Protecting Intangible Cultural Resources: Alternatives to Intellectual Property Law

Cultural resources can be defined as the tangible and intangible effects of an individual or group of people that define their existence, and place them temporally and geographically in relation to their belief systems and their familial and political groups, providing meaning to their lives. The field of cultural resources includes tangible items, such as land, sacred sites, and religious and finerary objects. The field also includes intangible knowledge and customs, such as tribal names, symbols, stories, and ecological, ethnopharmacological, religious, or other traditional knowledge. The tangible cultural resources of tribes can fall under the protection of statutes such as the Archeological Resources Protection Act of 1979 and the Native American Graves Protection and Repatriation Act, 1990 (NAGPRA). The protection of intangible cultural resources, however, is less codified. The provision of legal protection for intangible cultural resources has focused almost entirely on either linking such protection to human rights or defining intangible culture as intellectual property (IP). Early work on defining intangible cultural resources as IP was conducted jointly by UNESCO and the World Intellectual Property Organization (WIPO), which led to the Model Provisions for National Laws on the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions (1985). Work by WIPO continues today through its Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore. This is complemented by a growing body of law, mostly in other countries, using property law to halt cultural appropriation from indigenous communities. However, as it stands, IP law, in general, may be a poor fit for tribes. This Comment explores alternatives that exist in the form of regulation of research and tort actions against researchers who violate these regulations. It is premised on the observation that one of the primary means by which culture has been appropriated from American Indian communities has been through social scientific research. Indians are among the most heavily studied groups in fields like medicine, public health, and, recently, genetics. Yet anthropology, more than any other discipline, has made American Indians the subjects of research