Can Culture Be Copyrighted?

The digital revolution has dramatically increased the ability of individuals and corporations to appropriate and profit from the cultural knowledge of indigenous peoples, which is largely unprotected by existing intellectual property law. In response, legal scholars, anthropologists, and native activists now propose new legal regimes designed to defend indigenous cultures by radically expanding the notion of copyright. Unfortunately, these proposals are often informed by romantic assumptions that ignore the broader crisis of intellectual property and the already imperiled status of the public domain. This essay offers a skeptical assessment of legal schemes to control cultural appropriation—in particular, proposals that indigenous peoples should be permitted to copyright ideas rather than their tangible expression and that such protections should exist in perpetuity. Also examined is the pronounced tendency of intellectual property debate to preempt urgently needed reflection on the political viability of special‐rights regimes in pluralist democracies and on the appropriateness of using copyright law to enforce respect for other cultures.