Today, anxieties about the loss of culture and tradition are most frequently enunciated and addressed in discourses of intellectual property, and the articles in this special issue are united by their focus on the Pacific as well as their focus on discourse. In his introduction, Van Meijl argues that discourse is a useful concept for analyzing the political contexts of cultural property claims because “it directs the attention away from the truth value of specific statements” and toward “the rhetorical devices used to substantiate arguments,” in this case arguments about intellectual and cultural property in several places in the Pacific—Chuuk in the Federated States of Micronesia (Nason and Peter), Fiji (Pigliasco), Vanuatu (Lindstrom), Papua New Guinea (Moutu), and New Zealand (Van Meijl and Goldsmith).
As Lamont LindstromFootnote 1 has written elsewhere, anthropologists' increased use of the term discourse parallels the discipline's increased involvement with oral and written texts as data; and the power of discourse analysis lies in the connections that it reveals between communication, knowledge, and power, an approach most associated with Michel Foucault. There are, of course, various critiques of an overemphasis on discourse and discourse analysis. Recently, Ian HackingFootnote 2 argues that discourse analysis (particularly as practiced by Foucault) often fails to understand “how forms of discourse become part of the lives of ordinary people, or even how they become institutionalized and made part of the structure of institutions at work.” An important strength of many articles in this issue is their attention beyond mere discourse analysis to precisely these issues of how discourse figures in people's lives and political action.
The complexities of the words culture and tradition and their diverse usages complicate these contemporary anxieties about culture loss. Raymond Williams writes that culture is one of the two or three most complex words in the English language, a complexity he attributes to its “intricate historical development, in several European languages” and its centrality in “several distinct and incompatible systems of thought.”Footnote 3 Thus, in everyday English, culture can refer to a way of life, a characteristic (or characteristics) of a particular people, and specific manifestations of civilization or high culture (for example, painting, opera, and ballet, and analogous artistic forms in non-Western societiesFootnote 4). Even among anthropologists, who legitimately claim culture as a critical concept in their discipline, definitions and critiques of culture abound.Footnote 5
Similarly, tradition is a complex word because it refers both to the process of handing down and, more commonly, to knowledge, practices, and things that are handed down. “Tradition survives in English as a description of a general process of handing down, but there is a very strong sense of this entailing respect and duty.”Footnote 6 Not everything handed down from one generation to the next is a tradition, and only some are identified as worthy of respect. There is also a semantic tension between tradition as an active process—which may, in some instances, benefit some people at the expense of othersFootnote 7—and tradition as knowledge and practices that are handed down over generations and therefore worthy of respect. In this sense, then, tradition is a ratifying term.Footnote 8
In the Pacific the complexity of these terms is further compounded by the use of culture and tradition as loan words in indigenous discourses, the semantic fields of which are influenced by specific historic, social, and political contexts, as well as by local understandings both of historical continuities and of similarities and differences between peoples. Lindstrom and WhiteFootnote 9 noted that as people in the Pacific became more self-conscious about their ways of life, the words culture, custom (also in its Pidgin forms kastom, kastam, and kastamu), and tradition have come into common use, and their meanings have been debated and changed.
The Papua New Guinean anthropologist Jacob SimetFootnote 10 linked changing concepts of culture in Papua New Guinea to decolonization and independence:
The early nationalists defined culture as a symbol of national identity and national unity. It was a symbol held up to distinguish the colonized from the colonizers. It was a tool used in the struggle to flame nationalism. Culture was used as a symbol of national identity mainly by the early leaders and intellectuals and to some extent by ordinary Papua New Guineans.Footnote 11
But after political independence, politicians and bureaucrats came to see culture primarily as a commodity to sell to tourists.Footnote 12 In this sense culture came to refer to a narrow set of objects and practices—dances, performances, arts, and crafts.Footnote 13 This, in turn, led to “a gap in conceptual definitions of culture” between politicians and bureaucrats vis-à-vis ordinary villagers, who (according to Simet) understood culture as a way of life linked to specific people and their places. As a result, Simet argued, ordinary people found it difficult to understand and identify with national cultural policies that talked about cultural promotion, cultural preservation, and cultural identity.Footnote 14 The narrowed conception of culture that Simet attributes to Papua New Guinean elites is akin to the list of items of traditional knowledge and expressions of culture (handicrafts, souvenirs, music, images, medicines, and plants) deemed to have been appropriated from Pacific people and subsequently commercialized that appeared in the Cultural Affairs Programme: Strategic Plan, 2006–2009 published by the Secretariat of the Pacific Community.Footnote 15
REIFICATION
Processes of reification,Footnote 16 which are closely related to the narrowing of culture to things that can be commoditized, further complicate contemporary anxieties about culture and tradition. Two senses of reification are critical here: reification as a fallacy of regarding abstractions as if they were concrete things and, even more importantly, reification in the sense of processes in which mutable, socially produced phenomena come to be thought of as having unchangeable, thing-like qualities and as enduring in nature.Footnote 17 The two senses of reification are central to critical reflections on the protection of culture and tradition.
