Daniel Austin Green has posted Indigenous Intellect: Problems of Calling Knowledge Property and Assigning it Rights (Texas Weleyan Law Review, Vol. 15, 2009) on SSRN. Here is the abstract:
This essay cautions about the dangers of creating sui generis intellectual property protections for indigenous knowledge as an ill-fitted and incomplete remedy to past wrongs committed against native peoples by many governments because the remedy fails to match the harm, either in type or magnitude. Some claims are less about property than they are about the right to control knowledge dissemination, a claim very different from conventional IP protections. I also point to avenues, within and outside intellectual property law, by which indigenous peoples may effectively help themselves without further expansion or change to the law. By taking advantage of intellectual property law, many groups may be able to reap the benefits of their knowledge by choosing to market their knowledge either directly or through intermediaries.
Incorporation of native groups’ customary law offers promise to resolving conflicts over the use of indigenous knowledge. Related to pluralism, but much more general, is the idea of self-determination. Respecting the autonomy of individuals and groups must also imply the incorporation of their laws, even if they are customary instead of codified, into the larger political bodies in which they reside, instead of stripping them of all political and legal power. Another aspect of self-determination, however, urges us to not force integration, but to take a stance of non-interference. Thus, one side of self-determination compels us to incorporate elements of native culture, but another side of this same political value compels us to be hands-off in our dealings with native groups.
