Re: <nettime> Intellectual Property Regimes and Indigenous Sovereignty

[Ned Rossiter <Ned.Rossiter@arts.monash.edu.au>]

[a very belated response...]

pit's fascinating post suggested, among a string of things, that we 
might return to the property question, as canvassed in the 
tulipomania thread back in mid-2000.  Certainly that thread is one 
that's been hanging in the back on my mind all the while.  To reduce 
the various arguments raised then, we could say what's at issue in 
this (rather legless) current thread, like that one, is the tension 
(to put it mildly), between gift economies and the commodity form. 
There's no question that in advancing an argument whereby indigenous 
peoples control their intellectual property as a means to maintaining 
and securing their cultural future, I am also buying (or rather, 
indigenous peoples are, who are streaks ahead of me with respect to 
pursuing this stragegy) into a politics of restriction that *perhaps* 
(and there is reason to question the measure of co-optation here, i 
think) benefits the nasty TNCs more than it advances 
self-determination/relative autonomy movements.

But  the property question is in no ways a straightforward one, as 
the tulipomania thread and others on this list have demonstrated. 
There are a host of specificities that are not going to translate 
neatly into positions either for or against indigenous IP.   The 
other question that's come up in Francis' post concerns the nature of 
idigenous cultural production vis-a-vis property: what is it?  The 
late Eric Michaels - an American ethnographer, media theorist & 
teacher, policy worker, and gay activist -  made enormous 
contributions as a facilitator in the use of narrowcast TV and video 
production in the 80s by the Warlpiri people at Yuendumu, a community 
in the central Australian desert.  His work has also been hovering in 
the background for me throughout my research in this area, and I 
haven't quite known how to incorporate it  - something I sense needs 
to happen: it's work that resonates so strongly.   In one of his many 
essays, Michaels pursues the following questions regarding Aboriginal 
content: who's got it? who needs it?  I think it's very instructive 
to return to these sort of questions  in addressing the property 
question.   [for those interested, a collection of writings on the 
work of Eric Michaels can be found in a special issue 3.2 of 
Continuum: an Australian journal of the media, 
http://wwwmcc.murdoch.edu.au/ - go to link on Centre for Research in 
Cutlure & Communication]


Ted wrote:
>
>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.

Michaels proposes a 'processual definition' of Aboriginal media 
production 'based not on the properties of the text [ie, the extent 
to which  a particular text can be considered as "authentic" with 
regard to content, and thus hold greater purchase on the "real", as a 
documentary film might assume to hold for example], but on the 
conditions of its production and use'.[1]  This may seem an obvious 
point. But I think it takes us to the crux of a number of matters, 
including the one raised above by Ted.  The cornerstone of my 
argument is not so much about economic "salvation" (a loaded term I 
wouldn't use in this instance anyway); rather, it's about securing 
conditions which enable the protection and maintenance of indigenous 
cultural production - something that is threatened when the big corps 
are in the business of ripping off whatever they can. If economic 
benefits flow from this, then all well and good, no?  And there's a 
significant difference at the level of scale here with respect to 
*who* has access to cultural forms, to respond to Francis' example of 
his Vietnamese friend's use of hip-hop: ie, who is going to really 
care that much if someone with relatively minor economic power 
"appropriates" a cultural form? The issue is really whether the likes 
of Sony, etc are making a lot of bucks out of something and using 
their legal clout to prevent "African-Americans" and others from 
engaging in their right to that form, and who arguably *need* access 
to that form more than the big corps. So , Francis, in answer to your 
question of who gets sued: well, those who make a shitload of money 
from the cultural labour of others.  As for IP restricting 
cross-pollination: well, that's a complex issue, sure.  But if we 
think of culture as that which consists of ways of doing that 
constitute social relations (as distinct from economic profits), then 
I think there's space for cultural transformation - it's damn hard to 
police it anyway!


>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?

I find anti-state arguments like these to be pretty peculiar ones (I 
know you are talking about something more than this here, Ted, but 
I'll just pursue this line a bit first).

Let me try and get this right.  You write: "systems of property are a 
by-product of the state."  And therefore such systems are bad. 
Doesn't this situate you in an odd position vis-à-vis neoliberal 
economies, M$ et al?  Is this the way out of the very significant 
limitations, not to say violence, of models of deliberative 
democracy, I wonder?  Now, property operates in different modalities 
of cultural logic as well, as suggested in my example of an 
indigenous property regime.

