Francis Hwang on Thu, 4 Apr 2002 01:38:55 +0200 (CEST)

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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

>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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