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RE: <nettime> Certified Italian...and the some: CGIAR
Kermit Snelson on Mon, 14 Oct 2002 13:42:28 +0200 (CEST)

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RE: <nettime> Certified Italian...and the some: CGIAR

> BTW, is there some confusion over Bio-IPR? The struggle
> against UPOV, i.e. the discrepancy between the rights
> of commercial plant breeders and (indigenous, peasant,
> 'traditional') 'farmers rights' has very little to do
> with Berlusconi's culturalist fantasy of authenticity

Actually, I see very little difference in substance between Berlusconi's
state-assisted scheme to shake down the world's Italian restaurant industry
and the national certification trademark, or "Label of Authenticity",
obtained in 1999 by Australia's Aboriginal and Torres Strait Islanders [1].
Money, politics and popularity aside, how is their concept of "authenticity"
any less a "culturalist fantasy" than Berlusconi's?

There's nothing inherently wrong, of course, with building brands in the
marketing of souvenirs to tourists, especially if it advances the worthy
causes of promoting Indigenous cultures and providing disadvantaged
communities with a source of income.  That's not what I'm concerned about.
The danger is when the theory behind a harmless trademark based on a
tactical ethnic fiction metastasizes into a massive revision of
international IP law intended to usher in a new world regime of "agonistic
democracy" based on legally encoded tribal and racial identity.  That's
exactly what Ned has proposed, drawing the same thinkers (Carl Schmitt and
indirectly Georges Sorel, intellectual hero to both Schmitt and Mussolini)
who were instrumental in the founding of capital-F Fascism in the 1910s and
20s.  The modern versions of such proposals are especially suspect when used
as part of a cynical "let them eat IPRs" strategy aimed at cutting public
funding for NGO humanitarian foreign aid and human rights programs,
accompanied by Reaganesque "help only breeds dependency" arguments.  Is it
any wonder that President Berlusconi has been among the first to sign up for
this brave new world?

Although the ideas in the text that Soenke forwarded concerning the Bio-IPR
issue are not nearly as radical or crude as Ned's, they also worry me.  The
legal status of traditional knowledge, especially in medicine and
agriculture, is a politically complicated problem and the eventual solution
will inevitably incorporate elements from many ideological persuasions.
However, I would hope that all but the most mercenary are repulsed by the
fact that patents have recently been granted on such things as Basmati rice
and the use of turmeric on wounds.  I'm very happy that these two particular
examples were eventually overturned by legal action which proved that both
"inventions" had been part of traditional cultures for millennia, and were
therefore in the public domain.

But the text forwarded by Soenke does not celebrate this concept of cultural
public domain, but explicitly attacks it.  One of the citations, in fact,
even seems to equate "public domain" with the racist "terra nullius"
doctrine overturned by the Australian High Court's 1992 _Mabo_ decision.  It
also attacks the international institutions that were set up to collect and
catalogue the Earth's genetic "prior art" expressly so that only inventions,
not discoveries, may be patented.  So why does the text oppose this effort?
Because of a "farmers' rights" concept apparently based on the idea that an
organism's DNA sequence may be studied by scientists, and released to the
public domain, only with the "prior informed consent" of those people who
are biologically descended from the purportedly original inhabitants of the
area(s?) to which the organism is native.  In other words, biologists who
discover, collect and catalogue species without first consulting and
reaching accommodation with the local controlling tribal authorities are now
considered thieves.  Unfortunately, the "prior informed consent" doctrine
built into the Convention on Biological Diversity has already led to the sad
result that anyone with common sense could have predicted:  some biologists
have been arrested by local militias, their collections destroyed, and
otherwise prevented from doing science.  Some scientists have left field
biology entirely.  And in their absence, forests have fallen to loggers and
many species have been, presumably, lost forever [2].

Now imagine that this depressing, IPR-induced scientific, cultural, and
environmental catastrophe has been extended, as Ned proposes, to form the
basis of the post-governmental world polity itself.  Can one imagine a more
politically messy, if not noxious, basis for a legal regime?  How are all
these things to be defined and enforced?  What's "native"?  Who are, or
were, the "original" inhabitants?  Who today are their descendants?  What do
we do when disputes break out over which group or clan represents the "real"
indigenous inhabitants, thus possessed of the "authentic" hereditary and
cultural credentials necessary to claim billions in, say, Pfizer royalties?
Meanwhile, back in the courts, expect the most egregious festival of
politically-motivated concerns with genetic and cultural "authenticity"
since the days of the Third Reich.  Carl Schmitt, who also didn't believe
that science is neutral with respect to "economic, sociopolitical and
geographic situatedness" and who consequently wanted all scientific books
written by Jews to be labeled as such, would be proud.

What could be more likely to impede the progress of science and technology,
or less likely to promote harmony among different cultures, than a scheme
that would monetize the exchange of knowledge and culture across tribal and
racial lines?  But then again, another recent post to nettime has condemned
Darwinism.   Another has condemned the use of GPS-assisted precision
farming.  Another has equated NGO efforts to educate people in developing
countries, even about avoiding land mines, with "colonialism" and,
comically, "the neoliberal technique of outsourcing."  Lastly, it has been
advocated here that no knowledge or values are universal, cultures
inherently clash, and that all these ideas must be written into public law
as a Schmittian "agonistic democracy".  I am therefore led to suspect that
these two anti-modern, anti-liberal and anti-scientific side effects I'm
warning about may actually be the goal of this movement, just as they were
Schmitt's.  Even if well-intentioned, however, such thinking would then
betray a lack of scientific, political, and intellectual sophistication,
inability or unwillingness to follow trendy premises to their logical
conclusion, a malaise-induced rights-speak that gives up on intercultural
sharing, dialogue and reconciliation in favor of adversarial litigation, and
a potentially tragic failure of historical memory.

> it is not clear to me how the terms of resistance to
> hegemonic forms of proprietarization could be determined
> in some kind of juridical vacuum - just-say-no-to-IPR is
> simply not an option for a lot of actors in this area,
> even though the struggle to expand the 'public domain'
> (i.e. contest its enclosure) of biological material
> continues.

Fair enough.  Pragmatism and realism are good things.  But it doesn't mean
"if you can't beat 'em, join 'em."  Nor does it mean that one can fight the
enclosure of knowledge with a concept of incorporeal property far more
expansive than the wildest dreams of one's opponents, to the point that it
can support tribal ownership of entire cultures, including the DNA of their
living components, in perpetuity.  One cannot effectively fight for the
concept of public domain on one hand and equate it on the other with the
racist, discredited doctrine of "terra nullius."  One cannot fight racism
with the doctrine that ideas themselves are racial, not universal, and
should circulate only subject to racial control.  And one cannot build a
theory of democracy using the very same books that were used to construct
historical Fascism and Nazism.  Tactics only go so far.

Kermit Snelson

[1] http://www.niaaa.com.au/label.html
[2] http://www.nytimes.com/2002/05/07/science/earth/07TREA.html

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