The Impact of Foreign Investment on
Indigenous Culture: An Intellectual Property
23 N.C.J. Int’l L. & Com. Reg. 229 (1998)
reprinted in Globalization and Intellectual Property (Ashgate
Publishers 2006)(edited by Alexandra George)
Doris Estelle Long†
I. Coca-Colonization and McWorld—De-Culturization
in the Global Marketplace. ................................................... 112
II. Current International Intellectual Property
Protection Regimes ............................................................... 118
III. Intellectual Property Rights—Sword and Shield .................. 134
IV. Conclusion ............................................................................ 150
The [ancient] civilizations [of the Americas] have left us with
rich historical landmarks, proud people and the desire to explore
and experience their past, understand their present and visualize
- Luis Vasquez1-
During the late twentieth century, culture2 has become “big
† Associate Professor of Law, The John Marshall Law School. J.D. 1980 Cornell
Law School. The genesis of this Article was a speech presented at the Ninth Annual
Cuban and North American Philosophers Conferences held in Havana and Guantanamo,
Cuba in June 1997. The author would like to thank Dean Robert Gilbert Johnston and
Associate Dean Susan Brody for the research grant that supported the development of
this Article. The author would also like to thank Karen E. Long for her insights into the
problems of de-culturization and the tourism industry.
1 TRAVEL WORLD NEWS 35 (Mar. 1997) (discussing statement by the President of
MILA, a wholesaler specializing in cultural tours to Latin America).
2 Indigenous and native culture, the focal point of this Article, has been variously
defined, depending on the aspects of “culture” seeking protection. For instance, the
Convention on the Means of Prohibiting and Preventing the Illicit Import, Export, and
Transfer of Ownership of Cultural Property, Nov. 14, 1970, 823 U.N.T.S. 231, 10
I.L.M. 289 [hereinafter Convention on Illicit Transfer], classifies cultural property into
categories and allows each country to determine which objects have cultural significance
102 N.C. J. INT’L L. & COM. REG. [Vol. 23
for archeology, history, literature, art, and science. See id. art. I, 823 U.N.T.S. at 231,
10 I.L.M. at 289. Other definitions have similarly focused on “culture” as demonstrated
through its objectification in relics or artifacts. See, e.g., Native American Graves
Protection and Repatriation Act of 1990, 25 U.S.C.A. § 3001(3)(D) (1997) (defining
“cultural patrimony” as “an object having ongoing historical, traditional or cultural
importance central to . . . [the] culture itself . . . and which . . . cannot be alienated,
appropriated or conveyed by an individual . . . .”); see also infra note 21 (discussing the
Native American Graves Protection and Repatriation Act). By contrast, conventions
which concern “culture” as a “human right” appear to treat culture as an amorphous
concept which includes all aspects of a group’s history, works, traditions, practices and
knowledge. See, e.g., International Convention on Civil and Political Rights, Dec. 16,
1966, 999 U.N.T.S. 171, 6 I.L.M. 368 (providing that persons belonging to “ethnic,
religious or linguistic minorities . . . shall not be deprived of the right, in community,
with other members of their group to enjoy their own culture. . . .”).
Much of the legislation regarding the protection of indigenous culture has focused
on tangible manifestations and has limited protection to those objects that have
archeological, scientific or historical values. See, e.g., Terri Janke et al., Proposals for
the Recognition and Protection of Indigenous Cultures and Intellectual Property § 5.3
(last modified Aug. 27, 1997) <http://www.icip.lawnet.com.au/part2-2.htm>; see also
infra note 22 (discussing the definition of “culture”). This effort to compartmentalize
culture has been strongly criticized by some scholars and commentators. The distinction
between “cultural property” and “intellectual property” of indigenous peoples has been
criticized as inappropriate by “try[ing] to subdivide the heritage of Indigenous peoples
into separate legal categories such as ‘cultural,’ ‘artistic’ or ‘intellectual,’ or into
separate elements such as songs, stories, science or sacred sites.” Erica-Irene Daes,
Study in the Protection of the Cultural and Intellectual Property of Indigenous Peoples,
U.N. Sub-commission on Prevention of Discrimination of Minorities, at 9, U.N. Doc.
E/CN.4/Sub.2/1993/28 (1993). Daes prefers the term “heritage” to “culture,” which she
defines as “includ[ing] all expressions of the relationship between the people, their land
and the other living beings and spirits which share the land, and which is also the basis
for maintaining social, economic and diplomatic relationships—through sharing—with
other people.” Id. at 39.
Similarly, the term “heritage” has been used to refer to indigenous culture and has
been defined as “all objects, sites and knowledge the nature or use of which has been
transmitted from generation to generation, and which is regarded as pertaining to a
particular people or its Territory.” The Final Report on the Protection of the Heritage of
Indigenous People at 10, U.N.Doc. E/CN/4/Sub2/1995/26 (1995). This definition also
includes “objects, knowledge and literary or artistic works which may be created in the
future based upon its heritage.” Id. The treatment of “heritage” as an all-encompassing
definition is further emphasized by the Report’s reiteration that the definition includes
all moveable cultural property as defined by the relevant convention of
UNESCO; all kinds of literary and artistic works . . . ; all kinds of scientific,
agricultural, technical and ecological knowledge, including cultigens, medicines
and rational use of flora and fauna; human remains; immovable cultural
property such as sacred sites, sites of historical significance, and burials; and
documentation of indigenous peoples’ heritage on film, photographs, videotape
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 103
business.” From eco-tourism to cultural tours and souvenir
artifacts, culture has been transformed into a commodity that can
be merchandised and sold across international borders.3 This
“commodification”4 of culture is part of a larger trend—the
The author does not disagree that the “culture” of a people can be an all
encompassing term that incorporates every aspect of a people’s history, knowledge,
works and traditions. However, given the traditional requirement that intellectual
property consist of some tangible manifestation, whether fixed or unfixed, the author has
chosen to adopt a definition of “culture” that reflects only those definitions that can be
expressed in a tangible manner. Thus, “culture,” for purposes of this Article, includes
the historical, political, artistic, folkloric, and ritualistic elements of a nation’s heritage
which can be manifested or expressed in some tangible form. This definition is intended
to encompass the broadest possible spectrum of elements that may form part of a
region’s or country’s cultural heritage. The following elements are included: artistic,
literary, and musical works; scientific, agricultural, and medical innovations; and
folkloric traditions, indigenous religious rituals, and monumental works. This definition
does not include human remains. Although such remains are clearly entitled to respect
and protection, they do not involve the product of intellectual creativity or indigenous
knowledge, which is an activating requirement for the protection scheme discussed in
3 See, e.g., Terri Janke et al., Contribution to Industry, Pt. III, § 2.2 (last modified
Aug. 27, 1997) <http://www.icip.lawnet.com.au/part 1-2.htm>. A survey of
international visitors to Australia conducted in February and March 1993 found that
almost one-half are interested in experiencing the indigenous cultures and that one third
actually do experience an indigenous cultural performance or participate in a tour. See
id. Similarly, the value of sales of indigenous arts and souvenirs to international visitors
has been estimated at $46 million per year. See id.; see also Robert McKelvie, Shooting
Very Very Big Fish (with a Nikon), THE INDEP.-LONDON, Nov. 2, 1997, at 4, available in
1997 WL 15214307 (noting that the eco-tourist explosion in Kaikoura, New Zealand led
to an increase in tourists from 3,400 in 1987 to 188,000 in 1995); Susan C. Valerio,
Weekender: What Really is Ecotourism?, BUS. WORLD (MANILA), Sept. 19, 1997,
available in 1997 WL 13852251 (examining the historical development, goals and
problems caused by eco-tourism); Ecotourism Officials Meeting in Brazil, DALLAS
MORNING NEWS, Sept. 19, 1993, at K2, available in 1993 WL 3388210 (analyzing
conservation and the business of eco-tourism); Terri Janke et al., Proposals for the
Recognition and Protection of Indigenous Cultures and Intellectual Property, § 5.3 (last
modified Aug. 27, 1997) <http://www.icip.lawnet.com.au.part/2-2.htm> (discussing the
problem of boomerangs and didgeridoos being manufactured abroad and then imported
into Australia and sold as authentic Aboriginal art). Although “true” eco-tourism can
provide certain benefits, including the preservation of natural resources and cultural
heritage, see, e.g., Valerio, supra (discussing the potential benefits of eco-tourism), the
big business aspects of eco-tourism and cultural tours can result in the transformation of
culture into a marketable commodity divorced from its cultural context. See Janke,
4 The right to control the commodification of culture is implicit in the claim of a
proprietary right to control indigenous culture. Thus, Native American accusations that
mainstream Canadian authors are guilty of “cultural theft, the theft of voice” in their use
of native histories seems to imply that part of the loss caused by such “unauthorized”
104 N.C. J. INT’L L. & COM. REG. [Vol. 23
emergence of a global marketplace and the resulting drive by
newly industrialized countries to develop an industrial and
commercial base in order to participate in this marketplace.5 These
trends impose a growing need for developing countries6 to seek
foreign investment, in both capital and technology, in order to face
the economic challenges of the coming century. Increasingly, the
ability to attract such foreign investment is tied to the protection of
so-called “intellectual property rights,” including patents,7
uses involves losing the ability to control the marketing of the cultural goods derived
from this “voice.” See Rosemary T. Coombe, The Properties of Culture and the Politics
of Possessing Identity: Native Claims in the Cultural Appropriation Controversy, 6 CAN.
J.L. & JURIS. 249 (1993). In keeping with this view that culture has a proprietary nature,
“commodification” for purposes of this Article is defined as the transformation of an
object, custom or ritual into a commercial good or service capable of being mass-
marketed. Examples of commodification include, but are not limited to, the
manufacturing and sale of “cultural artifacts” as souvenirs for tourists, the development
and presentation of bastardized rituals as part of a tourist enterprise, and use of cultural
icons and traditions in popular fiction outside of its cultural context.
5 See, e.g., Jeffrey Blatt et al., Preparing for the Pacific Century: Fostering
Technology Transfer in SouthEast Asia, 3 ANN. SURV. INT’L & COMP. L. 235 (1996);
James Forstner, Patent Strategies: Asia Pacific, PLI GLOBAL INTELL. PROP. SERIES
(1992); International Developments, J. PROPRIETARY RTS., May 1997, at 24; see also
infra note 19 (describing the effects of this process on developing nations).
6 “Developing country” and “developed country” have various definitions. Such
terms are usually based either on United Nations definitions used to determine foreign
aid levels or on World Bank definitions based on per capita income. See, e.g., Marco
C.E.J. Bronchers, The Impact of TRIPS: Intellectual Property Protection in Developing
Countries, 31 COMMON MKT L. REV. 1245 (1995); Reiko R. Feaver, China’s Copyright
Law and the TRIPS Agreement, 5 J. TRANSNAT’L L. & POL’Y 431 (1996). For purposes
of this Article, the term “developing country” refers to Third World countries that have
not attained the level of industrialization of members of the Organization of Economic
Cooperation and Development (OECD). This definition will include lesser developed
countries (LCD’s), newly industrialized countries (NIC’s), and members of the “Group
of 77.” By contrast, the term “developed country” will refer to industrialized countries
such as the United States, Canada, Japan, and most members of the European Union,
and the OECD. Developed countries are generally perceived as owning or controlling
most of the world’s presently available technology. The above definitions generally
comply with United Nations guidelines and will serve to place present disputes in an
7 There is no generally accepted international definition for the various forms of
intangible property rights that are included within the definition of “intellectual
property.” Nevertheless, based on widely accepted multinational treaties, some
commonly accepted parameters of protection can be ascertained. For instance, patent
law usually protects scientific inventions and discoveries concerning new products and
processes. These include, for example, machines, manufacturing processes, and
chemical or electrical structures and compositions, as long as such inventions are new,
useful, and non-obvious. See, e.g., Agreement on Trade Related Aspects of Intellectual
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 105
copyrights,8 trademarks9 and trade secrets.10 Newly industrialized
Property Rights, Including Trade in Counterfeit Goods, Apr. 15, 1994, art. 27, 33 I.L.M.
81 [hereinafter TRIPS]; see also 35 U.S.C. § 101 (1997) (permitting patent protection
for a “new and useful process, machine, manufacture, or composition of matter, or any
new and useful improvement thereof . . . .”); Patent Law of the People’s Republic of
China, ch. I, art. 22 (1985) (giving protection to inventions that are novel, inventive, and
have practical applicability); Japanese Patent Law, arts. 2, 29 (1959), reprinted in Japan,
2F WORLD PATENT LAW & PRACTICE (John Sinott ed., 1997) (defining an invention, hat
samei, as “any high grade creation among creations of technical idea utilizing natural
rules” and requiring novelty, non-obviousness, and ability to be “utilized in industry”
for patentability); West German Patent Law, art. I, reprinted in Germany, 2D WORLD
PATENT LAW & PRACTICE (John Sinott ed., 1997) (permitting patent protection for “new
inventions which permit industrial application”).
8 Copyright law generally protects works of artistic, literary and musical
expression, including books, cinematographic works, paintings, sculpture, photographic
works, pantomime, and, more recently, computer software programs and databases. See,
e.g., Berne Convention for the Protection of Literary and Artistic Works, Sept. 9, 1886,
as revised July 14, 1967, art. 2, 828 U.N.T.S. 221, 227 [hereinafter Berne Convention]
(defining copyrightable subject matter as “every production in the literary, scientific and
artistic domain, whatever may be the mode or form of its expression”); see also 17
U.S.C. § 102 (1997) (enumerating eight categories of protectable works under U.S. law,
including, inter alia, literary, dramatic, graphic, architectural and musical works, and
computer programs); (U.K.) Designs and Patents Act of 1988 (c48), pt. I, ch. I, § 1(a)
(1989) (protecting literary, dramatic, musical and artistic works, computer programs,
cinematographic and audio-visual works); Teruo Doi, Japan, in 2 INTERNATIONAL
COPYRIGHT LAW & PRACTICE (Paul E. Geller et al. eds., 1997) (citing Japanese
Copyright Act, arts. 2(1)(i), 10(1) (1970), which protects works of authorship,
Chosakubutsu, which is defined as a “production in which thoughts or emotions are
expressed in a creative way and which fall in the literary, scientific, artistic or musical
domain” and listing as protected nine enumerated categories of literary, musical and
choreographic works; paintings, woodcut prints, architectural works, maps,
cinematographic works; and program works, including computer programs); Economic
Law of Russia Law of the Russian Federation No. 5351-1, arts. 6, 7 (1993), available in
LEXIS, Intlaw Library, Rflaw File (covering “works of science, literature and the arts,
that are the result of creative activity, irrespective of the purposes or merits of such
works”; forms include written, oral, sounds or videorecording, image and three-
dimensional forms and lists as “objects of copyright,” literary, dramatic, choreographic,
musical, audio-visual; paintings, sculpture, applied art, scenographic art, architecture,
photographic works, maps and computer programs).
9 Trademark law generally protects corporate symbols, logos and other distinctive
indicia of the origin of goods or services. See, e.g., TRIPS, supra note 7, art. 15
(defining a trademark as “any sign or any combination of signs, capable of
distinguishing the goods or services of one undertaking from those of other
undertakings”); see also 15 U.S.C. § 1127 (1997) (defining a trademark under U.S. law
as “any word, name, symbol or device, or any combination thereof used by a person . . .
to identify and distinguish his or her goods, including a unique product, from those
manufactured or sold by others and to indicate the source of the goods, even if that
source is unknown”); Japanese Trademark Law No. 127, art. 2(1) (1991), reprinted in
INTERNATIONAL INTELLECTUAL PROPERTY LAW: GLOBAL JURISDICTIONS 27 (Dennis
106 N.C. J. INT’L L. & COM. REG. [Vol. 23
Campbell et al. eds., 1996) (protecting “letters, figures, signs or 3-dimensional shapes,
or any combination of these and colors”).
10 Trade secret law generally protects confidential information that has commercial
value due to its secret nature and that has been the subject of reasonable steps by the
person lawfully in control of the information to keep it secret. See, e.g., TRIPS, supra
note 7, art. 39 (defining as “secret” protected confidential information having
“commercial value because it is secret,” and having been subject to “reasonable steps” to
keep it “secret”); see also Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470 (1974)
(defining a trade secret under U.S. law as confidential information which is not
generally known and is subject to reasonable efforts to protect its secret nature);
UNIFORM TRADE SECRETS ACT § 1(4) (1985) (defining trade secrets as “information . . .
that derives independent economic value . . . from not being generally known to, and not
being readily ascertainable by proper means by, other persons . . . and is the subject of
efforts that are reasonable under the circumstances to maintain its secrecy”); Peter
Chrocziel, Germany, in WORLD WIDE TRADE SECRETS LAW § B11.02(1) (Terrence F.
