Rosemary Coombe
York University, Anthropology, Faculty Member
- York University, Social Science, Faculty Memberadd
- Human Rights, Cultural Heritage, Cultural Anthropology, Intellectual Property, Legal Anthropology, Traditional Environmental Knowledge, and 17 moreCulture and Sustainable Development in Developing Countries, Customary Law, Cultural Rights, Cultural Property, Social Sciences, Cultural Studies, Sustainable Development, Globalization, Neoliberalism, Law and Society, Cultural Politics, Indigenous Peoples Rights, Socio-legal studies, Critical Legal Theory, Native American Anthropology, Critical Legal Studies, and Law and cultureedit
- A legal anthropologist of the knowledge economy and its exclusions and forms of dispossession concerned with intellec... moreA legal anthropologist of the knowledge economy and its exclusions and forms of dispossession concerned with intellectual property and cultural heritage regimes and their political affordances under neoliberal governmentality.edit
Critical scholarship on geographical indications (GIs) has increasingly focused upon their role in fostering development in the Global South. Recent work has drawn welcome attention to issues of governance and sparked new debates about... more
Critical scholarship on geographical indications (GIs) has increasingly focused upon their role in fostering development in the Global South. Recent work has drawn welcome attention to issues of governance and sparked new debates about the role of the state in GI regulation. We argue that this new emphasis needs to be coupled with a greater focus upon local social relations of power and interlinked issues of social justice. Rather than see GI regimes as apolitical technical administrative frameworks, we argue that they govern emerging public goods that should be forged to redress extant forms of social inequality and foster the inclusion of marginalized actors in commodity value chains. In many areas of the world, this will entail close attention to the historical specificities of colonial labor relations and their neocolonial legacies, which have entrenched conditions of racialized and gendered dispossession, particularly in plantation economies. Using examples from South Africa and South Asia, we illustrate how GIs conventionally reify territories in a fashion that obscures and/or naturalizes exploitative conditions of labor and unequal access to land based resources, which are legacies of historical disenfranchisement. Like other forms of neoliberal governmentality that support private governance for public ends, however, GIs might be shaped to support new forms of social justice. We show how issues of labor and place-based livelihoods increasingly influence new policy directions within Fair Trade agendas while concerns with “decolonizing” agricultural governance now animate certification initiatives emerging from new social movements. Both initiatives provide models for shaping the governance and regulation of GIs in projects of rural territorial development that encompass principles of rights-based development to further social movements for rural social justice.
... Burke, Heather, Claire Smith, Dorothy Lippert, Joe Watkins, and Larry Zimmerman (editors) 2008 Kennewick Man: Perspectives on the Ancient One. ... In Indigenous Archaeologies: Decolonising Theory and Practice, edited by Claire Smith... more
... Burke, Heather, Claire Smith, Dorothy Lippert, Joe Watkins, and Larry Zimmerman (editors) 2008 Kennewick Man: Perspectives on the Ancient One. ... In Indigenous Archaeologies: Decolonising Theory and Practice, edited by Claire Smith and Martin Wobst, pp. 208225. ...
Research Interests: Archaeology, Anthropology, Ethics, Intellectual Property, Cultural Heritage, and 16 moreCommunity Engagement & Participation, Heritage Tourism, Collaboration, Cultural Tourism, Intellectual Property Law, Cultural Heritage Management, Intangible Cultural Heritage (Culture), Urban And Regional Planning, Heritage Management, Ethics in archaeology, Heritage, First Nations, Metis, Inuit Children and Education, Aboriginal Physical Health and Activities, and Aboriginal Nutrition and Cultural and Traditional Knowledge
The project involves a critical analytical investigation of the domestic and international legal regimes available for recognizing, valuing, preserving, and compensating for the genetic resources held by indigenous peoples in the form of... more
The project involves a critical analytical investigation of the domestic and international legal regimes available for recognizing, valuing, preserving, and compensating for the genetic resources held by indigenous peoples in the form of biological and human genetic diversity and indigenous knowledge, an exploration of available forms of domestic law reform given conflicting international norms, and the availability of alternative normative resources for governing emerging transnational relationships. It seeks to map the networks of activity and communication that constitute a new social movement of indigenous peoples and NGOs who are developing new norms and protocols for access and consent, as well as novel forms of compensation with respect to genetic resources. It is part of a larger project that will develop an interdisciplinary collaborative network of researchers in law, anthropology, and the life and environmental sciences to establish a database for comparative studies that will inform future deliberations and relationships in the fields of biotechnology, biological diversity, and genetic research.
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The recognition of IPRs as human rights entails a renewed concern for social justice issues in an era of so-called global harmonization of intellectual property protections that further challenges our considerations of sovereignty. The... more
The recognition of IPRs as human rights entails a renewed concern for social justice issues in an era of so-called global harmonization of intellectual property protections that further challenges our considerations of sovereignty. The issue of intellectual property has, for many indigenous peoples, been an effective rhetorical vehicle to keep issues of autonomy and self-determination on the global bargaining table. However, it would be a gross misrepresentation of global cultural politics to suggest that all indigenous interest in intellectual property assumes a collective cultural form. An acknowledgement of IPRs status as human rights instruments seems timely, if not urgent, given the contemporary hegemony of financial and trade considerations in global discussions of intellectual property.
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The West has created categories of property, including intellectual property, which divides peoples and things according to the same colonizing discourses of possessive individualism that historically disentitled and disenfranchised... more
The West has created categories of property, including intellectual property, which divides peoples and things according to the same colonizing discourses of possessive individualism that historically disentitled and disenfranchised Native peoples in North America. These categories are often presented as one or both of neutral and natural, and often racialized. The commodification and removal of land from people’s social relations which inform Western valuations of cultural value and human beings living in communities represents only one particular, partial way of categorizing the world. Legal and cultural manifestations of authorship, culture, and property are contingent upon Enlightenment and Romantic notions built upon a colonial foundation. I will argue that the law rips apart what First Nations peoples view as integrally and relationally joined, but traditional Western understandings of culture, identity, and property are provoked, challenged, and undermined by the concept of Aboriginal Title in a fashion that is both necessary and long overdue.
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In this article, I address the political dimension of relationship between legal ownership and cultural authority. What we experience as social reality is a constellation of cultural structures that we ourselves construct and transform in... more
In this article, I address the political dimension of relationship between legal ownership and cultural authority. What we experience as social reality is a constellation of cultural structures that we ourselves construct and transform in ongoing practice. Any consideration of contemporary life must take into account both the production and the consumption of media-disseminated cultural forms. The type of practice I am concerned with is most readily apparent in trademark law, but examples may also be found in the publicity rights and copyright fields. I will momentarily leave aside the question of whether trademark rights give you "ownership" of a sign or symbol in any and all contexts ("authorities" say they don't, but then it is judges who authorize their use). With Pavel Medvedev and Valentin Voloshinov, Bakhtin developed a body of philosophy about the constitutive role of language in human life and the cultural life of democracy, which he saw as quintessentially dialogical. I borrow Bakhtin's authority here because he transcends and rejects the dichotomy of subjectivity and objectivity by understanding culture as the ongoing activity of transformative meaning-making.
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This article, which places the development of the "law-and-interpretation" or "legal hermeneutics" school of legal scholarship in historical and political context, is meant to serve as an accessible introduction to the literature on legal... more
This article, which places the development of the "law-and-interpretation" or "legal hermeneutics" school of legal scholarship in historical and political context, is meant to serve as an accessible introduction to the literature on legal hermeneutics. The author situates the law-and-interpretation debate in the context of intellectual developments in the humanities and social sciences, and points out some of its empirical and theoretical limitations. While a great deal of the literature on legal hermeneutics either ignores the politics of interpretation or deals with it superficially, claiming it to be outside of the scope of inquiry of those interested in the field of legal study, the author suggests that politics is in fact constitutive of the very act of interpretation.
