Re: <nettime> Intellectual Property Regimes and Indigenous Sovereignty

[t byfield <tbyfield@panix.com>]

Ned.Rossiter@arts.monash.edu.au (Wed 04/03/02 at 03:18 AM +1000):

> 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?  

no. economic benefits aren't the only thing that would flow from it.
other outflows would include: precedents both formal (according to 
established judicial procedure) and informal (non-binding examples 
cited in studies etc.). the law tends toward universalism: category,
formal analysis, analogy, and so on. certainly, if laws were passed
that specified that they only applied to aboriginals, they would ap-
ply to aboriginals; but it's naive to think it would stop there. or,
in fact, that it even started there: michaels isn't the only one who
has proposed 'processual' IP rights -- there's lots of talk about 
'business method' patents, patents on algorithms, and so on. 

>                                                      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. 

t seems naive to assume that national or transnational legal frame-
works can be coerced to serve the interests of aboriginals but *not*
the interests of sony. i'm not even sure that that's a task for the
law at all. 

apropos, you criticize me below for demonizing the state. i did not,
but it's pretty clear that you demonize multinationals here. to note
that is not thereby to endorse them -- i'm merely pointing out that
you have done so.

>                                       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!

well, this is very indicative of the problem, i think: here you pro-
pose to distinguish economic profits from social relations. i hope i
don't need to point out that, whatever the ouctomes (profit, loss, or
anything else), economic activities ARE social relations. one could
make a sort of marxoid argument that they're less 'authentic' than 
other forms of social relation, but i'm not sure how easily you can
equate 'authenticity' in that sense with the sense in which it can 
be used to describe 'original peoples.'

also, it seems very odd to distinguish economic profit from social re-
lations in the context of a larger argument that aboriginals should be 
given (yes: by the state) new rights to convert their cultural patri-
mony into a means of, among other things, profit.

there are other grounds for, and modes of, copyright at least -- for
example, 'moral right.' but that has less to do with the ability to
extract fungibles from claim to an abstraction than with the power
to control what contexts it appears in. in a way, i think you'd do
better to scrap the economics and follow that route; unfortunately,
i think that the moral-right understanding of IP is quickly losing 
ground to the profit-oriented understanding (q.v. my conclusion be-
low).

> >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).

it's not an anti-state argument at all. i pointed out that property,
in any sense beyond ephemeral physical control of an object, stems
from the state -- then asked you why you thought that extending the
state's reach still further would benefit aboriginals now any more 
than it has in the past. 

> 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. 

no -- i was nodding to the treatment aboriginals have gotten at the
hands of the australian state. 

> 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. 

none of which automatically translate into 'property.'

> 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. 

your etiology of property, as something deeply intertwingled with the
emergence of the state, seems all well and good. but we don't live in
the netherlands in the sixteenth century, so that etiology, while edi-
fying, doesn't have much to do with the present -- and, in the pres-
ent, property flows from the state. some examples: frequency spectrum, 
new forms of patents (e.g., business methods), financial structures
that are effectively underwritten by the state but not yet regulated
by it (e.g., hedge funds years ago), heterogeneous international re-
gimes dealing with everything from multifiber production/assembly to
pharamaceuticals. these things 'exist' in various ways independent of
the state, but that existence doesn't make them property -- the state
does.

>                         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?

without a state, there is no 'property' beyond immediate physical
control of an object, which isn't 'property' let alone a system
for articulating abstract 'rights' to intangible processes and 
discourses.

> 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.

once again, i didn't say anything bad about the state. i asked you
why you think aboriginals will get a better shake now than before.