MacLaren ed., 1997) (stating that trade secrets are protected in Germany if the
information is secret, known only to a limited number of people, subject to reasonable
steps for its protection, and where the owner has a business interest in keeping it secret);
Kathie Claret, France, in INTERNATIONAL WORLD WIDE TRADE SECRETS LAW §
3.02(1)(a) (Terrence F. MacLaren ed., 1997) (stating that France protects manufacturing
secrets, secrets de fabrique, confidential business information and know-how, savoir
faire); Kazuko Matsuo, Japan, in WORLD WIDE TRADE SECRETS LAW § C1.02(1)
(Terrence F. MacLaren ed., 1997) (stating that Japan protects technical information that
has economic value, is protected and treated as a secret, and is not publicly known);
Simon Mehigan et al., United Kingdom, in WORLD WIDE TRADE SECRETS LAW §
B2.01(2) (Terrence F. MacLaren ed., 1997) (stating that the United Kingdom protects
information used in trade or business where the owner limits dissemination because its
disclosure to a competitor would result in significant harm to the owner). The growth
of trade secret protection as a topic of international protection concerns is a relatively
One other form of “traditional” intellectual property right that has been the subject
of multinational protection is the so-called “industrial design,” also referred to as “utility
models” or “utility designs.” See, e.g., Margaret Boulware et al., An Overview of
Intellectual Property Rights Abroad, 16 HOUS. J. INT’L L. 441 (1994); CHRISTINE
FELLNER, INDUSTRIAL DESIGN LAW (1995), HECTOR L. MACQUEEN, COPYRIGHT,
COMPETITION AND INDUSTRIAL DESIGN (2d ed. 1995); GUY TRITTON, INTELLECTUAL
PROPERTY IN EUROPE ch. 5 (1996). “Industrial designs” generally include those designs
not subject to patent protection, but having some degree of novelty or originality that
warrants protection against unauthorized use. See FELLNER, supra. The standards for
novelty or originality of an industrial design are generally lower than for a patent or
copyright. See id. See generally TRIPS, supra note 7, art. 25(a) (members to protect
“independently created industrial designs that are new or original”); Roland Liesegan,
German Utility Models After the 1990 Reform Act, 20 AM. INTELL. PROP. L. ASS’N Q.J.
(1992) (comparing the different inventiveness requirements underlying German patent
and industrial design law).
Despite their potential usefulness in protecting certain design elements that could
not otherwise qualify for patent or copyright protection, industrial designs, in the
author’s opinion, ultimately serve little practical usefulness in constructing an
intellectual property-based protection scheme to protect a developing country’s culture
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 107
countries are faced with mounting refusals by multinational
corporations to enter into joint investment or research-
development deals without the assurance of “adequate protection”
for the technology the multinational corporations are expected to
provide.11 Such “adequate protection” generally includes the
enactment and subsequent enforcement in the developing countries
of laws protecting intellectual property rights—laws which are
heavily influenced by or modeled on U.S. or European systems.12
The conflict between developed and developing countries over
the enforcement of intellectual property rights is one of the most
divisive legal issues of the latter twentieth century.13 Despite the
against de-culturizing forces. This is because industrial designs have been subject to
wide divergence in protection, more than any other form of intellectual property (with
the exception of trade secrets). Moreover, the author shares the view of other scholars
that utility designs form a poor basis for a future-looking protection regime. See, e.g.,
Ruth Gana, Prospects for Developing Countries Under the TRIPS Agreement, 29 VAND.
J. TRANSNAT’L L. 735 (1996). Consequently, the author will not discuss the use of
industrial design protection as part of her proposed protection scheme.
11 For example, in 1977, Coca-Cola terminated its operations in India after being
ordered to dilute domestic equity to 40% or divulge its secret formula. Operations were
not resumed until 1993 when the threat of disclosure was lifted. See Coca-Cola India to
Sell Shares to Public, AGENCE FRANCE-PRESSE, Oct. 26, 1997, available in 1997 WL
13421059. This is only one example, and an admittedly extreme one, of the refusal to
invest in developing countries without adequate intellectual property protection. See
generally Blatt et al., supra note 5, at 235 (1996); see also infra note 12 (examining the
relationship between foreign investment and intellectual propertyrights).
12 See, e.g., Transnational Corporations and Management Divisions of the UN
Department of Economic and Social Development: Intellectual Property Rights and
Foreign Direct Investment, U.N. Doc. ST/CTC/SER.A/24 (Carlos M. Correa ed., 1993)
(examining the inter-relationship between intellectual property rights and foreign
investment in diverse countries); Judy Dempsey, U.S. and Israel Clash on Trade
Barriers, FIN. TIMES, May 30, 1997, at 6, available in 1997 WL 11031361 (reporting
that weak intellectual property rights handicap Israel in attracting foreign investment);
Not Quite So Sparkling China: Foreign Investment—Has Foreign Investment Peaked in
China? And will It Ever Take Off in Japan?, ECONOMIST, Mar. 1, 1997, at 38 (reporting
that weak intellectual property rights enforcement is slowing down foreign investment in
China); Jennifer Humphrey, Mercosur Magnetism, 9 INT’L BUS. 41-42 (1996) (reporting
that stronger patent protection in Brazil results in higher foreign investment).
13 See generally EDWARD S. YAMBRUSIC, TRADE BASED APPROACHES TO THE
PROTECTION OF INTELLECTUAL PROPERTY (1992); THE GATT URUGUAY ROUND: A
NEGOTIATING HISTORY (Terrence P. Stewart ed., 1993) [hereinafter A NEGOTIATING
HISTORY]; Doris Estelle Long, The Protection of Information Technology in a Culturally
Diverse Marketplace, 15 J. MARSHALL J. COMP. & INFO. L. 129 (1996) [hereinafter Long,
The Protection of Information Technology]. The global piracy problem of the 1970s
which gave impetus to the negotiation of a multilateral trade treaty specifically dealing
with the problem of international protection of intellectual property rights, in the
108 N.C. J. INT’L L. & COM. REG. [Vol. 23
accession of over 111 countries to the Agreement on Trade-
Related Aspects of Intellectual Property Rights (TRIPS),14 global
piracy and the efforts required to eradicate it remain key areas of
dispute.15 Intellectual property protection undeniably impacts a
broad range of international issues, including inter alia, trade,16
technological development,17 wealth-transfer,18 environmental
author’s opinion, was an early indication that intellectual property rights protection
would take a prominent position in international affairs during the latter part of the
twentieth century. For a brief history of the problems posed by global piracy and its
impact on multinational trade negotiations, see Joseph A. Greenwald, The Protection of
Intellectual Rights, in GATT AND THE URUGUAY ROUND: THE U.S. VIEWPOINT, IN
CONFLICT AND RESOLUTION IN U.S.-E.C. TRADE RELATIONS AT THE OPENING OF THE
URUGUAY ROUND 229 (Seymor J. Rubin & Mark L. Jones eds., 1989); see also infra
note 49 (describing the TRIPS agreement). The negotiation of such a treaty itself under
the auspices of the General Agreement on Trade and Tariffs (GATT) took over seven
years and was marked by intensive debate. If the negotiation of TRIPS was expected to
resolve these issues, at least in the short-run, it has failed to do so. Counterfeiting
remains a problem of global significance. Moreover, the question of the scope of
protection to be afforded intellectual property rights is increasingly interjected into
debates dealing with such diverse topics as biodiversity, the protection of the heritage of
indigenous peoples, and technology transfers. See infra notes 18-21 and accompanying
text (describing the various topics and viewpoints in these debates). A speech delivered
by Fidel Castro at the 1992 Rio de Janeiro Conference on Biodiversity is only one
example of the increasing passions which underscore these issues. For further
description of Castro’s speech, see infra note 19.
14 See TRIPS, supra note 7.
15 A major impetus behind negotiations that led to the TRIPS Agreement was the
desire of developed countries to combat global piracy. For a more detailed discussion of
earlier efforts to combat piracy under GATT auspices, and the role of these anti-
counterfeiting activities in connection with the negotiation of TRIPS during the Uruguay
Round, see Doris Estelle Long, Copyright and the Uruguay Round Agreements: A New
Era of Protection or An Illusory Promise?, 22 AM. INTELL. PROP. L. ASS’N Q.J. 531,
535-547 (1995) [hereinafter Long, Copyright and the Uruguay Round Agreements].
The enactment of TRIPS, however, has not eliminated the problem of global piracy. See
infra note 40 (describing the continuing problem of global piracy).
16 The TRIPS Agreement negotiated during the Uruguay Round of GATT
represents the clearest acknowledgment of the trade nature of intellectual property rights
enforcement. Not only was it negotiated as part of a multinational trade treaty, TRIPS
itself recognizes in its preamble the critical role of enforcement of intellectual property
rights “to reduce distortions and impediments to international trade . . . and to ensure
that measures and procedures to enforce intellectual property rights do not themselves
become barriers to legitimate trade.” TRIPS, supra note 7, pmbl., cl. 1.
17 Intellectual property law historically has been related to the protection of
technological advances. Thus, for example, copyright law has long served as a critical
method for protecting the products of new technological advances. The first U.S.
copyright statute protected a relatively limited category of works—maps, charts, and
books. See Copyright Act of 1790, Act of May 31, 1790, ch. 15, 1 Stat. 124.
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 109
Subsequent revisions reflected the advance of technology, adding, respectively,
photographs, motion pictures, and computer programs. See Copyright Act of 1865, 13
Stat. 530; Copyright Act of 1909, 35 Stat. 1075 (1909), repealed by Copyright Act of
1949, 61 Stat. 668, amended by Copyright Amendments of 1980, 94 Stat. 3028 (codified
as amended 17 U.S.C. § 1 (1997)); Copyright Amendments of 1980, Pub. L. No. 96-
517, § 10, 94 Stat. 3028. Patents have reflected a similar growth in scope of protection,
from mechanical and chemical processes, to bacteria, see Diamond v. Chakrabarty, 447
U.S. 303 (1980), and computer programs, see Diamond v. Diehr, 450 U.S. 175 (1981).
The scope of protection granted intellectual property rights currently serves as one of the
key sources of debate between developed and developing countries regarding the cost of
access to technological advances. See generally Long, The Protection of Information
Technology, supra note 13 (discussing the relationship between technology and
intellectual property rights); see also infra note 18 (giving examples of the range and
tenor of the debate between developed and developing nations regarding the scope of
protection to be afforded intellectual property rights in technology).
18 The transfer of technology from developed to developing countries has been the
subject of intense international debate. See, e.g., ASSAFA ENDESHAW, INTELLECTUAL
PROPERTY POLICY FOR NON-INDUSTRIAL COUNTRIES (1995); Ruth L. Gana, U.S. Science
Policy and the International Transfer of Technology, 3 J. TRANSNAT’L L. & POL’Y 205
(1994); David M. Hang, The International Transfer of Technology: Lessons that East
Europe Can Learn from the Failed Third World Experience, 5 Harv. J.L. & Tech. 209
(1992); Long, Copyright and the Uruguay Round Agreements, supra note 15; J.H.
Reichman, The TRIPS Component of the GATT’s Uruguay Round: Competitive
Prospects for Intellectual Property Owners in an Integrated World Market, 4 FORDHAM
INTELL. PROP. MEDIA & ENT. L.J. 171 (1993). This debate is fueled in part by the belief
among developing nations that without the technology “wealth” of the industrialized
nations they will continue to remain poor step-children of their richer, and in many cases
former colonial, masters. See, e.g., FIDEL CASTRO, TOMORROW IS TOO LATE:
DEVELOPMENT AND THE ENVIRONMENTAL CRISIS IN THE THIRD WORLD (Ocean Press
1993). In a report circulated at the 1992 Earth Summit in Rio de Janeiro, Fidel Castro
tied Third World poverty, environmental protection, and sustainable development to
present intellectual property protection schemes. Castro stated, in pertinent part:
Today more than ever, the underdeveloped countries urgently need access to
knowledge, to scientific and technological development. This is not only
because it would allow them to solve infinite economic, social and ecological
problems, but because, in the current stage of capitalist development, scientific
knowledge plays a principal role in the accumulation of capital . . . Through the
possibilities presented by the modern development of modern biotechnology,
the genetic resources of the underdeveloped world have gained extraordinary
value . . . In fact, the possession and control of genetic resources constitutes a
new way of plundering the Third World, which has become the main objective
of those transnational corporations involved in this field . . . .
The privatization boom, together with the need to maximize profit, are
having a growing impact on the new mechanisms for controlling copyrights of
biotechnological advances, and even on the control of the national heritage of
the underdeveloped countries. Attempts are being made to impose a patent
system on the underdeveloped countries which . . . does not recognize the right
of these countries to enjoy the profits made . . . . Due to the fragility of th e
ecosystems of the underdeveloped nations and the lack of resources available
110 N.C. J. INT’L L. & COM. REG. [Vol. 23
protection,19 sustainable development20 and cultural patrimony.21
for them to confront the deterioration of the environment, the transfer of
environmentally sound technology is an essential component of sustainable
development . . . . As a consequence of the profound transformations brought
about by the current scientific and technological resolutions, there have been
significant changes in the corporate strategies of transnational companies.
These corporate strategies promote the formation of strategic alliances among
firms in the developed nations in order to confront the rising costs of research
and development and to guarantee greater protection of copyrights. This
lessens the transfer of technology to the Third World.
These new corporate strategies have met with strong support from the
industrialized nations. In effect, the governments of these countries,
particularly that of the United States, have pushed strongly in the Uruguay
Round for stricter and more uniform norms regarding the protection of
intellectual property rights.
The establishment of these kinds of protective measures would result in
rising costs for imported technology, especially in the industries that make
intensive use of patented procedures. This entails additional demands for
financial resources in the underdeveloped nations, which must be taken into
account where new agreements and protocols are signed for the protection of
Id. at 32-40.
This speech strongly reflects the views of developing countries that intellectual
property represents the “common heritage of mankind,” and should be freely available.
The position papers presented by India, Brazil, and other developing countries during
the Uruguay Round Negotiations reflect similar views. See YAMBRUSIC, supra note 13
(reprinting diverse position papers including those of the Republic of Korea, Brazil,
Peru, and India); see also A NEGOTIATING HISTORY, supra note 13 (discussing the
debates and issues during the GATT Uruguay Round).
19 See supra note 18 for Fidel Castro’s views on the value and exploitation of
underdeveloped countries’ ecological resources; see also Edgar J. Asebey & Jill D.
Kempenaar, Biodiversity Prospecting: Fulfilling the Mandate of the Biodiversity
Convention, 28 VAND. J. TRANSNAT’L L. 703 (1995); David R. Downes, New Diplomacy
for the Biodiversity Trade: Biodiversity, Biotechnology and Intellectual Property in the
Convention on Biological Diversity, 4 TOURO J. TRANSNAT’L L. 1 (1993); David Hurlbit,
Fixing the Biodiversity Convention: Toward a Special Protocol for Related Intellectual
Property, 34 NAT. RESOURCES J. 379 (1994) (discussing the relationship between bio-
diversity and the protection of intellectual property rights).
20 See supra note 18 for various sources detailing the divergent views on
technology transfers from developed to developing nations.
21 See Bellagio Declaration, Mar. 11, 1993, reprinted in INTERNATIONAL
INTELLECTUAL PROPERTY ANTHOLOGY 107 (Anthony D’Amato & Doris Estelle Long
eds., 1996) (supporting the development of neighboring (or related) rights regimes to
protect “folkloric works,” “works of cultural heritage,” and “biological and ecological
‘know-how’ of traditional peoples”) [hereinafter Bellagio Declaration]; see also E.P.
Gavrilov, The Legal Protection of Works of Folklore, 20 COPYRIGHT 76 (1984); Doris
Estelle Long & Anthony D’Amato, Intellectual Property as Culture, reprinted in
INTERNATIONAL INTELLECTUAL PROPERTY ANTHOLOGY 95 (Anthony D’Amato & Doris
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 111
Each topic warrants its own in-depth examination. This Article
has a more modest goal. It focuses on the threat of globalization
to native and indigenous culture22 and presents potential solutions,
Estelle Long eds., 1996).
The term “cultural patrimony” has been variously defined as “antiquities,” “cultural
goods,” and “cultural property.” Lisa J. Boradkin, The Economics of Antiquities Looting
and a Proposed Legal Alternative, 95 COLUM. L. REV. 377 (1995) (antiquities), Victoria
J. Vitrano, Protecting Cultural Objects in an Internal Border-Free EC: The EC
Directive and Regulations for the Protection and Return of Cultural Objects, 17
FORDHAM INT’L L.J. 1164 (1994) (“cultural goods” and “cultural property”). Similarly,
“cultural patrimony” has been defined as “an object having ongoing historical,
traditional, or cultural importance central to the . . . culture itself . . . and which . . .
cannot be alienated, appropriated, or conveyed by any individual . . . .” Native
American Graves Protection and Repatriation Act of 1990, 25 U.S.C. § 3001(3)(D)
(1997). Moreover, UNESCO defines “cultural property” as “property which, on
religious or secular grounds, is specifically designated by each state as being of
importance for archeology, prehistory, history, literature, art or science . . . .”
Convention on Illicit Transfer, supra note 2, art. I, 823 U.N.T.S. at 231.
The protection scheme the author proposes in this Article might be applied to
cultural elements that fall within these varied definitions, but should not be considered
limited to objects of “cultural patrimony.” Moreover, as the definitions contained herein
demonstrate, the definition of “cultural patrimony” varies depending on the goals sought
to be achieved. Thus, the issue of which elements of a country’s culture require
protection in accordance with the regime proposed herein necessarily will vary in
accordance with the needs and views of the culture at issue, and the strength of the de-
culturizing forces it faces.
