[Nettime-bold] Intellectual Property Regimes and Indigenous Sovereignty

Abstract. This paper situates intellectual property regimes as a condition of possibility for indigenous sovereignty movements within Australia. I argue that rational consensus models of democracy have failed to accommodate the interests of indigenous peoples. While surpranational entities such as UNESCO have been able to confer a degree of political legitimacy upon indigenous peoples, I maintain that this has failed to articulate with the national form in the process of renationalisation. I suggest that intellectual property regimes offer an Aboriginal polity the opportunity to reassert claims for self-determination in the national form in as much as the political subject of Aboriginality is positioned in the first instance as an autonomous economic actor as distinct from a political subject. Such positionality then enables political and cultural issues to be fashioned within the realm of intellectual property law, as distinct from an exclusive focus on international human rights law.

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In recent years indigenous sovereignty movements in Australia have achieved some degree of success in supranational fora such as UNESCO, who have recognised claims of human rights abuse and cultural heritage violations as legitimate. However, the legitimacy indigenous people have obtained as partially denationalised political subjects has failed to articulate with the national form, particularly under the right wing conservative administration of the Howard Government. Arguably, the possibility for Aboriginal sovereignty has reached an impasse within rational consensus models of democracy, since the claims made by the Aboriginal and Torres Strait Islander Commission (ATSIC) - the political body that represents indigenous indigenous interests - constitute an antagonistic field of practices with respect to the cultural, ideological and political economy of government and the business and electoral interests that it represents.

It is precisely this antagonistic dimension of political relations that constitute the Aboriginal polity as an enemy of the state in so far as the contemporary liberal democratic form across Western nation-states is defined by Third Way politics, which functions by eliding 'the violence that is inherent in sociability' as it seeks to obtain consensus beyond the traditional oppositions between the Left and the Right (Mouffe 2000: 134-35; Scanlon 2000). Despite recent literature on globalisation that suggests the sovereignty of the nation-state is in decline, the current condition of an Aboriginal polity indicates that battles over sovereignty are considerably more complex, with the nation-state better understood as undergoing a process of transformation rather than obsolescence. As political philosopher Carl Schmitt (1996) maintains, 'Sovereign is he who decides on the state of exception'. Within political discourse, claims by the Aboriginal polity for self-determination have in many respects come to occupy a state of exception, a space of exclusion.

As long as indigenous sovereignty movements see land rights as adjacent to territoriality and the concomitant economic, social and cultural benefits which flow from this, the nation-state will also persist as a territorial entity. However, this modern conjunction between territoriality and sovereignty may in all likelihood leave indigenous peoples as stateless entities, residing in a sort of non-place as partially denationalised political subjects, as their appeal is to an older paradigm of statehood. The condition of an emerging reconfigured statehood is premeditated to a certain degree in a number of ATSIC documents, which seek to establish a basis for sovereignty by addressing the issue of "digital rights", and the need to instigate intellectual and cultural property laws and structural reforms pertaining to a field of informational economies (see ATSIC 1989; ATSIC 1999).

This paper examines the possibility of relative sovereignty for indigenous Australians within informational economies. Intellectual property regimes, while dependent on the administrative capacity of the state, are nevertheless independent to a considerable degree of the political interests of the state. Furthermore, intellectual property regimes increasingly operate within extraterritorial dimensions as the staple of informational economies is manifest as digital code. I suggest that within such a network of relations, the political subject of Aboriginality holds greater purchase on the state, since Aboriginality, as a sign of social practice, is positioned as an economic actor within the realm of intellectual property law, as distinct from the denationalised realm of international human rights law. Arguably, the potential for a process of renationalisation is greater, since the moral, cultural and political values associated with international human rights law, and the threat they pose to the habitus of the state, do not prevail to any great extent within codes of intellectual property law. At the same time, this presents a different challenge for an Aboriginal polity that seeks to maintain the specific material conditions of Aboriginal cultural life as that which also pertains to concepts of intellectual property. As Christine Morris and Michael Meadows (2000: 213) argue, 'the concept of intellectual property has been a defining characteristic of Indigenous culture from the beginning. It determines intellectual property rights and responsibilities, identity, and each person's place in society in relation to the [customary] law'.

