[Nettime-bold] RE: <nettime> Intellectual Property Regimes and Indigenous Sovereignty

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

[MODERATORS: SORRY, IF POSSIBLE CAN YOU CANCEL MY LAST POST, AND SEND 
THIS ONE - CORRECTIONS MADE TO SOME AUTHORS, ETC... AND DELETE THIS 
LINE??/thanks, ned]

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 culture.

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
latter does not have to make excessive concessions to the former?
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 perpetuity.

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. Thomas Frank,
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
>correctly.)

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,
Ned

[1] Stephen Gray, 'Peeking into Pandora's Box: Common Law Recognition
of Native Title to Aboriginal Art', Griffith Law Review 9.2 (2000):
227-247.

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