22 Most multinational treaties and draft treaties regarding the protection of culture
use the term “indigenous peoples” or “indigenous culture” to refer to the culture of a
particular people. See, e.g., INTERNATIONAL LABOUR CONFERENCE, Convention
Concerning Indigenous and Tribal Peoples in Independent Countries, art. 1, para. 1(b)
(1989), reprinted in 15 OKLA. CITY U. L. REV. 237, 238 (1990) (categorizing people as
indigenous peoples “on account of their descent from the populations which inhabited
the country, or a geographical region to which the country belongs, at the time of
conquest or colonisation or the establishment of present state boundaries and who,
irrespective of their legal status, retain some or all of their own social, economic,
cultural and political institutions”). But see Tunis Model Law on Copyright for
Developing Countries, UNESCO Pub. No. 92-3-101 463-3 (1976) [hereinafter Tunis
Model Law] (suggesting protection for works of “national folklore”) (emphasis added).
Despite this apparent equivalency, the author submits there may be a perceived
distinction between need for specialized protection depending on the dominant nature of
the culture at issue. Thus, for purposes of this Article the term “indigenous culture”
refers to the culture of the original inhabitants of a particular country or region. “Native
culture,” by contrast, refers to the culture of non-indigenous peoples. For example, in the
United States, “indigenous culture” would be represented by the Native Americans and
Native Hawaiians while “native culture” would be represented by subsequent tribal and
regional groups, including long-standing immigrant groups. The terms are not precise
but are used simply to indicate that both cultures may be considered deserving, and in
need, of protection against harmful de-culturization.
112 N.C. J. INT’L L. & COM. REG. [Vol. 23
using intellectual property laws as the framework.
Part I of this Article briefly examines the impact of
globalization on native and indigenous culture, seen through the
prism of intellectual property rights.23 In Part II, present
international standards for intellectual property rights protection
are set forth, with a primary emphasis on TRIPS standards as the
international norm.24 Finally, Part III proposes changes in
intellectual property laws that developing countries can make that
will assure protection of their culture and comply with
international standards.25 In effect, this solution permits
developing countries to utilize demanded-for intellectual property
rights as a sword and shield against the de-culturizating forces of
globalization and foreign investment. Part IV concludes by
summarizing the problems faced by developing countries and by
providing potential solutions to these problems afforded by
international intellectual regimes.26
I. Coca-Colonization and McWorld—De-Culturization in the
The presence of foreign investment and the subsequent
development of a commercial culture that facilitates participation
in the global marketplace can have an adverse impact on
indigenous culture.27 The “Coca-colonization” of non-Western,
non-capitalist societies is a documented fact of twentieth century
life.28 Symbolized by the spread of a global, commercial culture
23 See infra notes 27-42 and accompanying text.
24 See infra notes 43-144 and accompanying text.
25 See infra notes 145-209 and accompanying text.
26 See infra section IV.
27 There is no question commodification of culture leads to certain, albeit limited,
benefits. Eco-tourism must be credited at least in part for preservation of wildlife and
natural parks to fill consumer demand. See, e.g., Larry Tye, Eco Tourism, BOSTON
GLOBE, Sept. 1, 1989, available in 1989 WL 4909142; Valerio, supra note 3. Similarly,
the dissemination of culture, by commodification into souvenirs and tourist ceremonies
at least serves to broaden the reach of such culture, though in a b astardized form. Such
dissemination may facilitate cross-cultural exchanges that enrich both parties. See infra
note 30 (listing articles on the potential benefits that can accrue from these exchanges).
These potential benefits, however, do not eradicate or exceed the harms of de-
culturalization that may accompany commodification.
28 The term “Coca-colonization” appears in ULF HANNERZ, CULTURAL
COMPLEXITY: STUDIES IN THE SOCIAL ORGANIZATION OF MEANING 217 (1992). “Coca-
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 113
based largely on Western consumer images of technological
advancement and popular culture—fast food, fast computers, fast
music and fast news, purveyed by such well-known multinational
corporations as KFC, Microsoft, MTV and CNN—Coca-
colonization has become the new economic imperialism of
developed countries.29 The key aspect of this Coca-colonized
global commercial culture is image—modern, forward-moving
and above-all conspicuous consumerism.30
colonization” generally refers to the global homogenization which arises from the
replacement of local products with mass produced goods, which usually originate in the
industrialized countries of the West. See David Howes, Introduction: Commodities and
Cultural Borders, CROSS-CULTURAL CONSUMPTION: GLOBAL MARKETS, LOCAL
REALITIES 3 (David Howes ed., 1996). Other terms used to refer to this twentieth-
century phenomenon include “Neo-Fordism,” L. GROSSBERG, WE GOTTA GET OUT OF
THIS PLACE: POPULAR CONSERVATISM AND POST MODERN CULTURE (1992); “cultural
imperialism,” JOHN TOMLINSON, CULTURAL IMPERIALISM (1991); and “McWorld,”
BENJAMIN R. BARBER, JIHAD V. MCWORLD: HOW GLOBALISM AND TRIBALISM ARE
RESHAPING THE WORLD (1996). See generally infra notes 29-37 and accompanying text
(discussing the cultural impact of mass produced goods); see also Howes, supra, at 3-8
(discussing the universalist and transcultural aspects of Coca-Cola’s image, and the role
that the image has on the internalization of American political ideology).
29 The author does not mean to suggest that the cultural-leveling effect of Coca-
colonization is solely a problem for developing countries. To the contrary, the
“traditional” American culture of mom and pop enterprises, local bookstores, and the
proverbial “Main Street USA” has given way to mega-stores, malls, and all of the other
fast food, fast-living, convenience-driven life style represented by “Coca-colonization.”
See, e.g., Jim Dufresne, Specialty Outdoor Outlets Feeling Pinch from Chain Stores,
GRAND RAPIDS PRESS (Iowa), OCT. 25, 1997, available in 1997 WL 15625337; Holly
Rosenkrantz, Latte, Anyone?, FAIRFIELD COUNTY BUS. J. (Conn.), Sept. 23, 1996, at 1,
available in 1996 WL 855023. Thus, even the Western industrialized societies that
spawned the phenomenon must deal with its adverse affects.
30 See, e.g., BARBER, supra note 28 (examining the conflict between global
commercial culture and Third World values); CELIA LURY, CONSUMER CULTURE (1996)
(examining, inter alia, globalization and consumer culture); Monroe Price & Aimee
Brown Price, Custom, Currency and Copyright: Aboriginal Art and the $10 Note,
CARDOZO LIFE, Fall 1996, at 19 (exploring the conflict between aboriginal rituals and
commercial demands for art); Michael Blakeney, Milpurrurru & Ors. v. Indofurn Pty
Ltd. & Ors—Protecting Expressions of Aboriginal Folklore Under Copyright Law,
(visited Aug. 21, 1997) <http://www.murdoch.educ.au/issues/v2n1/blakeney.txt>
(exploring the conflict between aboriginal rituals and commercial art).
The author does not intend to suggest that the cross-cultural borrowing represented
by “McWorld” is unique to the twentieth century or that all cross-cultural borrowing is
necessarily harmful or destructive. To the contrary, cross-cultural borrowing may enrich
the native culture and may also lead to greater mutual tolerance of cultural differences.
See David Howes, Cultural Appropriation and Resistance in The American Southwest:
Decomodifying ‘Indianness,’ in CROSS-CULTURAL CONSUMPTION: GLOBAL MARKETS,
LOCAL REALITIES 156 (1996) [hereinafter Howes, Cultural Appropriation Resistance in
114 N.C. J. INT’L L. & COM. REG. [Vol. 23
Benjamin R. Barber coined the term “McWorld” to describe
this growing trend toward a homogenized, global marketplace,
notable for its absence of recognizable national boundaries.31 He
What just a few years ago, Robert Reich called “the coming
irrelevance of corporate nationality,” is not coming anymore. It
is here . . . . Thomas Jefferson’s warning that merchants have no
country has become a literal truth for the multinational
corporations of McWorld. And the markets they ply now a days
are more anonymous still. How are nations to control the
market in pirated software or smuggled plutonium? . . . Has it
even got an address?32
According to Barber, “McWorld” exists outside of national or
political boundaries. It is “a product of popular culture driven by
expansionist commerce . . . . It is about culture as commodity,
apparel as ideology.”33 It seems that the opening of non-
industrialized countries to the global marketplace is invariably
accompanied by the arrival of Western commercial culture. For
example, icons such as Mickey Mouse, Ronald McDonald, and
Barbie are known throughout the world.34
The arrival of a global commercial culture brings the all-too-
common de-culturization of traditional customs, rituals and
folklore in order to allow their streamlining for mass consumption.
The American Southwest]. However, the author believes that cross-cultural borrowing
that results in de-culturization represents the type of destructive borrowing that countries
may, and should, wish to control. Furthermore, although this Article focuses on the use
of intellectual property laws to protect the culture of Third World countries, concern
over de-culturization is not limited to the Third World. To the contrary, French and
Canadian efforts to protect their culture from the leveling effects of U.S. television and
movies is well-known. See Lawrence G.C. Kaplan, The European Community’s
Television Without Frontiers Directive: Stimulating Europe to Regulate Culture, 8
EMORY INT’L L. REV. 255 (1994) (discussing the use of the Television Without Frontiers
Directive by the EC to protect European culture from globalization); Stacie I. Strong,
Banning The Cultural Exclusion: Free Trade and Copyrighted Goods, 4 DUKE J. COMP.
& INT’L L. 93 (1993) (examining the use of cultural exclusions under the Canadian Free
Trade Agreement to protect Canadian culture from dominance by the U.S. broadcasting
31 See BARBER, supra note 28, at 231.
33 Id. at 13, 17.
34 Indeed, in a recent trip to Cuba, the author discovered a photo studio which used
Mickey Mouse to advertise its child portrait services despite a U.S. embargo that should
have made this icon virtually unknown in the country.
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 115
For example, the traditions of the Maori in New Zealand, the
native Hawaiians and native Americans in the United States, and
certain indigenous cultures of Latin America have become
commercialized to such an extent that their cultural and religious
significance has been virtually erased from public memory. Thus,
tourists in New Zealand watch performers clad in bastardized
versions of “traditional” Maori dress perform a welcoming
ceremony although the performers have no concept of, or
appreciation for, the cultural significance of such rituals.35 In
Peru, local workers manufacture and sell replicas of golden
artifacts symbolizing Incan culture with no remembrance or
connection to the heritage that created such artifacts.36 In the
United States, the names of native American tribes and historical
personages have been used to name and adorn every type of
consumer “good” imaginable including sports teams, T-shirts, and
35 See, e.g., Maoris to Develop Mark of Authenticity, TRAVEL TRADE GAZETTE
EUROPA, Sept. 5, 1996, at 30, available in 1996 WL 16536096.
36 See supra notes 29-30 (discussing the leveling effects of cultural
commodification); see also CROSS-CULTURAL CONSUMPTION, supra note 28 (containing
diverse articles exploring the impact of globalization on local culture).
37 See infra note 42 (discussing the perceived lack of benefit afforded developing
countries from the enforcement of intellectual property rights); see also Howes, Cultural
Appropriation and Resistance in the American Southwest, supra note 31, at 142-44.
Howes describes a controversy involving a comic book entitled “The Kachinas Sing of
Doom,” published in March 1992 by Marvel Comics. In this comic book, the villains
are white members of a local gambling cartel who wear Kachina masks and costumes as
disguises. The use of such imagery is directly contrary to the transformative power
represented by the masks in the Hopi religion. The Kachina mask does not serve as a
disguise. Instead, the wearer is transformed into the spirit represented by the mask. See
id. David Howes posits that the harm caused by this de-culturization is actually two-
fold. The first he calls “the dilution of tradition,” which results in the undermining of
the culture’s fundamental beliefs by incorporating the misconceptions derived from the
de-culturization. In the case of the Marvel Comics, the misconception would be that
masks are for disguise, not revelation. See id. at 143. The second harm he calls “the
dissemination of tradition,” which is the loss of control over public dissemination of
“culturally sensitive information.” Id. Where, as in the Hopi culture, the ritual or
information is considered sacred, or restricted only to initiates, its uncontrolled public
dissemination is directly contrary to the cultural precepts in which it arises. See id. at
143-44; see also Blakeney, supra note 30 (examining the adverse impact on Pitjantjara
culture of an anthropology textbook which disclosed secret rituals).
Both harms, in the author’s opinion, qualify as de-culturizing harms against which
protection should be provided. Protection against the harm of unauthorized
“dissemination” however, should be carefully exercised since it could lead to harmful
116 N.C. J. INT’L L. & COM. REG. [Vol. 23
This transformation of “indigenous culture” into a de-
culturized, marketable commodity may be facilitated and,
potentially even accelerated, by the development and enforcement
of the intellectual property laws required to attract foreign
investors. Such laws may exacerbate this de-culturization by
promoting “McWorld” over native traditions and customs.38 The
products of culture that have the greatest value in the global
marketplace, at least for the present, appear to be those of the
technologically developed, industrialized countries.39 Patented
drugs, copyrighted videos, records, computer programs, and
trademarked fast food franchises are “hot commodities” in the
global marketplace.40 By contrast, developing countries currently
do not pose a large body of protected works created by their own
censorship. See infra notes 173-175 and accompanying text (examining censorship
38 See, e.g., Constance Classen, Sugar Cane, Coca-Cola and Hypermarkets:
Consumption and Surrealism in the Argentine Northwest, in CROSS-CULTURAL
CONSUMPTION, supra note 28, at 39, 42-43 (examining the adoption of Coca-cola and
other Western products and traditions into the culture of Northwestern Argentina to such
an extent that they are considered indigenous); Mary M. Crain, Negotiating Identities in
Quito’s Cultural Borderlands: Native Women’s Performances for the Ecuadorian
Tourist Market, in CROSS-CULTURAL CONSUMPTION, supra note 28, at 125, 137
(examining de-culturizing forces on the hotel labor force and the tourist market’s
presentation of “native” culture). For a contrasting view of the impact of globalization
on native traditions, see Carol Hendrickson, Selling Guatemala: Maya Export Products
in U.S. Mail-Order Catalogues, in CROSS-CULTURAL CONSUMPTION, supra note 28, at
106, 112-13 (examining the methods used to market native products through references
to “tradition,” “uniqueness” and environmental protection benefits).
39 See infra note 40 (discussing the type and quantity of goods pirated from
40 Perhaps the most telling evidence of the global desirability of these products is
the amount of revenues lost as a result of the pirating of such goods. According to the
Intellectual Property Alliance, in 1995, the United States lost an estimated $6.9 billion in
exports due to foreign counterfeiting of movies, records, books, and software. See
Bruce Stokes, The Diminishing Return of Slapping China for Piracy of U.S. Copyrights,
L.A.TIMES, May 26, 1996, at M2. The Pharmaceutical Manufacturer’s Association
estimates lost revenue due to pirating of patented drugs exceeds three billion dollars.
See id.; see also Eric Smith, Worldwide Copyright Protection Under the TRIPS
Agreement, 29 VAND. J. TRANSNAT’L L. 559 (1996). The Software Business Alliance
claims that in 1996, the U.S. lost over $11.2 billion as a result of the illegal copying and
distribution of computer software worldwide. See Berta Gomez, Global Software Piracy
Continues to Rise, Says New Survey (visited July 1997)
<http://www.usia.gov/topical/global/ip/piracy/html>. For an interesting examination of
the history and impact of global copyright infringement, see JOHN GURNSEY, COPYRIGHT
THEFT (Aslib Gower ed., 1995).
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 117
authors, inventors or native culture which can find a ready
international market.41 Thus, the recognition and enforcement of
intellectual property rights may be seen as providing little benefit
to the developing countries themselves.42
Given these concerns, newly industrialized countries may be
faced with a painful dilemma—seek foreign investment to advance
their technological and industrial base at the risk of potentially
irreversible harm to indigenous and native culture or protect such
culture at the cost of technological advancement. This author
contends that there may be a workable solution to this problem,
based on the very intellectual property laws that seem to contribute
to the problem.
41 The only exception may be de-culturized items created for the tourist market and
some mail-order catalogue creations. See Hendrikson, supra note 38.
42 See, e.g., Carlos Alberto Primo Braga, The Economics of Intellectual Property
Rights and the GATT: View from the South, 22 VAND. J. TRANSNAT’L L. 243 (1989)
(examining Third World views regarding the harm caused by intellectual property rights
protection); Long, The Protection of Information Technology, supra note 13 (discussing
developing countries’ view that technology is “the common heritage of mankind”).
Furthermore, such laws might actually be perceived as harmful since they might be used
to solidify rights in the de-culturized aspects of native culture in the hands of the
commodifier. For example, in the United States the names of various Native American
tribes and historical figures have been used in connection with sports teams and
consumer products, including alcoholic beverages such as Crazy Horse beer. The users
of these de-culturized products of Native American culture have sought trademark
protection for such uses, thus investing their use with the benefits of proprietorship.
See, e.g., Richard A. Guest, Intellectual Property Rights and Native American Tribes, 20
AM. INDIAN L. REV. 111 (1996) (discussing the Crazy Horse case, among others).
Although efforts have been made to challenge these attempts at appropriation, see
Cathryn Claussen, Ethnic Team Names and Logos—Is There a Legal Solution?, 6
MARQ. SPORTS L. J. 409 (1996) (briefly analyzing efforts to remove federal trademark
registrations of team names using ethnic terms), they are not always successful. A
recent attempt to challenge the use of the mark “The Original Crazy Horse Malt Liquor”
ultimately failed on First Amendment grounds. See Hornell Brewing Co. v. Minnesota
Dept. of Public Safety, Liquor Control Division, 553 N.W.2d 713 (Minn. Ct. App.
