Cardozo Journal of International and Comparative Law
indigenism, intellectual property, cultural information, TRIPS
The debate about creating so-called intellectual property (“IP”)--legal monopolies--over indigenous information (a product mostly of Third World countries) is habitually (almost stereotypically) characterized by qualifications that such monopolies really don't fit, and further qualifications that although they don't fit they are the best alternative. But underlying both sets of qualifications is often a confusion about what the real problem is. Because of a frequent failure to analyze closely the problem (and sometimes because of misinformation mixed with an unhealthy dose of romanticism), critics far too often jump to the legal monopoly solution to problems that ironically may be in large part the consequences of IP itself.The debate, as is recognized by critics, involves several distinct and very different concerns. It would be a remarkable serendipity if all of them, or even most, could be addressed by a single solution. To make matters worse, it is not even clear that all--or even many--of them truly merit resolution. But deciding whether they demand a solution, and what the (various) solutions may be, becomes more difficult when they are confused or misunderstood.The goal of this essay is first to identify concretely the different concerns in this debate, then to discuss briefly how their characters may demand remedies that are exclusive of one another and then, most importantly, to determine, once the issues, problems, and remedies, are exposed, whether they are in truth isolated problems or whether they are merely consequences of a far more dominant problem. In other words, despite their disparity, do they still have something legally important in common? Does IP, especially through TRIPS, really offer a solution to the problems Third World countries seek to resolve? Can it protect the very substance of indigenism--its cultural intellectual product?
Michael Henry Davis, Some Realism about Indigenism, 11 Cardozo Journal of International and Comparative Law 815 (2003)