Chapter 3 Intellectual Property and Other Intangibles

Abstract

There are many arguments that Western property and intellectual property (IP) constructs—as they are—are not appropriate for the protection of indigenous cultural heritage. This is because there is a divergence between the fundamental reasons why classical IP exists, on one side, and the knowledge and social systems and needs of Māori and other indigenous peoples, on the other. Indeed, neither “intellectual property” nor any equivalent term exists in Māori. Erica-Irene Daes stated that Western IP is “inherently unsuitable”, as “[s]ubjecting indigenous peoples to such a legal scheme would have the same effect on their identities, as the individualization of land ownership, in many countries, has had on their territories – that is, fragmentation into pieces, and the sale of the pieces, until nothing remains.” From a western property perspective, intellectual property and real property are not comparable in this manner because intellectual property is non-rivalrous. For example, within copyright, if person B makes a copy of person A’s work, this does not prevent person A from enjoying the original. However, this is not necessarily the case under indigenous knowledge systems. As noted in Chap. 2, outsider use of indigenous cultural heritage can affect the integrity of that aspect of cultural heritage, so much so that the community may decide to no longer use it. This is particularly because indigenous peoples tend not to have a holistic worldview. Whereas Western societies tend to have stark system differentiation (for example, art, science, religion, law and politics are different systems), indigenous communities tend not to and different systems are closely interrelated.