Indigenizing Intellectual Property Law: The Role of First Peoples’ Customary Law in Structuring a Rights Framework for Protecting Traditional Knowledge, Cultural Expressions, and Genetic Resources

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The role of Indigenous customary laws and protocols is vital. Indigenous Peoples have been marginalized, colonized, and victimized through the application of foreign laws. Western driven conquest, manifest destiny, and industrialization stole land and people. Today, a similar calculus is applied to misappropriate Indigenous resources. Customary law remains intact in many Indigenous communities but it has too often been ignored or vilified by proponents of western legal theory; as such, protection of Indigenous resources has been left wanting.

In today’s climate where Indigenous Peoples advocate for self-determination, we have the opportunity to discuss the standards for protecting Indigenous resources. We also have an opportunity to discuss how customary law can indigenize western intellectual property law to arrive at a coherent paradigm of protection. My starting thesis is that western intellectual property law, standing alone, cannot protect many of the intangible resources originating with Indigenous Peoples.

In response, a number of commentators advocate for a sui generis system; others criticize the concept. Few, if any, analyze the spectrum between the two positions. My observations from living, teaching, researching, and actively participating in the pursuit of Indigenous rights in, among other places, Aboriginal Australia, Native Hawai‘i, The CNMI, and Aotearoa have led me to conclude that the recognition of customary law of Indigenous Peoples and its application alongside western intellectual property law has potential to provide more appropriate protection for Indigenous resources.

Stream: Cultural Sustainability

Paper: A paper has not yet been submitted.

Professor Danielle Conway-Jones teaches in the areas of intellectual property law, intellectual property licensing law, international intellectual property law, government contracts, and Internet law and policy. Named Outstanding Professor of the Year in 2003, and awarded the University of Hawai‘i Regents’ Medal for Excellence in Teaching in 2004, Professor Conway-Jones completed a 2006–07 Fulbright Senior Scholar post in Australia before arriving at George Washington University Law School where she is currently the E.K. Gubin Visiting Professor of Government Contracts Law. In addition to many articles and publications, Conway-Jones co-authored the treatise Intellectual Property, Software, and Information Licensing: Law and Practice (BNA 2006 & 2007 Supplement) and the casebook Licensing Intellectual Property: Theory and Application (Aspen, 2008). The University of Maine School of Law honored Professor Conway-Jones by selecting her as the 2008 Godfrey Visiting Scholar. She has lectured in the United States, Europe, China, Palau, Micronesia, Australia, and Mongolia on topics including globalization, government contracts, intellectual property law, and Indigenous Peoples’ rights.