Dance as Intangible Cultural Property International Intellectual Property Law Meets Indigenous Dance Forms

Abstract

International policy forums have commonly acknowledged the need to prevent the exploitation and misappropriation of indigenous peoples’ cultural resources. The real challenge and area of contention has been finding accurate tools to achieve this goal. For nearly four decades policymakers have attempted to protect indigenous cultural heritage with intellectual property law but numerous policy endeavours have not yet delivered an effective, robust outcome. Most recently, the World Intellectual Property Organization undertook the task of facilitating negotiations to develop a new sui generis intellectual property legal framework for the protection of traditional cultural expressions, which currently largely fall within the scope of public domain. However, the expansion of legal regimes to protect indigenous cultures has been criticised within academia and the arts. This paper scrutinises the prospective legal protection from the perspective of indigenous dances, which have been somewhat overlooked in the current discourse. This research is based on principles of anthropology of policy seeking to deconstruct and delimit policymaking processes, which often aim to redefine dance as a proprietary resource. It is argued, with the support of a Ka Mate haka appropriation case study, that the ephemeral character and culturally weighted nature of indigenous dances make them a remarkably complex subject for the law.