Over the last few decades a steady increase in intellectual property law has occurred. Patent subject matter has been extended to every field of endeavor, including patents now issued on subject matter once thought unpatentable: new life forms, business methods, software, and traditional ecological knowledge, to name a few. Copyright’s reach has similarly broadened to cover things such as software, and to provide new rights, like the anti-circumvention rules found in the Digital Millennium Copyright Act. In fact, the copyright term has been extended until it has become almost infinite in reach. Likewise, trademark law has expanded from the protection of trade symbols to the protection of every imaginable symbol, including colors, scents, and sounds. The varieties of trademark protections have increased from mere trademark infringement to just theories of dilution. In addition, trademark infringement itself has been richly expanded to include such theories as post-sale confusion, initial interest confusion and reverse confusion. In short, intellectual property law has greatly expanded as the world has globalized, largely driven by the corporate interests’ role in legislation and in the formulation of international treaties.

Over the course of this expansion in intellectual property law, indigenous people have hardly had the same sway as corporate interests when it comes to obtaining patents, copyrights, or trademarks. In fact, intellectual property law has been expanded for corporate interests in a number of sweeping ways, while the few measures that have recognized rights in indigenous cultures have been quite limited. In the United States, the most significant examples of indigenous peoples intellectual property law are the Indian Arts and Crafts Act and the Native American Graves Protection and Repatriation Act (NAGPRA). None of these, however, has had a significant effect on the public domain compared to the legislative grants given to corporate interests. Likewise, in the international area, indigenous peoples’ interests have hardly received the sort of attention that corporate interests have. The most significant change in international law is that intellectual property, through the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, has been made part of international trade law. As long as indigenous peoples are recognized as sovereign nations with a Western style legal system, they are able to bring their case to the coercive processes of the World Trade Organization (WTO) dispute resolution mechanism. Efforts to use international treaties to provide protection of indigenous peoples as sovereign nations, however has been met with resistance. This is to prevent any formal recognition and rights to indigenous peoples. Thanks to the efforts of indigenous groups and non-governmental organizations (NGO), however, both the World Intellectual Property Organization (WIPO) and the WTO have at least taken some issues into consideration. Likewise, the United Nations has recently ratified the Declaration on the Rights of Indigenous Peoples. As such, the issues of indigenous peoples are now given a seat at the table, but they still have little voice or concrete recognition.

Currently, the political forces that allowed commercial power to decrease the public domain are also allowing commercial interests to increase at the cost of the rights of indigenous peoples. In fact, many of the claims sought by indigenous peoples are not claims to something in the public domain, but rather claims for protection from corporate intellectual property. Traditional knowledge or indigenous music, for example, are often not protected by copyright. A modern recording containing indigenous music or a new book containing traditional knowledge, on the other hand, may be copyrighted if it contains even minimal new elements (the choices made in the sound recording or the editorial additions to the traditional knowledge). So a commercial interest may, in effect, be able to hold copyrights in the products of an indigenous group. Similarly, in biotechnology, under current international law traditional ecological knowledge about the properties of plants may be privatized, in this case primarily under patent law. Patent law “enables broad patents on minor modifications, syntheses, and purifications,” such as “plant genetic resources, where patents based on local knowledge of plant qualities have become routine.” In the areas of biotechnology, it is therefore possible for companies to effectively patent traditional ecological knowledge.

The result would be different, however, if the chemical had been in use by indigenous peoples in a foreign country from the biotechnology company seeking the patent. If the chemical was known and used by an indigenous group in South America for instance, it would still be patentable in the United States, no matter how widespread, or how long standing that use was. U.S. patent law thus privileges written documentation over social use and corporate interests over indigenous traditional ecological knowledge.

Thus, if such elements as traditional knowledge and oral traditions are completely within the public domain, the commercial interests able to exploit them most efficiently could benefit most. As Chander and Sunder (2004) show, the present balance of intellectual property law gives protection to the knowledge generated by developed countries, while tending to leave open to all the knowledge generated by developing countries and indigenous peoples. Such a balance should be changed, even if it alters the contours of the public domain.

Finally, it is important to note that even though intellectual property rights are often group rights (and the groups can number in the millions), this has not proven a great obstacle to apportioning those rights. There are naturally disputes over ownership and inventorship, but such disputes are the exception. A new pharmaceutical rarely has scientists within a drug company fighting over the patent rights, and a new film does not usually have a dispute over the copyright. Rather, the ownership rules of intellectual property law, along with contracts, corporate law and other mechanisms, settle the ownership as agreed by the parties or as set out by the law. There is no reason to think that similar results would not obtain for indigenous peoples, in this case through their own mechanisms for governance and dispute resolution. In one instance in the United States, for example, a group of indigenous Native American nations from the same region worked together to form a consortium designed to address any disputes arising out of the issue of "cultural affiliation" and the return of human remains under NAGPRA. Other indigenous peoples in the U.S. and elsewhere have adopted laws and related mechanisms that specifically address cultural resource protection. Indigenous peoples, especially as part of economic development efforts, have considerable incentive in integrating commercial law into their own governance systems.

As such, over the long-term it behooves not only the global economy but also the economic vitality of corporations to protect indigenous people’s intellectual property. Doing so is not only morally and legally sound, but also smart business.

Chander, Anupam; and Sunder, Madhavi. 2004. The Romance of the Public Domain. California Law Review, 92, 1331.

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