The Production of Indigenous Knowledge in Intellectual Property Law
Chapter 7: The Politics of Law
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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