Looking Beyond Intellectual Property in Resolving Protection of the Intangible Cultural Heritage of Indigenous Peoples

Abstract

An important contemporary issue confronting indigenous people is the appropriation of their intangible cultural property. A number of problems have been identified in the literature as calling for more, better, or different legal protection of the cultural heritage of indigenous people. One such problem is the use of indigenous knowledge to develop a commercial product, especially a valuable drug. Since copyright is designed to prevent unauthorized reproduction of artistic works, it immediately suggests itself as a potential tool for the protection of indigenous cultural traditions from inappropriate use. This initial impression, however, quickly fades once certain characteristics of indigenous culture are tested against the requisite elements of copyright protection. Moral rights offer an adjunctive protection to that afforded by copyright. Under Canadian law, moral rights, whether under statute, common, or civil law, are separate and independent rights from the copyright.

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