Location, Location, Location: Property in the First and Fourth Worlds
Attached a presentation I gave yesterday at the fantastic conference on Intellectual Property in Delhi, organised by Sarai and the Alternative Law Forum ( http://www.sarai.net/events/ip_conf/ip_conf.htm - eventually there will be transcripts I believe). Once again, very rushed (I repurpose a quote or two from my recent “Home Improvement” essay (http://tinyurl.com/4xuey )) and I’d appreciate any commentary that would improve it for further development [also apologies for the lack of referencing, I can provide any that are needed.]
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Location, Location, Location: Property in the First and Fourth Worlds.
Presentation to Contested Commons/Trespassing Publics conference
Sarai/ALF, Delhi, 6-8 Jan 2005
Danny Butt
48 hours ago, I was at Omaewa, Port Awanui, on the East Coast of Aotearoa New Zealand, the place that you can see on screen. I doubt that any of you have been there, but the place is very important for me being here. It was a long drive and flight so excuse me if I’m not yet present.
I hadn’t finished my paper when I went to the coast a couple of weeks back, and now that I am no longer a tenured academic I’ve been unsure as to whether I should finish it. Because if this discussion was taking place in a Maori context at home I would not be reading a paper. Maori have a vibrant tradition of oratory and a paper might be seen as a marker of my poor skills in that area, not to mention disrespectful to the other speakers who have gathered. But this is not to say that my presentation or korero would not be structured: if it was on the marae it would unfold in a very particular way. Firstly, I would begin with a tauparapara to identify myself and also set the mood, I would probably make reference to songbirds such as titi, kaka, or tui, depending on where I was (in Delhi, perhaps the peacock). This would be followed by waioha tuatahi, where I would pay acknowledgments to the Creator, Papatuanuku the Earth Mother, Ranginui the Sky Father, various Guardians, the marae or meeting house, and to the Tangata Whenua or people of the land (hosts). I should then greet the dead, and farewell them. That would seem like an appropriate gesture for the moment and the region, in the wake of the terrible recent events. I should then recite a hono or joining, to return to the living, and hold the distinction between the two states. I should then greet the hosts again in more detail, acknowledging the previous relationship with the hosts. Then I should comment on the take, or purpose for the gathering. Finally, a whakamutunga or whakatauki (proverbs) would close.
To white settler pragmatism, such formality seems arcane and unnecessary. Even worse, it may appear to be *closed*, and a brake on progressing to the more important the matters at hand. To the state obsessed with controlling the public domain as a space where each should be the same, such processes are like the burqa in the French schoolyard, an irruption of difference that threatens the very idea of democracy and freedom. I should point out that, apart from the affective dimension of ritual, that I think is undervalued in academic discourse to its political peril, I find the kawa or protocols associated with tikanga Maori tend to be very practical. For example, in a Maori setting a certain hierarchy would ensure I would not be making these tentative remarks on culture, traditional knowledge and intellectual property while the world’s foremost expert on such matters sat in the audience preparing to talk in the next session. In the 48 hours since I’ve known Rosemary Coombe would be here I can assure you I’ve slept even less than I otherwise might have. And as it turns out, I got so nervous I ended up finishing a written paper on the plane.
So while the traditional protocols around oratory I mention above are considered marginal to white thinking, they are no stranger than it would be to say “information should be free” to my friend Te Miringa Hohaia, who is pictured in this photograph at Port Awanui. As a tohunga or holder of traditional knowledge, who was alive during the Tohunga Suppression Act of 1907-1962, a New Zealand act specifically outlawing the application and maintenance of that knowledge, Te Miringa understands the value of his knowledge and its place in cultural politics. His ancestors were imprisoned without trial for lifting surveyors pegs placed by the colonial government on their traditional lands in one of the greatest human rights abuses in New Zealand’s history, so he also knows a hell of a lot about property. I don’t intend to talk about Te Miringa’s work as he has edited a book of his own on the events at Parihaka, and that is not my story (see http://www.pukeariki.com/mi/stories/tangatawhenua/pacifistofparihaka.asp ). I am not here to trade in what Mindry calls the “politics of virtue”, or suggest that his work somehow provides a model for what I am trying to do. I acknowledge him here because our relationship highlights a very pragmatic issue that I face in my life. As a paying-the-bills job, I’m doing some consulting for an Australian university on Digital Rights Management and the Music industry. The University (QUT) is sponsoring the porting of the Creative Commons license to the Australian legal framework, and from Delhi I will go to the launch of the Australian Creative Commons license at a conference with Larry Lessig. The issue comes from trying to describe this work into the Maori context, where I *also* have conversations about intellectual property but ones that are quite different. To give examples, I can discuss biopiracy, the TRIPS agreement, and legislative protection for traditional knowledge quite adequately at home. If I came home with updates on the work of Suman Sahai from genecampaign.org here in India, for example, people would be excited. In the Creative Commons/DRM world, however, the discussions focus on fair use, copyright, access to cultural materials, and freedom. Rarely do the two conversations crossover, and I want to know why.
