Reframing Indigenous Cultural Artifacts Disputes: An Intellectual Property-Based Approach

Abstract

Indigenous cultural artifacts are traditionally seen through the prism of physical property. Disputes over a spectrum of objects from human remains to sacred objects center around who has title and possession, when import and export can be prevented, and under what circumstances remuneration or repatriation are appropriate. Museums, countries of origin, and indigenous descendents fight bitterly over these issues, which are often difficult to resolve given the finite, and highly rivalrous, nature of the objects in question.

This Article fundamentally reframes the debate. It posits that artifacts are not just physical property, governed by a physical-property paradigm, but also a species of intellectual property that can be regulated independently of physical status. The IP-based approach to indigenous artifacts asks not who has title to the objects, but how information generated by and related to such objects in the course of research, restoration, curation, display, and handling ought to be treated.

Because it is easier to share an idea than a thing, the IP-based approach offers a toehold into longstanding disputes that have proven intractable under the physical-property paradigm and its winner-take-all stakes. It also suggests a more nuanced reading of the history underlying these objects, which may facilitate increased dialogue through recognition of multidimensional rights and obligations of all parties. Along the way it provides a limiting principle to the expansion of intellectual property rights not previously available in the context of intangible heritage such as songs and ceremonies: the objects themselves. In so doing, it may enable all sides to find previously overlooked common ground.

Keywords: Cultural Property, Cultural Artifacts, Indigenous Rights, Yale, Peru, Intellectual Property, IP, Intangible Heritage