Generally on Intellectual Property Rights (IPRs) .1 The Origin of and Basic Nature of IPRs

IP is no modern invention. For instance, already in 1474 the Republic of Ven-ice protected a technique for glass-making particular to the republic from the use of others,17 arguably an early form of patent. As to the other IP element of central relevance here, copyright, the notion that printed works should be subject to legal protection emerged essentially in tandem with the invention of the printing press.18 The world’s fijirst copyright act, the Statute of Anne, was subsequently enacted in Britain in 1709, followed a few decades later by the fijirst proposal for an international treaty on copyright protection.19 As to the history of national legislation pertaining to patents, the fijirst domestic patent

16 Numerous international legal sources afffijirm that the articulated new understanding of equality forms part of international law, as well as that it has the described impact on in-digenous peoples’ property rights over lands and natural resources. See Åhrén (n 1) Chap-ters 7 and 8, with references.

17 G Dutfijield and U Suthersanen, Global Intellectual Property Law (Edward Elgar, 2008) 6, 106; By (author) World Intellectual Property Organization, Introduction to Intellectual Property, Theory and Practice (1997) 17.

18 By (author) (n 17) 23; G Gregory Letterman, Basics of International Intellectual Property Law (Transnational Publishers, 2001) 259; Dutfijield and Suthersanen (n 17) 66.

19 Von Lewinski (n 7) 13-14; By (author) (n 17) 24; Dutfijield and Suthersanen (n 17) 68.

act was arguably the English Statute of Monopolies of 1624. Some time later, both France and the United States adopted their fijirst national patent laws al-most immediately after their respective revolutions.20 The fijirst international patent treaty – the Paris Convention – was subsequently adopted in 1883.21In the present day, IP has been broadly defijined as legal rights which result from human intellectual creativity.22 However, regardless how one defijines ‘IP’, such property is by no means a term of art. There is nothing inherent or manda-tory that prescribes what forms of human creativity, if any, should be subject to rights. On the contrary, to ascribe rights to creativity is a purely subjective decision by a lawmaker. IP does not ‘occur naturally’. Rather, it exists only if ex-plicitly provided for by law.23 Dutfijield’s and Suthersanen’s observation that the term (although not necessarily the concept) actually lacks meaning in its own right and is thus, despite attempts to the contrary, in fact objectively undefijin-able can therefore be described as an apt one.24

Already at this point, it is pertinent to underscore that instantly during the era when liberals formulated the terra nullius doctrine and the European sovereigns rendered it law, the notion that creativity – as land and natural re-sources – should be subject to individual monopoly rights was not only en-tertained but also practiced. Moreover, as with indigenous territories, it was up to the sovereign to decide who was bestowed with rights over creativity.

In its inherently subjective nature, IP resembles the terra nullius doctrine. As

20 By (author) (n 17) 18-19; Dutfijield and Suthersanen (n 17) 106-07.

21 Letterman (n 18) 170.

22 By (author) (n 17) 3.

23 Letterman (n 18) 2-3. It falls outside the scope of this chapter to discuss why, against the backdrop of the just stated, norms have been created that extend legal protection to hu-man creativity. For discussions of the most common arguments for (and against) the ex-istence of IP, see, generally, ibid. 165-73, 256-65; Dutfijield and Suthersanen (n 17) 51-60, 109-112; Gibson (n 8) 85-89; more generally, P Drahos, A Philosophy of Intellectual Property (Ashgate Publishing, 1996).

24 See Dutfijield and Suthersanen (n 17) 6, 13-16, 18, 48, 78, and compare also Gibson (n 8) 129.

This feature of the IP system carries an additional implication. It means that this chap-ter’s presentation of the general contours and features of this system must necessarily be an oversimplifijication. The fact that there is no, and indeed cannot be, any universally ap-plicable defijinition of IP implies that each jurisdiction may, and does, defijine IP diffferently.

To present the IP system in a generalized and simplifijied manner is, however, not a prob-lem for the present chapter, as its ambition is precisely to measure this system’s basic and general features and elements–and in particular the notion of a public domain–against recent developments within the sphere of indigenous land and natural resource rights.

touched upon, the chapter returns to this similarity between the two catego-ries of rights below.

4.2 The General Elements and Features of IPRs

It is common to divide IP into two broad categories; ‘industrial property’ and

‘copyrights’. While the subject of copyright protection should be self-explan-atory, it might be worth pointing out that the former category includes IP mechanisms such as patents and trademarks.25 Copyright, patents, and trade-marks are generally considered the three most central IP tools. Of these, copy-rights and patents are the ones most often discussed in an indigenous copy-rights context,26 and are also the main focus of this chapter. Very briefly, the basic features of these two IP-mechanisms can be described as follows.