To put it bluntly, for Maori, and I suspect for many indigenous people, the stakes are much higher: firstly, they are a matter of life and death, particularly as they pertain to traditional foods and medicines; and secondly, the effects are always discussed in terms collectively rather than individually as the life and death is for an entire, economic and social system. Anti-colonial activity is necessarily an interdisciplinary project, and one with no quick solutions.
What I would like to outline here are the some thoughts on what rapprochement might be possible in the relatively discrete spaces of 1st and 4th world IP activism. Indigenous scholars have already been paying close attention to the first world debates on intellectual property, often with some bemusement, for as Lee Godden has noted, these have been instructive for understanding the mechanisms by which the Western legal system suppresses certain kinds of property rights while extending others. (”The difficulties the common law had in accommodating a construction of property that did not have the attributes of ‘bounding’ and division is well illustrated by the literary property debates.”) But I think it would be productive if the West could also think about what it might be possible to learn about IP from traditional knowledge systems and the work being done in this field by indigenous activists.
The value of indigenous epistemologies for Western public culture is that by attaching culture to land they provide a lasting critique of disembodied knowledge, and disembodied property. In the West, property is overwhelmingly focussed on transfer - as David Ellerman puts it “A theory of property needs to give an account of the whole life-cycles of a property right - how it is initiated, transferred, and terminated. Economics has focused on the transfers in the market and almost completely neglected the question of the initiation and termination of property in normal production and consumption.” (http://ssrn.com/abstract=548142 ) There is a suppression of history that is endemic in market based property systems. I believe that one of the problems facing Euro-Amercian anti-IP movements is that they are concerned with transfer more than initiation - they fall into the trap of focus on the present. Indigenous epistemology tends to emphasise historical genealogies of land and cultural formations - in other words, the land is not stripped of its history in order to travel on circuits of exchange, and the same applies to knowledge. In a Maori sense, knowledge is a taonga tuku iho - a gift from the ancestors. It seems to me, in the battle against transnational info-exploitation, that it’s useful to have a sense of not just how property is being exploited but how that property was generated in the first place. (Disney, as John Frow pointed out earlier, are particularly well known for just taking people’s stuff and calling it their property).
So I have to take issue here with the characterisation of the scene by the conference organisers (whose work I should point out I have learnt a lot from and usually find incredibly insightful, making this all the more noticeable):
“For the past decade, the significant and pioneering critiques of the intellectual property system have been largely located in the West. Southern elite responses have largely argued for new forms of national protection against trans-national controls. Is it possible to transcend this aporia between a public domain argument in the West and national protectionism in the South?”
My view is that not only are insightful responses being made from the third world (I’d put the work of Malaysia’s National IT Council in here http://www.nitc.org.my/resources/bkss.pdf and Roberto Verzola); trenchant critiques of IP exploitation have been mounted by indigenous scholars (Aroha Mead and Leonie Pihama at home) both within NGO frameworks and more radical groups. However, characterising this work as national protectionism is incorrect, for in the case of indigenous groups their work is often directed *against* nation-states that fail to grant them rights of property and self-determination that are equal to other citizens, most particularly corporate citizens. I would prefer it if we could use the term national protectionism toward the activities that truly fit this description, such as the cynical manipulation of national legal frameworks by First world information traders, who are *in no sense operating in a free market*, even if such a thing existed.
My main concern about this characterisation though, is not to quibble with the terminology, but to suggest that this conception moves the discussion to more abstract geopolitical formations that make the kind of connection I’m talking about seem marginal, because the commons/public is valorised and the private is foreclosed. Anyone with a familiarity with Western feminist theory will immediately recognise the problem, which is as Nancy Fraser suggests, “who gets to be public” in the “actually existing” democracy?
Dipesh Chakrabarty and others have pointed out, is that the creation of the abstract “public sphere” was through writing. What is the role of oral culture in thinking about the public domain, a print tradition? For Chakrabarty - there are limitations of public writing as the space of recognition within the law for indigenous groups, and he suggests that “built into the position of historians such as Eric Hobsbawm or Henry Reynolds is an invitation to ‘transcend’ one’s given, particular identity in favour of a general one (such as the nation or class)” (http://www.transforming.cultures.uts.edu.au/ pdfs/reconciliation_chakrabarty.pdf ). However Coombe points out that the oral tradition embodies cultural knowledge, it is not abstract, common or transcendent (e.g. Embodied Trademarks, http://www.yorku.ca/rcoombe/publications.htm ). This is an important threat and opportunity to movements such as open source and creative commons that base themselves firmly within Euro-US epistemology. The threat is quite simple: anti-IP critiques focussed on abstract conceptions of the public will ultimately fail as social movements because the propensity to use abstract language is itself a class-bound, cultural skill (as Donna Haraway and Sharon Traweek have proven) that inhibits the formation of diverse alliances with those without it. The opportunity arises from the realisation that, in the end, the creative sector (where much of the energy for the CC movement resides) is ultimately about embodied knowledge and diversely situated cultural practices, not publics, and should thus be able to relate to located activities in cultural politics. In the longer version of this argument I use the work of Chela Sandoval on differential consciousness as a way of thinking about how to work across these divides.
