Chicago Journal of International Law

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For the past twenty years, the United Nations’ World Intellectual Property Organization (WIPO) has been working on what could be a major shift in international intellectual property law. WIPO’s work has uniquely focused on intellectual property protection for “traditional cultural expressions” (TCEs), a term which roughly describes a broad conception of indigenous groups’ intellectual property. Most recently, WIPO published its latest proposed Draft Provisions/Articles for the Protection of Traditional Knowledge and Traditional Cultural Expressions, and IP & Genetic Resources. These Draft Provisions propose a tiered rights system in which the owners of sacred TCEs receive more protective rights than the owners of secular TCEs. While the instinct to protect the intellectual property of indigenous groups is admirable in light of indigenous groups’ exploitation and exclusion from Western intellectual property regimes, a protection system that all nations accept has been difficult to reach. Even more so, a system that differentiates among TCEs based on their sacredness will need to be justified to convince as many nations as possible (or at least a critical mass of nations that heavily influence international intellectual property policy) to adopt WIPO’s proposed system. Assuming that a novel system for TCEs protection is a generally good idea, this Comment explores potential justifications for the Draft Provisions’ sacred versus secular distinction.

Potential justifications can be divided into three categories: value-based, harm-based, and traditional IP justifications. Value-based justifications suggest that sacred TCEs should receive heightened protection because they are more valuable, either economically or intrinsically. Harmbased justifications suggest that sacred TCEs should receive heightened protection because of the harms that would come about if they did not receive this protection, such as devaluation, cultural extinction, offense, and desecration. Traditional IP justifications suggest that sacred TCEs should receive heightened protection for the same reasons that IP generally should be protected, such as: incentivizing creativity and distribution; rewarding labor; personality, autonomy, and personal development; and developing a just and attractive society. Of these justifications, the most convincing are economic value justifications and just and attractive society justifications. Framing potential justifications in terms of justifications already familiar to the IP field will increase the likelihood of a critical mass of nations adopting the Draft Provisions.

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