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Ethnographic research into intellectual property (IP) gained traction in the mid-1990s. During this period international trade agreements mandated that all states introduce minimum IP protections, property rights in intangible goods were... more
Ethnographic research into intellectual property (IP) gained traction in the mid-1990s. During this period international trade agreements mandated that all states introduce minimum IP protections, property rights in intangible goods were expanded to encompass new subject areas, international Indigenous Peoples’ human rights were being negotiated, and protecting biodiversity became a global policy concern. Anthropologists considered IP extension in terms of the processes of commodification the law enabled, the cultural incommensurability of the law’s presuppositions in various societies, the implications of these rights for disciplinary research and publication ethics, and the modes of subjectification and territorialization that the enforcement of such laws engendered. Recognizing that IP clearly constrains and shapes the circulation of goods through the privatization of significant resources, critical anthropological examinations of Western liberal legal binary distinctions between public and private goods also revealed the forms of dispossession enabled by presuming a singular cultural commons. Anthropologists showed the diversity of publics constituted through authorized and unauthorized reproduction and circulation of cultural goods, exploring the management of intangible cultural goods in a variety of moral economies as well as the construction and translation of tradition in new policy arenas. The intersection of IP and human rights also prompted greater disciplinary reflexivity with respect to research ethics and publication practices. Analyzing how IP protections are legitimated and the activities that their enforcement delegitimizes, ethnography illustrated how the law creates privileged and abject subjectivities, reconfigures affective relationships between people and places, and produces zones of policing and discipline in processes of territorialization.
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"Critical heritage studies" (Baird 2009, 2012) positions heritage within a wider field of global institutions, discourses, and power relations. For example, the new emphasis upon cultural heritage as a development resource by... more
"Critical heritage studies" (Baird 2009, 2012) positions heritage within a wider field of global institutions, discourses, and power relations. For example, the new emphasis upon cultural heritage as a development resource by international institutions, states, NGOs, and local governing bodies is criticized by scholars who call attention to the new governmentalities that neoliberal heritage regimes engender (Coombe 2012), and their impacts on local "communities" reduced to mere "stakeholders" in reconfigured fields
of power. In this vein, we draw upon ethnographic studies in Australia, Romania, and Madagascar to show how heritage claims emerge in new terrains of contestation involving
local residents, resources, and extractive industries. International heritage institutions face new challenges as heritage becomes imbricated in industry strategies on "resource
frontiers" (Tsing 2003, 2005 ), limiting social expectations for its governance. Rights oriented institutions and movements, however, also afford communities and indigenous peoples the means to insist upon new forms of participation and accountability, and assert territorialities that expose the limits of universalizing heritage discourses.
of power. In this vein, we draw upon ethnographic studies in Australia, Romania, and Madagascar to show how heritage claims emerge in new terrains of contestation involving
local residents, resources, and extractive industries. International heritage institutions face new challenges as heritage becomes imbricated in industry strategies on "resource
frontiers" (Tsing 2003, 2005 ), limiting social expectations for its governance. Rights oriented institutions and movements, however, also afford communities and indigenous peoples the means to insist upon new forms of participation and accountability, and assert territorialities that expose the limits of universalizing heritage discourses.
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The critical study of cultural heritage faces crucial challenges if it is to fully attend to fundamental shifts in the global political economy and global approaches to heritage protection. Heritage studies needs a more anthropologically... more
The critical study of cultural heritage faces crucial challenges if it is to fully attend to fundamental shifts in the global political economy and global approaches to heritage protection. Heritage studies needs a more anthropologically nuanced and theoretically informed understanding of neoliberalism, governmentality, and human rights to address the changing conditions of heritage regulation and to understand the
political struggles in which new “heritagized” claims are now imbricated. Although we find the dominant modes of critique characteristic of heritage studies to be too narrow to address the configurations of these contemporary arenas of governance, we highlight critical scholarship that is advancing these insights in an incremental fashion.
political struggles in which new “heritagized” claims are now imbricated. Although we find the dominant modes of critique characteristic of heritage studies to be too narrow to address the configurations of these contemporary arenas of governance, we highlight critical scholarship that is advancing these insights in an incremental fashion.
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John Greyson’s 1997 film Un©ut explores the cultural consequences of intellectual property enforcement through the act of penile circumcision and the social semiotics of the foreskin. It’s unlikely, if not absurd, juxtaposition reveals... more
John Greyson’s 1997 film Un©ut explores the cultural consequences of intellectual property enforcement through the act of penile circumcision and the social semiotics of the foreskin. It’s unlikely, if not absurd, juxtaposition reveals social anxieties around authorship, art, and politics in mass-mediated environments. Un©ut’s relates male sexual identity with intellectual property practices in a criticism of contemporary legal regimes. Greyson effectively shows how intellectual property has become the peculiar foundation through which the state has involved itself in surveillance in the expression of our (queer) desires.
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Shifts towards the commodification of intangible goods – apart from historical means of economic management based on industrial strategies and the creation and sale of physical goods – have made intellectual property rights critical to... more
Shifts towards the commodification of intangible goods – apart from historical means of economic management based on industrial strategies and the creation and sale of physical goods – have made intellectual property rights critical to capitalist accumulation in an increasingly globalized informational economy. In mainstream policy discourses, intellectual policy rights are advanced as a means to provide incentives for creativity and innovation, and to secure economic rewards for investment in research and development while providing a socially optimal level of creative and technological goods. The broader cultural, political, and social implications of the increasing expansion and extension of intellectual property have attracted heightened attention and concern since the 1990s. A discussion of the historical justifications for intellectual property in Western legal traditions is followed by a consideration of how these laws increasingly shape conditions of culture and communication. We show how the trade-based expansion of intellectual property has reoriented the traditional balance between private property rights and public interests, further entrenching historic inequalities and providing new obstacles to the realization of development and human rights in the global South, while reinforcing the marginalization of non-Western states, peoples, and cultures. The impact of intellectual property on access to medicine, health care, education, agriculture, and the preservation of food security, and biodiversity, illustrates the dangers of expanding intellectual property rights without consideration of public interests or the desirability of securing basic public goods. Responses to these debates demonstrate the need for - and the emergence of – new coalitions of states, activists, and critics able to forge a new politics of intellectual property that better balances private and public rights while furthering human rights and sustainable development.
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Cultural heritage is understood as an important source of identity and increasingly as a source of sustainable development. States and social movements challenging Eurocentric cultural policy principles have contested the propriety of... more
Cultural heritage is understood as an important source of identity and increasingly as a source of sustainable development. States and social movements challenging Eurocentric cultural policy principles have contested the propriety of state dominance in heritage management, while simultaneously claiming cultural heritage as a distinct source of identity construction. We examine the legal and policy aspects of intangible cultural heritage as it has evolved through UNESCO conventions, showing the difficulties of reconciling international trade practices with intangible cultural heritage preservation. However, we have found it necessary to move beyond doctrinal considerations around the international law of cultural heritage to explore cultural heritage as a sight of evolving postcolonial politics in which new understandings of culture are bourgeoning and contested.
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The proliferation of collective claims made in cultural and proprietary terms demands a critical understanding of the political economies of community construction in order to understand ownership as a process through which... more
The proliferation of collective claims made in cultural and proprietary terms demands a critical understanding of the political economies of community construction in order to understand ownership as a process through which property-holders are constituted as social actors and as political agents. The legal and political conditions under which culturally self-defined communities emerge to make possessive legal claims include neoliberal governmentalities, environmental regimes, intellectual property and cultural policy initiatives, as well as indigenous rights discourses which converge in many parts of the world to encourage collective needs and aspirations to be expressed in terms of community property rights. Exploring ethnographic examples from Latin America, it becomes clear that the global conditions under which collective holders of culturalised property claims have assumed greater agency and voice are diverse and their objectives contradictory. The communities empowered via recognition of their traditional knowledge, their intangible cultural heritage, or their traditional cultural expressions are situated at the intersections of old regimes of power and attachment, emerging forms of governmentality, and new imaginaries of social justice.
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Communities and their generated cultural properties are continually evolving. Intellectual property laws play a constitutive role in that evolution. While states and NGOs can potentially steer communities and their properties towards... more
Communities and their generated cultural properties are continually evolving. Intellectual property laws play a constitutive role in that evolution. While states and NGOs can potentially steer communities and their properties towards their own objectives, these newly ‘capacitated’ communities are more politically active in demanding state concessions and legal autonomy. Rather than merely being drawn into regimes of market citizenship for the purposes of capital accumulation, these communities are utilizing intellectual property rights in their appeals to normative discourses of indigenous and human rights in advancing transnational social justice movements.
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In this chapter, we assess the relationship between social health and cultural forms in the scope of appropriating ‘artistic consent.’ We do not argue that all forms of cultural appropriation is wrong. In contrast to ‘free culture’... more
In this chapter, we assess the relationship between social health and cultural forms in the scope of appropriating ‘artistic consent.’ We do not argue that all forms of cultural appropriation is wrong. In contrast to ‘free culture’ pro-public domain movements, however, we argue that appropriating certain kinds of recorded music should be considered within political and historical contexts. In some situations, particularly involving the recorded music of indigenous communities often subjected to histories of colonialism and domination, appropriation of recorded music needs to be understood as a violation of cultural rights and its ‘repatriation’ must go beyond compensation to encompass a unique set of resources to enable distinct futures to be articulated.
