CURRENT ANTHROPOLOGY Volume 39, Number 2, April 1998 ? 1998 by The Wenner-Gren Foundation for Anthropological Research. All rights reserved 0011-3204/98/3902-0002$2.50 Can Culture Be Copyrighted?1 Michael F. Brown The digital revolution has dramatically increased the ability of in- dividuals and corporations to appropriate and profit from the cul- tural knowledge of indigenous peoples, which is largely unpro- tected by existing intellectual property law. In response, legal scholars, anthropologists, and native activists now propose new legal regimes designed to defend indigenous cultures by radically expanding the notion of copyright. Unfortunately, these propos- als are often informed by romantic assumptions that ignore the broader crisis of intellectual property and the already imperiled status of the public domain. This essay offers a skeptical assess- ment of legal schemes to control cultural appropriation?in par- ticular, proposals that indigenous peoples should be permitted to copyright ideas rather than their tangible expression and that such protections should exist in perpetuity. Also examined is the pronounced tendency of intellectual property debate to preempt urgently needed reflection on the political viability of special- rights regimes in pluralist democracies and on the appropriate- ness of using copyright law to enforce respect for other cultures. MICHAEL F. BROWN is the James N. Lambert Professor of An- thropology and Latin American Studies at Williams College. Edu- cated at Princeton University (A.B., 1972) and the University of Michigan (Ph.D., 1981), Brown has taught at Williams since 1980. His research interests include ritual and religion, human ecology, economic development, and emerging forms of indige- nous identity. He is the author of three books about Amazonian Indians, most recently War of Shadows: The Struggle for Utopia in the Peruvian Amazon (Berkeley: University of California Press, 1991), coauthored with Eduardo Fernandez. Brown's ethno- graphic research among American spirit-mediums, described in The Channeling Zone: American Spirituality in an Anxious Age (Cambridge: Harvard University Press, 1997), led to his current interest in cultural appropriation and proposed schemes to con- trol it. The present paper was submitted 14 iv 97 and accepted 7 vii 97; the final version reached the Editor's office 12 ix 97. 1. My research on copyright and cultural appropriation was made possible by the financial support of Harry C. Payne, president of Williams College, and by the Francis C. Oakley Center for the Hu- manities and Social Sciences. Colleagues kind enough to comment upon an earlier draft include Sylvia Kennick Brown, David B. Ed- wards, Eduardo Fernandez, Jonathan Haas, John P. Homiak, Gary J. Jacobsohn, William L. Merrill, Molly H. Mullin, Sydel Silverman, Mark C. Taylor, and Alan Wolfe. Two anonymous reviewers also provided many helpful suggestions. Because some of these readers vigorously dispute the analysis offered here, my thanks for their help in no way implies their endorsement of my opinions. Sometimes profound changes in the Zeitgeist reveal themselves in small ways, like the first timid shoots of an oak seedling before it hauls itself skyward. For me, an article in the monthly New England Archivists Newsletter, a publication presumably unfamiliar to most anthropologists, signaled a potentially momen- tous change in the future of our discipline. The article, written by Elizabeth Sandager of Harvard's Peabody Museum, describes a situation common to museums and archives in the United States: the museum's staff discovered in its collection several drawings of Navajo dry paintings (referred to in the article as "earth im- ages") made by the anthropologist A. M. Tozzer early in this century. Aware that the original images on which Tozzer based his sketches are traditionally destroyed at the end of Navajo healing rituals, the Peabody staff wor- ries that the drawings' continued presence in the collec- tion constitutes a form of disrespect. Worse still, the drawings could have come as the result of a violation of contemporary privacy norms (Sandager 1994:5): Everything that happens in ceremony is privy only to those who are participants in the ceremony: the singer, the assistants, the sponsor, the family, and the patient. . . . We are attempting to determine the circumstances under which these earth image recon- structions were created, and whether privacy was breached. . . . Even though Tozzer did not describe the circumstances under which the reconstructions were created, it should not be assumed that they were created surreptitiously. On the other hand, if they were, there remains the possibility of a serious breach of privacy. Because the Tozzer material is in a poor state of conser- vation, Sandager explains, the museum is seeking the advice of Navajo consultants before deciding whether the drawings should be restored or, she implies, quietly allowed to decompose. Sandager presents this case as an example of the responsibility of professional archivists to "consider whether we are violating the privacy of the affected tribe(s)by providing unrestricted access to doc- uments describing traditional beliefs and ceremonies" (p. 5). Sandager's thoughtful reflections raise a host of com- plex issues: research ethics and the nature of informed consent, respect for religious beliefs, and concepts of ownership at a time when indigenous intellectual prop- erty rights are the focus of lively international debate. Although her article asks vital questions, it conspicu- ously evades others. If the Tozzer papers are found to be objectionable, for instance, should they not be sum- marily destroyed rather than simply allowed to biode- grade? She mentions that the drawings have long since been published in a book. If a logic of ethical quarantine applies to the drawings, then why not to all known cop- ies of the book, which is, after all, more readily avail- able to the general public? Then there is the question of privacy. In Anglo-Amer- ican law, privacy rights cease or become significantly 193 194 I CURRENT ANTHROPOLOGY Volum e 39, Num ber 2, April 1998 attenuated when individuals die. Because Tozzer con- ducted his field research at the turn of the century, it is unlikely that any of the principals are alive today. In what sense, then, does the presence of Tozzer's notes and drawings in the Peabody collection violate individ- ual privacy? Or do native societies enjoy an implicit right of collective privacy to which the museum should be attentive, a situation implied by Sandager's stated concern for "the privacy of the affected tribe(s)"? Finally, what of the rights of A. M. Tozzer, who pre- sumably bequeathed his fieldnotes to the Peabody on the assumption that it would curate them and make them available to researchers? Wouldn't the Peabody's decision to limit access to these materials or knowingly permit their deterioration violate the museum's fidu- ciary responsibility to Tozzer and to his descendants? After all, had Tozzer known that such a fate could befall the record of his life's work, he might well have taken his collection elsewhere. Could this act of passive cura- torial destruction lead future donors to bypass public re- positories in favor of private collectors, thereby contrib- uting to the privatization of the human cultural record? As Sandager's article makes clear, archivists and cura- tors routinely confront an ever-widening series of di- lemmas in the wake of the Native American Graves Protection and Repatriation Act (N AGPRA) of 1990, ar- guably the most important piece of museum-related legislation in American history. NAGPRA establishes a legal framework for repatriating human remains and rit- ual objects to Indian tribes that request them, provided that claimants can substantiate direct descent or, in the case of objects, prior ownership. The implementation of this legislation, which imposed substantial administra- tive burdens and was in some quarters regarded as disas- trous for the future of American museums, has now be- come a routine part of museum practice. In fact, many curators hail it as the first step in a historic reconcilia- tion between native peoples and museums, a process that may lead to new and rewarding partnerships.2 Few anthropologists would today question the legiti- macy of the native claims that lie at the heart of NAG- PRA. The outer boundaries of the law, however, remain vague. Although for the purposes of NAGPRA "cultural patrimony" refers solely to objects, the law sets the stage for comprehensive assertions of control over cul- tural records currently excluded from consideration. In a letter sent to a number of museums in 1994, Vernon Masayesva, chairman and CEO of the Hopi Tribe, for- mally states the tribe's interest in all published or un- published field data relating to the Hopi, including notes, drawings, and photographs, particularly those 2. The literature on NAGPRA is too vast to inventory in this essay. Particularly instructive, however, is the richly detailed study of a single high-profile repatriation case offered by Merrill, Ladd, and Ferguson (1993). Other useful essays on the application of NAGPRA can be found in Ziff and Rao (1997); its legal ambiguities are explored in DuBoff (1992). For an elegant study of the difficulty of reconciling Anglo-American notions of intellectual property with those of a Native American people, see Greene and Drescher (1994). dealing with religious matters. Chairman Masayesva additionally requests the immediate closing of these records to anyone who has not received written authori- zation from the Hopi Tribe. "This request," he adds, "is meant to address the 'last minute rush' by researchers to access Hopi information and collections before they are declared 'off limits' or are actually repatriated back to the tribe." (For a longer excerpt from the letter, see Haas 1996:84.) The Hopi initiative was soon followed by a declaration issued by a consortium of Apache tribes demanding exclusive decision-making power and con- trol over Apache "cultural property," here defined as "all images, text, ceremonies, music, songs, stories, symbols, beliefs, customs, ideas and other physical and spiritual objects and concepts" relating to the Apache, including any representations of Apache culture offered by Apache or non-Apache people (Inter-Apache Summit on Repatriation 1995:3). This broad definition of cul- tural property presumably encompasses ethnographic fieldnotes, feature films (e.g., John Ford's Fort Apache), historical works, and any other medium in which Apache cultural practices appear, whether presented lit- erally or as imaginative, expressionistic, or parodic em- bellishments of concepts with which Apache identify. The recent history of relations between Indian tribes and major Anglo-American institutions, including the federal government, suggests that these encyclopedic demands represent an opening gambit in what are likely to be protracted discussions. The Hopi and Apache dec- larations echo similar manifestos from other parts of the world, including South America, Australia, and the Pacific.3 Clearly, a profound shift in the way we concep- tualize and contest cultural information is under way. The assumptions that inform this emerging perspective can be summarized as follows: 1. An ethnic nation?a people, in other words?can be said to have enduring, comprehensive rights in its own cultural productions and ideas. These include the right to exercise total control over the representation of such productions and ideas by outsiders, even in the lat- ter's personal memoirs, drawings, and fictional cre- ations. 2. A group's relationship to its cultural productions constitutes a form of ownership. This ownership may be literal?that is, based on some comprehensive defi- nition of cultural or intellectual property?or meta- phorical, reflecting universal recognition that in moral terms a group "owns" the ideas and practices that it holds dear. 3. Cultural information pertaining to ethnic minori- ties that was gathered in the past by anthropologists, missionaries, government administrators, filmmakers, and novelists is by definition so contaminated by the realities of colonial power that it cannot meet (today's) 3. Prominent examples include the Mataatua Declaration (1993), the Julayinbul Statement on Indigenous Intellectual Property Rights (1993), and the Suva Declaration (1995). Copies of these documents can be found at (http://www.icip.lawnet.com.au/ info6.htm) as well as other on-line sites devoted to indigenous and human-rights issues. BROWN Can Culture Be Copyrighted?\ 195 standards of informed consent. This information may therefore be quarantined or subjected to severe access restrictions when and if its subjects deem its presence in the public domain offensive. In this essay, I undertake a critical examination of these assumptions with the goal of broadening the scope of debate about the status of indigenous cultural and intellectual property rights. My skeptical interven- tion is motivated by a belief that current thinking on these issues has been dangerously narrow, marked more by passionate advocacy than by sustained reflection on the broader issues at stake in developing ethical stan- dards and legislative mechanisms that impose new lim- its on the free exchange of information in the name of protecting ethnic minorities. In framing my analysis, I use the recent work of the sociologist Alan Wolfe (1996) as a touchstone. Wolfe ar- gues that the American tradition of social criticism has declined in the past three decades because of the ascent of a brand of romanticism based on a dream of Utopian authenticity. The goals of today's romantic social crit- ics, among whom cultural anthropologists stand out in disproportionate numbers, are manifestly therapeutic: they want their subjects to be "empowered" or even "healed." They celebrate resistance, rebellion, and devi- ance among social others?even when, in their own middle-class neighborhoods and places of employment, they are likely to advocate ever stricter forms of proce- duralism. The trouble with romantic criticism, Wolfe argues, is that it simply fails to persuade a large public audience. Romantic criticism gratifies the writer's sense of moral worth but can offer only "utopian long- ings that ultimately have no critical edge" (Wolfe 1996: 39). The alternative is a return to a realist perspective that approaches social problems in all their ambiguity and nuance, confronting squarely the tragic contradic- tions that inevitably arise in the everyday life of plural- ist societies. As I will argue, the debate over intangible cultural property as it has been conducted by anthropologists, le- gal scholars, and indigenous activists has tended toward a polemical romanticism that produces memorable bumper-sticker slogans ("Give the natives their culture back!") but little in the way of sober reflection on the difficult balancing act required to formulate policies that provide reasonable protection for minority popula- tions while maintaining the flow of information essen- tial to liberal democracy.4 In particular, a narrow focus on indigenous rights blinds social critics to the broader implications of the novel forms of cultural protection that some are enthusiastically endorsing. For thinking on indigenous cultural and intellectual property to be effective for policy-making purposes, it must be not only ethically sound but also thoroughly grounded in 4. Although I distinguish between anthropologists and indigenous activists here and elsewhere, I recognize that native peoples are a growing and welcome presence in anthropology. Some conflict be- tween these two roles seems inevitable, however, because the dis- cipline of anthropology is predicated on a global, comparative per- spective rather than on a particular one. the practical realities of cultural creativity, information storage and transfer, the fluidity of ethnic boundaries, and the limitations of judicial process in developed and developing nations alike. Cultural and Intellectual Property: Basic Concepts The majority of anthropological research on issues of intellectual property confronts the appropriation of in- digenous knowledge for commercial purposes, usually by transnational corporations. Case studies have docu- mented the acquisition of native crop varieties for the genetic improvement of seeds, the transformation of traditional herbal medicines into marketable drugs by pharmaceutical firms, the incorporation of indigenous graphic designs into consumer goods without the per- mission of native artists, the exploitation of indigenous music by record companies, and the collection of DNA from isolated human populations for medical uses yet to be determined.5 Although these cases raise complex dilemmas at the margins, most are fairly cut-and-dried. Commercial interests from the developed world pros- pect for information available in the unprotected public domain of indigenous societies. Then, by invoking pre- vailing law, they sequester the information in the pro- tected, private realm of copyrights and patents, where it becomes a monopoly from which they alone profit. The problem is easy to identify, but, given the complex- ities of international law and the politically marginal status of many of the indigenous peoples directly af- fected, effective solutions are another matter. Never- theless, there are encouraging signs that major institu- tions in the United States and elsewhere are preparing to consider appropriate remedies.6 These cases are made reasonably straightforward by the simple fact that the primary issues are mercantile: the native peoples whose intellectual property is being raided seek their fair share of any profits. Here the econ- omy of information can be regarded not as a zero-sum game, in which one person's loss is another's gain, but as a process by which resources can be propagated to everyone's benefit. Before pursuing the broader implications of this qual- ity of information, let me review the basic rationale for intellectual property law. Lawmakers have long recog- nized an implicit tension between the need to protect a broad and lively domain of public discussion and the 5. Key sources on the exploitation of indigenous biological knowl- edge and resources include Brush (1993), Cleveland and Murray (1997), Cultural Survival (1996), Greaves (1994), and Posey and Outfield (1996). Works that address the appropriation of indigenous art and music include Feld (1994, 1996), Golvan (1992), Pask (1993), Seeger (1996), and Zemp (1996). 