1996). Descendants of the original Chief Crazy Horse challenged the unauthorized use
of their ancestor’s name. See id. at 715. The association was considered particularly
pernicious since Chief Crazy Horse did not drink alcoholic beverages and had even
argued against the evils of alcohol during his lifetime. Although the label was originally
held illegal for its misleading affiliation with an American Indian leader, the decision
was ultimately reversed for violating the brewing company’s First Amendment free
speech rights. See id. at 719.
118 N.C. J. INT’L L. & COM. REG. [Vol. 23
II. Current International Intellectual Property Protection
Most intellectual property law models are based on Western,
capitalist philosophy, and indeed appear to be developed with such
a world-view in mind.43 The mere fact that works of intellectual
43 See, e.g., ASSAFA ENDESHAW, INTELLECTUAL PROPERTY POLICY FOR NON-
INDUSTRIAL COUNTRIES (1996). Although it is the author’s position that Western
capitalist views do not necessarily have to be adopted in order to comply with present
international standards, there is no question that most models appear to incorporate the
individuated property views of the West. See infra note 49 and accompanying text
(discussing the role of “private rights” in international intellectual property models). For
example, protected works under the copyright laws of the developed countries generally
require an individual, recognizable author to whom exploitation rights for these works
are granted. See supra note 9 and infra notes 45-47 and accompanying text for a
discussion of these laws. Such individuated rights by their nature preclude recognition
of the governmental or societal ownership views of a socialist economic system. Thus,
although pre-Soviet Russia boasted intellectual property laws that recognized ownership
and exploitation rights for the individual author or inventor, such rights were eliminated
under the socialist system of the Soviet Union. See, e.g., ENDESHAW, supra, at 75-79;
see also IRINA V. SAVALEYA, COPYRIGHT IN THE RUSSIAN FEDERATION (1993) (discussing
pre-Soviet patent laws in Russia). These rights were re-established after the collapse of
the Soviet Union and the re-emergence of a market economy. See id.
Similarly, the individuated property rights of Western intellectual property systems
appear to preclude recognition of commutarian or tribal authorship which underlies
much of the intellectual property rights of the indigenous and native cultures of the
developing countries. See, e.g., VALUING LOCAL KNOWLEDGE: INDIGENOUS PEOPLES AND
INTELLECTUAL PROPERTY RIGHTS (Stephen B. Brush & Doreen Stabinsky eds., 1996);
Rosemary J. Coombe, The Properties of Culture and The Politics of Possessing Identity:
Native Claims in the Cultural Appropriation Controversy, 6 CONST. J.L. & JURIS. 249
(1993); Madhaui Sunder, Authorship and Autonomy As Rites of Exclusion: The
Intellectual Propertization of Free Speech in Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, 49 STAN. L. REV. 143 (1997). As the Bellagio Declaration
Contemporary intellectual property law is constructed around a notion of the
author as an individual, solitary and original creator, and it is for this figure that
its protections are reserved. Those who do not fit this model—custodians of
tribal culture and medical knowledge, collectives practicing traditional artistic
and musical forms, or peasant cultivators of valuable seed varieties . . . are
denied intellectual property protection.
Bellagio Declaration, supra note 21, at 108. Consequently, recent efforts to extend
protection to communtarian works such as folklore have focused on sui generis regimes
outside traditional intellectual property schemes. See supra notes 168-173 (discussing
the author’s proposed protection scheme).
As discussed more fully below such sui generis schemes are not mandated under
current international standards, and may even be counterproductive, in the author’s
opinion, because they unnecessarily place the protection of such works outside the
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 119
creativity and innovation, so-called “works of the mind,” are
granted the status of protectable individual property itself
represents a Western view.44 It is no coincidence that intellectual
property rights were first recognized in Western Europe where
individual ownership of property was possible.45
The Western model for protecting works of cultural and
intellectual creativity is based largely on the recognition of
property rights granted to creators of the work in question.46
mainstream of intellectual property protection. Such “special” status not only slows the
extension of protection on a global scale (because new accords must be developed), it
also makes such protection less likely, because there is no pre-existing framework on
which to develop an international protection regime.
44 In To Steal a Book is an Elegant Offense, William Alford cogently examines the
“problem” of intellectual property enforcement in China and makes a strong case for the
view that property-based views of such protection are contrary to Chinese culture.
Alford explains that “interaction with the past is one of the distinctive modes of
intellectual and imaginative endeavor in traditional Chinese culture.” WILLIAM A.
ALFORD, TO STEAL A BOOK IS AN ELEGANT OFFENSE: INTELLECTUAL PROPERTY LAW IN
CHINESE CIVILIZATION 28 (1995) (footnote omitted). Such interaction requires both
unfettered access to information in all forms, including written, musical and painted
forms, and unfettered distribution of those forms deemed useful by the pertinent
authorities. This type of access and distribution exists outside the merchant guilds and
printers monopolies that characterized the development of intellectual property rights in
Europe. See also Liwei Wang, The Chinese Traditions Inimical to the Patent Law, 14
N.W. J. INT’L L. & BUS. 15 (1993). Tribal cultures have a communitarian view of
property and information that similarly does not translate to individual proprietorship.
See RONALD V. BETTY, COPYRIGHTING CULTURE: THE POLITICAL ECONOMY OF
INTELLECTUAL PROPERTY 12-13 (1996) (Indian and Balinese traditions); Christopher
Byrne, Chilkat Indian Tribe v. Johnson and Nagpra: Have We Finally Recognized
Communal Property Rights in Cultural Objects?, 8 J. ENVTL. L. & LITIG. 109 (1993)
(Native American traditions); Ruth Gana, Has Creativity Died In the Third World?
Some Implications of the Internationalization of Intellectual Property, 24 DENV. J. INT’L
L. & POL’Y 109, 132-37 (1995) (diverse aboriginal traditions); Philip McCabe & Brent
Porter, Of Lore, Law and Intellectual Property, 27 IP WORLD 23 (1995) (Maori
45 The first reported copyright law was enacted in England in 1710. Statute of
Anne, 8 Anne, c. 19 (1710). The first reported trademark type regulation may have been
enacted in Venice in the Middle Ages. See STEPHEN P. LADAS, THE INTERNATIONAL
PROTECTION OF INDUSTRIAL PROPERTY 8-9 (1930). Multinational treaties governing
intellectual property rights were similarly first established in Europe, including, most
notably, the Berne Convention for the Protection of Literary and Artistic Works in 1886
and the Paris Convention for the Protection of Industrial Designs in 1883. See
BENJAMIN KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT (1967); FRANK SCHECHTER,
THE HISTORICAL FOUNDATIONS OF THE LAW RELATING TO TRADE-MARKS (1925). See
generally DONALD CHISUM & MICHAEL JACOBS, UNDERSTANDING INTELLECTUAL
PROPERTY LAW (1992); MARSHALL LEAFFER, UNDERSTANDING COPYRIGHT LAW (1995).
46 For example, Article I of the U.S. Constitution grants Congress the right to
120 N.C. J. INT’L L. & COM. REG. [Vol. 23
These property rights give creators the legal right to control the
use of their creations, including control over the economic terms
on which they will allow their commercial commodification and
dissemination.47 Despite the historical role that Western views of
property ownership have played in the growth of intellectual
property rights,48 the adoption of such Western views is not
necessarily required under current international standards.49 To
“promote the progress of science and useful arts, by securing for limited times to authors
and inventors the exclusive right to their respective writings and discoveries.” U.S.
CONST. art. I, § 8, cl. 8. Under this clause, copyright owners are granted a proprietary
interest in their protected works, see 17 U.S.C. § 106 (1997), and inventors are granted
similar rights over their patented inventions, see 35 U.S.C. §§ 154, 271 (1997). See
generally MARK ROSE, AUTHORS AND OWNERS: THE INVENTION OF COPYRIGHT (1993);
Stephen L. Carter, Does It Matter Whether Intellectual Property Is Property?, 68 CHI.-
KENT L. REV. 715 (1993); Wendy J. Gordon, A Property Right in Self-Expression:
Equality and Individualism in the Natural Law of Intellectual Property, 102 YALE L.J.
47 For example, U.S. copyright law grants authors five exclusive rights over their
protected works, including the right to authorize the reproduction and distribution of the
work, in whole or in part. See 17 U.S.C. § 106 (1997). Other countries grant similar
rights. See United Kingdom Designs and Patents Act of 1988 (c48), pt. I, ch. I, § 16(1)
(1989); Law of the People’s Republic of China arts. 21, 45 (1990), reprinted in UNITED
NATIONS EDUCATIONAL, SCIENTIFIC AND CULTURAL ORGANIZATION, 1 COPYRIGHT LAWS
AND TREATIES OF THE WORLD (Supp. 1990); Russian Federal Law on Copyright and
Neighboring Rights art. 15 (1993), reprinted in UNITED NATIONS EDUCATIONAL,
SCIENTIFIC AND CULTURAL ORGANIZATION, 3 COPYRIGHT LAWS AND TREATIES OF THE
WORLD (Supp. 1995).
48 See supra note 45 (discussing Western intellectual property law development).
49 The author does not mean to suggest that TRIPS cannot be seen as representing
the Western capitalist view of intellectual property rights as individual property rights.
Accord Marci Hamilton, The TRIPS Agreement: Imperialistic, Outdated and
Overprotective, 29 VAND. J. TRANSNAT’L L. 613, 616 (1996); J.H. Reichman, Beyond the
Historical Lines of Demarcation: Competition Law, Intellectual Property Rights, and
International Trade After the GATT’s Uruguay Round, 20 BROOK. J. INT’L L. 75, 113
(1993). TRIPS itself recognizes that intellectual property rights are “private rights.”
TRIPS, supra note 7, pmbl., cl. 4. However, this recognition must be balanced with the
equivalent recognition in TRIPS of “public policy objectives of national systems for the
protection of intellectual property, including developmental and technological
objectives,” and the need for “maximum flexibility” to allow developing countries “to
create a sound and viable technological base.” Id. pmbl., cls. 5, 6. Furthermore “private
rights,” do not necessarily mean “property” rights as that term is defined under Western
philosophy, particularly since several articles in the Agreement concern “unfair
competition” issues. See, e.g., TRIPS, supra note 7, arts. 39-40 (protecting undisclosed
information as “ensuring effective protection against unfair competition as provided in
Article 10bis of the Paris Convention” and permitting members to prohibit licensing
conditions or practices that “constitute an abuse of intellectual property rights having an
adverse effect on competition in the relevant market”). Even though TRIPS may be seen
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 121
the contrary, using TRIPS50 as the source for current international
intellectual property protection norms, the author believes that a
domestic system of protection can be created to meet these
international standards while providing the flexibility required to
assure that indigenous cultures and traditions can be protected and,
more importantly, nurtured.
TRIPS is the most recent, and most comprehensive,
multinational treaty which deals with the protection of all four
“traditional” forms of intellectual property.51 For the source of its
international protection norms, TRIPS relies on the long-
established, minimum substantive norms contained in the Berne
Convention for the Protection of Literary and Artistic Works
(governing copyrights)52 and the Paris Convention for the
Protection of Industrial Property (governing patents and
trademarks).53 Although a detailed discussion of these critical
as a pro-developed country regime, as demonstrated more fully below, it does not
require standards that impose such a regime.
50 TRIPS, supra note 7. Because of broad support in the international community
for TRIPS—over 111 countries signed it initially—TRIPS undoubtedly serves as an
international standard for protection. Most of its provisions incorporate pre-existing
international treaty provisions which have long served as the basis for international
protection standards for intellectual property rights. See infra notes 51-144 and
accompanying text (discussing TRIPS). Although TRIPS contains significant gaps in
coverage, including, perhaps most importantly, copyright protection in a digital
environment, it is a forward-looking multinational treaty that arose from a lengthy
negotiation process involving most of the countries of the world. See Long, Copyright
and the Uruguay Round Agreements, supra note 15, at 2281-91, for a detailed
examination of the negotiating history of TRIPS.
51 See TRIPS, supra note 7. See supra notes 8-11 for a brief review of the general
attributes of the four “traditional” forms of intellectual property that are pertinent to the
issue of protection against de-culturization—patents, copyrights, trademarks and trade
secrets. Negotiated under the Uruguay Round of GATT, TRIPS not only establishes
multinational protection norms, it represents the growing international acknowledgment
that intellectual property rights are an item of trade. See generally Long, Copyright and
the Uruguay Round, supra note 15. Furthermore, unlike previous multinational treaties
affecting intellectual property rights, TRIPS established minimum enforcement
standards and had the force of GATT (now WTO) sanctioning mechanisms to compel
compliance. See infra notes 91-144 and accompanying text for a more detailed
discussion of TRIPS.
52 See supra note 9.
53 See Paris Convention for the Protection of Industrial Property, Mar. 20, 1883,
revised by July 14, 1967, 21 U.S.T. 1629 [hereinafter Paris Convention]. TRIPS
incorporates Articles 1-21 of the Berne Convention and Articles 1-12 and 19 of the Paris
Convention. See TRIPS, supra note 7, arts. 9, 2. These incorporated articles contain the
major substantive law provisions of their respective treaties. Despite the incorporation
122 N.C. J. INT’L L. & COM. REG. [Vol. 23
multinational treaties is beyond the scope of this Article,54 each of
these contains several pertinent provisions that must be understood
in order to develop a workable solution to the problem of de-
The Berne Convention was first established in 1886.55 The
result of multinational negotiations, which can be traced to an
international convention presided over by the famous French
author Victor Hugo,56 the Berne Convention has gone through
numerous revisions.57 Yet, the Convention has maintained its
of these standards, the author does not mean to imply that TRIPS merely reflects the
older protection regimes of the Paris and Berne Conventions. To the contrary, TRIPS
represents a marked advance over these regimes. While international protection under
the Berne and Paris Conventions established some substantive protection norms, many
standards were left to domestic law norms. See Ruth Gana, Prospects for Developing
Countries Under TRIPS Agreement, 29 VAND. J. TRANSNAT’L L. 735 (1996). The
resulting patchwork of protection failed to provide a consistent international protection
standard. This lack of consistency was one of the motivating forces behind the TRIPS
negotiation. See Long, Copyright and the Uruguay Round Agreements, supra note 15.
Although scholars debate the desirability and efficacy of the protection regime
established under TRIPS, there is no doubt that the intention was to establish stricter
standards for protection. Hence, some of the vagaries of the Paris and Berne
Conventions, such as the definition of a patented invention or a trademark, have been
clarified in TRIPS. See infra notes 104-144 and accompanying text (discussing some of
the significant advances in protection established under TRIPS).
54 See generally SAM RICKETSON, BERNE CONVENTION FOR THE PROTECTION OF
LITERARY AND ARTISTIC WORKS 1886–1986 (1987) (providing a helpful general
reference on the Berne Convention); GEORGE BODENHAUSER, GUIDE TO THE APPLICATION
OF THE PARIS CONVENTION (1968) (providing a helpful general reference on the Paris
Convention); INTELLECTUAL PROPERTY AND INTERNATIONAL TRADE: A GUIDE TO THE
URUGUAY ROUND TRIPS AGREEMENT (1996) (providing a helpful general reference on
TRIPS); LAW AND PRACTICE OF THE WORLD TRADE ORGANIZATION (Joseph F. Dennis
ed., 1995) (same).
55 A detailed examination of the Berne Convention is beyond the scope of this
Article. All Berne Convention provisions relating to the substantive protection of
copyrights have been incorporated into the TRIPS Agreement. See TRIPS, supra note
7, art. 9 (incorporating Articles 1-21 of the Berne Convention, excluding Article 6bis
which relates to moral rights, not copyrights); see infra notes 195-199 and
accompanying text for a brief discussion of Article 6bis and moral rights.
56 See Peter Burger, The Berne Convention: Its History and its Key Role in the
Future, 3 J. LAW & TECH. 1 (1988). In 1878, Hugo presided over an International
Association conference that adopted five resolutions that eventually became the
foundation for the original Berne Convention. See id.
57 Diplomatic conferences to revise the Convention were held in Berlin in 1908,
Rome in 1928, Brussels in 1948, and Stockholm in 1967. See id. Most recently, WIPO
convened a diplomatic conference in Geneva in 1996 to discuss the so-called “Berne
Protocol,” designed to “update” Convention coverage to include such newly emerging
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 123
status as the pre-eminent multinational copyright treaty.58 Like
many other early multinational and bilateral treaties, the Berne
Convention required adherents to grant the identical level of
protection to domestic and foreign intellectual property owners
(referred to as “national treatment”).59 The Berne Convention,
however, went beyond merely requiring national treatment to
establish minimum substantive standards of protection that
adherents were required to meet in their domestic laws. The
Convention currently requires copyright protection for enumerated
categories of “literary and artistic works [including] every
production in the literary, scientific and artistic domain whatever
may be the mode or form of its protection.”60 It also requires that
authors be granted a term of protection of no less than the life of
the author plus fifty years for most copyrighted works,61 and that
issues as database rights, digital communication and the protection of performance
rights. This latest conference resulted in the entry into force of two new treaties, the
WIPO Copyright Treaty, WIPO Doc. CRNR/DC94 (Dec. 23, 1996), 36 I.L.M. 65
(1997), and the WIPO Performances and Phonograms Treaty, WIPO Doc. CRNR/DC/95
(Dec. 23, 1996), 36 I.L.M. 76 (1997), both of which used the Berne Convention as their
starting point for copyright protection principles.
