The Production of Indigenous Knowledge in Intellectual Property Law
Chapter 9: The Culture Concept
In the twenty-ﬁrst century, culture is a deeply compromised idea.1 In Who Owns Native Culture? Michael Brown makes the following observation: If we turn culture into property, its uses will be deﬁned and directed by law, the instrument by which states impose order on an untidy world. Culture stands to become the focus of litigation, legislation and other forms of bureaucratic control.2 Here Brown makes a very important point. The danger of making culture property is in the unpredictable ways in which it will then become subject to classiﬁcation, codiﬁcation, legislation and legal intervention. This will eﬀect how ‘culture’ can be understood, including the parameters set for inclusions and exclusions. It also impacts upon the extent that law becomes a central mechanism for reproducing functionalist frameworks for the interpretation of ‘culture’ and cultural products. Whilst sympathetic to Brown’s concerns, the presumption that ‘making culture property’ will be something ‘new’ that law does, misunderstands law and its cultural practices. Law is inherently cultural: it has been working on ‘culture’ (and vice versa) for some time. As discussed earlier in the book, the two are imbricated in each other in ways that are not always easy to discern. Perhaps it is because the terms of the debate have never been as explicit, or put so simply, that this function of law has escaped more considered attention. There is an acute need to be wary of assuming that this new kind of legalism is also something novel for...
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