6. See Grifo (1994) for a brief overview of a bioprospecting program, partially funded by the National Institutes of Health, that has im- plemented plans to guarantee compensation for native communi- ties whose ethnobotanical knowledge leads to the discovery of marketable drugs. 196 I CURRENT ANTHROPOLOGY Volum e 39, Num ber 2, April 1998 creation of institutions that would foster creativity by allowing writers, musicians, and inventors to profit from their works. "The author," writes James Boyle, a law professor and an expert on intellectual property, "stands between the public and private realms, giving new ideas to the society at large and being granted in return a limited right of private property in the artifact he or she has created?or at least assembled from the parts provided by our common store of ideas, language, and genre" (Boyle 1996:xii). David Lange (1993:126), an- other legal scholar, describes copyright as an implicit contract that gives an author "the limited monopoly of copyright for a limited time, but only in exchange for an eventual dedication of the work to the public do- main." The common theme is that the rights conferred by intellectual property laws are limited. Patents and copyrights, for example, have a finite term. (In the United States, a copyright endures for the author's life plus 50 years; for patents the term is generally 17 years.) Upon expiration, the work reverts definitively to the public domain, where it can be used however people wish. The range of these rights is similarly finite. I am free to quote limited sections of copyrighted works be- cause of the fair-use doctrine, which holds that copy- right is not absolute?nor can it be in a society that val- ues creativity. Important legal decisions have also established the right to borrow extensively from copy- righted works for purposes of political parody. In other words, when intellectual property rights collide with reasonable assertions of free speech, free speech should prevail even if the results are offensive to the creator and intrude upon his or her copyright. The principal goal of intellectual property laws, then, is to see that information enters the public domain in a timely fashion while allowing creators, be they indi- viduals or corporate groups, to derive reasonable finan- cial and social benefits from their work. Once a work enters the public domain, it loses most protections. I am free to publish Uncle Tom 's Cabin or to manufac- ture steel paper clips without paying royalties to their creators, whose limited monopoly has expired. The same principle applies to prehistoric petroglyphs or to the "Mona Lisa," both of which have become part of our common human heritage, whatever their origins.7 Intellectual property has become the focus of consid- erable theorizing and legal maneuvering in recent years because of general alarm over the increasingly expan- sive claims of ownership made by corporate interests? claims that threaten the doctrine of fair use and limit 7. One could, of course, seek a patent for a new form of paper clip or a new translation of a work already in the public domain. And a new drawing or photograph of an ancient petroglyph would be copyrightable, although the design itself would not. It should be noted that trademarks represent an exception to the time-limited quality of most intellectual property protection. Generally, trade- marks are eligible for protection as long as the holders can prove that they have an enduring economic value in identifying a com- modity or product line and distinguishing it from others. If a com- pany fails to use its trademark for an extended period, however, trademark protection may lapse. the scope of the public domain. Rosemary Coombe, a shrewd critic of prevailing intellectual property law, ob- serves that a key characteristic of postmodern culture is the growing influence of commodified symbols in ev- eryday thought and political speech. Children use trade- marked action figures and cartoon characters in play; politicians encode their messages with references to ad- vertising and popular television dramas (e.g., "Where's the beef?"). "Copyright laws," Coombe asserts, "re- strict the social flow of texts, photographs, music, and most other symbolic works," a form of control that "may deprive us of the optimal cultural conditions for dialogic practice" (Coombe 1991:1866). According to Coombe and others, then, aggressive expansion of copy- right and trademark is a significant threat to free speech and political dialogue. Concern over growing corporate control of the symbols that constitute everyday social life, as well as the emergence of new technologies that make possible cheap replication and instantaneous dis- semination of music, graphic art, and text, have led to claims that copyright is, or soon will be, dead. "Infor- mation wants to be free" is the slogan of Internet proph- ets such as John Perry Barlow and Esther Dyson. Barlow and Dyson are at the cutting edge of spirited grassroots resistance to the intellectual property assertions of cor- porations, especially in the worlds of graphic design, avant-garde music, and networked communication.8 A critique of intellectual property law based on the fluid and infinitely replicable quality of information harmonizes well with theoretical developments in an- thropology, which have increasingly emphasized such postmodern realities as globalization, transnational flows, and the creative mixing ("creolization")or inven- tion of traditions. From this perspective, culture is not a bounded, static entity but a dynamic, constantly rene- gotiated process. So thoroughly has the processual na- ture of culture come to dominate contemporary think- ing that anthropologists appear to be backing away from the culture concept itself (see, e.g., Gupta and Ferguson 1992). From this theoretical milieu have emerged trenchant critiques of the presuppositions that underlie the devel- oped world's intellectual property laws (see, e.g., Aoki 1996), which were shaped by the demands of 19th-cen- tury industrial capitalism. Copyright, critics have noted, is predicated on romantic notions of an isolated creative genius who plucks beauty out of thin air by an inspired act of the imagination. Copyright law was de- signed to ensure that the author and his or her immedi- ate descendants will benefit from this miracle of cre- ation. The identification of inventiveness with a solitary human life, however, cannot be easily recon- ciled with the political economy of modern industrial creativity or, for that matter, with the collective pro- ductions of indigenous peoples. Because neither corpo- 8. Important statements of the libertarian position with regard to information include Barlow (1993) and Dyson (1995). Manifestos demanding an expansion of fair-use standards for musicians and graphic designers include Negativland (1995)and Samudrala (1995). BROWN Can Culture Be Copyrighted?\ 197 rations nor cultures have a predetermined life span?no three-score-and-ten that can be used as a yardstick for protection?the temporal limits of current copyright law appear exceedingly arbitrary. Finally, the spread of digital technologies and systems of distributed intelli- gence makes it increasingly difficult for the state to po- lice information and thereby to enforce extant copy- right laws. The image that I post on my Web page today can be reproduced and distributed around the world in seconds, then stored on personal storage devices rela- tively impervious to legal scrutiny. Digitally sampled portions of my music can be modified by other artists and then spliced into their work without my knowledge or consent. The chance that I will discover their piracy is vanishingly small. Everyone, then, agrees that prevailing concepts of in- tellectual property are in crisis. But what is to be done? Before reviewing proposed solutions, we must consider indigenous views of information that differ substan- tially from those I have just described. Culture Reified: Information as a Limited Good As a number of commentators have observed (e.g., Coombe 1993; Jackson 1989, 1995), the ongoing strug- gle for political and cultural sovereignty often leads in- digenous activists to talk about culture as if it were a fixed and corporeal thing. Calls for the return of land and resources have a way of intertwining themselves with demands for religious freedom and other basic rights to such an extent that it is sometimes difficult to distinguish culture from its material expression. A United Nations report on the protection of cultural and intellectual property reflects this mode of thought when it asserts that "each indigenous community must retain permanent control over all elements of its own heritage," heritage being defined as "all of those things which international law regards as the creative produc- tion of human thought and craftsmanship, such as songs, stories, scientific knowledge and artworks" (Daes 1993:11-13). The heritage in which native peo- ples have definitive rights, in other words, includes con- cepts and thoughts as well as their concrete enactment. This makes perfect sense, the report concludes, because for indigenous peoples "the ultimate source of knowl- edge and creativity is the land itself" (p. 10). With few exceptions, cosmopolitan scholars find such reified views of culture problematic. In an incisive analysis of the expansion of property concepts into new conceptual domains, Marilyn Strathern (1996:22) notes that basic cultural understandings sit uneasily within a framework of intellectual property. Cultures lack clear spatial and temporal boundaries; human beings are members of a society but not "members of" a culture, which is a flexible set of understandings, dispositions, and behavioral scripts that change through time and freely influence and are influenced by social interac- tions with other groups. Philippe Descola (n.d.) illus- trates the problem of literalist notions of cultural prop- erty with a memorable example. We commonly regard Greek civilization as the source of a mode of formal rea- soning known as the syllogism. Does that mean that the Greek people therefore "own" syllogistic logic? Should they be compensated by American or British or Israeli software companies for their collective cultural contribution to modern programming? Disjunctions between indigenous and cosmopolitan views of cultural information are particularly acute in matters of the sacred. Although it is impossible to offer a normative statement about how native peoples con- ceive of sacred knowledge, it is fair to say that many see it as a limited good that cannot properly exist in several places at once. Religious knowledge that resides in in- appropriate places may find its power diminished or dangerously distorted, hence the common practice of compartmentalizing information in order to limit ac- cess to the inner meaning of religious symbols. The latter impulse may have been a factor behind Zia Pueblo's recent request that the state of New Mexico pay damages for the unauthorized reproduction of the Zia sun symbol on New Mexico's flags, license plates, and official stationery since 1925. The state's use of this graphic element in no way limits the ability of Zia resi- dents to continue employing the symbol in their own artistic or religious activities. Yet if one believes, as people at Zia evidently do, that this is a design imbued with inherent power, its use for everyday civic and com- mercial purposes is at least an affront to their dignity, at worst a dangerous form of blasphemy capable of un- leashing genuine misfortune. One may reasonably infer that the petition was motivated at least in part by a de- sire to assert control over something that was once solely the community's. "Ownership," Strathern (1996: 30) observes, "gathers things momentarily to a point by locating them in the owner, halting endless dissemina- tion, effecting an identity."9 Indigenous resistance to the promiscuous dissemina- tion of knowledge, sacred and otherwise, lies behind emerging conflicts over secrecy. The vast majority of native peoples face so many challenges to their eco- nomic and political sovereignty that they have little time to fret about the inform at ion-management poli- cies of public archives or museums. A small but grow- ing number of native communities in North America and Australia, however, devote considerable energy to the protection of cultural activities from the scrutiny of inquisitive outsiders, whether they be scholars or tour- ists. Anyone who has visited the Hopi or Taos Pueblo reservations in the American Southwest, for example, knows that tribal authorities actively discourage non- Pueblo people from observing, recording, or even inquir- ing about a wide spectrum of cultural practices. Each 9. My request to the governor's office of Zia Pueblo for information on this case went unanswered. I regret that I must therefore make inferences about motive without benefit of Zia Pueblo's own per- spective. Although the New Mexico legislature refused to award the pueblo cash damages, it did authorize a formal statement of apology. 198 I CURRENT ANTHROPOLOGY Volum e 39, Num ber 2, April 1998 community has a different policy regarding admission to community activities, including religious rituals, but overall it is accurate to say that the Pueblo place strict limits on the circulation of knowledge about their cul- tures. Although it is commonly believed that Pueblo se- crecy is a defensive tactic reflecting centuries of exter- nal interference in the free exercise of religion, it also plays a key role in maintaining the Pueblos' own politi- cal system. In an essay on the social functions of se- crecy in Taos Pueblo, Elizabeth Brandt (1980) argues that the primary motivation for closing religious knowledge to outsiders and for objecting to the collec- tion and permanent storage of this information by non- Pueblos is to prevent it from cycling back to Pueblo in- dividuals who are not authorized to possess it.10 Strict compartmentalization of knowledge is necessary to maintain the community's religious hierarchy and ulti- mately the integrity of traditional institutions, which are based on theocratic principles. Of equal importance is the conviction that in the wrong hands religious knowledge loses its power or assumes destructive forms. Few readers will dispute the general right of the Pueblo or of any other native groups to restrict the gath- ering of information about their societies as they see fit. But we must also acknowledge that principles of se- crecy and strict control of knowledge contradict the po- litical ideals of liberal democracy." In the United States, secrecy has long been regarded as inherently in- imical to democratic process and to personal freedom. There are, of course, circumstances in which secrecy is warranted: in matters of national security, in delibera- tions on sensitive administrative or legislative matters, in certain kinds of law-enforcement activities, and so forth. We also recognize that institutionalized secrecy nearly always leads to abuses of power. For this reason, we have implemented a wide range of "sunshine laws" that require government officials to conduct delibera- tions in public and to make administrative documents available to citizens on demand. There is also a strong presumption that once information enters the public domain, it should stay there. Secrecy, in other words, is inherently threatening to democratic process and to the 10. Christopher Anderson (1995:12) reports similar concerns about unauthorized access to sacred information among Aboriginal Aus- tralians. His own institution, the South Australian Museum, "had numerous requests from remote communities in Central Australia that the Museum never allow the Secret/Sacred Room and its col- lection to be looked after by an Aboriginal person," because these communities did not want men from other groups to see their reli- gious objects. 11. The Hopi Cultural Preservation Office (HCPO) recognizes this fundamental difference in cultural perspectives in a judiciously worded statement found on its homepage on the World Wide Web. "Most European or Western societies are based in a tradition of sci- entific inquiry, the 'right' to ask questions and investigate the un- known," the document states. In contrast, the HCPO document continues, Hopi tradition discourages open-ended curiosity be- cause many cultural activities are regarded as belonging solely to specific clans or religious societies. See "Respect for Hopi Knowl- edge," (http://www.nau.edu/~hcpo-p/current/hopi_nis.htm), ac- cessed 8 September 1997, unpaginated. public good except in a sharply circumscribed range of situations.12 We demand that our educational, religious, and political institutions practice openness whenever possible. Although archives routinely impose restric- tions on access?when, for instance, they abide by a do- nor's request that documents be closed to researchers for a stated period, usually to protect the privacy of liv- ing individuals?I know of no cases in which U.S. pub- lic repositories deny access to archived materials on the basis of a potential user's ethnicity, gender, age, or reli- gious affiliation. Such selective restrictions would surely qualify as a form of illegal discrimination.13 Native values and the American legal system are es- pecially prone to collision over the question of retroac- tive secrecy, the disposition of information that was ob- tained in the past and has long resided in the public domain. There are few precedents for the removal of in- formation from the public domain in response to the de- mands of third parties asserting a right to determine when, where, and by whom this information is ac- cessed.14 Yet this is exactly what some Indian tribes are asking American museums and archives to do. There is no getting around it: in this case, indigenous beliefs about knowledge of the sacred conflict directly with the majority's commitment to the sacredness of public knowledge. This is a classic collision of irreconcilable values. To resolve it, both sides will have to reflect care- fully on the global implications of their respective posi- tions in order to achieve a suitable compromise. In this context, one can easily see the attraction of framing indigenous demands in terms of copyright and 12. The philosopher Sissela Bok (1983) offers a thoughtful discus- sion of the moral and philosophical questions raised by secrecy. Amanda Pask (1993:84-85), a legal scholar, indirectly challenges Bok's universalist assessment by arguing that secrecy is inimical to the Western democracies for specific cultural reasons: "A com- munity which conceives of itself solely as the administrative ex- pression of the rational self-interest of individuals depends for its legitimacy on not being seen to limit 'information.' . . ." In Pask's opinion, however, this attitude toward information is a cultural ar- tifact that may not be found among indigenous populations orga- nized along communitarian lines. 