Ned Rossiter on Mon, 25 Mar 2002 21:27:31 +0100 (CET)

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RE: <nettime> Intellectual Property Regimes and Indigenous Sovereignty

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

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


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