Current Anthropology Volume 39, Number 2, April 1998
 1998 by The Wenner-Gren Foundation for Anthropological Research. All rights reserved 0011-3204/98/3902-0002$2.50
Sometimes profound changes in the Zeitgeist reveal
themselves in small ways, like the first timid shoots of
an oak seedling before it hauls itself skyward. For me,Can Culture Be an article in the monthly New England Archivists
Newsletter, a publication presumably unfamiliar to
Copyrighted?1
most anthropologists, signaled a potentially momentous
change in the future of our discipline. The article,
written by Elizabeth Sandager of Harvarďs Peabody
Museum, describes a situation common to museumsMichael F. Brown
and archives in the United States: the museum's staff
discovered in its collection several drawings of Navajo
dry paintings (referred to in the article as ``earth images'')
made by the anthropologist A. M. Tozzer early in
The digital revolution has dramatically increased the ability of in- this century. Aware that the original images on which
dividuals and corporations to appropriate and profit from the cul- Tozzer based his sketches are traditionally destroyed at
tural knowledge of indigenous peoples, which is largely unprothe
end of Navajo healing rituals, the Peabody staff wor-tected by existing intellectual property law. In response, legal
ries that the drawings' continued presence in the collec-scholars, anthropologists, and native activists now propose new
legal regimes designed to defend indigenous cultures by radically tion constitutes a form of disrespect. Worse still, the
expanding the notion of copyright. Unfortunately, these propos- drawings could have come as the result of a violation of
als are often informed by romantic assumptions that ignore the contemporary privacy norms (Sandager 1994:5):
broader crisis of intellectual property and the already imperiled
status of the public domain. This essay offers a skeptical assessEverything
that happens in ceremony is privy onlyment of legal schemes to control cultural appropriation--in particular,
proposals that indigenous peoples should be permitted to to those who are participants in the ceremony: the
copyright ideas rather than their tangible expression and that singer, the assistants, the sponsor, the family, and
such protections should exist in perpetuity. Also examined is the
the patient. . . . We are attempting to determine thepronounced tendency of intellectual property debate to preempt
circumstances under which these earth image recon-urgently needed reflection on the political viability of specialrights
regimes in pluralist democracies and on the appropriate- structions were created, and whether privacy was
ness of using copyright law to enforce respect for other cultures. breached. . . . Even though Tozzer did not describe
the circumstances under which the reconstructions
michael f. brown is the James N. Lambert Professor of An- were created, it should not be assumed that they
thropology and Latin American Studies at Williams College. Edu- were created surreptitiously. On the other hand, if
cated at Princeton University (A.B., 1972) and the University of
they were, there remains the possibility of a seriousMichigan (Ph.D., 1981), Brown has taught at Williams since
breach of privacy.1980. His research interests include ritual and religion, human
ecology, economic development, and emerging forms of indigenous
identity. He is the author of three books about Amazonian Because the Tozzer material is in a poor state of conserIndians,
most recently War of Shadows: The Struggle for Utopia
vation, Sandager explains, the museum is seeking thein the Peruvian Amazon (Berkeley: University of California
advice of Navajo consultants before deciding whetherPress, 1991), coauthored with Eduardo Fernández. Brown's ethnographic
research among American spirit-mediums, described in the drawings should be restored or, she implies, quietly
The Channeling Zone: American Spirituality in an Anxious Age allowed to decompose. Sandager presents this case as an
(Cambridge: Harvard University Press, 1997), led to his current example of the responsibility of professional archivists
interest in cultural appropriation and proposed schemes to conto
``consider whether we are violating the privacy of thetrol it. The present paper was submitted 14 iv 97 and accepted
affected tribe(s) by providing unrestricted access to doc-7 vii 97; the final version reached the Editor's office 12 ix 97.
uments describing traditional beliefs and ceremonies''
(p. 5).
Sandager's thoughtful reflections raise a host of complex
issues: research ethics and the nature of informed
consent, respect for religious beliefs, and concepts of
ownership at a time when indigenous intellectual property
rights are the focus of lively international debate.
Although her article asks vital questions, it conspicuously
evades others. If the Tozzer papers are found to be
1. My research on copyright and cultural appropriation was made objectionable, for instance, should they not be sumpossible
by the financial support of Harry C. Payne, president of
marily destroyed rather than simply allowed to biodeWilliams
College, and by the Francis C. Oakley Center for the Hugrade?
She mentions that the drawings have long sincemanities and Social Sciences. Colleagues kind enough to comment
been published in a book. If a logic of ethical quarantineupon an earlier draft include Sylvia Kennick Brown, David B. Edwards,
Eduardo Fernández, Jonathan Haas, John P. Homiak, Gary applies to the drawings, then why not to all known copJ.
Jacobsohn, William L. Merrill, Molly H. Mullin, Sydel Silverman, ies of the book, which is, after all, more readily availMark
C. Taylor, and Alan Wolfe. Two anonymous reviewers also
able to the general public?provided many helpful suggestions. Because some of these readers
Then there is the question of privacy. In Anglo-Amer-vigorously dispute the analysis offered here, my thanks for their
help in no way implies their endorsement of my opinions. ican law, privacy rights cease or become significantly
193
194 current anthropology Volume 39, Number 2, April 1998
attenuated when individuals die. Because Tozzer con- dealing with religious matters. Chairman Masayesva
additionally requests the immediate closing of theseducted his field research at the turn of the century, it is
unlikely that any of the principals are alive today. In records to anyone who has not received written authorization
from the Hopi Tribe. ``This request,'' he adds, ``iswhat sense, then, does the presence of Tozzer's notes
and drawings in the Peabody collection violate individ- meant to address the `last minute rush' by researchers
to access Hopi information and collections before theyual privacy? Or do native societies enjoy an implicit
right of collective privacy to which the museum should are declared `off limits' or are actually repatriated back
to the tribe.'' (For a longer excerpt from the letter, seebe attentive, a situation implied by Sandager's stated
concern for ``the privacy of the affected tribe(s)''? Haas 1996:S4.) The Hopi initiative was soon followed
by a declaration issued by a consortium of Apache tribesFinally, what of the rights of A. M. Tozzer, who presumably
bequeathed his fieldnotes to the Peabody on demanding exclusive decision-making power and control
over Apache ``cultural property,'' here defined asthe assumption that it would curate them and make
them available to researchers? Wouldn't the Peabody's ``all images, text, ceremonies, music, songs, stories,
symbols, beliefs, customs, ideas and other physical anddecision to limit access to these materials or knowingly
permit their deterioration violate the museum's fidu- spiritual objects and concepts'' relating to the Apache,
including any representations of Apache culture offeredciary responsibility to Tozzer and to his descendants?
After all, had Tozzer known that such a fate could befall by Apache or non-Apache people (Inter-Apache Summit
on Repatriation 1995:3). This broad definition of cul-the record of his life's work, he might well have taken
his collection elsewhere. Could this act of passive cura- tural property presumably encompasses ethnographic
fieldnotes, feature films (e.g., John Forďs Fort Apache),torial destruction lead future donors to bypass public repositories
in favor of private collectors, thereby contrib- historical works, and any other medium in which
Apache cultural practices appear, whether presented lit-uting to the privatization of the human cultural record?
As Sandager's article makes clear, archivists and cura- erally or as imaginative, expressionistic, or parodic embellishments
of concepts with which Apache identify.tors routinely confront an ever-widening series of dilemmas
in the wake of the Native American Graves The recent history of relations between Indian tribes
and major Anglo-American institutions, including theProtection and Repatriation Act (NAGPRA) of 1990, arguably
the most important piece of museum-related federal government, suggests that these encyclopedic
demands represent an opening gambit in what are likelylegislation in American history. NAGPRA establishes a
legal framework for repatriating human remains and rit- to be protracted discussions. The Hopi and Apache declarations
echo similar manifestos from other parts ofual objects to Indian tribes that request them, provided
that claimants can substantiate direct descent or, in the the world, including South America, Australia, and the
Pacific.3
Clearly, a profound shift in the way we concep-case of objects, prior ownership. The implementation of
this legislation, which imposed substantial administra- tualize and contest cultural information is under way.
The assumptions that inform this emerging perspectivetive burdens and was in some quarters regarded as disastrous
for the future of American museums, has now be- can be summarized as follows:
1. An ethnic nation--a people, in other words--cancome a routine part of museum practice. In fact, many
curators hail it as the first step in a historic reconcilia- be said to have enduring, comprehensive rights in its
own cultural productions and ideas. These include thetion between native peoples and museums, a process
that may lead to new and rewarding partnerships.2
right to exercise total control over the representation of
such productions and ideas by outsiders, even in the lat-Few anthropologists would today question the legitimacy
of the native claims that lie at the heart of NAG- ter's personal memoirs, drawings, and fictional creations.PRA.
The outer boundaries of the law, however, remain
vague. Although for the purposes of NAGPRA ``cultural 2. A group's relationship to its cultural productions
constitutes a form of ownership. This ownership maypatrimony'' refers solely to objects, the law sets the
stage for comprehensive assertions of control over cul- be literal--that is, based on some comprehensive definition
of cultural or intellectual property--or meta-tural records currently excluded from consideration. In
a letter sent to a number of museums in 1994, Vernon phorical, reflecting universal recognition that in moral
terms a group ``owns'' the ideas and practices that itMasayesva, chairman and CEO of the Hopi Tribe, formally
states the tribe's interest in all published or un- holds dear.
3. Cultural information pertaining to ethnic minori-published field data relating to the Hopi, including
notes, drawings, and photographs, particularly those ties that was gathered in the past by anthropologists,
missionaries, government administrators, filmmakers,
and novelists is by definition so contaminated by the
2. The literature on NAGPRA is too vast to inventory in this essay.
realities of colonial power that it cannot meet (today's)Particularly instructive, however, is the richly detailed study of
a single high-profile repatriation case offered by Merrill, Ladd,
and Ferguson (1993). Other useful essays on the application of 3. Prominent examples include the Mataatua Declaration (1993),
the Julayinbul Statement on Indigenous Intellectual PropertyNAGPRA can be found in Ziff and Rao (1997); its legal ambiguities
are explored in DuBoff (1992). For an elegant study of the difficulty Rights (1993), and the Suva Declaration (1995). Copies of these
documents can be found at http://www.icip.lawnet.com.au/of reconciling Anglo-American notions of intellectual property
with those of a Native American people, see Greene and Drescher info6.htm as well as other on-line sites devoted to indigenous and
human-rights issues.(1994).
brown Can Culture Be Copyrighted? 195
standards of informed consent. This information may the practical realities of cultural creativity, information
storage and transfer, the fluidity of ethnic boundaries,therefore be quarantined or subjected to severe access
restrictions when and if its subjects deem its presence and the limitations of judicial process in developed and
developing nations alike.in the public domain offensive.
In this essay, I undertake a critical examination of
these assumptions with the goal of broadening the
scope of debate about the status of indigenous cultural Cultural and Intellectual Property:
and intellectual property rights. My skeptical interven- Basic Concepts
tion is motivated by a belief that current thinking on
these issues has been dangerously narrow, marked more The majority of anthropological research on issues of
by passionate advocacy than by sustained reflection on intellectual property confronts the appropriation of inthe
broader issues at stake in developing ethical stan- digenous knowledge for commercial purposes, usually
dards and legislative mechanisms that impose new lim- by transnational corporations. Case studies have docuits
on the free exchange of information in the name of mented the acquisition of native crop varieties for the
protecting ethnic minorities. genetic improvement of seeds, the transformation of
In framing my analysis, I use the recent work of the traditional herbal medicines into marketable drugs by
sociologist Alan Wolfe (1996) as a touchstone. Wolfe ar- pharmaceutical firms, the incorporation of indigenous
gues that the American tradition of social criticism has graphic designs into consumer goods without the perdeclined
in the past three decades because of the ascent mission of native artists, the exploitation of indigenous
of a brand of romanticism based on a dream of utopian music by record companies, and the collection of DNA
authenticity. The goals of today's romantic social crit- from isolated human populations for medical uses yet
ics, among whom cultural anthropologists stand out in to be determined.5
Although these cases raise complex
disproportionate numbers, are manifestly therapeutic: dilemmas at the margins, most are fairly cut-and-dried.
they want their subjects to be ``empowereď' or even Commercial interests from the developed world pros``healed.''
They celebrate resistance, rebellion, and devi- pect for information available in the unprotected public
ance among social others--even when, in their own domain of indigenous societies. Then, by invoking premiddle-class
neighborhoods and places of employment, vailing law, they sequester the information in the prothey
are likely to advocate ever stricter forms of proce- tected, private realm of copyrights and patents, where
duralism. The trouble with romantic criticism, Wolfe it becomes a monopoly from which they alone profit.
argues, is that it simply fails to persuade a large public The problem is easy to identify, but, given the complexaudience.
Romantic criticism gratifies the writer's ities of international law and the politically marginal
sense of moral worth but can offer only ``utopian long- status of many of the indigenous peoples directly afings
that ultimately have no critical edge'' (Wolfe 1996: fected, effective solutions are another matter. Never39).
The alternative is a return to a realist perspective theless, there are encouraging signs that major instituthat
approaches social problems in all their ambiguity tions in the United States and elsewhere are preparing
and nuance, confronting squarely the tragic contradic- to consider appropriate remedies.6
tions that inevitably arise in the everyday life of plural- These cases are made reasonably straightforward by
ist societies. the simple fact that the primary issues are mercantile:
As I will argue, the debate over intangible cultural the native peoples whose intellectual property is being
property as it has been conducted by anthropologists, le- raided seek their fair share of any profits. Here the econgal
scholars, and indigenous activists has tended toward omy of information can be regarded not as a zero-sum
a polemical romanticism that produces memorable game, in which one person's loss is another's gain, but
bumper-sticker slogans (``Give the natives their culture as a process by which resources can be propagated to
back!'') but little in the way of sober reflection on the everyone's benefit.
difficult balancing act required to formulate policies Before pursuing the broader implications of this qualthat
provide reasonable protection for minority popula- ity of information, let me review the basic rationale for
tions while maintaining the flow of information essen- intellectual property law. Lawmakers have long recogtial
to liberal democracy.4
In particular, a narrow focus nized an implicit tension between the need to protect
on indigenous rights blinds social critics to the broader a broad and lively domain of public discussion and the
implications of the novel forms of cultural protection
that some are enthusiastically endorsing. For thinking
5. Key sources on the exploitation of indigenous biological knowl-on indigenous cultural and intellectual property to be
edge and resources include Brush (1993), Cleveland and Murray
effective for policy-making purposes, it must be not
(1997), Cultural Survival (1996), Greaves (1994), and Posey and
only ethically sound but also thoroughly grounded in Dutfield (1996). Works that address the appropriation of indigenous
art and music include Feld (1994, 1996), Golvan (1992), Pask (1993),
Seeger (1996), and Zemp (1996).4. Although I distinguish between anthropologists and indigenous
activists here and elsewhere, I recognize that native peoples are a 6. See Grifo (1994) for a brief overview of a bioprospecting program,
partially funded by the National Institutes of Health, that has im-growing and welcome presence in anthropology. Some conflict between
these two roles seems inevitable, however, because the dis- plemented plans to guarantee compensation for native communities
whose ethnobotanical knowledge leads to the discovery ofcipline of anthropology is predicated on a global, comparative perspective
rather than on a particular one. marketable drugs.
196 current anthropology Volume 39, Number 2, April 1998
creation of institutions that would foster creativity by the scope of the public domain. Rosemary Coombe, a
shrewd critic of prevailing intellectual property law, ob-allowing writers, musicians, and inventors to profit
from their works. ``The author,'' writes James Boyle, a serves that a key characteristic of postmodern culture
is the growing influence of commodified symbols in ev-law professor and an expert on intellectual property,
``stands between the public and private realms, giving eryday thought and political speech. Children use trademarked
action figures and cartoon characters in play;new ideas to the society at large and being granted in
return a limited right of private property in the artifact politicians encode their messages with references to advertising
and popular television dramas (e.g., ``Where'she or she has created--or at least assembled from the
parts provided by our common store of ideas, language, the beef?''). ``Copyright laws,'' Coombe asserts, ``restrict
the social flow of texts, photographs, music, andand genre'' (Boyle 1996:xii). David Lange (1993:126), another
legal scholar, describes copyright as an implicit most other symbolic works,'' a form of control that
``may deprive us of the optimal cultural conditions forcontract that gives an author ``the limited monopoly of
copyright for a limited time, but only in exchange for dialogic practice'' (Coombe 1991:1866). According to
Coombe and others, then, aggressive expansion of copy-an eventual dedication of the work to the public domain.''
The common theme is that the rights conferred right and trademark is a significant threat to free speech
and political dialogue. Concern over growing corporateby intellectual property laws are limited. Patents and
copyrights, for example, have a finite term. (In the control of the symbols that constitute everyday social
life, as well as the emergence of new technologies thatUnited States, a copyright endures for the author's life
plus 50 years; for patents the term is generally 17 years.) make possible cheap replication and instantaneous dissemination
of music, graphic art, and text, have led toUpon expiration, the work reverts definitively to the
public domain, where it can be used however people claims that copyright is, or soon will be, dead. ``Information
wants to be free'' is the slogan of Internet proph-wish. The range of these rights is similarly finite. I am
free to quote limited sections of copyrighted works be- ets such as John Perry Barlow and Esther Dyson. Barlow
and Dyson are at the cutting edge of spirited grassrootscause of the fair-use doctrine, which holds that copyright
is not absolute--nor can it be in a society that val- resistance to the intellectual property assertions of corporations,
especially in the worlds of graphic design,ues creativity. Important legal decisions have also
established the right to borrow extensively from copy- avant-garde music, and networked communication.8
A critique of intellectual property law based on therighted works for purposes of political parody. In other
words, when intellectual property rights collide with fluid and infinitely replicable quality of information
harmonizes well with theoretical developments in an-reasonable assertions of free speech, free speech should
prevail even if the results are offensive to the creator thropology, which have increasingly emphasized such
postmodern realities as globalization, transnationaland intrude upon his or her copyright.