58 Although the United States did not accede to the Berne Convention until 1989,
such delay was not based on the low status of the Convention as a force for international
copyright standards. See REPORT ON THE BERNE CONVENTION IMPLEMENTATION ACT OF
1988, H. R. Rep. No. 352, 100th Cong., 2d Sess. 3 (1988). To the contrary, accession
was delayed largely by United States concerns over Article 6bis and its requirement that
adherents grant moral rights protection to artists. See Berne Convention, supra note 8,
art. 6bis, 828 U.N.T.S. at 235. See generally Gerald Dworkin, The Moral Right of the
Author: Moral Rights and the Common Law Countries, 19 COLUM.-VLA J.L. & ARTS
229 (1995); Orren G. Hatch, Better Late Than Never: Implementation of the 1886 Berne
Convention, 22 CORNELL INT’L L.J. 171 (1989); see infra notes 195-199 and
accompanying text (discussing moral rights and Article 6bis).
59 See Berne Convention, supra note 8, art. 5, 828 U.N.T.S. at 231-32.
60 Id. art. (2)(1), 828 U.N.T.S. at 227. Among the enumerated works included in
this definition are the following:
books, pamphlets and other writings; lectures, addresses, sermons and other
works of the same nature; dramatic or dramatic-musical works; choreographic
works and entertainments in dumb show; musical compositions with or without
words; cinematographic works to which are assimilated works expressed by a
process analogous to cinematography; works of drawing, painting, architecture,
sculpture, engraving and lithography; photographic works to which are
assimilated works expressed by a process analogous to photography; works of
applied art; illustrations, maps, plans, sketches and three-dimensional works
relative to geography, topography, architecture or science.
61 See id. art. 7, 828 U.N.T.S. at 235-37.
124 N.C. J. INT’L L. & COM. REG. [Vol. 23
they be given the right to control the reproduction of their works,62
their translation,63 and their public distribution, performance and
display.64 The Berne Convention expressly recognized a country’s
right to provide certain exceptions to these granted rights for
purposes of news reporting,65 education66 and other designated
“fair uses.”67 Although the United States did not accede to the
Berne Convention until 1989,68 the Convention has served as a
primary driving force in the establishment of international
copyright protection norms.69 It is currently administered by the
62 See id. art. 9, 828 U.N.T.S. at 239.
63 See id. art. 8, 828 U.N.T.S. at 239. Article 12 of the Berne Convention also
grants authors the exclusive right of “authorizing adaptations, arrangements and other
alterations of their works.” Id. art. 12, 828 U.N.T.S. at 243-44.
64 See id. arts. 11, 11bis, 11ter , 828 U.N.T.S. at 241-42.
65 See id art. 10 bis, 828 U.N.T.S. at 241.
66 See id. art. 10(2), 828 U.N.T.S. at 241.
67 For example, Article 2bis of the Berne Convention permits member countries to
exclude from copyright protection “political speeches and speeches delivered in the
course of legal proceedings.” Berne Convention, supra note 8, art. 2bis(1), 828 U.N.T.S.
at 229. Article 10 allows exemptions for purposes of comment so long as the use of
such works “is compatible with fair practice” and does not “exceed that justified by the
purpose.” Id. art. 10(1), 828 U.N.T.S. at 239. These provisions have been incorporated
through TRIPS Article 9 and, therefore, remain legitimately recognized international
exceptions to protection. See TRIPS, supra note 7, art. 9.
68 See Berne Convention Implementation Act of 1988, Pub. L. No. 100-568, 102
Stat. 2853 (1983). This delay in accession was largely due to U.S. reluctance over the
moral rights provision of Article 6bis of the Berne Convention. See supra note 58
(discussing the U.S. reluctance to accede to the Berne Convention).
69 This importance was demonstrated when the United States acknowledged that
the Berne Convention established international protection norms for copyrighted works.
In the House Report for the Berne Implementation Act, Congress stated:
The Berne Convention for the Protection of Literary and Artistic Works . . . is
the highest internationally recognized standard for the protection of works of
authorship of all kinds. US membership in the Berne Convention will secure
the highest available level of multilateral copyright protection for US artists,
authors and other creators. Adherence will also ensure effective US
participation in the formulation and management of international copyright
policy. Adherence to the Convention is in the national interest because it will
ensure a strong, credible US presence in the global marketplace . . . . For more
than 100 years, the Berne Convention has been the major multilateral
agreement governing international copyright relations . . . . Accession to Berne
assures the highest level of protection in the countries that are the largest users
of American copyrighted works.
REPORT ON THE BERNE CONVENTION IMPLEMENTATION ACT OF 1988, H. R. Rep. No. 100-
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 125
World Intellectual Property Organization (WIPO).70
The Paris Convention governs patents and trademarks and was
first established in 1883.71 Like its counterpart, the Berne
Convention, the Paris Convention requires national treatment72
and establishes minimum protection standards for patented
inventions. The Paris Convention requires member countries to
provide patent owners many rights, including a right of priority of
one year from the date of national filing in which to file patent
applications in member countries;73 independence of existence so
that forfeiture of a patent in one country does not result in world-
wide forfeiture;74 and the right of the inventor to be mentioned as
such in the patent.75 Remarkably, the Paris Convention provides
no definition of the term “patent.”76 Like the Berne Convention,
the patent provisions of the Paris Convention have received
constant international attention and have been modified numerous
352, 100th Cong., 2d Sess. 3 (1988). The Berne Convention continues to play a pre-
eminent role in the development of international copyright standards, as demonstrated
by the adoption of Berne Convention standards in the TRIPS Agreement. See supra
note 52 and accompanying text (discussing the incorporation of Berne Convention
standards in TRIPS).
70 See Texts of Treaties Administered by WIPO, (visited Feb. 17, 1997)
71 See Berne Convention, supra note 8. A detailed examination of the Paris
Convention is beyond the scope of this Article. Similar to the treatment of Berne
Convention requirements for copyright protection incorporated into TRIPS, all pertinent
provisions of the Paris Convention relating to the substantial protection of patents and
trademarks have been incorporated into TRIPS. See TRIPS, supra note 7, art. 2
(incorporating Articles 1-12 and 19 of the Paris Convention).
72 See Paris Convention, supra note 53, art. 2(1), 21 U.S.T. at 1631.
73 See id. art. 4, 21 U.S.T. at 1631-32.
74 See id art. 4bis, 21 U.S.T. at 1635-36.
75 See id. art. 4ter, 21 U.S.T. at 1636.
76 Instead, Article I defines “patents” as one of the “objects” of “protection of
industrial property.” Id. art. 1(2), 21 U.S.T. at 1630. The only “definition” appears in
Article 1(4) which provides that patents “shall include the various kinds of industrial
patents recognized by the laws of the countries of the Union, such as patents of
importation, patents of improvement, patents and certificates of addition, etc.” Id. art.
1(4), 21 U.S.T. at 1630. TRIPS finally established a multinational definition of sorts for
a protectable invention. In Article 27, it provides that patents “shall be available for any
inventions, whether products or processes, in all fields of technology, provided that they
are new, involve an inventive step and are capable of industrial application.” TRIPS,
supra note 7, art. 27. See infra notes 106-112 and accompanying text for a more
detailed discussion of patent requirements under TRIPS.
126 N.C. J. INT’L L. & COM. REG. [Vol. 23
The Paris Convention also requires national treatment for
trademark owners78 and establishes minimum substantive
standards for their protection.79 Similar to its treatment of patent
rights, the Convention contains no detailed definition of the types
of source designators which qualify as protectable trademarks.80
The Convention does, however, indicate that marks may be
refused protection if they are “devoid of any distinctive character
. . . .”81 Most of the provisions of the Paris Convention regarding
the protection of trademark rights focus on the requirements for
allowing a foreign owner the ability to register and protect its
mark.82 The Convention also requires member countries to
provide protection for “well-known” marks by prohibiting their
“reproduction, imitation, or translation” on identical or similar
77 Since its inception, the Paris Convention has been revised four times.
Conferences were held in The Hague in 1925, London in 1934, Lisbon in 1958, and
Stockholm in 1967. See J.W. BAXTER, 2 WORLD PATENT LAW AND PRACTICE § 10.05
78 See Paris Convention, supra note 50, art. 2(1), 21 U.S.T. at 1631.
79 See infra notes 80-82 and accompanying text (describing the key substantive
standards under the Convention).
80 Although the Paris Convention provides for the protection of trademarks,
service marks and collective marks, it does not define these terms or provide any other
list or explanation of the types of industrial property which should qualify as a protected
mark. In fact, it does not even use the term “source designator” or “indicator” when
referring to such potentially protectable marks. See Paris Convention, supra note 53.
81 Id. art. 6quinquies (B)(2), 21 U.S.T. at 1644.
82 Among the registration standards established under the Paris Convention are the
right of member countries to require use prior to registration; see id. art. 5(C)(1), 21
U.S.T. at 1637; the acceptability of concurrent use by co-proprietors of the mark; see id.
art. 5(C)(3), 21 U.S.T. at 1638; and the independence of trademark registrations so that
cancellation in the country of origin does not result in automatic cancellation worldwide.
See id. art. 6(3), 21 U.S.T. at 1639.
Subsequent multinational treaties regarding trademarks have similarly focused on
registration issues, including the Nice Agreement Concerning the International
Classification of Goods and Services for the Purposes of the Registration of Marks, Aug.
2, 1972, 23 U.S.T. 1336, 550 U.N.T.S. 45 (known as the “Nice Classification Treaty”);
the Madrid Agreement Concerning the International Registration of Trademarks, Apr.
14, 1891, as revised June 15, 1997, 828 U.N.T.S. 389; Protocol Relating to the Madrid
Agreement Concerning the International Registration of Marks, June 28, 1989, available
in <http://www.wipo.org/eng/iplex/index.htm> (“Madrid Protocol”); and the Trademark
Law Treaty, Oct. 27, 1994, available in <http://www.wipo.org/eng/iplex/index.htm>.
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 127
goods where such use is “liable to create confusion.”83 It also
grants owners of protected marks the right to secure seizures of
infringing goods where their marks are subject to domestic
The Paris Convention did not directly address the protection of
trade secrets. It did, however, in Article 10bis, require “effective
protection against unfair competition,”85 and defined acts of unfair
competition as including “any act of competition contrary to
honest practices in industrial or commercial matters.”86 Although
subsequent language in the treaty focused on unfair acts which
“create confusion” or “mislead the public,”87 Article 10bis has
subsequently served as the basis for establishing minimum trade
secret rights.88 The Paris Convention, like the Berne Convention,
is administered by WIPO.89
83 Paris Convention, supra note 53, art. 6bis(1), 21 U.S.T. at 1640. This article
The countries of the Union undertake, ex officio if their legislation so permits,
or at the request of an interested party, to refuse or to cancel the registration,
and to prohibit the use, of a trademark which constitutes a reproduction, an
imitation, or a translation, liable to create confusion, of a mark considered by
the competent authority of the country of registration or use to be well known
in that country as being already the mark of a person entitled to the benefits of
this Convention and used for identical or similar goods. These provisions shall
also apply when the essential part of the mark constitutes a reproduction of any
such well-known mark or an imitation liable to create confusion therewith.
84 See id. art. 9, 21 U.S.T. at 1647.
85 Id. art. 10bis(1), 21 U.S.T. at 1648.
86 Id. art. 10bis(2), 21 U.S.T. at 1648.
87 Article 10bis specifies three “particular” acts which must be “prohibited,”
including “all acts of such a nature as to create confusion by any means whatever with
the establishment, the goods, or the industrial or commercial activities, of a competitor,”
Id. art. 10bis(3)(1), 21 U.S.T. at 1648 (emphasis added), and “indications or allegations
the use of which in the course of trade is liable to mislead the public as to the nature, the
manufacturing process, the characteristics, the suitability for their purpose, or the
quantity, of the goods,” Id. art. 10bis(3)(3), 21 U.S.T. at 1648. The third prohibited act is
use of “false allegations in the course of trade of such a nature as to discredit the
establishment, the goods, or the industrial or commercial, activities, of a competitor.”
Id. art. 10bis(3)(2), 21 U.S.T. at 1648.
88 See TRIPS, supra note 7, art. 39. For a more detailed discussion of TRIPS, see
infra notes 91-144 and accompanying text.
89 See, e.g., Texts of Treaties Administered by WIPO (visited Jan. 31, 1998)
128 N.C. J. INT’L L. & COM. REG. [Vol. 23
The most recent, and in the author’s view, the most significant,
multinational treaty concerning intellectual property rights is
TRIPS.90 The result of nearly seven years of multinational
negotiations during the Uruguay Round of GATT,91 TRIPS not
only relies upon the long-established protection norms of the
Berne and Paris Conventions, it fills some important gaps in
protection under these treaties. Like the in the Berne and Paris
Conventions, adherents to TRIPS are required to grant the
identical level of protection to domestic and foreign intellectual
property owners (referred to as “national treatment”).92 Moreover,
TRIPS goes beyond simply requiring national treatment and, like
its predecessors the Berne and Paris Conventions, establishes
minimum substantive standards of protection.93
Because it incorporates Articles 1-12 of the Berne Convention,
TRIPS provides copyright protection for the enumerated
categories of “literary and artistic works” as set forth in the Berne
Convention.94 Such protection includes a term of protection for
most works of no less than the life of the author plus fifty years95
and the right to prohibit the unauthorized reproduction,96
90 See TRIPS, supra note 7.
91 See, for example, A NEGOTIATING HISTORY, supra note 13, for a history of the
length and range of the debates leading up to TRIPS.
92 See TRIPS, supra note 7, art. 3. TRIPS requires national treatment “with regard
to the protection of intellectual property, subject to the exceptions already provided in,
respectively, the Paris Convention (1967) [and] the Berne Convention (1971).” Id.
TRIPS defines “protection” as including “matters affecting the availability, acquisition,
scope, maintenance, and enforcement of intellectual property rights as well as those
matters affecting the use of intellectual property rights specifically addressed in this
Agreement.” Id. art. 3 n.3. “Intellectual property rights” is defined as copyrights,
trademarks, industrial designs, patents, geographical indications, topographies of
integrated circuits and trade secrets (or “undisclosed information”). See id. art. 1(2).
“Geographical indications “are defined as “indications which identify a good as
originating in the territory of a Member, or a region or locality in that territory, where a
given quality, reputation or other characteristic of the good is essentially attributable to
its geographical origin.” Id. art. 22. They are often treated as a sub-category of
93 See infra notes 94-127 and accompanying text (describing the key substantive
standards established under TRIPS).
94 See TRIPS, supra note 7, art. 9 (incorporating Article (2) of The Berne
95 See id. (incorporating Article 7 of the Berne Convention).
96 See id. (incorporating Article 9 of the Berne Convention).
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 129
translation,97 public distribution,98 public display99 or public
performance100 of their protected works. TRIPS explicitly extends
copyright protection to computer programs and “compilations of
data or other material . . . which by reason of the selection or
arrangement of their contents constitute intellectual creations.”101
TRIPS also adopted the Berne Convention exceptions for
protection for purposes of education and news reporting.102
However, TRIPS provides that “limitations or exceptions to
exclusive rights” must be confined to “certain special [but
undefined] cases which do not conflict with a normal exploitation
of the work and do not unreasonably prejudice the legitimate
interests of the right holder.”103
Similar to its treatment of copyright,104 TRIPS incorporates the
minimum substantive standards of the Paris Convention for its
required level of protection for patents, trademarks and trade
secrets.105 However, TRIPS goes beyond these standards to
establish minimum definitional requirements for a patentable
invention. It requires that patent protection be extended to
inventions “in all fields of technology”106 and further requires that
patent rights be extended only to those inventions which are
“new,” “involve an inventive step,” and are “capable of industrial
97 See id. (incorporating Articles 8 & 12 of the Berne Convention).
98 See id. (incorporating Article 11bis of the Berne Convention).
99 See id. (incorporating Article 11ter of the Berne Convention).
100 See id.
101 Id. art. 10(2). This category was not previously expressly protected under the
Berne Convention. See supra note 60 (defining protected works under the Berne
Convention). TRIPS, however, does not define or otherwise specify the requirements
for constituting an “intellectual creation,” including to what extent “originality” of the
work may be required. See infra note 148 (discussing various tests for “originality” and
their impact on international protection issues).
102 See TRIPS, supra note 7, art. 9. (incorporating Articles 2 and 10 of the Berne
103 Id. art. 13. TRIPS does not further define which cases would “conflict with a
normal exploitation of the work.” This language originally appeared in Article 9(2) of
the Berne Convention but was limited to fair use reproduction. See Berne Convention,
supra note 8, art. 9(2), 828 U.N.T.S. at 239.
