<nettime> Intellectual Property Regimes and Indigenous Sovereignty

[Ned Rossiter <Ned.Rossiter {AT} arts.monash.edu.au>]

[with thanks to nettime over the years for its grip on IPR; this 
first encounter for me with writing on IPR will disclose nothing new 
to many of you, but perhaps the argument positions some of the 
techno-libertarian tracts on open-source in a different 
cultural-political relationship/ned]


'Intellectual Property Regimes and the Possibilty of Indigenous 
Sovereignty within Informational Economies'

Ned Rossiter, 18 March 2002


Abstract. This paper situates intellectual property regimes as a 
condition of possibility for indigenous sovereignty movements within 
Australia.  I argue that rational consensus models of democracy have 
failed to accommodate the interests of indigenous peoples.  While 
surpranational entities such as UNESCO have been able to confer a 
degree of political legitimacy upon indigenous peoples, I maintain 
that this has failed to articulate with the national form in the 
process of renationalisation.  I suggest that intellectual property 
regimes offer an Aboriginal polity the opportunity to reassert claims 
for self-determination in the national form in as much as the 
political subject of Aboriginality is positioned in the first 
instance as an autonomous economic actor as distinct from a political 
subject.  Such positionality then enables political and cultural 
issues to be fashioned within the realm of intellectual property law, 
as distinct from an exclusive focus on international human rights law.

***

In recent years indigenous sovereignty movements in Australia have 
achieved some degree of success in supranational fora such as UNESCO, 
who have recognised claims of human rights abuse and cultural 
heritage violations as legitimate.  However, the legitimacy 
indigenous people have obtained as partially denationalised political 
subjects has failed to articulate with the national form, 
particularly under the right wing conservative administration of the 
Howard Government.  Arguably, the possibility for Aboriginal 
sovereignty has reached an impasse within rational consensus models 
of democracy, since the claims made by the Aboriginal and Torres 
Strait Islander Commission (ATSIC) - the political body that 
represents indigenous indigenous interests - constitute an 
antagonistic field of practices with respect to the cultural, 
ideological and political economy of government and the business and 
electoral interests that it represents. 

It is precisely this antagonistic dimension of political relations 
that constitute the Aboriginal polity as an enemy of the state in so 
far as the contemporary liberal democratic form across Western 
nation-states is defined by Third Way politics, which functions by 
eliding 'the violence that is inherent in sociability' as it seeks to 
obtain consensus beyond the traditional oppositions between the Left 
and the Right (Mouffe 2000: 134-35; Scanlon 2000).  Despite recent 
literature on globalisation that suggests the sovereignty of the 
nation-state is in decline, the current condition of an Aboriginal 
polity indicates that battles over sovereignty are considerably more 
complex, with the nation-state better understood as undergoing a 
process of transformation rather than obsolescence.  As political 
philosopher Carl Schmitt (1996) maintains, 'Sovereign is he who 
decides on the state of exception'.  Within political discourse, 
claims by the Aboriginal polity for self-determination have in many 
respects come to occupy a state of exception, a space of exclusion.

As long as indigenous sovereignty movements see land rights as 
adjacent to territoriality and the concomitant economic, social and 
cultural benefits which flow from this, the nation-state will also 
persist as a territorial entity.  However, this modern conjunction 
between territoriality and sovereignty may in all likelihood leave 
indigenous peoples as stateless entities, residing in a sort of 
non-place as partially denationalised political subjects, as their 
appeal is to an older paradigm of statehood.  The condition of an 
emerging reconfigured statehood is premeditated to a certain degree 
in a number of ATSIC documents, which seek to establish a basis for 
sovereignty by addressing the issue of "digital rights", and the need 
to instigate intellectual and cultural property laws and structural 
reforms pertaining to a field of informational economies (see ATSIC 
1989; ATSIC 1999).

This paper examines the possibility of relative sovereignty for 
indigenous Australians within informational economies.  Intellectual 
property regimes, while dependent on the administrative capacity of 
the state, are nevertheless independent to a considerable degree of 
the political interests of the state.  Furthermore, intellectual 
property regimes increasingly operate within extraterritorial 
dimensions as the staple of informational economies is manifest as 
digital code.  I suggest that within such a network of relations, the 
political subject of Aboriginality holds greater purchase on the 
state, since Aboriginality, as a sign of social practice, is 
positioned as an economic actor within the realm of intellectual 
property law, as distinct from the denationalised realm of 
international human rights law.  Arguably, the potential for a 
process of renationalisation is greater, since the moral, cultural 
and political values associated with international human rights law, 
and the threat they pose to the habitus of the state, do not prevail 
to any great extent within codes of intellectual property law.  At 
the same time, this presents a different challenge for an Aboriginal 
polity that seeks to maintain the specific material conditions of 
Aboriginal cultural life as that which also pertains to concepts of 
intellectual property.  As Christine Morris and Michael Meadows 
(2000: 213) argue, 'the concept of intellectual property has been a 
defining characteristic of Indigenous culture from the beginning.  It 
determines intellectual property rights and responsibilities, 
identity, and each person's place in society in relation to the 
[customary] law'.

