An Analysis of the Lack of Protection for Intangible Tribal Cultural Property in the Digital Age

53 Pages Posted: 17 Oct 2017

See all articles by Chante Westmoreland

Chante Westmoreland

California Law Review; University of California, Berkeley, School of Law, Students

Date Written: February 28, 2017

Abstract

This Note analyzes how current statutory schemes omit protection of intangible Tribal cultural property, and how the current push for digitization of library and museum collections exacerbates infringement and appropriation. Cultural property includes any sacred traditional knowledge essential to tribal way of life, and is often privileged information. Thus, intangible cultural property is easily likened to intellectual property in import, but dos not share the same policy rationale. Because intellectual property laws are justified using “incentive-creation” and other utilitarian theories, these laws inadequately protect tribal images, sacred songs, and other types of traditional knowledge. Meanwhile, statutory schemes specific to cultural property focus solely on tangible sacred objects such as ceremonial and funerary regalia. This leaves items such as photographs, notes, and recordings, which contain culturally sensitive information exposed to outsiders and ripe for infringement. In order to remedy this harm, Congress should fulfill its fiduciary obligation to tribes by enacting laws that would incentivize libraries, museums, and other educational entities to negotiate with tribes to license or repatriate intangible cultural property prior to digitization.

Suggested Citation

Westmoreland, Chante, An Analysis of the Lack of Protection for Intangible Tribal Cultural Property in the Digital Age (February 28, 2017). Forthcoming, California Law Review, June 2018.. Available at SSRN: https://ssrn.com/abstract=3053295 or http://dx.doi.org/10.2139/ssrn.3053295

Chante Westmoreland (Contact Author)

California Law Review ( email )

University of California, Berkeley
Berkeley, CA 94720
United States

University of California, Berkeley, School of Law, Students ( email )

Berkeley, CA
United States

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