t; The two tropes have a common starting point in their characterization of traditional knowledge prior to legal intervention, as a "public good" -- a commodity that is not fenced off by any barriers to impede public access and use. For the purpose of both tropes, the original state of this information is figured as a version of the "commons." The tropes part company in the conclusions they draw from this characterization.
The notion that "information wants to be free," familiar to those who read in the history of copyright, has been given a new lease on life by the spread of electronic communication. John Perry Barlow appeals to it when he urges that the Internet be left alone -- unregulated.(23) Barlow, and other commentators who deploy this essentializing trope make the further claim that, especially in the electronic environment, attempts to regulate information are not only unavailing but threaten the good information order. "[T]he increasing difficulty of enforcing existing . . . laws," he writes, "is already placing in peril the ultimate source of intellectual property -- the free exchange of ideas."(24)
This way of figuring the nature of information is generally associated with progressive positions on issues relating to the legal status of traditional knowlege. In her recent book, Biopiracy: The Plunder of Nature and Knowledge, Vandana Shiva invokes the "free" character of genetic information to denounce Western efforts to reduce traditional knowledge to ownership through the patenting of new derivative pharmaceuticals and plant varieties: "Biotechnology, as the handmaiden of capital in the post-industrial era," she writes, "makes it possible to colonize and control that which is autonomous, free, and self- regenerative."(25) The same position was expressed in the much publicized controversy surrounding W. R. Grace's patenting of a pesticide made of ground Neem seeds which critics claim has been used in India for centuries. "The real battle," Jeremy Rifkin, who spearheaded a challenge of the patent, is quoted in the New York Times as saying, "is whether the genetic resources of the planet will be maintained as a shared commons or whether this common inheritance will be commercially enclosed and become the intellectual property of a few big corporations."(26)
However, transnational corporations and governments acting on their behalf also mobilize the trope of "free" information to some effect. A particularly notorious example was the April 14, 1992 memorandum from Vice-Presidential staff members John Cohrssen and David McIntosh to Dan Quayle's Chief of Staff Bill Kristol, written "to alert [Kristol] to serious problems with the draft international convention on biological diversity." In pertinent part, the memo -- which played a significant role in delaying U.S. signing of the treaty -- claimed that under the treaty:
Special legislation would need to be passed for the benefit of indigenous populations, i.e., American Indians, since the draft convention has special provisions for them [and]
It would greatly increase litigation because of new compensation legislation [that] would need to be passed[,] as the draft treaty contains a vaguely worded provision to establish liability and a right to compensation for damage to biodiversity.
The draft convention proposes to regulate biotechnology, in a manner totally unacceptable to the US: to restrict domestic and international commerce in biotechnology related products . . . . (27)
This text is a powerful invocation of the trope of inherently, essentially, naturally "free" information. But it mobilizes that trope to purposes dramatically different from those of Shiva and Rifkin -- to argue that any interference with the ability of U.S. companies to exploit indigenous bioknowledge represents an unacceptable departure from the status quo.
This bivalent trope clearly has limitations, then, as an organizing structure around which to build discussion about future legal regulation of access to traditional knowledge. Not the least of the trope's limitations is that discussion organized around it will not escape the "force field" of the author/inventor figure that has long exerted such a powerful influence over discussion of rights in information. To figure information -- including traditional knowledge -- as not having been created by anyone at all and thus not susceptible of ownership is simply to invert the trope of authorship.
The notion that information is "free," a "public good" like air and water, which one ought to be able to draw upon at will, also gives rise to a powerful counter- metaphor, the so-called "tragedy of the commons" -- invoked to justify reducing commonly owned (or unowned) things to the status of property. The trope became popular in environmental literature during the 1960s, where it was argued that since one only takes care of things one owns, resources held in common -- unowned and unprotected by anyone -- are (inexorably) doomed to be over-exploited.(28) Although the utility of the "tragedy of the commons" metaphor has been extensively questioned in scientific and economic literature,(29) it appears to be achieving new currency in the law -- including intellectual property law -- where it functions as an easy-to-grasp and poignant shorthand for the larger neoclassical economic principle that, to quote Neil Netanel, "private entitlements can best promote allocative efficiency when would-be users must pay the price agreed upon by the entitlement holder in a voluntary exchange."(30)
Like its mirror image, the trope of "free" information, this trope too is bivalent. Just recently it was successfully invoked by large corporate copyright owners to argue for a twenty year extension of the term of copyright -- the Sonny Bono Copyright Term Extension Act of 1998. In the congressional testimony of Disney, Time-Warner, etc. the "public domain" -- a commons resulting from the expiration of limited terms of protection in copyrighted works -- was consistently figured as a kind of informational dumping ground, littered with abandoned movies, songs, and the like that, because no owner had an economic motivation to bring them to market, were in practice unavailable for public use.(31) Yet the trope is also being mobilized in defense of what might be viewed as progressive objectives. Thus, one writer has recently invoked it to argue for new legal norms to promote the preservation of cultural heritage by discouraging the black market in stolen artifacts.(32) More emphatically -- and more controversially -- Joseph Henry Vogel has argued from the "tragedy of the commons" that the best hope for the preservation of biodiversity lies in the creation of a comprehensive scheme of intellectual property rights, modelled on existing patent and copyright regimes, in "genetic information." However, his advocacy of this market model gives cause for suspicion. Among his "Ten Principles for Conserving Genetic Information" is this one: "Endorse legislation giving equal protection to artifical and natural information [and] at the same time attenuate the ability to alienate the new property rights"(33) -- that is, endow indigenous communities with rights in their bioknowledge, but restrict their freedom to commercialize their new property. This extraordinary qualification reflects Vogel's doubt that indigenous peoples will be able to enact their part as rational profit maximizers in his scheme of conservation-by-priviatization, and indeed his doubt may be well placed. The relationship of the bearers of cultural traditions to their traditions is surely more complex.