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Now, more than ever, Indigenous heritage rights garner normative support from various international policy-making bodies. Histories of conquest and colonial domination have led indigenous communities to viewing these historical injustices... more
Now, more than ever, Indigenous heritage rights garner normative support from various international policy-making bodies. Histories of conquest and colonial domination have led indigenous communities to viewing these historical injustices as denials of their specificities as culturally distinct peoples. Cultural assimilation policies, processes of spiritual proselytization, and resource expropriation have all contributed to undermining indigenous self-determination and attempted erasure of indigenous identity. However, as this survey of significant indigenous-human rights developments shows, the international community has gradually come to recognize indigenous commitments to culture, community, and land as political aspirations.
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Traditional knowledge (TK) and traditional cultural expressions created socially and passed down from generation to generation have largely remained outside of the purview of Western intellectual property regimes, resulting in their... more
Traditional knowledge (TK) and traditional cultural expressions created socially and passed down from generation to generation have largely remained outside of the purview of Western intellectual property regimes, resulting in their widespread appropriation. Despite long-standing concerns that many of these practices were unfair, constituting forms of unjust enrichment and, in some cases, misrepresentation, the political will to develop means of governing these activities has taken decades to arrive. The idea of extending "protection" to traditional cultural content has engendered considerable controversy and is still opposed by many who consider such endeavours pernicious limits on freedom of speech, scholarship, artistic expression, and historical inquiry. Most, if not all, of these liberal rejections have been overstated, and few of them seem informed by any understanding of the normative framework of international human rights law. This chapter addresses the international institutions and processes that have brought these issues to global attention in the last two decades, the emergence of agreed upon principles and objectives, and the prospects these pose for protecting First Nations heritage. Examples of the latter are drawn from the case studies discussed in the introduction and companion to this volume.
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Questions surrounding cultural appropriation have become more prominent with new technologies and the extension of intellectual property rights. Corporate revenue streams and mass availability represent two poles in debates over propriety... more
Questions surrounding cultural appropriation have become more prominent with new technologies and the extension of intellectual property rights. Corporate revenue streams and mass availability represent two poles in debates over propriety with respect to the use of expressive objects in creative and scholarly activities. Appropriation extends over various cultural fields, such as music, art, fashion, feminist political practice, and fan subcultures. Appropriations might reinforce or subvert their ‘originals,’ or simply do neither. In this short chapter, we describe the above circuits of appropriation in order to demonstrate how they challenge intellectual property and expectations of ownership and originality, ultimately reconstituting the limits of intellectual property and cultural regimes definitions of “theft,” “piracy,” and novel “interpretation,” and “rearrangement.”
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Cultural or symbolic goods are increasingly important sources of capital accumulation in the world economy as manifest by the incorporation of intellectual property rights (IPRs) in the global trade regime via the TRIPs Agreement. This... more
Cultural or symbolic goods are increasingly important sources of capital accumulation in the world economy as manifest by the incorporation of intellectual property rights (IPRs) in the global trade regime via the TRIPs Agreement. This has been paralleled by a growing appreciation for the value of cultural diversity, an acknowledgement of the relationship between biological and cultural diversity, recognition of distinct cultural traditions as the basis for alternative forms of sustainable development, and a revitalization of cultural rights in the human rights arena. IPRs are clearly identified as cultural rights rather than property or economic rights within the international human rights framework. Their capacities are in no way exhausted by or limited to their predominant role in protecting corporate market shares.
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This section of the volume is entitled “Assessing the Suitability of Intellectual Property Rights for Traditional Knowledge and Cultural Industries,” yet none of the contributors address between proposed rights and industries of a... more
This section of the volume is entitled “Assessing the Suitability of Intellectual Property Rights for Traditional Knowledge and Cultural Industries,” yet none of the contributors address between proposed rights and industries of a cultural nature. I will suggest that it is precisely this relationship that needs to be considered and that the policy issues posed by considerations of cultural identity and cultural diversity are likely to be the most difficult ones to engage in ongoing international negotiations with respect to cultural forms, forms of property, norms of expression and the optimal range of public goods.
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Intellectual Property has become a rich topic of interdisciplinary inquiry in the past 15 years, attracting the interest of anthropologists, communications and cultural studies scholars, economists, geographers, historians, traditional... more
Intellectual Property has become a rich topic of interdisciplinary inquiry in the past 15 years, attracting the interest of anthropologists, communications and cultural studies scholars, economists, geographers, historians, traditional legal scholars, political scientists, sociologists, and philosophers. Not all of this scholarship addresses the role of intellectual property in actual social contexts, however, and a great deal of it is both hypothetical and abstract. Scholarship on intellectual property that represents a "law and society" approach is explored here through dominant themes in the literature. Briefly, these include the effect of intellectual property rights (IPRs) in shaping communication, the exercise of IPRs as a new form of social power, the spatial politics of branded environments, the cultural power of fame afforded to celebrities, global inequities occasioned by the emergence of trade-based intellectual property protection for informational goods, and a concern with the fate of the public domain in this new information economy.
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In a rapidly changing era of globalization, ‘cultural rights’ have been garnered new attention in international law and policy making circles. Information becomes capital through processes of commodification, facilitated by intellectual... more
In a rapidly changing era of globalization, ‘cultural rights’ have been garnered new attention in international law and policy making circles. Information becomes capital through processes of commodification, facilitated by intellectual property laws. Resistances engage in similar tactics but strategically point them in alternative directions. Indigenous peoples have put intellectual property ‘back’ in the human rights framework after its initial appropriation to the international trade domain. They have done so by utilizing the ambiguities associated with ‘culture’ found in international covenants, such as the Convention on Biological Diversity (CBD). While anthropologists might feel unease or discomfort in the increasing institutional use of the idea of culture, they must also begin to recognize its power to express injustice. The ultimate value in culture then, may be its versatile ability to serve as a work in progress – to give new meaning and new voice to injustice.
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Defining a cultural studies of law has become increasingly difficult with the rise of legal studies that borrow methodologies from the humanities. In socio-legal studies, law’s effects have been understood as constitutively in... more
Defining a cultural studies of law has become increasingly difficult with the rise of legal studies that borrow methodologies from the humanities. In socio-legal studies, law’s effects have been understood as constitutively in legitimating meaning, shaping identities, and defining the perspectives through which we understand the world. Moreover, legal anthropology develop these propositions through extensive and enriching ethnographic work. Thus, cultural studies of law are constituted by legal humanities, interpretative socio-legal studies, and legal anthropology, each positing that law is actively creating the social world we experience. In this chapter I examine legal-constructionist studies around identity, narrative, and justice, none of which offer indications of a cultural studies of law as a distinct field of legal inquiry.
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In international law and policy circles it is increasingly recognized that the preservation of biodiversity is integrally related to the preservation of cultural diversity. Indigenous peoples and local communities hold traditional... more
In international law and policy circles it is increasingly recognized that the preservation of biodiversity is integrally related to the preservation of cultural diversity. Indigenous peoples and local communities hold traditional ecological knowledge of great potential value and importance in global efforts to achieve sustainable development objectives. As such, these peoples and their knowledges are endangered from a multitude of sources. This paper will consider global efforts to value and preserve traditional ecological knowledges, the use and significance of digital technologies in facilitating the preservation of this cultural diversity, and point to issues that require further research. First, I will introduce the key policy issues around biodiversity conservation. Then, I examine the legal obligations of the majority of developed countries under the Convention for Biological Diversity (CBD). From there, I focus on the role of intellectual property rights in protecting traditional environmental knowledge, as well as the uses of digital technology to protect biodiversity and indigenous knowledge.
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Law provides means and forums for both legitimating and contesting dominant meanings and the social hierarchies they support. Trademark laws provide a terrain to analyze cultural politics around sports in the United States, illustrating... more
Law provides means and forums for both legitimating and contesting dominant meanings and the social hierarchies they support. Trademark laws provide a terrain to analyze cultural politics around sports in the United States, illustrating the significance of intellectual property laws in contemporary cultural contestations. Not only do intellectual property laws allow for particular forms of signifying power for signs and symbols, but also for challenges to hegemonic articulations and alternative appropriations. Trademarks as visual symbols of power, underpinned by the importance of the commodity/sign form in contemporary public spheres, enable us to see how trademarks figure in the making of imagined communities-bodies politic-and in the making and remaking of minority subjects, the racialized bodies of contemporary body politics.