13. Apparently, some public repositories in Australia close specific Aboriginal collections to women and uninitiated men. For a com- prehensive analysis of the Australian case, including discussion of several precedent-setting legal decisions related to ethnographic se- crecy, see the essays in Anderson (1995). 14. Jonathan Haas (1996:S5-6) proposes that such a precedent ex- ists in the voluntary de-accessioning and destruction of a contro- versial collection of photographs of naked college freshman, mostly from Ivy League institutions, taken for scientific purposes that are now thoroughly discredited. The analogy has merit, but Haas over- looks at least two important facts: (1) the photographs violate the personal privacy of living individuals, and (2) the scientific utility of the photographs is and was minuscule, if it ever existed at all. Their value as historical and scientific documents is thus far out- weighed by their ethical deficiencies. As I will argue, similar objec- tions can doubtless be lodged against some ethnographic records (in which case de-accessioning may be warranted), but to apply them to all such records would be irresponsible unless Haas can establish that museum collections have somehow lost their inher- ent value. To do so, he would have to contradict the opinion of those indigenous spokespersons who argue that the collections are so valuable that they should be returned to their source communi- ties for safekeeping. BROWN Can Culture Be Copyrighted?\ 199 broadened definitions of cultural property. After all, if native groups "own" their knowledge, if it was "stolen" from them by government officials, missionaries, and anthropologists, then they are simply seeking the re- turn of pilfered goods rather than asking repositories to violate principles of free access. This approach may be appealing to all parties involved in the dispute. The pe- titioners regain exclusive control over their sacred knowledge. Chronically underfunded repositories, which may be worn down by expensive litigation, make a persistent problem go away without an apparent viola- tion of their responsibility to the public. Politicians, who as a group are not known for their commitment to social research or their support of public access to infor- mation, leap at the chance to propose laws that sum- marily convert information into property. In this case, property discourse replaces what should be extensive discussion on the moral implications of exposing native people to unwanted scrutiny, on the one hand, and se- questering public-domain information, on the other. For those who object that I attribute too much impor- tance to claims that are solely relevant to the unique situation of native minorities, let me mention another case that has striking parallels to contemporary indige- nous demands. For several years, the Church of Sci- entology has waged a relentless campaign against own- ers of Internet sites that store and transfer texts regarded by Scientologists as secret, copyrighted mate- rial. At the insistence of church attorneys, computers have been confiscated in the United States and Finland by law-enforcement officials searching for such docu- ments. The Church of Scientology has also filed com- plaints that led to the seizure of public-domain court transcripts posted on the server of an Internet service provider in Virginia, and it is seeking civil damages from the Washington Post for publication of what it considers to be proprietary information (Grossman 1995:174, 252). Scientologists offer nearly the same ra- tionale for these search-and-seizure acts as American Indians do for their opposition to the presence of reli- gious information in archives (p. 174): "Scientologists genuinely believe their secrets can save the world, but that they must be doled out only to whose who have proven ready to receive them. Followers hold fiercely to the notion that their revered, secret texts must never be disseminated, save to the rigorously initiated." In other words, the formidable legal arm of the Church of Sci- entology has invoked principles of intellectual property similar to those cited by indigenous groups demanding that ethnographic material be removed from public ac- cess. Civil libertarians have denounced the Scientology campaign as a serious threat to free speech, in part be- cause it uses copyright law to silence the church's critics. This is not to imply that the claims of the Church of Scientology are morally equivalent to, say, those of the Apache leaders who demand control over Apache con- cepts and images. The Church of Scientology, it must be noted, collects large fees from initiates before it allows them access to its secret texts. But their com- mon appeal to principles of intellectual property has the insidious effect of making them moral equals. In both cases, broad questions of fair use and the free expression of ideas are magically transformed into a narrow dispute over commodities. This troubling moral alchemy underscores the observation of William Class (1997:62) that "the chief mode of censorship in a com- mercial society is, naturally enough, the marketplace." Here Class refers to the power of publishers and book- sellers, who largely determine what gets published and sold in capitalist markets, but he could just as well be speaking about the manifold ways in which intellectual property rights strategies can be, and are, used to deny access to information and to inhibit open communica- tion.15 Advocates of the dramatic expansion of the intellec- tual property of native peoples seem oddly blind to the free-speech implications of their proposals. Kamal Puri (1995:338-39), for instance, supports the imposition of laws prohibiting the use of Aboriginal art and symbols by outsiders. The com modification of Aboriginal art, he argues, "deprives Aboriginal people of an important economic base; and secondly, if trivialized, it can under- mine the autonomy of unique Aboriginal traditions." Although this rationale for cultural protection seems reasonable at first glance, upon reflection one begins to wonder where the legal prohibition of religious "trivial- ization" or sacrilege might lead. Would citizens there- fore be subject to civil and criminal penalty if they trivi- alized any religious symbols? Would indigenous peoples themselves be subject to reciprocal fine or ar- rest if they manipulated Christian imagery for their own purposes? One can easily imagine conservative evangelical groups taking offense at the use of Christian symbols by members of the Native American Church during peyote meetings. In the American context, cer- tainly, legal efforts to prevent parodic or creative appro- priations of religious symbols would present a serious challenge to the First Amendment. Information Ethics Another element of contemporary debate over cultural and intellectual property is the claim that indigenous knowledge currently available in the public domain was obtained under circumstances so inherently coercive that it should be either sequestered or returned to its source community. The most extreme version of this position?the assertion that ethnographic field data have the same moral standing as the now-quarantined records of medical experiments conducted in Nazi con- centration camps?still has few advocates, but it is only a step or two removed from today's orthodoxy, which 15. Some experts in intellectual property law express concern that copyright is increasingly used to restrict access to information in- stead of encouraging its dissemination (see, for example, Brans- comb [1994] on struggles over access to the Dead Sea Scrolls and Con ley [1990] regarding the scholarly use of unpublished biographi- cal information, especially letters and diaries). 200 I CURRENT ANTHROPOLOGY Volum e 39, Num ber 2, April 1998 sees ethnography as an important instrument in the he- gemonic project of classifying, representing, and ruling subject populations (see, e.g., Pels and Salemink 1994). Once we accept the totalizing logic of this formula, the conclusion that all records from formerly colonized places are ethically tainted follows naturally. Yet anyone willing to look carefully at the historical evidence will be dissatisfied with blanket condemna- tions of ethnographic records. At the very least, we must acknowledge the agency of indigenous peoples? their strategic decisions to share ideas and stories and songs with inquisitive outsiders when, in their judg- ment, circumstances warranted. In an informative anal- ysis of a major Zuni repatriation case, for example, Mer- rill, Ladd, and Ferguson (1993:541) mention that several cultural items acquired by the Smithsonian Institution in the late 19th century may have been made expressly for the museum because Zuni leaders believed that greater public awareness of the beauty of Zuni religion would improve relations between their tribe and the federal government. Zuni authorities may also have re- vealed certain ritual secrets to the Smithsonian anthro- pologists Frank Hamilton Gushing, James Stevenson, and Matilda Coxe Stevenson in the hope that their con- tinued professional involvement with Zuni culture would lead them to defend Zuni interests in Washing- ton (Merrill and Ahlborn 1997:195). Both strategies seem to have worked. This is hardly a history free of coercion, but it includes powerful elements of volition and of cultural resistance through strategic sharing that merit acknowledgment and respect. Interpretations that reduce ethnography to an en- counter between oppressor and oppressed, interacting like automatons in a grim game of power, overlook the complex human motives that animate ethnographic en- counters: curiosity, aesthetic delight, mutual self-inter- est, genuine respect or affection, erotic attraction (rec- ognized or denied), the visceral pleasures of storytelling, and a desire to understand other social worlds. They also summarily repudiate the work of countless observ- ers who have dedicated their lives to the documentation of indigenous lifeways, sometimes at great personal cost. This enterprise may have been facilitated by colo- nialism, but more often than not its effect was to chal- lenge assumptions of colonial superiority. Today ethno- graphic records provide critical information that indigenous peoples use to revitalize their cultures and to substantiate land and resource claims in courts of law. The species of naive presentism that judges histori- cal actors by today's ethical standards would, if given free rein, mandate the pious quarantine or even destruc- tion of most of these important resources. The alternative to ethical absolutism is ethical real- ism, with all its exacting ambiguities and dilemmas. Realists judge work by the extent to which it violates or conforms to the ethical standards that prevailed when it was collected. Was information gathered under circum- stances that would have been considered dishonest or unduly coercive then? Was deception involved, and, if so, how egregious was it in terms of prevailing ethical norms? Did the researcher keep his or her promises about how the information would be used? Perhaps the hardest condition to establish retrospec- tively is informed consent. To what degree, for exam- ple, did research subjects realistically comprehend how their lives might be affected by their role in an ethnog- raphy, a documentary film, or an audio recording, espe- cially if they were relatively unfamiliar with these me- dia? Even conscientious and well-meaning researchers fail to anticipate all the possible effects of their work, and they are sometimes as disturbed as their subjects by the unexpected impact of their publications, record- ings, or images. In this area, the Law of Unintended Consequences reigns supreme; there will always be un- foreseen effects, both good and bad, when information enters the public domain.16 Ethical realism holds that each case is unique and therefore subject to careful retrospective review. If sig- nificant violations of the norms of the time took place, with lasting, negative impacts on a particular people or community, then it may be appropriate to quarantine the offending research in some way, perhaps by making it available only to members of the affected group or to others authorized by them. In keeping with the empha- sis that repositories place on freedom of access, one would expect that closure of a collection would take place rarely, and only in the face of compelling evidence that continued use would damage the affected commu- nity. Such caution is warranted because decisions to quarantine information never take place in a political vacuum. Citizens of all ethnic origins have an interest in continued access to information already residing in the public domain. Moreover, voluntary removal of ma- terial from public access establishes precedents likely to be exploited by other religiously and politically moti- vated interest groups?some of which, it bears pointing out, would advocate positions strongly antagonistic to indigenous political rights and cultural self-expression. Published accounts and my own queries to museums and archives suggest that at the level of day-to-day oper- ations this commonsense approach to ethics is cur- rently the norm in the United States.17 These reasonable procedures stand to be usurped, however, by compre- hensive claims of ownership. If it can be established that in some meaningful sense ethnographic and histor- ical records are "owned" by the peoples who are their subject, then complex questions about the ethical sta- 16. Issues of informed consent in the filming of the controversial documentary Titicut Follies are explored in considerable detail by Anderson and Benson (1988). Zemp (1996:49-63) describes ethical struggles over the commercial licensing of Rajasthani music re- corded by a fellow ethnomusicologist many years earlier, at a time when neither had anticipated the music's potential commercial value. For reflections on the role of ethics in the preservation of anthropological materials, see Fowler (1995) and Greaves (1995). 17. Letters to 16 American museums and archives to inquire about their response to the Hopi request for a moratorium on access to ethnographic materials produced 8 replies. Of these, none reported that it had actually closed collections, although several now mark collections relating to the Hopi and other tribes as "sensitive" and encourage scholars to contact tribal authorities before using them. BROWN Can Culture Be Copyrighted?\20l tus of the cultural property become irrelevant. And here we face one of the hidden ironies of contemporary de- bate: although advocates of expanded intellectual prop- erty laws typically denounce capitalist commodifica- tion, they implicitly encourage the translation of ethical and political discourse into the language of com- modities. Ethnographic Fictions in the Age of the Simulacrum Contemporary assertions of intellectual property offer other and perhaps more plangent ironies rarely noted by commentators. At a moment when many anthropolo- gists have come to regard ethnographic and historical texts as interested fictions, indigenous peoples insist that these documents contain sacred knowledge so au- thentic and powerful that access to it should be care- fully controlled. Even as ethnography moves in a con- fessional direction, offering ever more information about the ethnographer's personal history, feelings, and motives (to the extent, some would say, that it becomes difficult to find the Other in the text), the Other is claiming ownership of the textual simulacrum. No- where have these contradictory currents proved more acrimonious than in public debate over the New Age "appropriation" of Native American religion. Across the United States?and, increasingly, in Eu- rope and other parts of the developed world?middle- class spiritual seekers are enrolling in workshops and therapy sessions that introduce them to rituals identi- fied with indigenous spirituality: ersatz Medicine Wheel ceremonies, sweat lodges, vision quests, and even healing sessions involving consumption of the Amazonian hallucinogen ayahuasca. Sometimes those who officiate are of native extraction, although few are recognized as religious leaders in their own communi- ties. More commonly, they are non-natives claiming knowledge of indigenous lore. To say that the practices of these "Indian wannabes" have evoked intense criticism would be an understate- ment of the first order. In a "declaration of war," Lakota leaders have denounced the "absurd public posturing of this scandalous assortment of pseudo-Indian charla- tans" (Stampede Mesteth, Standing Elk, and Swift Hawk n.d.). Another Indian activist deems such faux- native ceremonials to be another example of "a very old story of white racism and genocide against the Indian people" (Smith 1994:70). Similar denunciations fol- lowed the publication of Mario Morgan's best-selling Mutant Message Down Under (1994), a book that de- scribes the author's religious experiences?later re- vealed to be entirely fictional?among a group of Ab- original Australians. Robert Eggington, a spokesman for Australia's Nyoongah people, has been quoted as saying that Morgan's book "amounts to nothing less than cul- tural genocide of the spirit" (Mutant message downed!!! 