The principal goal of intellectual property laws, then, flows, and the creative mixing (``creolization'') or invention
of traditions. From this perspective, culture is notis to see that information enters the public domain in
a timely fashion while allowing creators, be they indi- a bounded, static entity but a dynamic, constantly renegotiated
process. So thoroughly has the processual na-viduals or corporate groups, to derive reasonable financial
and social benefits from their work. Once a work ture of culture come to dominate contemporary thinking
that anthropologists appear to be backing away fromenters the public domain, it loses most protections. I
am free to publish Uncle Tom's Cabin or to manufac- the culture concept itself (see, e.g., Gupta and Ferguson
1992).ture steel paper clips without paying royalties to their
creators, whose limited monopoly has expired. The From this theoretical milieu have emerged trenchant
critiques of the presuppositions that underlie the devel-same principle applies to prehistoric petroglyphs or to
the ``Mona Lisa,'' both of which have become part of our oped worlďs intellectual property laws (see, e.g., Aoki
1996), which were shaped by the demands of 19th-cen-common human heritage, whatever their origins.7
Intellectual property has become the focus of consid- tury industrial capitalism. Copyright, critics have
noted, is predicated on romantic notions of an isolatederable theorizing and legal maneuvering in recent years
because of general alarm over the increasingly expan- creative genius who plucks beauty out of thin air by an
inspired act of the imagination. Copyright law was de-sive claims of ownership made by corporate interests--
claims that threaten the doctrine of fair use and limit signed to ensure that the author and his or her immediate
descendants will benefit from this miracle of creation.
The identification of inventiveness with a
7. One could, of course, seek a patent for a new form of paper clip solitary human life, however, cannot be easily reconor
a new translation of a work already in the public domain. And
ciled with the political economy of modern industrial
a new drawing or photograph of an ancient petroglyph would be
creativity or, for that matter, with the collective pro-copyrightable, although the design itself would not. It should be
ductions of indigenous peoples. Because neither corpo-noted that trademarks represent an exception to the time-limited
quality of most intellectual property protection. Generally, trademarks
are eligible for protection as long as the holders can prove
that they have an enduring economic value in identifying a com- 8. Important statements of the libertarian position with regard to
information include Barlow (1993) and Dyson (1995). Manifestosmodity or product line and distinguishing it from others. If a company
fails to use its trademark for an extended period, however, demanding an expansion of fair-use standards for musicians and
graphic designers include Negativland (1995) and Samudrala (1995).trademark protection may lapse.
brown Can Culture Be Copyrighted? 197
rations nor cultures have a predetermined life span--no trates the problem of literalist notions of cultural property
with a memorable example. We commonly regardthree-score-and-ten that can be used as a yardstick for
protection--the temporal limits of current copyright Greek civilization as the source of a mode of formal reasoning
known as the syllogism. Does that mean thatlaw appear exceedingly arbitrary. Finally, the spread of
digital technologies and systems of distributed intelli- the Greek people therefore ``own'' syllogistic logic?
Should they be compensated by American or British orgence makes it increasingly difficult for the state to police
information and thereby to enforce extant copy- Israeli software companies for their collective cultural
contribution to modern programming?right laws. The image that I post on my Web page today
can be reproduced and distributed around the world in Disjunctions between indigenous and cosmopolitan
views of cultural information are particularly acute inseconds, then stored on personal storage devices relatively
impervious to legal scrutiny. Digitally sampled matters of the sacred. Although it is impossible to offer
a normative statement about how native peoples con-portions of my music can be modified by other artists
and then spliced into their work without my knowledge ceive of sacred knowledge, it is fair to say that many see
it as a limited good that cannot properly exist in severalor consent. The chance that I will discover their piracy
is vanishingly small. places at once. Religious knowledge that resides in inappropriate
places may find its power diminished orEveryone, then, agrees that prevailing concepts of intellectual
property are in crisis. But what is to be done? dangerously distorted, hence the common practice of
compartmentalizing information in order to limit ac-Before reviewing proposed solutions, we must consider
indigenous views of information that differ substan- cess to the inner meaning of religious symbols.
The latter impulse may have been a factor behind Ziatially from those I have just described.
Pueblo's recent request that the state of New Mexico
pay damages for the unauthorized reproduction of the
Culture Reified: Information as a Zia sun symbol on New Mexico's flags, license plates,
and official stationery since 1925. The state's use of thisLimited Good
graphic element in no way limits the ability of Zia residents
to continue employing the symbol in their ownAs a number of commentators have observed (e.g.,
Coombe 1993; Jackson 1989, 1995), the ongoing strug- artistic or religious activities. Yet if one believes, as
people at Zia evidently do, that this is a design imbuedgle for political and cultural sovereignty often leads indigenous
activists to talk about culture as if it were a with inherent power, its use for everyday civic and commercial
purposes is at least an affront to their dignity,fixed and corporeal thing. Calls for the return of land
and resources have a way of intertwining themselves at worst a dangerous form of blasphemy capable of unleashing
genuine misfortune. One may reasonably inferwith demands for religious freedom and other basic
rights to such an extent that it is sometimes difficult that the petition was motivated at least in part by a desire
to assert control over something that was onceto distinguish culture from its material expression. A
United Nations report on the protection of cultural and solely the community's. ``Ownership,'' Strathern (1996:
30) observes, ``gathers things momentarily to a point byintellectual property reflects this mode of thought
when it asserts that ``each indigenous community must locating them in the owner, halting endless dissemination,
effecting an identity.''9
retain permanent control over all elements of its own
heritage,'' heritage being defined as ``all of those things Indigenous resistance to the promiscuous dissemination
of knowledge, sacred and otherwise, lies behindwhich international law regards as the creative production
of human thought and craftsmanship, such as emerging conflicts over secrecy. The vast majority of
native peoples face so many challenges to their eco-songs, stories, scientific knowledge and artworks''
(Daes 1993:11­13). The heritage in which native peo- nomic and political sovereignty that they have little
time to fret about the information-management poli-ples have definitive rights, in other words, includes concepts
and thoughts as well as their concrete enactment. cies of public archives or museums. A small but growing
number of native communities in North AmericaThis makes perfect sense, the report concludes, because
for indigenous peoples ``the ultimate source of knowl- and Australia, however, devote considerable energy to
the protection of cultural activities from the scrutiny ofedge and creativity is the land itself'' (p. 10).
With few exceptions, cosmopolitan scholars find inquisitive outsiders, whether they be scholars or tourists.
Anyone who has visited the Hopi or Taos Pueblosuch reified views of culture problematic. In an incisive
analysis of the expansion of property concepts into new reservations in the American Southwest, for example,
knows that tribal authorities actively discourage non-conceptual domains, Marilyn Strathern (1996:22) notes
that basic cultural understandings sit uneasily within a Pueblo people from observing, recording, or even inquiring
about a wide spectrum of cultural practices. Eachframework of intellectual property. Cultures lack clear
spatial and temporal boundaries; human beings are
9. My request to the governor's office of Zia Pueblo for informationmembers of a society but not ``members of'' a culture,
on this case went unanswered. I regret that I must therefore makewhich is a flexible set of understandings, dispositions,
inferences about motive without benefit of Zia Pueblo's own perand
behavioral scripts that change through time and spective. Although the New Mexico legislature refused to award
freely influence and are influenced by social interac- the pueblo cash damages, it did authorize a formal statement of
apology.tions with other groups. Philippe Descola (n.d.) illus-
198 current anthropology Volume 39, Number 2, April 1998
community has a different policy regarding admission public good except in a sharply circumscribed range of
situations.12
We demand that our educational, religious,to community activities, including religious rituals, but
overall it is accurate to say that the Pueblo place strict and political institutions practice openness whenever
possible. Although archives routinely impose restric-limits on the circulation of knowledge about their cultures.
Although it is commonly believed that Pueblo se- tions on access--when, for instance, they abide by a donor's
request that documents be closed to researcherscrecy is a defensive tactic reflecting centuries of external
interference in the free exercise of religion, it also for a stated period, usually to protect the privacy of living
individuals--I know of no cases in which U.S. pub-plays a key role in maintaining the Pueblos' own political
system. In an essay on the social functions of se- lic repositories deny access to archived materials on the
basis of a potential user's ethnicity, gender, age, or reli-crecy in Taos Pueblo, Elizabeth Brandt (1980) argues
that the primary motivation for closing religious gious affiliation. Such selective restrictions would
surely qualify as a form of illegal discrimination.13
knowledge to outsiders and for objecting to the collection
and permanent storage of this information by non- Native values and the American legal system are especially
prone to collision over the question of retroac-Pueblos is to prevent it from cycling back to Pueblo individuals
who are not authorized to possess it.10
Strict tive secrecy, the disposition of information that was obtained
in the past and has long resided in the publiccompartmentalization of knowledge is necessary to
maintain the community's religious hierarchy and ulti- domain. There are few precedents for the removal of information
from the public domain in response to the de-mately the integrity of traditional institutions, which
are based on theocratic principles. Of equal importance mands of third parties asserting a right to determine
when, where, and by whom this information is ac-is the conviction that in the wrong hands religious
knowledge loses its power or assumes destructive cessed.14
Yet this is exactly what some Indian tribes are
asking American museums and archives to do. There isforms.
Few readers will dispute the general right of the no getting around it: in this case, indigenous beliefs
about knowledge of the sacred conflict directly with thePueblo or of any other native groups to restrict the gathering
of information about their societies as they see fit. majority's commitment to the sacredness of public
knowledge. This is a classic collision of irreconcilableBut we must also acknowledge that principles of secrecy
and strict control of knowledge contradict the po- values. To resolve it, both sides will have to reflect carefully
on the global implications of their respective posi-litical ideals of liberal democracy.11
In the United
States, secrecy has long been regarded as inherently in- tions in order to achieve a suitable compromise.
In this context, one can easily see the attraction ofimical to democratic process and to personal freedom.
There are, of course, circumstances in which secrecy is framing indigenous demands in terms of copyright and
warranted: in matters of national security, in deliberations
on sensitive administrative or legislative matters, 12. The philosopher Sissela Bok (1983) offers a thoughtful discussion
of the moral and philosophical questions raised by secrecy.in certain kinds of law-enforcement activities, and so
Amanda Pask (1993:84­85), a legal scholar, indirectly challengesforth. We also recognize that institutionalized secrecy
Bok's universalist assessment by arguing that secrecy is inimical
nearly always leads to abuses of power. For this reason, to the Western democracies for specific cultural reasons: ``A comwe
have implemented a wide range of ``sunshine laws'' munity which conceives of itself solely as the administrative expression
of the rational self-interest of individuals depends for itsthat require government officials to conduct deliberalegitimacy
on not being seen to limit `information.' . . .'' In Pask'stions in public and to make administrative documents
opinion, however, this attitude toward information is a cultural aravailable
to citizens on demand. There is also a strong tifact that may not be found among indigenous populations orgapresumption
that once information enters the public nized along communitarian lines.
13. Apparently, some public repositories in Australia close specificdomain, it should stay there. Secrecy, in other words, is
Aboriginal collections to women and uninitiated men. For a com-inherently threatening to democratic process and to the
prehensive analysis of the Australian case, including discussion of
several precedent-setting legal decisions related to ethnographic secrecy,
see the essays in Anderson (1995).10. Christopher Anderson (1995:12) reports similar concerns about
unauthorized access to sacred information among Aboriginal Aus- 14. Jonathan Haas (1996:S5­6) proposes that such a precedent exists
in the voluntary de-accessioning and destruction of a contro-tralians. His own institution, the South Australian Museum, ``had
numerous requests from remote communities in Central Australia versial collection of photographs of naked college freshman, mostly
from Ivy League institutions, taken for scientific purposes that arethat the Museum never allow the Secret/Sacred Room and its collection
to be looked after by an Aboriginal person,'' because these now thoroughly discredited. The analogy has merit, but Haas overlooks
at least two important facts: (1) the photographs violate thecommunities did not want men from other groups to see their religious
objects. personal privacy of living individuals, and (2) the scientific utility
of the photographs is and was minuscule, if it ever existed at all.11. The Hopi Cultural Preservation Office (HCPO) recognizes this
fundamental difference in cultural perspectives in a judiciously Their value as historical and scientific documents is thus far outweighed
by their ethical deficiencies. As I will argue, similar objec-worded statement found on its homepage on the World Wide Web.
``Most European or Western societies are based in a tradition of sci- tions can doubtless be lodged against some ethnographic records
(in which case de-accessioning may be warranted), but to applyentific inquiry, the `righť to ask questions and investigate the unknown,''
the document states. In contrast, the HCPO document them to all such records would be irresponsible unless Haas can
establish that museum collections have somehow lost their inher-continues, Hopi tradition discourages open-ended curiosity because
many cultural activities are regarded as belonging solely to ent value. To do so, he would have to contradict the opinion of
those indigenous spokespersons who argue that the collections arespecific clans or religious societies. See ``Respect for Hopi Knowledge,''
http://www.nau.edu/ hcpo-p/current/hopi nis.htm, ac- so valuable that they should be returned to their source communities
for safekeeping.cessed 8 September 1997, unpaginated.
brown Can Culture Be Copyrighted? 199
broadened definitions of cultural property. After all, if mon appeal to principles of intellectual property has
the insidious effect of making them moral equals. Innative groups ``own'' their knowledge, if it was ``stolen''
from them by government officials, missionaries, and both cases, broad questions of fair use and the free
expression of ideas are magically transformed into aanthropologists, then they are simply seeking the return
of pilfered goods rather than asking repositories to narrow dispute over commodities. This troubling moral
alchemy underscores the observation of William Gassviolate principles of free access. This approach may be
appealing to all parties involved in the dispute. The pe- (1997:62) that ``the chief mode of censorship in a commercial
society is, naturally enough, the marketplace.''titioners regain exclusive control over their sacred
knowledge. Chronically underfunded repositories, Here Gass refers to the power of publishers and booksellers,
who largely determine what gets published andwhich may be worn down by expensive litigation, make
a persistent problem go away without an apparent viola- sold in capitalist markets, but he could just as well be
speaking about the manifold ways in which intellectualtion of their responsibility to the public. Politicians,
who as a group are not known for their commitment to property rights strategies can be, and are, used to deny
access to information and to inhibit open communica-social research or their support of public access to information,
leap at the chance to propose laws that sum- tion.15
Advocates of the dramatic expansion of the intellec-marily convert information into property. In this case,
property discourse replaces what should be extensive tual property of native peoples seem oddly blind to the
free-speech implications of their proposals. Kamal Puridiscussion on the moral implications of exposing native
people to unwanted scrutiny, on the one hand, and se- (1995:338­39), for instance, supports the imposition of
laws prohibiting the use of Aboriginal art and symbolsquestering public-domain information, on the other.
For those who object that I attribute too much impor- by outsiders. The commodification of Aboriginal art, he
argues, ``deprives Aboriginal people of an importanttance to claims that are solely relevant to the unique
situation of native minorities, let me mention another economic base; and secondly, if trivialized, it can undermine
the autonomy of unique Aboriginal traditions.''case that has striking parallels to contemporary indigenous
demands. For several years, the Church of Sci- Although this rationale for cultural protection seems
reasonable at first glance, upon reflection one begins toentology has waged a relentless campaign against owners
of Internet sites that store and transfer texts wonder where the legal prohibition of religious ``trivialization''
or sacrilege might lead. Would citizens there-regarded by Scientologists as secret, copyrighted material.
At the insistence of church attorneys, computers fore be subject to civil and criminal penalty if they trivialized
any religious symbols? Would indigenoushave been confiscated in the United States and Finland
by law-enforcement officials searching for such docu- peoples themselves be subject to reciprocal fine or arrest
if they manipulated Christian imagery for theirments. The Church of Scientology has also filed complaints
that led to the seizure of public-domain court own purposes? One can easily imagine conservative
evangelical groups taking offense at the use of Christiantranscripts posted on the server of an Internet service
provider in Virginia, and it is seeking civil damages symbols by members of the Native American Church
during peyote meetings. In the American context, cer-from the Washington Post for publication of what it
considers to be proprietary information (Grossman tainly, legal efforts to prevent parodic or creative appropriations
of religious symbols would present a serious1995:174, 252). Scientologists offer nearly the same rationale
for these search-and-seizure acts as American challenge to the First Amendment.