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The politics of global capital restructuring and the challenges of transnationalism have made a contemporary cultural studies of law more pressing; political struggles for identity, recognition, and legitimacy are all at stake. Law and... more
The politics of global capital restructuring and the challenges of transnationalism have made a contemporary cultural studies of law more pressing; political struggles for identity, recognition, and legitimacy are all at stake. Law and culture are mutually constitutive and in a state of nearly constant flux. From multicultural policies to ‘cultural exemptions’ in free trade agreements, cultural continually appears in legal spheres; particular visions of culture are legitimized and delegitimized through law. In this chapter, I argue that we should avoid pursuing a cultural studies of law through any singular paradigms. Rather than simply linking law and culture, we should recognize the ways in which they have been historically articulated, stabilized and destabilized. Culture must not be simply recognized as signification, but also for materiality in order to recognize the signifying power of law in concrete struggles over meaning and their ensuing political implications.
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This contribution briefly reflects upon some of the other works in this volume of critical cultural heritage scholarship, which explore the changing nature of ‘cultural heritage’ in legal, political, and governmental realms. I trace a... more
This contribution briefly reflects upon some of the other works in this volume of critical cultural heritage scholarship, which explore the changing nature of ‘cultural heritage’ in legal, political, and governmental realms. I trace a brief history of the evolving status of cultural heritage management, as well as highlighting new challenges pertaining to questions over appropriate custodians of heritage. Traditionally this role has been accorded to states, but minorities and indigenous communities are beginning to play a more integral part in custodianship. However, heritage regimes are increasingly becoming neoliberal, espousing new forms of governmentality stemming from decentralization and distribution of governmental powers. It is too early to determine to what extent and how effectively novel international tools for cultural valorization and local development can be put to new ends, but it is not too soon to begin to critically engage with the conditions that will thwart or advance struggles for social justice.
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This introduction provides an overview and bibliography of emerging works around ‘civil society’ in political anthropology. Civil society in the purview of political anthropology provides an array of questions from which kinds of... more
This introduction provides an overview and bibliography of emerging works around ‘civil society’ in political anthropology. Civil society in the purview of political anthropology provides an array of questions from which kinds of societies a civil society can be forged to what criteria its existence can be measured. Issues of postcoloniality, democracy and the changing role of the state, the historical relationships to European political traditions, the forms that shape national public spheres, and nationalism are all addressed in this special issue.
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This essay examines how the publics of public health and those of public domain are reshaping one another in efforts to commercialize and manage modern traditional medicine in Tanzanian universities, government laboratories,... more
This essay examines how the publics of public health and those of public domain are reshaping one another in efforts to commercialize and manage modern traditional medicine in Tanzanian universities, government laboratories, nongovernmental clinics, and ministry offices. I argue that struggles over the practices that constitute the public to which contemporary traditional medicine will appeal are also struggles over who is obliged to respond to pain and debility, to mediate the consequences of misfortune, and to take responsibility for the inequalities that shape health and well-being. Postindependence and socialist dreams had cast traditional medicine as the basis of an indigenous pharmaceutical industry and promised freedom from multinational pharmaceutical companies and global capitalism more broadly. By generating new publics, current scientific efforts to exploit the therapeutic and commercial value of therapeutic plants are experimenting with political and social philosophies, with biological efficacy, and with new forms of wealth and property. The uneven, contradictory, and partial projections of the public at play in these efforts are raising thorny questions about the forms of sovereignty that are possible within the neoliberal restructuring.
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Governmentality has become pervasive in social science scholarship, particularly in anthropology. Tania Li provides an innovative conceptual turn in governmentality approaches in elucidating ‘assemblages.’ Assemblages are abstract,... more
Governmentality has become pervasive in social science scholarship, particularly in anthropology. Tania Li provides an innovative conceptual turn in governmentality approaches in elucidating ‘assemblages.’ Assemblages are abstract, mobile, and dynamic forms that move across and reconstitute society, culture, and economy in the era of globalization. Li argues for ethnographic examinations into governmentality’s limits, which might enable bottoms-up approaches often overlooked in govermentality studies. A foray into governmentality’s limits requires an understanding of the cultural and political resources available to social agents in practices of articulation, with a keen awareness of historical transformations and contingencies. This also provides space to engage with rights and their role in critiques of power. Investigating the intersection of rights practices with govermentality regimes provide promising ethnographic opportunities to explore expressions of rights at govermentality’s limits.
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In this brief note, I discuss the interplay between cultural rights and intellectual property with a focus on ‘free culture’-public domain movements. These movements, primarily based in the U.S., advocate for a unitary public domain of... more
In this brief note, I discuss the interplay between cultural rights and intellectual property with a focus on ‘free culture’-public domain movements. These movements, primarily based in the U.S., advocate for a unitary public domain of cultural materials in order to fashion a new digital creative commons. This position fails to appreciate cultural rights of indigenous peoples and ethnic minorities who have been historically marginalized and prone to resource and identity appropriation. Assertions of individual liberty and the public circulation of culture must acknowledge and listen to peoples with distinct traditions. Our goal must be a more inclusive and culturally pluralistic public domain when considering intellectual property protection.
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Michael Brown's “Can Culture Be Copyright?” addresses several issues related to the ethical dilemmas around using intellectual property to promote cultural self-determination. Intellectual property might provide the legal tools to protect... more
Michael Brown's “Can Culture Be Copyright?” addresses several issues related to the ethical dilemmas around using intellectual property to promote cultural self-determination. Intellectual property might provide the legal tools to protect traditional knowledges. In a brief response to Brown’s article, I argue that debates around intellectual property are neither sufficiently careful in their articulation of the law nor are they ethnographically sensitive to the contexts in which intellectual property assertions arise out of rhetorical claims.
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According to Santos, postmodernism has produced a new subjectivity that should be privileged in conceiving a new, progressive reimagination of the law. Rather than privilege this new subject, I argue that it deserves to be critically... more
According to Santos, postmodernism has produced a new subjectivity that should be privileged in conceiving a new, progressive reimagination of the law. Rather than privilege this new subject, I argue that it deserves to be critically interrogated in how it occupies a space of unacknowledged socioeconomic and cultural privilege. Subjects are fashioned in political practice; what are the social practices we seek to foster? A utopian sphere of postmodern politics might begin with a politics of nonidentity, noncommunity, and an ethics of openness to contingency. We should strive to enable new subjectivities to materialize from encounters with difference, rather than privilege a static postmodern subject.
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I provide a short review of review of Johanna Gibson's "Creating Selves: Intellectual Property and the Narration of Culture" (Dartmouth: Ashgate, 2006)
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I provide a short review of Carol Greenhouse and Roshanak Khesti's "Democracy and Ethnography: Constructing Identities in Multicultural Liberal States" (Albany: SUNY Press, 1998).
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In this interview, I discuss legal anthropology and intellectual property, traditional environmental knowledges, and public domain issues.
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In a decolonial determination to resist the modern ontological separation of nature from culture, political ontologies and posthuman legalities in Andean Community countries increasingly recognize natural and cultural forces as... more
In a decolonial determination to resist the modern ontological separation of nature from culture, political ontologies and posthuman legalities in Andean Community countries increasingly recognize natural and cultural forces as inextricably interrelated under the principle of the pluriverse. After years of Indigenous struggles, new social movement mobilizations and citizen activism, twenty-first-century constitutional changes in the region have affirmed the plurinational and intercultural natures of the region's polities. Drawing upon extensive interdisciplinary ethnographic research in Ecuador and Colombia, the article illustrates how Indigenous, Afro-descendant and campesino communities express multispecies relations of care and conviviality in opposition to modern extractivist development through the concept of buen vivir. These grassroots collective life projects and life plans articulate rights 'from below' to support new practices of territorialization that further materialize natures' rights and community ideals. Although human rights have modern origins, the implementation of third generation collective biocultural rights to fulfill natures' rights may help to materially realize community norms, autonomies and responsibilities that exceed modern ontologies. The ecocentric territorial rights struggles and posthuman legalities we explore are examples of a larger emergent project of decolonizing human rights in a politics appropriate to the Anthropocene.
