Contracting Cultures: Indigenous Intellectual Property and the Creative Commons

In intellectual property, there has been much interest of late in the creative use of contract law - especially with the development of the Creative Commons. By necessity, Indigenous communities have been pioneers in the creative use of contract law. In light of the glacial progress to reform legislative regimes and international treaties to protect traditional knowledge, Indigenous peoples have been forced to make creative use of contract law in order to protect their cultural interests. Rather than employing contract law to keep material in the public domain, Indigenous communities have used creative contracts to safeguard traditional knowledge. Creative contracts have been a means to ward-off free riders, copycats, and bio-pirates. In the field of copyright law, contractual terms have been used to provide protection for economic and moral interests in Indigenous intellectual property. Contracts have also been used to deal with the commission, licensing, and resale of Indigenous art. In the area of industrial property, Indigenous communities have relied upon contract law to negotiate benefits arising out of the exploitation of patented inventions, trademarks, and confidential information. In the field of access to genetic resources, Indigenous land use agreements can include benefit-sharing agreements in respect of bioprospecting.