Indians do for their opposition to the presence of religious
information in archives (p. 174): ``Scientologists
genuinely believe their secrets can save the world, but Information Ethics
that they must be doled out only to whose who have
proven ready to receive them. Followers hold fiercely to Another element of contemporary debate over cultural
and intellectual property is the claim that indigenousthe notion that their revered, secret texts must never be
disseminated, save to the rigorously initiated.'' In other knowledge currently available in the public domain was
obtained under circumstances so inherently coercivewords, the formidable legal arm of the Church of Scientology
has invoked principles of intellectual property that it should be either sequestered or returned to its
source community. The most extreme version of thissimilar to those cited by indigenous groups demanding
that ethnographic material be removed from public ac- position--the assertion that ethnographic field data
have the same moral standing as the now-quarantinedcess. Civil libertarians have denounced the Scientology
campaign as a serious threat to free speech, in part be- records of medical experiments conducted in Nazi concentration
camps--still has few advocates, but it is onlycause it uses copyright law to silence the church's
critics. a step or two removed from today's orthodoxy, which
This is not to imply that the claims of the Church of
15. Some experts in intellectual property law express concern thatScientology are morally equivalent to, say, those of the
copyright is increasingly used to restrict access to information in-Apache leaders who demand control over Apache constead
of encouraging its dissemination (see, for example, Branscepts
and images. The Church of Scientology, it must comb [1994] on struggles over access to the Dead Sea Scrolls and
be noted, collects large fees from initiates before it Conley [1990] regarding the scholarly use of unpublished biographical
information, especially letters and diaries).allows them access to its secret texts. But their com-
200 current anthropology Volume 39, Number 2, April 1998
sees ethnography as an important instrument in the he- norms? Did the researcher keep his or her promises
about how the information would be used?gemonic project of classifying, representing, and ruling
subject populations (see, e.g., Pels and Salemink 1994). Perhaps the hardest condition to establish retrospectively
is informed consent. To what degree, for exam-Once we accept the totalizing logic of this formula, the
conclusion that all records from formerly colonized ple, did research subjects realistically comprehend how
their lives might be affected by their role in an ethnog-places are ethically tainted follows naturally.
Yet anyone willing to look carefully at the historical raphy, a documentary film, or an audio recording, especially
if they were relatively unfamiliar with these me-evidence will be dissatisfied with blanket condemnations
of ethnographic records. At the very least, we dia? Even conscientious and well-meaning researchers
fail to anticipate all the possible effects of their work,must acknowledge the agency of indigenous peoples--
their strategic decisions to share ideas and stories and and they are sometimes as disturbed as their subjects
by the unexpected impact of their publications, record-songs with inquisitive outsiders when, in their judgment,
circumstances warranted. In an informative anal- ings, or images. In this area, the Law of Unintended
Consequences reigns supreme; there will always be un-ysis of a major Zuni repatriation case, for example, Merrill,
Ladd, and Ferguson (1993:541) mention that several foreseen effects, both good and bad, when information
enters the public domain.16
cultural items acquired by the Smithsonian Institution
in the late 19th century may have been made expressly Ethical realism holds that each case is unique and
therefore subject to careful retrospective review. If sig-for the museum because Zuni leaders believed that
greater public awareness of the beauty of Zuni religion nificant violations of the norms of the time took place,
with lasting, negative impacts on a particular people orwould improve relations between their tribe and the
federal government. Zuni authorities may also have re- community, then it may be appropriate to quarantine
the offending research in some way, perhaps by makingvealed certain ritual secrets to the Smithsonian anthropologists
Frank Hamilton Cushing, James Stevenson, it available only to members of the affected group or to
others authorized by them. In keeping with the empha-and Matilda Coxe Stevenson in the hope that their continued
professional involvement with Zuni culture sis that repositories place on freedom of access, one
would expect that closure of a collection would takewould lead them to defend Zuni interests in Washington
(Merrill and Ahlborn 1997:195). Both strategies place rarely, and only in the face of compelling evidence
that continued use would damage the affected commu-seem to have worked. This is hardly a history free of
coercion, but it includes powerful elements of volition nity. Such caution is warranted because decisions to
quarantine information never take place in a politicaland of cultural resistance through strategic sharing that
merit acknowledgment and respect. vacuum. Citizens of all ethnic origins have an interest
in continued access to information already residing inInterpretations that reduce ethnography to an encounter
between oppressor and oppressed, interacting the public domain. Moreover, voluntary removal of material
from public access establishes precedents likelylike automatons in a grim game of power, overlook the
complex human motives that animate ethnographic en- to be exploited by other religiously and politically motivated
interest groups--some of which, it bears pointingcounters: curiosity, aesthetic delight, mutual self-interest,
genuine respect or affection, erotic attraction (rec- out, would advocate positions strongly antagonistic to
indigenous political rights and cultural self-expression.ognized or denied), the visceral pleasures of storytelling,
and a desire to understand other social worlds. They Published accounts and my own queries to museums
and archives suggest that at the level of day-to-day oper-also summarily repudiate the work of countless observers
who have dedicated their lives to the documentation ations this commonsense approach to ethics is currently
the norm in the United States.17
These reasonableof indigenous lifeways, sometimes at great personal
cost. This enterprise may have been facilitated by colo- procedures stand to be usurped, however, by comprehensive
claims of ownership. If it can be establishednialism, but more often than not its effect was to challenge
assumptions of colonial superiority. Today ethno- that in some meaningful sense ethnographic and historical
records are ``owneď' by the peoples who are theirgraphic records provide critical information that
indigenous peoples use to revitalize their cultures and subject, then complex questions about the ethical stato
substantiate land and resource claims in courts of
law. The species of naive presentism that judges histori- 16. Issues of informed consent in the filming of the controversial
cal actors by today's ethical standards would, if given documentary Titicut Follies are explored in considerable detail by
Anderson and Benson (1988). Zemp (1996:49­63) describes ethicalfree rein, mandate the pious quarantine or even destrucstruggles
over the commercial licensing of Rajasthani music re-tion of most of these important resources.
corded by a fellow ethnomusicologist many years earlier, at a time
The alternative to ethical absolutism is ethical realwhen
neither had anticipated the music's potential commercial
ism, with all its exacting ambiguities and dilemmas. value. For reflections on the role of ethics in the preservation of
Realists judge work by the extent to which it violates or anthropological materials, see Fowler (1995) and Greaves (1995).
17. Letters to 16 American museums and archives to inquire aboutconforms to the ethical standards that prevailed when it
their response to the Hopi request for a moratorium on access towas collected. Was information gathered under circumethnographic
materials produced 8 replies. Of these, none reported
stances that would have been considered dishonest or that it had actually closed collections, although several now mark
unduly coercive then? Was deception involved, and, if collections relating to the Hopi and other tribes as ``sensitive'' and
encourage scholars to contact tribal authorities before using them.so, how egregious was it in terms of prevailing ethical
brown Can Culture Be Copyrighted? 201
tus of the cultural property become irrelevant. And here ple, depicts the New Age as a particularly offensive example
of the commodifying logic of late capitalism.we face one of the hidden ironies of contemporary debate:
although advocates of expanded intellectual prop- ``Because so many people have been taught that the
world is a giant warehouse in which everything is orerty laws typically denounce capitalist commodification,
they implicitly encourage the translation of ought to be available,'' she writes, ``they too easily believe
they can achieve enlightenment by payingethical and political discourse into the language of commodities.
money'' (p. 97).18
However much we may deplore the cultural insensitivity
that underlies these middle-class explorations of
Ethnographic Fictions in the indigenous spirituality, Rooťs argument illustrates the
strikingly cramped and in some cases misdirected de-Age of the Simulacrum
bate that this situation has inspired. For example, when
critics declare that indigenous spirituality lacks a com-Contemporary assertions of intellectual property offer
other and perhaps more plangent ironies rarely noted by mercial aspect, in sharp contrast to the alleged commercial
vulgarity of the New Age, they willfully ignore acommentators. At a moment when many anthropologists
have come to regard ethnographic and historical vast literature that establishes the economic nexus of
ritual almost everywhere in the world, a pattern that of-texts as interested fictions, indigenous peoples insist
that these documents contain sacred knowledge so au- ten includes substantial payments, in cash or goods, to
ritual specialists. Nor has the controversy seen contri-thentic and powerful that access to it should be carefully
controlled. Even as ethnography moves in a con- butions by anthropologists who in other contexts celebrate
cultural flows and creative creolization, of whichfessional direction, offering ever more information
about the ethnographer's personal history, feelings, and New Age practices are surely an outstanding example.
One might also reasonably call for rigorous analysis ofmotives (to the extent, some would say, that it becomes
difficult to find the Other in the text), the Other is how this instance of religious borrowing differs from
other kinds of intercultural sharing that underwrite re-claiming ownership of the textual simulacrum. Nowhere
have these contradictory currents proved more ligious innovation throughout the world. By pointing to
these deficiencies, my purpose is not to defend the imi-acrimonious than in public debate over the New Age
``appropriation'' of Native American religion. tation of native rituals by non-natives. (I don't know
how one could possibly endorse a practice as appallingAcross the United States--and, increasingly, in Europe
and other parts of the developed world--middle- as the ``Smoki'' Snake Dance, a parody of Hopi ritual
conducted annually by wealthy Anglos in Prescott, Ari-class spiritual seekers are enrolling in workshops and
therapy sessions that introduce them to rituals identi- zona, vividly described by Peter Whiteley [1997:177­
79].) My personal view is that middle-class baby boom-fied with indigenous spirituality: ersatz Medicine
Wheel ceremonies, sweat lodges, vision quests, and ers looking for spiritual authenticity should explore the
rich religious traditions of Europe and allow native peo-even healing sessions involving consumption of the
Amazonian hallucinogen ayahuasca. Sometimes those ples to worship in peace. Nevertheless, the phenomenon
merits a broader and more dispassionate analysiswho officiate are of native extraction, although few are
recognized as religious leaders in their own communi- than we have seen thus far.
Perhaps the most interesting feature of the contro-ties. More commonly, they are non-natives claiming
knowledge of indigenous lore. versy is the extent to which native religious leaders object
to it not on the ground that New Age rituals areTo say that the practices of these ``Indian wannabes''
have evoked intense criticism would be an understate- bogus but precisely because they are, in some sense,
real (see, e.g., Whiteley 1997:188; Jocks 1996:418). Ament of the first order. In a ``declaration of war,'' Lakota
leaders have denounced the ``absurd public posturing of statement issued by Indian leaders meeting in Window
Rock, Arizona, in 1984 notes that New Age ceremonialsthis scandalous assortment of pseudo-Indian charlatans''
(Stampede Mesteth, Standing Elk, and Swift are ``exposing ignorant non-Indians to potential harm
and even death'' (AIM Leadership Conference 1984) be-Hawk n.d.). Another Indian activist deems such fauxnative
ceremonials to be another example of ``a very old cause of the rituals' inherent power. Much as the general
public is repelled by the prospect of cloned humanstory of white racism and genocide against the Indian
people'' (Smith 1994:70). Similar denunciations fol- beings, native religious leaders express horror at the
monstrous cloning of their visions of the sacred. Forlowed the publication of Marlo Morgan's best-selling
Mutant Message Down Under (1994), a book that de- them, the New Age is a kind of doppelgänger, an evil
imitation close enough to the real thing to upset thescribes the author's religious experiences--later revealed
to be entirely fictional--among a group of Ab- delicate balance of spiritual power maintained by Indian
ritual specialists.original Australians. Robert Eggington, a spokesman for
Australia's Nyoongah people, has been quoted as saying
that Morgan's book ``amounts to nothing less than cul18.
The firestorm of criticism directed to New Age practices has
tural genocide of the spiriť' (Mutant message downed!!! produced a literature too vast to document fully here. Useful
1996). Academic observers are only slightly more mea- sources include Albanese (1990), Brown (1997), Jocks (1996), Johnson
(1995), Kehoe (1990), and Rose (1992).sured in their criticism. Deborah Root (1996), for exam-
202 current anthropology Volume 39, Number 2, April 1998
``The culture of the copy muddies the waters of au- unleashing it in an unregulated market, where consumers
can pay for what they want and ignore what theythenticity,'' Hillel Schwartz (1996:377) has observed. As
the technologies of the simulacrum proliferate around don't. The illicit replication of information cannot be
stopped; only performances can be controlled, so cre-us, producing what Mark Taylor and Esa Saarinen
(1994) call the ``simcult,'' souls lost in the forest of cop- ative individuals and groups will have to find ways to
benefit materially from performance-like encountersies take up a desperate search for the original that leads
them almost inevitably to indigenous peoples, who in with a paying audience. Because this position has few
followers among anthropologists and indigenous activ-our time have become icons of primordial integrity, of
meaning uninflected by imitation. In seeking the au- ists, I bracket it from serious consideration here. But
whatever its flaws and blindnesses, the radical libertar-thenticity of native religions, however, they succeed
only in fashioning another flawed simulacrum.19
Under ian proposal injects a note of realism into current debate
by reminding us that control of information and thethe circumstances, it is hardly surprising that indigenous
leaders want to tighten their grip on the originals. proliferation of simulacra is or soon will be impossible.
The principal alternative to informational libertarian-But this particular genie has already escaped from the
bottle. Those who dream that knowledge can be ``repa- ism is the creation of new institutions and legal mechanisms
designed to protect ``cultural heritage, folklorictriateď' through copyright laws--vain attempts to slow
the metastatic self-replication of information in the Age productions, and biological `know-how,''' to quote the
language of the Bellagio Declaration, a document pre-of the Simulacrum--are destined to be disappointed.
Despite the Church of Scientology's single-minded pared by a diverse group of experts in intellectual property
(reproduced in Boyle 1996:192­200). With admira-pursuit of criminal prosecution and civil action to prevent
the reproduction of its secret texts, for example, ble clarity and conciseness, the Bellagio Declaration
advocates a two-pronged revision of intellectual prop-there is little evidence that it has succeeded in recapturing
all or even a significant fraction of the copies held erty practice: on the one hand, it calls for a significant
expansion of the public domain by diminishing intellec-by its opponents, doubtless buried on the hard drives of
their computers or squirreled away on diskettes. The re- tual property rights--say, by shortening the term of
copyrights or by limiting the circumstances undercent history of the Internet demonstrates that draconian
attempts to police information are likely to fail, which they may be awarded; on the other, it calls for
the creation of ``related rights regimes'' to protect indig-although governments and powerful interest groups
may succeed in temporarily stifling open dissent. The enous intellectual property. As experts on intellectual
property law, the authors of the Bellagio Declaration aresame fate awaits indigenous groups seeking total control
over information about their societies. Its use by aware of conflicts between these two agendas, and
within the limits of a brief document they try to recon-law-abiding historians and social scientists will surely
decline, but there will soon arise an underground litera- cile them without specifying in detail how this harmonization
might be accomplished.ture--a native-knowledge samizdat or, more likely,
something resembling the X-Files, the American televi- The measured language of the Bellagio Declaration
contrasts with the sweeping demands of those who seesion series that exploits popular belief in the governmenťs
secret contacts with extraterrestrials--that is intellectual property law as a mechanism for protecting
indigenous philosophies. Recall, for example, the mani-likely to give rise to distortions of fact far worse than
the misrepresentations that today infuriate indigenous festo of the Inter-Apache Summit on Repatriation
(1995:4), which asserts title to ``symbols, beliefs, cus-leaders. As is true in the case of religious secrets, the
conversion of debate about New Age rituals into a toms, ideas and other physical and spiritual objects and
concepts,'' or the UN document stating that native peo-struggle over intellectual property undermines prospects
for urgently needed public discussion about mu- ple have an inherent right of control over everything encompassed
by the term ``cultural heritage'' (Daes 1993).tual respect and the fragility of native cultures in mass
societies.20
These documents lay claim to thought as well as its actualization
in concrete acts of creation. Those familiar
with copyright know that the distinction between ideas
and their expression--that is, ``fixing in tangible form''Toward Genre Police and ``Certified
(see Litman 1991:239)--is foundational to notions of in-Indigenous PersonsTM''?
tellectual property. The reason for this is obvious: because
we cannot ascertain the origin of ideas unlessAs I noted earlier, one proposed solution to the crisis of
they are expressed in some stable, material form, itintellectual property is the libertarian option articuwould
be impossible to enforce claims on them. Yetlated by Barlow and Dyson: let information be free by
some experts in intellectual property now urge that the
idea/expression distinction be abandoned because of its19. According to David Sanjek (1992:609), the availability of affordable
digital sampling equipment has had a similar effect on alleged ethnocentrism, its inability to protect creative
contemporary music: ``The elevation of all consumers to potential linguistic, artistic, or musical productions expressed
creators . . . denies the composer or musician an aura of autonomy
through performance rather than preserved in a perma-and authenticity.''
nent medium such as writing. Proposals for the ex-20. For further discussion of the contradictions and dilemmas of
new media, see Schwartz (1996) and Baudrillard (1988). panded protection of indigenous intellectual property
brown Can Culture Be Copyrighted? 203
rights also typically object to the time-limited quality Among other things, folklore-protection boards might
be authorized to intervene if nonfolkloric people pro-of current copyright and patent laws. If native knowledge
is held to be collective and eternal rather than the duced designs that imitated authorized folkloric styles
or if native art were used in ``culturally inappropriateinvention of a solitary author, then it follows that time
limitations keyed to the human life span, which clearly contexts.''22
Perhaps I am alone in wondering how a UNESCO-reflect the possessive individualism of Western capitalist
thought, should be replaced by some form of perpet- style bureaucracy would further the interests of indigenous
peoples by codifying their knowledge in whatual copyright.21
These proposals call to mind Apple Computer's would have to be a byzantine series of regulations. One
can only imagine the endless legal actions and legisla-highly publicized infringement lawsuit against Microsoft,
which claimed that Microsofťs Windows program tive initiatives that would be required to protect against
infringement of the look and feel of Tlingit art or theillegally appropriated the ``look and feeĺ' of Apple's proprietary
software (Mota 1995). Although Apple ulti- stylistic particularities of Shuar oratory. And when considering
parts of the world where the rule of law is somately lost the suit, notions similar to its look-and-feel
claim have been picked up by participants in the ex- tenuous that even basic traffic regulations are the object
of collective scorn, we might well question how indige-panding scholarly debate about cultural appropriation.