Conceptually, this bivalent trope of the"tragedy of the commons" does not escape the gravitational pull of "possessive individualism" any more than the competing argument to the effect that "information wants to be free." In the mode of analysis associated with the "tradgedy of the commons," effective social ordering is closely linked to property ownership. In this discourse one of the primary characteristics of the property owner is that his or her relationship to the thing owned is rooted in self-interest. The person in whom rights are vested in an effort to avoid over-exploitation of a resource is presumed to be motivated to put that resource to its best and highest use -- in order to maximize benefits and minimize costs to him- or herself. Similarly, by virtue of his or her creative investment, the "author" of copyright law -- the exemplary "possessive individual" -- is literally responsible for a work, both reaping the benefits of its exploitation and bearing the associated costs (such as the risk of censure or prosecution).(34)
Arguments for protection of the environment through the privatization of "genetic information" ignore the possibility that factors other than immediate self-interest may shape the relationship of indigenous peoples to their intangible heritage. While emphasizing how indigenous groups may promote the conservation of nature as rights holders bargaining with prospective users in a transactional marketplace, such arguments fail to recognize the importance of these groups' role as the custodians, for the time being, of living traditions. By denying these custodial interests, which escape the market, reliance on the pro-enclosure "tragedy of the commons" metaphor as an organizing trope would seriously distort the coming discussion of new rights regimes for the protection of traditional culture and bioknowledge. Just as inevitably, it would focus attention on the cultural or informational objects to be protected, and away from the processes which produce or sustain them.
We conclude by sketching the outlines of an alternative metaphor for organizing discussion of future law governing access to traditional knowledge and cultural heritage -- that of "sustainable development," familiar from the environmental literature of the last three decades. Simply put, this notion addresses the observation that the environment cannot sustain the current pace and manner of economic expansion, that this pattern of development is, in a word, "unsustainable." But it does not address this problem of environmental degradation by prioritizing environmental protection pure and simply; rather, acknowledging the continuing need for development -- for industrialization of impoverished parts of the world especially -- it urges instead the "balanced" approach captured in the notion of "sustainable development": a"process of change," to quote from Our Common Future, the 1987 report of the World Commission on Environment and Development that first brought global attention to the idea, "in which the exploitation of resources, the direction of investments, the orientation of technological development, and institutional change are all in harmony and enhance both current and future potential to meet human needs and aspirations"(35)
Since the appearance of this report there has emerged a substantial body of interdisciplinary literature devoted to defining and developing political, economic, and legal instruments to achieve this goal of continued, but "sustainable" development. The notion vaulted into prominence, however, at the Rio summit that led to the United Nations Convention on Biological Diversity -- because it seemed a useful vehicle for harmonizing North - South political differences.
How might interdisciplinary conversation about the development of norms and practices for the protection of traditional knowledge and cultural heritage be advanced by adopting "cultural sustainability" as the organizing metaphor? What advantages does this trope have over "authorship" (and other cognate concepts) around which intellectual property law historically has been organized? And why might it be a more fruitful basis for discussion than either "free information" or the "tragedy of the commons," the new economic tropes that we have identified as false alternatives to "authorship" as controlling metaphors, ineffective precisely because they fail to escape the gravitational pull of the "authorship" concept itself?