In her critique of Michael Brown's Reference Brown1998 article, “Can Culture Be Copyrighted?” Jo Recht notes that his use of the word culture involves a troubling essentialism. She points out, “We create a snapshot when we compile an ethnography: we create a similar, two-dimensional representation when we try to delimit a cultural unit or practice amenable to legal rules for protection.” A historical moment is ratified into legal code. She goes on to note, however, that although some multinational organizations such as United Nations Educational, Scientific, and Cultural Organization use culture as though it were a discrete entity, other organizations are “more specific and less abstract.” The World Intellectual Property Organization, for example, does not speak about protecting culture but rather seeks to protect “traditional knowledge” and “traditional cultural expressions.” Recht concludes, “Although a unitary culture cannot be identified, let alone protected, objects and items of knowledge produced within cultural configurations can and should receive protection.”
The danger here lies in substituting one form of reification for the other. By avoiding the fallacy of treating abstractions as if they were concrete (i.e., in thinking that culture is a thing that can be protected), we risk the other form of reification (making something fixed or thing-like when it is actually dynamic, evolving, and the outcome of particular kinds of social relationships). In this issue Guido Pigliasco notes this when he states that many measures to “conserve, safeguard, and sustain non-Western cultural practices actually objectify and isolate them. They risk freezing practices that were formerly mutable.” In other words the process of protecting traditional knowledge, traditional cultural expressions, or cultural objects runs the risk of focusing primarily on knowledge, expressions, and objects, rather than on the social relations and practices that generate and sustain them. In this sense, reification is similar to commodity fetishism in which social relations (and people) are pushed aside by a primary concern with the social life of things.Footnote 18
Reification emerges as a crucial, but unstated, factor when authors in this issue describe the different contexts in which processes of reification take place. Recht notes that one risk of defining traditional knowledge as a legal category is that the definition of what constitutes traditional knowledge is left to lawyers and legal scholars. The same risk applies to other aspects of culture for which legal protection is sought. Nason and Peter argue for indigenous control of traditional knowledge, “that research interests and scholarly rights are secondary to tribal heritage interests,” so that it is for indigenous people, rather than legal or other scholars, to define what constitutes traditional knowledge.
In this regard The Sawau Project described by Pigliasco provides an example of a local initiative in which indigenous people document and control their own traditional knowledge and traditional cultural practices in a way that is inclusive (the entire Sawau community can participate) and flexible (the recording and storage technology does not fix culture at a particular moment but instead allows for the recontextualization of documented knowledge and practices). Pigliasco describes it as “an ever unfolding, open-ended project.” What is unclear from his description, however, is the cost of the project, how it is being funded, and whether the cost of the technology limits the extent of the project or introduces pressures for commercialization.
Similarly, Van Meijl's discussion of Māori approaches to intellectual property illustrates resistance to decontextualization. What Van Meijl describes as a form of making ethnic boundaries between the Māori and Pākehā fades as a conflict over ethnicity if one takes at face value Māori arguments such as those made in the Wai 262 claim to indigenous flora and fauna and associated Māori knowledge. In discussing the claim, Van Meijl writes that
a close analysis of Wai 262 leaves the impression that Māori people appeal to intellectual property rights, not primarily to secure the exclusive rights to a limited number of biological resources, but mainly to prevent their commercialization by non-Māori and also to stop the (mis-)appropriation of their heritage by others. Thus, intellectual property rights seem to be used partly as a vehicle to sharpen the boundaries between Māori and non-Māori, which cannot be understood independently of the Maori quest for sovereignty.