'Because informationalism is based on the technology of knowledge and 
information', writes Manual Castells (1996: 18), 'there is a 
specially close link between culture and productive forces, between 
spirit and matter, in the informational mode of development'.  John 
=46row (2000) offers important qualifications to Castells' 
conceptualisation of informationalism, arguing that information is 
embodied as knowledge once it is articulated with social needs, and 
manifests in a variety of forms that are governed by regimes of value 
and techniques of control.  Frow writes:

'I understand information to be any organization of matter-energy, 
and I assume that it is not necessarily representational in form. 
Knowledge would then be a higher level of information 'that has been 
systematized and integrated, organized so that it is relevant to 
natural and social processes'.  In the domain of production, it takes 
the form of embodied skills, of organization of the production 
process, of the design of tools or machinery, of scientific knowledge 
about materials, of software algorithms, of techniques of use of 
materials, and of reflexive control of processes and of agents.  The 
attribution of value to knowledge, which underpins the changes that 
Castells, like many others, describes, is closely bound with its 
functions of control.' (177)

As Edward Herman and Robert McChesney (1997: 51) note, 'Along with 
pharmaceuticals, media and computer software are the primary topics 
for global intellectual property rights negotiations'.[1]  The World 
Trade Organization (WTO) is a key player within intellectual property 
regimes.  The WTO's Agreement on Trade-Related Aspects of 
Intellectual Property Rights (TRIPS) in 1995 sought to protect the 
commercial interests of Western pharmaceutical and media companies 
from countries, most notably China and Africa, engaged in software 
piracy and abuse of copyright and patent law.  The TRIPS agreement 
sets out minimum standards for how member states engage with 
copyright, patents (including plant variety protection), trademarks, 
geographical indications, industrial designs, and undisclosed 
information such as trade secrets.[2]  Critics of the TRIPS agreement 
have also pointed out 'that transnational corporations own 
approximately 90% of technology and product patents in the world, and 
up to 80% of technology and product patents in developing countries' 
(Dommen 2002: 26).

Essentially, the TRIPS agreement can be seen to inscribe a regime of 
scarcity upon that which is otherwise undiminished through 
distribution in order to endow a digital product, for instance, with 
exchange value within informational economies.  Thus it is fairly 
easy to anticipate the techno-civil libertarian response to 
proponents of intellectual property rights: within a commercial 
global media complex characterised by monopoly ownership and flexible 
production, intellectual property rights as manifest in copyright and 
patent law are seen as restricting access to cultural forms that had 
previously existed as part of the public commons.  Furthermore, the 
notion of proprietary control of immaterial forms such as information 
and knowledge is considered to drastically diminish the potential for 
the reproduction of creativity and innovation.  As Frow (2000: 183) 
writes: 'a private property regime imposes potential limitations on 
the extent to which cultural material can be freely used and 
transformed'.  All intellectual property has impacts on reproduction, 
and there are very long-standing treaties in the area of copyright 
like the Berne Convention, which has been through various revisions 
since the late 1800s.  So, while the effect of the TRIPS agreement is 
not new, it accentuates the restrictions on the use of cultural 
material into the realm of informational societies.  The 
privatisation of the public commons also results in the removal of 
public accountability mechanisms, further alienating the democratic 
potential of the internet, which is the primary medium for the 
distribution of digital products. 

Intellectual property regimes have been contested by numerous 
entities, including open source movements, particularly those 
involved in software development, which depends on the collective 
intelligence of and labour upon a source distributed through computer 
networks in order to refine and improve upon the source code of a 
particular software program (see Stalder 1999, 2000, 2001a, 2001b; 
=46ibreculture; Nettime; Open Flows; Pfaffenberger 2001).  However, 
while these are arguments and practices that I would support, they 
are not principles that can be applied in universal terms.  One key 
and surprising aspect often overlooked in techno-libertarian tracts 
on open source distribution concerns the way in which the cultural 
technology of the net - its capacity to distribute and share 
information within a gift economy - is assumed to correspond to 
universal access and the maintenance of a democratic civil society. 
That is, the problematic of cultural capital and the necessary 
institutional supports that endow actors with the requisite cultural 
knowledge and skills to access information is rarely, if ever, taken 
into consideration.  To unequivocally uphold all critical rebuttals 
of intellectual property regimes would overlook the ways in which 
intellectual property rights, when balanced between economic 
interests and public access, enable indigenous peoples and people in 
developing countries the potential to secure their cultural and 
intellectual resources within network or informational societies. 

