Fairness, Morality and Ordre Public in Intellectual Property
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Fairness, Morality and Ordre Public in Intellectual Property

Edited by Daniel J. Gervais

This incisive book explores the ways in which the major notions of fairness, morality and ordre public can be used both to justify and to limit intellectual property rights. Written by an international team of experts in the field, it provides varied and sometimes divergent perspectives on how these notions are applied to different rights and in different contexts.
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Chapter 10: Human rights principles as normative ‘fairness’ tools in the context of IP and (access to) indigenous peoples’ heritage via digital libraries

Kelly Breemen and Vicky Breemen


In an intellectual property (IP) context, particularly copyright law, the conclusion that indigenous heritage is unprotected is reached seemingly without a balance of rights. This prompts questions as to the perceived (un)fairness of the prevalence of dominant, existing IP regimes and understandings vis-à-vis non-dominant stakeholder interests. In contrast, human rights law has increasingly opened up to indigenous peoples’ participation, their claims and rights. Taking a critical perspective, this chapter examines fairness in the context of IP, access to and protection of indigenous peoples’ traditional knowledge (TK) and traditional cultural expressions (TCEs), using the human rights principle of self-determination as a normative ‘fairness tool’. Drawing on both legal and library and information sciences materials, digital libraries feature as a case study. The analysis in the chapter explores four central concepts that operationalize the self-determination principle as a normative ‘fairness tool’, illustrated by exemplary cases in the sphere of taking control over or regulating access to digital indigenous heritage. The concepts are ‘privacy by design’, ‘knowledge commons’, ‘indigenous data sovereignty’ and ‘public sphere’.

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