Spiritual But Not Intellectual? The Protection of Sacred Intangible Traditional Knowledge

Abstract

The use of sacred aboriginal art is nothing new. It is fairly common to see dream catchers hanging from rear view mirrors in cars. In Australia, sacred aboriginal designs are often found on tea towels, rugs and restaurant placemats. In the United States, people routinely Commercialize Navajo rugs containing both sacred and profane designs with no connection to the Navajo nation. Millions of dollars of Indian crafts imported from Asia are sold in the United States each year. Another example is the taking of sacred Ami chants by the German rock group Enigma for its song Return to Innocence. Can and should these sacred crafts and practices be protected and, if so, what is the place of intellectual property in this picture? Part I of the paper is Definitional in nature and examines the place of sacred intangible traditional knowledge in the debate about the interface between traditional knowledge generally and intellectual property and its relation with other statutory schemes (e.g., NAGPRA). In Part II, the paper proposes possible solutions within and without the framework of intellectual property rights proper to protect at least certain forms of sacred intangible traditional knowledge. In the last part of the Paper, constitutional arguments that may apply to sacred intangible traditional knowledge in Canada are discussed.