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Speaking with a Forked Tongue in the Global Debate on Traditional Knowledge and Genetic Resources: Is U.S Fordham Intellectual Property, Media and Entertainment Law Journal Volume 15 Volume XV Number 1 Volume XV Book 1 Article 1 2004 Speaking with a Forked Tongue in the Global Debate on Traditional Knowledge and Genetic Resources: Is U.S. Intellectual Property Law and Policy Really Aimed at Meaningful Protection for Native American Cultures? Nancy Kremers Adjunct Professor, The George Washington University Law School Follow this and additional works at: https://ir.lawnet.fordham.edu/iplj Part of the Entertainment, Arts, and Sports Law Commons, and the Intellectual Property Law Commons Recommended Citation Nancy Kremers, Speaking with a Forked Tongue in the Global Debate on Traditional Knowledge and Genetic Resources: Is U.S. Intellectual Property Law and Policy Really Aimed at Meaningful Protection for Native American Cultures?, 15 Fordham Intell. Prop. Media & Ent. L.J. 1 (2004). Available at: https://ir.lawnet.fordham.edu/iplj/vol15/iss1/1 This Article is brought to you for free and open access by FLASH: The Fordham Law Archive of Scholarship and History. It has been accepted for inclusion in Fordham Intellectual Property, Media and Entertainment Law Journal by an authorized editor of FLASH: The Fordham Law Archive of Scholarship and History. For more information, please contact [email protected]. KREMERS FORMAT 1/25/2005 6:10 PM ARTICLE Speaking with a Forked Tongue in the Global Debate on Traditional Knowledge and Genetic Resources: Is U.S. Intellectual Property Law and Policy Really Aimed at Meaningful Protection for Native American Cultures? Nancy Kremers∗† INTRODUCTION ................................................................................ 3 I. AN OVERVIEW: WHAT IS TKGRF, HOW DOES IT DIFFER FROM OTHER INTELLECTUAL PROPERTY, AND WHAT ARE SOME OF THE TKGRF-RELATED LEGAL CONTROVERSIES AND PROPOSED SOLUTIONS THAT HAVE ARISEN IN RECENT YEARS? ............. 10 A. Defining and Differentiating TKGRF............................ 10 B. Summary of the Legal Issues and Disputes to Date in TKGRF........................................................................... 16 1. Complexity of TKGRF Legal Issues...................... 16 ∗ Ms. Kremers is an attorney in private practice specializing in intellectual property law, specifically copyright and Internet-related issues; Adjunct Professor, The George Washington University Law School; LL.M., Intellectual Property Law, University of Houston Law Center, 2003; J.D., Georgetown University Law Center, 1979; M.S., Foreign Service, Georgetown University Law Center, 1979. Ms. Kremers has also served as in-house international counsel for two multinational corporations and as general counsel in an Internet start-up company. † Portions of this article originally appeared in the March 24, 2003 issue of Legal Times IP (“They Thought It First: Indigenous Peoples Push to Protect Their Traditional Knowledge, Genetic Resources, and Folklore,” Page 14). 1 KREMERS FORMAT 1/25/2005 6:10 PM 2 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 15:1 2. Representative Sampling of TKGRF Disputes ...... 27 a) Copyright Disputes........................................... 27 b) Patent Disputes................................................. 28 3. The Current Range of Proposed Solutions to TKGRF Issues........................................................ 33 a) Resolution through Private Contracting........... 34 b) Patent Disclosure and Joint Ownership of Patents .............................................................. 37 c) Database Registries.......................................... 41 d) Protective National Legislation for TKGRF .... 43 e) Flexible Jurisprudential Interface Mechanism . 45 II. HOW DID THE TKGRF DEBATE EVOLVE AT WIPO, AND WHAT IS THE U.S. POLICY POSITION IN THAT DEBATE?.................... 47 A. Evolution of the International TKGRF Debate at WIPO ............................................................................. 47 B. The U.S. Policy Position................................................ 61 III. THE ADEQUACY OF EXISTING U.S. LAWS FOR PROTECTING TKGRF.................................................................................. 72 A. The Indian Arts and Crafts Act of 1990......................... 72 B. Alaska’s Silver Hand Program...................................... 81 C. Federal Trade Commission Act ..................................... 86 D. USPTO Database of Native American Tribal Insignia . 86 IV. HOW COULD U.S. LAW BE EXPANDED TO GIVE GREATER PROTECTION TO INDIGENOUS TKGRF, YET STILL REMAIN WITHIN ESTABLISHED REGIMES OF WESTERN INTELLECTUAL PROPERTY LAW? .................................................................... 92 A. Encourage Wider Indigenous Use of Current Trademark Tools............................................................ 