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RE: <nettime> Intellectual Property Regimes and Indigenous Sovereignty
Ned Rossiter on Wed, 27 Mar 2002 20:25:35 +0100 (CET)

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RE: <nettime> Intellectual Property Regimes and Indigenous Sovereignty

thanks for your considered response Francis - I appreciate it and it helps
me; you've asked some very interesting and challenging questions (unlike
Miles and Kermit, who both seem in need of a 101 level class on reading
techniques and basic theories in sociology/cultural theory... not to
mention a cultural horizon that doesn't end up with another reproduction
of the same.)

Francis wrote:
>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.

Yes, the cultural heritage-copyright law divide presents difficult
challenges for indigenous self-determination movements and the legal
system.  The law, it should always be remembered, is conditioned not only
be economic interests, but by social relations as well: as such, it is and
has been subject to change as different actors obtain symbolic, political
and economic power.  While there are numerous deficiencies in IP law with
respect to protecting indigenous cultural production, for instance, this
doesn't mean laws cannot be changed. The challenge is how less powerful
actors -- a reality Kermit seems unable to accept (the world is not a
software progam Kermit), nor Miles (there's no "guilt trip" needed here
Miles)  -- might strategically position themselves in ways that shift IP
law so that it does provide protection to a broad spectrum of cultural
production which is otherwise exploited for commercial ends that does not
benefit indigenous peoples in the maintenance and development of their

It's signficant that for a long time indigenous peoples were not protected
by cultural heritage conventions, which operate at the level of states.
And with copyright law there is, as we have both pointed out Francis, the
problematic of authorship of creative works, which operates more at the
level of individual authors and 'originality' rather than communities.  
So, in an historical sense, Aboriginal sovereignty can be seen to have
undergone a double displacement whereby the specificities of indigenous
cultural production are overlooked.  I don't think that's in question
here. Cultural heritage is an instrinsic part of advancing
self-determination, and because the state has in many instances been
remiss for discursive, political and economic reasons when it comes to
attending to such needs, other avenues have had to be pursued.  This is
where IP comes in.  An essay by Andrew Kenyon in a special issue on
intellectual property and indigenous sovereignty in the Griffith Law
Review (9.2, 2000) suggests that despite various tensions, principles of
self-determination articulate cultural heritage with copyright law.  
Where there is an absence of protection within international and state
cultural heritage legislation, there may be an opening within copyright
law, and vice-versa.  In any event, the likelihood of some degree of
compromise is something that comes with advancement of indigenous
sovereignty within a hegemonic non-indigenous legal system.

As cited in my essay, indigenous cultural policy studies scholar Christine
Morris reiforces this point in her essay with Michael Meadows, claiming
that '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'. And:
'Indigenous intellectual property regimes operate through sophisticated
management systems which have survived for millenia.' In short,
'Indigenous laws view intellectual property issues as inseparable from
questions of land ownership, and from other areas of political and
cultural life'.[1]

This seems to me to be indicative of a very strategic move: one that says
there are no doubts within Aboriginal law as to the function of
intellectual property; rather, there is a need for international IP law to
get up to speed with a complex system that is already in place. This is
one position in the debate on common law, customary law and indigenous IP
in Australia.  And it's one that is the most contentious, since the
concessions by all actors are considerable. Certainly, there's an
idealistic dimension to such a notion of indigenous IP: why, one might
ask, would international IP regimes even bother to pay attention to
indigenous IPR, especially if it impinges on the economic interests of
TNCs and challenges the ideology of the state? And, at a practical and
political level, to what extent can a non-indigenous legal system
accommodate the peculiarities of indigenous customary law whereby the
former does not have to make excessive concessions to the latter? My paper
didn't intend to present easy answers.  Rather, it sought to pose
questions, problematise assumptions, and suggest possible strategies.

I also think it is crucial to remember that indigenous peoples are not
trapped in some sort of timeless time - the sort of non-place that is
represented in colonial and some contemporary anglo-euro-american
discourses nostalgic for the "noble savage".  To the contrary, many
indigenous Australians have no difficulty with maintaining ideas and
protecting practices of cultural heritage alongside their participation as
entities within market economies, be these in areas like cultural tourism
and creative production in the culture industries, for instance, as they
shift into informational economies.  It's the un/conscious racists,
hypocritical humanists and the culturally impaired who tend to have a bit
of trouble with this sort of thing.

