The Impact of Foreign Investment on Indigenous Culture: An Intellectual Property Perspective

Abstract

The presence of foreign investment and the subsequent development of a commercial culture that facilitates participation in the global marketplace can have an adverse impact on indigenous culture. The “Coca-colonization” of non-Western, non-capitalist societies has become the new economic imperialism of developed countries. From eco-tourism to cultural tours and souvenir artifacts, culture has been transformed into a commodity that can be merchandised and sold across international borders. This “commodification” of culture is often achieved without the consent or participation of the holders of such cultural rights, particularly when those holders are indigenous peoples. This Article contends that even though the commodification and de-culturization of native and indigenous culture may be enhanced by the intellectual property protection regimes enacted by the developing countries at the behest of foreign investors, intellectual property does not have to play so narrow a role. To the contrary, despite the potential for misuse in supporting the commodification and de-culturization of native and indigenous culture, properly-crafted intellectual property laws may not only meet the protection demands of foreign investors but can actually shield a country’s cultural heritage against the leveling forces of globalizing de-culturization. The Article suggests several methods developing countries can use to create the intellectual property regimes demanded by foreign investors while also preserving indigenous culture from unwanted commodification. It demonstrates how copyright, moral rights, trade secret, patent and even trademark laws can be modified to protect indigenous culture while meeting international standards under TRIPS. While balancing the contrasting goals of economic growth and protection of indigenous culture is not an easy one, it may well be a matter of cultural survival.

Keywords: traditional rights, culture wars, globalization, coca-colanization, indigenous peoples, intellectual property rights, international, TRIPS, de-culturization

JEL Classification: O34, Z10, P45, O19, K33, J15