This affirmative case presents two versions of a plan to strengthen copyright protections for indigenous cultural works and expressions.
- The “Second Factor” version, which focuses on modifying the second factor of the fair use doctrine in copyright law.
- The “Communal Authorship” version, which focuses on expanding copyright eligibility to recognize communal/collective authorship.
The case claims current U.S. copyright law fails to adequately protect many forms of indigenous cultural creativity from appropriation and unauthorized use by non-indigenous entities.
This stems from copyright law’s roots in Western conceptions of individual authorship and fixed, original works, which often do not align with indigenous modes of cultural production and transmission.
The case argues that cultural appropriation is not just a matter of borrowing or copying, but a continuation of the settler colonial process. When non-indigenous entities appropriate indigenous cultural expressions, it’s seen as an extension of historical patterns of land theft, resource extraction, and political subordination. This appropriation is framed as a modern form of colonialism that continues to erode indigenous peoples’ right to self-determination and control over their cultural heritage. The case cites scholars like Angela Riley and Kristen Carpenter who have termed this process “Indian appropriation,” encompassing the taking of everything from land and sacred objects to bodies and identities.
The affirmative argues that cultural appropriation inflicts multi-layered harm on indigenous communities:
- Psychological harm: It can cause humiliation, embarrassment, and a sense of cultural loss or violation.
- Political harm: It undermines tribal governance systems and impedes efforts towards self-determination.
- Violent harm: The case suggests that appropriation can lead to discrimination and even violence against indigenous people. These harms are seen as cumulative and intergenerational, building upon historical traumas experienced by indigenous communities. The case argues that allowing continued appropriation risks perpetuating these harms for current and future generations.
The case positions copyright protection as a crucial tool for indigenous cultural survival. It argues that control over cultural expressions is often the last realm where indigenous peoples can exercise sovereignty, especially when political autonomy has been eroded and land rights diminished. Copyright is seen as a means to:
- Preserve the integrity and meaning of cultural practices and artifacts
- Ensure accurate representation of indigenous cultures
- Maintain connections between generations by protecting traditional knowledge
- Resist cultural homogenization in the face of globalization
Camp 1ACs cite real-world examples where indigenous groups have successfully leveraged intellectual property law to protect their cultural interests. The Navajo Nation’s lawsuit against Urban Outfitters is highlighted as a significant victory. In this case, the Navajo Nation sued Urban Outfitters for using the “Navajo” name and copies of Navajo designs without permission. The case resulted in a settlement and a commitment from Urban Outfitters to collaborate with Navajo artists in the future. This example is used to demonstrate that intellectual property law can be a viable and effective tool for indigenous groups to assert control over their cultural expressions.
The affirmative argues that in an increasingly interconnected world dominated by Western cultural norms and economic systems, indigenous peoples must have control over their cultural practices and intellectual property to:
- Resist cultural erosion and assimilation
- Maintain distinct cultural identities
- Benefit economically from their cultural heritage
- Prevent misrepresentation or misuse of sacred or significant cultural elements
- Navigate the challenges posed by mass tourism, digital communication, and global markets
The case contends that without such control, indigenous cultures risk being subsumed or distorted by dominant global cultures. It positions strong intellectual property protections as a necessary safeguard against the homogenizing forces of globalization, allowing indigenous peoples to engage with the wider world on their own terms while preserving their unique cultural heritage.