Indigenous Creativity and the Public Domain – Revisited?1

Mattias Åhrén

1 Introduction

This chapter attempts to draw an analogy between the terra nullius doctrine and its efffects on ’ capacity to control their traditional ter- ritories, and the notion of a so-called public domain and its impact on who can access indigenous peoples’ respective cultural heritages. To what extent indigenous peoples2 have established over land through inhabitation and traditional use has been a concern of since its inception. It is generally held that the roots of the contemporary international legal system can be traced back to the second half of the 1600s. The international normative order that then gradually emerged did not only support the colonization of indigenous territories. It was indeed developed largely for facilitating European imperialism. Section 2 explains how the Euro- pean states invoked the principle of state sovereignty to proclaim the so-called terra nullius doctrine law, a theory that professed that indigenous peoples – due to the nature of their cultures – can hold no rights over land. Since the classical international legal system did not embrace human rights norms that could place checks and balances on the exercise of sovereignty, it was from an international legal perspective unproblematic that states invoked the terra nullius doctrine in order to make legal claims to indigenous territories. Section 3 articulates, however, how matters changed when, following the es- tablishment of the United Nations, human rights, including the right to equal- ity, were integrated into the international legal system. This development chal-

1 This chapter draws from a smaller part of a doctoral dissertation defended by the author in 2010 at The Arctic University of Norway – UiT, titled The Saami Traditional Dress and Beauty Pageants–Indigenous Peoples’ Ownership and Self-Determination Over their Cul- tures. The chapter further borrows from another work by the author; Indigenous Peoples’ Status in the International Legal System (Oxford University Press, 2016). 2 To be precise, indigenous rights over land most often vest with indigenous com- munities within an indigenous people, rather than with the people as such. See further Åhrén, ibid. Section 9.1. For consistency, this chapter nonetheless employs the term ‘peo- ples’ throughout.

Xanthaki, Valkonen et al. (eds.), Indigenous Peoples’ Cultural Heritage: Rights, Debates and Challenges. © 2017 Koninklijke Brill nv. isbn 978-90-04-34218-7. pp. 130-148. Indigenous Creativity and the Public Domain 131 lenged the authority of the terra nullius doctrine, and required a re-evaluation of whether indigenous peoples per se lack capacity to hold property rights over territories traditionally used. Sections 4-7 focus on indigenous (similar) rights (IPRs), or perhaps rather on the lack thereof. The Sections place a particular focus on whether an analogy can be drawn from recent developments within the sphere of indigenous land rights, i.e. they survey whether these develop- ments are, or should be, translatable into the sphere of indigenous peoples’ potential rights over their creativity. Section 4 sketches the basic contours of the intellectual property (IP) system. In particular, the section explains how IP protection, generally speaking, does not extend to works (i) that are not sufffiji- ciently new/original, (ii) anonymous, and (iii) from an IP perspective old. Sec- tion 5 proceeds to articulate the basic characteristics of indigenous creativity, while Section 6 subsequently explores the compatibility between (i) the core features of IP, and (ii) the characteristics of indigenous creativity. Finally, Sec- tion 7 addresses the question posed by the , i.e. it compares the efffects of terra nullius doctrine on indigenous peoples with those of the notion of a pub- lic domain, viewed through the prism of the right to equality.

2 Classical International Law’s Position on Indigenous Land Rights – The Terra Nullius Doctrine

2.1 Generally on the Terra Nullius Doctrine It is generally submitted that the seed to the international legal system we know today was planted in Europe in the post-Westphalian era. Resting heav- ily on its constitutional principle – that of state sovereignty – the international legal order that now took form not only supported colonization of indigenous lands, but was actually created for the precise purpose of facilitating and legal- izing European control over foreign territories.3 The European realms unilater- ally declared, as was their sovereign right to do, that under international law indigenous peoples – due to the very nature of their societies – lack capacity to hold rights over land. In other words, the European sovereigns declared indig-

3 W Kymlicka, ‘Beyond the Indigenous/Minority Dichotomy?’, in S Allen and A Xanthaki (eds.), Reflections on the UN Declaration on the Rights of Indigenous Peoples (Hart Publish- ing, 2011) 183; J Crawford and M Koskenniemi, International Law (Cambridge University Press, 2012) 15; G Simpson, ‘International law in diplomatic history’, in Crawford and Ko- skenniemi, ibid. 27.