Stimulating Trade and Development of Indigenous Cultural Heritage by Means of International Law: Issues of Legitimacy and Method
Adopting the view that a more active participation of indigenous peoples in the trade of their knowledge assets would promote their socioeconomic development raises difficult questions of legitimacy and method. Questions of legitimacy are posed by the potentially modernising effects of development endangering traditional ways of indigenous peoples’ social organisation. Questions of method arise when studying how international law, including international economic law, could better contribute to furthering the development interests of indigenous peoples in the trade of indigenous cultural heritage (ICH). There will be many areas where modern law and indigenous custom collide. These questions are the focus of the first part of the paper. The second part studies international law’s potential to stimulate ICH trade for the sake of indigenous socioeconomic development. To this end, it first assesses how interests of indigenous peoples in trade and development of ICH are currently institutionalised in international economic law. The paper then examines whether preferential trade rules for indigenous cultural goods and services would be an adequate tool to advance the interests of indigenous peoples in ICH trade and development.
Chapter 4 Guardianship and the Wai 262 Report
The analysis in the previous chapter made clear that, though existing intellectual property (IP) and related law could be used to protect some Māori interests in their cultural heritage, it cannot do so in an all-encompassing or satisfying way. This is in large part due to the disparities between how IP and its related laws function and the means by which Māori knowledge systems operate, much of which hinges on the idea of “ownership”. As discussed above (Sect. 3.1), indigenous peoples, including Māori, do not view their relationship with their tangible and intangible cultural heritage as one of “ownership”. In other words, their relationship usually does not equate to the bundle of rights usually associated with “property” of title, possession, exclusivity and alienability. Though in many situations, the relationship may be equivalent to “ownership”, or may be “ownership-like”, it is often better construed as a relationship of guardianship or stewardship (kaitiakitanga). Many indigenous communities care for their cultural heritage as a duty to their ancestors and to future generations. Indigenous peoples, thus, do not own their cultural heritage, so much as have duties and responsibilities over it. The disconnect between ownership and responsibilities also means that indigenous peoples may have duties over that which they do not own. Furthermore, though Western property is individual in nature, indigenous peoples seldom “own” their tangible and intangible property and lands individually, but as a collective. This is true even if one (or several identifiable) individual(s) has (or have) the responsibility over it. The duty is undertaken on behalf of the community.
Marks of Rectitude
Trademarks and certification marks increasingly denote sustainability or social responsibility standards. These marks of rectitude are particularly noticeable in the context of global trade, where market integration is accompanied by relatively uneven integration of environmental, labor and other standards, and where consumers in the so-called global North choose how to empower producers and/or encourage development of markets in the global South. But consumer participation in these transactions is under-explored by reference to criteria such as the quality not to mention accountability and transparency of the standards embedded within the goods or services. Newer stakeholders and meaning-makers such as the largely invisible third party certifier determine whether a product conforms to a standard, which in turn is embodied in a mark. Marks of rectitude can be viewed as a type of decentralized regulation in response to a felt need for heightened social norms. Trademark law potentially can function to mediate between extremely different local conditions within a global market system, to signal not source of manufacturing origin (as in classic trademark law), or geographic origin (as signified by certification marks to provide geographic indication protection in the U.S.), but rather socially responsible practices within a global administrative framework. The "branding" aspect of this decentralized, privatized regulation raises the likelihood of slippage between the mark's function as a reliable indication of source and its newer regulatory functions. Can marks of rectitude bear the weight of the various goals that have proliferated in the global regulatory marketplace? Published as part of an intellectual property symposium exploring the collision of different paradigms, this essay examines how the public law framework provided by the Lanham Act can foster the conditions for consumer participation essential to these various private regimes.