> >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.

no, that's not what i meant at all. i'm thinking very practically about
this because i know that (for example) multilateral agreements (a) don't
come from nowhere, and (b) aren't ipso facto good. i'll endorse your
argument when, and only when, aboriginals have more effective represen-
tation at the hague conference than sony, MS, or TW/AOL does. they do
not now, and they never will -- and, as a result, these kinds of struc-
tures will not serve their interests more than they'll serve the inter-
ests of sony, MS, or TW/AOL. and even if they did, the law is what is
made of it, which means that aboriginals had better have better repre-
sentation at every level of the OZ government as well.

basically, you're talking about the law like it's theology: it isn't.
it's more like papal politics. and you seem to be assuming that it's
a means of achieving, perhaps imposing, social justice. if it can ac-
complish that, this is not through some mystical momentum inherent in
the law: it's because there are very strong political forces that USE
the law, mainly tactically, to achieve those ends. but i don't see any
serious acknowledgment of these complications in your discussion. 

it's precisely that kind of disconnect -- turning to the law on a the-
oretical level while ignoring the practical aspects of the situation
-- that makes me very skeptical about arguments like yours.

> >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, 

none.

>                                                            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.

fwiw, that hasn't been the case in the US. it's hilarious to see how
effectively native americans have transformed their endless history
of abuse into some very profitable ventures like tax-free cigarette
sales and gambling. but it's also been interesting to see how, in the
course of just a few decades -- the same few decades -- mixed descent
went from being widely regarded as unmentioned if not unmentionable
in many circles to being downright trendy. i'm not making any causal
claims; rather, i'm pointing at new discursive constructions of native
american'ism.' in the US at least, they're very much tied up with a 
faux 'return' to 'originality,' 'authentcity,' 'nature,' etc., which
has little or nothing to do with the concrete political status of 
native americans. some have benefited from new revenue sources; most
have not. and, not surprisingly, the economic benefits stem not from
anything 'native' but, rather, from hacks to the long-standing system
of relegating native americans to spatial and juridical backwaters.

> 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.

this kind of 'we're all complicit' arguments isn't convincing. and it
certainly isn't a truism to be blithely invoked in the course of ar-
guing to manufacture retroactive 'rights' to the cultural realm. you
suggested that my alleged anti-state stance put me in bed with gobs
of neoliberals (which it doesn't because you misread my remarks). so
how does this retractive assertion of rights stand you with, say, 
disney? pop into any mcdonald's in the US at least: they're flogging
figurines of 'disney characters' like robin hood or snow white, which
mark the date of their births: in the thirties through the eighties.

> >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.   

it may well help, but there's *no way* you can say that it will 'only'
do 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.

now that's an argument i'll buy for a dollar. and it's why, as i've 
made very clear, i'm skeptical that IP can be mobilized to help abor-
iginal culture but not multinational cuulture. yes, multinational
*culture*.

> 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.

i don't doubt that the US and EU lag behind on these issues, although
their varying status WRT to 'indigenous' peoples is quite close to the
heart of the argument i was making, more generically, about 'original'
peoples. i could make all kinds of byzantine arguments based (a) on my
middle ('kepler') and last names and (b) on historical fact that, by 
your logic, would entitle me to, among other things, the laws of plan-
etary motion, substantive if perverse input into shakespeare's writings, 
and a whole lot besides. (i'd be one rich mother if i could cash in on 
a 'processual' IP claim to eliptical motion.) my forebears were mainly
forced out of various places by religious and political persecution; 
why would that be a less substantive claim than racism? and why would,
for example, the byfields scattered around the caribbean who look con-
spciuously unlike me but somehow ended up with the same last name (no
mystery how *that* happened) have any less of a claim? maybe they have
*more* of a claim? 

in a certain way, that kind of observation is a generic smartass white-
boy neocon inversion of the sense of your argument. unfortunately, that
kind of inversion is much closer to how laws actually work than is your
argument -- which is why i disagree with it.

> >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.  

how do you so cleanly separate an obscure sector of the law from delib-
erative democracy and governments that are susceptible to bouts of 
right-wingery? 

>                       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.

and i'm suggesting that precisely at the point where IP might become
a mechanisms for guaranteeing cultural and political viability for 
aboriginals, it will be abandoned as an effective source of wealth.
but not before the resulting infighting destroys what's left of abor-
iginal cultural integrity.

cheers,
t

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