Social and Behavioral Sciences Department
Arizona State University West
In a seminal article in Current Anthropology "Can Culture be Copyrighted?" anthropologist Michael Brown raised a cautionary flag in the movement to protect Indigenous knowledge through legal mechanisms of copyright and intellectual property (Brown 1998). The author's concerns for what he construes as "special rights" to "collective privacy" warrant attention -- if only to allay the fears that IPR "run amok" would result in a cultural apartheid of creative ideas and their execution. The concern for the regulation of information and knowledge (note the distinction I make) is reminiscent of the retentionist arguments put forth earlier this decade in the United States around repatriation of cultural property when, it was feared, historic and cultural information that had long been in the public trust would be restricted and lost to the greater good of public knowledge. In a larger argument that situates notions of the public trust within liberal democratic ideals, a critical view, and one that I take here, insists on interrogating the assumptions of "public domain" by asking "whose public?" and “by what standards of trust?"
Indigenous artists and scholars share a worldview that privileges cultural knowledge over information and place as the primary reference point for meaning and creative work. Lakota legal scholar Vine Deloria, Jr., has remarked that "American Indians hold their land -- places -- as having the highest possible meaning, and all their [artistic] statements are made with this reference point in mind" (quoted in Basso and Feld 1997). The same could be said of making art. After returning to Santa Clara Pueblo from her years of formal training in urban art centers, ceramic artist Nora Noranjo-Morse reflects how "holding that clay was the first time I ever felt a connection with something greater than myself . . . I had come home” (quoted in Abbott 1994). Likewise, contemporary Australian Aboriginal painters usually refer to the landmarks of their "country," that is, the Aboriginal territory depicted through the imagery, colors, and materials used in Aboriginal painting (viz. Sutton 1988, 118-120). As Daisy Manybunharrawuy, an Aboriginal bark painter, describes: "I still kept going at bark painting after I married. . . . My father used to tell me a story from the painting. . . . I use white clay from the beach; black from the tree from the bush . . . at Milingimbi. Milingimbi is like home -- Milingimbi is like momu [grandmother]” (quoted in Caruana and Lendon 1996). And in the public contests over who controls Indigenous land and what gets to count as "Native" art, California Wintu artist Frank La Pena asserts, "Take away Mount Shasta and there is no Wintu Art" (La Pena 1997). It is only when Western law intervenes that place becomes construed in terms of property. Reservation boundaries in the United States have already established this fact. Therefore, lifted from their sites of production (that is, place), Indigenous expressions (such as art forms) already enter the realm of property relations, and it is these relationships that cultural and intellectual property rights regulate.
Central to a discussion of place and property lies the critical issue of land rights themselves. I take the core point of land rights as a launch point to explore whether cultural and intellectual property rights have a consequence in other realms of legal practice. One way to do this is to consider how such rights shape art and how rights over art are constructed out of the rights to land, emanating from the rights to property. If construed as flowing from land rights, then Indigenous claims to appropriation of artistic designs would insist on a need for title. In order to come to terms with how western law understands appropriation as fashioned from rights to possession (Coombe 1998), it is helpful to understand how art forms move through the discursive contours of the market; because when we are talking about property law in western terms, we are essentially talking about market relations. In short, I am posing a series of questions: What are the relationships between land, art, and property? More specifically, how does art, and the cultural knowledge required to produce it, become a commodity that can be regulated by property laws? Once understood as “property,” how do commodities move through public and private spaces that give them value in both market and cultural terms?
One of the main points of this paper is that Indigenous claims to cultural and intellectual property rest upon claims to Native title that are inextricably related to the historical relations of dispossession. What Brown and others argue in a move away from extending IPR to Native ideas and knowledge is a legitimate concern that sees the commodification of knowledge as counter to cultural preservation. These arguments, while instructive, are based on a limited view of property rights as economic rights, which become privileged in the discourse around IPR. What is missing from an economic rights position is attention to the moral rights that western property regimes also embody (cf. Tsosie 1997). Furthermore, access to the law extends beyond the "bundle or rights" inherent in property law to what some theorists have proposed as "bundles of power" (J. Ribot, personal communication).