Surely the goal of obtaining exclusive rights is precisely about commercialization: the prevention of commercialization by others. Van Meijl's discussion of the Wai 262 claim is cast as a general argument about what he perceives as the main thrust of Māori political activity. He compares the use of claims to intellectual property rights in Wai 262 to what he calls “the parallel tendency of setting hurdles for the access of outsiders to Māori society for research purposes.” According to Van Meijl, contemporary Māori politics establish boundaries between themselves and non-Māori in a range of social and political contexts. Extending this position in the introduction to this special issue, Van Meijl argues that it is “ethnic inequalities that are triggering indigenous discourses of cultural property in the first place, not only in the Pacific but around the globe,” and he expresses the hope for the development of indigenous strategies that protect cultural traditions but do not simultaneously strengthen such ethnic differences.
Goldsmith provides an alternative interpretation of the Wai 262 claim. He compellingly argues that Māori are unwilling to accept the traditional Western distinction between nature and culture. For Māori, making a claim to control and benefit from their own knowledge makes no sense in the absence of the continued existence and Māori rights over the very flora and fauna that are the subject and referent of that knowledge. Goldsmith shows that land and material objects have spiritual properties, and are not natural in the way that Western science takes them to be. He concludes his article, “Who Owns Native Nature?” by noting, “The question … asks not just who owns nature or culture … it asks who has the right to define which of these is which and how much of each is ownable.”
To the extent that Māori claims to intellectual property reinforce ethnic boundaries, what are those boundaries for? Van Meijl analyzes these boundaries in terms of “a political struggle for indigenous autonomy,” an associated desire for the “preservation of cultural purity,” and “the division of the world into two radically distinct kinds of people: Māori and non-Māori, insiders and outsiders.” The critical context for such boundary discourses is the long history of subjugation and struggle in which Māori have employed a variety of strategies, innovations, and negotiations. Reification—in the sense of working to protect knowledge and cultural expressions in the absence of a social context that makes said knowledge and expressions meaningful to the communities from which they originate—is a critical part of what is being contested. Goldsmith argues that these questions are “partly matters of culture,” but they are also shaped by relations of power in a postcolonial settler society such as New Zealand.
The link between claims to traditional knowledge and forms of cultural expression and wider issues of sovereignty and human rights—issues that go beyond matters of property—can be seen through an examination of the hegemony of property and the possibilities of resisting that hegemony.
THE HEGEMONY OF PROPERTY
In contemporary discussions of the protection of traditional knowledge and practices, the ideas of property and property rights are often unexamined and taken as given. Property thus becomes a hegemonic perspective, part of a particular way of seeing the world, human nature, and social relationships, which is political rather than merely intellectual (or merely discourse). It is also part of the framework within which power and inequality are exercised. Nason and Peter begin by noting, “Although the exact nature of a legal system may vary significantly from one society to another, it ordinarily defines property rights and protections for those rights.” Despite acknowledging that what constitutes property and property regimes can vary, they posit property and property rights as categories that can be and are taken for granted. In other words, property and property rights are stated as naturalized phenomena and not discourse.Footnote 19
Similarly, Recht argues that we must find ways to respect and attempt to save traditional knowledge without jeopardizing intellectual property values that have acquired the force of statutory law and received wisdom in Western society. She takes this position despite the fact that developing countries have long been aware of the disadvantages to them of the increasingly globalized system of intellectual property rightsFootnote 20 and, as Recht points out, “have unsuccessfully opposed their extension on many occasions.” Nonetheless, “The hegemony of the northern industrialized countries … and their overarching economic dominance makes it senseless for the developing nations to stamp their feet and refuse to join the game.” Recht may not go as far as naturalizing property, but she seems to argue that the terms of negotiation in that game are set by one side alone.