In a discussion of the legal construction of celebrity personas, a feminist perspective is adopted to criticize the reproduction of illicit & unauthorized identities based on publicity rights. Publicity rights, once intended to guarantee... more
In a discussion of the legal construction of celebrity personas, a feminist perspective is adopted to criticize the reproduction of illicit & unauthorized identities based on publicity rights. Publicity rights, once intended to guarantee an individual's commercial interests in the use of his or her name, now extends to any commoditizable aspect of a celebrity persona, as well as to heirs & assignees. Popular cultural practices linked to the celebrity involve the unauthorized use of the persona in alternative gender identities. Examples include: the gay male subculture's camp use of female (F) stars (Madonna, Judy Garland, etc) in F impersonation routines; lesbian hermaphroditism, in which pop stars such as James Dean & Elvis Presley are refashioned to subvert gendered meanings; & the production of Star Trek fanzines by an exclusively F, subterranean network of homemaker-authors. This postmodern expression of alternative gender identities is mandated by feminist political inquiry into political construction. It is suggested that such practices are part of an evolving contemporary democracy, liberated from the gendered concepts of the Enlightenment, in which the politicosocial world is expressed in cultural dialogue & the authoring of politically notable differences.
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This study examines judicial management of the action for breach of promise of marriage in nineteenth-century Ontario through an analysis of reported cases, trial records, and newspaper accounts. This seldom researched area of legal... more
This study examines judicial management of the action for breach of promise of marriage in nineteenth-century Ontario through an analysis of reported cases, trial records, and newspaper accounts. This seldom researched area of legal history sheds light on the interplay between cultural ideology and legal developments. Breach of promise of marriage cases elicited much societal attention and often consternation because they challenged widely held attitudes on women’s participation in the legal system. This study also illustrates how judges at the time exhibited a strong commitment to judicial autonomy in the face of contentious juridical gender issues, as these cases often threatened Victorian visions of social order.
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Critical legal studies has drawn criticism for its supposed theoretical inadequacy. James Boyle suggests that critical legal scholarship is characterized by a tension between structural and subjective poles. The idea that social theory... more
Critical legal studies has drawn criticism for its supposed theoretical inadequacy. James Boyle suggests that critical legal scholarship is characterized by a tension between structural and subjective poles. The idea that social theory must oscillate between structure and subjectivity is misconceived and as a dichotomy, must be rejected. Legal scholars need to radically reconsider understandings of both in order to fully appreciate the complex relationship between them. The structural and subjective need not be extricated, but rather redefined so that their oppositions no longer consume the dominant debates in social theory. An interdisciplinary “practice theory,” later defined in the article, contributes in reinserting agency and practice into critical legal scholarship while providing new conceptual resources to think about legal activity as a product of social agents acting in socially constructed worlds.
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Despite the differences in perspective that define the field, ethnographers of Mediterranean societies consider the cultural values of honour and shame in remarkably consistent and theoretically impoverished manner. The article attempts... more
Despite the differences in perspective that define the field, ethnographers of Mediterranean societies consider the cultural values of honour and shame in remarkably consistent and theoretically impoverished manner. The article attempts to demonstrate that the rhetorical strategies of structural functionalism continue to characterize discussions of honour and shame in Mediterranean societies, even when anthropologists appear to have rejected this theoretical paradigm. Arguing that to conceptualize the values of honour and shame as a type of juridical code does representational violence to the lives and experiences of Mediterranean peoples, the author advocates a practice-oriented theoretical approach to these cultural values that is more sensitive to social relations of inequality and difference.
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Understanding the hegemonic quality of legal discourse requires us to view hegemony as unfolding in multiple sights of discursive practice. Thus, we must begin to analyze not only hegemonic legal discourse but hegemony in social sights of... more
Understanding the hegemonic quality of legal discourse requires us to view hegemony as unfolding in multiple sights of discursive practice. Thus, we must begin to analyze not only hegemonic legal discourse but hegemony in social sights of legal practice in order to see that legal practice is essential in processes of domination and social ordering. In this article, I explore the processes of political subjection and resistance as they manifest in witness testimony and judicial decisions from late nineteenth century defamation trials in Ontario. I argue that slander and libel suits were integral in constructing particular legitimate knowledges about class and gender as categories of social identity.
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Drawing upon literature in cultural studies, the author argues that the concept of the postmodern challenges the discipline of cultural anthropology in a number of ways. Interpretive anthropology is an interpretive exercise - one with... more
Drawing upon literature in cultural studies, the author argues that the concept of the postmodern challenges the discipline of cultural anthropology in a number of ways. Interpretive anthropology is an interpretive exercise - one with untenable premises and limitations that are increasingly evident in the condition of postmodernity. Exploring the intersections between culture and power in local contexts, cultural anthropologists engage the postmodern by investigating the cultural politics of everyday life.
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Aspects of mass culture provide enabling resources for the construction of alternative gendered identities. In this article, I focus on the construction of celebrity persona in consumer cultures to consider how the celebrity functions in... more
Aspects of mass culture provide enabling resources for the construction of alternative gendered identities. In this article, I focus on the construction of celebrity persona in consumer cultures to consider how the celebrity functions in the expression and realization of popular aspirations. The law both engenders and endangers the production of alternatively gendered subjectivities. Legal regimes create and enable the realization of cultural and economic value through publicity rights. Focusing on how cultural practices can absorb and redefine the meaning of celebrity personas to assert new gendered identities, I will argue that celebrity images as personal property fails to address their cultural and social significance, ultimately reinforcing an impoverished understanding of freedom of expression and democracy.
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The celebrity image is imbued with multiple meanings, mined for its symbolic resonances and, simultaneously, a floating signifier, invested with libidinal energies, social longings, and political aspirations. The celebrity is authored in... more
The celebrity image is imbued with multiple meanings, mined for its symbolic resonances and, simultaneously, a floating signifier, invested with libidinal energies, social longings, and political aspirations. The celebrity is authored in a multiplicity of sites of discursive practice, generating unauthorized both for the celebrity and for her diverse authors. The law produces the means by which unauthorized identities are both engendered and endangered and existing personality rights do not justify the extent to which these rights are protected. Various examples are explored, showing how subaltern groups rewrite media imagery in subversive but politically expressive fashions. These practices function in an all-encompassing contemporary democracy that recognizes-as political practice-dialogic cultural activities of articulating the social world and authoring politically salient forms of difference.
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Debates over cultural appropriation are drawn out in multiple ways by a variety of actors. Some have used cultural appropriation to denote the practice of white elites stealing the cultural forms of minority groups for their own profit.... more
Debates over cultural appropriation are drawn out in multiple ways by a variety of actors. Some have used cultural appropriation to denote the practice of white elites stealing the cultural forms of minority groups for their own profit. In struggles for political representation, debates over cultural appropriation are grounded in colonially-rooted liberalism and orientalism which are often overlooked or taken for granted in such debates. Romantic notions of the individual author are oblivious to historical and current asymmetrical power relations when claiming a liberal freedom to expression. Legal domains of property offer two visions of culture, neither of which corresponds with Native visions of self-empowerment: the notion of the Romantic author whose work cannot be copied because of its unique expression and cultural property laws that enable collective entities to take control of material objects that fit into a singular notion of ‘culture.’ However, there is a subversive element to cultural appropriation that can be utilized by First Nations peoples; the Aboriginal Title shows how the use of the language of political liberalism can be used to undermine the colonial infrastructure upon which economic liberalism is built.
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Readers who are not Canadian should be aware that at the time this message was conceived (prior to the deregulation of the airline industry), all Canadians flying within Canada "flew Air Canada." This archetypal "normal" Canadian activity... more
Readers who are not Canadian should be aware that at the time this message was conceived (prior to the deregulation of the airline industry), all Canadians flying within Canada "flew Air Canada." This archetypal "normal" Canadian activity was selected to demonstrate similarities in Canadian lesbians' everyday experiences that were too often overshadowed by fears of sexual difference. A reconfiguration of social identity was thus written over one of the distinguishing signs of the nation-state in a manner that temporarily realigned the forces defining citizenship. The simultaneous identity of this sign-Air Canada-as both privileged indicia of government and a legally controlled commodity with an exchange value on the market operated to prohibit this communication from becoming a form of hegemonic articulation.