1996). Academic observers are only slightly more mea- sured in their criticism. Deborah Root (1996), for exam- ple, depicts the New Age as a particularly offensive ex- ample of the commodifying logic of late capitalism. "Because so many people have been taught that the world is a giant warehouse in which everything is or ought to be available," she writes, "they too easily be- lieve they can achieve enlightenment by paying money" (p. 97).18 However much we may deplore the cultural insensi- tivity that underlies these middle-class explorations of indigenous spirituality, Root's argument illustrates the strikingly cramped and in some cases misdirected de- bate that this situation has inspired. For example, when critics declare that indigenous spirituality lacks a com- mercial aspect, in sharp contrast to the alleged commer- cial vulgarity of the New Age, they willfully ignore a vast literature that establishes the economic nexus of ritual almost everywhere in the world, a pattern that of- ten includes substantial payments, in cash or goods, to ritual specialists. Nor has the controversy seen contri- butions by anthropologists who in other contexts cele- brate cultural flows and creative creolization, of which New Age practices are surely an outstanding example. One might also reasonably call for rigorous analysis of how this instance of religious borrowing differs from other kinds of intercultural sharing that underwrite re- ligious innovation throughout the world. By pointing to these deficiencies, my purpose is not to defend the imi- tation of native rituals by non-natives. (I don't know how one could possibly endorse a practice as appalling as the "Smoki" Snake Dance, a parody of Hopi ritual conducted annually by wealthy Anglos in Prescott, Ari- zona, vividly described by Peter Whiteley [1997:177- 79].) My personal view is that middle-class baby boom- ers looking for spiritual authenticity should explore the rich religious traditions of Europe and allow native peo- ples to worship in peace. Nevertheless, the phenome- non merits a broader and more dispassionate analysis than we have seen thus far. Perhaps the most interesting feature of the contro- versy is the extent to which native religious leaders ob- ject to it not on the ground that New Age rituals are bogus but precisely because they are, in some sense, real (see, e.g., Whiteley 1997:188; Jocks 1996:418). A statement issued by Indian leaders meeting in Window Rock, Arizona, in 1984 notes that New Age ceremonials are "exposing ignorant non-Indians to potential harm and even death" (AIM Leadership Conference 1984) be- cause of the rituals' inherent power. Much as the gen- eral public is repelled by the prospect of cloned human beings, native religious leaders express horror at the monstrous cloning of their visions of the sacred. For them, the New Age is a kind of doppelganger, an evil imitation close enough to the real thing to upset the delicate balance of spiritual power maintained by In- dian ritual specialists. 18. The firestorm of criticism directed to New Age practices has produced a literature too vast to document fully here. Useful sources include Albanese (1990), Brown (1997), Jocks (1996), John- son (1995), Kehoe (1990), and Rose (1992). 202 I CURRENT ANTHROPOLOGY Volum e 39, Num her 2, April 1998 "The culture of the copy muddies the waters of au- thenticity," Hillel Schwartz (1996:377)has observed. As the technologies of the simulacrum proliferate around us, producing what Mark Taylor and Esa Saarinen (1994) call the "simcult," souls lost in the forest of cop- ies take up a desperate search for the original that leads them almost inevitably to indigenous peoples, who in our time have become icons of primordial integrity, of meaning uninflected by imitation. In seeking the au- thenticity of native religions, however, they succeed only in fashioning another flawed simulacrum.19 Under the circumstances, it is hardly surprising that indige- nous leaders want to tighten their grip on the originals. But this particular genie has already escaped from the bottle. Those who dream that knowledge can be "repa- triated" through copyright laws?vain attempts to slow the metastatic self-replication of information in the Age of the Simulacrum?are destined to be disappointed. Despite the Church of Scientology's single-minded pursuit of criminal prosecution and civil action to pre- vent the reproduction of its secret texts, for example, there is little evidence that it has succeeded in recaptur- ing all or even a significant fraction of the copies held by its opponents, doubtless buried on the hard drives of their computers or squirreled away on diskettes. The re- cent history of the Internet demonstrates that draco- nian attempts to police information are likely to fail, although governments and powerful interest groups may succeed in temporarily stifling open dissent. The same fate awaits indigenous groups seeking total con- trol over information about their societies. Its use by law-abiding historians and social scientists will surely decline, but there will soon arise an underground litera- ture?a native-knowledge samizdat or, more likely, something resembling the X-Files, the American televi- sion series that exploits popular belief in the govern- ment's secret contacts with extraterrestrials?that is likely to give rise to distortions of fact far worse than the misrepresentations that today infuriate indigenous leaders. As is true in the case of religious secrets, the conversion of debate about New Age rituals into a struggle over intellectual property undermines pros- pects for urgently needed public discussion about mu- tual respect and the fragility of native cultures in mass societies.20 Toward Genre Police and "Certified Indigenous Persons?"? As I noted earlier, one proposed solution to the crisis of intellectual property is the libertarian option articu- lated by Barlow and Dyson: let information be free by 19. According to David Sanjek (1992:609), the availability of af- fordable digital sampling equipment has had a similar effect on contemporary music: "The elevation of all consumers to potential creators . . . denies the composer or musician an aura of autonomy and authenticity." 20. For further discussion of the contradictions and dilemmas of new media, see Schwartz (1996) and Baudrillard (IS unleashing it in an unregulated market, where consum- ers can pay for what they want and ignore what they don't. The illicit replication of information cannot be stopped; only performances can be controlled, so cre- ative individuals and groups will have to find ways to benefit materially from performance-like encounters with a paying audience. Because this position has few followers among anthropologists and indigenous activ- ists, I bracket it from serious consideration here. But whatever its flaws and blindnesses, the radical libertar- ian proposal injects a note of realism into current debate by reminding us that control of information and the proliferation of simulacra is or soon will be impossible. The principal alternative to informational libertarian- ism is the creation of new institutions and legal mecha- nisms designed to protect "cultural heritage, folkloric productions, and biological 'know-how,'" to quote the language of the Bellagio Declaration, a document pre- pared by a diverse group of experts in intellectual prop- erty (reproduced in Boyle 1996:192-200). With admira- ble clarity and conciseness, the Bellagio Declaration advocates a two-pronged revision of intellectual prop- erty practice: on the one hand, it calls for a significant expansion of the public domain by diminishing intellec- tual property rights?say, by shortening the term of copyrights or by limiting the circumstances under which they may be awarded; on the other, it calls for the creation of "related rights regimes" to protect indig- enous intellectual property. As experts on intellectual property law, the authors of the Bellagio Declaration are aware of conflicts between these two agendas, and within the limits of a brief document they try to recon- cile them without specifying in detail how this harmo- nization might be accomplished. The measured language of the Bellagio Declaration contrasts with the sweeping demands of those who see intellectual property law as a mechanism for protecting indigenous philosophies. Recall, for example, the mani- festo of the Inter-Apache Summit on Repatriation (1995:4), which asserts title to "symbols, beliefs, cus- toms, ideas and other physical and spiritual objects and concepts," or the UN document stating that native peo- ple have an inherent right of control over everything en- compassed by the term "cultural heritage" (Daes 1993). These documents lay claim to thought as well as its ac- tualization in concrete acts of creation. Those familiar with copyright know that the distinction between ideas and their expression?that is, "fixing in tangible form" (see Litman 1991:239)?is foundational to notions of in- tellectual property. The reason for this is obvious: be- cause we cannot ascertain the origin of ideas unless they are expressed in some stable, material form, it would be impossible to enforce claims on them. Yet some experts in intellectual property now urge that the idea/expression distinction be abandoned because of its alleged ethnocentrism, its inability to protect creative linguistic, artistic, or musical productions expressed through performance rather than preserved in a perma- nent medium such as writing. Proposals for the ex- panded protection of indigenous intellectual property BROWN Can Culture Be Copyrighted?\203 rights also typically object to the time-limited quality of current copyright and patent laws. If native knowl- edge is held to be collective and eternal rather than the invention of a solitary author, then it follows that time limitations keyed to the human life span, which clearly reflect the possessive individualism of Western capital- ist thought, should be replaced by some form of perpet- ual copyright.21 These proposals call to mind Apple Computer's highly publicized infringement lawsuit against Micro- soft, which claimed that Microsoft's Windows program illegally appropriated the "look and feel" of Apple's pro- prietary software (Mota 1995). Although Apple ulti- mately lost the suit, notions similar to its look-and-feel claim have been picked up by participants in the ex- panding scholarly debate about cultural appropriation. In a recent essay on the ethics and pragmatics of the music industry, for instance, Steven Feld (1996) bril- liantly tracks the processes by which recordings of the musics of Mbuti and other "Pygmy" peoples find their way into contemporary jazz and World Beat, usually without attribution or compensation. My reading of Feld's analysis is that he views those artists whose work replicates even the sounds and textures of Mbuti music as performing an act of cultural appropriation. In other words, imitating the "look and feel" of a people's music is a form of cultural theft, even if it occurs within a genre such as jazz, which is largely predicated on impro- visational transformations of the artistry of musicians from every corner of the globe. Although Feld wisely steers clear of proposing that we create a new species of genre police to protect indig- enous musicians from exploitation, other scholars prove less cautious. Indeed, journals devoted to the sub- ject of intellectual and cultural property cheerfully offer any number of schemes to codify culture and thereby protect it from misuse. Most of these proposals call for the redefinition of folklore as part of a national or even a global patrimony. They also encourage the imposition of a regime of "moral rights" for cultural property that would exist in perpetuity. (The moral-rights concept, which is alien to U.S. copyright law but commonly ap- plied in European countries, asserts that the state has an enduring interest in the integrity of works of cultural patrimony. Any attempt to modify a protected work ? say, by altering a classic film or images of a famous painting?would violate its moral integrity even if its formal copyright had long since expired.) UNESCO, which has drafted schemes for the application of this kind of protection to indigenous cultural productions, envisions the establishment of state folklore protection boards that would "register [folkloric] works and autho- rize their use," allowing exceptions for "educational and inspirational purposes" (Berry man 1994:327). 21. See, for instance, Berryman (1994) and Mills (1996). The Mataa- tua Declaration, which was issued after a 1993 conference in New Zealand, calls for a "multi-generational coverage span" for indige- nous intellectual property, leaving unanswered the question of whether such protections would be permanent. Among other things, folklore-protection boards might be authorized to intervene if nonfolkloric people pro- duced designs that imitated authorized folkloric styles or if native art were used in "culturally inappropriate contexts."22 Perhaps I am alone in wondering how a UNESCO- style bureaucracy would further the interests of indige- nous peoples by codifying their knowledge in what would have to be a byzantine series of regulations. One can only imagine the endless legal actions and legisla- tive initiatives that would be required to protect against infringement of the look and feel of Tlingit art or the stylistic particularities of Shuar oratory. And when con- sidering parts of the world where the rule of law is so tenuous that even basic traffic regulations are the object of collective scorn, we might well question how indige- nous populations would benefit from the implementa- tion of far less enforceable laws relating to intangible cultural property. It is also prudent to consider what the broader social impact of look-and-feel protection might be. Could it in fact be confined to "designated folkloric populations" or "certified indigenous peoples" without seeping into the broader world of commerce, where corporations are already storming the borderland between idea and ex- pression? Who is more likely to be silenced by the en- forcement of look-and-feel copyright: the Sony Corpora- tion, for its infringement of Mbuti flute playing, or the emerging African recording artist whose first commer- cial CD infringes the style of Michael Jackson? And what of scholarship? Anthony Seeger (1996:87) notes that it is already difficult for ethnomusicologists to pub- lish articles on popular music because of copyright con- straints that prevent the quotation of lyrics and musical scores, an example of the corporate world's concerted efforts to downsize the scope of fair use. Consider, then, what history or anthropology will become when schol- ars are prevented by law from writing accounts specific enough to evoke the religious or political practices of protected native populations. Perhaps we can look for- ward to the day when the Freud estate is sued on the grounds that Totem and Taboo violates the folkloric copyright of indigenous peoples?from two world re- gions, no less. Less fanciful is the prospect of court or- ders that remove works of ethnomusicology, history, and ethnography from library shelves because they pur- 22. In Australia, where the protection of Aboriginal art and culture is strongly supported by anthropologists, lawyers, and native activ- ists, Colin Golvan reports that successful attempts to enforce Ab- original copyright to traditional designs led wily tee-shirt manufac- turers to produce knockoffs that merely imitated the style of Aboriginal art. Golvan (1992:229) comments: "One issue which justifiably arises for attention is whether there ought to be protec- tion to prohibit this bastardization of Aboriginal art, and if so, how this protection would work." (See also Blakeney 1995 for additional discussion of Australian legal initiatives.) In the domain of music, Mills (1996:74) provides a detailed description of recent Brazilian legislation designed to protect the intellectual property of indige- nous communities by "eliminating burdensome, ethnocentric copyright requirements of living authors, originality and tangi- bility." 204 I CURRENT ANTHROPOLOGY Volum e 39, Num ber 2, April 1998 vey stolen property. If time limitations on indigenous copyright were waived, as has been proposed by some scholars, then this intellectual stalemate could exist in perpetuity. For the most radical of indigenous activists?and, in- cidentally, for the giant corporations that oversee the world's news and entertainment media?such impedi- ments to scholarship and the exchange of ideas would be welcome. The Hawaiian nationalist Haunani-Kay Trask (1991:162), for example, characterizes anthropol- ogists and historians as "part of a colonizing horde be- cause they seek to take away from us the power to de- fine who and what we are, and how we should behave politically and culturally." Trask evidently hopes that indigenous peoples will eventually achieve exclusive power to represent themselves to the world at large. If realized, this vision would impound knowledge in a new reservation system: reservations of the written word, an apartheid of the mind.23 In his reflections on the separatist movement in Que- bec, Richard Handler (1988:194) observes that national- ists make preemptive claims to knowledge because they are "haunted by a vision of totality" that can be achieved only when a people becomes "an irreducible, homogeneous unit, securely in control of its borders, self-contained, autonomous, and complete." The ethnic nation, in other words, seeks to recover and then to con- trol its history and its folklore, sharing it with outsiders only in forms that it deems appropriate. A consideration of the moral standing of this dream of cultural purity is beyond the scope of this essay. But there can be little doubt that attempts to impose new border controls on the flow of knowledge raise troubling questions that should be resolved, or at least thoroughly discussed, be- fore supporting new legal regimes that codify cultural property and potentially even criminalize its unautho- rized possession. Closing Thoughts Although there are compelling reasons to be skeptical of some indigenous intellectual property rights propos- als currently under discussion, I strongly support efforts to create basic mechanisms for the compensation of na- tive peoples for commercial use of their scientific knowledge, musical performances, and artistic cre- ations. Equally necessary are clear guidelines for the collection of culturally sensitive ethnographic data and potentially marketable human biological materials, in- cluding cell lines. I would hope, too, that anthropolo- gists will continue to register objections to the patent- ing of medicinal and agricultural plants discovered or 23. "In such circumstances, a particular version of the past be- comes a commodity that can be mobilised for political power and economic gain, where a sovereign territory of knowledge is asser- tively appropriated as one's 'own,' in the interests of creating a use- able history that will serve as a vehicle for correcting past wrongs" (Munro 1994:233). domesticated by indigenous populations and used by them for centuries. It is the broader debate about cultural appropriation that I find disturbing?specifically, the reluctance of otherwise thoughtful scholars to dissect the ethno- nationalist claim that there exists an inherent, perma- nent right of cultural ownership and that this right should be guaranteed by new laws that, among other things, define ideas as property. Discussions about strategies for preventing cultural appropriation seem to take place in a parallel universe unaffected by the fierce struggle of creative artists and the general public for free access to information in the face of growing corporate domination of knowledge, now commodified as "con- tent."24 To some extent, of course, ethno-nationalists are reacting to this mad scramble for control by pro- tecting what they can. But nothing would serve corpo- rate interests more perfectly than the collapse of the idea/expression distinction or the abandonment of time horizons on copyrighted material. Expectations that such radical extensions of intellectual property laws could be restricted to indigenous populations through the establishment of regimes of special rights are ex- tremely naive. The legal frameworks necessary to sus- tain the permanent protection of entire cultures will in- evitably require greater involvement of governmental or quasi-governmental agencies in the business of de- termining who is a native person and exactly what qual- ifies as indigenous knowledge, a situation that one would be hard-pressed to see as beneficial for ethnic mi- norities. One wonders, too, about the fate of those art- ists?Louise Erdrich, Allan Houser, and Bab a Olatunji come immediately to mind?who have drawn on native identities to fashion art that transcends ethnic bound- aries. Would they, too, have to "repatriate" themselves to satisfy the demands of a system that defines owner- ship primarily by ethnicity? A realist perspective acknowledges the uneven hold that intellectual property laws have on the flow of knowledge into and through the new digital technolo- gies. Even the supposedly privileged artists and writers of the majority culture routinely find their copyrights violated by information-distribution services that pro- vide copies of works to clients on demand (Tisdale 1997:70). One can imagine how much more difficult it will be to police the comprehensive copyright protec- tions now being considered for indigenous cultures. As the legal scholar Jessica Lit man (1991:248) has pointed out, when copyright regulations diverge too dramati- cally from the practical understandings of authors and the general public, these laws lose legitimacy. This problem would surely intensify were governments to implement radically expanded copyright laws designed to protect all forms of intangible cultural property. The ensuing flurry of litigation would favor only the largest 24. See, for instance, Bettig (1996), Browning (1997), Samuelson (1997), and Schiller (1989) for discussion of attempts by North American media interests to impose ever more restrictive copy- right laws on the rest of the world. BROWN Can Culture Be Copyrighted?