104 See supra notes 94-103 and accompanying text (discussing copyright
105 See TRIPS, supra note 7, art. 2.
106 TRIPS, supra note 7, art. 27.
130 N.C. J. INT’L L. & COM. REG. [Vol. 23
application.”107 Among the rights that foreign and domestic patent
owners must be granted under TRIPS is a twenty year minimum
term of protection from the date of the application,108 the right to
prohibit the unauthorized use of a patented process,109 and the
unauthorized “making, using, offering for sale, selling or
importing” of a patented product110 or of a product created directly
by a patented process.111 TRIPS recognizes a country’s right to
deny patent protection where the prevention of commercial
exploitation is “necessary to protect ordre public or morality”
including “to protect human, animal or plant life or health” or “to
avoid serious prejudice to the environment.”112
In connection with its expanded protection of trademark rights,
TRIPS defines those source designators that must be protected. It
requires that trademark protection be granted to “[a]ny sign or any
combination of signs, capable of distinguishing the goods or
services of one undertaking from those of other undertakings.”113
The owner of a registered trademark must be granted the
“exclusive right” to prohibit the use by unauthorized third parties
107 Id. The phrases “inventive step” and “capable of industrial application” may be
considered synonymous with “non-obvious” and “useful,” respectively. See id. art. 7
n.5. They are not further defined under TRIPS. Despite the absence of specificity, these
requirements represent a marked advance over Paris Convention treatment of patents.
The Paris Convention did not specify patent-protected subject matter. See Paris
Convention, supra note 53. Instead, its most significant contribution to patent
protection, in the author’s opinion, was the recognition of a member country’s
obligation to honor an applicant’s prior filing of a patent application in a member
country—so long as the applicant makes the subsequent filing within six months of the
original filing date (the so-called “priority right”). See id. art. 4.
108 See TRIPS, supra note 7, art. 33.
109 See id. art. 28(1).
111 See id.
112 Id. art. 27(2). Countries may also deny patent protection to “diagnostic,
therapeutic and surgical methods for the treatment of humans or animals,” “plants and
animals other than micro-organisms,” and “essentially biological processes, for the
production of plants or animals other than non-biological and microbiological
processes.” Id. art. 27(3). TRIPS also incorporates Paris Convention registration
requirements. See supra notes 79-84 and accompanying text for a discussion of these
requirements. TRIPS also establishes further requirements, including the duty to
“disclose the invention in a manner sufficiently clear and complete for the invention to
be carried out by a person skilled in the art.” TRIPS, supra note 7, art. 29.
113 Id. art. 15(1).
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 131
of “identical or similar signs for goods or services which are
identical or similar to those in respect of which the trademark is
registered where such use would result in a likelihood of
confusion.”114 Registration must be granted for a minimum term
of seven years and must be indefinitely renewable.115 Protection
of unregistered marks remains subject to the discretion of domestic
laws except for famous or well-known marks, which continue to
be protected under Article 6bis of the Paris Convention.116 Use
may be required to maintain a trademark registration,117 but such
use cannot be “unjustifiably encumbered by special requirements,
such as . . . use in a special form.”118
TRIPS builds on the brief mention of “honest practices in
industrial or commercial matters” in Article 10bis of the Paris
Convention119 and explicitly requires the protection of
“undisclosed information . . . in a manner contrary to honest
commercial practices.”120 Such information must be protected so
114 Id. art. 16(1). The treaty does not specify the factors to be used in deciding
whether likelihood of confusion exists. Under U.S. law, such factors vary depending on
the forum. See generally DORIS ESTELLE LONG, UNFAIR COMPETITION AND THE LANHAM
ACT 55-64 (1993) (listing by circuit the factors used to determine likelihood of
confusion). Generally, however, such factors as the strength of the marks, their
similarity, the similarity of the respective goods and services, the similarity of the
respective channels of trade and distribution, the sophistication of the respective
customers, evidence of actual confusion, and the second user’s bad faith in creating his
mark are considered. See, e.g., Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492 (2d
Cir.), cert. denied, 368 U.S. 820 (1961); In re E.I. DuPont deNemours & Co., 476 F.2d
1357 (C.C.P.A. 1973).
115 See TRIPS, supra note 7, art. 18.
116 See Paris Convention, supra note 50, art. 6bis(1), 21 U.S.T. at 1640 (incorporated
by reference under Article 2 of TRIPS); see also supra note 83. Article 16 of TRIPS
further clarifies that Article 6bis protection of well-known marks applies to service marks
and provides that “knowledge of the trademark in the relevant sector of the public,
including knowledge . . . obtained as a result of the promotion of the trademark” must be
considered in deciding whether the mark is well-known. TRIPS, supra note 7, art. 16(2).
117 See TRIPS, supra note 7, art. 19.
118 Id. art. 20. TRIPS also requires adherents to allow “interested parties” to
prevent the use of misleading “geographical indications,” including the right to “refuse
or invalidate the registration of a trademark” which “contains or consists” of a
misleading geographic indication. See id. art. 22.
119 See Paris Convention, supra note 53, art. 10bis, 21 U.S.T. at 1648; see supra
notes 85-89 and accompanying text (discussing trade secret protection under the Paris
120 TRIPS, supra note 8, art. 39.
132 N.C. J. INT’L L. & COM. REG. [Vol. 23
long as it is “secret,”121 “has commercial value due to its secret
nature”122 and “has been subject to reasonable steps under the
circumstances, by the person lawfully in control of the
information, to keep it secret.”123 TRIPS also requires the
protection of undisclosed test or other data whose “origination . . .
involves considerable effort”124 and which is submitted as a
condition of approving the marketing of pharmaceutical or
agricultural chemical products utilizing “new chemical entities.”125
Such protection is excused where disclosure is “necessary to
protect the public”126 or where “steps are taken to ensure that the
data are protected against unfair commercial use.”127 These
provisions in TRIPS represent one of the few times that trade
secrets have been the subject of an express multinational treaty
Perhaps the most notable advance in protection contained in
TRIPS is its establishment of procedural enforcement norms that
adherents must include in their domestic laws.129 Included among
121 See id. art. 39(2)(a). TRIPS defines “secret” as “secret in the sense that it is not,
as a body or in the precise configuration and assembly of its components, generally
known among or readily accessible to persons within circles that normally deal with the
kind of information in question.” Id. This definition largely follows the definition
under U.S. law. See supra note 10 for the definition under U.S. law.
122 TRIPS, supra note 7, art. 39(2)(b).
123 Id. art. 39(2)(c).
124 Id. art. 39(3).
128 The only other instances are Article 10bis of the Paris Convention, which formed
the basis for the relevant TRIPS provision, see supra note 119 for the relevant provision,
and Article 1711 of the North American Free Trade Agreement, see North American
Free Trade Agreement, Dec. 14, 1992, art. 1711, 32 I.L.M. 612, 674. In NAFTA, the
term “trade secret” was used, as opposed to “undisclosed information.” See id. To
qualify for protection, the “information” at issue must be “secret,” have “actual or
potential commercial value” because of its secret nature, and be subject to “reasonable
steps . . . to keep it secret.” Id. These are broadly the same requirements established
under TRIPS, although NAFTA may protect a broader category of information since
information must only have “potential commercial value” to be protected. Cf. TRIPS,
supra note 7, art. 39 (requiring that the information “has commercial value because it is
secret”) (emphasis added).
129 This requirement is a substantial advance over the Berne and Paris Conventions,
which contained no procedural enforcement norms. See Berne Convention, supra note
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 133
these procedural norms are that enforcement procedures available
under a member’s national laws “permit effective action against
any act of infringement of intellectual property rights covered by
[TRIPS], including expeditious remedies to prevent infringements
and remedies which constitute a deterrent to further
infringement.”130 All such procedures must be “fair and
equitable”131 and cannot be “unnecessarily complicated or
costly”132 or “entail unreasonable time limits or unwarranted
delays.”133 Decisions on the merits must be made available to the
parties “without undue delay”134 and must be based only on
evidence “in respect of which parties were offered the opportunity
to be heard.”135 TRIPS does not require members to establish a
separate judicial system for the enforcement of intellectual
property rights.136 It does, however, require that litigants be given
certain procedural safeguards including the protection of
confidential information,137 representation by independent legal
counsel,138 and the right to substantiate . . . claims and to present
all relevant evidence.”139 It also establishes minimum remedies
that must be provided to litigants, including the right to injunctive
relief,140 the right to money damages “adequate to compensate for
8; Paris Convention, supra note 53.
130 TRIPS, supra note 7, art. 41(1).
131 Id. art. 41(2).
134 Id. art. 41(3).
135 Id. In connection with willful trademark counterfeiting and copyright piracy
“on a commercial scale,” TRIPS also requires members to provide for “criminal
procedures and penalties including imprisonment and/or monetary fines . . . sufficient to
provide a deterrent, consistently with the level of penalties applied for crimes of
corresponding gravity.” Id. art. 61.
136 Id. art. 41. Article 41 of TRIPS specifically provides: “It is understood that this
Part [establishing general obligations for enforcement mechanisms for intellectual
property rights] does not create any obligation to put in place a judicial system for the
enforcement of intellectual property rights distinct from that for the enforcement of laws
in general . . . .” Id. art. 41(5).
137 See id. art. 42.
138 See id.
140 See id. art. 44.
134 N.C. J. INT’L L. & COM. REG. [Vol. 23
the injury the right holder has suffered . . .”141 and, in connection
with pirated and counterfeit goods, criminal penalties “sufficient to
provide a deterrent, consistently with the level of penalties applied
for crimes of corresponding gravity.”142 Failure to live up to treaty
requirements results in trade sanctions by the World Trade
Organization—the governing body for TRIPS.143 The existence of
this sanctioning power assures that obligations under TRIPS
should form at least the floor for international protection of
intellectual property rights in the future.144
III. Intellectual Property Rights—Sword and Shield
Although TRIPS established broad standards for intellectual
property protection, these standards need not become cultural
141 Id. art. 45(1).
142 Id. art. 61.
143 See id. These sanctions include the imposition of tariff barriers against the
offending country’s goods. See id. art. 64(1). For an in-depth review of WTO Dispute
Settlement Procedures, see PIERRE PESCATORE ET AL., HANDBOOK OF WTO/GATT
DISPUTE SETTLEMENT (1996).
144 Such sanctioning power realistically did not exist under either the Berne or Paris
Conventions. Consequently, although the basic protection standards under these two
multinational treaty regimes have been largely adopted by most countries, and, in the
author’s opinion, can be considered as at least part of accepted international law
regarding the scope of protection that must be afforded intellectual property rights, they
did not contain the same force for adherence that TRIPS poses. It should be noted,
however, that as of the date of this Article, although various claims for sanctions are
pending before the WTO for failure to meet TRIPS obligations, decisions on these
claims remain unresolved. See, e.g., U.S. Europe Challenge Japanese Recorded Music
Copyright Practices, West’s Legal News, available in 1996 WL 258541 (Feb. 15, 1996)
(reporting complaint filed against Japan for failure to provide rental rights for sound
recordings created prior to 1972); see also Sanctions (visited Nov. 25, 1997)
<http://www.wto.org/cgi-bin/wto~search.pl> (listing various complaints filed under
TRIPS, including a claim against India and Pakistan for failure to provide adequate
patent protection for pharmaceutical and agricultural chemical products, one against
Ireland for failure to grant neighboring rights, another against Denmark and Sweden for
failure to provide provisional measures in civil proceedings to enforce intellectual
property rights, and one against Portugal for failure to provide required terms of patent
protection). Thus, it is too soon to tell whether WTO sanctioning power will be wielded
with the full force it appears to have. The potential for such sanctions alone, however,
has already helped to assure compliance. Russia, China, and even the United States
have revised their laws to assure TRIPS compliance. See, e.g., Uruguay Round
Agreements Act, 108 Stat. 4809 (1994). Whether such in terrorem force will continue,
however, if WTO does not impose stringent sanctions, or if it does not obtain
compliance with any such sanctions, is not clear.
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 135
straitjackets, designed solely as a sword to protect the de-
culturizing acts of foreign investors. To the contrary, both the
language of TRIPS and the circumstances surrounding its
negotiation support a flexible approach to intellectual property
rights enforcement, an approach that is broad enough to permit
developing countries to use their intellectual property laws as a
shield against the ravages of de-culturizing foreign investment.
The language of TRIPS eschews narrowly circumscribed
standards of protection in favor of a broad-based, theoretical
approach that grants adherents maximum flexibility in fashioning
acceptable domestic laws.145 This flexibility is apparent in the
general lack of specificity contained in many of the substantive
treaty provisions.146 For example, although TRIPS requires the
protection of “[c]ompilations of data . . . which by reason of the
selection or arrangement of their contents constitute intellectual
creations,”147 it does not specify what level of originality, if any, is
required to qualify as an “intellectual creation.”148 Similarly, in
145 The nature of multinational treaties, to a certain extent, requires a broad-based
theoretical approach in order to obtain the consensus required for concordance. Thus,
TRIPS is not alone in using broader language in establishing minimum substantive
standards for protection. Berne Convention, supra note 8, and the Paris Convention,
supra note 53, for example, similarly failed to establish standards for such fundamental
issues as originality, infringement or fame. The “problem” with such flexible
approaches, however, is that they result in inconsistent treatment on a global basis. For
example, efforts to protect the unique design of Coca-Cola’s rippled bottle as a
trademark were successful in the United States but unsuccessful in the United Kingdom,
despite the fact that both parties were signatories to the Paris Convention at the time of
their respective decisions. Compare In re Coca-Cola Application, 1 W.L.R. 695 (1986),
2 All E.R. 274 (1986) (denying contour bottle registration in the U.K.) with U.S.
Trademark Regis. No. 696, 147 (April 12, 1960) (citing decision by U.S. Trademark
Office to register the bottle design).
146 This flexibility also serves as the basis for criticism since it does not guarantee
the identity of protection which the supporters of TRIPS seemed to anticipate. See
Long, Copyright and the Uruguay Round Agreements, supra note 16, at 550-55. In the
absence of identity of protection, disputes regarding the appropriate level of protection
to be afforded intellectual property rights will, no doubt, continue.
147 TRIPS, supra note 7, art. 10(2).
148 In a seminal decision, Rural Telephone Service Co. v. Feist Publications, Inc.,
499 U.S. 340 (1991), the United States Supreme Court refused to extend copyright
protection to the white pages of a telephone directory on the grounds that such factual
compilations lacked the requisite modicum of originality. See id. at 346. This
originality requirement has been applied to refuse protection to certain computer
databases. See Atari Games Corp. v. Nintendo of Am., Inc., 30 U.S.P.Q.2d 1401, 1404-
07 (N.D. Cal. 1993). This high level of originality is not required in Western Europe.
136 N.C. J. INT’L L. & COM. REG. [Vol. 23
keeping with the treatment of intellectual property rights under the
Berne and Paris Conventions, TRIPS does not establish standards
for such critical protection issues as the test for infringement of the
protected right,149 the standard to determine if a mark is “well-
known” enough to require protection regardless of its registered
status in a country,150 what role, if any, the doctrine of equivalents
should have in determining patent protection,151 or the doctrinal
Compare this treatment with the E.C. Database Directive, which grants sui genesis
protection to databases that “by reason of the selection or arrangement of their contents,
constitute the author’s own intellectual creation,” Council Directive 96/9, art. 3(1), 1996
O.J. (L 77) 20, 25, and yet define such “creation” as requiring “qualitatively and/or
quantitatively a substantial investment in either the obtaining, verification or
presentation of the contents.” Id. art. 7(1), 1996 O.J. (L 77) at 25.
The issue of the need for “originality” or “intellectual creativity” in determining
copyright protectability is not limited to the subject of databases. To the contrary, the
issue remains a hotly debated one for all types of potentially copyright protected works.
See, e.g., FELLNER, supra note 10, at 63-64 (varying definitions of “originality” for
designs under U.K. law). Compare Interlego A.G. v. Tyco Indus., Inc.,  1 App.
Cas. 217, 241 (P.C. 1988) (appeal taken from H.K.) (stating that under U.K. law
originality for artistic works requires some artistic element) with Bleistein v. Donaldson
Lithographing Co., 188 U.S. 239, 251 (1903) (stating that work does not have to be
artistic or have artistic merit to qualify for protection in the United States). The outcome
of this dispute could have a direct impact on the scope of protection afforded native or
indigenous works of long-standing existence.
149 For example, the treaty does not specify what elements are used to establish
infringement of the right of reproduction of a copyrighted work. Such critical elements
as the need for access to the work, the amount of the work required to be copied for
infringement to lie and the degree of similarity needed where verbatim copying has not
occurred are not specified. Differences in treatment of these elements could be outcome
determinative of protection. TRIPS similarly fails to specify what elements are required
to establish “likelihood” of confusion of a trademark, or whether patent infringement
can be based on other than literal infringement of the claims at issue. See supra note
105-112 and accompanying text (discussing patent protection under TRIPS).
150 Under Article 6bis of the Paris Convention, a well-known mark must be protected
against uses “liable to create confusion.” Paris Convention, supra note 53, art. 6bis, 21
U.S.T. at 1640 (incorporated by reference by TRIPS, supra note 7, art. 2(1)). Neither
the Paris Convention nor TRIPS establishes the factors used to establish the requisite
degree of notoriety of a mark. Whether actual use in the country is required can have a
direct impact on the scope of protection afforded a mark. Where certain cultural
symbols have achieved broad notoriety, such symbols might qualify as famous marks,
worthy of protection beyond the borders of the source country. The scope of protection
for such symbols could be directly affected if renown alone is not sufficient to justify
151 Neither the Paris Convention nor TRIPS specifically addresses the issue of the
extent to which the doctrine of equivalents can or should be used in establishing
infringement or patentability. Where strict claim construction is followed for purposes
of patentability or literal infringement is required for purposes of infringement, local
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 137
requirements for novelty and/or non-obviousness.152
Perhaps most notably, enforcement standards under TRIPS are
posited in broad terms such as requiring “fair and equitable”
procedures,153 “adequate compensation” for infringing uses,154 and
indemnification to defendants when enforcement procedures have
been “abused.”155 Since TRIPS does not require the establishment
of a separate judicial system for enforcement of intellectual
property rights, these broad concepts permit countries to adapt
existing systems.156 This virtually ensures widespread divergence
between countries in both the methods used for enforcing rights
under the treaty and the domestic law standards for undefined
TRIPS expressly recognizes that members may “adopt
measures necessary to . . . promote the public interest in sectors of
vital importance to their socio-economic . . . development.”158 It
allows members to limit the broad rights granted copyright owners
under the treaty when such works are used for such socially
adaptations of existing patented inventions would not be considered infringing. This
would directly affect the scope of the monopoly afforded a patent owner. See infra note
157 for a further discussion of this issue.
