Anthropology does IPR, Part 1

I’m flattered to have been given a guest-worker permit at Savage Minds. I was invited to comment especially on the intersection of anthropology and intellectual/cultural property. But since my work is now moving in new and different directions, I’ll also have a few posts on other issues before management yanks my login rights toward the end of the month.

The more I track anthropological work in intellectual property rights (IPR), the more it seems that as a discipline we’ve leveraged ourselves into a strange and contradictory place. On the one hand, many of us enthusiastically support the idea of open access (see Rex’s recent post, for example, or check out the website of the Alexandria Archive Institute). On the other, anthropologists are collaborating with indigenous organizations to create more robust controls over access to indigenous knowledge in the interest of discouraging various forms of cultural appropriation (often described as creating a form of “cultural copyright”). Those controls are likely to have a profound impact on how and what we publish–they already have, in fact–and even on the accessibility of work published decades in the past.

In theory, the two opposed goals are not irreconcilable. In practice, I’m not so sure. After reading Jeffrey Toobin’s recent New Yorker article about Google’s ongoing efforts to upload millions of books to the web, I trolled Google Book Search (still way in beta) and was blown away. I typed in “Moyobamba,” the name of a Peruvian town not far from where I did fieldwork in the 1970s and 80s, and immediately found a half dozen travelers’ descriptions of the town from the nineteenth and twentieth centuries. OK, most of these works are obscure for good reasons, but I might never have encountered them otherwise. Once every ethnography is available to everyone with a computer, what chance do indigenous people have of limiting access to information increasingly defined by them as “sacred” or “sensitive”?

The currently fashionable proposal for dealing with this is to insist that the world defer to “traditional law”–to let the rules of each indigenous group determine how its cultural productions will be used (or not), and by whom. There is an undeniable feel-good quality to this approach. It appears respectful of local values and local sovereignty. It thumbs its nose at the universalizing pretensions of social science and, more important, global capital and the IPR system on which it increasingly depends. It rightly questions simplistic claims about the world’s cultural commons and the moral standing of the public domain as it currently exists.

By and large, though, the IPR problem exists not within the sovereign space of communities, which are mostly free to control information as they see fit, but in the global “space” of the internet and mass media. So how are the traditional laws of hundreds of different micro-nations supposed to be applied in this unruly zone? This is never adequately explained. And it ignores the still more difficult issue of how groups establish that a given cultural element is theirs in the first place.

I’m reminded of a story in Sabina Magliocco’s fine ethnography of American pagans, Witching Culture, in which Lakota elders take it upon themselves to chastize a group of Wiccans for committing an act of cultural appropriation against the Lakota by worshipping in a sacred circle. To which the Wiccans are obliged to reply, respectfully, that the sacredness of circles is not a belief limited to or invented by the Lakota.

A more imaginative approach is woven through recent work coming out of PNG–notably, the essays in Hirsch & Strathern’s Transactions and Creations. Instead of focusing on local sovereignty rights, contributors to the Hirsch and Strathern volume ask, among other things, whether the rest of world can learn useful things from the ways people in PNG approach creativity, intangible property, and transactions involving both.

It’s an intriguing question. Whether the rest of the world is prepared to learn from PNG or anywhere outside of corporate boardrooms is another matter, of course. But I’m cautiously optimistic that change–albeit modest and slow–is in the wind. You can get hints of it from the World Intellectual Property Organization (WIPO), which has shown considerable interest in questions of traditional cultural and intellectual property.

Next time: Dilemmas of protecting traditional cultural property in plain sight

  • 11 thoughts on “Anthropology does IPR, Part 1

    1. Michael: great to have you on board; here’s hoping it raises the bar on this blog, rather than dragging you into the muck with us :)
      The issue you raise is very clearly stated–I expect no less of course–especially concerning the problem of traditional law on the Internet. I think many advocates and defenders of traditional law mistake the Internet for a dominant world IP regime that is somehow incompatible with traditional law–and this is a shame. I think, if anything, the debates around the Internet, and especially around music, signal that the Internet is in fact a contest–one openly, and in certain technical respects, hostile to existing IP structures. The fact that many proponents of commonses and free/open culture use an ideology of rights to “human” culture is unfortunate, and in fact often at odds with the very specific and partial practices that are giving the Internet the shape it has.

      Indeed, the onus of making the Internet safe for traditional knowledge is on the putative possessors of “traditional” knowledge themselves; for better or worse it is they who must propose and create alternative ways to control, restrict or circulate that knowledge–and the important part is that the Internet allows them to do this (at least for the time being)–it’s about as agnostic with respect to innovations and possibilities as any technology in memory. But by the same token, this is a huge, difficult challenge which practically speaking most indigenous and traditional groups can’t take on without the help of people who see and understand their dilemma, of which there are clearly too few…

    2. You know I am not always so sure I agree with the work that came out of that Property project in PNG. It seems to me that PNG is that it also might be seen as ground zero for the enclosure of all forms of culture as property (I am thinking here of Simon Harrison’s work in _Fracturing Resemblances_ and other places). In fact its also ground zero for notions of liability and responsibility that extend far beyond US legal norms.