The object as such is defined by its constitutive outside: that is, 
it is inscribed by various regimes of value - symbolic, aesthetic, 
political and possibly more or less correspondence with economic 
values, and holds material and immaterial properties or attributes. 
So, 'property' is not necessarily a by-product of the state at all; 
in fact, it can be seen as the precise precondition of emergence of 
the state and undergoes this transformation, as we all know, in a 
time of sociotechnical escalation and reconfiguration that defined 
industrial capitalism. Indigenous cultural production conceives 
"property" irrespective of the state- ie, it's not a by-product, 
which isn't to say that in contemporary colonial-modern settings, the 
state  doesn't inscribe indigenous consciousness & modalities of 
production with its own ideological peculiarities, interests, 
dispositions.   I guess I just don't get the by-product of that state 
argument.  What do you mean? Maybe I need to read my Marx, Ricardo, 
Smith et al a bit.  Furthermore, it seems to me that IP precisely 
by-passes the sort of nasty moral discourses and violent legislation 
of that state, no?

On a different note:  I think you're overly demonising the state. The 
state is not always such a bad thing.  If it weren't there do you 
think corporations would be providing the sort of regulatory 
controls, checks and balances/accountability, and what remains of 
welfare safety nets that states have and continue to do, albeit in 
scaled back fashion? Also, the state can often play a very important 
enabling role.


>
>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).

Ok , points taken.  I don't know enough about IP law at the level of 
territorial-state administration and control.  I'd have thought that 
if member states sign to international IP convenants then they'd be 
obliged to abide by them. I guess the problem arises with pirate 
states.


>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.

With all due respect Ted, this is an old debate in australia, one 
that seems to have pretty much gone off the radar.  Occassionally it 
reappears when some really white looking person claims Aboriginality 
- sometimes on genealogical grounds, sometimes on sociocultural ones. 
More often it's an issue that's come up when white people have 
appropriated indigenous art by passing as an indigenous person in one 
way or another.   In my paper i defined Aboriginality in shorthand as 
a sign of social practice.  I think that works ok.  I don't know what 
sort of engagement you've had with indigenous australians, but from 
my experience you are placed within a social system straight-up, no 
problems or questions.  In that sense, one can become Aboriginal 
insofar as one is involved in a sociocultural relation.  Of course, 
there then arises the problem of legitimacy, as you point out, when 
legal, political and economic issues come to hand.  From my 
understanding, questions surrounding 'authenticity'/legitimacy are 
swiftly sorted out at a community level.

Your harder question, though, concerned defining people in terms of 
property/ies.  And this is something we are all caught up in to 
varying degrees.

>
>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.

I don't buy this manufacturing of the new argument.  For one thing, 
it's far too instrumentally determined. Indigenous peoples are doing 
a fine job defining their own cultural subjectivities.  IP rights can 
only assist this.   Pit ironically suggested that "we" should instead 
educate indigenous peoples about open source, convert them over to 
the flawed logic of universal access.  A missionary position to be 
sure.  And one that would be easy to hold when issues of cultural 
preservation aren't at stake, at least to the same register. But as 
we know, the world ain't a level playing field.

As for a cultural matrix that defines aboriginal peoples as 
permanantly in and of the past - well  sure, that's how racist 
discourses operate, but I think there's been heavy critique and 
numerous alternative representations happen in australia.  I think 
it's often Europe and the US that lag behind in this regard in terms 
of the dominant myths/discourses of Aboriginals in Australia.  And 
don't think I'm being defensive of the numerous instances of racism 
that continue in australia - my paper was stating this explicitly in 
its reference to the aust governments disavowal of international 
human rights rulings on human rights abuse and cultural heritage 
violation.


>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.

Well, at the moment indigenous peoples are losing, yet again, when 
their cultural production is not secured.  They are also losing in 
the battle for politial legitimacy.  Deliberative democracy and the 
current right-wing government have proven that they can't accommodate 
indigenous interests.  I'm not suggesting there aren't considerable 
risks in going down the path of securing IP rights - it's a path 
already being taken by indigenous peoples.  It seems to me to be a 
path that situates indigenous peoples as actors in the dominant mode 
of sovereignty  - that of economic rather than the mythical, 
redundant mode of popular sovereignty - and it's from such a position 
that other political , cultural ,social issues might then be able to 
be tweaked a bit more effectively than they have.  No sure bet, but 
an alternative that may deliver more to indigenous self-determination 
movements. I think Pit's posting clinched a number of the odd 
complexities that attend issues like this one.

Ned
[1] Eric Michaels, 'Aboriginal Content: Who's Got It - Who Needs 
It?', Visual Anthropology 4.3-4 (1991), 279.

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