Access to the law then becomes not only a question of application, but one of authorship -- again, invoking the question, “Whose public?” At the extreme end of unequal access to the law, it could be argued that Western law itself does not extend to the variety of public constituents (e.g., Indigenous peoples) evenly or equitably. For instance, for American Indians in the United States, the notion of public trust resides with a federal trust that serves as an overarching regulator and legal artifact of U.S./Indian relations, and one that carries juridical and fiduciary responsibilities. In reading Native claims into the law, the history of legal practice in relation to Indigenous claims to cultural and intellectual property (e.g., iconography) becomes merged with the wider process of colonization as the vantage point from which the history of Native dispossession gets told (cf. Keeshig-Tobias 1997). For instance, appropriation of Indigenous iconography into state and national symbols signifies assimilative practices whereby "Native art" stands in for "Native," and is upheld by Indigenous symbols that are believed to rest in the public domain. Examples range from the Australian boomerang as a marker of Australian national identity to the appropriation of the Zia sun sign as a symbol for the state of New Mexico. In Arizona, Hopi katsinas signify "Indianness" from dry cleaners to travel agencies. In Australia, manufacturers of Flash T-shirt designs claimed the Aboriginal designs were in the public domain because they had taken them from books. Following from the Flash T-shirt case, which resulted in an out-of-court settlement for Aboriginal artists, subsequent legal decisions have ruled in favor of Aboriginal plaintiffs claiming violation of copyright. In the now famous Carpets case, a judgement was issued against Indofurn Pty Ltd., which was found to have violated the copyright of Aboriginal artists, for whom the High Court found in favor (viz. Johnson 1996). While the decision in the 1993 Carpets case recognized the rights of Aboriginal artists under the 1968 Australian Copyright Act, Australian law remains premised on non-recognition of Aboriginal Law.
In Aboriginal customary practices, the complicated proprietary rights bestowed by the Dreaming are further fragmented by collectively sanctioned use rights. Australian museums have responded to the need for "privacy rights" by creating men's rooms and women's rooms in storage facilities that house culturally sensitive objects assigned by gender. The argument for a generalized collective privacy becomes a problematic that must then consider rights to production, use rights, and proprietary rights. As I have shown in the context of representation (Berman 1998), the notion of "use rights" presents a conundrum by which tribal sovereignty at the level of government-to-government relations sometimes conflicts with the use rights of objects for which medicine people are caretakers. Extensions of collective privacy rights run counter to U.S. property regimes that are based on notions of possessive individualism and force a unitary voice in tribal claims -- such as "the Sioux."
Case law can set precedents for testing the efficacy of intellectual property rights and cultural property laws; however, Indigenous rules governing the production and "ownership" of Indigenous cultural objects often do not follow legal principles. Instead, as in the Australian Carpets case, expressions and objects are subject to community-based sanctions. In local community contexts, Indigenous knowledge bears upon cultural property claims by conferring collectively recognized forms of "precedents" and "evidence" -- enabling a form of "cultural copyright" (Pinnel and Evans 1994) as a collective right.
The flip side of public domain is privacy. For instance, property law recognizes privacy rights as flowing from rights to exclusion. In cultural property cases, customary practices govern rules for production, display, and (re)distribution. Cultural patrimony -- that is, the return of cultural objects to their originating communities -- relies on evidence based on the kinds of criteria mentioned directly above (namely, a recognition of collective rights). In distinguishing information from knowledge, it becomes quite clear that Indigenous knowledge cannot be extracted as an isolate, like a gene cell (viz. Coombe 1998). Rather, it is embedded within shifting matrices of cultural systems that include rights vested through kinship and upheld by community sanction. Extreme forms of privacy lie with "hidden knowledge" -- often the very customary practices that sanctify public representatives (such as Aboriginal lawyers or Native American spokespeople) to act on behalf of cultural groups seeking just compensation under IPR in international settings (such as the United Nations International Working Groups on Indigenous Affairs and the World Intellectual Property Organization; see Posey 1998). Forms of cultural knowledge solicited as evidence in cultural property claims may be better preserved off the record, as Indigenous peoples increasingly evoke their "right to remain silent," especially in matters of ceremonial disclosure. For instance, as Philip Minthorn, Washington State Cayuse artist, says in relation to Native claims to museum objects of cultural patrimony:
Native communities are now required to divulge sacred and esoteric forms of knowledge in order to substantiate their claim or to insure the appropriate disposition of such objects . . .without the guarantee of the protection of that knowledge. (Minthorn 1995, 11)
IPR in such cases offers no protections at the level of community-based group rights. But just as land transforms from place to property, cultural knowledge becomes information when it is taken out of its social and ceremonial contexts and becomes subject to misappropriation and legal protections. Furthermore, intellectual and property rights law requires that Indigenous knowledge stand as a kind of “evidence,” subject to the scrutiny of the public record. Examples abound in repatriation cases in the United States, where tribal elders may be asked to testify about the sacred nature of objects in cultural patrimony cases. While the 1990 Native American Graves Protection and Repatriation Act states that oral histories and cultural codes of meaning can be used to determine cultural claims to objects, the fact is that ethnohistorical, archaeological, and legal records are privileged in documenting museum collections, and in some cases, American Indian spokespeople report that Native testimony has been expunged from the historical record. In short, it’s about whose story gets told, and who has the right to tell it.
