[Reader-list] Understanding the Patenting of Traditional Knowledge-In response

Danny Butt db at dannybutt.net
Wed Jan 28 16:52:43 IST 2004

Kia ora all

Thanks Aarathi for the post and Jeebesh for the excellent response, which I
think is a very important field of research.

An area I'm very interested in at the moment is the relationship between
Western discourses of 'freedom', particularly among white settler cultures
in relationship to indigenous knowledge-management. A few quick points I
think are worth exploring:

1) Open Source emphasises freedom of a particular kind: the absolute freedom
of use and circulation. This particular conception of freedom as absolute
mobility emerges from the particular social arrangements and spatial
imaginary of the US nation state [1]. While considering that, it's worth
holding in mind the very different conceptions of mobility and freedom held
by the people of that land before European colonisation. As Amartya Sen puts
it, "There is a deep complementarity between individual agency and social
arrangements."[2] For these reasons, while there are many aspects of Open
Source I support, I question its ability (and its *desire*) to provide a
framework for quite different struggles for informational control (which
have little to do with computer programming :7) in different locations.

2) My discussions in First Nations/Indigenous contexts in Aotearoa/New
Zealand and Australia suggest to me that Indigenous Peoples do have a desire
for *control* over their knowledge, information and culture, which is more
than just about freedom to use it. Jeebesh's notes state that:

> Critical to recognise here is that the IP protected materials and processes
> cannot by REPRODUCED by other producers and neither can they be MODIFIED.
> This basic value of IP protection goes against the foundation of the
> protocols in which these earlier forms of knowledges evolved and survived.

I don't think this can be argued for all forms of traditional knowledge. In
an excellent essay on Indigenous Sovereignty, Ned Rossiter notes that
indigenous cultural policy researchers in Australia have argued that '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' [3]. Eric Michaels' work succinctly
outlines a similar argument[4]. While in Aotearoa the cultural history is
different, the theme remains similar. The link of Indigenous "Intellectual
Property Regimes" or Traditional Resource Rights to customary control
[Kaitiakitanga - more like guardianship] of land is particularly important
in Australia and NZ.[5]

3) If I can freelance out of my philosophical depth a little :7, I think
there is an error in trying to disembed knowledge from its practices of
circulation. If knowledge is a relation - a signifying practice that is
situated in a particular context - the method of circulation is constitutive
of what that knowledge "is", and is part of what gives it its use-value.

We're used to seeing restraint on information circulation in the West as a
way of making an artificial scarcity for commercial gain (the IP model). I
would argue that in the Australasian context indigenous desires to restrict
knowledge circulation are not necessarily about commercial gain, but are
essential for maintaining that knowledge. That is to say, while many forms
of Western knowledge gain value through circulation, indigenous knowledge
may in some instances be devalued by unrestricted circulation and
modification. That is not to say the cultures maintaining this knowledge are
"fixed" or "frozen end users" in the way Jeebesh suggests. They have their
own logic of maintenance and development which is continually evolving. But
that evolution may require the exclusion of users who do not have culturally
determined responsibilities to maintain that knowledge.

4) At an empirical level, multinationals seem to desire the knowledge of
indigenous people more than those people desire the intellectual property of
multinationals :). So far.

4) The interesting issue is that open source cannot always be seen in this
context as politically progressive. Given that so many of it's supporters
are obssessive gun-toting gringo libertarians, not to mention overwhelmingly
male, that should not be surprising :). Which is not to say the OS movement
doesn't have an important role in disrupting the inequities of transnational
capitalism increasingly articulated through IPRs, particularly in Western
markets. But there are cultural limits to its applicability. To suggest
otherwise is, from my perspective, to put Open Source's *idea* of freedom in
conflict with this area's very immediate struggles to indigenous
self-determination (another freedom). I think similar questions arise
between European activist philosophy's critiques of "sovereignty" and the
very real appeal the term holds among indigenous cultural activists. I'm
looking forward to the discussions along those lines.



[1] See http://www.opensource.org/docs/history.html

[2] Amartya Sen (1999) Development as Freedom, Anchor: New York

[3] Morris and Meadows, quoted in Rossiter, Ned (2002) "Modalities of
Indigenous Sovereignty, Transformations of the Nation-State, and
Intellectual Property Regimes" Borderlands ejournal 1(2)

[4] Eric Michaels, Bad Aboriginal Art. Tradition, Media, and Technological
Horizons. Minn.: University of Minnesota Press, 1994.

[5] See information from the Waitangi Tribunal on the Wai 262 legal claim
for Maori control of customary knowledge and resources (Matuaranga Maori and


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