Francis Hwang on Wed, 3 Apr 2002 16:15:02 +0200 (CEST)

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[Nettime-bold] Re: <nettime> Intellectual Property Regimes and IndigenousSovereignty

This conversation seems to be taking an unexpected turn. At first I 
thought what was being advocated was that indigenous peoples take a 
more active position in extending their own property rights through 
existing systems of Intellectual Property -- i.e., copyright, 
trademark, and patent. Such a tactic, while it could be described as 
cynical by those who oppose IP in all forms, would at the least have 
the benefit of being pragmatic. Papers can be filed, lawyers can be 
hired, and courts can be made to listen.

But now it seems that Ned is advocating the creation of an entirely 
new form of IP to augment the ones we have. Not only does this 
potentially disastrous to me -- the creation of a new form of 
intellectual property is hardly a trivial undertaking -- but it would 
also seem completely pie-in-the-sky. What government, on what earth, 
would submit to having a form of IP created from nothing solely for 
the purpose of enriching indigenous peoples?

Ned wrote:

>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.

Sorry, I don't buy it. First of all, show me an example of any agent 
with as little money as an indigenous tribe successfully suing a 
multinational as large as Sony and winning. Keep in mind that Sony's 
annual gross is probably larger than the GNP of most nations on this 
earth ...

Second of all, what's to prevent Sony from: a) buying the indigenous 
cultural property rights of one Native American tribe, and then b) 
taking every other Native American tribe to court for doing things 
that are similar? Yes, such an argument is ridiculous on the face of 
it, and its power would only depend on having overwhelming legal 
force. But in practice, that is often how the law works.

And let me ask this: Under this new system of cultural property 
rights, would black people be able to sue Eminem for co-opting 
hip-hop? He made a lot of money with The Marshall Mathers LP -- it 
went platinum in about four days -- and some black commentators have 
not been very happy about it.

>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!

Sure, if we think of culture that way. I don't think it's that 
simple, or that limited, and I don't know why I should be happy that 
there would be some left when you're taking others away needlessly. 
That's like cutting off my left arm and reminding me that I still 
have my right.

>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?

How could IP bypass the problems of the state? In what courts are 
these laws interpreted? In what legislatures are these laws written 
and amended? All these are done through the state, meaning they are 
open to the same sort of lobbying and influence as the rest of IP. 
Look at how software companies have abused the patent laws, how 
Disney has done its best to extends its copyrights ad infinitum, how 
biotech companies own lifeforms they have engineered, how 
pharmaceuticals use their patents to make the price of life-saving 
drugs prohibitively high in developing countries. All of this has 
been done with the complicity of the state.

So, no, I don't trust the state. Not when it comes to an issue as 
complex as this one, and not when the benefits of getting the state 
involved at all are not clear.


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