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RE: <nettime> Intellectual Property Regimes and Indigenous Sovereignty
Kermit Snelson on Mon, 25 Mar 2002 02:27:50 +0100 (CET)


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RE: <nettime> Intellectual Property Regimes and Indigenous Sovereignty


> 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.

Is something wrong with my decoder ring, or is this paper really suggesting
that indigenous peoples should forget about democracy, international law,
human rights and territorial rights as a means toward social justice?  And
that they should concentrate instead on extracting money from anyone who
chooses to manufacture a boomerang or a didgeridoo?

Given that the paper appeared on nettime and even cites it, I was convinced
at first that this reading must be mistaken.  So I surfed a bit for related
literature, and quickly found a "Report on Australian Indigenous Cultural
and Intellectual Property Rights" [1] which recommends that the following
examples (among many others) be mined for lucrative and hitherto unexploited
licensing opportunities:

    "A large proportion of the drugs and pharmaceutical products in use
today are derived from natural products. According to one international
study which surveyed 119 commercially useful plant-based drugs, 74 per cent
of these were previously known and used in traditional medicine."

    "Indigenous images are used to market and sell a wide range of
Australian products including cars, wine, soft drinks and seats on
aeroplanes."

    "Yunggorendi First Nation Centre noted that much academic and research
activity is underpinned by Indigenous people, their ways of life and their
fight for self-determination. Many schools, universities and colleges now
offer curriculum with Indigenous content. Such courses and associated course
materials are commodities which institutions can sell to other educational
institutions."

    "A submission from Daki Budtcha Pty Ltd noted that the exploitation of
Indigenous cultural property in the music industry had steadily increased in
line with the rising popularity of incorporating tribal chants into 'world
music' styles."

    "...there is a growing didgeridoo industry, both in playing and
manufacturing didgeridoos. Making didgeridoos involves a process starting
from cutting the raw material to stripping and curing and painting.
Indigenous people are concerned that the didgeridoo industry is increasingly
being dominated by non-Indigenous people."

The report then suggests that "Indigenous people should receive royalties
for commercial use of their cultural and intellectual property if it is
appropriate for it to be applied in that way."

> Intellectual property regimes have been contested by numerous
> entities, including open source movements [...]  However,
> while these are arguments and practices that I would support,
> they are not principles that can be applied in universal terms.

I realize that pursuing social justice for indigenous peoples and protecting
their culture are urgent tasks that require funding.  But what are we to
make of efforts in that direction that begin by questioning not only the
universality of the open source movement, but also the effectiveness of
legal regimes based on deliberative democracy and human rights?  Which seek
to redefine the common cultural heritage of humanity -- language, art,
music, mythology -- as racial property which may circulate only as the
subject of monetized revenue streams?  And which cite as intellectual
authority the "political philosopher Carl Schmitt", an ardent Nazi who until
1936 was the undisputed legal architect of the Third Reich? [2,3]

Kermit Snelson

Notes:
[1] http://www.icip.lawnet.com.au/
[2] McCormick, John P.; _Carl Schmitt's Critique of Liberalism_, 1997
[3] Scheuerman, William E.; _Between the Norm and the Exception_, 1994

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