Francis Hwang on Wed, 27 Mar 2002 01:05:46 +0100 (CET)

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RE: <nettime> Intellectual Property Regimes and IndigenousSovereignty

Ned Rossiter wrote:

>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.

But does IP law protect cultural heritage? I'd say that it doesn't. 
It protects individual works, by individual authors (or 
corporations), and then it protects trademarks. There's a lot of 
things that fit under cultural heritage -- mores, belief systems, 
etc. -- that is entirely untouched by IP law.

And as for knowledge, IP certainly does not protect that. Copyright, 
for example, does not protect _ideas_, it only protects the 
expression of those ideas in a given form. If I hold a new theory 
about the universe, and I write a book about it, I can copyright the 
book, but not the theory.

Now, you can patent a _process_, and in some cases the difference 
between _process_ and _knowledge_ gets sort of murky -- i.e., 
software patents. But a number of sensible parties have noted that 
this murkiness has led to massive abuse of the patent system and will 
hopefully get sorted out, sooner rather than later.

>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.

Can we be more specific about what we mean by "open source", by the 
way? Lots of people are using this term for lots of different things, 
and I think consensus on what this actually means may be elusive.

I think the specificity might be important, because the original 
"open source" movement has to do with software, and I don't think 
it's at all a given that culture can be expressed within software. 
(As somebody who both programs object-oriented software and writes 
arts criticism, perhaps I shouldn't think this, but I do.) But were 
you talking about the "open content" movement or something similar?

>Open source movements, as far as I can tell, are
>predominantly against IP.

I'm not sure that this is correct. In the software open source 
movement, there are a number of camps in that movement, and it's hard 
to tell at any given time how big the camps are relative to each 
other. Richard Stallman, head of the Free Software Foundation, does 
believe that IP is for the most part ideologically untenable. But 
Eric Raymond, author of "The Cathedral and the Bazaar", is pro-IP, 
and simply thinks open-source is often a highly pragmatic way of 
writing code, and there's nothing wrong with a world where some code 
is open-source and some code is closed-source. Stallman believes IP 
is evil, where Raymond simply believes IP is often inconvenient. The 
two argue about this point a lot.

(As a side note, open-source relies on IP for enforcement, since you 
can't enforce the stipulations of an open-source license without 
someone being the owner. Or in theory, anyway; in practice the 
licenses have yet to be truly tested in court, if I remember 
Francis Hwang

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