Vol 7 No 1 - Roger Williams University School of Law

Theory one proposes to reward the author in the name of publicwelfare, but the benefit to community or culture becomes a“presumed” consequence of the creative activity.34 Theory four isthe reverse in that it starts out with the community or culture andseeks to explain when it is beneficial for a creator to become aproperty holder. In this equation, economic efficiency may beconsidered but is by no means a totalising criterion or rationale.35The conclusion must be that both seek to prosper public welfarebut from completely different ends of the spectrum.Secondly, claims for protection of indigenous culturalmaterials are also subject to increasing attention. These might beseen as claims to collective or group moral rights or, more broadly,as claims that IP law should be used to respect and enhancecultural tradition and spirituality.36 A concern is that grantingperpetual rights to control information that has special culturalsignificance to indigenous peoples locks up information in asociety where access to and use of information should beoptimised. Another concern is that if indigenous peoples can beallowed to claim the special cultural significance of information,then a way will be opened for non-indigenous people to makesimilar claims in respect of other (religious or social) informationculturally significant to them. These responses understate therichness of indigenous culture and its plight in the face ofunethical economic exploitation.Proprietary Purpose: A Limiting FactorWhether intellectual property rights are designed to rewardpeople, or to reduce transaction costs and increase allocativeefficiency, or for reasons of rewarding the fruits of labour, orpersonhood theories or cultural development, the question34. See Benkler, supra note 10; Boyle, supra note 30; Julie E. Cohen, supra note30, (criticising the presumption that Intellectual Property law is always economicallyand culturally beneficial).35. It is interesting to contemplate how a cultural approach to IP might bereconciled with the permitted exceptions stipulated under TRIPS, arts. 13, 17, 30.36. Maroochy Barambah & Ade Kukoyi, Protocols for the Use of IndigenousCultural Material, in Going Digital 2000: Legal Issues for E-Commerce Software andthe Internet 133 (Prospect Publishing Sydney ed., 2000); Terri Janke, Our Culture OurFuture: A Report on Australian Indigenous Cultural Intellectual Property Rights, 43-48 (1988) (stating indigenous people’s desires for protection of indigenous cultural andintellectual property); United Nations Draft Declaration on the Rights of IndigenousPeoples, art 29 (1993).