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Intellectual Property law has long been characterized by formalistic legal and economic analyses suited for practitioners of law and classical economics. It has more recently garnered the attention of scholars looking to investigate the... more
Intellectual Property law has long been characterized by formalistic legal and economic analyses suited for practitioners of law and classical economics. It has more recently garnered the attention of scholars looking to investigate the social elements and contexts from which IP emerges and functions. Context, authority, and power have all been unveiled by critical interrogations of commonplace elements of IP, such as the ‘author.’ This review considers three recent books: Mark Rose’s Authors and Owners, Martha Woodmansee’s The Author, Art, and the Market: Rereading the History of Aesthetics, and David Saunders’ Authorship and Copyright. The first two engage the complex cultural context of copyright law’s historical emergency, highlighting the interconnectedness between various discourses in national contexts. The third is a less nuanced of the history of copyright and author’s rights in five jurisdictions.
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Global capital restructuring has led to new forms of social and spatial rearrangements. These rearrangements have seen capital accumulation underpinned by finance and the globalization of manufacturing. As a result, informal economies... more
Global capital restructuring has led to new forms of social and spatial rearrangements. These rearrangements have seen capital accumulation underpinned by finance and the globalization of manufacturing. As a result, informal economies have emerged in the peripheral shadows of the formal, elite information-based economy. A confrontation of commodified images and commercial practices along fault lines of state and corporate power will be explored on the sidewalks at 125th Street and Lenox Avenue in New York City. As a cultural crossroads in an African American commercial marketplace, this place situates many of the ironies and ambiguities that currently animate the black public sphere in the United States. We seek to illuminate a number of relationships between processes of capital restructuring, African migrations, informal economies, African American cultural forms, and those signifiers which simultaneously mask and reveal the politics appropriate to postcolonial contexts.
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Intellectual property laws constitute a political economy of mimesis in capitalist societies, constructing authors, regulating the activities of reproduction, authorizing and licensing copying and imitation — in the service of maintaining... more
Intellectual property laws constitute a political economy of mimesis in capitalist societies, constructing authors, regulating the activities of reproduction, authorizing and licensing copying and imitation — in the service of maintaining the exchange value of texts. The trademark can be seen as the organized legal control of mimesis in capitalist societies. The trademark maintains and garners exchange value in the market, functioning as a tool of capital accumulation. In the late nineteenth century trademark laws became for the first time federal ones in markets recognized as national, and in the United States a particularly "American" consumer needed to be constructed to foster a burgeoning economy. Somewhat unsurprisingly, in precisely the same period we see preoccupations with the frontiers of civilization and the containment of the primitive. Early forms of "othering" and governmentality were at play in service of identity-creation and or exclusion, as well as advertising towards the creation of consumer markets. In the late twentieth century, we witness the politicized responses of those "othered" by those late nineteenth-century. The problem, as we shall see, is that for many peoples, "their own" representations are often legally owned by others, as properties protected by laws of intellectual property.
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Anthropologists address historical developments such as the global restructuring of capital, post-Fordism, and the flexible accumulation of capital from perspectives that diverge substantially from those employed by lawyers, political... more
Anthropologists address historical developments such as the global restructuring of capital, post-Fordism, and the flexible accumulation of capital from perspectives that diverge substantially from those employed by lawyers, political scientists, or economists. The global restructuring of capital and the intensified flows of capital, goods, imagery, people, and ideas has shaken the authority of nation states, cast cultural differences into sharp relief, and undermined the capacity of governments to deal with social welfare concerns. The woman who purchases day care service without filling out social security forms, the "gypsy cab" driver who serves poor neighborhoods without benefit of a license, the moonlighting software consultant, the craftsman building furniture in an area not zoned for manufacturing activity, the immigrant woman reading pap smears or sewing teddy bears in a poorly lit suburban garage, and the unlicensed African street vendor are all participating in the burgeoning informal economy that characterizes a global city like New York.
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As a law professor with a background in anthropology - or an intellectual property specialist with an ethnographic sensibility - I confess a certain discomfort as a traveler on the "information highway." Who and what gets left out on the... more
As a law professor with a background in anthropology - or an intellectual property specialist with an ethnographic sensibility - I confess a certain discomfort as a traveler on the "information highway." Who and what gets left out on the information highway are issues that must be addressed. However, in my own characteristic fashion I want to move beyond the internal logic of the structure of the discourse and its indeterminacy and ask some questions about its cultural content and its deployment. It does not seem that the left, out on the information highway, is particularly interested in protecting the expressive interests of others. To the extent that postmodernity is at least partially about how the world dreams itself American, those of us left, out on the information highway, might ask how we can create and protect spaces for political dissent in an information era, and how we might work to encourage the creative cultural work that must invariably accompany any progressive social transformation.
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"They're burning Bambi in Bangkok ... and Disney executives couldn't be happier." I want to further develop this; first to situate it historically, then to show how the author-function is at work in contemporary practices of map-making... more
"They're burning Bambi in Bangkok ... and Disney executives couldn't be happier." I want to further develop this; first to situate it historically, then to show how the author-function is at work in contemporary practices of map-making (mapping the biosphere and, it could be argued, mapping the genome.) Finally, I will return to the so-called "globalization" of intellectual property rights to ask some questions about the "global" and its relation to what I have elsewhere termed "gloca-cola-nation." It is something more than a coda, however, to add that the European bourgeois public sphere was forged precisely during a period of global European expansion and colonial occupation. Moreover, a case can be made that, like so many other Enlightenment concepts, Romantic tropes, and liberal legal principles, the constitutive elements of the author/work relationship were forged and articulated on colonial terrain in encounters with cultural others. Intellectual property laws (copyright, trademark, and publicity rights, specifically) enable author/owners to expropriate meanings and values generated by the creative activities of others - to prohibit them and/or to claim them as their own. Disney used its copyright and trademark interests in the Donald Duck characters in attempts to limit the circulation of the critical texts.
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Trademarks play a central role in what we might call the visual culture of a nation, engaging in issues over intellectual property and increasingly commodified public spheres. The controversy over Golly, the trademarked mascot of... more
Trademarks play a central role in what we might call the visual culture of a nation, engaging in issues over intellectual property and increasingly commodified public spheres. The controversy over Golly, the trademarked mascot of Robertson’s Marmalade, speaks to practical debates over the commodification of colonial desire; the relationship between the postmodern and the postcolonial is enacted in the representational exchange of the market. I will draw upon both the historical and contemporary U.S. examples to illustrate that when – as in the Golly anecdote – trademarks represent an embodied otherness with imperialist precedents, social struggles over their spread and meaning add more nuanced dimensions to our understandings of contemporary relationships between mimesis and alterity.
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Symbolic and material symbols of culture are omnipresent in our everyday lives, as exemplified by taking a walk through downtown Toronto. As both law and culture are in a constant state of flux and mutually reconstituting themselves and... more
Symbolic and material symbols of culture are omnipresent in our everyday lives, as exemplified by taking a walk through downtown Toronto. As both law and culture are in a constant state of flux and mutually reconstituting themselves and one another, I suggest that exploring law culturally provides a more focused and politicized emphasis upon meaning in those disciplinary spaces that are preoccupied with questions of power. Similarly, studying culture legally in fields like anthropology and cultural studies will enable disciplines with tendencies toward culturalism to have more specific and material theories of power, as it resonates in a multitude of ways. Widely considered as a field of cultural politics, intellectual property has provided an especially promising point of entry for exploring the prospects for an interdisciplinarity that encompasses perspectives drawn from anthropology, cultural studies, and law and society scholarship. If the life of the law is experience, then the pervasive textuality of experience in the late twentieth century needs to be understood legally. The local animation of the law should be addressed experientially, in terms of the way law manages meaning, shapes relations of cultural authority and contestation, provokes a politics of property, propriety, and appropriation, and provides forms and fora for articulations of identity and difference. Jolted by espresso, awakened by life on the street, and alert to the properties of contemporary cultural life, a critical cultural studies of law comes into view.
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It would be impossible to do justice to as large and as ambitious a work as "Between Facts and Norms" -- nevertheless the entirety of Professor Habermas's theoretical edifice. In his early work, Habermas asserted that under the altered... more
It would be impossible to do justice to as large and as ambitious a work as "Between Facts and Norms" -- nevertheless the entirety of Professor Habermas's theoretical edifice. In his early work, Habermas asserted that under the altered conditions of the late twentieth century, the bourgeois model of the public sphere was no longer viable. Critics of the bourgeois public sphere idealized in Habermas's early work suggested that the so-called universal categories of this space of ideal communication -- public and private, speech and property, political and nonpolitical -- were both exclusionary and elitist. As Nicholas Garnham puts it, what political theory still fails to grasp is "that what has also come to be mediated is the content of communication" itself. Today's spaces of civil society, public spheres, and emergent counterpublics are fundamentally different from those of the bourgeois public sphere whose demise Habermas has famously lamented. Today's spaces of civil society, public spheres and counterpublics are fundamentally different from those of the bourgeois public sphere that Habermas holds in such high regard.