However tentatively, we would suggest that a discussion refracted in terms of "cultural sustainability" might succeed -- where one organized by means of other metaphors ultimately would fail -- in transcending the near-exclusive emphasis on the nexus between the maker and the specific products of his or her creative efforts that dominates conventional intellectual property discourse. As we have argued, that discourse is marked by a strong individualistic emphasis, which makes it difficult to think and talk clearly about instances in which cultural work is carried forward by or within groups. Just as characteristically, intellectual property law thinking tends to approach issues of cultural policy by defining issues and solutions in terms of" "things" to be (or not to be) protected; in doing so it risks missing what is both most valuable to, and most valuable about, the cultural work of indigenous communities: the means by which their custodianship over various cultural objects and bodies of information is carried forward. Thus, for example, the larger question raised by the case of the rosy periwinkle is not how the bearers of a specific item of knowledge about the properties of a specific plant might have been afforded some economic return in connection with its exploitation, but what measures would have been necessary to maintain the systems within which that item of knowledge and others like it were preserved, to assure their continued availability to the human community at large.
Adoption of the metaphor of "cultural sustainability" would represent an acknowledgment that maintenance of traditional knowledge systems within living communities should be the first-order goal of any new legal initiatives to safeguard traditional culture, and that, compelling as are "equity arguments" for compensation to indigenous peoples whose knowledge is commercialized, such compensation is only a means -- and only one means -- by which to accomplish that goal; in some situations, it will be better served by affording greater rights to traditional communities, endowing them (for example) with the absolute authority to withhold sacred knowledge from the marketplace. By the same token, however, because (like other invocations of the "sustainability" concept) "cultural sustainability" is premised on balancing the need to use resources with the need to assure their continued availability, the metaphor also inherently recognizes the potential risk of overrprotection: a potential rights regime which gave traditional communities the ability to bar dissemination of the proverbial botanical AIDS cure would be subject to criticism within the discursive framework established by adopting the proposed metaphor. Indeed, as we have suggested, the central tension in the policy discussion concerning indigenous cultural rights -- as with that relating to any system of knowledge regulation -- is between the impulse toward "control" and the impulse toward "access." Unlike other available metaphors, "sustainability" has the important advantage of containing a "built-in" recognition of both of these conflicting impulses.
Specifically, a "sustainability"-based approach might help everyone engaged in the discussion of initiatives to safeguard traditional culture to:
Recognize more fully the critical custodial role that indigenous peoples play in maintaining valuable traditions and bodies of knowledge, and acknowledge the ways in which that complex role differs from one of conventional "ownership" or "proprietorship";
Ask and answer questions about how a wide range of possible social or legal policies (including, but not limited to, new rights regimes) might encourage desirable forms of collective social behavior in relation to traditional knowledge and cultural heritage;
Refocus attention in connection with legal measures and initiatives away from the consideration of individual entitlements, and towards an accounting of the cultural requirements of particular traditional communities;
Avoid the unfruitful binary of "ownership - no ownership" in considering whether (and if so, what) regulation of the use of traditional knowledge and cultural heritage may be appropriate;
Take into account the collective interests of re-users and consumers of information, both outside traditional communities and within them.
A discussion conducted in terms of "cultural sustainability" would be appropriate to the consideration of new rights regimes, such as the proposals for "Community Intellectual Rights" (CIR) which were first proposed by the Third World Network in 1994 and now are gaining currency in Latin America and parts of Africa.(36) Likewise, it could guide further discussions of initiatives to mobilize the content of existing legal regimes (including, but not limited to those of intellectual property) into "bundles of rights" which could be deployed by traditional communities to protect their knowledge -- the so-called "Traditional Resource Rights" (TRR) approach.(37)
Moreover, the lens of "cultural sustainability" could be profitably employed to examine proposals and projects to address the gaps in national and international legal safeguards for traditional culture through private legal ordering, such as the well-publicized 1992 agreement between Costa Rica's National Institute of Biodiversity (INBio) and the Merck pharmaceutical company.(38) Likewise, it could be applied in assessing the benefit-sharing approach adopted in the mid-1990's by the Shaman Pharmaceuticals firm,(39) or the more recently-announced contract between an Indian government research institute and a local traditional community to share the benefits of a medicine based on the active ingredient of a plant to which its members directed research scientists.(40)
In addition, and perhaps most importantly, any discussion of the future of legal measures to safeguard traditional heritage conducted in terms of the metaphor of "cultural sustainability" would, by its nature, be one in which traditional communities and their representatives would be full participants. Only through the fullest possible consultation will it be possible for policy-makers to determine what legal measures actually will function to help maintain the processes by which culture is conserved, transmitted, and elaborated within those communities -- as any inquiry based on "cultural sustainability" requires. Perhaps because conventional intellectual property rights constitute part of the conventional framework of Western law, legal experts in developed countries have long been ready to prescribe intellectual property rights-based approaches to traditional culture and traditional science. Not surprisingly, as we have detailed above, these proposals have been largely ineffective. Increasingly, however, traditional communities are finding their own voices. The deep logic of "cultural sustainability" would help to reinforce their demands to be heard.
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