In a recent essay on the ethics and pragmatics of the nous populations would benefit from the implementation
of far less enforceable laws relating to intangiblemusic industry, for instance, Steven Feld (1996) brilliantly
tracks the processes by which recordings of the cultural property.
It is also prudent to consider what the broader socialmusics of Mbuti and other ``Pygmy'' peoples find their
way into contemporary jazz and World Beat, usually impact of look-and-feel protection might be. Could it in
fact be confined to ``designated folkloric populations''without attribution or compensation. My reading of
Felďs analysis is that he views those artists whose work or ``certified indigenous peoples'' without seeping into
the broader world of commerce, where corporations arereplicates even the sounds and textures of Mbuti music
as performing an act of cultural appropriation. In other already storming the borderland between idea and expression?
Who is more likely to be silenced by the en-words, imitating the ``look and feeĺ' of a people's music
is a form of cultural theft, even if it occurs within a forcement of look-and-feel copyright: the Sony Corporation,
for its infringement of Mbuti flute playing, or thegenre such as jazz, which is largely predicated on improvisational
transformations of the artistry of musicians emerging African recording artist whose first commercial
CD infringes the style of Michael Jackson? Andfrom every corner of the globe.
Although Feld wisely steers clear of proposing that what of scholarship? Anthony Seeger (1996:87) notes
that it is already difficult for ethnomusicologists to pub-we create a new species of genre police to protect indigenous
musicians from exploitation, other scholars lish articles on popular music because of copyright constraints
that prevent the quotation of lyrics and musicalprove less cautious. Indeed, journals devoted to the subject
of intellectual and cultural property cheerfully offer scores, an example of the corporate worlďs concerted
efforts to downsize the scope of fair use. Consider, then,any number of schemes to codify culture and thereby
protect it from misuse. Most of these proposals call for what history or anthropology will become when scholars
are prevented by law from writing accounts specificthe redefinition of folklore as part of a national or even
a global patrimony. They also encourage the imposition enough to evoke the religious or political practices of
protected native populations. Perhaps we can look for-of a regime of ``moral rights'' for cultural property that
would exist in perpetuity. (The moral-rights concept, ward to the day when the Freud estate is sued on the
grounds that Totem and Taboo violates the folkloricwhich is alien to U.S. copyright law but commonly applied
in European countries, asserts that the state has copyright of indigenous peoples--from two world regions,
no less. Less fanciful is the prospect of court or-an enduring interest in the integrity of works of cultural
patrimony. Any attempt to modify a protected work-- ders that remove works of ethnomusicology, history,
and ethnography from library shelves because they pur-say, by altering a classic film or images of a famous
painting--would violate its moral integrity even if its
formal copyright had long since expired.) UNESCO,
22. In Australia, where the protection of Aboriginal art and culture
which has drafted schemes for the application of this is strongly supported by anthropologists, lawyers, and native activkind
of protection to indigenous cultural productions, ists, Colin Golvan reports that successful attempts to enforce Aboriginal
copyright to traditional designs led wily tee-shirt manufac-envisions the establishment of state folklore protection
turers to produce knockoffs that merely imitated the style ofboards that would ``register [folkloric] works and authoAboriginal
art. Golvan (1992:229) comments: ``One issue which
rize their use,'' allowing exceptions for ``educational
justifiably arises for attention is whether there ought to be protecand
inspirational purposes'' (Berryman 1994:327). tion to prohibit this bastardization of Aboriginal art, and if so, how
this protection would work.'' (See also Blakeney 1995 for additional
discussion of Australian legal initiatives.) In the domain of music,
Mills (1996:74) provides a detailed description of recent Brazilian21. See, for instance, Berryman (1994) and Mills (1996). The Mataatua
Declaration, which was issued after a 1993 conference in New legislation designed to protect the intellectual property of indigenous
communities by ``eliminating burdensome, ethnocentricZealand, calls for a ``multi-generational coverage span'' for indigenous
intellectual property, leaving unanswered the question of copyright requirements of living authors, originality and tangibility.''whether
such protections would be permanent.
204 current anthropology Volume 39, Number 2, April 1998
vey stolen property. If time limitations on indigenous domesticated by indigenous populations and used by
them for centuries.copyright were waived, as has been proposed by some
scholars, then this intellectual stalemate could exist in It is the broader debate about cultural appropriation
that I find disturbing--specifically, the reluctance ofperpetuity.
For the most radical of indigenous activists--and, in- otherwise thoughtful scholars to dissect the ethnonationalist
claim that there exists an inherent, perma-cidentally, for the giant corporations that oversee the
worlďs news and entertainment media--such impedi- nent right of cultural ownership and that this right
should be guaranteed by new laws that, among otherments to scholarship and the exchange of ideas would
be welcome. The Hawaiian nationalist Haunani-Kay things, define ideas as property. Discussions about
strategies for preventing cultural appropriation seem toTrask (1991:162), for example, characterizes anthropologists
and historians as ``part of a colonizing horde be- take place in a parallel universe unaffected by the fierce
struggle of creative artists and the general public for freecause they seek to take away from us the power to define
who and what we are, and how we should behave access to information in the face of growing corporate
domination of knowledge, now commodified as ``con-politically and culturally.'' Trask evidently hopes that
indigenous peoples will eventually achieve exclusive tent.''24
To some extent, of course, ethno-nationalists
are reacting to this mad scramble for control by pro-power to represent themselves to the world at large. If
realized, this vision would impound knowledge in a tecting what they can. But nothing would serve corporate
interests more perfectly than the collapse of thenew reservation system: reservations of the written
word, an apartheid of the mind.23
idea/expression distinction or the abandonment of time
horizons on copyrighted material. Expectations thatIn his reflections on the separatist movement in Quebec,
Richard Handler (1988:194) observes that national- such radical extensions of intellectual property laws
could be restricted to indigenous populations throughists make preemptive claims to knowledge because
they are ``haunted by a vision of totality'' that can be the establishment of regimes of special rights are extremely
naive. The legal frameworks necessary to sus-achieved only when a people becomes ``an irreducible,
homogeneous unit, securely in control of its borders, tain the permanent protection of entire cultures will inevitably
require greater involvement of governmentalself-contained, autonomous, and complete.'' The ethnic
nation, in other words, seeks to recover and then to con- or quasi-governmental agencies in the business of determining
who is a native person and exactly what qual-trol its history and its folklore, sharing it with outsiders
only in forms that it deems appropriate. A consideration ifies as indigenous knowledge, a situation that one
would be hard-pressed to see as beneficial for ethnic mi-of the moral standing of this dream of cultural purity is
beyond the scope of this essay. But there can be little norities. One wonders, too, about the fate of those artists--Louise
Erdrich, Allan Houser, and Baba Olatunjidoubt that attempts to impose new border controls on
the flow of knowledge raise troubling questions that come immediately to mind--who have drawn on native
identities to fashion art that transcends ethnic bound-should be resolved, or at least thoroughly discussed, before
supporting new legal regimes that codify cultural aries. Would they, too, have to ``repatriate'' themselves
to satisfy the demands of a system that defines owner-property and potentially even criminalize its unauthorized
possession. ship primarily by ethnicity?
A realist perspective acknowledges the uneven hold
that intellectual property laws have on the flow of
knowledge into and through the new digital technolo-Closing Thoughts
gies. Even the supposedly privileged artists and writers
of the majority culture routinely find their copyrightsAlthough there are compelling reasons to be skeptical
of some indigenous intellectual property rights propos- violated by information-distribution services that provide
copies of works to clients on demand (Tisdaleals currently under discussion, I strongly support efforts
to create basic mechanisms for the compensation of na- 1997:70). One can imagine how much more difficult it
will be to police the comprehensive copyright protec-tive peoples for commercial use of their scientific
knowledge, musical performances, and artistic cre- tions now being considered for indigenous cultures. As
the legal scholar Jessica Litman (1991:248) has pointedations. Equally necessary are clear guidelines for the
collection of culturally sensitive ethnographic data and out, when copyright regulations diverge too dramatically
from the practical understandings of authors andpotentially marketable human biological materials, including
cell lines. I would hope, too, that anthropolo- the general public, these laws lose legitimacy. This
problem would surely intensify were governments togists will continue to register objections to the patenting
of medicinal and agricultural plants discovered or implement radically expanded copyright laws designed
to protect all forms of intangible cultural property. The
ensuing flurry of litigation would favor only the largest
23. ``In such circumstances, a particular version of the past becomes
a commodity that can be mobilised for political power and
economic gain, where a sovereign territory of knowledge is asser- 24. See, for instance, Bettig (1996), Browning (1997), Samuelson
(1997), and Schiller (1989) for discussion of attempts by Northtively appropriated as one's `own,' in the interests of creating a useable
history that will serve as a vehicle for correcting past wrongs'' American media interests to impose ever more restrictive copyright
laws on the rest of the world.(Munro 1994:233).
brown Can Culture Be Copyrighted? 205
corporate interests, for whom legal fees are simply a more one of respect, but of taking sides, of solidarity.routine
cost of doing business.
Conspicuous by its absence is a vigorous defense of
the concept of a public domain.25
This is doubtless be- Fortunately, something close to Taylor's vision of authentic
intercultural respect appears to be taking holdcause postcolonial scholars regard appeals to notions of
the civic whole as thinly veiled advocacy for (white) in archives and museums. Aware of their responsibility
to protect public records while remaining responsive toelites. ``Whose public are we talking about?'' they ask.
The question admits of no easy answer. The realities of the concerns of groups who claim an interest in them,
repositories are willing to ask tough questions of thosemoney, power, and social capital make the public domain
more accessible--and exploitable--for some citi- who demand that irreplaceable cultural information be
destroyed or closed to the multiple publics whom theyzens than for others. Yet the public domain that permits
the intellectual colonization of native peoples also of- serve. New working relationships between repositories
and indigenous communities, many set in motion byfers resources that they regularly appropriate for their
own cultural redefinition and political advancement NAGPRA, are helping to foster relationships of mutual
trust that produce realistic compromises appropriate to(Coombe 1997:74­75). The same cannot be said for systems
that dispense information on a strict need-to- individual cases (Nason 1997). Similarly pragmatic ethical
protocols are being formulated by anthropologistsknow basis.
Lurking in the background is a curious reluctance to and ethnomusicologists (see, e.g., Seeger 1996). If
clearly communicated and enforced by professional so-come to grips with the pragmatics of multicultural democracy.
It is one thing to insist that the deeply felt cieties, these codes are likely to prove more effective
than radically expanded legal regimes for the protectionviews of a particular minority be taken seriously, quite
another to propose workable procedures by which these of intangible cultural property, which will provide guaranteed
employment for bureaucrats while doing little tocultural differences (which of course must be multiplied
by the number of ethnic groups and subcultures shield native peoples from the depredations of mass society.that
a given nation encompasses) can be reconciled with
majoritarian government and a commitment to equal Perhaps the most promising approach is advanced by
scholars such as Karen J. Warren (1989) and Donaldtreatment before the law. Every legitimate demand for
special consideration, including the claim that native Tuzin (1995), who argue that frameworks based on joint
stewardship are preferable to models based on rightspeoples deserve regimes of intellectual property unique
to them, must be weighed against the injurious effect and rules. Joint stewardship implies a willingness to
compromise, which is essential for hammering outthat special rights have on prevailing notions of fairness.
The philosopher Charles Taylor, who along with workable agreements between parties who may hold incompatible
attitudes toward the proper use of informa-such legal thinkers as Ronald Dworkin (1986) and Will
Kymlicka (1989) has done some of the heavy lifting tion. The historian Doug Munro (1994:236) notes that
the intercultural encounter is a shared experience thatshirked by anthropologists, asserts that if one genuinely
takes the claims of minorities seriously, they must be belongs solely to neither party. ``In short,'' he adds, ``the
terms `insider' and `outsider', far from representing dis-assessed with the same thoughtful deliberation that we
insist upon in legal proposals coming from the cultural crete categories, are convoluted and often permeable.''
A basis for joint stewardship is admittedly harder tomainstream. Taylor rejects the simple-minded relativism
that says, in effect, ``If the So-and-So demand it, we find in the predatory activities of corporations that seek
to appropriate indigenous knowledge for commercialmust give it to them because their cultural values are
as valid as our own.'' For Taylor (1994:70), this demon- purposes. Even here, however, situational pragmatism
may prove more effective than a radical expansion of in-strates ``breathtaking condescension.'' He continues:
tellectual property laws to encompass every aspect of
No one can really mean it as a genuine act of re- native cultures. Widespread public sympathy gives naspect.
It is more in the nature of a pretend act of re- tive peoples considerable influence in the court of world
spect given on the insistence of its supposed benefi- opinion, and this can be used to pressure corporations
ciary. Objectively, such an act involves contempt into complying with basic ethical standards. Creative
for the latter's intelligence. To be an object of such licensing partnerships between native communities
an act of respect demeans. The proponents of neo- and corporate interests offer another path to fair comNietzschean
theories [expressed in the work of Fou- pensation and a modicum of indigenous control (see
cault and Derrida] hope to escape this whole nexus Cleveland and Murray 1997:488). Like most realist
of hypocrisy by turning the entire issue into one of strategies, these options lack the rhetorical appeal of
power and counterpower. Then the question is no ethno-nationalist denunciation or the hyperrationalist
allure of novel legal schemes, but they are far more
25. A notable exception is the Bellagio Declaration (Boyle 1996: likely to produce the desired results.
195), which advocates ``an increased recognition and protection of In the final pages of The Protestant Ethic and the
the public domain'' in tandem with the creation of regimes of speSpirit
of Capitalism, Max Weber (1930:181) speakscial rights for indigenous peoples. For critiques of the concept of
movingly of modernity's ``iron cage,'' an ascetic ratio-the public domain and the notion of common human heritage, see
Pask (1993) and Coombe (1996). nalism driven by the overwhelming power of material
206 current anthropology Volume 39, Number 2, April 1998
goods. Weber's iron cage has steadily expanded to in- their knowledge as private property, and it is understandable
that their ethnographers should be sympa-clude ideas and images, which have become tokens in
economic exchanges facilitated by the new information thetic to their attempts to empower themselves. This
process is reinforced when indigenous people see theirtechnologies. To resist the expansion of these processes
into indigenous cultures, legal experts and indigenous knowledge of plants and medicines converted into private
property by outsiders and corporations throughadvocates have come forward with proposals to sequester
some forms of knowledge and to protect everything patenting.
Privacy laws in Western democracies establish a dis-else with dramatically expanded intellectual property
laws. Unfortunately, the advent of the Age of the Simu- tinction, variously drawn, between public and private
spheres of activity, and patents and copyright providelacrum has rendered the first strategy futile, although it
may provide a false and temporary sense of security. analogous protection for private ideas. When we are
dealing with artefacts and the hidden meanings ofThe second represents a total surrender to the commodifying
logic of advanced capitalism. Now it may be time paintings and rituals it may be feasible to work out a
compromise between those seeking enlightenment andto temper demands for comprehensive copyrighting of
native cultures with earnest reflection on the future of those who wish to protect the privacy of their knowledge.
Compromises are harder to reach with referencethe imperiled intellectual and artistic commons called
the public domain, whose survival is of vital signifi- to social activities that traditionally have been perceived
as part of culture. Cross-cousin marriage can nocance to us all.
more be effectively patented than syllogistic logic. A
real conflict arises when a material object has different
meanings for different actors. One example is recently
unearthed bones of individuals who lived long ago. Ar-Comments
chaeologists in Australia see these as providing information
about the type of DNA prevalent during past
millennia, whereas Aborigines tend to see them as thej. a. barnes
Sociology Program, Research School of Social bones of ancestors which should be reburied.
The difficulties currently faced by social scientists ofSciences, Australian National University, Canberra,
A.C.T. 0200, Australia. 7 x 97 all kinds in our quest for enlightenment arise from the
shift in the balance of power that has occurred during
the past hundred years or so. Not only so-called indige-With limited space I can comment on only a few of the
many points mentioned by Brown in his wide-ranging nous people but all segments of society (with the possible
exception of children) are nowadays in muchand very perceptive paper. He raises issues likely to become
increasingly critical for anyone seeking greater stronger positions to obstruct or influence the gathering
of information about them and its subsequent dissemi-knowledge and/or wider justice. Both goals are estimable,
but unfortunately the paths leading to them often nation. Though this makes the task of social inquiry
more difficult, we should not regret it; reduction of ine-diverge. Roughly speaking, there are three overlapping
ways of perceiving knowledge: as a source of enlighten- qualities in the distribution of power is just as essential
for maintaining liberal democracy as is a free flow of in-ment, as a source of power, and as a kind of private property
(Barnes 1980:64­66; 1990:209­11). Knowledge as formation. Brown's paper reminds us that in our postcolonial
world the inequalities we should target are noenlightenment enhances our understanding of the
world; the more people possess it the better, and there longer those between indigenous peoples and colonialist
ethnographers but those between private citizensis no zero-sum game. Brown stresses that a flow of information
is essential to ``a liberal democracy,'' a type and powerful corporations, whether secular or religious.