The issue of secrecy is related to silence as a way to control the flow of cultural knowledge, and in recent years, as a way to insure that Indigenous knowledge does not become a matter of public record (such as in repatriation cases). On the other hand, silence can be the result of totalizing claims to intellectual property rights and cultural property in the legal debates of who speaks for whom. For example, ways in which some customary practices are silenced lie in the erasure of women's knowledge from museum and legal records -- even where women serve as keepers of rights to Indigenous designs and re-distributors of cultural objects (Berman 1997). However, the positioning of objects within social and ceremonial life, and the position of specific individuals to objects themselves, would be impossible to untangle without considering "women's ways of knowing" -- from customary rights that govern artistic production to social divisions that allocate the distribution of goods and labor among women who stand at the center of their kin-based networks. Decision-making in repatriation claims takes place at deep community levels, where kinship and ceremonial knowledge -- through the input of Native American women -- figures prominently. By turning attention to women's contributions, we see that it is not just in the rhetoric of repatriation that women sometimes stand as spokespeople; but repatriated objects are frequently family objects, associated with family histories, clans and places of origin, where people and objects converge to create a context for cultural meanings and uses (Jackniss 1996). By comparison, Queensland Murri artists, in referencing artworks that signify their "country," make such claims in relation to homeland as a point of origin and return.
When we consider Aboriginal women's knowledge as producers and (re)distributors of goods, women's "property" takes on new significance and allows us to consider aspects of property law in more culturally relevant terms. While many of the cultural codes that inform the production and circulation of objects fall outside of the regime of U.S. property law, some aspects of common law allow us to shift the discourse of repatriation away from totalizing accounts. An example of Indigenous women's redistributive role is highlighted in the documentary film Potlatch, which shows how the return of repatriated objects symbolizes the redistribution of power relations through the transfer of title. In these ways, the redistribution of property rights through repatriation has the potential for redistributing knowledge and power in ways that are symbolized by the act of return itself. For example, Potlatch shows the Kramner family's stake in the "continuity and legitimacy of the Kwakiutl potlatch in general and the Kramner family's claim to returned potlatch items from the 1922 confiscation" (Jacknis 1996). The image of the reapportionment of repatriated objects reveals several things: First, the centrality of women is marked by the amassing and redistribution of goods and objects. Second, the social purpose of objects preserved through customary rights becomes re-empowered by a collectively sanctioned locality, in this case the Kwakuitl potlatch at Alert Bay (Harding 1997, 757).
Here we see how cultural appropriation, shown at the extreme end in the confiscation of cultural property, signals how Western law is premised on the abrogation of Native sovereignty. Sovereignty, as both a political and philosophical dimension of cultural rights, is tied to claims of Native title, whether that title is to land, cultural property, or art forms.
The above discussion -- by exploring some of the dimensions and limitations of IPR for Indigenous knowledge systems -- nonetheless suggests that where copyright infringement and IPR can uphold cultural rights to production, distribution, and use, they may also serve to reinforce Native title. Conversely, where IPR and copyright result in the commodified transformation of cultural knowledge to information bytes for public consumption, then new approaches need to be explored. For instance, in my own work with Indigenous artists, cultural rights to production and responsibilities to safeguard artistic motifs and techniques have recently come under scrutiny as the last harbors of Indigenous knowledge, where cultural codes of meaning embedded in art forms and processes of making art seek new forms of protection. Following anthropologist Renato Rosaldo (1989), I take this domain as a new "borderzone" of colonial encounter, where customary and legal practices meet (cf. McMaster 1995).