      In general, yes, security through obscurity is no longer an option. If framed this way, I wonder whether we might get traction on the IPR problem by reconsidering in light of the literature on the death of privacy that flourished in the days of the Internet boom?

    3. As Chris says, the internet reproduces (and intensifies) all the contradictions and paradoxes of human social life. It threatens “cultural privacy” yet magnifies the efforts of minority groups of all descriptions to have their message heard and, for that matter, to reinvent themselves as groups. It undermines certain forms of IPR yet facilitates extraordinary IPR-based wealth. It emerged from a Cold War defense strategy (with help from Al Gore, of course), was soon hailed as utopian force for peace, and has now become an indispensable resource for terrorists and peaceniks alike. In short, it reflects all the creative perversity of _Homo sapiens_.

      That said, I’m still hopeful about prospects for hammering out an acceptable balance between the legitimate needs of groups, including indigenous communities, for some degree of collective privacy and the widespread desire for (reasonably) open access to information. I only remain skeptical about heavy-handed attempts to impose top-down, necessarily bureaucratic “solutions” in the name of heritage protection. I’ll say more about this soon.

    4. In 2002 a European Union court ruled that Feta Cheese is Greek, and that Greek producers have the exclusive right to the name ‘Feta Cheese’. This is a single example of what is really a wide-spread debate within the EU and a dispute between EU member states about cultural property.
      Too much silliness in the world already.

    5. A question for MichaelB from someone who has not followed this literature at all but has recently written a conference paper reflecting on Eric Luke Lassiter’s Chicago Guide to Collaborative Ethnography. In that paper, I note that how we respond to Lassiter’s suggestion that we are not only open with the people whose lives we write about about what we are trying to do but even go so far as to show them what we are writing and edit what we write to reflect their feedback depends a great deal on the people we are talking about and the kind of writing we do. If we are dealing with members of small or marginal groups who are seen, either fairly or unfairly, as victims of a history in which we or our ancestors played a guilty part, this sounds very nice, indeed. Both courtesy and a basic sense of human fairness seem to demand it.

      Suppose, however, that the collaborators in question are, as mine are, employees of one of the world’s largest advertising agencies—or executives of major corporations, or politicians or government officials, members of the Bush administration, or even academic VIPs. Our collaborators assert that they “own” their secrets, and that it would be wrong of us to expose them without their permission. In these cases, when we start to talk about allowing people to vet what we write and start leaving out information or interpretations that they find uncomfortable, when we start keeping their secrets for them, what comes to mind is that fine old phrase “selling out.”

      Has any one raised similar issues in discussions of native peoples’ IPR?

    6. John — I know of several cases where anthropologists were put on the stand as hostile witnesses by lawyers working against native title claims. The logic — as you note — was that they were not actually impartial observers but rather were biased in favor of the indigenous people with whom they had been doing fieldwork.

    7. John identifies an issue that remains under-analyzed in anthropology. Although it would be considered unethical to tailor research findings to suit the preferences of research subjects in government or industry, fieldwork in indigenous communities is increasingly deemed ethical _only_ if anthropologists give the community a high level of editorial control. Yet this potentially creates different sorts of ethical problems, about which little seems to have been written.

      I hasten to add that I don’t dispute the right of sovereign communities to deny access to ethnographers, nor do I think that anthros have a God-given right to publish whatever we want. Fundamental decency requires attention to local values and sentiments, to say nothing of the safety and reputation of the individuals about whom we write. But for compelling ethical reasons, as well as professional self-respect, we should be prepared to walk away from situations in which fundamental standards of accuracy are compromised.

      Admittedly, defining those standards is no easy task. I recall intense conversations many years ago with a colleague who simply refused to write about sorcery-related social strife in a prominent Native nation despite its salience in everyday life. Did his silence about such a prominent feature of their social world constitute a misrepresentation? It’s a tough call.

    8. One of the things that has come to strike me as odd about the whole indigenous peoples/IPR/TKR/ etc. debate is how it assumes the dangers of *too much* attention to indigenous what-not rather than *too little*. Somehow the showy examplars of biopiracy, cultural appropriation, the voraciousness of the global ecumene vis a vis the local backwater, etc. etc. come to shape the terms of the discussion in ways that I think skew collective impressions of what the world “really” looks like. Now, on the one hand, from the local perspective I can see the strategic worth of this — the glue of every secret society is simply that it has a secret; and insisting that the world desperately wants what you’ve got is a good way to keep a collective sense of collectivity going. But I think it matters that that is not true, in most instances; and that in fact much of the insistence that the world eff off vis a vis your secret handshake or whatever is at base a kind of bid for the world to acknowledge the peerless value of your secret handshake. I don’t know what it would look like to generate flexible, encompassing regimes of rights/property that enabled this kind of acknowledgment without excessively emphasizing what Taussig once called (in a very different context) “the mysterious side of the mysterious”.

      btw, so nice to see you at SM Professor Brown!