We can put our ethical house in order for the presentof polity he implicitly endorses. As power, knowledge
helps us to alter the world; actors compete rather than and future, but what should we do with knowledge
gained in the past under conditions we now reject?share, and the game approximates to zero-sum. Possession
of knowledge as private property may be a value in Brown mentions the quarantining of the records of Nazi
medical experiments. Perhaps in the short term thisitself; secrets can be hoarded unused but enjoyed and
shared only very selectively. Anthropology, like other may be the right way to handle these records; nevertheless,
we don't feel that we should, for instance, stop vac-social sciences, is premised on knowledge as enlightenment,
although administrations have intermittently cinating children against smallpox because Jenner didn't
get clearance from an ethics committee before doing histried to use ethnographic knowledge as a source of
power. Some societies, notably those of Australian Abo- experiment. There seems no reason for adopting an ostrich-like
stance of refusing to see and use informationrigines, elaborate the notion of knowledge as private
property; it is local Aborigines who have organized seg- that is already in the public domain. In any case, as
Brown points out, for every overconscientious ostrichregated museums at Yuendumu in Central Australia,
one for men and one for women. But irrespective of cul- there are many more actors who have no intention of
burying their heads in the sands of pseudo-ignorance.tural emphases indigenous peoples everywhere are typically
materially poor and politically powerless. Possess- Material objects collected in the past call for different
treatment. Much that is now stored in museums woulding meagre resources, they tend not surprisingly to view
brown Can Culture Be Copyrighted? 207
have perished long ago if it had not been taken into et al. 1994). The Zuni also offer evidence that not only
museum curators but indigenous peoples can be veryalien custody. Many indigenous communities are, however,
now well able to preserve their own heritage and practical in their approach to intellectual property in a
globalizing world.thus have good grounds for reclaiming their former possessions.
I agree emphatically with Brown's statement that resolution
will require reflection on the part of those holding
different positions on their ``global implications'' in
order to achieve suitable compromises. Rather than fo-david a. cleveland
Department of Anthropology, University of cusing on methods, we might better first try reaching a
consensus on goals. To the extent that conservation ofCalifornia, Santa Barbara, Calif. 93106-3210, U.S.A.
(clevelan@alishaw.ucsb.edu). 12 xi 97 cultural diversity is an agreed-upon social goal, we need
to explore how existing and new ways of managing intellectual
property can best serve this goal.Brown's review of current approaches to ``rights'' in
``culture'' is an insightful and stimulating critique. He
skillfully points out the confusion of values and facts
that characterizes so much of the debate over rights to rosemary j. coombe
Faculty of Law, University of Toronto, Toronto, Ont.,intellectual property, especially among advocates of indigenous
rights. A narrow struggle over intellectual Canada M5S 2C5. 27 x 97
property diverts public discussion about mutual respect
and the fragility of indigenous cultures in a global soci- ``Can Culture Be Copyrighted?'' addresses several issues
of contemporary political significance to cultural an-ety, and anthropologists should face up to the probable
effects on the public domain of greatly expanded intel- thropologists and points to many of the ethical dilemmas
that attend the movement towards an intellectuallectual property protection of cultures. I differ with
him, however, on several points. property paradigm for promoting cultural self-determination
through control over cultural patrimony and theHe accepts the ``political ideals of liberal democracy''
as a standard for dealing with secrecy. Yet many indige- protection of local knowledges. The author's case, however,
may be as overstated as the rhetorical strategies tonous groups, such as the Hopi he cites, have a wide
range of views on the recognition and treatment of which he is responding. As a lawyer and an anthropologist
I think that the debates around intellectual prop-rights in intellectual property (Cleveland and Murray
1997). ``Ethical realism'' is advocated as a ``common- erty are neither sufficiently careful in their articulation
of the law nor ethnographically sensitive to the con-sense'' approach to the ethics of intellectual property,
but it is only ``realistic'' and ``commonsense'' if one texts in which intellectual property assertions arise as
rhetorical claims.agrees with the liberal democratic values on which it is
based. My point is that there is a ``realistic'' or ``com- Let me begin with the law. In his title and introductory
paragraph, Brown conflates intellectual propertymonsense'' approach only from within particular
worldviews. What, for example, is the basis for Brown's with copyright, when in fact many of the assertions
made by indigenous peoples have been made as inter-statement that he doesn't know how one could possibly
endorse a practice as ``appalling'' as the ``Smoki'' Snake ventions in the fields of patents and trademarks. None
of these domains of intellectual property provides abso-Dance yet also condemn those who seek to limit all
outsider use of insider religious knowledge? Where one lute rights of exclusion; all are premised on a social bargain
that grants specific rights and imposes specific re-draws the line is a matter of values, not of discovering
some absolute standard. Any agreement must therefore sponsibilities on holders who exercise these rights in
the public sphere. It is true, as Brown recognizes, thatbe based on open-minded negotiation.
Brown suggests that it is ironic that those who seek rights of proprietary exclusivity have been expanded
over the course of this century at the expense of broaderto protect local cultures with ``expanded intellectual
property rights laws'' typically denounce capitalism principles of public policy and that the public domain is
increasingly endangered by the overreaching of industrywhile encouraging the commoditization of ethical and
political discourse. However, the motives and methods interests. Ironically, as rights to real property have become
more and more attenuated to accommodate socialof local groups and their advocates are not homogeneous.
Some groups are using industrial-world intellec- needs, rights to intellectual properties have become
more absolute. It is precisely in such contexts that prop-tual property rights laws and asking for their expansion
because this seems the best way to protect their culture erty claims become compelling as ideological vehicles
with which to assert other interests and voice otherfrom outsiders using these same laws. In the case of
crop genetic resources, advocates of local farmers' rights concerns. We should, however, bear in mind the political
positionings of those who articulate social needs ininitially pushed for free access to all resources, but
strong opposition by industrial nations led to a switch the idiom of rights and the imperative of making concerns
known in authoritative discursive forms. Prop-to advocating intellectual property protection for farmers'
crop genetic resources (Fowler 1994). Other groups erty, though, is more dynamic than its ideological deployment
might suggest; it is constituted of flexibledemand that their own intellectual property rights regimes
be respected by outsiders, as do the Zuni (Soleri nexi of multiple and negotiable relationships between
208 current anthropology Volume 39, Number 2, April 1998
persons and things that continually shift to accommo- with self-development, self-determination, and the promotion
of dialogue and dialogic conditions must be cen-date historical recognitions of prior inequities and current
social needs. tral to issues of cultural representation. To the extent
that anthropological records have been influential inI am uncomfortable, also, with any vision of democracy
which poses complete freedom of speech and full characterizing and authoritatively representing the cultures
of others in some jurisdictions, questions aboutaccess to all cultural forms as the only response to corporate
possession of culture, broadly defined. Absolute the conditions under which such records were compiled
and authored seem entirely apposite. To the extent thatrights of private property and absolute rights of access
to the public domain entertain only extreme points of anthropologists were complicit in giving cultural identity
its contemporary juridical force and providing thea Eurocentric spectrum of possibility that needs to be
challenged by the cultural mores of others. Peoples have means by which authorities fixed and defined such
identities, it is unfortunate but not surprising that de-other relationships to cultural forms--trust, secrecy,
guardianship, stewardship, initiation, sacralization-- scendents of these anthropological informants have to
claim these records as their property in order to preventand obligations to relatives, ancestors, spirits, and future
generations which make models of access and own- their continuing use to define their cultures. In this
context, it is somewhat disingenuous to claim that, asership appear extremely impoverished. Such knowledge
is not adequately understood as information, nor may ethnography moves in a confessional direction that situates
the author more squarely in the text, ``the Otherits circulation be properly understood as speech.
Indeed, Western notions of property are themselves is claiming ownership of the textual simulacrum.'' This
is to conflate two distinct historical periods and atti-not nearly as narrow as this dichotomy between exclusivity
of possession and an unrestricted public com- tudes towards ethnographic authority and to discount
the ways in which ethnographic fictions have histori-mons would suggest. Western juridical traditions recognize
relations of trust (express and constructive), cally figured as truths in regimes of power and knowledge.
Who determines where fiction resides and in whatfiduciary obligation, implicit license, breach of confidence,
stewardship, and local observances of negotiated circumstances? Clearly, if we are to encourage democratic
dialogue, we must open these questions up to ancustoms and ethics. Brown asserts that secrecy and
strict control of knowledge contradict the political ide- ``urgently needed public discussion about mutual respect
and the fragility of native cultures in mass societ-als of liberal democracy, but trade secrets, corporate
confidentiality arrangements, and the fiduciary obliga- ies.'' To grant native peoples full voice in these discussions,
however, may well involve a preliminarytions of employees (not to mention ties of kinship obligation)
have long been important means of maintaining recognition of proprietary claims--not as exclusivity of
possession but as bundles of multiple rights and rela-the value of intangibles in industries and family firms
in capitalist democracies. Certainly some holders of tionships still to be delineated in contested and contingent
dialogues that may well reshape the concept ofvaluable knowledge and cultural forms have had greater
resources at their disposal than others to preclude the property as we think we know it.
dilutions and devaluations occasioned when these valuables
are transformed into mere information freely
available in the public domain. By using the idiom of philippe descola
Ecole des Hautes Etudes en Sciences Sociales, Paris,property, then, many indigenous peoples may simply be
taking the initial and necessary step of insisting upon a France. 23 x 97
leveling of the playing field before working out the details
of particular contractual arrangements. Contracts Brown must be commended for his fair and subtle treatment
of a difficult topic usually fraught with controver-based upon duress, unconscionability, coercion, and
grossly unequal bargaining power are not enforced in sial or shortsighted statements. I share most of his
views, especially his strong commitment to the conceptmost democracies, and our legal regimes are constantly
forced to deal with demands for restitution and com- of the public domain, and would not have thought it
necessary to add a comment had he not treated toopensation in such instances. The trivialization of symbols,
the disparagement of peoples, and misrepresenta- lightly perhaps what I perceive to be one of the most
serious consequences of what he calls ``ethical absolut-tions in the public sphere are also injuries that legal
systems both recognize and redress in fields as diverse ism,'' namely, the covert institutionalization of cultural
apartheid as the postmodern form of racial apart-as tort, unfair competition, and trademark; First
Amendment concerns are indeed raised and interests in heid. Most claims advocating indigenous intellectual
property rights studiously avoid formally defining thefreedom of expression balanced, but speech rights have
never been recognized as absolutely trumping claims status of the populations to which special-right regimes
should be granted. This is perhaps because the debatebased upon injuries effected by expressive activities.
The emphasis upon freedom of expression and its role has been mainly restricted up to now to native peoples
of the Americas and Australia, that is, to cultural andwithin a democracy in this critique must begin with
some assumptions about why we value this freedom linguistic autochthonous minorities that are clearly
identifiable within nations settled by Europeans. In theand to what ends. Although there is a rich vein of philosophy
and jurisprudence to be mined here, concerns course of their struggles for land, dignity, and the recog-
brown Can Culture Be Copyrighted? 209
nition of their cultural uniqueness, these minorities populations through the implementation of specific legal
frameworks but by a vigorous defense of whathave often obtained special or derogatory legal statutes
(concerning land tenure, civic duties, or personal rights) Brown calls ``ethical realism.''
which contribute to setting them apart, socially and
spatially, from ordinary citizens and render them more
conspicuous as distinct subsets of the national commu- l. r. hiatt
79 Addison Way, London NW11 6AR, U.K. 6 x 97nities. But such visibility is not the norm everywhere
in the world, and advocates of ``differentialism'' should
perhaps pay more attention to the fact that cultural di- Suppose an ethnic nation wishes to prevent outsiders
from (a) making money from its culture that could beversity is not only an internal phenomenon typical of
great melting-pot nations but also a feature of the whole made instead by its own members and (b) making any
statement about the culture that the ethnic nation findswide world. Now, if there is a lesson that we have
learned from anthropology, it is the impossibility of offensive. Anthropological associations might at a certain
point be expected to lobby against such protection-conceiving cultures as bounded territorial wholes defined
by sets of substantive attributes. Who will decide, ism, since (a) their members' jobs are threatened and (b)
they cherish critical inquiry and free speech. The indi-then, and how, that a specific social grouping does or
does not qualify as a genuine native minority, ethnic cations at the moment, judging from Brown's exemplary
essay, are that anthropologists are ready to aban-nation, folkloric community, or whatever you choose to
name the culturally unique potential beneficiaries of a don both profession and libertarian principle in the
perceived interests of those whose cultures form theirspecial regime of collective intellectual property rights?
Are we to consider the Basques (who are among the eth- subject matter.
Support of the weak against the strong is a noble tra-nic samples of the Human Relations Area Files) as
likely candidates? Or the Welsh, or the Ossetians, or the dition, long entrenched in the ethos of anthropology,
and altruism is a virtue not to be mocked. Brown, as IKabyles? And if not, for what reasons? Are they not minorities
within nations, with their own distinctive cul- read him, has no quarrel with either. His argument,
rather, is that legal and bureaucratic control of culturaltures and languages and a long history of difficult relations
with hegemonic states? Are they not as much property is likely to benefit the strong more than the
weak, for example, entertainment corporations moreentitled as the Apache tribes to demand control over all
images, texts, ceremonies, music, songs, stories, sym- than folk musicians. It would certainly benefit lawyers,
bureaucrats, and political elites more than rank-and-filebols, customs, and ideas relating to them? And if the
possibility for these types of cultural minorities to gain culture-bearers in nations and ethnic nations alike.
Special pleading has an inherent tendency to backfire.exclusive control over their ``cultural property'' is
brushed aside as fanciful or ludicrous, is it not because The very values of the open society that have facilitated
the exposure of iniquities perpetrated against indige-an implicit distinction is made between, say, the
Basques and the Kabyles, on the one hand, and the nous minorities must surely be compromised if the latter
are now encouraged to reconstitute themselves asApache and the Pintupi, on the other, regarding their
very essence and claims to authenticity? If this is the closed societies. How can we avoid a charge of cynicism
if we insist on freedom of information in the interestscase, it is quite worrying. Europeans have very painful
memories (and nightmarish contemporary examples) of of an ethnic nation whose own bureaucrats practice
censorship? How can we in good conscience acquiesceideologies that claim ethnic purity as the basis for selfclosure
and self-fulfillment. Although the fiction of pu- in a demand that nothing offensive be said about the
cultural beliefs and practices of an indigenous minorityrity was established mainly according to supposedly racial
criteria, cultural dimensions were also taken into while resisting similar demands from chauvinist and religious
interests among the settler majority?account, especially in the German vo¨lkisch tradition, to
underscore the uniqueness of communities and the ne- Sooner or later the right to censor statements about
ethnic nations made by outsiders would be assertedcessity of their segregation (Conte and Essner 1995).
Even now, far-right movements such as the Front Na- against insiders as well. Whatever solidarist illusions
may be cultivated for ideological purposes, nations en-tional in France disguise their acute xenophobia under
claims that cultures should not be mixed for fear of los- compass competing social forces. Ethnic nations are no
exception. And were a metropolitan government to au-ing the specific identities that they convey. To be perfectly
clear, I do not mean that advocating collective in- thorise an agency within an ethnic nation to define its
culture and decide what might and might not be saidtellectual property rights over cultural patrimony for
ethnic minorities is akin to racial segregation; rather, about it, in practice the external power would be favouring
certain internal sectional interests and tendencieshistory has taught us that giving special status to specific
peoples is fraught with dangers, as it tends to per- at the expense of others. By conferring upon an ethnic
nation the right to suppress ideas and productionspetuate the idea of irreconcilable substantive differences
between fellow-humans. The collective debt that deemed to be offensive to its subjects, it would in fact
be equipping dominant factions with a legal mechanismEuro-Americans have incurred while submitting native
populations to different forms of genocide and ethno- for discouraging dissidence and silencing rivals.
With Brown, I strongly support measures designed tocide will only be dispelled not by setting apart these
210 current anthropology Volume 39, Number 2, April 1998
protect creativity in indigenous communities against tions difficult to handle for any anthropologist engaged
in research on indigenous people. Even so, he seems tocommercial exploitation and to ensure a fair return to
native artists whose productions enter the marketplace. enter the discussion with the prime aim of provoking
advocates of indigenous people's rights, whom he de-Such objectives can be achieved without a totalistic
copyrighting of culture. Anthropologists who allow scribes as ``romantic social critics.'' Instead of slogans
and ``polemical romanticism'' he calls for a return to atheir compassion for the underprivileged to take them
down that path are helping to lay the foundations of to- ``realist perspective'' considering these questions in all
their ``ambiguity and nuance.'' But by departing from atalitarian ministates.
simplistic polarisation of positions (realism vs. romanticism,
analysis vs. slogans) he does not take us far in
that direction.jean jackson
Anthropology Program, MIT, Cambridge, Mass. Reading Brown's article, I cannot help wondering
why a person called upon to defend the sacred principles02139, U.S.A. 27 x 97
of liberal democracy chooses to make Native Americans
his target. Brown has no problem with the state'sBrown has written a thoughtful, well-researched essay
on a very controversial topic. The basic issue he ex- right to withhold ``sensitive'' information on ``matters
of national security'' while getting terribly worried overplores is how best to protect indigenous peoples and
culture in a world increasingly characterized by digital the Hopi and Apache peoples' resentment about sharing
information relating their religion. One would assumereproduction, commercial interests developing evernew
forms of prospecting, and ever-increasing appropri- that a civil rights activist would have it the other way
around. I also find it striking that while Brown holdsation of the exotic because it is authentic, curative, natural,
etc. The problem is a very real one (see, e.g., the democracy sacred, he fails to extend similar principles
of respect and tolerance to others. When Native Ameri-contributors to Greaves 1994). We are right to be concerned
about increasing corporate domination of cans oppose New Age groups' misuse of their sacred rituals,
Brown remains silent and without compassion. Heknowledge--one of several ironies pointed out by
Brown, given that some of the push for commodifica- argues instead that the most interesting thing about
this is that the native religious leaders oppose such ap-tion and copyright comes from corporations seeking increased
profits by having exclusive rights to produce propriation on the ground of the inherent power of these
rituals and not because the New Age rituals are ``bo-medicines, cell lines, and the like obtained from indigenous
peoples. However, commodifying and copyright- gus.'' Another problem with Brown's approach relates
to his assertion that indigenous people's claim for cul-ing culture as opposed to the products of a culture (such
as varieties of corn) is full of hazards, regardless of how tural property rights is an opening bid in political horsetrading.