93 1. Certification Marks and TKGRF............................ 94 2. Collective Marks and TKGRF ............................... 99 3. Lanham Act § 2(a)................................................ 102 B. Expand State and Federal Moral Rights Protections.. 106 1. Background .......................................................... 106 2. Development of U.S. Domestic Moral Rights Law....................................................................... 112 3. Federal Preemption of State Moral Rights Laws . 120 KREMERS FORMAT 1/25/2005 6:10 PM 2004] U.S. I.P. PROTECTION FOR NATIVE AMERICAN CULTURES 3 4. Expansion of Moral Rights Laws for TKGRF Protection.............................................................. 125 C. Establish a Domestic Geographical Indications Regime for TKGRF ...................................................... 129 V. TRADITIONAL KNOWLEDGE, THE INTERNET, AND BEYOND: THE BROADER RELEVANCE OF THE TKGRF DEBATE TO U.S. INTELLECTUAL PROPERTY DEVELOPMENT ........................... 137 CONCLUSION................................................................................ 140 INTRODUCTION In recent years, effective protection for the traditional knowledge, genetic resources, and folklore (“TKGRF”) of indigenous societies has emerged as a major controversy in intellectual property law.1 One approach is to view TKGRF as mere variants of the commonly accepted forms of intellectual property (“IP”), necessitating the same manner of protection as other qualifying material. Alternatively, some IP scholars argue that TKGRF are inherently different and require new types of legal protection. A third approach, held by a small minority working in the TKGRF area, advises that with so many indigenous societies producing infinite variations of TKGRF, one category of laws will not suffice. To use an image originating from Native American cultures, are U.S. officials “speaking with a forked tongue” in international forums when they profess the United States’ special concern for protecting indigenous TKGRF? Do current U.S. laws, poorly implemented and often spawned for reasons unrelated to TKGRF protection, merely pay lip service to indigenous TKGRF preservation, while actually protecting corporate commercial 1 See Daniel J. Gervais, The Internationalization of Intellectual Property: New Challenges from the Very Old and the Very New, 12 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. 929, 955–56 (2002). One reason for the increased interest in TKGRF is that many countries are “rich with traditional knowledge, especially genetic resources and folklore,” but do not benefit from “traditional forms of intellectual property.” Id. at 956. Additionally, aboriginal communities have been gaining political clout in many countries. Id. KREMERS FORMAT 1/25/2005 6:10 PM 4 FORDHAM INTELL. PROP. MEDIA & ENT. L.J. [Vol. 15:1 interests? Or are these inconsistencies between stated policy and actual implementation—even if factually indisputable—merely benign examples of the normal bureaucratic shortcomings that commonly riddle the U.S.’s cumbersome and complex democracy? In the global debate on TKGRF, many U.S. and foreign government officials and legal scholars assert that TKGRF are regulated most appropriately within the traditional categories of well-established Western intellectual property law, i.e., the standard bodies of copyright, patent, trademark, trade secret, and unfair competition law.2 Even if TKGRF do not fit any of these categories, they would benefit most from the stable and predictable protections that these existing, well-defined bodies of law provide.3 However, some legal scholars recognize that TKGRF have unique attributes not addressed by the standard IP categories.4 Unlike common IP materials, TKGRF have amorphous characteristics that would have to be defined to achieve effective 2 But see Graham Dutfield, TRIPs-Related Aspects of Traditional Knowledge, 33 CASE W. RES. J. INT’L L. 233 (2001). For convenience of reference only, the author uses the terms “Western intellectual property law” or “Western legal system” to mean the national legal system of a recognized government in any country in the world, without regard to whether such country might properly be labeled “Western” or “industrialized” in another context (geographical, cultural, political, etc.). These terms are, in the context of this paper, interchangeable with “national legal systems of industrialized societies,” although this expression would not, of course, withstand careful scrutiny when referring to the national legal system of a largely agrarian or nomadic society, such as Cameroon or Mongolia, since neither is particularly industrialized or Western per se. This rough terminology, is not intended to convey any greater or higher value
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