and international jurisdictions.
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Chapter 7: The Politics of Law

Jane E. Anderson


In the previous chapters I argued that the importance of undertaking a reading of case law is that it provides an instance of legal action: it becomes possible to recognise certain limits and expectations of law. This is because legal decisions are formative to the law itself. Considering the identification and inclusion of Aboriginal art as copyright subject matter through the judicial interpretation provided by Justice von Doussa, the cases can be seen as representative of assumptions made in copyright law. Both the carpets case and Bulun Bulun v R & T Textiles are important cases in the landscape of copyright law as they spur debate about the terms of inclusion – for instance how authorship and ownership of indigenous works are to be identified. The judicial interpretation offered illustrates the cultural life of copyright law. It also highlights how values of liberal jurisprudence and legal positivism exert pressure: from trying to identify types of knowledge to securing the closure of copyright law wherein limitations of inclusion are explained in reference to the legislation rather than matters of judicial interpretation. The point is that politics, philosophy and cultural values underpin case law, and these factors duly exert influence in how new categories are incorporated and the extent to which cultural difference is treated. Legal instrumentality seeks to play down the ‘specialness’ of indigenous difference. This is in order to maintain management over the identification of markers that constitute a property right in Aboriginal art ensuring...

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