The sort of rights the Aboriginal polity seeks to obtain vis-=E0-vis 
self-determination and relative autonomy can, it would seem, operate 
to certain degrees within informational modes of production. 
Moreover, in pursuing intellectual property rights, an Aboriginal 
polity would, I think, be more strongly articulated with the 
nation-state as it too undergoes transformation at extraterritorial, 
immaterial levels via the discursive, legalistic, security and 
commercial regimes of intellectual property.  Micro technologies of 
control, surveillance and regulation of the internet in the form of 
server protocols, cookies, authentication codes and software - what 
Lawrence Lessig (1999) calls the architecture of the net - that 
monitor user practices have brought nation-states into partnerships 
with each other as they seek to maintain databases and information 
networks that store information on clients and "citizens" within 
their territories (see Castells 2001).  This sort of sharing of power 
between states for security and economic purposes is an example of 
what Martin Shaw (2000: 185-91) calls a "pooling" of sovereignty - a 
mode of economic as distinct from juridical sovereignty in which 
states have adjusted to the new techniques of control within 
informational societies, operating through mutual affirmation and 
legitimacy conditioned by overlapping interests.  Corporations in 
turn have depended on such pooled sovereignty by nation-states, and 
the regulatory practices of nation-states themselves, as a mechanism 
by which the protection of intellectual property rights can be 
enforced by way of accessing information regarding intellectual 
property violations.  Current developments in encryption methods by 
corporations embed code with default boundaries, further ensuring the 
territorialisation and regionalisation of intellectual property with 
copy-protection code of CDs, DVDs and software, for example, that 
registers infringements to property ownership as it occurs within the 
space of that nation (see Stalder 2001b; Sassen 2000).  Hence 
offences can, in theory, be tracked and then prosecuted under 
national law as it corresponds to minimum standards of protection set 
out in the TRIPS agreement.  Examples such as these evidence the ways 
in which the sovereignty of the nation-state is undergoing 
reconfiguration within an informational plane of abstraction.

Within this strange context, I would suggest that claims for 
Aboriginal sovereignty hold greater potential since political 
legitimacy can be better obtained from the position of being an 
economic actor operating on the same plane of abstraction as the 
corporate-nation-state nexus.  In this sort of arrangement, an 
Aboriginal polity is not in the first instance articulated with 
property ownership in the form of land and ocean rights; rather, the 
political subject of Aboriginality is situated as an actor with 
proprietary rights in the form of cultural heritage and its 
mediatisation, ecological and biological knowledge.  Intellectual 
property translates into commodity objects whose form is decoupled 
from the moral, legal and proprietary discourses associated with the 
quest for indigenous sovereignty in the denationalised realm of human 
rights law, which, for the most part, has failed to articulate with 
the liberal democratic frame of the nation-state precisely because 
rational consensus models of democracy have proven to be inadequate 
in accommodating a plurality of interests. 

While such a potential for Aboriginal sovereignty may seem 
exclusively extraterritorial and hence politically ineffective, it 
still operates at a territorial level within the bounds of the 
national form since intellectual property regimes work to reinforce 
national borders by encoding the equivalent of scarcity into 
informational economies.  Remuneration from the commercial use of 
indigenous intellectual property could then be redirected to meet the 
social and economic needs of the communities that initiated that 
transferral of culture and knowledge into the electronic form of 
digitally encoded information, for instance.  In so doing, an 
Aboriginal polity becomes articulated with modalities of economic 
sovereignty, as distinct from the mythic figure of popular 
sovereignty and the politically inoperative legitimacy granted by 
human rights law.  However, there are considerable concessions that 
come with such an approach to the problematic of indigenous 
sovereignty, and I will conclude by briefly addressing some of the 
issues.