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Intellectual Property laws operate as moral economy, governing ownership, behavior, and norms of appropriate symbolic practice. The symbolic meaning of a commodity’s meaning, and the corporate persona in general, must be legally... more
Intellectual Property laws operate as moral economy, governing ownership, behavior, and norms of appropriate symbolic practice. The symbolic meaning of a commodity’s meaning, and the corporate persona in general, must be legally structured so as to constrain surplus meaning and protect against the dilution of symbolic value. Unauthorized appropriations and alternative significations must be monitored or ideally prohibited, thus shaping practices of governmentality in commercial culture. The field of governance is intensified, provoked, and challenged in digital contexts. We examine the intertwined relationship between property and propriety in cyberspace by looking at internet domain name controversies, arguing that the rise of corporate surveillance in IP protection is accompanied by digital resistance and ultimately provides opportunities for new forms of social responsibility in digital environments.
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The function of trademark law is to discursively construct and institutionally enforce particular notions of corporate identity as a property right. Intellectual property laws structure a field of meaning-making and thereby shape forms of... more
The function of trademark law is to discursively construct and institutionally enforce particular notions of corporate identity as a property right. Intellectual property laws structure a field of meaning-making and thereby shape forms of symbolic practice. They create proprietary rights in a cultural commodity or commodity-sign—the trademark—and capacities to control its potential meaning and interpretation. The interconnected relationship between property and propriety is examined through an array of examples: from contestations over domain names, absolute ownership over trademarks and censorship, the emergence of digital communities comprising fan subcultures, as well as others. Ultimately, the Web has emerged as a digital battleground for corporate trademarks driven by the strategic logic of commodity fetishism, and counterhegemonic expressions of creativity, cultural meaning and identity formation, consumer choice, and labor rights structured through a guerrilla logic of the populace.
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Protecting traditional knowledge has moved to the forefront of debates around indigenous peoples and international law. At its fundamental core, protecting traditional knowledge is about protecting the livelihoods of the global poor.... more
Protecting traditional knowledge has moved to the forefront of debates around indigenous peoples and international law. At its fundamental core, protecting traditional knowledge is about protecting the livelihoods of the global poor. Moreover, preserving genetic resources for future research and development is imperative. It is increasingly recognized that biodiversity is created through the interaction between human communities and local ecosystems; we need to create the conditions under which biological diversity continues to be created, and that means securing conditions that will enable those people who have traditionally nurtured and created biological diversity to continue to do so. Alternatives to the neoliberal market logic of instruments such as the TRIPs agreement should create conditions where indigenous communities can participate as equitable stakeholders in any dialogue regarding the extraction, modification, marketization and commodification of biological and cultural resources. In doing so, the potential for intellectual property to be employed to reduce and eliminate hunger and poverty, to safeguard the environment, to halt the loss of biodiversity, to empower women, and to ensure food and social security might be fully realized.
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Authorship is the special privilege of having one's creative efforts recognized as creating a "work" and the capacity to appeal to the state to protect that work because it is a contribution to something we call "progress" in the arts or... more
Authorship is the special privilege of having one's creative efforts recognized as creating a "work" and the capacity to appeal to the state to protect that work because it is a contribution to something we call "progress" in the arts or sciences. So-called "copyrighting of culture" will only further imperil the public domain; it may enable elites to enforce forms of censorship within communities; it has the potential to freeze cultural identities, and shut down desirable hybridities. Many progressive North American scholars of intellectual property have placed their energies behind the revitalization of a "cultural public domain" and the maintenance of a "creative commons. To the extent that we are committed to the cultural public domain, we need to consider a wider range of activities and practices than those that copyright law traditionally recognized as acts of authorship and those most characteristic of Western creators. Intellectual property rights are human rights, as are rights of access to the public domain, rights of collectivities to maintain their cultural integrity and to participate in decisions involving the use of their cultural heritage. By considering both intellectual property rights and rights to the public domain within a larger human rights framework, the social, economic and cultural rights of others assume a new significance.
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It useful to coin a neologism, combining meme with ecumene to produce ecumeme. The ecumeme, in other words, is the global market place of exchange where corporations (legally constituted as individual persons) and persons constituted as... more
It useful to coin a neologism, combining meme with ecumene to produce ecumeme. The ecumeme, in other words, is the global market place of exchange where corporations (legally constituted as individual persons) and persons constituted as individuated consumers, are well-positioned to exercise their potential desire to buy and sell. Intellectual property law provides the principal rhetorical means by which this territory is invoked. The dominant ecumeme, as established by US legislation, the TRIPs agreement, and various bilateral trade agreements, has structured the world of cultural production in cyberspace as one governed by a rigid corporation/consumer binary. An alternative ecumeme, as put forth by American critical legal scholars and movements such as “Copy Left,” provides an alternative based on privileging Romanticized notions of “commons” rather than “enclosure.” We critique this alternative for its propensity to assume the ecumeme’s identity and its mode of governmentality by highlighting the digital debate around cultural property and corporate propriety between Lego Corporation and Maori community activists.
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The patenting of human genetic materials provokes wide-ranging misgivings about the appropriate place and scope of intellectual property protections. The issues implicated range from anti competitive practices in the market, the... more
The patenting of human genetic materials provokes wide-ranging misgivings about the appropriate place and scope of intellectual property protections. The issues implicated range from anti competitive practices in the market, the imposition of limits on biomedical research, increasing costs for health care, research ethics, potentials for racial discrimination, and various violations of human
rights. Exploring controversies around the Human Genome Diversity Project, patents on genetic sequences, and patents on higher life forms such as the so called "Harvard mouse," the authors find that North American patent policy has developed in the absence of necessary political debate. They link this de-politicization to the hegemony of neo-liberal principles most fully demonstrated by the incorporation of intellectual property under international trade negotiations. They point, however, to the recent emergence and increasing audibility of new social movements that seek to reposition issues of intellectual property in larger debates about human rights, distributional equalities, and social justice.
rights. Exploring controversies around the Human Genome Diversity Project, patents on genetic sequences, and patents on higher life forms such as the so called "Harvard mouse," the authors find that North American patent policy has developed in the absence of necessary political debate. They link this de-politicization to the hegemony of neo-liberal principles most fully demonstrated by the incorporation of intellectual property under international trade negotiations. They point, however, to the recent emergence and increasing audibility of new social movements that seek to reposition issues of intellectual property in larger debates about human rights, distributional equalities, and social justice.
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Under conditions of neoliberalism legal claims to protect, preserve, maintain, and to exploit culture have assumed a new urgency. Cultural diversity has become a matter of state concern and fears of cultural homogenization animate... more
Under conditions of neoliberalism legal claims to protect, preserve, maintain, and to exploit culture have assumed a new urgency. Cultural diversity has become a matter of state concern and fears of cultural homogenization animate movements to promote a revitalized realm of cultural policy Municipal governments see cultural amenities, attractions, and social values as important resources to attract labor and capital and engage in cultural planning exercises as they seek to brand urban space. Rural spaces become culturalised as traditions are constructed to establish market distinctions for local goods and traditional knowledge is valorized in international environmental treaties. But if culture is clearly delineated for the purposes of state management and the creation of new intellectual properties, it is also evoked in anti-globalization movements that contest growing forms of corporate hegemony. Finally, we witness the emergence of a new cultural politics of difference in place-based movements that draw upon international indigenous and human rights traditions to establish their claims to livelihood resources, territories, and cultural survival. Critical scholarship is needed to explore the conditions under which neoliberal regimes of governmentality are supported and challenged by the legal recognition of cultural assertions and the stakes and limitations of cultural claims.
