Protecting the Rights of Indigenous Cultures Under the Current Intellectual Property System: Is it a Good Idea?, 3 J. Marshall Rev. Intell. Prop. L. 88 (2003)

Globalization and digital communication trends have provided new avenues and incentives for the commercial use of the folkloric artwork of indigenous peoples. Such commercial uses, however, have occurred largely without any creative control or financial benefit inuring to the original creators, people, or tribe of whom the artistic works form an integral part of their culture. Since much of the works are owned by a community as a whole, as opposed to being owned by individuals, it is difficult to fit such works into an intellectual property regime that is based on laws formed around Western notions of art and artistic ownership. The fact that the folkloric art is often not fixed in a tangible medium further confounds the issue. However, unless the folkloric works of indigenous peoples can somehow be treated as their rightful intellectual property, commercial exploitation by others will continue. Such a scenario threatens to destroy the meaning and sanctity of the work to its owners without recourse