\205 corporate interests, for whom legal fees are simply a routine cost of doing business. Conspicuous by its absence is a vigorous defense of the concept of a public domain.25 This is doubtless be- cause postcolonial scholars regard appeals to notions of the civic whole as thinly veiled advocacy for (white) elites. "Whose public are we talking about?" they ask. The question admits of no easy answer. The realities of money, power, and social capital make the public do- main more accessible?and exploitable?for some citi- zens than for others. Yet the public domain that permits the intellectual colonization of native peoples also of- fers resources that they regularly appropriate for their own cultural redefinition and political advancement (Coombe 1997:74-75). The same cannot be said for sys- tems that dispense information on a strict need-to- know basis. Lurking in the background is a curious reluctance to come to grips with the pragmatics of multicultural de- mocracy. It is one thing to insist that the deeply felt views of a particular minority be taken seriously, quite another to propose workable procedures by which these cultural differences (which of course must be multi- plied by the number of ethnic groups and subcultures that a given nation encompasses)can be reconciled with majoritarian government and a commitment to equal treatment before the law. Every legitimate demand for special consideration, including the claim that native peoples deserve regimes of intellectual property unique to them, must be weighed against the injurious effect that special rights have on prevailing notions of fair- ness. The philosopher Charles Taylor, who along with such legal thinkers as Ronald Dworkin (1986) and Will Kymlicka (1989) has done some of the heavy lifting shirked by anthropologists, asserts that if one genuinely takes the claims of minorities seriously, they must be assessed with the same thoughtful deliberation that we insist upon in legal proposals coming from the cultural mainstream. Taylor rejects the simple-minded relativ- ism that says, in effect, "If the So-and-So demand it, we must give it to them because their cultural values are as valid as our own." For Taylor (1994:70), this demon- strates "breathtaking condescension." He continues: No one can really mean it as a genuine act of re- spect. It is more in the nature of a pretend act of re- spect given on the insistence of its supposed benefi- ciary. Objectively, such an act involves contempt for the latter's intelligence. To be an object of such an act of respect demeans. The proponents ofneo- Nietzschean theories [expressed in the work of Fou- cault and Derrida] hope to escape this whole nexus of hypocrisy by turning the entire issue into one of power and counterpower. Then the question is no 25. A notable exception is the Bellagio Declaration (Boyle 1996: 195), which advocates "an increased recognition and protection of the public domain" in tandem with the creation of regimes of spe- cial rights for indigenous peoples. For critiques of the concept of the public domain and the notion of common human heritage, see Pask (1993) and Coombe (1996). more one of respect, but of taking sides, of soli- darity. Fortunately, something close to Taylor's vision of au- thentic intercultural respect appears to be taking hold in archives and museums. Aware of their responsibility to protect public records while remaining responsive to the concerns of groups who claim an interest in them, repositories are willing to ask tough questions of those who demand that irreplaceable cultural information be destroyed or closed to the multiple publics whom they serve. New working relationships between repositories and indigenous communities, many set in motion by N AGPRA, are helping to foster relationships of mutual trust that produce realistic compromises appropriate to individual cases (Nason 1997). Similarly pragmatic ethi- cal protocols are being formulated by anthropologists and ethnomusicologists (see, e.g., Seeger 1996). If clearly communicated and enforced by professional so- cieties, these codes are likely to prove more effective than radically expanded legal regimes for the protection of intangible cultural property, which will provide guar- anteed employment for bureaucrats while doing little to shield native peoples from the depredations of mass so- ciety. Perhaps the most promising approach is advanced by scholars such as Karen J. Warren (1989) and Donald Tuzin (1995), who argue that frameworks based on joint stewardship are preferable to models based on rights and rules. Joint stewardship implies a willingness to compromise, which is essential for hammering out workable agreements between parties who may hold in- compatible attitudes toward the proper use of informa- tion. The historian Doug Munro (1994:236) notes that the intercultural encounter is a shared experience that belongs solely to neither party. "In short," he adds, "the terms 'insider' and 'outsider', far from representing dis- crete categories, are convoluted and often permeable." A basis for joint stewardship is admittedly harder to find in the predatory activities of corporations that seek to appropriate indigenous knowledge for commercial purposes. Even here, however, situational pragmatism may prove more effective than a radical expansion of in- tellectual property laws to encompass every aspect of native cultures. Widespread public sympathy gives na- tive peoples considerable influence in the court of world opinion, and this can be used to pressure corporations into complying with basic ethical standards. Creative licensing partnerships between native communities and corporate interests offer another path to fair com- pensation and a modicum of indigenous control (see Cleveland and Murray 1997:488). Like most realist strategies, these options lack the rhetorical appeal of ethno-nationalist denunciation or the hyperrationalist allure of novel legal schemes, but they are far more likely to produce the desired results. In the final pages of The Protestant Ethic and the Spirit of Capitalism, Max Weber (1930:181) speaks movingly of modernity's "iron cage," an ascetic ratio- nalism driven by the overwhelming power of material 206 I CURRENT ANTHROPOLOGY Volum e 39, Num ber 2, April 1998 goods. Weber's iron cage has steadily expanded to in- clude ideas and images, which have become tokens in economic exchanges facilitated by the new information technologies. To resist the expansion of these processes into indigenous cultures, legal experts and indigenous advocates have come forward with proposals to seques- ter some forms of knowledge and to protect everything else with dramatically expanded intellectual property laws. Unfortunately, the advent of the Age of the Simu- lacrum has rendered the first strategy futile, although it may provide a false and temporary sense of security. The second represents a total surrender to the commod- ifying logic of advanced capitalism. Now it may be time to temper demands for comprehensive copyrighting of native cultures with earnest reflection on the future of the imperiled intellectual and artistic commons called the public domain, whose survival is of vital signifi- cance to us all. Comments J. A . BARNES Sociology Program, Research School of Social Sciences, Australian National University, Canberra, A.C.r. 0200, AwffraWa. 7 x 97 With limited space I can comment on only a few of the many points mentioned by Brown in his wide-ranging and very perceptive paper. He raises issues likely to be- come increasingly critical for anyone seeking greater knowledge and/or wider justice. Both goals are estima- ble, but unfortunately the paths leading to them often diverge. Roughly speaking, there are three overlapping ways of perceiving knowledge: as a source of enlighten- ment, as a source of power, and as a kind of private prop- erty (Barnes 1980:64-66; 1990:209-11). Knowledge as enlightenment enhances our understanding of the world; the more people possess it the better, and there is no zero-sum game. Brown stresses that a flow of in- formation is essential to "a liberal democracy," a type of polity he implicitly endorses. As power, knowledge helps us to alter the world; actors compete rather than share, and the game approximates to zero-sum. Posses- sion of knowledge as private property may be a value in itself; secrets can be hoarded unused but enjoyed and shared only very selectively. Anthropology, like other social sciences, is premised on knowledge as enlighten- ment, although administrations have intermittently tried to use ethnographic knowledge as a source of power. Some societies, notably those of Australian Abo- rigines, elaborate the notion of knowledge as private property; it is local Aborigines who have organized seg- regated museums at Yuendumu in Central Australia, one for men and one for women. But irrespective of cul- tural emphases indigenous peoples everywhere are typi- cally materially poor and politically powerless. Possess- ing meagre resources, they tend not surprisingly to view their knowledge as private property, and it is under- standable that their ethnographers should be sympa- thetic to their attempts to empower themselves. This process is reinforced when indigenous people see their knowledge of plants and medicines converted into pri- vate property by outsiders and corporations through patenting. Privacy laws in Western democracies establish a dis- tinction, variously drawn, between public and private spheres of activity, and patents and copyright provide analogous protection for private ideas. When we are dealing with artefacts and the hidden meanings of paintings and rituals it may be feasible to work out a compromise between those seeking enlightenment and those who wish to protect the privacy of their knowl- edge. Compromises are harder to reach with reference to social activities that traditionally have been per- ceived as part of culture. Cross-cousin marriage can no more be effectively patented than syllogistic logic. A real conflict arises when a material object has different meanings for different actors. One example is recently unearthed bones of individuals who lived long ago. Ar- chaeologists in Australia see these as providing infor- mation about the type of DNA prevalent during past millennia, whereas Aborigines tend to see them as the bones of ancestors which should be reburied. The difficulties currently faced by social scientists of all kinds in our quest for enlightenment arise from the shift in the balance of power that has occurred during the past hundred years or so. Not only so-called indige- nous people but all segments of society (with the possi- ble exception of children) are nowadays in much stronger positions to obstruct or influence the gathering of information about them and its subsequent dissemi- nation. Though this makes the task of social inquiry more difficult, we should not regret it; reduction of ine- qualities in the distribution of power is just as essential for maintaining liberal democracy as is a free flow of in- formation. Brown's paper reminds us that in our postco- lonial world the inequalities we should target are no longer those between indigenous peoples and colonial- ist ethnographers but those between private citizens and powerful corporations, whether secular or religious. We can put our ethical house in order for the present and future, but what should we do with knowledge gained in the past under conditions we now reject? Brown mentions the quarantining of the records of Nazi medical experiments. Perhaps in the short term this may be the right way to handle these records; neverthe- less, we don't feel that we should, for instance, stop vac- cinating children against smallpox because Jenner didn't get clearance from an ethics committee before doing his experiment. There seems no reason for adopting an os- trich-like stance of refusing to see and use information that is already in the public domain. In any case, as Brown points out, for every overconscientious ostrich there are many more actors who have no intention of burying their heads in the sands of pseudo-ignorance. Material objects collected in the past call for different treatment. Much that is now stored in museums would BROWN Can Culture Be Copyrighted?\207 have perished long ago if it had not been taken into alien custody. Many indigenous communities are, how- ever, now well able to preserve their own heritage and thus have good grounds for reclaiming their former pos- sessions. DAVID A. CLEVELAND Department of Anthropology, University of California, Santa Barbara, Calif. 93106-3210, U.S.A. (clevelan@alishaw.ucsb.edu). 12 xi 97 Brown's review of current approaches to "rights" in "culture" is an insightful and stimulating critique. He skillfully points out the confusion of values and facts that characterizes so much of the debate over rights to intellectual property, especially among advocates of in- digenous rights. A narrow struggle over intellectual property diverts public discussion about mutual respect and the fragility of indigenous cultures in a global soci- ety, and anthropologists should face up to the probable effects on the public domain of greatly expanded intel- lectual property protection of cultures. I differ with him, however, on several points. He accepts the "political ideals of liberal democracy" as a standard for dealing with secrecy. Yet many indige- nous groups, such as the Hopi he cites, have a wide range of views on the recognition and treatment of rights in intellectual property (Cleveland and Murray 1997). "Ethical realism" is advocated as a "common- sense" approach to the ethics of intellectual property, but it is only "realistic" and "commonsense" if one agrees with the liberal democratic values on which it is based. My point is that there is a "realistic" or "com- monsense" approach only from within particular worldviews. What, for example, is the basis for Brown's statement that he doesn't know how one could possibly endorse a practice as "appalling" as the "Smoki" Snake Dance yet also condemn those who seek to limit all outsider use of insider religious knowledge? Where one draws the line is a matter of values, not of discovering some absolute standard. Any agreement must therefore be based on open-minded negotiation. Brown suggests that it is ironic that those who seek to protect local cultures with "expanded intellectual property rights laws" typically denounce capitalism while encouraging the commoditization of ethical and political discourse. However, the motives and methods of local groups and their advocates are not homoge- neous. Some groups are using industrial-world intellec- tual property rights laws and asking for their expansion because this seems the best way to protect their culture from outsiders using these same laws. In the case of crop genetic resources, advocates of local farmers' rights initially pushed for free access to all resources, but strong opposition by industrial nations led to a switch to advocating intellectual property protection for farm- ers' crop genetic resources (Fowler 1994). Other groups demand that their own intellectual property rights re- gimes be respected by outsiders, as do the Zuni (Soleri et al. 1994). The Zuni also offer evidence that not only museum curators but indigenous peoples can be very practical in their approach to intellectual property in a globalizing world. I agree emphatically with Brown's statement that res- olution will require reflection on the part of those hold- ing different positions on their "global implications" in order to achieve suitable compromises. Rather than fo- cusing on methods, we might better first try reaching a consensus on goals. To the extent that conservation of cultural diversity is an agreed-upon social goal, we need to explore how existing and new ways of managing in- tellectual property can best serve this goal. ROSEMARY J. COOMBE Faculty of Law, University of Toronto, Toronto, Ont., Conado M3S 2CJ. 27 x 97 "Can Culture Be Copyrighted?" addresses several issues of contemporary political significance to cultural an- thropologists and points to many of the ethical dilem- mas that attend the movement towards an intellectual