152 Although TRIPS imposes the dual obligation that an invention be “new” and
“involve an inventive step,” TRIPS, supra note 7, art. 27(1), these are equivalent to the
requirements of novelty and non-obviousness. See supra note 107 for a brief discussion
of this equivalency. The terms are not further defined. Thus, for example, “novelty”
may depend on the role of prior public use and the degree of newness required. The
outcome of these decisions could have a direct impact on the protectable nature of such
cultural elements as folk remedies and medical practices.
153 TRIPS, supra note 7, art. 41(2).
154 Id. art. 45(1).
155 Id. art. 48.
156 See id. art. 41(g). Article 41(g) permits enforcement under members’ national
laws by permitting them to use already existing legal systems. See id.
157 The author does not mean to suggest that there are no standards for defining
such terms. Clearly, definitions of “novelty,” “non-obviousness,” and the like should
conform with international standards. Since, however, there is presently no agreed-upon
single definition for these requirements, TRIPS permits a degree of flexibility within
certain parameters in establishing the content of such terms. This flexibility can be used
to a developing country’s advantage in crafting intellectual property laws to protect its
cultural heritage. Thus, for example, if a country did not require absolute novelty,
public use in the form of a traditional folk remedy might not bar patent protection for
adapted local uses. See supra note 151 and accompanying text for a discussion of the
158 TRIPS, supra note 7, art. 8(1).
138 N.C. J. INT’L L. & COM. REG. [Vol. 23
desirable goals as news reporting and scholarship.159 Patent rights
may be similarly subjected to compulsory licensing requirements,
including working requirements, where such provisions fill public
needs.160 Even the grant of trademark protection rights are subject
to exceptions derived from the need for public order.161
The circumstances surrounding the establishment of TRIPS
similarly support a flexible approach to intellectual property
protection that can be used to protect indigenous culture. During
the period of the Uruguay Round Negotiations, no single
philosophical basis for the protection of intellectual property rights
existed, even among developed countries. For example, the
fundamental activating principle behind U.S. copyright law was
the encouragement of the creation and dissemination of new works
to the public by providing economic incentives to creators. Article
I of the U.S. Constitution recognizes the importance of copyright
protection by establishing the mechanism of “securing for limited
Times to Authors . . . the exclusive Right to their . . . Writings.”162
One of the purposes of this limited right was to encourage authors
to spend the time, money, and effort required to create new works
by granting authors merchandising rights in those new works.163
By contrast, Continental Western European nations placed
authorship and the “romantic” view of creative “genius” at the
center of protection.164 The creative “spark” represented by an
159 See supra notes 65-67 and accompanying text for the pertinent provisions.
TRIPS incorporates Article 10 of the Berne Convention. See TRIPS, supra note 7, art.
160 See TRIPS, supra note 7, art. 31.
161 See id. art. 17. Article 17 permits exceptions such as the “fair use of descriptive
terms” so long as such exceptions “take account of the legitimate interests of the owner
of the trademark and of third parties.” Id.
162 U.S. CONST. art. I, § 8, cl. 8. See also supra note 43 and accompanying text for
a further discussion of the impact of this clause on intellectual property rights in the
163 See, e.g., Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417, 429
(1984) (stating that the limited grant under Article I “is a means by which an important
public purpose may be achieved. It is intended to motivate the creative activity of
authors and inventors by the provision of a special reward, and to allow the public
access to the products of their genius after the limited period of exclusive control has
expired.”). These merchandising rights in the United States include the exclusive right
to publicly distribute the copyrighted work or to authorize such public distribution. See
17 U.S.C. § 106(3) (1997).
164 See generally Jeff Berg, Moral Rights: A Legal Historical and an
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 139
author’s personality was protected under these schemes—not
simply the economic value of the artist’s labor in creating the
work.165 TRIPS did not choose among these competing schemes,
but allowed both rationales to flourish.166
Given that TRIPS expressly permits members to adopt
measures that promote their own socio-economic interests and that
the standards set forth in the treaty are broadly worded,167
developing nations should be able to craft domestic laws that
protect their culture from the harm of de-culturization while
complying with the international standards under TRIPS.
Although this Article uses the broadest definition of “culture”
in examining the potentially adverse impact of globalization and
foreign investment on native culture, in reality not all aspects of
such “culture” need specially crafted intellectual property laws to
protect them from de-culturization. “Traditional”168 artistic,
Anthropological Reappraisal, 6 INTELL. PROP. J. 341 (1991); Steven L. Carter, Does It
Matter Whether Intellectual Property Is Property?, 68 CHI.-KENT L. REV. 715 (1993)
(advocating support for authors’ moral rights); Wendy J. Gordon, A Property Right in
Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property,
102 YALE L.J. 1533 (1993); Peter Jaszi, Toward a Theory of Copyright: The
Metamorphosis of ‘Authorship,’ 1991 DUKE L.J. 455 (1991); Michael B. Reddy, The
Droit de Suite: Why American Fine Artists Should Have the Right to a Resale Royalty,
15 LOY. L.A. ENT. L.J. 509 (1995). This does not mean that commercial exploitation is
not considered a significant right, merely that such right derives from the value of
personality, and not simply from the desire to compensate an author’s labors.
165 See supra note 164 and sources cited therein.
166 The exception of the moral rights provisions of Article 6bis of the Berne
Convention from inclusion in TRIPS under Article 9 does not contradict this view. See
TRIPS, supra note 7, art. 9. Although such exclusion represents, to a certain extent, the
victory of the U.S. position that only economic rights should be included in TRIPS, the
exclusion does not prohibit moral rights protection or copyright protection regimes
based on the recognition of the personality value of the creative act or a creator’s
“natural right” to control her creation. To the contrary, TRIPS allows such systems to
continue to flourish by virtue of its broad conceptual terms which allow and, the author
contends, promote variable treatment by adhering nations. See supra notes 145-152 and
accompanying text (discussing the variable treatment under TRIPS of diverse
intellectual property protection issues). Such variable treatment includes permitting
diverse philosophical foundations for protection. See supra notes 142-49 and
accompanying text. Given that TRIPS is intended to be a trade-based treaty, failure to
include non-economic rights, such as moral rights, is fully in keeping with the trade
objectives of TRIPS and may be explained on that basis.
167 See TRIPS, supra note 7, art. 31; see also supra notes 141-48 and accompanying
text for examples of such broadly worded standards.
168 The term “traditional” is not intended in this instance to refer to a particular style
or type of work, such as “classic,” “neo-classic” or the like, but to those works which fit
140 N.C. J. INT’L L. & COM. REG. [Vol. 23
literary and musical forms are already amply supported by
“traditional” Western views of protected rights represented in the
intellectual property laws sought by foreign multinationals.169
Instead, it is those forms of “culture” that do not readily conform
to such traditional views that are most in need of a new approach
to assure their protection. Such “non-traditional” forms lack an
identifiable creator. They cannot be considered within the type of
“products of the mind” protected due to individual effort or by the
need to protect a particular creator’s personality-value. They are
most often forms which are currently considered part of the public
domain170 because of their long existence or their current
identification as part of a nation’s cultural patrimony.171 Such
forms include, but are not be limited to, fables, stories, myths,
rituals, costumes, folk medicine and other elements of pre-literate
society that combine to form cultural “expression” or heritage.172
easily within the definitions of a protectable work, see supra note 60 for examples of
such works, and have a readily-identifiable creator capable of exercising control over the
use and dissemination of the work in order to avoid its de-culturization.
169 Most copyright laws of the developed countries protect “traditional” musical,
literary and artistic works, such as novels, poetry, songs, paintings and sculpture. See
supra note 8 and accompanying text. These laws in turn grant the creator the right to
control the exploitation of these works, for example. See supra note 47 and
accompanying text. By contrast, folklore and other “works” which do not have an
identified creator do not readily fit within these “traditional” forms. See generally
Cathryn A. Berryman, Toward More Universal Protection of Intangible Cultural
Property, 1 J. INTELL. PROP. L. 293 (1994); see also Bellagio Declaration, supra note 21,
170 Works may be considered in the public domain either through failure to comply
with required formalities for protection, such as, failure to publish a copyrighted work
with adequate notice, see 17 U.S.C. § 401 (1988) (subsequently revoked under the
Berne Implementation Act of 1989), or failure to exercise quality control over a
trademark, see Dawn Donut Co. v. Hart’s Food Stores, Inc., 267 F.2d 358, 366 (2d Cir.
1959), or due to expiration of the period of time granted for protection of the work under
domestic law, see 17 U.S.C. § 302 (1997) (establishing the term limits for U.S.
171 See supra note 21 and accompanying text (defining “cultural patrimony”).
172 In an excellent examination of the problems posed by efforts to protect folklore
as culture, Cathyrn A. Berryman defined folklore’s basic traits as follows:
(I) It is passed from generation to generation by unfixed forms; (II) It is a
community-oriented creation in that its expression is dictated by local standards
and traditions; (III) Its creations generally are not attributable to individual
authors; and (IV) It is being continually utilized and developed by the society in
which it lives.
Berryman, supra note 169, at 311. These traits help underscore some of the more
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 141
Since most folklore and ritual lack identifiable creators or holders
of rights, their protection pose unique problems for intellectual
There is no question that one of the most difficult issues
regarding the protection of works of folklore is the adverse effect
such protection would presumably have on the scope of works
available from the public domain. Virtual elimination of the
public domain through the wholesale protection of all cultural
elements of a society would do untold harm to the creation of
future works. At a minimum, such control would impose
derivation costs not currently present by requiring the payment of
license fees for use of protected elements. Where control over the
formerly public domain elements is exercised by a governmental
agency, there is also a serious threat of censorship. Selective use
of protection of cultural works that might otherwise be considered
part of the public domain, creating a limited “domain public
payant,” should reduce harmful derivation costs by removing only
those elements of the nation’s culture from unfettered use which
the nation itself believes to be either more vulnerable to de-
culturization or more valuable to the maintenance of the country’s
Censorship is a more problematic issue, but the refusal to
protect cultural elements from the harm of de-culturization solely
problematic aspects in crafting intellectual property laws that protect folklore and other
elements of cultural heritage while still complying with present international standards.
See generally supra note 2 and accompanying text (discussing the elements of cultural
173 For these reasons, the author does not support or recommend the development of
an across the board, unlimited public domain “payant” such as established in Section 17
of the Tunis Model Law, supra note 22. This model law, developed under the auspices
of UNESCO and designed to assist developing countries in devising copyright laws
which would protect their countries’ valuable intellectual property, including folklore,
contains many provisions which the author believes are not required under current
international standards and may actually defeat the goals of protection they are designed
to meet. Thus, for example, under Section 17 of the Tunis Model Law, “use of works in
the public domain or their adaptation, including works of national folklore” are subject
to use fees based upon a specified percentage of the receipts “produced” by such use.
Id. § 17. While a limited “domain public payant” may serve the cultural protection
goals discussed in this Article, see supra note 167 and accompanying text, an
unrestricted one could raise the cost of native creativity without providing an equivalent
societal benefit. The goal of a public domain “payant” should be to protect native and
indigenous culture, not simply to raise funds regardless of the use to which public
domain elements are being put.
142 N.C. J. INT’L L. & COM. REG. [Vol. 23
on the basis that such protection might result in censorship is to
ignore the concrete problem of de-culturization for the potential
problem of harmful censorship.174 Moreover, the threat of
uncontrolled censorship can be reduced through careful
delineation of the types of elements to be protected and the acts or
uses that qualify as “unauthorized.” The purpose of the protection
regime proposed in this Article is to prevent the creation and
distribution of de-culturized products.175 Only those uses that
remove the significant cultural meaning of works, rituals and the
like should be prohibited. Thus, for example, parody and satire
should not generally be prohibited since they are not based on de-
culturization but, in fact, rely upon the acknowledged existence of
the cultural traditions being parodied.
It is the author’s contention that copyright laws can form the
first line of defense in protecting indigenous culture and still
comply with TRIPS standards. There is no requirement under
TRIPS that protected works be recorded or fixed in some tangible
medium of expression.176 Oral works and performances, such as
fables, storytelling, and folkloric dances and rituals, may thus be
protected despite the absence of a fixed record of such
performances.177 Since there is no requirement of originality or
174 It is not the author’s intention to discuss the merits of censorship or to debate on
a metaphysical level whether protection of intellectual property rights itself serves as a
form of censorship. There are, however, levels of censorship which harm the vitality of
cultural growth and interchange of ideas. See supra note 27 and accompanying text
(discussing the positive impact of cross-cultural borrowing and efforts to regulate such
borrowing). This type of censorship must be avoided to prevent the proposed protection
scheme from becoming a sword that strikes down the very culture it is designed to
protect. See, e.g., BENJAMIN KAPLAN, AN UNHURRIED VIEW OF COPYRIGHT (1967)
(equating the flourishing of Elizabethan literature with the relatively free borrowing of
plots, characters and the like by authors).
175 The second purpose of the proposed protection scheme is undeniably to provide
compensation to the developing country for the development of mass-marketable
products and processes. Such purpose, however, does not directly impact censorship
176 The Berne Convention, incorporated by Article 9 of TRIPS, merely provides
member countries with the right to “prescribe that works . . . shall not be protected
unless they have been fixed in some material form.” Berne Convention, supra note 8,
art. 2(2), 828 U.N.T.S. at 227. Although U.S. law requires fixation other countries do
not. Compare 17 U.S.C. § 102 (1997) (limiting protection to “works . . . fixed in a
tangible medium of expression”) with Russian Federal Copyright Law, supra note 8, art.
6(2) (extending protection to oral works “in any objective form whatsoever”).
177 Presumably such fables, pantomime and ritualistic dance would fall within the
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 143
intellectual creativity under TRIPS for copyright-protected
works,178 the fact that such folklore has been in existence for
centuries—and may therefore lack present day “originality”—
should not preclude its protection.179
Similarly, the absence of an identifiable “author” for such
folklore should not preclude protection. U.S. and European
intellectual property laws reflect the “romantic” view of the author
as creative genius and appear on their face to require a natural
person to be at the heart of the creative experience.180 No such
international requirement exists, however.181 Furthermore, the
growth of doctrines such as “work for hire,” which grant copyright
ownership to the employer for works created by employees within
the scope of their employment,182 and the protection of collective
categories of potentially protected literary and artistic works, more specifically lectures,
dramatic works and choreographic works. See Berne Convention, supra note 8, art.
2(1), 828 U.N.T.S. at 227 (incorporated into TRIPS under art. 9); see also supra note 57
(defining protected works under the Berne Convention).
178 The only requirement for intellectual creativity under TRIPS is for compilations
of data. See TRIPS, supra note 7, art. 10(2).
179 To the contrary, given the largely anonymous nature of most cultural works, and
their relatively lengthy existence (often pre-dating literate society), an “originality”
requirement, applied conscientiously, would preclude protection of many works which,
the author believes, should be protected from harmful de-culturization. For this reason,
the author does not support the adoption of the Tunis Model Law, without changes,
since it appears to limit protection to “original” works. See Tunis Model Law, supra
note 22, §§ 1(1), 1(3).
180 See, e.g., Peter Jaszi, Toward a Theory of Copyright: The Metamorphoses of
“Authorship,” 1991 DUKE L.J. 455, 485-91 (1991); David Lange, At Play in the Fields
of the Word: Copyright and the Construction of Authorship in the Post Literate
Millennium, 55 LAW & CONTEMP. PROBS. 139 (1992).
181 Neither the Berne Convention nor TRIPS requires a human agent as an author.
Although both treaties discuss rights to works in terms of “authors,” neither defines the
term. Furthermore, the rights granted to such “authors” do not preclude their exercise by
a non-human agent. See Berne Convention, supra note 8; Paris Convention, supra note
182 See 17 U.S.C. § 101 (1997) (defining a “work made for hire” as inter alia “a
work prepared by an employee within the scope of his or her employment”); see also 17
U.S.C. § 201 (1997) (granting ownership rights in a work for hire to the employer). For
a brief review of European work for hire doctrines, see, for example, Gerald Dworkin,
The Moral Right of the Author: Moral Rights and The Common Law Countries, 19
COLUM. - VLA J.L. & ARTS. 229 (1995); Robert A. Jacobs, Work-For-Hire and the
Moral Right Dilemma in the European Community: A U.S. Perspective, 16 B.C. INT’L &
COMP. L. REV. 29 (1993).
144 N.C. J. INT’L L. & COM. REG. [Vol. 23
works183 have already seriously eroded the view that “authorship”
requires a sole human agent as the focus for copyright protection.