If we were to take the view that Native title to cultural and intellectual property and their expressions, such as art forms, are inextricable aspects of sovereignty, then a cultural rights argument begins to sound less like "special rights" and more like "human rights" (i.e., toward self-determination). For instance, the Australian Carpets case recognized the rights of Aboriginal artists by citing the Vietnam-based manufacturers with an infraction of copyright under the Australian Copyright Act, as mentioned earlier. In Australian case law, the Carpets case has been compared to the precedent-setting Mabo land claims, in which Aboriginal title was restored to Torres Strait Islanders. A restoration of sovereign rights through title (rather than copyright) might have invoked a broader ruling in the Carpets case, by which rights to a particular site entitle artists to the rights over images that flow from that site. From this perspective, a central issue of sovereignty gets raised: Native title (to land) cannot be alienated. The same can be said -- and U.S. law now accepts this, as in the Native American Graves Protection and Repatriation Act -- of certain cultural objects, which cannot be alienated from their caretakers and their places of origin. One of the better known cases of this involves the Zuni war gods, many of which have been returned by museums and private collectors to the Zuni tribe.
While alienation generally implies privatization, especially of land, inalienability does not conversely (or so it would seem logically) lend itself to the public domain. In the United States, the use of images, generally conceptualized as publicity rights, has been a source of contention between Native communities and commercial exploiters. In the well-documented case of the Estate of Tasunke Witko a.k.a Crazy Horse v. Vultaggio and Sons, Inc., the descendants of Sioux Chief Crazy Horse asserted "defamation, violation of the Estate's right of publicity, and negligent and intentional infliction of emotional distress (in addition to violations of the Lanham Act and American Indian Arts and Crafts Board Act)" (Newton 1997; Gough 1995). Of relevance here is that the defendants argued that the rights of publicity were in the public domain and did not constitute a violation of privacy. The case itself has yet to be heard on its merits as tribal courts and federal district courts volley for jurisdiction. The Rosebud Sioux tribe has argued that the Rosebud Sioux Tribal Court has inherent and exclusive jurisdiction over personal property rights vested in the case [US Court of Appeals for the Eighth Circuit, 1998 U.S. App.]
Given the jurisdictional problem in the Crazy Horse case, and the general trust relationship between the federal government and Indian tribes in the United States, it would seem that the "special rights" argument would be nullified by the unique legal status ascribed to Indigenous peoples, especially in North America and increasingly in Australia. This raises a host of questions that straddle the borderzone between the market and aboriginality. In hammering out legal solutions to the global concern over appropriation without compensation, it would seem that the only way to protect Indigenous creations at the points of their intersection with the market is to treat them like property. The questions unleashed by such an approach demand careful attention to power relations, local knowledge, collective and individual rights, jurisdiction, authorship, and access to the law.
In Australia, I have so far observed that the possibilities to amend copyright laws to better address Aboriginal concerns about appropriation of creative works are moving at a steady if not snowballing rate -- despite recent setbacks in land title victories, such as the Wik land settlements that followed on the heels of the Mabo Land Claims victory , and the seemingly slow process of hammering out new policies. Indigenous organizations are at the forefront of these movements --especially as they link land rights to rights over art. While the tome of legal briefs in Australia has nowhere reached U.S. proportions with respect to a body of case law analogous to Federal Indian law, I think that the opportunities for including intellectual and cultural property protections into a revised "bundle of rights" in property law may be better positioned in Australia at this time when land rights have merged with cultural rights. In this light, the re-thinking of "property" will force new sets of questions to the fore: Not rhetorically "Can culture be copyrighted?" but more practically, "How will Indigenous peoples write themselves into the law?" Questions of privacy and secrecy as matters of Indigenous knowledge may yet find protections, if public domain is not just a playing field for commodifying Indigenous knowledge, and the rule of law is not just a matter of public opinion.
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