property paradigm for promoting cultural self-determi- nation through control over cultural patrimony and the protection of local knowledges. The author's case, how- ever, may be as overstated as the rhetorical strategies to which he is responding. As a lawyer and an anthropolo- gist I think that the debates around intellectual prop- erty are neither sufficiently careful in their articulation of the law nor ethnographically sensitive to the con- texts in which intellectual property assertions arise as rhetorical claims. Let me begin with the law. In his title and introduc- tory paragraph, Brown conflates intellectual property with copyright, when in fact many of the assertions made by indigenous peoples have been made as inter- ventions in the fields of patents and trademarks. None of these domains of intellectual property provides abso- lute rights of exclusion; all are premised on a social bar- gain that grants specific rights and imposes specific re- sponsibilities on holders who exercise these rights in the public sphere. It is true, as Brown recognizes, that rights of proprietary exclusivity have been expanded over the course of this century at the expense of broader principles of public policy and that the public domain is increasingly endangered by the overreaching of industry interests. Ironically, as rights to real property have be- come more and more attenuated to accommodate social needs, rights to intellectual properties have become more absolute. It is precisely in such contexts that prop- erty claims become compelling as ideological vehicles with which to assert other interests and voice other concerns. We should, however, bear in mind the politi- cal positionings of those who articulate social needs in the idiom of rights and the imperative of making con- cerns known in authoritative discursive forms. Prop- erty, though, is more dynamic than its ideological de- ployment might suggest; it is constituted of flexible nexi of multiple and negotiable relationships between 208 I CURRENT ANTHROPOLOGY Volum e 39, Num ber 2, April 1998 persons and things that continually shift to accommo- date historical recognitions of prior inequities and cur- rent social needs. I am uncomfortable, also, with any vision of democ- racy which poses complete freedom of speech and full access to all cultural forms as the only response to cor- porate possession of culture, broadly defined. Absolute rights of private property and absolute rights of access to the public domain entertain only extreme points of a Eurocentric spectrum of possibility that needs to be challenged by the cultural mores of others. Peoples have other relationships to cultural forms?trust, secrecy, guardianship, stewardship, initiation, sacralization ? and obligations to relatives, ancestors, spirits, and fu- ture generations which make models of access and own- ership appear extremely impoverished. Such knowledge is not adequately understood as information, nor may its circulation be properly understood as speech. Indeed, Western notions of property are themselves not nearly as narrow as this dichotomy between exclu- sivity of possession and an unrestricted public com- mons would suggest. Western juridical traditions recog- nize relations of trust (express and constructive), fiduciary obligation, implicit license, breach of confi- dence, stewardship, and local observances of negotiated customs and ethics. Brown asserts that secrecy and strict control of knowledge contradict the political ide- als of liberal democracy, but trade secrets, corporate confidentiality arrangements, and the fiduciary obliga- tions of employees (not to mention ties of kinship obli- gation) have long been important means of maintaining the value of intangibles in industries and family firms in capitalist democracies. Certainly some holders of valuable knowledge and cultural forms have had greater resources at their disposal than others to preclude the dilutions and devaluations occasioned when these valu- ables are transformed into mere information freely available in the public domain. By using the idiom of property, then, many indigenous peoples may simply be taking the initial and necessary step of insisting upon a leveling of the playing field before working out the de- tails of particular contractual arrangements. Contracts based upon duress, u neon scion ability, coercion, and grossly unequal bargaining power are not enforced in most democracies, and our legal regimes are constantly forced to deal with demands for restitution and com- pensation in such instances. The trivialization of sym- bols, the disparagement of peoples, and misrepresenta- tions in the public sphere are also injuries that legal systems both recognize and redress in fields as diverse as tort, unfair competition, and trademark; First Amendment concerns are indeed raised and interests in freedom of expression balanced, but speech rights have never been recognized as absolutely trumping claims based upon injuries effected by expressive activities. The emphasis upon freedom of expression and its role within a democracy in this critique must begin with some assumptions about why we value this freedom and to what ends. Although there is a rich vein of phi- losophy and jurisprudence to be mined here, concerns with self-development, self-determination, and the pro- motion of dialogue and dialogic conditions must be cen- tral to issues of cultural representation. To the extent that anthropological records have been influential in characterizing and authoritatively representing the cul- tures of others in some jurisdictions, questions about the conditions under which such records were compiled and authored seem entirely apposite. To the extent that anthropologists were complicit in giving cultural iden- tity its contemporary juridical force and providing the means by which authorities fixed and defined such identities, it is unfortunate but not surprising that de- scendents of these anthropological informants have to claim these records as their property in order to prevent their continuing use to define their cultures. In this context, it is somewhat disingenuous to claim that, as ethnography moves in a confessional direction that sit- uates the author more squarely in the text, "the Other is claiming ownership of the textual simulacrum." This is to conflate two distinct historical periods and atti- tudes towards ethnographic authority and to discount the ways in which ethnographic fictions have histori- cally figured as truths in regimes of power and knowl- edge. Who determines where fiction resides and in what circumstances? Clearly, if we are to encourage demo- cratic dialogue, we must open these questions up to an "urgently needed public discussion about mutual re- spect and the fragility of native cultures in mass societ- ies." To grant native peoples full voice in these discus- sions, however, may well involve a preliminary recognition of proprietary claims?not as exclusivity of possession but as bundles of multiple rights and rela- tionships still to be delineated in contested and contin- gent dialogues that may well reshape the concept of property as we think we know it. PHILIPPE DESCOLA Ecole des Hautes Etudes en Sciences Sociales, Paris, France. 23 x 97 Brown must be commended for his fair and subtle treat- ment of a difficult topic usually fraught with controver- sial or shortsighted statements. I share most of his views, especially his strong commitment to the concept of the public domain, and would not have thought it necessary to add a comment had he not treated too lightly perhaps what I perceive to be one of the most serious consequences of what he calls "ethical absolut- ism," namely, the covert institutionalization of cul- tural apartheid as the postmodern form of racial apart- heid. Most claims advocating indigenous intellectual property rights studiously avoid formally defining the status of the populations to which special-right regimes should be granted. This is perhaps because the debate has been mainly restricted up to now to native peoples of the Americas and Australia, that is, to cultural and linguistic autochthonous minorities that are clearly identifiable within nations settled by Europeans. In the course of their struggles for land, dignity, and the recog- BROWN Can Culture Be Copyrighted?\209 nition of their cultural uniqueness, these minorities have often obtained special or derogatory legal statutes (concerning land tenure, civic duties, or personal rights) which contribute to setting them apart, socially and spatially, from ordinary citizens and render them more conspicuous as distinct subsets of the national commu- nities. But such visibility is not the norm everywhere in the world, and advocates of "differentialism " should perhaps pay more attention to the fact that cultural di- versity is not only an internal phenomenon typical of great melting-pot nations but also a feature of the whole wide world. Now, if there is a lesson that we have learned from anthropology, it is the impossibility of conceiving cultures as bounded territorial wholes de- fined by sets of substantive attributes. Who will decide, then, and how, that a specific social grouping does or does not qualify as a genuine native minority, ethnic nation, folkloric community, or whatever you choose to name the culturally unique potential beneficiaries of a special regime of collective intellectual property rights? Are we to consider the Basques (who are among the eth- nic samples of the Human Relations Area Files) as likely candidates? Or the Welsh, or the Ossetians, or the Kabyles? And if not, for what reasons? Are they not mi- norities within nations, with their own distinctive cul- tures and languages and a long history of difficult rela- tions with hegemonic states? Are they not as much entitled as the Apache tribes to demand control over all images, texts, ceremonies, music, songs, stories, sym- bols, customs, and ideas relating to them? And if the possibility for these types of cultural minorities to gain exclusive control over their "cultural property" is brushed aside as fanciful or ludicrous, is it not because an implicit distinction is made between, say, the Basques and the Kabyles, on the one hand, and the Apache and the Pintupi, on the other, regarding their very essence and claims to authenticity? If this is the case, it is quite worrying. Europeans have very painful memories (and nightmarish contemporary examples) of ideologies that claim ethnic purity as the basis for self- closure and self-fulfillment. Although the fiction of pu- rity was established mainly according to supposedly ra- cial criteria, cultural dimensions were also taken into account, especially in the German volkisch tradition, to underscore the uniqueness of communities and the ne- cessity of their segregation (Conte and Essner 1995). Even now, far-right movements such as the Front Na- tional in France disguise their acute xenophobia under claims that cultures should not be mixed for fear of los- ing the specific identities that they convey. To be per- fectly clear, I do not mean that advocating collective in- tellectual property rights over cultural patrimony for ethnic minorities is akin to racial segregation; rather, history has taught us that giving special status to spe- cific peoples is fraught with dangers, as it tends to per- petuate the idea of irreconcilable substantive differ- ences between fellow-humans. The collective debt that Euro-Americans have incurred while submitting native populations to different forms of genocide and ethno- cide will only be dispelled not by setting apart these populations through the implementation of specific le- gal frameworks but by a vigorous defense of what Brown calls "ethical realism." L. R. H I ATT 79 Add-on Way, London #W77 &4#, [/.#. 6 x 97 Suppose an ethnic nation wishes to prevent outsiders from (a) making money from its culture that could be made instead by its own members and (b) making any statement about the culture that the ethnic nation finds offensive. Anthropological associations might at a cer- tain point be expected to lobby against such protection- ism, since (a) their members'jobs are threatened and (b) they cherish critical inquiry and free speech. The indi- cations at the moment, judging from Brown's exem- plary essay, are that anthropologists are ready to aban- don both profession and libertarian principle in the perceived interests of those whose cultures form their subject matter. Support of the weak against the strong is a noble tra- dition, long entrenched in the ethos of anthropology, and altruism is a virtue not to be mocked. Brown, as I read him, has no quarrel with either. His argument, rather, is that legal and bureaucratic control of cultural property is likely to benefit the strong more than the weak, for example, entertainment corporations more than folk musicians. It would certainly benefit lawyers, bureaucrats, and political elites more than rank-and-file culture-bearers in nations and ethnic nations alike. Special pleading has an inherent tendency to backfire. The very values of the open society that have facilitated the exposure of iniquities perpetrated against indige- nous minorities must surely be compromised if the lat- ter are now encouraged to reconstitute themselves as closed societies. How can we avoid a charge of cynicism if we insist on freedom of information in the interests of an ethnic nation whose own bureaucrats practice censorship? How can we in good conscience acquiesce in a demand that nothing offensive be said about the cultural beliefs and practices of an indigenous minority while resisting similar demands from chauvinist and re- ligious interests among the settler majority? Sooner or later the right to censor statements about ethnic nations made by outsiders would be asserted against insiders as well. Whatever solidarist illusions may be cultivated for ideological purposes, nations en- compass competing social forces. Ethnic nations are no exception. And were a metropolitan government to au- thorise an agency within an ethnic nation to define its culture and decide what might and might not be said about it, in practice the external power would be favour- ing certain internal sectional interests and tendencies at the expense of others. By conferring upon an ethnic nation the right to suppress ideas and productions deemed to be offensive to its subjects, it would in fact be equipping dominant factions with a legal mechanism for discouraging dissidence and silencing rivals. With Brown, I strongly support measures designed to 210 I CURRENT ANTHROPOLOGY Volum e 39, Num ber 2, April 1998 protect creativity in indigenous communities against commercial exploitation and to ensure a fair return to native artists whose productions enter the marketplace. Such objectives can be achieved without a totalistic copyrighting of culture. Anthropologists who allow their compassion for the underprivileged to take them down that path are helping to lay the foundations of to- talitarian ministates. JEAN JACKSON Anthropology Program, MIT, Cambridge, Mass. 027% [AS.A. 27 x 97 Brown has written a thoughtful, well-researched essay on a very controversial topic. The basic issue he ex- plores is how best to protect indigenous peoples and culture in a world increasingly characterized by digital reproduction, commercial interests developing ever- new forms of prospecting, and ever-increasing appropri- ation of the exotic because it is authentic, curative, nat- ural, etc. The problem is a very real one (see, e.g., the contributors to Greaves 1994). We are right to be con- cerned about increasing corporate domination of knowledge?one of several ironies pointed out by Brown, given that some of the push for commodifica- tion and copyright comes from corporations seeking in- creased profits by having exclusive rights to produce medicines, cell lines, and the like obtained from indige- nous peoples. However, commodifying and copyright- ing culture as opposed to the products of a culture (such as varieties of corn) is full of hazards, regardless of how appealing the restriction of access to it may appear in the face of egregious cases of disrespect and exploita- tion. After reading this article we have a far better under- standing of the many dilemmas involved that have helped turn this issue into a lightning rod. Brown's dis- cussion deftly reveals why we?whatever our posi- tion?find this issue so threatening. Clearly, many scholars and activists will disagree with Brown's posi- tion, and this is as it should be, for several deeply held values are in conflict. Knowing why and how seriously irreconcilable some of these values are helps to keep knee-jerk responses to a minimum and to facilitate the search for more workable solutions. A quibble: I find Alan Wolfe's critique, cited by Brown, seriously flawed and think that he could have made his argument without citing this particular exam- ple of neoliberalist thought. B. G . KARLSSO N Seminar for Development Studies, Uppsala University, P.O. Box 514, 751 20 Uppsala, Sweden. 