Copyrights largely relate to artistic expressions,27 such as music, paintings, and clothing. However, not all such creations are copyrightable; rather, only new, or original, creations enjoy copyright protection.28 In other words, the creation must be sufffijiciently dissimilar to already existing works. If a work meets the originality criterion and thus is copyrightable, put simply, and set-ting certain exceptions aside, a copyright awards the creator with an exclusive right to make copies of the work and make those available to the general pub-lic, and/or to perform or recite the work.29 If a work is copyrightable, copy-right protection does, however, like most IPRs, not last in perpetuity.30 From the point in time when a work is made publically available, such protection normally expires in a number of years defijined by domestic law following the passing away of the creator of the work.31

25 By (author) (n 17) 3.

26 See Dutfijield and Suthersanen (n 17) 13. That said, one might perhaps discern a trend among scholars to direct increased attention to trademarks as a IP tool that could poten-tially protect indigenous creativity. See, generally, D Zografos, Intellectual Property and Traditional Cultural Expressions (Edward Elgar, 2010) 50-103.

27 By (author) (n 17) 5.

28 Megan M Carpenter, ‘Intellectual Property Law and Indigenous Peoples: Adapting Copy-right Law to the Needs of a Global Community’ [2004] Yale Human Rights Law & Devel-opment Law Journal, Vol 7 69; By (author) (n 17) 9, 256; Dutfijield and Suthersanen (n 17) 79-80.

29 Von Lewinski (n 7) 55; Letterman (n 18) 2-3, 257-8; By (author) (n 17) 5.

30 Letterman (n 18) 8-9.

31 A Sterling, World Copyright Law (Sweet & Maxwell, 2003) 193-194; Dutfijield and Suther-sanen (n 17) 8, 79-80, 97; Letterman (n 18) 257-58.

For its part, patents provide, similar to copyrights, the inventor with a sole right to utilize her or his invention in ways he or she see fijit.32 However, as with copyrights, only inventions that are new, or novel, i.e. sufffijiciently dissimilar compared with already existing inventions, can be the subject to patent pro-tection.33 Further, patent protection too, is time-limited. It is normally valid for 20 years following the fijiling for registration, with the possibility to fijile for subsequent protection for an additional 20-year period.34

In addition, both copyright and patent protection only extend to works that can be attributed to an individual creator or, alternatively, to an identifijiable number of creators.35

4.3 Conclusions as to the Basic Contours of IPRs – The Notion of a So- called Public Domain

We have thus established that IP is not a term of art. The lawmaker determines what forms of human creativity, if any, are worthy of legal protection based on political choice. Creativity that the lawmaker decides should not be protected – either not at all or after a certain time-period – is from an IP perspective considered to fall into the so called public domain, and thus free for everyone to use, also against the creator’s will. The fact that IP law is as much about de-ciding what should not be protected as about what should be implies that the notion of a public domain is integral to the IP system.36

As further described, when determining the scope of IP protection – and as a consequence at the same time conversely that of the public domain – law-makers have (in addition to deciding that certain forms of creativity should not be protectable per se) generally held that creativity with certain characteristics shall be disqualifijied from IP protection. First, generally speaking, IPRs do not lend themselves to anonymous works. IP-protection presupposes an identifiji-able creator or group of creators where the membership is known. Second, IP-protection does not extend to creativity that is not sufffijiciently original or novel – as measured against already existing and known human creativity. Or to put it diffferently, one may not receive IP protection with regard to works that have

32 Letterman (n 18) 166.

33 Carpenter (n 28) 69; Letterman (n 18) 5, 9, 165.

34 Dutfijield and Suthersanen (n 17) 112-13, 128; Letterman (n 18) 166.

35 David Lea, Property Rights, Indigenous Peoples and the Developing World: Issues From Abo-riginal Entitlement to Intellectual Ownership Rights (Martinus Nijhofff Publishers, 2008) 263; Dutfijield and Suthersanen (n 17) 12.

36 A Chander and M Sunder, ‘The Romance of the Public Domain’ [2004] California Law Review, Vol 92 1340; Letterman (n 18) 257.

not sufffijiciently ‘improved upon’, i.e. are not sufffijiciently dissimilar compared with, the bulk of already existing creativity. Finally, even if a work did at a time qualify for IP-protection, the protection will normally expire following the passing of a certain time-period. As a consequence, central elements of a par-ticular culture will in all likelihood most often not enjoy IP-protection today, since one can expect such elements to be ‘old’, for IP purposes.

The question then becomes, how well do the articulated basic contours of IPRs match the characteristics of indigenous creativity?