Yesterday I checked out the webcast of the Duke conference on the Public Domain in 2001, which productively highlighted the value of embodied knowledge. At the end of Rosemary Coombe’s presentation, a male in the audience, self-consciously identifying as liberal, asked Coombe “are you advocating a power of veto for a particular tribe over cultural material that they have developed”? Coombe’s response included the simple truth that “neither a zone of absolute freedom or absolute property are the only possibilities in the world we live in”. But this dialogue is given its full weight by seeing the questioner scratching his goatee in consternation as he tried to reincorporate Coombe’s critique back into something over which he has mastery, or what I saw as Coombe biting her lip, perhaps thinking as I was that the questioner would have been well advised to listen to the paper. The problems of absolute freedom or property are meaningless outside of a particular context.
A couple of months ago I was fortunate to meet Gayatri Spivak, of whom I am a huge fan and who as many of you know has been doing some very interesting work in Bengal. We discussed what she has identified as one of the most important and under-explored areas of the global information order: the rapid informationalization of the rural. These processes are characterised by massive information asymmetries between those controlling and those subject to such informationalization. I asked what then, are the research priorities that we can share in such an environment? What is the role of the urban scholar or information agent in these systems? After an eloquent exposition Spivak finished, as she often does, with a simple, compelling, question: “Is language local?” This question has haunted me over the last two months, and I see it as a productive question that guides my recent movements between my home in Aotearoa, my birthplace in Australia, and the historical birthplace of Polynesian peoples in Taiwan. Now it brings me back to Sarai, which has functioned as a kind of intellectual holiday-house for me in thinking about anti-colonialism and the North/South traffic in contemporary media culture. The questions of language, and locality, are obviously deeply intertwined in the concept of property as it has been historically conceived. But more importantly, they bring a self-consciousness to my visit here that raises more existential questions about the limits of language and knowledge that I think are crucial for situating information critique. Methodologically, they raise questions of application and praxis: who is my visit here for? How does it affect the situation at home? What can I productively bring to this particular gathering? Who and what can I bring back to my home and colleagues in Aotearoa? What are the enabling and limiting constraints on my particular role in this whole thing?
While such questions have, of course, been explored within the tradition of political theory within and outside the academy, they are largely absent from discussions on the information commons, due to what I see as a blinkered epistemology dominating Euro-American theory, and a resolute avoidance toward issues of differential consciousness and thinking outside one’s subject position. But these questions are not arcane reflexivity when I am at home, they are in fact essential underpinnings to productive dialogue. I cannot do *anything* unless I am clear on my location and accountabilities. The main question for me is not “what new critiques of property could we conceivably come up with”, but, echoing Spivak once again, “in what specific scenes or contexts of action are we prepared to situate ourselves”? In the discourse of academia, of the public, this is left implicit. My engagement with indigenous groups and their political critique makes these questions crucial. For knowledge is never free, it is, as the feminist science studies literature has made clear, always embedded in a place and knower. And as Spivak has argued, these scenes are never public, they are always specific.
Part of the story of the rise of indigenous self-determination movements is the marginalisation of such indigenous values of located knowledge within Euro-American social movements of feminism, anti-racism, and anti-capitalism. To build a popular alliance against Intellectual Property exploitation between 1) commons movements recovering an abstract collective historical memory *within* Anglo-American capitalism, and 2),\ the specific historical experiences of those *colonised by it*, will not be an easy task. To take the time to heal these divides will require us to be prepared to suspend our taxonomies at key junctures, and as Katie King suggests,
“To pay attention to and use such theory and methodology coming-into-focus requires a high tolerance for conflict and for beginning again, tasks with emotional, intellectual and political costs. Misunderstandings and mistakes and unrecognized privilege are the paradoxical “common ground” upon which such methodology is made, and they all have their own consequences, sometimes separate from the coming-into-being of such methodology, and not at all necessarily mended by it.”
But to not do this work in favour of more immediate concerns removes us a rewarding and lasting dialogues that I think will add strength and endurance to our work of rebalancing the global information order. Maori have a saying, ma te wa, roughly “in good time”. If there is something indigenous groups have learnt to do, it is to survive. The current round of informationalised capital appropriation and expropriation seems to move at a fast pace, requiring urgent interventions, but as we know it has a long pre-history, and its struggles will be with us for generations. In our quest for freedom over the long haul, I think we have a lot to learn from culturally specific systems of community maintenance that indigenous peoples have maintained. As Amartya Sen puts it, “Freedom… is an inherently diverse concept, which requires consideration of processes, as well as substantive opportunities.”