'Because informationalism is based on the technology of knowledge and information', writes Manual Castells (1996: 18), 'there is a specially close link between culture and productive forces, between spirit and matter, in the informational mode of development'. John Frow (2000) offers important qualifications to Castells' conceptualisation of informationalism, arguing that information is embodied as knowledge once it is articulated with social needs, and manifests in a variety of forms that are governed by regimes of value and techniques of control. Frow writes:

'I understand information to be any organization of matter-energy, and I assume that it is not necessarily representational in form. Knowledge would then be a higher level of information 'that has been systematized and integrated, organized so that it is relevant to natural and social processes'. In the domain of production, it takes the form of embodied skills, of organization of the production process, of the design of tools or machinery, of scientific knowledge about materials, of software algorithms, of techniques of use of materials, and of reflexive control of processes and of agents. The attribution of value to knowledge, which underpins the changes that Castells, like many others, describes, is closely bound with its functions of control.' (177)

As Edward Herman and Robert McChesney (1997: 51) note, 'Along with pharmaceuticals, media and computer software are the primary topics for global intellectual property rights negotiations'.[1] The World Trade Organization (WTO) is a key player within intellectual property regimes. The WTO's Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) in 1995 sought to protect the commercial interests of Western pharmaceutical and media companies from countries, most notably China and Africa, engaged in software piracy and abuse of copyright and patent law. The TRIPS agreement sets out minimum standards for how member states engage with copyright, patents (including plant variety protection), trademarks, geographical indications, industrial designs, and undisclosed information such as trade secrets.[2] Critics of the TRIPS agreement have also pointed out 'that transnational corporations own approximately 90% of technology and product patents in the world, and up to 80% of technology and product patents in developing countries' (Dommen 2002: 26).

Essentially, the TRIPS agreement can be seen to inscribe a regime of scarcity upon that which is otherwise undiminished through distribution in order to endow a digital product, for instance, with exchange value within informational economies. Thus it is fairly easy to anticipate the techno-civil libertarian response to proponents of intellectual property rights: within a commercial global media complex characterised by monopoly ownership and flexible production, intellectual property rights as manifest in copyright and patent law are seen as restricting access to cultural forms that had previously existed as part of the public commons. Furthermore, the notion of proprietary control of immaterial forms such as information and knowledge is considered to drastically diminish the potential for the reproduction of creativity and innovation. As Frow (2000: 183) writes: 'a private property regime imposes potential limitations on the extent to which cultural material can be freely used and transformed'. All intellectual property has impacts on reproduction, and there are very long-standing treaties in the area of copyright like the Berne Convention, which has been through various revisions since the late 1800s. So, while the effect of the TRIPS agreement is not new, it accentuates the restrictions on the use of cultural material into the realm of informational societies. The privatisation of the public commons also results in the removal of public accountability mechanisms, further alienating the democratic potential of the internet, which is the primary medium for the distribution of digital products.

Intellectual property regimes have been contested by numerous entities, including open source movements, particularly those involved in software development, which depends on the collective intelligence of and labour upon a source distributed through computer networks in order to refine and improve upon the source code of a particular software program (see Stalder 1999, 2000, 2001a, 2001b; Fibreculture; Nettime; Open Flows; Pfaffenberger 2001). However, while these are arguments and practices that I would support, they are not principles that can be applied in universal terms. One key and surprising aspect often overlooked in techno-libertarian tracts on open source distribution concerns the way in which the cultural technology of the net - its capacity to distribute and share information within a gift economy - is assumed to correspond to universal access and the maintenance of a democratic civil society. That is, the problematic of cultural capital and the necessary institutional supports that endow actors with the requisite cultural knowledge and skills to access information is rarely, if ever, taken into consideration. To unequivocally uphold all critical rebuttals of intellectual property regimes would overlook the ways in which intellectual property rights, when balanced between economic interests and public access, enable indigenous peoples and people in developing countries the potential to secure their cultural and intellectual resources within network or informational societies.