This very rough sketch of how claims for Aboriginal sovereignty might 
proceed within an informational economy overlooks the many 
complexities that attend debates, policies, technological capacities 
and cultural practices within the field of intellectual property 
regimes.  A primary issue within intellectual property rights that is 
immediately at odds with the principles of indigenous sovereignty 
concerns the conceptual and legalistic limitations of Western models 
of intellectual property where primacy of the individual in the form 
of authorship is granted over the collective (see Dommen 2002; Frow 
1997).  As stated in an ATSIC submission on intellectual property 
rights to UNESCO:

'Intellectual property laws do not protect the communal rights of 
indigenous peoples, nor do they allow for protection in perpetuity. 
Intellectual property laws are based on individual rights, and 
emphasise economic over cultural rights.  These laws focus on a 
single, identifiable creator or author, whereas in indigenous 
communities rights and interests in intellectual creations are more 
diffuse.  They are distributed and managed throughout the community 
in complex ways according to ritual, socio-political, kinship and 
affinal relationships'. (Thomas 1999: 6)

This document, prepared by the Indigenous Cultural and Intellectual 
Property Task Force, can been seen here to essentialise that which 
constitutes an ontological condition of Aboriginality.  While there 
is a well documented history of the experiences of alienation by 
indigenous peoples from a Western metaphysics of individualism, 
contemporary indigenous subjectivity nevertheless traverses both the 
specificity of Aboriginal cultural heritage as well as cultural 
paradigms and institutional settings of non-indigenous society.  Yet 
this sort of reduction of Aboriginality to a communal identity is 
precisely the sort of tactical move that needs to be made in the 
language game of supranational politics and international 
intellectual property law in so far as it preserves some of the key 
principles of Aboriginal sovereignty. 

This ATSIC submission is notable for a number of other reasons, a key 
one being the recognition of the place of intellectual property 
issues within informational economies well before the popular uptake 
and commercialisation of the internet.  ATSIC very strategically 
seeks in that document to pursue customary law that maintains 
specific cultural practices at territorial levels, but it does so 
within an extraterritorial framework of economic sovereignty and 
intellectual property law.  In so doing, an Aboriginal polity may, it 
seems, have stronger purchase on the state than it would if human 
rights law remained the exclusive avenue through which indigenous 
sovereignty was pursued.  The process for undertaking such a 
multilayered sociopolitical formation is outlined in the following 
way:

'Since indigenous cultural and intellectual property is defined, 
managed and controlled in accordance with customary law, it may be 
argued that the development of effective standards should focus on 
protecting customary laws *in the first instance* - on the assumption 
that recognition and protection of intangible heritage can then flow 
from that as a consequence of the recognition of customary law'. 
(Thomas 1999: 5-6.  Italics added)

Since the time of this submission in 1989, an Aboriginal polity has 
been legitimated within UNESCO fora.  But the legitimacy granted 
within a denationalised realm of human rights law has failed to 
articulate with the national form.  Hence, one potentially useful 
strategy for Aboriginal sovereignty would be to reverse this process, 
and seek recognition of customary law within the nation-state once 
intellectual and cultural property rights have been secured.  In so 
doing, an Aboriginal polity is operating well and truly within the 
dominant neoliberal paradigm which sees the welfare state further 
eroded.  Although this is not a foregone conclusion.  Maybe the 
relationship between the state and the social can be reconstituted in 
the process of negotiation that attends the status of becoming a 
legitimate political and economic actor within the supranational 
realms of both human rights fora such as UNESCO and entities such as 
the WTO that set the agendas for trade agreements in informational 
economies.  It is within the encounter between denationalised 
corporations, extraterritorial dimensions of statehood, and the 
partially denationalised political subject of Aboriginality, along 
with the manner in which this encounter is then materialised in the 
national form that conditions for what Chantal Mouffe (2000) terms an 
'agonistic democracy' might then emerge.



Acknowledgements

I would like to thank Andrew Kenyon, Marcia Langton and Geert Lovink 
for directing my reading on intellectual property regimes.


Notes

1 For a history of intellectual property law, see Susan Sell  and 
Christopher May (2001).  A particularly helpful resource on 
intellectual property law can be found on the Center for the Public 
Domain site, http://www.centerforthepublicdomain.org/ip.htm

2 For an outline of intellectual property regimes as they figure 
within the TRIPS agreement, see the following WTO documents: 
'Intellectual Property: Protection and Enforcement', 
http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm6_ehtm and 
'Overview: the TRIPS Agreement', 
http://www.wto.org/english/tratop_e/trips_e/intel2_e.htm


References

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Islander Peoples' Intellectual Property Rights, 
http://www.atsic.gov.au

ATSIC: (March 1999), Digital Dreaming: A National Review of 
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Castells, M.: (1996), The Information Age: Economy, Society and 
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Castells, M.: (2001), The politics of the internet II: privacy and 
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Center for the Public Domain site, 
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Dommen, C.: (2002), Raising human rights concerns in the World Trade 
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=46ibreculture mailing list, http://www.fibreculture.org

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=46row, J.: (2000), Public domain and the new world order in knowledge, 
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Stalder, F.: (2001b), No sharing allowed, 
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WTO, Overview: the TRIPS Agreement, 
http://www.wto.org/english/tratop_e/trips_e/intel2_e.htm



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