>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.

These are issues that I don't have enough understanding about to comment
on.  Certainly, they seem crucial ones, and I'll consider them carefully
in the revision of the paper. It's interesting that a process can be
patented.  Quite scarey in fact!  My understanding of indigenous cultural
production, limited as it is, is that there is a processual dimension that
figures in important ways - a concern with the process of production, for
example, the constitutive relations, rather than the end product itself,
as seen in the production of artworks, for example.  The final product
though, can often be of considerable signficance and in need of copyright
protection, though, as it enters a market and cultural economy that
exchanges and collects indigenous art - another sort of process in which
the culturally restricted economy of indigenous dreaming (or law) is then
subject to exposure to audiences (and markets) who would otherwise not
have access to this law precisely because such access is considered a
violation of customary law.  That's a closure of "open source" for you; a
case of indigenous IP law at work.

>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?

I'm glad there's no question over something like the pretty basic notion
of cultural capital here, as in Mile's confused post. (Cultural capital -
or cultural knowledge or information, if that makes it any easier Miles -
is something we all possess to varying degrees. As such, it is subject to
the power relations we all inhabit.)  You're right to pick up on my lack
of specificity here Francis with respect to my use of the term 'open
source'.  I've used it in a general sense as a way of referring to the
distribution and development of software, since that is what most of the
commentators from Eric Raymond to Castells to Stalder to those on the Open
Flows site refer to when they evoke the term.  But then I wouldn't
restrict it to software alone when I situate open source within
informational economies in which a raft of cultural forms have been pushed
into digital code for archival, production, commercial exchange and
socially distributive purposes.  Anthropological films, contemporary and
traditional artworks, music, videos, and published materials would fit
into this category.  The need to safeguard this heritage is seen as
paramount, and a sui generis approach has been put forward by ATSIC to
establish an administrative process that manages indigenous cultural and
intellectual property rights through local and regional tribunals. These
proposals have advocated a system of IP law that does not insist on
knowledge to fixed in form, and enables indigenous IP to be protected in

Perhaps it would be more accurate if I used the term "open content" as it
appears for example in the Linux Journal essay my paper cites. Though it
does seem both "movements" share some underpinning philosophies

The open source movement, if I can speak of it in general terms (which I
acknowledge is as problematic as speaking of Aboriginality in unitary
terms), shares some remarkable features with Cultural Studies in the very
paradoxical way in which it can work to reinforce the very neoliberal
agendas that it supposedly opposes.  Frank Hartman, in his at times gross
caricature of cultural studies in the US academy in his book One Market
Under God, and Brian Holmes, in his superb essay 'The Flexible
Personality' (posted to nettime 5/1/02), both give accounts of the ways in
which Anglo-American cultural studies in the 80s and 90s overlooked its
own modes of production - which saw an escalation in the casualisation of
labour and the rise of professors to celebrity status with matching
salaries, for instance, along with trends toward monopolisation in
academic publishing - and advocated the non-sense of political action via
consumer sovereignty and the consumption of popular culture, and displayed
no capacity to act as an oppositional force against the deregulation and
commercialisation of education.  In so doing, cultural studies lent
implicit support to destructive neoliberal reforms.  Similarly, the open
source movement, in its insistence on "openness", shares a common ground
with the likes of Gates, hegemonic nation-states, and TNCs that spout
rhetoric on "openness" via "friction-free capitalism" and "borderless
economies".  Again, I will state my strong support of many of the
practices of open source movements.  But I would maintain that there is
danger that comes with such a movement in its rhetoric and *when* it
assumes to have universal application.  The world is not a software
program!  Some things need protection!  And there is a necessary
restriction that comes with that.  And that is what my paper was
discussing in part, Kermit and Miles.

>  >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.

Thanks for this.

>(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

Hah!  this is a very funny paradox that I ever never heard of before, at
least in the open source literature that I've read.

thanks again,

[1] Stephen Gray, 'Peeking into Pandora's Box: Common Law Recognition
of Native Title to Aboriginal Art', Griffith Law Review 9.2 (2000):

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