Institutionalization of Creativity in Traditional Societies and in International Trade Law

CREATIVITY, LAW AND ENTREPRENEURSHIP, Shubha Ghosh et al, eds, pp. 234-263, Edward Elgar

I-call Working Paper No. 2010/01

28 Pages Posted: 23 Sep 2010 Last revised: 5 Jun 2013

Date Written: 2011

Abstract

Modern legal systems were not developed to deal with the modes of creativity and the meanings behind cultural expressions of traditional societies. The protection of creative expressions and knowledge through intellectual property rights has a commoditizing effect, inconsistent with the customary norms of many traditional societies, such that the propertization is offensive. This paper assesses the concept of creativity, from a modern and traditional perspective, and the effect of globalization on Indigenous peoples’ views on the trade of their cultural heritage. It then analyzes Indigenous creativity in the realm of international trade law and how WTO law could better serve the interests of Indigenous peoples, with respect to their participation in the international trade of certain aspects of their cultural heritage, and discusses how the UN Declaration on the Rights of Indigenous Peoples may affect such trade.

Keywords: Indigenous peoples, creativity, indigenous heritage, traditional cultural expression, traditional knowledge, institutionalization, proceduralization, international trade law, WTO, TRIPS, GATT, GATS, preferential treatment, UN Declaration on the Rights of Indigenous Peoples

JEL Classification: K11, K33, K39

Suggested Citation

Graber, Christoph B., Institutionalization of Creativity in Traditional Societies and in International Trade Law (2011). CREATIVITY, LAW AND ENTREPRENEURSHIP, Shubha Ghosh et al, eds, pp. 234-263, Edward Elgar, I-call Working Paper No. 2010/01, Available at SSRN: https://ssrn.com/abstract=1674272 or http://dx.doi.org/10.2139/ssrn.1674272

Christoph B. Graber (Contact Author)

University of Zurich, Faculty of Law ( email )

Treichlerstrasse 10
Zurich, 8032
Switzerland

HOME PAGE: http://www.ius.uzh.ch/en/staff/professorships/alphabetical/graber/person.html

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