Indigenous Peoples’ Rights and Remedies in Complex Situations
7(1) World Intellectual Property Organization (WIPO) Journal 73-83 (2015)
Posted: 15 Aug 2016
Date Written: August 15, 2016
At least two corrective justice arguments exist for recognizing that indigenous peoples should have some intellectual property (IP) rights in their traditional knowledge. An earlier article deployed the first argument, and this article sets forth the second argument, which exploits the idea of free riding. This idea can be used to develop an understanding of fairness. This understanding can in turn be projected onto corrective justice. The corrective justice argument deployed here is salient for "complex situations." These situations are sequential across many actors which are not closely related to each other and which involve harm to indigenous peoples. The existence of complex situations is important because they make discerning remedies more difficult.
In sum, corrective justice applies in two situations. The first consists of simple situations in which trans-temporal groups of closely related white colonizers voluntarily and intentionally harm non-white indigenous peoples. The second consists of complex situations as defined above. By investigating a modestly challenging example of sequential harm in a hypothetical tort case, one can gain important insights for rectifying injustice done to the IP rights of indigenous peoples in complex situations.
Keywords: corrective justice, fairness, historical jurisprudence, indigenous people, intellectual property, simple and complex situations
JEL Classification: B13, B14, B15, D39, D64, D90, H41, I31, N10, N13, N16, N17, N26, N27, O34, O38, Z10, Z13, Z18
Suggested Citation: Suggested Citation