The sort of rights the Aboriginal polity seeks to obtain vis-à-vis self-determination and relative autonomy can, it would seem, operate to certain degrees within informational modes of production. Moreover, in pursuing intellectual property rights, an Aboriginal polity would, I think, be more strongly articulated with the nation-state as it too undergoes transformation at extraterritorial, immaterial levels via the discursive, legalistic, security and commercial regimes of intellectual property. Micro technologies of control, surveillance and regulation of the internet in the form of server protocols, cookies, authentication codes and software - what Lawrence Lessig (1999) calls the architecture of the net - that monitor user practices have brought nation-states into partnerships with each other as they seek to maintain databases and information networks that store information on clients and "citizens" within their territories (see Castells 2001). This sort of sharing of power between states for security and economic purposes is an example of what Martin Shaw (2000: 185-91) calls a "pooling" of sovereignty - a mode of economic as distinct from juridical sovereignty in which states have adjusted to the new techniques of control within informational societies, operating through mutual affirmation and legitimacy conditioned by overlapping interests. Corporations in turn have depended on such pooled sovereignty by nation-states, and the regulatory practices of nation-states themselves, as a mechanism by which the protection of intellectual property rights can be enforced by way of accessing information regarding intellectual property violations. Current developments in encryption methods by corporations embed code with default boundaries, further ensuring the territorialisation and regionalisation of intellectual property with copy-protection code of CDs, DVDs and software, for example, that registers infringements to property ownership as it occurs within the space of that nation (see Stalder 2001b; Sassen 2000). Hence offences can, in theory, be tracked and then prosecuted under national law as it corresponds to minimum standards of protection set out in the TRIPS agreement. Examples such as these evidence the ways in which the sovereignty of the nation-state is undergoing reconfiguration within an informational plane of abstraction.

Within this strange context, I would suggest that claims for Aboriginal sovereignty hold greater potential since political legitimacy can be better obtained from the position of being an economic actor operating on the same plane of abstraction as the corporate-nation-state nexus. In this sort of arrangement, an Aboriginal polity is not in the first instance articulated with property ownership in the form of land and ocean rights; rather, the political subject of Aboriginality is situated as an actor with proprietary rights in the form of cultural heritage and its mediatisation, ecological and biological knowledge. Intellectual property translates into commodity objects whose form is decoupled from the moral, legal and proprietary discourses associated with the quest for indigenous sovereignty in the denationalised realm of human rights law, which, for the most part, has failed to articulate with the liberal democratic frame of the nation-state precisely because rational consensus models of democracy have proven to be inadequate in accommodating a plurality of interests.

While such a potential for Aboriginal sovereignty may seem exclusively extraterritorial and hence politically ineffective, it still operates at a territorial level within the bounds of the national form since intellectual property regimes work to reinforce national borders by encoding the equivalent of scarcity into informational economies. Remuneration from the commercial use of indigenous intellectual property could then be redirected to meet the social and economic needs of the communities that initiated that transferral of culture and knowledge into the electronic form of digitally encoded information, for instance. In so doing, an Aboriginal polity becomes articulated with modalities of economic sovereignty, as distinct from the mythic figure of popular sovereignty and the politically inoperative legitimacy granted by human rights law. However, there are considerable concessions that come with such an approach to the problematic of indigenous sovereignty, and I will conclude by briefly addressing some of the issues.

