AALS Section on Law and Anthropology, part four

2006 AALS Meeting, Jan. 6
Section on Law and Anthropology
A Cultural Analysis of Intellectual Property

Alexander Bauer, an anthropologist from the School of International Affairs at George Washington University, bravely ventured among the lawyers. He spoke about the lack of protection for cultural property.

Cultural appropriation, mutilation, and commercialization are all threatening to traditional cultures, which are swept up into fusion cuisine and world music and the like. In the past, cultural protection policy has overemphasized tangibles and ownership, as with the Elgin Marbles. “Cultural heritage” may be a better term than “cultural property” for explaining the subject of concern. IP rights are also not good enough, because their time and scope limits leave too much in the public domain for others’ appropriation.

UNESCO requires states to draw up lists of cultural resources and make plans to protect them. But the intervention of law can destroy what it’s supposed to preserve. State policies often require the definition of authentic culture and the adoption of correct practices, which can destroy the practices of those who don’t quite meet the standards of official approval and can calcify an evolving culture.

One example is the Indian Arts & Crafts law, which essentialized the notion of Indian artists, excluding people without official tribal memberships, and also essentialized appropriate subjects for Indian art. Law tends to lead to objectification and commodification of what was supposed to be protected. (Similarly, I wonder whether the greater identifiability and manipulability of artifacts pushes cultural preservation policy in the direction of identifying things rather than practices.) What’s particularly painful about this is how preservation isolates art from dynamic change, the kind of creativity that produced the tradition in the first place.

What are the interests we want to protect? (1) Control (authenticity, integrity, secrecy/sacredness); (2) acknowledgement or proper credit; (3) just compensation – this last is often not as important or is valued only in reaction to perceived Western rapaciousness.

What are the solutions? IP, as noted above, fails because it protects individual rights in specific, novel creations for limited times. Sui generis laws? They struggle with cultural changes and with who’s authorized to do what. Defensive disclosures and prior art databases can at least help with interest (2) and parts of (1). But even proper credit is dicey – oftentimes neighboring groups have competing claims to the same knowledge. Moral rights legislation, as proposed in Australia? That would address (1) and (2).

But what gets lost is that culture always moves, for all that people are committed to the version they know. It is difficult and often detrimental to compartmentalize cultures, which are often products of contact with others, as the use of tomatoes in Italian food or wool for Navajo blankets shows. Law may not be the answer.