20x97 Bringing culture into the domain of rights, ownership, and legislation is indeed, as Brown suggests, deeply problematic. Brown also raises several important ques- tions difficult to handle for any anthropologist engaged in research on indigenous people. Even so, he seems to enter the discussion with the prime aim of provoking advocates of indigenous people's rights, whom he de- scribes as "romantic social critics." Instead of slogans and "polemical romanticism" he calls for a return to a "realist perspective" considering these questions in all their "ambiguity and nuance." But by departing from a simplistic polarisation of positions (realism vs. roman- ticism, analysis vs. slogans) he does not take us far in that direction. Reading Brown's article, I cannot help wondering why a person called upon to defend the sacred principles of liberal democracy chooses to make Native Ameri- cans his target. Brown has no problem with the state's right to withhold "sensitive" information on "matters of national security" while getting terribly worried over the Hopi and Apache peoples' resentment about sharing information relating their religion. One would assume that a civil rights activist would have it the other way around. I also find it striking that while Brown holds democracy sacred, he fails to extend similar principles of respect and tolerance to others. When Native Ameri- cans oppose New Age groups' misuse of their sacred rit- uals, Brown remains silent and without compassion. He argues instead that the most interesting thing about this is that the native religious leaders oppose such ap- propriation on the ground of the inherent power of these rituals and not because the New Age rituals are "bo- gus." Another problem with Brown's approach relates to his assertion that indigenous people's claim for cul- tural property rights is an opening bid in political horse- trading. This again is an oversimplification, leaving out existential dimensions having to do with respect, recog- nition, and identity. This also reflects Brown's argu- ment that as most native peoples face threats to their economic and political sovereignty, they have little time to "fret" over issues of cultural properties (sug- gesting that such concerns are a luxury that only better- off indigenous people in the "West" can afford). That indigenous nations even face genocide does not make them less concerned with cultural matters. In fact, be- cause having a culture of one's own is crucial to con- temporary claims of self-determination, tremendous energies and emotions are invested in things like pro- tection of language or preservation of traditional reli- gious practices and symbols. When most anthropologists, myself included, argue against or problematize earlier notions of culture as a coherent, bounded, and distinct "property" of a people and instead talk about culture in terms of construction and process (as culture-in-the-making), does this make us enemies of those "unenlightened natives" who con- tinue to reify culture and claim a culture of their own? Brown thinks so, and casts the "cosmopolitan" scholar against the "indigenous" activist. Yes, there are prob- lems in keeping culture an analytic concept when cul- ture has turned into a major site of conflict and popular mobilisation. Rosemary Coombe, whose work Brown makes use of, argues that such antiessentialist claims BROWN Can Culture Be Copy right ed?\1\\ that culture is constructed and mobile always beg ques- tions of perspective?for whom and in what circum- stances is it so? And she asks, "How does this claim sound in the struggles of those for whom 'culture' may be the last legitimate ground for political autonomy and self-determination?" (Coombe 1997:93). Brown avoids these critical matters. He further too easily reduces the indigenous stance to one of cultural "essentialism." I think that Arif Dirlik is right in arguing that the indige- nous voices in fact are quite open to change, and what they insist on is not "cultural purity" as such "but the preservation of a particular historical trajectory of their own" (1996:18). It then becomes crucial to ask why in- digenous peoples increasingly feel obliged to claim con- trol over what they see as their culture. What is the so- cial and historical context for such assertions? In India the debate over indigenous cultural property rights is largely absent. During my work among the Rabhas or Kochas, an indigenous people in India, I have never been questioned over rights to my field notes, photographs, publications, etc. And I do not know how I would respond to possible later requests perhaps based on the argument that the material was obtained under coercive circumstances. As a sahib I have indeed been on top of things, and if a person had nothing else at hand he or she would certainly spare time to try to respond to my questions. Power is an issue here, but to describe heldwork as an exploitative encounter between oppres- sor and oppressed is indeed, as Brown suggests, to take things too far. Brown is also right in acknowledging the agency and strategies of the "objects" of anthropologi- cal inquiry, something which Roger Keesing has brought attention to in his work on the Kwaio people. I am looking forward to the day when Rabhas themselves rather than any government department or forest au- thority are entitled to issue research permits and con- trol access to their forest villages. DARRELL AD D I SO N POSEY Centre for the Environment, Ethics, and Society, Mansfield College, University of Oxford, Oxford, U.K. 12 xi 97 Brown argues that "the debate over intangible cultural property as it has been conducted by indigenous activ- ists has tended toward a polemical romanticism that produces memorable bumper-sticker slogans but little in the way of sober reflection on the difficult balancing act required to formulate policies that provide reason- able protection for minority populations while main- taining the flow of information essential to liberal de- mocracy." This is not quite the case. Unfortunately, Brown has chosen examples to give the impression that indigenous groups are making de- mands that will ultimately restrict the liberties and freedom of others. He ignores the sophisticated debates on intellectual, cultural, and scientific property in the United Nations Working Group on Indigenous Popula- tions (although he cites a study by the Special Rappor- teur) and the protracted discussions associated with Ar- ticle B.j of the Convention on Biological Diversity. He also fails to consider the complex critiques put forth in numerous indigenous documents and summarized in reports of the Coordinador de Organizaciones de los Pueblos Indigenas de la Cuenca Amazona Regional Meeting on Intellectual Property Rights and Biodiver- sity, the UNEP Consultations on Protection and Con- servation of Indigenous Knowledge, the Suva Declara- tion, the Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples (mentioned briefly in a footnote), the Indigenous Peo- ples' Biodiversity Network, and the Charter of the In- digenous-Tribal Peoples of Tropical Forests?to name a few. These documents show that indigenous "activists" are well aware of the dangers of intellectual property rights. Indigenous groups have made it quite clear that the concept of "property," and especially individual property, is alien and antithetical to their collective val- ues. They have repeatedly explained how many (but not all) songs, drawings, ceremonies, plants, animals, and designs are inalienable and, therefore, can never be property. And they point out that individuals who use or display them are the "holders," "trustees," or "stew- ards" for communities, lineages, ancestors, gender groups, future generations, or even spirits. Furthermore, indigenous peoples have been explicit in showing that "intellectual" aspects of culture cannot be separated from "physical," "natural," or "spiritual" elements be- cause culture is an extension of nature (and vice versa). Thus "intellectual property" is doubly inappropriate in that it excludes plants, animals, and knowledge about them (seeds, soils, minerals, and management practices, etc.)?all of which are inextricable elements of a soci- ety's "intellect." Brown, in contrast, reduces intellectual property rights to a question of copyright protection over mate- rial expressions of culture. Most indigenous groups are more worried about patents than copyrights. This is be- cause patents are much more powerful tools of monop- oly and globalization. Even so, some very innovative proposals have been put forth for the development of community intellectual property rights, applying know-how and trade secrecy for the protection of tradi- tional knowledge and genetic resources, and adapting copyright concepts to community-controlled data. These are recognized by indigenous groups themselves as dangerous experiments but are anything but "ex- tremely naive" proposals as Brown claims. Brown also states that "although advocates of ex- panded intellectual property laws typically denounce capitalist commmodification, they implicitly encour- age the translation of ethical and political discourse into the language of commodities." This may be true in some cases, but the majority of those who discuss intel- lectual property rights tend to employ the political dis- course of human rights: rights to land, territory, and re- sources, rights to full disclosure and prior informed consent, rights to cultural integrity and customary prac- tices, and rights to equitable benefit-sharing and control 212 I CURRENT ANTHROPOLOGY Volum e 39, Num ber 2, April 1998 over access to "traditional resources." It may be true that in the rarefied discourse of "cosmopolitan schol- ars" (Brown's term, not mine) intellectual property rights have been inadequately analyzed, but that is in part because anthropology has not kept up with the rap- idly advancing international debates of indigenous peo- ples themselves. And, furthermore, anthropologists have restricted themselves to the theoretical discourses in their favorite academic journals. The intellectual ac- tion is in fact in places like the World Trade Organiza- tion (discussions on sui generis systems of intellectual property rights protection), the FAO (expansion or re- conceptualization of farmers' rights), the CBD (interses- sional process to implement Article 8.j), and ECOSOC (debates on the Draft Declaration of Rights of Indige- nous Peoples)?not to mention the myriad conferences and workshops that indigenous peoples themselves or- ganize to discuss copyrights, patents, community rights, genetically modified organisms, biosafety, par- ticipatory democracy, etc. Brown asks: "What [will] history or anthropology be- come when scholars are prevented by law from writing accounts specific enough to evoke the religious or polit- ical practices of protected native populations?" One an- swer could be: disciplines that finally have to negotiate the terms of their intellectual pursuits with those who are affected by the results of their studies?and, as a re- sult, begin to develop questions and methodologies that address the political problems that indigenous peoples still face. It would then be impossible for anthropology to ignore the intellectual contributions of indigenous scholars, faith-keepers, and political leaders that may be well ahead of the debates academics think they are pio- neering. Despite what may seem harsh comments, I am basi- cally in sympathy with Brown. He is right to warn us of the serious threats from intellectual property rights. He is also justified in pointing out the urgent need for sophisticated analysis of "common property" concepts in globalization debates. I also heartily endorse one of his principal conclusions: that "pragmatic ethical pro- tocols" (codes of ethics and standards of practice) for science and industry are far more desirable than radi- cally expanded intellectual property rights. The Interna- tional Society for Ethnobiology has taken nearly a de- cade to develop a draft Code of Conduct that will be debated during its next world congress, to be hosted by the Maori Congress of Aotearoa/New Zealand. A Maori lawyer co-chairs the Ethics Committee, and the ethno- biologists will be in the minority at the Congress for the discussion. That figures to advance understanding, re- search, and respect for rights in ways that laws never will. WILLOW ROBERTS POWERS Department of Anthropology, University of New Mexico, Albuquerque, N.M. 87131, U.S.A. (wrpowers@trail.com ). 21 x 97 Brown's essay is a cool-headed discussion of the broad array of issues in the debate regarding intellectual prop- erty rights. The debate is, I feel, somewhat more posi- tive than Brown has portrayed it. Copyright will not gain additional respect for indigenous people, but its discussion has already brought serious attention to their claims. It is, however, useful to take up the differ- ent forms of cultural information separately; the follow- ing comments relate specifically to written material. Access to information is a core issue in most socie- ties, however differently phrased and differently con- structed. Intellectual property rights (such as copyright, patent, trademark law) are, as Brown notes, economic in scope. Copyright ensures that individual creators have the incentive to allow copies to be made available to the public. Access to information is thus never pre- cisely free. Costs are involved in locating material and seeing it. Such costs are a control factor, though librar- ies and archives?paid for by taxes, organizations, and philanthropy?are sources available for reading freely. Market or political forces constrain the free flow of in- formation. New technologies?printing presses, cameras, photo- copying machines, computers, etc.?continue to ex- pand the availability of materials. These are not free ei- ther, but they make access easier and bring it closer to home. They also raise new issues for copyright, control, and economic benefit, and these issues are argued and settled, usually in the courts and most often by corpo- rate giants. Protection of individual (or corporate) rights in creation has been under discussion since the 15th century (currently, "creations" such as databases are be- ing examined); it is a fluctuating, ongoing dialogue, changing as society and technology change. Copyright and the use of materials through libraries and archives exist in a socioeconomic context. An ex- amination of these same issues in, say, France or Egypt would show differences in such concepts as authors' creative rights and public domain. The burgeoning field of electronic communication (leaving aside any ques- tions about the content or context of that information) illustrates the competing forces of corporate interests, rights to privacy and to information, individual eco- nomic claims, concerns of community or religious groups, and questions about preservation of information for the long term. Discussions are ongoing over the boundary between what is public and what private in- formation, between "free" and "costly" access, between secrecy and openness, between what may inform and what may harm. There is no reason that native groups should not ar- gue these issues in the same courts and in the same manner as all the other parties to this dialogue. If, as Brown notes, secrecy is "of course" warranted for na- tional security, there seems no underlying reason it should not also be warranted for any other culturally de- termined issues of sensitivity, as it is for privacy. By the same token, there is no reason that the legal solutions will be any more satisfying, any less ambiguous. The law is a blunt, two-edged, and expensive tool for decid- ing the issues. Brown, noting the control that copyright exerts over access and hoping that it is not expanded by new Intel- BROWN Can Culture Be Copy righted? 1213 lectual property rights laws, suggests a joint steward- ship of cultural information. His point is that informa- tion should be free. This is a cultural ideal shared by the nation's archivists and librarians. It is a crucially impor- tant ideal which, like community harmony, is much honored in the breach. With regard to archival materials, there are the begin- nings of new approaches. Archivists have started dia- logues on the issues of access with neighboring, and sometimes distant, American Indian communities. The Special Collections director at the Cline Library, North- ern Arizona University, has opened discussions with the Hopi Tribe, seeking information and joint solutions. John Adair's papers have been acquired by the Wheel- wright Museum in Santa Fe with an agreement to work out an access and use policy with one of the communi- ties in which Adair worked for materials relating to that community. Tribal archives across the United States are grappling with incorporating preservation of written records into tribal budgets and in addition to an oral his- tory background. Native archivists are at work in an- thropological and other archives. These are models to look at in this dialogue. The issues relating to written materials as I hear them are specific to each tribe or pueblo, tend to be dif- ferently perceived by native communities than by orga- nizations or individuals, relate often not to closed but to appropriate access, are often concerned more with cultural than with economic points, are broadly con- strued to include all "others" including other tribes, and do not imply total closure of all information for all time. Non-native participants in this dialogue are equally responsible for raising issues and questions, as Brown has done, that are of concern for long-term solu- tions. There are many opinions and many stakeholders. The quest is for balance. Appropriate access to and use of information is part of this quest, for which the law is not an appropriate means. LAWRENCE RO SEN Department of Anthropology, Princeton University, fnmcefoM, #.J 0&344-7077, [/.S.A. 10 x 97 Not for the first time in history, the fundamental issues that surround the concept of property?who may exer- cise power over what, for what purpose, and by what right?coincide with technological development, com- mercial expansion, and cross-cultural contact. It mat- ters, however, which of several basic concepts of prop- erty we employ. If ownership is conceived not solely as control over an object but as the relationships among people as they concern that object, the forms of proprie- torship can be seen as inextricably bound to the politi- cal, the moral, and the emotional. To begin an under- standing of changing concepts of property with this relational aspect in view may, of course, have a dra- matic effect on the very shape of one's analysis. Brown's splendidly sensible analysis avoids the un- ambiguous results that single-minded ideologies so of- ten demand. At the same time, it is of crucial impor- tance in any discussion of property?particularly as it relates to indigenous peoples?how one constructs a set of appropriate analogies. In addition to casting issues of property in terms of relationships rather than control over objects it makes a great difference whether the ob- jects currently in dispute are likened to forms of prop- erty recognized in an existing legal regime or symbolic of a deeper political history. If, for example, in any such discussion one replaces indigenous intellectual prop- erty with a form common in the West?music, litera- ture, design?it might seem, given Brown's criteria, that no system of legal protection could ever succeed: the same criticisms he raises for indigenous property? that someone will always modify the original or hide it (digitally or otherwise) or that borders are invariably porous?would apply equally to similar Western prop- erty forms. But his article (and my comment) are copy- righted by the Wenner-Gren Foundation, and we both presumably have some confidence in these laws or we would not have signed over the rights. Thus from the outset it may be well to place a similar degree of confi- dence in the concept of protection and then sort out its appropriate forms in each circumstance?or forth- rightly criticize the very concept of protectible property on deeper philosophical and political grounds. Here the issues affecting indigenous intellectual prop- erty begin to resolve themselves into two related con- siderations. The first has to do with sovereignty. Brown does not mention this issue, but surely the question of whose laws will apply suffuses the entire topic. If indig- enous property rights are seen as a subject matter over which some polity will exercise jurisdiction, then it may be necessary at the outset to come to grips with the appropriate distribution of powers as between indig- enous and superordinate polities. The issue of intellec- tual property may, of course, serve as a vehicle through which such power to control one's own affairs is itself developed. But before one can get to questions such as the use of common accords or the distribution of pow- ers through applicable laws, greater recognition and reg- ularization of the powers of indigenous peoples need to be addressed (see Rosen 1997). This, in turn, raises the second question: Is it in- tergroup relationships that are at issue here or only the control over property-like objects? If it is the former, then, as Brown himself suggests, we are not bound to all-inclusive deference or hegemonic control as our only options: It is possible to take issues one at a time having laid the groundwork for negotiated accords such as those that inform a number of transnational agree- ments. Differences of power will not predetermine out- comes as long as developing international custom sup- ports an array of accords from which parties may choose. And specific issues will benefit from the spe- cific attention they require as well as from the general context of internationally recognized intergovernmen- tal agreements. Indigenous intellectual property thus confronts us with a new form of an old puzzle: To what extent shall the internal rules of another group be accorded defer- ence or constitute the subject of good-faith bargaining 214 I CURRENT ANTHROPOLOGY Volum e 39, Num ber 2, April 1998 among sovereign entities? If the model of negotiation prevails, each troublesome issue may begin to be seen in terms of differentiated political powers and the scope of government-to-government negotiation. The resul- tant process may then partake of greater scholarly and political realism than the extreme positions that Brown so rightly challenges. FERNANDO SANTOS GRANERO Smithsonian Tropical Research Institute, P.O. Box 2072, Balboa, Panama (santosf@tivoli.si.edu). 