This again is an oversimplification, leaving outappealing the restriction of access to it may appear in
the face of egregious cases of disrespect and exploita- existential dimensions having to do with respect, recognition,
and identity. This also reflects Brown's argu-tion.
After reading this article we have a far better under- ment that as most native peoples face threats to their
economic and political sovereignty, they have littlestanding of the many dilemmas involved that have
helped turn this issue into a lightning rod. Brown's dis- time to ``freť' over issues of cultural properties (suggesting
that such concerns are a luxury that only better-cussion deftly reveals why we--whatever our position--find
this issue so threatening. Clearly, many off indigenous people in the ``Wesť' can afford). That
indigenous nations even face genocide does not makescholars and activists will disagree with Brown's position,
and this is as it should be, for several deeply held them less concerned with cultural matters. In fact, because
having a culture of one's own is crucial to con-values are in conflict. Knowing why and how seriously
irreconcilable some of these values are helps to keep temporary claims of self-determination, tremendous
energies and emotions are invested in things like pro-knee-jerk responses to a minimum and to facilitate the
search for more workable solutions. tection of language or preservation of traditional religious
practices and symbols.A quibble: I find Alan Wolfe's critique, cited by
Brown, seriously flawed and think that he could have When most anthropologists, myself included, argue
against or problematize earlier notions of culture as amade his argument without citing this particular example
of neoliberalist thought. coherent, bounded, and distinct ``property'' of a people
and instead talk about culture in terms of construction
and process (as culture-in-the-making), does this make
us enemies of those ``unenlightened natives'' who con-b. g. karlsson
Seminar for Development Studies, Uppsala tinue to reify culture and claim a culture of their own?
Brown thinks so, and casts the ``cosmopolitan'' scholarUniversity, P.O. Box 514, 751 20 Uppsala, Sweden.
20 x 97 against the ``indigenous'' activist. Yes, there are problems
in keeping culture an analytic concept when culture
has turned into a major site of conflict and popularBringing culture into the domain of rights, ownership,
and legislation is indeed, as Brown suggests, deeply mobilisation. Rosemary Coombe, whose work Brown
makes use of, argues that such antiessentialist claimsproblematic. Brown also raises several important ques-
brown Can Culture Be Copyrighted? 211
that culture is constructed and mobile always beg ques- teur) and the protracted discussions associated with Article
8.j of the Convention on Biological Diversity. Hetions of perspective--for whom and in what circumstances
is it so? And she asks, ``How does this claim also fails to consider the complex critiques put forth in
numerous indigenous documents and summarized insound in the struggles of those for whom `culture' may
be the last legitimate ground for political autonomy and reports of the Coordinador de Organizaciones de los
Pueblos Indígenas de la Cuenca Amazona Regionalself-determination?'' (Coombe 1997:93). Brown avoids
these critical matters. He further too easily reduces the Meeting on Intellectual Property Rights and Biodiversity,
the UNEP Consultations on Protection and Con-indigenous stance to one of cultural ``essentialism.'' I
think that Arif Dirlik is right in arguing that the indige- servation of Indigenous Knowledge, the Suva Declaration,
the Mataatua Declaration on Cultural andnous voices in fact are quite open to change, and what
they insist on is not ``cultural purity'' as such ``but the Intellectual Property Rights of Indigenous Peoples
(mentioned briefly in a footnote), the Indigenous Peo-preservation of a particular historical trajectory of their
own'' (1996:18). It then becomes crucial to ask why in- ples' Biodiversity Network, and the Charter of the Indigenous-Tribal
Peoples of Tropical Forests--to name adigenous peoples increasingly feel obliged to claim control
over what they see as their culture. What is the so- few. These documents show that indigenous ``activists''
are well aware of the dangers of intellectual propertycial and historical context for such assertions?
In India the debate over indigenous cultural property rights. Indigenous groups have made it quite clear that
the concept of ``property,'' and especially individualrights is largely absent. During my work among the
Rabhas or Kochas, an indigenous people in India, I have property, is alien and antithetical to their collective values.
They have repeatedly explained how many (but notnever been questioned over rights to my field notes,
photographs, publications, etc. And I do not know how all) songs, drawings, ceremonies, plants, animals, and
designs are inalienable and, therefore, can never beI would respond to possible later requests perhaps based
on the argument that the material was obtained under property. And they point out that individuals who use
or display them are the ``holders,'' ``trustees,'' or ``stew-coercive circumstances. As a sahib I have indeed been
on top of things, and if a person had nothing else at hand ards'' for communities, lineages, ancestors, gender
groups, future generations, or even spirits. Furthermore,he or she would certainly spare time to try to respond
to my questions. Power is an issue here, but to describe indigenous peoples have been explicit in showing that
``intellectuaĺ' aspects of culture cannot be separatedfieldwork as an exploitative encounter between oppressor
and oppressed is indeed, as Brown suggests, to take from ``physical,'' ``natural,'' or ``spirituaĺ' elements because
culture is an extension of nature (and vice versa).things too far. Brown is also right in acknowledging the
agency and strategies of the ``objects'' of anthropologi- Thus ``intellectual property'' is doubly inappropriate in
that it excludes plants, animals, and knowledge aboutcal inquiry, something which Roger Keesing has
brought attention to in his work on the Kwaio people. I them (seeds, soils, minerals, and management practices,
etc.)--all of which are inextricable elements of a soci-am looking forward to the day when Rabhas themselves
rather than any government department or forest au- ety's ``intellect.''
Brown, in contrast, reduces intellectual propertythority are entitled to issue research permits and control
access to their forest villages. rights to a question of copyright protection over material
expressions of culture. Most indigenous groups are
more worried about patents than copyrights. This is because
patents are much more powerful tools of monop-darrell addison posey
Centre for the Environment, Ethics, and Society, oly and globalization. Even so, some very innovative
proposals have been put forth for the development ofMansfield College, University of Oxford, Oxford,
U.K. 12 xi 97 community intellectual property rights, applying
know-how and trade secrecy for the protection of traditional
knowledge and genetic resources, and adaptingBrown argues that ``the debate over intangible cultural
property as it has been conducted by indigenous activ- copyright concepts to community-controlled data.
These are recognized by indigenous groups themselvesists has tended toward a polemical romanticism that
produces memorable bumper-sticker slogans but little as dangerous experiments but are anything but ``extremely
nai¨ve'' proposals as Brown claims.in the way of sober reflection on the difficult balancing
act required to formulate policies that provide reason- Brown also states that ``although advocates of expanded
intellectual property laws typically denounceable protection for minority populations while maintaining
the flow of information essential to liberal de- capitalist commmodification, they implicitly encourage
the translation of ethical and political discoursemocracy.'' This is not quite the case.
Unfortunately, Brown has chosen examples to give into the language of commodities.'' This may be true in
some cases, but the majority of those who discuss intel-the impression that indigenous groups are making demands
that will ultimately restrict the liberties and lectual property rights tend to employ the political discourse
of human rights: rights to land, territory, and re-freedom of others. He ignores the sophisticated debates
on intellectual, cultural, and scientific property in the sources, rights to full disclosure and prior informed
consent, rights to cultural integrity and customary prac-United Nations Working Group on Indigenous Populations
(although he cites a study by the Special Rappor- tices, and rights to equitable benefit-sharing and control
212 current anthropology Volume 39, Number 2, April 1998
over access to ``traditional resources.'' It may be true erty rights. The debate is, I feel, somewhat more positive
than Brown has portrayed it. Copyright will notthat in the rarefied discourse of ``cosmopolitan scholars''
(Brown's term, not mine) intellectual property gain additional respect for indigenous people, but its
discussion has already brought serious attention torights have been inadequately analyzed, but that is in
part because anthropology has not kept up with the rap- their claims. It is, however, useful to take up the different
forms of cultural information separately; the follow-idly advancing international debates of indigenous peoples
themselves. And, furthermore, anthropologists ing comments relate specifically to written material.
Access to information is a core issue in most socie-have restricted themselves to the theoretical discourses
in their favorite academic journals. The intellectual ac- ties, however differently phrased and differently constructed.
Intellectual property rights (such as copyright,tion is in fact in places like the World Trade Organization
(discussions on sui generis systems of intellectual patent, trademark law) are, as Brown notes, economic
in scope. Copyright ensures that individual creatorsproperty rights protection), the FAO (expansion or reconceptualization
of farmers' rights), the CBD (interses- have the incentive to allow copies to be made available
to the public. Access to information is thus never pre-sional process to implement Article 8.j), and ECOSOC
(debates on the Draft Declaration of Rights of Indige- cisely free. Costs are involved in locating material and
seeing it. Such costs are a control factor, though librar-nous Peoples)--not to mention the myriad conferences
and workshops that indigenous peoples themselves or- ies and archives--paid for by taxes, organizations, and
philanthropy--are sources available for reading freely.ganize to discuss copyrights, patents, community
rights, genetically modified organisms, biosafety, par- Market or political forces constrain the free flow of information.ticipatory
democracy, etc.
Brown asks: ``What [will] history or anthropology be- New technologies--printing presses, cameras, photocopying
machines, computers, etc.--continue to ex-come when scholars are prevented by law from writing
accounts specific enough to evoke the religious or polit- pand the availability of materials. These are not free either,
but they make access easier and bring it closer toical practices of protected native populations?'' One answer
could be: disciplines that finally have to negotiate home. They also raise new issues for copyright, control,
and economic benefit, and these issues are argued andthe terms of their intellectual pursuits with those who
are affected by the results of their studies--and, as a re- settled, usually in the courts and most often by corporate
giants. Protection of individual (or corporate) rightssult, begin to develop questions and methodologies that
address the political problems that indigenous peoples in creation has been under discussion since the 15th
century (currently, ``creations'' such as databases are be-still face. It would then be impossible for anthropology
to ignore the intellectual contributions of indigenous ing examined); it is a fluctuating, ongoing dialogue,
changing as society and technology change.scholars, faith-keepers, and political leaders that may be
well ahead of the debates academics think they are pio- Copyright and the use of materials through libraries
and archives exist in a socioeconomic context. An ex-neering.
Despite what may seem harsh comments, I am basi- amination of these same issues in, say, France or Egypt
would show differences in such concepts as authors'cally in sympathy with Brown. He is right to warn us
of the serious threats from intellectual property rights. creative rights and public domain. The burgeoning field
of electronic communication (leaving aside any ques-He is also justified in pointing out the urgent need for
sophisticated analysis of ``common property'' concepts tions about the content or context of that information)
illustrates the competing forces of corporate interests,in globalization debates. I also heartily endorse one of
his principal conclusions: that ``pragmatic ethical pro- rights to privacy and to information, individual economic
claims, concerns of community or religioustocols'' (codes of ethics and standards of practice) for
science and industry are far more desirable than radi- groups, and questions about preservation of information
for the long term. Discussions are ongoing over thecally expanded intellectual property rights. The International
Society for Ethnobiology has taken nearly a de- boundary between what is public and what private information,
between ``free'' and ``costly'' access, betweencade to develop a draft Code of Conduct that will be
debated during its next world congress, to be hosted by secrecy and openness, between what may inform and
what may harm.the Maori Congress of Aotearoa/New Zealand. A Maori
lawyer co-chairs the Ethics Committee, and the ethno- There is no reason that native groups should not argue
these issues in the same courts and in the samebiologists will be in the minority at the Congress for the
discussion. That figures to advance understanding, re- manner as all the other parties to this dialogue. If, as
Brown notes, secrecy is ``of course'' warranted for na-search, and respect for rights inways that laws never will.
tional security, there seems no underlying reason it
should not also be warranted for any other culturally determined
issues of sensitivity, as it is for privacy. By thewillow roberts powers
Department of Anthropology, University of New same token, there is no reason that the legal solutions
will be any more satisfying, any less ambiguous. TheMexico, Albuquerque, N.M. 87131, U.S.A.
(wrpowers@trail.com). 21 x 97 law is a blunt, two-edged, and expensive tool for deciding
the issues.
Brown, noting the control that copyright exerts overBrown's essay is a cool-headed discussion of the broad
array of issues in the debate regarding intellectual prop- access and hoping that it is not expanded by new intel-
brown Can Culture Be Copyrighted? 213
lectual property rights laws, suggests a joint steward- tance in any discussion of property--particularly as it
relates to indigenous peoples--how one constructs a setship of cultural information. His point is that information
should be free. This is a cultural ideal shared by the of appropriate analogies. In addition to casting issues of
property in terms of relationships rather than controlnation's archivists and librarians. It is a crucially important
ideal which, like community harmony, is much over objects it makes a great difference whether the objects
currently in dispute are likened to forms of prop-honored in the breach.
With regard to archival materials, there are the begin- erty recognized in an existing legal regime or symbolic
of a deeper political history. If, for example, in any suchnings of new approaches. Archivists have started dialogues
on the issues of access with neighboring, and discussion one replaces indigenous intellectual property
with a form common in the West--music, litera-sometimes distant, American Indian communities. The
Special Collections director at the Cline Library, North- ture, design--it might seem, given Brown's criteria,
that no system of legal protection could ever succeed:ern Arizona University, has opened discussions with
the Hopi Tribe, seeking information and joint solutions. the same criticisms he raises for indigenous property--
that someone will always modify the original or hideJohn Adair's papers have been acquired by the Wheelwright
Museum in Santa Fe with an agreement to work it (digitally or otherwise) or that borders are invariably
porous--would apply equally to similar Western prop-out an access and use policy with one of the communities
in which Adair worked for materials relating to that erty forms. But his article (and my comment) are copyrighted
by the Wenner-Gren Foundation, and we bothcommunity. Tribal archives across the United States
are grappling with incorporating preservation of written presumably have some confidence in these laws or we
would not have signed over the rights. Thus from therecords into tribal budgets and in addition to an oral history
background. Native archivists are at work in an- outset it may be well to place a similar degree of confidence
in the concept of protection and then sort out itsthropological and other archives. These are models to
look at in this dialogue. appropriate forms in each circumstance--or forthrightly
criticize the very concept of protectible propertyThe issues relating to written materials as I hear
them are specific to each tribe or pueblo, tend to be dif- on deeper philosophical and political grounds.
Here the issues affecting indigenous intellectual prop-ferently perceived by native communities than by organizations
or individuals, relate often not to closed but erty begin to resolve themselves into two related considerations.
The first has to do with sovereignty. Brownto appropriate access, are often concerned more with
cultural than with economic points, are broadly con- does not mention this issue, but surely the question of
whose laws will apply suffuses the entire topic. If indig-strued to include all ``others'' including other tribes,
and do not imply total closure of all information for all enous property rights are seen as a subject matter over
which some polity will exercise jurisdiction, then ittime. Non-native participants in this dialogue are
equally responsible for raising issues and questions, as may be necessary at the outset to come to grips with
the appropriate distribution of powers as between indig-Brown has done, that are of concern for long-term solutions.
There are many opinions and many stakeholders. enous and superordinate polities. The issue of intellectual
property may, of course, serve as a vehicle throughThe quest is for balance. Appropriate access to and use
of information is part of this quest, for which the law which such power to control one's own affairs is itself
developed. But before one can get to questions such asis not an appropriate means.
the use of common accords or the distribution of powers
through applicable laws, greater recognition and regularization
of the powers of indigenous peoples need tolawrence rosen
Department of Anthropology, Princeton University, be addressed (see Rosen 1997).
This, in turn, raises the second question: Is it in-Princeton, N.J. 08544-1011, U.S.A. 10 x 97
tergroup relationships that are at issue here or only the
control over property-like objects? If it is the former,Not for the first time in history, the fundamental issues
that surround the concept of property--who may exer- then, as Brown himself suggests, we are not bound to
all-inclusive deference or hegemonic control as our onlycise power over what, for what purpose, and by what
right--coincide with technological development, com- options: It is possible to take issues one at a time having
laid the groundwork for negotiated accords such asmercial expansion, and cross-cultural contact. It matters,
however, which of several basic concepts of prop- those that inform a number of transnational agreements.
