[Nettime-bold] RE: <nettime> Intellectual Property Regimes and Indigenous Sovereignty

[Ned Rossiter <Ned.Rossiter@arts.monash.edu.au>]

oh gosh Kermit, you've outed me as a neoliberal, a racist, a nazi who 
adovocates an elite culture that seeks to restrict access to what you 
see as humanity's so-called "common cultural heritage" .  Gotta say, 
that last part sounds like a typical line from some wacko 
proto-nationalist tract if ever.  Or something old humanists  blurt 
out, mantra like, never quite getting the hypocritical ring it has 
with nationalism, or any other movement that seeks to reduce 
difference to the same.  Common-cultural heritage??!! Bullshit!! 
Whose got it?!  We're talking about radically different cultural 
systems here that, try as any good assimilationist might, simply will 
not fit into the white container.  This said, the signifiers of this 
difference can be acknowledged within the realm of IP law to the 
benefit of indigeneous peoples rather than add more lining to the 
fluffy crevices of corporations and individuals who seek to rip off 
indigenous cultural knowledge and heritage.

I'm pleased you looked into indigenous IP issues a bit more. 
Certainly IP covers more than the manufacture of boomerangs and 
didgeridoos - a nicely ignorant, if not racist, reduction of yours to 
be sure.    As my paper points out, it also includes 'cultural 
heritage and its mediatisation, ecological and biological knowledge'. 
This was part of the sentence that appeared just before the first 
quote you lift from my paper - you seemto have missed it, even after 
2 reads.  The diversity of indigenous IP could  - and should - be 
elaborated further with case studies.  That would be a longer paper 
though, and to be honest, would involve more research that I have 
currently done.

I perhaps could have stated more forcefully that I am not advocating 
that indigenous people give up on the pursuit of human rights issues 
within an international frame.  That would be foolish.  Rather, I'm 
suggesting that a 2-pronged approach be taken: maintain pressure 
within the realm of international human rights law, and also pursue 
IP rights.  Personally, I think the Aboriginal polity will hold more 
success  in pursuit of the later.  It's naive to assume that just 
because international courts of law exist to deal with human rights 
abuse that they are then effective.  As my paper states repeatedly 
(which of course does not make it fact, though I think the evidence 
is there), the  supranational legitimation of human rights violations 
has, for the most part, failed to articulate with the national form, 
in the case of Australia.  I am reading this as representative of a 
failure of rational consensus models of democracy.  My reading of 
rational consensus democracy is informed by Mouffe here.

The open source movement is, I think , in need of the sort of 
critique I begin to table.  In particular, it should not, in my 
opinion, be assumed to hold universal application.  As nice as it 
sounds, not all culture should be open. Nor is it.  In times of 
crisis, some culture needs to be protected.   And culture is not 
open, irrespective of open source principles,  precisely because 
individuals and communities hold varying, and often inalienable 
degrees of cultural capital.   I have argued, perhaps not as clearly 
as I might have, that IP rights hold the potential for indigenous 
people to bring claims for self-determination to the table within the 
national form. Open source movements, as far as I can tell, are 
predominantly against IP.  (More subtle obervers like Lessig 
recognise that IP is here to stay, has been around for a long time, 
is intrinsic to capitalism, and the battle against overly restrictive 
IP law is best fought by seeking to have a balance between public 
access and economic interests.)

As my paper states - to my knowledge, I have never heard open source 
advocates address the problematic of cultural capital.  To be really 
crude and reductive (ie, kinda stupid): open source movements assume 
all white boys have fast computers, modem/network access, and the 
cultural knowledge and desire to participate in network, 
informational societies.

If you can giv e me a lesson on why open source movements have 
universal application, I'd be more than keen to hear it.

Now, regarding Schmitt.  Sure, it was always going to be a dodgy move 
to haul out a quote from Schmitt without contextualisation. (A 
blunder that typifies much academic work these days, for a host of 
cultural, institutional and political economic reasons.) I'm using 
Schmitt in the spirit of Mouffe and others who see him as an 
adversary to think with, to rub ideas against and see what happens. 
Maybe this is dangerous, but I think there is a form of fascism that 
goes by the name closing one's eyes/mouth to all things horrible. 
Heidegger is another obvious case in point: we should never ever 
invoke his name or ideas because of his flirtation with national 
socialism. So the thought police say.  Well, I'd suggest there can be 
useful and productive things that emerge from encounters with those 
who've had a date with the limits of thought and practice.

regards
Ned

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