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The protection of traditional environmental knowledge (TEK) is a complex area of emerging law that has attracted a great deal of academic attention and controversy over the past five years. Rights with respect to TEK are only one... more
The protection of traditional environmental knowledge (TEK) is a complex area of emerging law that has attracted a great deal of academic attention and controversy over the past five years. Rights with respect to TEK are only one dimension of the struggle for indigenous political autonomy in Mexico and elsewhere, but they are not insignificant. The Zapatista resistance to NAFTA and global neoliberalism is well known but just as important are peoples' ongoing struggles in Chiapas for collective political autonomy and their assertion of rights to communal forms of rural subsistence framed in cultural terms as the right to maintain a distinctive indigenous identity. As Jung suggests with respect to the Zapatistas in Chiapas, these "cultural" assertions are not merely expressions of a need for recognition, nor attempts to safeguard traditional practices from the threat of modernity, but instead ". . . indigenous identity is the condition of participation in a global political dialogue" that insists upon a political voice for many of those who have been most marginalized and oppressed by modernity and asserts for this group the 'right to have rights.’
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This article examines the performativity of intellectual property in digital gaming environments, with a focus on Massively Multi-Player On Line Games (MMOGs). The analysis centers on the creation and management of goodwill, an intangible... more
This article examines the performativity of intellectual property in digital gaming environments, with a focus on Massively Multi-Player On Line Games (MMOGs). The analysis centers on the creation and management of goodwill, an intangible asset of considerable value to corporations based on affective bonds
between consumers, corporations, and their commodities in the marketplace. Most critical analyses of intellectual property consider neither the centrality of goodwill to corporate management of their intellectual properties in digital
environments, nor the significance of the legal conditions that structure activity in such contexts. We develop a theoretical framework based on cultures of circulation involving network sociality, circuits of interactivity and the extensibility of the computer/user interface. This enables us to better understand
shifting relations of power and reciprocity between corporations and consumers in digital gaming contexts, where the division between player-consumption and player-production is increasingly blurred. Technological capacities for consumers
to become producers of gaming content changes the terrain upon which conflicts between corporations and consumers about intellectual property are negotiated and enhances the value of goodwill. An examination of Linden Lab’s Second
Life / one of the fastest growing MMOGs and the first to affirm players’ intellectual property rights in their digital creations / provides an illustration of both the limits and possibilities afforded by goodwill as a form of emerging governance in game worlds.
Keywords intellectual property; goodwill; digital games;
consumption; performativity
between consumers, corporations, and their commodities in the marketplace. Most critical analyses of intellectual property consider neither the centrality of goodwill to corporate management of their intellectual properties in digital
environments, nor the significance of the legal conditions that structure activity in such contexts. We develop a theoretical framework based on cultures of circulation involving network sociality, circuits of interactivity and the extensibility of the computer/user interface. This enables us to better understand
shifting relations of power and reciprocity between corporations and consumers in digital gaming contexts, where the division between player-consumption and player-production is increasingly blurred. Technological capacities for consumers
to become producers of gaming content changes the terrain upon which conflicts between corporations and consumers about intellectual property are negotiated and enhances the value of goodwill. An examination of Linden Lab’s Second
Life / one of the fastest growing MMOGs and the first to affirm players’ intellectual property rights in their digital creations / provides an illustration of both the limits and possibilities afforded by goodwill as a form of emerging governance in game worlds.
Keywords intellectual property; goodwill; digital games;
consumption; performativity
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Cultural property is a field of law and politics that has expanded dramatically in the past two decades. The review explores the international legal, political, economic, and technological terrain in which possessive relations to cultural... more
Cultural property is a field of law and politics that has expanded dramatically in the past two decades. The review explores the international legal, political, economic, and technological terrain in which possessive relations to cultural forms have been articulated and incited, as well as the revitalization of human rights claims premised upon cultural grounds. Changing practices, behaviors, attitudes, and protocols regarding cultural heritage both index and reflect transformations in social relationships that are indicative of larger patterns of late modernity and decolonization. This premise is illustrated through considerations of changing practices in cultural heritage preservation, archaeological and curatorial relationships to indigenous heritage properties, development institutions and programs, uses of intellectual property, and the treatment of traditional knowledge and traditional cultural expression. A new body of negotiated proprieties is emerging in a space of unprecedented legal pluralism that constitutes a significant area for sociolegal inquiry.
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Cultural heritage management within the scope of law and policy necessitates a fluid understanding of both the tangible and intangible elements underpinning cultural resources, as well as a broader appreciation for what might be... more
Cultural heritage management within the scope of law and policy necessitates a fluid understanding of both the tangible and intangible elements underpinning cultural resources, as well as a broader appreciation for what might be considered ‘law.’ While the tangible components of cultural heritage have been privileged due to their ability to be quantified and tracked, we argue that without recognizing the intangible dimensions of heritage, tangible “cultural property” or “heritage” has little or no meaning or value. A new set of management strategies for intangible cultural heritage is needed; in this follow-up piece we consider some of the overarching issues that frame developments in IP and professional heritage management and guide efforts to resolve or avoid problems encountered as such. We also explore the legal and ethical dimensions of IP, as well as the collaborative research approaches that constitute good practice.
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A critical cultural studies of human rights has yet to emerge as an interdisciplinary field of study. Despite the proliferation of scholarly work in legal philosophy and law and humanities over the past decade, we have seen little by way... more
A critical cultural studies of human rights has yet to emerge as an interdisciplinary field of study. Despite the proliferation of scholarly work in legal philosophy and law and humanities over the past decade, we have seen little by way of sustained dialogue between critics of rights or conversations between rights critics and theorists of culture. Nonetheless, the characteristic approaches, concerns, concepts, and methods of cultural studies are both appropriate and necessary in a global policy environment that has put increasing emphasis upon cultural identity and cultural resources in both rights-based practices and neoliberal governmentalities, suggesting new avenues of inquiry.
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In a context of great technological and social change, existing intellectual property regimes such as copyright must contend with parallel forms of ownership and distribution. Proponents of open access, for example, question and undermine... more
In a context of great technological and social change, existing intellectual property regimes such as copyright must contend with parallel forms of ownership and distribution. Proponents of open access, for example, question and undermine the paradigm of exclusivity central to traditional copyright law, thereby fundamentally challenging its ownership structures and the publishing practices these support. In this essay, we attempt to show what it is about the open access endeavour that resonates with a feminist theory of law and society—in other words, we consider what is “feminist” about open access. First, we provide an overview of a relational feminist critique of traditional copyright law and the assumptions of possessive individualism that pervade it. We then offer a brief description of the open access movement and the way in which it reflects or responds to this criticism. In doing so, we discover vital synergies between this branch of feminist legal theory and the open access movement. Ultimately, we hope to underscore the importance of an open access policy for legal journals such as this one, whose mission is to support, advance and disseminate a feminist perspective that challenges the prevailing hegemony within traditional legal scholarship. We conclude by offering ways in which this journal can help draw out the synergies between feminist criticism and the open access movement.
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Marks indicating conditions of origin - geographical indications, appellations and denominations of origin, as well as collective and certification marks - are legal vehicles increasingly common in global commerce. Although it is... more
Marks indicating conditions of origin - geographical indications, appellations and denominations of origin, as well as collective and certification marks - are legal vehicles increasingly common in global commerce. Although it is necessary to explore the legal, political, and economic conditions under which they have become newly popularized as vehicles of global capital accumulation, it is also important to consider ethnographic studies of the work they do in reconfiguring social relationships and their salience in local worlds of meaning. We argue that these marks of distinction have become important means for securing monopoly rents at the same time that they have become means to express identities and desires so as to project alternative assertions of value in commodity circuits that traverse sites of production and consumption. They create new borders around newly valued forms of cultural difference, producing places, and constituting borders of identity, while potentially linking producers and consumers in new relationships of identification.
Research Interests:
A geographical indication (GI) is an intellectual property right (IPR) that recognizes that a specific good has a quality, reputation, or characteristic that is attributable to its geographical origin. GIs and marks indicating conditions... more
A geographical indication (GI) is an intellectual property right (IPR) that recognizes that a specific good has a quality, reputation, or characteristic that is attributable to its geographical origin. GIs and marks indicating conditions of origin (MICO) have the potential to catalyze economic development in rural and indigenous communities while simultaneously protecting their unique traditional knowledge and culture. The juncture of IPRs and development has seen the emergence of a rights-based normative framework at levels of theory and practice. The growing use of these forms of IPR in developing countries towards advancing sustainable community development legitimacy needs to be evaluated in terms of the qualities of empowerment, governance, and the sustainability of local livelihood improvements that MICO initiatives potentially enable. In short, rights-based sustainable development indicia provide promising ways to evaluate MICO initiatives, while also suggesting that further promotion of MICOs for development demands a commitment to rights-based criteria if it is to avoid reproducing old forms of privilege or perpetuating new forms of injustice.