Not surprisingly, Lindstrom's discussion of the commercialization and international marketing of kava takes Western legal conceptions of property at face value. But here we see the difficulties of deciding who, among the many communities that traditionally used kava, might have property rights vis-à-vis the drug as well as the practical difficulties that Pacific people will have in formally and legally enforcing property rights. Lindstrom states, “Globalization makes local knowledge claims tricky.” A community's property claims are only enforceable to the extent that they are recognized by national and international legal structures. But even with national and international legal systems in place, the practical difficulties of accessing such legal systems are so daunting that Vanuatu has adopted a strategy of marketing its kava using geographic indicators rather than relying on the enforcement of property rights.
The question is whether and what kind of resistance to this hegemony of property is possible. The recently emerging anthropological critiques of property that reexamine culturally-diverse ownership relations are a critical tool in this regard.Footnote 21 Contributions from Pigliasco, Goldsmith, and Moutu open up similar perspectives, providing examples and arguments that help avoid the reification and naturalization of categories such as property and ownership.
Pigliasco reminds us of a vital counterbalance to the frequently taken for granted discourse of rights: the relationship between ownership and responsibility. He describes Sawau conceptions of their relation to their cultural heritage in terms of custodianship rather than ownership, and he speculates that the ongoing importance of collective responsibilities may be a critical reason why intellectual property systems do such a poor job of protecting the traditional knowledge and traditional practices of indigenous peoples. An emphasis on responsibilities rather than rights is not limited to heritage, of course; but it is a characteristic of many indigenous systems of ownership more generally, whereby, for example, land ownership is not conceived in terms of rights derived from ownership but rather in terms of responsibilities that flow from ownership and the land itself. Goldsmith argues for different “logics of ownership” and that in some societies it would be more accurate to say that people are owned by the land, the environment, and their own traditions.
Andrew Moutu describes how conceptions of property involve more fundamental conceptualizations of creativity, agency, and social personhood. He begins with the observation that the “anthropological assumption” that ownership is both a type of social relationship and something dependent on creativity comes from “a world that is preoccupied with creativity.” And as Moutu argues, much of the analysis of ownership in Melanesia and elsewhere has suffered from this same preoccupation with creativity as a precondition to ownership. Among Iatmul who live along the Sepik River in Papua New Guinea, however, the relationship between creativity and ownership is reversed: Rather than owning what one creates, one can only create what one already owns. This inversion is based on Iatmul names that I consider a critical aspect of Iatmul conceptions of the social person.Footnote 22 In receiving a name, a person receives a set of relationships to places, ancestors, things, and other living people on which they subsequently act. These relationships of ownership precede any creative acts.
Taken together, the articles by Pigliasco, Goldsmith, and Moutu draw our attention to critical cultural differences in relationships between persons and things, and between persons with respect to things. Such differences are critical because they undermine the process by which rights, the idea that people own things (rather than vice versa), and conceptualizations of the relationship between creativity and ownership are reified and become naturalized. They open possibilities for rethinking property and ownership, and the concepts and assumptions involved in property and ownership discourses, in radical ways. They also suggest the possibility that indigenous concepts of ownership might influence Western property regimes rather than simply accommodating them.
From one perspective then, the articles in this issue present arguments on both sides of a dichotomy between a pragmatic use of existing property regimes to fight for indigenous rights and an insistence that indigenous ideas (about creativity, agency, ownership, and social relationships) are respected and harnessed for the development of new forms of ownership.