As a practical matter, the absence of an identifiable author may
make the enforcement of granted rights difficult because no one
person would have the standing to assert the protected right.
Where there is no identifiable author, as in the case of a folkloric
fable or traditional ritual, copyright ownership could reside in a
private or governmental rights organization charged with licensing
the use of such works. Such organizations could assure that
commercialization of protected works does not result in de-
Developing countries are already using copyright law to
protect their folkloric traditions. For example, Russian copyright
law protects oral works, including folklore.185 Chinese copyright
law protects quyi186—a form of unfixed ritual dance and
pantomime.187 Cuban copyright law protects “works of folklore”
183 See 17 U.S.C. § 101 (1994) (defining a “collective work” as “a work, such as a
periodical issue, anthology, or encyclopedia, in which a number of contributions,
constituting separate and independent works in themselves, are assembled into a
collective whole”). By their nature, collective works are often the result of collaborative
efforts and are in direct opposition to the sole authorship view of traditional copyright
184 Such organizations could be modeled on ASCAP or other private or
governmental models. To limit the increase in derivation costs, minimal fees could be
charged for those who seek to use the elements to create new works that maintain the
required cultural contextualization to prevent de-culturization. For further information
about ASCAP, see American Society of Composers, Authors, and Publishers, (visited
Jan. 1, 1998) <http://www.ascap.com>.
185 See Russian Federation Law on Copyright and Neighboring Rights art. 6 (1993),
reprinted in UNITED NATIONS EDUCATIONAL, SCIENTIFIC, AND CULTURAL ORGANIZATION,
3 COPYRIGHT LAWS AND TREATIES OF THE WORLD (Supp. 1995). The scope of folklore
protected is not so broad as, for example, under the Tunis Model Law, supra note 22,
since Article 8 specifically excludes “folk art” from the scope of copyright works. See
id. art. 8. Thus, those elements of “folklore” which are embodied in works of folk art,
such as icons or other objects of figurative arts or wall hangings, would be excluded
from protection. Fables, pantomimes and other elements of folklore, however, remain
186 See Guo Shoukan, China, 1 INTERNATIONAL COPYRIGHT LAW & PRACTICE (Paul
E. Geller et al. eds., 1997) (citing Copyright Act of the Peoples’ Republic of China art. 3
187 Quyi is defined under Chinese copyright law as xiang sheng (cross talk), kuaishu
(clapper talk), dagu (ballad singing with drum accompaniment) and pingshu (story
telling based on classical novels), which are all used for performance involving mainly
recitation or singing or both. See id.
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 145
that apparently are “of an original character,”188 and “involve
creative activity on the part of their authors.”189 These laws could
form useful study models for other countries to consider in
developing protection standards for their own folkloric and ritual
traditions.190 However, when crafting protection for “folklore,”
the scope of the protected work should be clearly defined so that
enforcement is predictable in accordance with international
standards. Similarly, a finite term of protection needs to be
established. The term of protection should be no greater than
required to protect the cultural element at issue from the threat of
de-culturization. This period of protection could be limited by a
specified term measured from the date of creation (if such a date
can be determined), or from the date of first efforts to produce or
market de-culturized products.191
The integrity of costumes, rituals, literature and artwork can be
further protected through carefully drafted moral rights and
trademark laws. Moral rights are non-economic rights granted to
188 Cuban Law of Copyright arts. 2, 26, reprinted in UNITED NATIONS
EDUCATIONAL, SCIENTIFIC, AND CULTURAL ORGANIZATION, 2 COPYRIGHT LAWS AND
TREATIES OF THE WORLD (Supp. 1977). Article 26 of the present Cuban copyright law
protects “works of folklore.” To qualify for protection, a work of folklore “must have
been transmitted from generation to generation, thereby contributing in an anonymous
and collective manner, or in any other form, to a national institution of cultural
character.” Id. art. 26. The act, however, only specifically grants protection to persons
who assemble and compile “dances, songs, proverbs, fables and other manifestations of
national folklore which are “authentic and specific works.” Id. art. 27. Article 2 further
limits copyright protection to “works of an original character” which “involve creative
activity on the part of their authors.” Id art. 2. At first blush, the requirement of
“originality” appears limited to enumerated categories of protected “original works,”
including “written and oral works, musical works [and] choreographic works . . . .” Id.
However, since works of folklore appears to include dances, songs and fables, which fall
within the enumerated categories of protected works, originality may also be required to
189 Id. art. 2. See supra note 188 for a discussion of the apparent requirement of
originality in protection of folklore under Cuban law.
190 The author does not mean to suggest that any of these models fully meet current
international protection standards. But they, along with the Tunis Model Law, supra
note 22, serve as a useful beginning point for utilizing the ideas contained in this Article
to create an appropriate protection regime.
191 In the latter case, measurement from the date of first efforts of de-culturization
would not establish the date of protection, but, more specifically, the limited term of
146 N.C. J. INT’L L. & COM. REG. [Vol. 23
the author of a protected work.192 Because they protect
reputational rights and the creative value of the work, moral rights
generally survive the transfer of the author’s copyright interest,
and are usually non-transferable and non-waivable.193 Moral
rights are not required under TRIPS.194 They are, however,
required under Article 6bis of the Berne Convention, which
Independently of the author’s economic rights, and even after
the transfer of said rights, the author shall have the right to
claim authorship of the work and to object to any distortion,
mutilation or other modification of or other derogatory action in
relation to, the said work, which would be prejudicial to his
honor or reputation.195
One of the rights included among an author’s moral rights is
the right of integrity.196 This right prohibits the alteration of a
protected work without the author’s permission.197 Thus, for
example, films in the United States may be colorized without the
director’s permission because the director has no recognized moral
rights in the film.198 By contrast, in France, the director’s moral
rights preclude such unauthorized mutilation of the film’s
integrity.199 Moral rights laws may similarly be used to maintain
192 See, e.g., Jack A. Cline, Moral Rights: The Long and Winding Road Toward
Recognition, 14 NOVA L. REV. 435, 435 (1990). Moral rights are designed to protect the
author’s reputation rights and the creative value of the work. See id.
193 See, e.g., Raymond Saurraute, Current Theory on the Moral Right of Authors
and Artists under French Law, 16 AM. J. COMP. L. 465 (1968).
194 Article 9 expressly exempts the moral rights provision of the Berne Convention
from inclusion, and does not require any equivalent rights be granted by members. See
TRIPS, supra note 7, art. 9.
195 Berne Convention, supra note 8, art. 6bis, 828 U.N.T.S. at 235. These moral
rights are generally referred to as including the right of attribution, or patrimony, and the
right of integrity.
196 See, e.g., Cline, supra note 192, at 438.
197 See Berne Convention, supra note 8, art. 6bis (1), 828 U.N.T.S. at 235.
198 U.S. copyright law currently extends moral rights protection to works of visual
art, which does not include motion pictures. See 17 U.S.C. §§ 101, 106A (1994)
(extending rights of “attribution and integrity” to authors regardless of copyright
ownership in the work in question).
199 See, e.g., Judgment of May 28, 1991 (Huston v. LaCinq) Cass. 1e civ. 1991
Bull. Civ. No. 89-19.522 (Fr).
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 147
the cultural integrity of native works.200 Such laws could grant the
creator of the work the legal right to protect the work against
unauthorized alterations. These laws should specify that such
rights exist separate from any copyright transfers. Where the work
has no identifiable creator, a designated rights organization could
be granted moral rights over the work. However, where moral
rights are not exercised by a natural person, who has a finite life-
span and, therefore, a finite right to control the moral rights
contained in a work, it may be desirable to establish a measurable
period of time during which moral rights exist.201 Care should be
exercised to limit control over integrity to de-culturizing uses.
Thus, for example, while a parody may, on its face, appear to
violate the integrity of a work,202 such uses should generally
qualify as permissible exceptions since, as noted earlier, parodies
do not usually qualify as a de-culturizing use.203
Trademark laws may also be used to protect against the
200 Although moral rights are usually designed to protect a human author’s
reputation value, the absence of a definable author for most works of folklore sought to
be protected under the proposed regime should not preclude the application of moral
rights principles. To the contrary, the protection of integrity and reputation value
embodied in moral rights principles are strongly analogous to the prohibition of de-
contextualizing de-culturization that is the concern of this Article.
201 Given the close relationship between copyright and moral rights, the author
recommends a term of protection co-extensive with the term of copyright granted the
work at issue.
202 A parody must necessarily “mimic [the] original to make its point.” Campbell v.
Acuff-Rose Music, Inc., 510 U.S. 569, 580-81 (1994). This need to “conjure-up the
original,” may result in a work that is close enough to the original to be considered an
unauthorized alteration of the work. See id. at 1168.
203 The author recognizes that “true parodies” and satires are not always easy to
distinguish from de-culturizing uses. Much of the debate in U.S. copyright law over
whether a work qualifies as a fair use parody or illegal infringement is based upon an
often unpredictable analysis of the extent to which the original work is required to be
used to call-up the original. Compare Loew’s Inc. v. Columbia Broad. Sys., 239 F.2d
532 (9th Cir.), aff’d, 356 U.S. 43 (1956) (per curiam) (holding burlesque of movie
“Gaslight” which utilized key scenes and dialogue did not qualify as a fair use because
“a parodized or burlesque taking is to be treated no differently from any other
appropriation”) with Campbell, 510 U.S. at 569 (holding parody of song “Pretty
Woman” is fair use because of its transformative nature regardless of the amount of
original utilized). As Justice Kennedy, in his concurring opinion in Acuff-Rose,
recognized: “As future courts apply our fair use analysis, they must take care to ensure
that not just any commercial take-off is rationalized post hoc as a parody.” Id. at 680.
Care must similarly be taken to assure that not just any commercial take-off is
condemned as an unauthorized alteration.
148 N.C. J. INT’L L. & COM. REG. [Vol. 23
impermissible marketing of de-culturized products. Although
trademark law generally protects source designators,204 it can also
be used to protect against false descriptions or representations
related to marketed goods and services. Thus, for example,
section 43(a) of the Lanham (Federal Trademark) Act of the
United States prohibits the unauthorized use in interstate
commerce of any “false or misleading description . . . which is
likely to cause confusion, or to cause mistake or to deceive . . .
.”205 This statute has been used to prohibit the unauthorized
alteration of broadcasted comedy skits because such alteration
constitutes a false description—an unannounced departure from
the original.206 Similar applications may be used to prohibit the
commercialization of specified cultural rituals without adequate
notice of the de-culturized nature of such rituals. This notice
could include a detailed disclaimer regarding the de-culturized
nature of the cultural artifact or ritual in question. While this
limitation does not prohibit the marketing of de-culturized
products, it does at least require that such products be put in a
cultural context. Such contextualization would reduce some, but
not all, of the harm created by its de-culturization.
Patent laws, in the author’s view, may be of relatively limited
significance in the fight against de-culturization. They might,
however, be crafted to protect the practice of folk medicines.
Since TRIPS requires commercial application as well as an
“inventive step,”207 patent laws themselves probably could not be
used to protect the practice of a well-known folk remedy per se
and still comply with international standards. Patent protection,
however, could be made available for the distillation of the
chemical composition that has the required therapeutic
characteristics or for the manufacturing processes utilized to
commercialize the folk remedy.
In crafting such laws, the author strongly urges reconsideration
of the first-to-file procedures generally adopted for patent
204 See JEROME GILSON, TRADEMARK PROTECTION AND PRACTICE (1996); LONG,
UNFAIR COMPETITION AND THE LANHAM ACT, supra note 114; J. THOMAS MCCARTHY,
MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION (3d ed. 1995).
205 15 U.S.C. § 1125(a) (1997).
206 See Gilliam v. American Broad. Cos., 538 F.2d 14, 24 (2d Cir. 1976).
207 See TRIPS, supra note 8, art. 27. See also supra note 107 and accompanying
text for a brief discussion of this requirement.
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 149
applications.208 Such procedures, which grant patent protection to
the first applicant to file for protection, as opposed to the first to
invent, do not adequately protect the rights of the indigenous
practitioners. To the contrary, they virtually guarantee that
multinational corporations, who have a more sophisticated
approach to patent applications, will obtain patents for such folk
remedies.209 By contrast, where protection is granted to the first
inventor, it is more likely exploitation rights will be held by native
Finally, trade secret laws could be developed that protect
208 Under first-to-file procedures, the patent is granted to the first applicant to file a
valid application disclosing a patentable invention. This procedure has the benefit of
easy administrability and places the greatest emphasis on winning the race to the Patent
Office. When combined with publication of pending applications, the end result of this
procedure is to encourage early public dissemination of potentially patentable
By contrast, first-to-invent procedures grant the patent to the first person to invent a
patentable device, regardless of when the application is filed. For instance, in order to
qualify as the first inventor, the United States requires that the applicant have been the
first to conceive of the invention and have worked diligently to reduce the conception to
practice. See 35 U.S.C. § 101 (1997). First-to-file procedures emphasize, within limits,
rewarding the act of conception but may delay patent issuance due to interference
proceedings brought by other alleged first investors claiming rights to the applied-for
invention. The first-to-invent system may adversely affect predictability of patent
enforcement, since even an issued patent might be subject to a claim that another person
developed the invention first. For an examination of the first-to-file debate, see
generally Charles R. B. Macedo, First-To-File: Is American Adoption of the
International Standard in Patent Law Worth the Price?, 1988 COLUM. BUS. L. REV. 543
(1988); Robert W. Pritcherd, The Future is Now—The Case for Patent Harmonization,
20 N.C. J. INT’L L. & COM. REG. 291 (1995).
209 The grant of patents for folk medicines and seed varieties have caused some of
the most heated debates over the desirability of intellectual property protection regimes
for developing countries. See Peter Jinks, Battle Ahoy Over “Pirates” of Bio-Booty,
THE SCOTSMAN, May 25, 1997 (discussing the threat to the Third World posed by
protection for bio-technology products); Michael D. Lemonick, Seeds of Conflict, TIME,
Sept. 25, 1995, (Magazine), at 50 (discussing the patenting of a pesticide made from
neem seeds from India); Alan Simpson, The Theft of Our Souls, THE GUARDIAN
(London), July 11, 1997, at O19 (discussing problems posed by granting patents on the
“healing powers of the neem trees”); Sowing the Seeds of Conflict, THE HINDU, Mar. 23,
1997, at 25 (examining the adverse effect of patent protection on seed varieties); S.M.
Mohamed Idris, Doublespeak and the New Biological Colonialism, (visited Feb. 16,
1997) <http://www.livelinks.com/sumeria/earth/colony.html> (alleging a double
standard for protection of knowledge where knowledge of Third World farmers “does
not qualify as knowledge” but laboratory creations qualify as “new knowledge” for
which patent protection is available).
150 N.C. J. INT’L L. & COM. REG. [Vol. 23
manufacturing, gathering and curing techniques for folk
medicines. Although such processes lack the novelty required for
patent protection, where the processes have been disclosed in an
environment where confidentiality was required (such as to a
limited number of practitioners, sworn to secrecy), such processes
could continue to be protected under a carefully drafted trade
Developing countries cannot survive without becoming active
participants in the global marketplace. Such participation, fueled
largely by foreign investment, often places the culture and heritage
of developing countries on a collision course with the global
consumer culture of the more powerful developed countries. The
commodification and de-culturization of native and indigenous
culture that results from such a collision is supported, and may
even be enhanced, by the intellectual property protection regimes
enacted by the developing countries at the behest of foreign
investors. Although the purpose of such laws is usually seen
through the narrow prism of protecting the technological
investment of foreign multinationals, present international
protection standards do not require such a view. To the contrary,
despite the potential for misuse in supporting the commodification
and de-culturization of native and indigenous culture, properly
crafted and enforced intellectual property laws may not only meet
the protection demands of foreign investors but can actually shield
a country’s cultural heritage against the leveling forces of
Using the protection norms of the Berne and Paris
Conventions, as refined by TRIPS, developing countries can craft
a protection regime that would provide protection for such critical
cultural elements as folklore, ritual, costumes, and folk medicine.
Focusing on copyright as the primary tool for inhibiting
unauthorized de-culturization of cultural works, these regimes
would recover cultural works by redefining the scope of public
domain elements and establishing rights organizations to
administer these newly expanded rights. A careful balance is
required to avoid imposing too high a cost for the creation of new
works using protected elements, or from the threat of harmful
censorship. Native culture must not only be protected by such
1998] INTELLECTUAL PROPERTY AND INDIGENOUS CULTURES 151
laws, but must also be allowed to flourish. Thus, too strict an
application could destroy (through stagnation) the very culture the
law was designed to protect. Appropriately crafted moral rights,
trademark, patent and trade secret laws should be enacted to
support these efforts.
In addition to serving as a cultural shield, strong intellectual
property protection may positively affect the variety of
domestically-created products available for consumption. With
the assurance of a sufficient economic return granted under such
laws, native authors and artists will have greater incentives to
spend the time, money and effort to create new products for a
growing marketplace. Where legitimate channels of distribution
are protected, problems of scarcity and inconsistent supply may be
eliminated, further expanding the available pool of products and
services. In order to assure that these positive developments are
not purchased at the price of the destruction of the country’s native
and indigenous culture, however, laws must be created with the
dual roles of promotion of economic growth and protection of
culture firmly in mind. The secret is in creating an acceptable set
of intellectual property laws that meet these twin goals. It is not
an easy task, but for developing countries, it may well be a matter
of cultural survival.