Deconstructing (the concept of) Intellectual Property: Designing and Incorporating Alternative Models of Property Ownership in the New Millennium and the Protection of Indigenous Knowledge

Tomas Lipinski and Johannes J. Britz


Information and communication technology makes possible new levels of connectedness between potentially diverse and distinct interests throughout the world. In order to minimize those cultural, political and economic differences attempts are made to establish common ground upon which relationships can develop. Within the global legal structure this linkage occurs within the harmonization of laws. Often a Western model of legal theory dominates the harmonization process. This is evidenced, for example, in the negotiation of intellectual property rights among first and third world communities.

Commentators have a developed a rich scholarly tradition in the critique of the disparity between those countries that benefit from their control of knowledge vis-a-vis expanding western-based intellectual property regimes and those countries that are limited by international agreement or economic or political pressure from accessing that intellectual property. This paper discusses the underlying concepts of that disparity. However the approach is not so much to identify the disparity from a traditional economic or political perspective, but from a cultural one.

What is it about a third or alternative world culture’s perception of concepts such as knowledge and ownership that are in contrast and opposition to a first world order of intellectual property ownership. This analysis is important for several reasons. Harris (1998) comments that intellectual property is the currency of the 21st century, but what of those cultures that do not view intellectual property ownership in the same terms and conditions as the western economic perspective? Systems of communal ownership may dominate some cultures in contrast to the exclusive ownership schema of western intellectual property models. Likewise Delta and Matsuura (1999) view intellectual property as the foundation for a new economic and legal paradigm based less upon notions of content and more toward concepts of “transaction.” If harmonization is truly to exist with respect to the subjects of traditional intellectual property then the harmonization that results must incorporate both first and third world order concepts of property ownership. Western legal theory must not come to dominate the determination of ownership of information.

To some extent western legal theory incorporates alternative viewpoints in its intellectual property schema, but these rights are often limited and underdeveloped. The concept of moral rights is a case in point (even so it is far more developed in continental perspectives than in the United States). However, other concepts such as communal ownership are less developed and are often subservient to established notions of intellectual property. Several examples can serve as case studies for review: the commercial ownership and control of blue corn (Native American) products, the medicinal knowledge base of tribal cultures in the Central and South American rain forests, and the aboriginal perception of communal knowledge in South African cultures.

Some cultures do not perceive intellectual property rights on the same plane. In fact there may some cultures to which ownership akin to western traditions is antithetical. Is a philosophical perspective of intellectual property rights culturally dependent or is it culturally dominated, and if dominant, whose view should be supreme? All cultures might agree that it is wrong to steal, but may not view reproducing software without “permission” as in fact stealing. The concept of ownership may not be a subject of the software. (Moreover, some cultures might not have developed the concept of stealing because stealing is based upon exclusive ownership and that culture might never have had a need to develop that concept but instead relies on communal or shared ownership.) In the alternative some superceding effect might be at work, i.e., reproducing and sharing the software with others is viewed as a tribute or honor to the creator instead of a taking. If one rule can serve many cultures, should a western view dominate and in the process dismiss alternative cultural perspectives? If the ethical standards are subject to cultural relativism, then what hope is there for global harmonization? Finally, what is the impact upon the cultural identity if a western view of property ownership dominates in the coming century?

This paper attempts to analyze these perspectives from both western, alternative as well as arrive might be viewed as a possible harmonizing position. To accomplish this an ethical matrix is designed to facilitate this review. It is hoped that this analysis might demonstrate how both traditional (private and exclusive) and alternative (public or communal) perspectives on knowledge (intellectual property) ownership might be incorporated into any international harmonizing legislation proposed for the new millennium.