This very rough sketch of how claims for Aboriginal sovereignty might proceed within an informational economy overlooks the many complexities that attend debates, policies, technological capacities and cultural practices within the field of intellectual property regimes. A primary issue within intellectual property rights that is immediately at odds with the principles of indigenous sovereignty concerns the conceptual and legalistic limitations of Western models of intellectual property where primacy of the individual in the form of authorship is granted over the collective (see Dommen 2002; Frow 1997). As stated in an ATSIC submission on intellectual property rights to UNESCO:

'Intellectual property laws do not protect the communal rights of indigenous peoples, nor do they allow for protection in perpetuity. Intellectual property laws are based on individual rights, and emphasise economic over cultural rights. These laws focus on a single, identifiable creator or author, whereas in indigenous communities rights and interests in intellectual creations are more diffuse. They are distributed and managed throughout the community in complex ways according to ritual, socio-political, kinship and affinal relationships'. (Thomas 1999: 6)

This document, prepared by the Indigenous Cultural and Intellectual Property Task Force, can been seen here to essentialise that which constitutes an ontological condition of Aboriginality. While there is a well documented history of the experiences of alienation by indigenous peoples from a Western metaphysics of individualism, contemporary indigenous subjectivity nevertheless traverses both the specificity of Aboriginal cultural heritage as well as cultural paradigms and institutional settings of non-indigenous society. Yet this sort of reduction of Aboriginality to a communal identity is precisely the sort of tactical move that needs to be made in the language game of supranational politics and international intellectual property law in so far as it preserves some of the key principles of Aboriginal sovereignty.

This ATSIC submission is notable for a number of other reasons, a key one being the recognition of the place of intellectual property issues within informational economies well before the popular uptake and commercialisation of the internet. ATSIC very strategically seeks in that document to pursue customary law that maintains specific cultural practices at territorial levels, but it does so within an extraterritorial framework of economic sovereignty and intellectual property law. In so doing, an Aboriginal polity may, it seems, have stronger purchase on the state than it would if human rights law remained the exclusive avenue through which indigenous sovereignty was pursued. The process for undertaking such a multilayered sociopolitical formation is outlined in the following way:

'Since indigenous cultural and intellectual property is defined, managed and controlled in accordance with customary law, it may be argued that the development of effective standards should focus on protecting customary laws *in the first instance* - on the assumption that recognition and protection of intangible heritage can then flow from that as a consequence of the recognition of customary law'. (Thomas 1999: 5-6. Italics added)

Since the time of this submission in 1989, an Aboriginal polity has been legitimated within UNESCO fora. But the legitimacy granted within a denationalised realm of human rights law has failed to articulate with the national form. Hence, one potentially useful strategy for Aboriginal sovereignty would be to reverse this process, and seek recognition of customary law within the nation-state once intellectual and cultural property rights have been secured. In so doing, an Aboriginal polity is operating well and truly within the dominant neoliberal paradigm which sees the welfare state further eroded. Although this is not a foregone conclusion. Maybe the relationship between the state and the social can be reconstituted in the process of negotiation that attends the status of becoming a legitimate political and economic actor within the supranational realms of both human rights fora such as UNESCO and entities such as the WTO that set the agendas for trade agreements in informational economies. It is within the encounter between denationalised corporations, extraterritorial dimensions of statehood, and the partially denationalised political subject of Aboriginality, along with the manner in which this encounter is then materialised in the national form that conditions for what Chantal Mouffe (2000) terms an 'agonistic democracy' might then emerge.

Acknowledgements

I would like to thank Andrew Kenyon, Marcia Langton and Geert Lovink for directing my reading on intellectual property regimes.

Notes

1 For a history of intellectual property law, see Susan Sell and Christopher May (2001). A particularly helpful resource on intellectual property law can be found on the Center for the Public Domain site, http://www.centerforthepublicdomain.org/ip.htm

2 For an outline of intellectual property regimes as they figure within the TRIPS agreement, see the following WTO documents: 'Intellectual Property: Protection and Enforcement', http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm6_ehtm and 'Overview: the TRIPS Agreement', http://www.wto.org/english/tratop_e/trips_e/intel2_e.htm

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