Differences of power will not predetermine out-erty we employ. If ownership is conceived not solely as
control over an object but as the relationships among comes as long as developing international custom supports
an array of accords from which parties maypeople as they concern that object, the forms of proprietorship
can be seen as inextricably bound to the politi- choose. And specific issues will benefit from the specific
attention they require as well as from the generalcal, the moral, and the emotional. To begin an understanding
of changing concepts of property with this context of internationally recognized intergovernmental
agreements.relational aspect in view may, of course, have a dramatic
effect on the very shape of one's analysis. Indigenous intellectual property thus confronts us
with a new form of an old puzzle: To what extent shallBrown's splendidly sensible analysis avoids the unambiguous
results that single-minded ideologies so of- the internal rules of another group be accorded deference
or constitute the subject of good-faith bargainingten demand. At the same time, it is of crucial impor-
214 current anthropology Volume 39, Number 2, April 1998
among sovereign entities? If the model of negotiation knowledge, or material culture. If we were indeed to
copyright indigenous cultures, to which Amazonianprevails, each troublesome issue may begin to be seen
in terms of differentiated political powers and the scope people should we grant rights to, let us say, the hallucinogenic
ayahuasca vine? To which Northwest Coastof government-to-government negotiation. The resultant
process may then partake of greater scholarly and people should we grant rights to potlatch rituals? Or, for
that matter, to which Andean people should we grantpolitical realism than the extreme positions that Brown
so rightly challenges. rights to chicha or maize beer?
A culture is ``a flexible set of understandings, dispositions,
and behavioral scripts'' shared by a given people.
However, cultures are not external entities distinctfernando santos granero
Smithsonian Tropical Research Institute, P.O. Box from their bearers. Although cultural forms may be collectively
constructed, cultural products are always the2072, Balboa, Panama (santosf@tivoli.si.edu). 14 x 97
output of particular individuals. In fact, among Amerindian
peoples an individuaĺs high prestige is very muchBrown's thorough analysis of current attempts to expand
the notion of copyright introduces much-needed dependent upon masterful production, whether of a basket,
a dugout, a garden, a song, or a mythical narration.sense and sensibility into a debate that frequently
seems to be disconnected from the harsh realities of an Cultures are not merely replicated ad infinitum by their
bearers but constantly enriched by the latter's creativeincreasingly global world. Approaching the subject from
different angles, Brown adds layer after layer of solid ar- acts. Thus, if it were possible to copyright cultures, who
would reap the profit from the marketing of specificgument to demonstrate the negative consequences that
attempting to copyright the cultural heritage of minor- products, the collectivity or the individual?
Although cultures have been (and unfortunately con-ity groups could have for free speech, the exchange of
information, and, more generally, the ``status of the tinue to be) treated as fixed, bounded realities, recent
studies have recurrently demonstrated that culturespublic domain.'' What is especially commendable is
that he opposes this copyrighting while leaving no ``change through time'' and are always in the making.
If copyrighting the culture of an indigenous people weredoubt that he firmly condemns the appropriation by
large corporations of indigenous cultural products for at all possible, which culture should be copyrighted--
the one at the time of European invasion, the one thatcommercial use. More laudable still, he avoids offering
ready-made solutions for a problem that, as he con- emerged after subjugation, decimation, missionization,
and resettlement, or the one existing at the time thestantly reminds us, is extremely complex.
Here I would like to elaborate upon five very practical copyright is granted? Should abandoned traditional
practices, some of which are now regarded with embar-issues that derive from the fluid character of cultures. I
consider these to be central to the problem being dis- rassment by contemporary Amerindians, be included,
or should only ``sanitizeď' versions of culture be copy-cussed, yet they have only been tangentially touched
upon, or implied in passing, by the author. righted?
Moreover, although the relationship between indige-As Brown states, cultures ``lack clear spatial and temporal
boundaries.'' Even the social groups that embody nous peoples and national societies is asymmetric, cultural
flows have not been unidirectional, benefitingthem rarely have clear-cut boundaries. More commonly,
there is a gradient of more or less inclusive only the latter. There are numerous Western cultural
traits that have been adopted by indigenous peoples notgroups that live in a certain region, have similar histories,
and share many cultural traits. For instance, the as a result of external pressures but for their beauty,
their usefulness, or their symbolic power. Beads, horses,Aguaruna people of the Upper Mayo River studied by
Brown are a somewhat distinct offshoot of the Aguar- and writing are good examples. Are these traits going to
be abandoned for the sake of purity, or are they goinguna of the Maran~ on River, who in turn have relationships
of alliance and hostility with a number of other to be included in the indigenous copyrights?
Whatever may be the answers to the above issues,Jibaro-speaking peoples on both sides of the PeruvianEcuadorian
frontier. Whose culture should we copy- they bring to mind one last question: Are not those attempting
to copyright culture running the risk of trans-right? That of the Upper Mayo Aguaruna, that of the
Aguaruna as a whole, that of the Aguaruna and the forming what are still vigorous cultures into fossilized
relics?Huambisa, who are now organized in a common ethnic
federation, or that of the Jibaro as a whole?
Not only do cultures lack clear boundaries but, as
Brown stresses, they ``freely influence, and are influ- carlo severi
Laboratoire ďAnthropologie Sociale, 52, rue deenced by, social interactions with other groups.'' Cultures
do not exist in a vacuum; they are constantly nur- Cardinal-Lemoine, F-75005 Paris, France. 3 xi 97
tured by contact with other cultures. No people exists
that can claim that its culture is a pristine product, un- Brown's paper raises important questions, political as
well as ethical, and does so with honesty and clarity. Itcontaminated by foreign elements--least of all Amerindian
peoples, who share a high proportion of traits, is evident that the confrontation of the Western and the
American Indian points of view in this context gener-whether myths, rituals, kinship systems, scientific
brown Can Culture Be Copyrighted? 215
ates two paradoxes. One originates from the attempt to democratic and liberaĺ' Western conceptions would be
unfair for at least two reasons. First, nonreligious per-consider a culture as a collective author in order to protect
it. From this perspective, the more one tries to pro- sons exist in Amerindian societies, too, and they should
obviously have a right to express their views just liketect culture--which should mean ``to preserve it as it
is''--the more one transforms it into a fictive construc- the others. Secondly, Amerindian religious customs
should be compared with Western religious traditions;tion very different from reality. The second paradox
originates from the attempt to apply criteria of legiti- the comparison between the intention to put some Indian
``ideas'' under the control of an intellectual copy-mate property (and legal conditions of trade)--typically
applied to merchandise made to be exchanged in a mar- right and the free use of syllogism ``invented by the
Greeks'' is not entirely correct. While a Western scholarket--to religious artifacts, which, by definition, are
made for ritual performances and do not belong in the would certainly agree that anyone is free to use a syllogism,
I wonder whether any use of Western religious no-market.
An illustration of this situation is the notion of ``cul- tions would be considered acceptable by Western religious
authorities.tural heritage'' as applied to American Indian societies.
At first sight, this notion seems obvious. Everybody is Indeed, it would be hard to deny that we seem to accept
``syncretism'' only when the contact of differentcommitted, at least in Europe, to the preservation of the
cultural heritage of a nation. If the Italian or French gov- cultures is realized under the domination of a Western
framework. When the Indians of Mexico worship a Vir-ernments have the right to prevent, for instance, a Michelangelo
or a Chardin from being commercialized on gin Mary unconventionally there is no question but
that this results in a local variety of Christianity, not athe international market, one does not see why the
American Indians should not be keen to protect their continuation of Nahuatl cults marginally including certain
Christian elements. When this is not the case--asown techniques, religious beliefs, traditional narratives,
and works of art. The assimilation of a native culture to in Haiti, where Christianity was really subverted by African
traditions--religious authorities do not hesitatea collective author, however, can also have near-absurd
consequences. The idea of having not only documents, to respond violently. In order to repress too free a use of
Christian images, artifacts, and such Christian religiousdrawings, and artifacts but also traditional ``ideas'' protected
by intellectual copyright seems a self-defeating concepts as ``communion'' and ``repentance of sin,'' the
Catholic bishop of Port au Prince organized an immensestrategy. How is language or thought itself to be preserved
from the risks implied by communication? Since auto da fé --a spectacular burning of ``contaminated images''
of saints in the public square--as recently as inimages are made to be seen and words are made to be
exchanged, it is difficult to decide what images or what the early forties (Métraux 1958). In short, when the cultural
contact happens under the control of Western reli-words must become someone's exclusive property.
However, it is one of the merits of Brown's article to gions, we call it ``syncretism''; when it escapes it, we
call it ``blasphemy.'' Religious intolerance, in our tradi-make it clear that there is more to this question than
mere propaganda or political naiveté. Few anthropolo- tion as elsewhere, has little use for legal rights.
gists would deny that ``complete freedom'' in the field
of information and marketing would expose American
Indian societies, as in the past, to all kinds of injuries david j. stephenson jr.
3888 W. Grambling Dr., Denver, Colo. 80236-2444,and theft.
Distinctions and clear thought are everywhere diffi- U.S.A. 11 xi 97
cult to achieve in political debate. In this respect
Brown's paper is useful in that it clearly establishes the This thoughtful, provocative article is a valuable contribution
to the ever-widening conversation about the in-premises for a crucial debate. Pursuing this debate, I
would like to add two remarks: tellectual property rights of indigenous peoples. Brown
graphically supports his healthy skepticism of legal1. The ``implicit assumptions'' emerging from the discussion
of the protection of ethnic minorities (at least schemes to control cultural appropriation, or misappropriation,
with a wide spectrum of poignant, timely con-in Brown's account) seem reluctant to make any distinction
between scholarly examination and analysis of crete examples. The thrust of his article is to force critical
reflection in an arena where it is much needed,cultural facts, imitation or theft of cultural items for
commercial use, blasphemy, and even sacrilegious cari- because without such critical reflection the notion of
intellectual property rights for indigenous peoples willcature of rituals. However, it is one thing to study, with
the permission of the local authorities, the meaning of a be abused to the point that it eventually is eviscerated.
Brown's clarion call is reminiscent of the arguments ofreligious object and quite another to caricature a ritual.
Scholarship and blasphemy are not the same, and this the more moderate and dispassionate commentators
during the tumultuous sixties in the United Statesholds true, in my experience of fieldwork with the
Kuna, for some Indians as well as for some anthropolo- that the country needed fewer uncritical lovers and
unloving critics and more critical lovers. Brown is agists. In this respect, Brown's account seems to me too
pessimistic. critical lover. He offers positive insights and constructive
suggestions (e.g., ethical realism and frameworks2. On the anthropologisťs side, I see another risk. Opposing
religious Amerindian traditions to ``scientific- based on joint stewardship) alongside his thorough cri-
216 current anthropology Volume 39, Number 2, April 1998
tique of overzealous advocacy for native intellectual strument for the recognition of rights of a ``culturaĺ' nature
is merged with the anthropologists' perpetual fash-property rights.
His concerns about how to reconcile Western notions ioning of their relations with those whose cultures they
study. The curator's response was not to destroy the pa-of intellectual property with native claims to the right
to protect virtually everything that may be deemed part pers or prioritise the rights of the donor but to pose
questions about the conduct of relationships. This is aof the broad fabric of ``culture,'' including thoughts, is
consistent with my own cautions about the dangers sensibility with (so to speak) a life of its own, a triumph
of anthropological theories of culture and of two de-posed by the inherent vagueness and overbreadth of the
term ``cultural patrimony'' in the Native American cades of enhanced sensitivity to professional practice. It
is interesting that it should be a museum example, forGraves Protection and Repatriation Act (Stephenson
1996) and the arbitrariness and overbreadth of the In- here ``cultural property'' (in tangible items) flourished
as an issue long before it became blown up into a ubiq-dian Arts and Crafts Act recently detailed by Gail Sheffield
(1997). Brown's call for ethical realism is echoed uitous index of ethical awareness (apropos tangible and
intangible items alike). (Busse [1997] notes that in Pa-in my prediction that the most successful strategies for
protecting, conserving, and compensating cultural prop- pua New Guinea the change from the language of antiquities
to the language of national cultural property, anderty ``are more likely to be those that translate broad,
lofty principles into local sui generis initiatives'' (1996: thus cultural heritage, dates from 1965.)1
The intellectual property rights problematic has in ef-118). Brown's observation that zealous protection of intellectual
property rights is inconsistent with other fect taken over others, and Brown appraises the consequences
of this. It is an important task. Thus propertyhighly valued principles, such as freedom of expression,
as reflected in the First Amendment, is encapsulated in discourse replaces, he argues, what should be discussion
on the moral implications of subjecting people to un-Sheffielďs comment that ``the right to foreclose another's
use of Indian identity will conflict with that indi- wanted scrutiny or sequestering public-domain information.
It runs the danger of what he wonderfully callsviduaĺs right to freedom of expression'' and her reflection
on David Lange's (1981:147) comment that ``the the moral alchemy of converting multiple interests and
questions about fair use and fair expression into narrowgrowth of intellectual property in recent years has been
uncontrolled to the point of recklessness'' (1997:141). disputes over commodities or of overlooking the ``complex
human motives'' that coalesced at the time whenAt the same time, it is ironically precisely the broadening
of traditional intellectual property concepts in re- ethnographic items were obtained or of abandoning the
conventions of ``reasonable procedure'' or a common-cent years, brought on by such technological revolutions
as the Internet and computer software, that offers sense approach to complex ethical issues in favour of
comprehensive claims to ownership. I might add topromise for finding a proper fit between traditional legal
rules for protecting intellectual property in the Western these the late-20th-century money effect; bodies such
as the British Economic and Social Research Council,tradition and the integrity of the attributes of traditional
cultures, however intangible those attributes by analogy with commercial companies, may use the
rubric of intellectual property to reify national interestsmay be (Stephenson 1994). Because the concept of intellectual
property in Western law is itself undergoing in the nationally funded. While this proprietorship refers
in the first place to research with a financial poten-such rapid transformation, it would be premature to dismiss
its potential utility for protecting at least the more tial, in the ESRC case it sits side by side with requirements
that research-generated information (includingmeasured attributes of native cultures identified in the
Bellagio Declaration about which Brown comments fa- primary data from interviews or diaries) be datasetted
and thus archived for use by third parties. No mentionvorably.
By the same token, Brown's analysis might have ben- is made of intellectual property rights here except as a
``problem'' which may affect the deposition of data. Theefited by a consideration of efforts to develop alternatives
to traditional intellectual property, such as Darrell issue is not claims to original ownership but the assertion
of national interests against other claims to thePosey's concept of ``traditional resource rights,'' as
more appropriate for non-Western traditions (Posey and country's store of information.
Brown dryly observes that in the mad scramble forDutfield 1996).
On the whole, however, I applaud Brown for thor- control, ethno-nationalists are similarly promoting
ideas about cultural protection--the collapse of theoughly exposing important issues that desperately need
more critical reflection.
1. And enshrined in the 1970 UNESCO convention on the illicit
transfer of ownership of cultural property, part of the postwar anmarilyn
strathern thropological effort to put ``culture'' into the international vocabuDepartment
of Anthropology, University of lary. But if the formula (cultural property) was relatively new, some
of the sentiments concerning the appropriation of people's heritageCambridge, Cambridge CB2 3FR, U.K. 26 x 97
had been long in place: see Winter (1993) on Greenfielďs (1989) The
Return of Cultural Treasures. Busse notes that the Ordinance reBrown's
opening remarks pinpoint an inflationary di- lating to Papuan Antiquities dates from 1913; the issue then was
mension to recent discussions of intellectual property. not claims to original ownership but the assertion of national interests
against other claims to the country's ``antiquities.''The idea of intellectual property rights as a potential in-
brown Can Culture Be Copyrighted? 217
idea/expression distinction or the abandonment of time the practical, sentimental, and philosophical ties that
bind them to the peoples they study, but, as Brown'shorizons--which, converted into intellectual property
rights regulations, would certainly serve the interests of masterful analysis shows, in the case of the more draconian
versions of ``cultural copyrighť' such partisanshipcorporations.
This is a judicious and cool account. If it leans to- can run afoul of principles of equal or more compelling
value, such as public domain, fair usage, and, perhapswards particularly American cultural pragmatics in its
concerns for native peoples, Brown's careful weighing is above all, the preservation of cultural knowledge in all
its variation.also more generally useful. On the one hand, he advocates
compensation mechanisms for the commercial Furthermore, even if one were to accept the validity
of radical claims, such as that of the Apache tribal con-use of knowledge/artefacts and clear guidelines for collecting
culturally sensitive ethnographic data. On the sortium, who gets to speak for ``the tribe''? Regardless
of whether such spokespersons are designated by demo-other hand, he is in despair over some of the broader
debate about cultural appropriation, the very kind of cratic elections or by nondemocratic customary procedures,
as social actors they are subject to situationalwider contextualisation that anthropologists normally
favour. He sees anthropologists abandoning social cri- constraints and temptations that could result in faulty
decisions; only a naive observer--a fortiori a poor eth-tique when it comes to ethno-nationalist claims to enduring
rights. Yet this politics has its own social reality: nographer--would mistake rhetoric for the complex
motives that drive high-stakes culture politics in mat-people who feel that their ancestors were duped do not
want their descendants to have been. Brown does appeal ters of copyright and other new arenas. And yet, this
said, who should determine whether and to what extentto ``situational pragmatism''; a multicultural democracy
implies weighing the benefits of special rights culture should be copyrighted? What solomonic process
will sort out and create enlightened, sustainable policyagainst the injury done to notions of equity and fairness.
This of course is an old political-economic issue that upon the balance of rights among individuals, culturally
identifiable collectivities, commercial interests, andrecurs at every angle or joint in the social body.