Previously, I argued against the application of existing property regimes to cultural property on the grounds that the language of property is the language of markets and commodities, a language that highlights certain kinds of relationships and rights (i.e., property rights) over other equally important relationships and rights (i.e., relations of kinship or common citizenship and rights to political self-determination or political sovereignty). I argued that we need a new language that does not intrinsically imply the market and must rethink the morality of free market transactions of culturally significant objects given growing disparities in wealth as well as economic and political power.Footnote 23
More recently, Kristen Carpenter, Sonia Katyal, and Angela RileyFootnote 24 have attempted to mediate the dichotomy of cultural-as-property and culture-as-not-property by arguing for a model of property that can encompass group-oriented legal claims and ideas of stewardship (rather than outright ownership) of cultural property. They argue that those who criticize the use of property to protect tangible and intangible traditional resources rely on a narrow model that has two aspects: individual ownership and an emphasis on owners' rights of exclusion and alienability for maximizing profit and value. Carpenter, Katyal, and Riley develop an alternative model of property and “peoplehood,” which allows for the possibility of nonowners to exercise custodial rights over tangible and intangible goods in the absence of ownership.Footnote 25 Their model of “property and peoplehood” is an extension of Margaret Radin's approach to property and personhood in which she argued that property that is particularly constitutive of personhood, such as heirlooms or human organs, must be excluded from the market and must instead be understood as nonfungible, incommensurable, and inalienable.Footnote 26 Carpenter, Katyal, and Riley extend Radin's position by arguing that “certain lands, resources, and expressions are entitled to legal protection as cultural property because they are integral to the group identity and cultural survival of indigenous peoples.”Footnote 27
Although I agree with the position that anything critical for personhood or peoplehood should be excluded from market transactions, the arguments put forward by Carpenter, Katyal, and Riley for turning culture into property address some relevant aspects of property relations. Fungibility and commensurability characterize relationships between things, whereas alienability and inalienability characterize relationships between persons and things. What is missing from the arguments of Radin and Carpenter, Katyal, and Riley is precisely that dimension of property that most interests many (perhaps most) anthropologists: social identity and social relations per se, and in particular relations between persons (or peoples) with respect to things.Footnote 28 Turning culture into property affects how property owners become conceptualized in that process, both by the framework and its agents and agencies, and eventually by the owners themselves. The risk is that peoplehood will become property-owning peoplehood, and such definitions and self-definitions have the potential to become more salient than other aspects of social relations and group identity such as kinship or political relations.Footnote 29
Carpenter, Katyal, and Riley argue for the similarity between indigenous ideas of stewardship and fiduciary responsibilities of company directors and officers (i.e., the responsibility to exercise care, skill, and diligence toward their companies rather than acting in their own individual best interests). Although this is the center of their argument for the usefulness of property for protecting traditional indigenous resources—both tangible and intangible—they must argue against the dominant understanding of property in terms of individual owners' rights to exclude and alienate; and they do so by comparing indigenous peoples to company directors and officers. The dominant model for social relations is, once again, that of commerce and the corporation as well as the concomitant ideas of individualism, rationality, and maximization.Footnote 30
CONCLUSION
The hegemony of property—the unexamined assumption of property and property rights as given—and the extension of property rights claims to new (and it would seem virtually all) areas of human lifeFootnote 31 are characteristic features of what Frederic JamesonFootnote 32 has called “late capitalism,” a phrase he borrowed from Ernest Mandel.Footnote 33 For Mandel, late capitalism is the third stage in capitalism's development, a time of consolidation characterized by the dominance of multinational capital.Footnote 34 Jameson characterized the relationship between late capitalism and the expansion of property in the following terms:
late or multinational or consumer capitalism … constitutes … the purest form of capital yet to have emerged, a prodigious expansion of capital into hitherto uncommodified areas. The purer capitalism of our own time thus eliminates the enclaves of precapitalist organization it had hitherto tolerated and exploited in a tributary way.Footnote 35
This expansion of capital has been particularly rapid in the area of intellectual property. James Boyle has called the recent extension of property rights into what was previously the public domain “the second enclosure movement,” drawing an analogy between the increasing privatization of the products of intellectual work and the process of enclosure in fifteenth and sixteenth century England, in which land owned in common was taken into private ownership.Footnote 36
In this sense, then, the people of the Pacific described in this issue are participating in a world system in which the extension of intellectual property claims to traditional knowledge, practices, and forms of cultural expression are particular examples of more general processes. Their anxieties about culture and tradition are concrete, local manifestations of global processes of reification and reconceptualization of traditional knowledge, practices, and objects as property. The articles in this issue make important contributions through their detailed descriptions and careful examinations of the discourses through which people in the Pacific express their anxieties and attempt to negotiate their relationships with wider economic and political structures.
ACKNOWLEDGEMENTS
I want to thank Toon van Meijl for inviting me to be a discussant at the Association for Social Anthropology in Oceania session on Discourses of Intellectual Property in the Pacific and the University of Auckland for funding my attendance at the conference. I also want to thank Claudia Gross and an anonymous reviewer for their helpful suggestions for my manuscript.
