t byfield on Wed, 27 Mar 2002 20:17:38 +0100 (CET)

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Re: <nettime> Intellectual Property Regimes and Indigenous Sovereignty

a few thoughts:

the idea that indigenous peoples are going to find economic (hence
political and cultural) salvation by using intellectual property to
reassert a claim to cultural knowledge is, i think, really bad -- for a
lot of reasons.

first, systems of property aren't "natural." naive libertarian rantings
aside (no, i'm not accusing you of these -- not even hinting at it),
laying claim by force of might to something isn't "property," let alone a
*system* of property; systems of property are a by-product of the state.
extending such a system necessarily involves extending and/or deepening
the reach of the state. what reason, aside from unbridled optimism, is
there to think this would be more beneficial to indigenous peoples than
similar arrangements have been in the past?

there are also questions of jurisdiction: if australia assigned the
"rights" to X or Y to indigenous peoples, would it do so only within its
borders? there's little reason to think that other countries would
acknowledge such a grant, and lots of reason to think that they wouldn't.

that could be a good thing on a systemic level, because it could impose
new limits -- even retroactive limits -- on multinational and multilateral
IP regimes. but those regimes don't exist or function in a vacuum, so it
would be naive to assume that there wouldn't be a backlash. let's assume
that such a blacklash would occur on roughly the same terrain; if it did,
i think it could take very destructive forms -- for example, an inversion
of the current thrust of compulsory licensing (as in south africa's moral
claims to proprietary AIDS drugs).

second: the subjects and objects involved in this kind of proposition are
almost impossible to define. worse, i suspect that the attempt to define
property according to peoples would end up doing just the opposite:
defining people in terms of properties.

how do you define and delimit the body of knowledge that aboriginal
peoples would, could, or should lay claim to? and how would you define
aboriginal peoples? is it genealogical? it's hard to see how that kind of
logic amounts to much of an advance. or should we instead introduce yet
another stratum in which arbitrary historical dates distinguish between
"authentic" or "legitimate" residents from interlopers? i can't say that
i've seen a lot of evidence that that kind of appraoch leads to much good.

none of that should be construed as some hypertheoretical
three-card-monte-style argument that abordiginal people "really don't
exist" or that it's "just cultural." but the cultural matrix that defines
aboriginal peoples is based, for the most part, on the past; defining it
according to new, speculative structures would only end up manufacturing
"new" aboriginals. not necessarily a bad thing in itself (who am i to
say?); but it's fair to ask whether that kind of effect would further your
stated goals. it's hard to imagine that it would.

this is a pessimistic analysis for several reasons, not least of which is
that i tend to be pessimistic. but it seems pretty hard to believe that,
in any balance between the forces driving IP, on the one hand, and
aboriginals, on the other, that the latter would 'win'--or even
benefit--in any meaningful sense. it's not at hard to believe that they
would lose, and that the rest of us would lose with them.


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