I have a single comment: one needs to pick one's so- the long-term public good? For the present, at least,
these issues are being decided in the courts, but in thecial domain. In terms of the many decision-making contexts
Brown summons (e.g., the ethics of Native Ameri- end it is posterity--the descendants of ourselves, as anthropologists,
and those of the peoples we study--whocan churches' using Christian symbols), he is absolutely
right to point to the excesses and absurdities of ``the will judge whether, in retrospect, cultural privacy was
worth the price of cultural oblivion.dramatic expansion of the intellectual property of native
people.'' But if we shift into the world of already Brown's sane and judicious study is not only a timely
wakeup call for anthropologists to ponder the poten-existing inequities, where--to use a romanticist metaphor--it
is hard to make one's voice heard, then intel- tially grave implications of cultural copyright legalities
for the future of the discipline; more positively, throughlectual property rights is a forceful sound bite. Precisely
because it rolls so much up into a bundle, precisely be- detached, clearsighted renderings it discloses the very
anthropological saliency of the value contests sur-cause it has rhetorically inflationary potential, and precisely
because it invokes property, it is a political slogan rounding cultural copyright. Do we glimpse, here, a research
orientation constructive for anthropology in anof power. Power is not always so easy to come by. The
anthropologist just needs to be careful not to mistake era when so many old disciplinary verities no longer
apply? If so, this would be good news, indeed, for ``cul-slogan for social analytic.
tural copyrighť' is only one in an emergent family of
issues that pose important challenges and opportunities
for future anthropology. For instance, how far does cul-donald tuzin
Department of Anthropology, University of tural relativism go in defending practices, such as infibulation
and clitoridectomy performed on little girls,California, San Diego, La Jolla, Calif. 92093-0532,
U.S.A. (dtuzin@ucsd.edu). 19 x 97 that seem to offend more universalistic values? Similarly,
what should be anthropology's stance on the
knotty issue of cultural asylum--as, for example, in theIn these postmodern times, anthropology, to quote the
Lord Ko-Ko and friends, finds itself in a ``pretty how-de- case of the Saudi Arabian woman who sought Canadian
asylum on the grounds that Saudi culture deprived herdo.'' The debates over cultural copyright are filled with
strange bedfellows and moral dilemmas. Having barely (as a woman) of her basic human rights? On a much
larger scale, the combined effects of runaway popula-completed the task of dereifying culture and discrediting
the concept of ``the tribe'' as an instrument of 19th- tion growth and prospective global warming imply that
the not-too-distant future will witness population dislo-century imperialism, anthropology, at times, seems
ready to welcome back such notions in order to defend cations of monumental proportions. Never mind indigenous
intellectual property rights; how defensible willintellectual property rights on the part of indigenous
collectivities and the corresponding right to prevent exclusionary real property rights and sovereignty be, for
the autochthone, when a growing proportion of the hu-``outsiders'' from emulating or commercially exploiting
their cultural patrimony. The role of indigenous advo- man race, with rights of its own, is beating on the door?
And again, as the loss of biodiversity on the planet even-cate may come easily to anthropologists, considering
218 current anthropology Volume 39, Number 2, April 1998
tually approaches crisis levels, how far will anthropol- hopeful because it signals the arrival of native peoples
as significant players in global debates about social andogy go in defending the rights of indigenous groups to
dispose of their resources entirely as they see fit? economic justice. Here, however, I part ways with some
commentators. Coombe, for example, seems unable toThese are the sorts of challenges that anthropology
will face in the coming century. If anthropology's arid distinguish between comprehension of native claims
and unthinking support for them. I have no trouble un-response is to invoke what ĎAndrade (1995) has called
``moral models'' and join the babble of competing advo- derstanding the historical circumstances that lead indigenous
groups to assert control over cultural records,cacies--reifying and sentimentalizing culture all over
again--it will fail in its purposes; it will fail to develop nor do I contest demands that they should have a voice
in determining how such records are used. Neverthe-new purposes appropriate to the new sociocultural realities
of the 21st century; and it will become part of the less, those who value anthropology and other forms of
social inquiry also have a responsibility to ask whetherproblem, not part of the solution.
the wholesale ``repatriation of information'' is either
feasible or morally defensible and, if we destroy cultural
records or sequester them through novel forms of indigenous
copyright as some would insist, what legal princi-Reply
ples will prevent other social groups--defined by ethnicity,
religious affiliation, or political agenda--from
advancing similar claims. In an age of identity politics,michael f. brown
Williamstown, Mass., U.S.A. 10 xii 97 it seems only prudent to ponder the broad implications
of such policies before embracing them.
Coombe is mistaken when she implies that I advanceThese 15 reasoned responses illustrate the wide-ranging
thought needed to gain analytical purchase on issues of absolutist visions of free speech and freedom of access
to information. Although I argue that standards of freeinformation policy and cultural ownership. Some commentators
(e.g., Santos Granero, Powers, Posey) would speech and freedom of access should be considered in
cultural-property debates, nowhere do I contend thatmove the analysis farther in the direction of concrete
policies, whereas others (Barnes, Coombe, Descola, Hi- these goals always and everywhere trump other considerations.
I have no more sympathy for unqualified appli-att, Strathern, Rosen, Tuzin) argue for situating the issues
within larger debates about property concepts and cation of the principle of free speech than I do for
preemptive claims of cultural ownership or for thetheir limitations, the politics of knowledge and representation,
and dilemmas of ethnic sovereignty within simple-minded notion that a people has an inherent
right to control how it is represented to the world atmulticultural states. The subject clearly demands both
approaches, and I am grateful for the impressive erudi- large. Only by clearing away such totalizing positions
can we begin the difficult business of finding a middletion that the commentators have brought to bear on its
many facets. ground that balances the genuine concerns and grievances
of native groups with the democratic values (how-Let me begin by underlining areas of general agreement.
The commentators acknowledge that the lan- ever imperfectly applied) of the liberal state. In this
sense I find myself drawn to the pragmatism of Powers,guage of cultural property is a problematic and in many
ways impoverished way of talking about social prob- Cleveland, and Stephenson. It may be time, as Cleveland
says, to focus on goals rather than on methods.lems that really turn on questions of sovereignty, mutual
respect, and the precarious status of native cultures Karlsson misconstrues my references to American Indians.
I mention Hopi and Apache assertions of controlwithin mass society. As Strathern notes, however, intellectual
property discourse is a ``forceful sound bite'' over cultural information because on this issue, as on
many others, these tribes are leading the way for otherbecause it condenses many issues into a compact notion
that feeds upon public uneasiness about the future indigenous groups in North America and elsewhere.
The tribal documents in question offer unusually clearof authenticity in a world increasingly defined by simulation.
and straightforward expressions of the authors' positions.
My respect for their views does not, however,Most of the commentators also recognize that comprehensive
claims of cultural ownership can, if taken to oblige me to agree with all of their assertions. I do not
dispute the sovereign right of native peoples to restrictextremes, play into the hands of demagogues. European
observers--in particular, Descola and Hiatt--are more the activities of outside researchers as they see fit. The
principal point at issue is the claim that indigenoussensitive to this issue than their colleagues from North
America, South America, and Australia, doubtless be- groups ``own''--that is, possess inalienable and exclusive
rights in--cultural information that they havecause of their proximity to recent cases of genocidal violence
rooted in ideologies of ethnic nationalism. Even shared over the years with outsiders and that has long
resided in the public domain.those who do not share their dark view of the trajectory
of indigenous political assertion must acknowledge the American Indian spokespersons have every right to
criticize New Agers who imitate Indian rituals or en-power of their cautionary tale.
We also agree that the current struggle over intangi- gage in other offensive behavior. In fact, vigorous condemnation
of New Age practices by Indians is far moreble cultural property can be seen as a hopeful sign--
brown Can Culture Be Copyrighted? 219
likely to promote greater cultural sensitivity than are a free of an insidious naturalism. Given anthropology's
long struggle against essentialist approaches to culture,score of scholarly treatises on the problem of cultural
appropriation. Nevertheless, there is little evidence that I would expect Posey to be more cautious about jumping
onto this particular bandwagon.greater native control over material in libraries, museums,
and archives will discourage the activities of those With the exception of Jackson, Rosen, and Stephenson,
the commentators express little concern about thedetermined to emulate Native American religious rituals,
who are far more likely to talk things over with impact of digital technologies on proposed schemes to
protect indigenous heritage. Rosen uses the copyrightedtheir channeled spirit guides than to consult works of
anthropology. status of this current anthropology article as evidence
that intellectual property laws still work, yet theKarlsson incorrectly concludes that I question the
sincerity of American Indian activists simply because example illustrates perfectly why copyrights and patents
cannot protect indigenous knowledge that wassome happen to be skillful negotiators. Indians have
been forced to hone their negotiating talents through never intended for uncontrolled circulation. Rosen and
I write to disseminate our thoughts, not to shield themdecades of involvement with state and federal governments,
the news media, nongovernmental organiza- from scrutiny. A century ago we would have been reasonably
assured that our exchange would be read onlytions, and researchers of various descriptions. I see no
necessary contradiction between a sincere commitment by those possessing a copy of the journal. Now that we
have inexpensive photocopying, however, this article isto one's cultural values and mastery of the skills of
cross-cultural communication. It bears noting, how- far more likely to be seen in facsimile than in its original
form. This may be disturbing to the Wenner-Grenever, that burgeoning revenues from tribal gaming enterprises
now permit American Indians to hire some of Foundation, which bears the journaĺs production costs,
but for academic authors it is cause for quiet celebra-the nation's most influential lobbyists and lawyers to
advance their interests in the public arena. Elsewhere, tion, since our ambition is to be read and cited. If our
goal were to restrict access to our words, in contrast,for instance, in Australia, the state routinely finances
litigation and other legal activities that contest the the journaĺs copyright would afford us no protection
whatsoever. Compared with the digital technology nowstate's own power. These developments beg for dispassionate
analysis by scholars willing to jettison habitual on the horizon, the photocopy machine is as crude as an
Oldowan hand-axe, and we are sure to witness profoundassumptions about the relative powerlessness of native
peoples, especially in the developed world. Despite an- changes in the ways in which information is created,
circulated, transformed, and used--changes that willthropology's claim to be attentive to human agency, we
prove highly selective in our willingness to acknowl- undermine cultural-protection schemes based on the
logic of patents and copyrights.edge it, especially when the fate of received wisdom
hangs in the balance. It would seem that we need vic- Cleveland raises the important question of cultural
values, a theme also developed to a greater or lesser ex-tims far more than they need us.
Posey is right to emphasize the many efforts being tent in the comments of Rosen, Severi, and Tuzin. Anthropology
has found its place in Western thought bymade to develop workable strategies for the protection
of indigenous know-how from corporate efforts to alien- showing how practices that seem illogical or immoral
in one culture appear perfectly normal from the per-ate it through the prevailing system of copyrights and
patents. But the devil, as they say, is in the details. I spective of another. Yet, as Tuzin points out, in a globalizing
world our analysis cannot stop there. We musthave read most of the documents to which he refers,
and I do not share his conviction that they offer a clear now come to grips with the challenges of reconciling
widely divergent cultural values in our neighborhoods,vision of how the desires of indigenous peoples to ``control
their heritage'' (to frame the issue in an idiom fa- schools, and workplaces. The turn toward indigenous
sovereignty solves some problems but in turn createsvored by the United Nations) can be balanced against
the legitimate claims of other social actors.1
The situa- others, especially as social boundaries become more
permeable. It is crucially important to move the cul-tion is hardly helped by the recent reemergence in international
forums of what Descola identifies as vo¨lkisch tural-property debate beyond reflexive expressions of
solidarity to a more nuanced consideration of the con-philosophy, that is, belief in a transcendent, mystical
link between a people and its territory. This is not to flicting rights and responsibilities at stake in the formulation
of public policies relating to information.deny that many native peoples identify closely with
their land, investing it with sacred qualities and seeing I was reminded of the human dimension of this struggle
several months ago while observing an intellectualit as a source of knowledge. But as a generalization
about indigenous cultures it seems neither accurate nor property trial in the city of Darwin, the capital of
Australia's Northern Territory. The plaintiffs, a wellknown
Aboriginal artist from Arnhem Land and his se-1. An important exception is Janke (1997), an Australian document
that came into my possession while this reply was being drafted. nior clan relative, were asking the federal court to recConsisting
of a general overview of Aboriginal intellectual property ognize the clan's economic and moral rights in the
and legal frameworks that affect its disposition and use, the docuartisťs
graphic designs, rights tied to the clan's territoryment proposes a range of specific changes in Australian laws
and ritual knowledge. Representing them were a localrelating to copyright, patents, trademarks, and archives management.
solicitor and a genial barrister from Melbourne named
220 current anthropology Volume 39, Number 2, April 1998
anderson, christopher. Editor. 1995. Politics of the se-Colin Golvan, who brought to the case his considerable
cret. Oceania Monograph 45.expertise in intellectual property litigation. The responaoki,
keith. 1996. (Intellectual) Property and sovereignty:
dent, a company that had pirated the artisťs work for Notes toward a cultural geography of authorship. Stanford Law
mass-produced tee-shirts, was nowhere to be seen, ap- Review 48: 1293­1355.
barlow, john perry. 1993. Selling wine without bottles:parently because prior litigation had forced it into bankThe
economy of mind on the global net. http://www.eff.org/ruptcy. Instead, opposing counsel was provided by the
pub/Intellectual property, accessed 1 January 1996.Ministry for Aboriginal and Torres Strait Islander Afbarnes,
j. a. 1980. Who should know what? Cambridge: Camfairs,
which feared that the case, if won by the plaintiffs, bridge University Press. [jab]
could destabilize Australia's system of native land ti- ------. 1990. Models and interpretations. Cambridge: Cambridge
University Press. [jab]tles. In gowns and wigs, the lawyers from both sides prebaudrillard,
jean. 1988. ``Simulacra and simulations,'' insented cogent arguments on behalf of their clients.
Jean Baudrillard: Selected writings. Edited by Mark Poster,
Documentation was brought forward in impressive pp. 166­84. Stanford: Stanford University Press.
quantities. A museum curator furnished an example of berryman, cathryn a. 1994. Toward more universal protection
of intangible cultural property. Journal of Intellectualthe artisťs work for the inspection of the court. The
Property Law 1:293­333.presiding judge, obviously engaged by the case, seemed
bettig, ronald v. 1996. Copyrighting culture: The politicalwilling to do the right thing if only he could figure out
economy of intellectual property. Boulder: Westview Press.
what it was and then reconcile it with existing laws and bok, sissela. 1983. Secrets: On the ethics of concealment and
commercial practices. revelation. New York: Vintage.
boyle, james. 1996. Shamans, software, and spleens: LawAlthough it was impossible not to admire the goodand
the construction of the information society. Cambridge:will of the participants and, indeed, of a society that
Harvard University Press.
would devote so much institutional energy to the reso- brandt, elizabeth a. 1980. ``On secrecy and the control of
lution of an isolated community's concerns, I found knowledge: Taos Pueblo,'' in Secrecy: A cross-cultural perspective.
Edited by Stanton K. Tefft, pp. 123­46. New York: Hu-myself wondering whether this was the most effective
man Sciences Press.way to help Aboriginal artists carry on the traditions of
branscomb, anne wells. 1994. Who owns information?:their people while receiving reasonable compensation
From privacy to public access. New York: Basic Books.
for their efforts. Max Weber's analysis of bureaucracy brown, michael f. 1997. The channeling zone: American
demonstrated long ago that modern procedural rational- spirituality in an anxious age. Cambridge: Harvard University
Press.ity inevitably spawns its own forms of irrationality. As
browning, john. 1997. Africa 1, Hollywood 0. Wired,heritage-protection laws come into effect and legal precMarch,
pp. 61­64, 185­88.
edents accumulate, lawyers will apply ever more intri- brush, stephen b. 1993. Indigenous knowledge of biological
cate casuistry to contests over cultural ownership. Each resources and intellectual property rights: The role of anthropology.
American Anthropologist 95:653­86.innovation in legal thinking invites new claims in a spibusse,
mark. 1997. The National Cultural Property (Preserva-ral of complexity increasingly removed from the goal of
tion) Act [Papua New Guinea, 1965/1975]. Paper delivered tocreating social spaces in which indigenous peoples are
Intellectual, Biological, and Cultural Property Rights Seminar,
safe from predatory corporations and mass cultures Port Moresby, August. [ms]
hungry for glimpses of human understanding perceived cleveland, david a., and stephen c. murray. 1997.
The worlďs crop genetic resources and the rights of indigenousas uniquely authentic, perhaps even as redemptive.
farmers. current anthropology 38:477­515.Hence my contrarian arguments, offered as a profesconley,
diane. 1990. Author, user, scholar, thief: Fair use
sion of doubt. If they cause readers to pause for a mo- and unpublished works. Cardozo Arts and Entertainment Law
ment of reflection before blindly supporting plans to bu- Journal 9:15­60.
conte, e., and c. essner. 1995. La que^te de la race: Unereaucratize and police the public domain in the name
anthropologie du nazisme. Paris: Hachette. [pd]of respect for other cultures, then they will have served
coombe, rosemary j. 1991. Objects of property and subjectsa useful purpose.
of politics: Intellectual property laws and democratic debate.
Texas Law Review 69:1853­80.
------. 1993. Cultural and intellectual properties: Occupying the
colonial imagination. Political and Legal Anthropology Review
16(1):8­15.
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