Kermit Snelson on Mon, 14 Oct 2002 13:42:28 +0200 (CEST) |
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RE: <nettime> Certified Italian...and the some: CGIAR |
> BTW, is there some confusion over Bio-IPR? The struggle > against UPOV, i.e. the discrepancy between the rights > of commercial plant breeders and (indigenous, peasant, > 'traditional') 'farmers rights' has very little to do > with Berlusconi's culturalist fantasy of authenticity Actually, I see very little difference in substance between Berlusconi's state-assisted scheme to shake down the world's Italian restaurant industry and the national certification trademark, or "Label of Authenticity", obtained in 1999 by Australia's Aboriginal and Torres Strait Islanders [1]. Money, politics and popularity aside, how is their concept of "authenticity" any less a "culturalist fantasy" than Berlusconi's? There's nothing inherently wrong, of course, with building brands in the marketing of souvenirs to tourists, especially if it advances the worthy causes of promoting Indigenous cultures and providing disadvantaged communities with a source of income. That's not what I'm concerned about. The danger is when the theory behind a harmless trademark based on a tactical ethnic fiction metastasizes into a massive revision of international IP law intended to usher in a new world regime of "agonistic democracy" based on legally encoded tribal and racial identity. That's exactly what Ned has proposed, drawing the same thinkers (Carl Schmitt and indirectly Georges Sorel, intellectual hero to both Schmitt and Mussolini) who were instrumental in the founding of capital-F Fascism in the 1910s and 20s. The modern versions of such proposals are especially suspect when used as part of a cynical "let them eat IPRs" strategy aimed at cutting public funding for NGO humanitarian foreign aid and human rights programs, accompanied by Reaganesque "help only breeds dependency" arguments. Is it any wonder that President Berlusconi has been among the first to sign up for this brave new world? Although the ideas in the text that Soenke forwarded concerning the Bio-IPR issue are not nearly as radical or crude as Ned's, they also worry me. The legal status of traditional knowledge, especially in medicine and agriculture, is a politically complicated problem and the eventual solution will inevitably incorporate elements from many ideological persuasions. However, I would hope that all but the most mercenary are repulsed by the fact that patents have recently been granted on such things as Basmati rice and the use of turmeric on wounds. I'm very happy that these two particular examples were eventually overturned by legal action which proved that both "inventions" had been part of traditional cultures for millennia, and were therefore in the public domain. But the text forwarded by Soenke does not celebrate this concept of cultural public domain, but explicitly attacks it. One of the citations, in fact, even seems to equate "public domain" with the racist "terra nullius" doctrine overturned by the Australian High Court's 1992 _Mabo_ decision. It also attacks the international institutions that were set up to collect and catalogue the Earth's genetic "prior art" expressly so that only inventions, not discoveries, may be patented. So why does the text oppose this effort? Because of a "farmers' rights" concept apparently based on the idea that an organism's DNA sequence may be studied by scientists, and released to the public domain, only with the "prior informed consent" of those people who are biologically descended from the purportedly original inhabitants of the area(s?) to which the organism is native. In other words, biologists who discover, collect and catalogue species without first consulting and reaching accommodation with the local controlling tribal authorities are now considered thieves. Unfortunately, the "prior informed consent" doctrine built into the Convention on Biological Diversity has already led to the sad result that anyone with common sense could have predicted: some biologists have been arrested by local militias, their collections destroyed, and otherwise prevented from doing science. Some scientists have left field biology entirely. And in their absence, forests have fallen to loggers and many species have been, presumably, lost forever [2]. Now imagine that this depressing, IPR-induced scientific, cultural, and environmental catastrophe has been extended, as Ned proposes, to form the basis of the post-governmental world polity itself. Can one imagine a more politically messy, if not noxious, basis for a legal regime? How are all these things to be defined and enforced? What's "native"? Who are, or were, the "original" inhabitants? Who today are their descendants? What do we do when disputes break out over which group or clan represents the "real" indigenous inhabitants, thus possessed of the "authentic" hereditary and cultural credentials necessary to claim billions in, say, Pfizer royalties? Meanwhile, back in the courts, expect the most egregious festival of politically-motivated concerns with genetic and cultural "authenticity" since the days of the Third Reich. Carl Schmitt, who also didn't believe that science is neutral with respect to "economic, sociopolitical and geographic situatedness" and who consequently wanted all scientific books written by Jews to be labeled as such, would be proud. What could be more likely to impede the progress of science and technology, or less likely to promote harmony among different cultures, than a scheme that would monetize the exchange of knowledge and culture across tribal and racial lines? But then again, another recent post to nettime has condemned Darwinism. Another has condemned the use of GPS-assisted precision farming. Another has equated NGO efforts to educate people in developing countries, even about avoiding land mines, with "colonialism" and, comically, "the neoliberal technique of outsourcing." Lastly, it has been advocated here that no knowledge or values are universal, cultures inherently clash, and that all these ideas must be written into public law as a Schmittian "agonistic democracy". I am therefore led to suspect that these two anti-modern, anti-liberal and anti-scientific side effects I'm warning about may actually be the goal of this movement, just as they were Schmitt's. Even if well-intentioned, however, such thinking would then betray a lack of scientific, political, and intellectual sophistication, inability or unwillingness to follow trendy premises to their logical conclusion, a malaise-induced rights-speak that gives up on intercultural sharing, dialogue and reconciliation in favor of adversarial litigation, and a potentially tragic failure of historical memory. > it is not clear to me how the terms of resistance to > hegemonic forms of proprietarization could be determined > in some kind of juridical vacuum - just-say-no-to-IPR is > simply not an option for a lot of actors in this area, > even though the struggle to expand the 'public domain' > (i.e. contest its enclosure) of biological material > continues. Fair enough. Pragmatism and realism are good things. But it doesn't mean "if you can't beat 'em, join 'em." Nor does it mean that one can fight the enclosure of knowledge with a concept of incorporeal property far more expansive than the wildest dreams of one's opponents, to the point that it can support tribal ownership of entire cultures, including the DNA of their living components, in perpetuity. One cannot effectively fight for the concept of public domain on one hand and equate it on the other with the racist, discredited doctrine of "terra nullius." One cannot fight racism with the doctrine that ideas themselves are racial, not universal, and should circulate only subject to racial control. And one cannot build a theory of democracy using the very same books that were used to construct historical Fascism and Nazism. Tactics only go so far. Kermit Snelson Notes: [1] http://www.niaaa.com.au/label.html [2] http://www.nytimes.com/2002/05/07/science/earth/07TREA.html # distributed via <nettime>: no commercial use without permission # <nettime> is a moderated mailing list for net criticism, # collaborative text filtering and cultural politics of the nets # more info: majordomo@bbs.thing.net and "info nettime-l" in the msg body # archive: http://www.nettime.org contact: nettime@bbs.thing.net