    9. Kathleen: This is an interesting observation. I wonder if you can point us to specific examples of what you mean. Like, what are you thinking of when you write: “But I think it matters that that is not true, in most instances; and that in fact much of the insistence that the world eff off vis a vis your secret handshake or whatever is at base a kind of bid for the world to acknowledge the peerless value of your secret handshake.”

      Alex: I am pretty sure that the PTC group would not deny the idea that Melanesians are absolutely invested in making claims to their creations and/or resources. I think the PTC emphasis has been on the enormous diversity of forms of transactability in Melanesia as possibly providing conceptual resources for thinking through problems of transaction and recognition in the hyper-transactional realm of contemporary mass mediated global capitalism. I am pretty sure Michael will want to address some of this.

      Michael and Others: ‘Secrecy’ is like a test case for thinking about the problems of cultural appropriation because the terms of the debate are so extreme. Even acknowledging the existence of the secret in a sense might already be to violate its secrecy. I think protocols of secrecy are a special case of the larger or wider problem of public recognition (of either remunerative or simply symbolic kinds) of the sources of value in the cultural creativity of marginal, tribal, indigenous, native, disempowered folks.

    10. Strong — what I am thinking of is the spectre of biopiracy that was supposedly haunting South America (among other places) throughout the 90s, such that all kinds of botanical and other biological research got relentlessly denounced at indigenous congresses etc. For historical reasons, it was clear why — but in the immediate contemporary context, it became obvious that much of the denunciation was about shoring up the worth and integrity of the knowledges/bodies/materials that were declared to be under threat.

      I think they were (and are) under threat; it’s not the realness of risk I question. But the going discourse about the sources of the risk (researchers, and their attention to marginal environments/knowledges/persons) seemed, over time, to me to be entirely misidentified. It was like the anxiety was being focused on agents that happened to be available (and, in fact, vulnerable) while more serious — and more seriously impervious — structural threats were entirely absent from the discussion.

    11. Secrecy is an interesting topic. In a chapter titled “Malinowski, Magic, and Advertising” in John Sherry, ed., Contemporary Marketing and Consumer Behavior: An Anthropological Sourcebook (Sage, 1995), I offered the following observation.

      As regards secrecy, ads follow a curious cycle. While being planned they are kept secret, lest ideas bestolen and used before they are scheduled to appear. Once published or shown on TV, they enter the public domain, they become, as it were, negative models that reduce the value of similar ads that appear later. There is no room in advertising for ancient wisdom’s loss or recovery, no place for the hermeneutic motives that drove both Malinowski and the Taoist Canon’s compilers as they gathered and arranged their texts. There is, at most, nostalgia. Coming full circle again, history is merely historical, something to be either exploited or simply avoided in the endless search for something new.

      The central question I address in this chapter is the following: Which is the better metaphor for advertising, religion (as John Sherry suggests in an article that mirrors Geertz on religion in The Interpretation of Cultures) or magic (as Malinowski suggests in Coral Gardens and Their Magic). I summarize the argument as follows,

      In the cases examined here, magic shares with advertising the tensions of a highly competitive business, the rewards of success, the fear of defeat, the quiet pleasures of craftsmanship, and the sheer love of the game. Ads, do, indeed, articulate cultural categories and principles (McCracken, 1990). They rarely, if ever, form the basis for solidarity groups; they are public but not collective acts (Schudson, 1993, pp. 159-160). Ads speak for products, companies, or candidates, more rarely on behalf of the public good. They are not produced as ends in themselves. Where religion suggests self-sacrifice and the muting of private wants and desires in favor of ultimate values, magic is selfish, competitive, contested. So is advertising. If we had to choose religion or magic, it feels like magic to me.

      This is the context in which I find myself asking, are the secrets that the IPR movement seeks to protect truly collective property to which a people as a whole have a special right, or are they, as Trobriand garden magic was, the property of specific individuals or elites? If the latter is the case, is, for example, a struggle between a shaman who claims to be the discoverer of the potency of a particular herb and a pharmaceutical company that invests in isolating the chemistry of the active ingredient, more or less a human rights issue than, say, the claims of Japanese corporate employees to extra compensation for inventions that have earned their companies billions?

      Please note: I am not attempting to adjudicate the rights or wrongs of any particular case. The question is directed at what I see as the underlying assumption in the casual discussions of IPR with which I am only modestly familiar that the rights in question are religious, in a classic Durkheimian sense. They belong to everyone in the affected group. What of the possibility that traditions are being invented to serve particular interests instead of the public good?

      P.P.S. In response to Rex: I know of at at least one case of an anthropologist who works in Central America, who was asked by the Native Americans with whom he works to testify on their behalf in a case involving their claim to land now occupied by descendants of black slaves. He was, he told me, forced to decline because his ethnohistorical research demonstrated clearly that the descendants of black slaves had got there first. His people were aiming to acquire land to which their own had become adjacent only in subsequent generations. It was, he confessed over a beer, a tough situation for the anthropologist.

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