14 x 97 Brown's thorough analysis of current attempts to ex- pand the notion of copyright introduces much-needed sense and sensibility into a debate that frequently seems to be disconnected from the harsh realities of an increasingly global world. Approaching the subject from different angles, Brown adds layer after layer of solid ar- gument to demonstrate the negative consequences that attempting to copyright the cultural heritage of minor- ity groups could have for free speech, the exchange of information, and, more generally, the "status of the public domain." What is especially commendable is that he opposes this copyrighting while leaving no doubt that he firmly condemns the appropriation by large corporations of indigenous cultural products for commercial use. More laudable still, he avoids offering ready-made solutions for a problem that, as he con- stantly reminds us, is extremely complex. Here I would like to elaborate upon five very practical issues that derive from the fluid character of cultures. I consider these to be central to the problem being dis- cussed, yet they have only been tangentially touched upon, or implied in passing, by the author. As Brown states, cultures "lack clear spatial and tem- poral boundaries." Even the social groups that embody them rarely have clear-cut boundaries. More com- monly, there is a gradient of more or less inclusive groups that live in a certain region, have similar histo- ries, and share many cultural traits. For instance, the Aguaruna people of the Upper Mayo River studied by Brown are a somewhat distinct offshoot of the Aguar- una of the Maranon River, who in turn have relation- ships of alliance and hostility with a number of other Jibaro-speaking peoples on both sides of the Peruvian- Ecuadorian frontier. Whose culture should we copy- right? That of the Upper Mayo Aguaruna, that of the Aguaruna as a whole, that of the Aguaruna and the Huambisa, who are now organized in a common ethnic federation, or that of the Jibaro as a whole? Not only do cultures lack clear boundaries but, as Brown stresses, they "freely influence, and are influ- enced by, social interactions with other groups." Cul- tures do not exist in a vacuum; they are constantly nur- tured by contact with other cultures. No people exists that can claim that its culture is a pristine product, un- contaminated by foreign elements?least of all Amerin- dian peoples, who share a high proportion of traits, whether myths, rituals, kinship systems, scientific knowledge, or material culture. If we were indeed to copyright indigenous cultures, to which Amazonian people should we grant rights to, let us say, the halluci- nogenic ayahuasca vine? To which Northwest Coast people should we grant rights to potlatch rituals? Or, for that matter, to which Andean people should we grant rights to chicha or maize beer? A culture is "a flexible set of understandings, disposi- tions, and behavioral scripts" shared by a given people. However, cultures are not external entities distinct from their bearers. Although cultural forms may be col- lectively constructed, cultural products are always the output of particular individuals. In fact, among Amerin- dian peoples an individual's high prestige is very much dependent upon masterful production, whether of a bas- ket, a dugout, a garden, a song, or a mythical narration. Cultures are not merely replicated ad infinitum by their bearers but constantly enriched by the latter's creative acts. Thus, if it were possible to copyright cultures, who would reap the profit from the marketing of specific products, the collectivity or the individual? Although cultures have been (and unfortunately con- tinue to be) treated as fixed, bounded realities, recent studies have recurrently demonstrated that cultures "change through time" and are always in the making. If copyrighting the culture of an indigenous people were at all possible, which culture should be copyrighted? the one at the time of European invasion, the one that emerged after subjugation, decimation, missionization, and resettlement, or the one existing at the time the copyright is granted? Should abandoned traditional practices, some of which are now regarded with embar- rassment by contemporary Amerindians, be included, or should only "sanitized" versions of culture be copy- righted? Moreover, although the relationship between indige- nous peoples and national societies is asymmetric, cul- tural flows have not been unidirectional, benefiting only the latter. There are numerous Western cultural traits that have been adopted by indigenous peoples not as a result of external pressures but for their beauty, their usefulness, or their symbolic power. Beads, horses, and writing are good examples. Are these traits going to be abandoned for the sake of purity, or are they going to be included in the indigenous copyrights? Whatever may be the answers to the above issues, they bring to mind one last question: Are not those at- tempting to copyright culture running the risk of trans- forming what are still vigorous cultures into fossilized relics? CARLO SEVER: Laboratoire d'Anthropologie Sociale, 52, rue de Cardinal-hem oine, F-75005 Paris, France. 3 xi 97 Brown's paper raises important questions, political as well as ethical, and does so with honesty and clarity. It is evident that the confrontation of the Western and the American Indian points of view in this context gener- BROWN Can Culture Be Copy righted? 1215 ates two paradoxes. One originates from the attempt to consider a culture as a collective author in order to pro- tect it. From this perspective, the more one tries to pro- tect culture?which should mean "to preserve it as it is"?the more one transforms it into a Active construc- tion very different from reality. The second paradox originates from the attempt to apply criteria of legiti- mate property (and legal conditions of trade)?typically applied to merchandise made to be exchanged in a mar- ket?to religious artifacts, which, by definition, are made for ritual performances and do not belong in the market. An illustration of this situation is the notion of "cul- tural heritage" as applied to American Indian societies. At first sight, this notion seems obvious. Everybody is committed, at least in Europe, to the preservation of the cultural heritage of a nation. If the Italian or French gov- ernments have the right to prevent, for instance, a Mi- chelangelo or a Chardin from being commercialized on the international market, one does not see why the American Indians should not be keen to protect their own techniques, religious beliefs, traditional narratives, and works of art. The assimilation of a native culture to a collective author, however, can also have near-absurd consequences. The idea of having not only documents, drawings, and artifacts but also traditional "ideas" pro- tected by intellectual copyright seems a self-defeating strategy. How is language or thought itself to be pre- served from the risks implied by communication? Since images are made to be seen and words are made to be exchanged, it is difficult to decide what images or what words must become someone's exclusive property. However, it is one of the merits of Brown's article to make it clear that there is more to this question than mere propaganda or political naivete. Few anthropolo- gists would deny that "complete freedom" in the field of information and marketing would expose American Indian societies, as in the past, to all kinds of injuries and theft. Distinctions and clear thought are everywhere diffi- cult to achieve in political debate. In this respect Brown's paper is useful in that it clearly establishes the premises for a crucial debate. Pursuing this debate, I would like to add two remarks: 1. The "implicit assumptions" emerging from the dis- cussion of the protection of ethnic minorities (at least in Brown's account) seem reluctant to make any dis- tinction between scholarly examination and analysis of cultural facts, imitation or theft of cultural items for commercial use, blasphemy, and even sacrilegious cari- cature of rituals. However, it is one thing to study, with the permission of the local authorities, the meaning of a religious object and quite another to caricature a ritual. Scholarship and blasphemy are not the same, and this holds true, in my experience of fieldwork with the Kuna, for some Indians as well as for some anthropolo- gists. In this respect, Brown's account seems to me too pessimistic. 2. On the anthropologist's side, I see another risk. Op- posing religious Amerindian traditions to "scientific- democratic and liberal" Western conceptions would be unfair for at least two reasons. First, nonreligious per- sons exist in Amerindian societies, too, and they should obviously have a right to express their views just like the others. Secondly, Amerindian religious customs should be compared with Western religious traditions; the comparison between the intention to put some In- dian "ideas" under the control of an intellectual copy- right and the free use of syllogism "invented by the Greeks" is not entirely correct. While a Western scholar would certainly agree that anyone is free to use a syllo- gism, I wonder whether any use of Western religious no- tions would be considered acceptable by Western reli- gious authorities. Indeed, it would be hard to deny that we seem to ac- cept "syncretism" only when the contact of different cultures is realized under the domination of a Western framework. When the Indians of Mexico worship a Vir- gin Mary unconventionally there is no question but that this results in a local variety of Christianity, not a continuation of Nahuatl cults marginally including cer- tain Christian elements. When this is not the case?as in Haiti, where Christianity was really subverted by Af- rican traditions?religious authorities do not hesitate to respond violently. In order to repress too free a use of Christian images, artifacts, and such Christian religious concepts as "communion" and "repentance of sin," the Catholic bishop of Port au Prince organized an immense auto dafe?a spectacular burning of "contaminated im- ages" of saints in the public square?as recently as in the early forties (Metraux 1958). In short, when the cul- tural contact happens under the control of Western reli- gions, we call it "syncretism"; when it escapes it, we call it "blasphemy." Religious intolerance, in our tradi- tion as elsewhere, has little use for legal rights. DAVID J. STEPHENSON JR. J&&8 W. GramMmgDr., Denver, CoZo. 802J6-2444, U.S.A. 11 xi 97 This thoughtful, provocative article is a valuable contri- bution to the ever-widening conversation about the in- tellectual property rights of indigenous peoples. Brown graphically supports his healthy skepticism of legal schemes to control cultural appropriation, or misappro- priation, with a wide spectrum of poignant, timely con- crete examples. The thrust of his article is to force criti- cal reflection in an arena where it is much needed, because without such critical reflection the notion of intellectual property rights for indigenous peoples will be abused to the point that it eventually is eviscerated. Brown's clarion call is reminiscent of the arguments of the more moderate and dispassionate commentators during the tumultuous sixties in the United States that the country needed fewer uncritical lovers and unloving critics and more critical lovers. Brown is a critical lover. He offers positive insights and construc- tive suggestions (e.g., ethical realism and frameworks based on joint stewardship) alongside his thorough cri- 216 I CURRENT ANTHROPOLOGY Volum e 39, Num ber 2, April 1998 tique of overzealous advocacy for native intellectual property rights. His concerns about how to reconcile Western notions of intellectual property with native claims to the right to protect virtually everything that may be deemed part of the broad fabric of "culture," including thoughts, is consistent with my own cautions about the dangers posed by the inherent vagueness and overbreadth of the term "cultural patrimony" in the Native American Graves Protection and Repatriation Act (Stephenson 1996) and the arbitrariness and overbreadth of the In- dian Arts and Crafts Act recently detailed by Gail Shef- field (1997). Brown's call for ethical realism is echoed in my prediction that the most successful strategies for protecting, conserving, and compensating cultural prop- erty "are more likely to be those that translate broad, lofty principles into local sui generis initiatives" (1996: 118). Brown's observation that zealous protection of in- tellectual property rights is inconsistent with other highly valued principles, such as freedom of expression, as reflected in the First Amendment, is encapsulated in Sheffield's comment that "the right to foreclose anoth- er's use of Indian identity will conflict with that indi- vidual's right to freedom of expression" and her reflec- tion on David Lange's (1981:147) comment that "the growth of intellectual property in recent years has been uncontrolled to the point of recklessness" (1997:141). At the same time, it is ironically precisely the broad- ening of traditional intellectual property concepts in re- cent years, brought on by such technological revolu- tions as the Internet and computer software, that offers promise for finding a proper fit between traditional legal rules for protecting intellectual property in the Western tradition and the integrity of the attributes of tradi- tional cultures, however intangible those attributes may be (Stephenson 1994). Because the concept of intel- lectual property in Western law is itself undergoing such rapid transformation, it would be premature to dis- miss its potential utility for protecting at least the more measured attributes of native cultures identified in the Bellagio Declaration about which Brown comments fa- vorably. By the same token, Brown's analysis might have ben- efited by a consideration of efforts to develop alterna- tives to traditional intellectual property, such as Darrell Posey's concept of "traditional resource rights," as more appropriate for non-Western traditions (Posey and Outfield 1996). On the whole, however, I applaud Brown for thor- oughly exposing important issues that desperately need more critical reflection. strument for the recognition of rights of a "cultural" na- ture is merged with the anthropologists' perpetual fash- ioning of their relations with those whose cultures they study. The curator's response was not to destroy the pa- pers or prioritise the rights of the donor but to pose questions about the conduct of relationships. This is a sensibility with (so to speak) a life of its own, a triumph of anthropological theories of culture and of two de- cades of enhanced sensitivity to professional practice. It is interesting that it should be a museum example, for here "cultural property" (in tangible items) flourished as an issue long before it became blown up into a ubiq- uitous index of ethical awareness (apropos tangible and intangible items alike). (Busse [1997] notes that in Pa- pua New Guinea the change from the language of antiq- uities to the language of national cultural property, and thus cultural heritage, dates from 1965.)' The intellectual property rights problematic has in ef- fect taken over others, and Brown appraises the conse- quences of this. It is an important task. Thus property discourse replaces, he argues, what should be discussion on the moral implications of subjecting people to un- wanted scrutiny or sequestering public-domain infor- mation. It runs the danger of what he wonderfully calls the moral alchemy of converting multiple interests and questions about fair use and fair expression into narrow disputes over commodities or of overlooking the "com- plex human motives" that coalesced at the time when ethnographic items were obtained or of abandoning the conventions of "reasonable procedure" or a common- sense approach to complex ethical issues in favour of comprehensive claims to ownership. I might add to these the late-20th-century money effect; bodies such as the British Economic and Social Research Council, by analogy with commercial companies, may use the rubric of intellectual property to reify national interests in the nationally funded. While this proprietorship re- fers in the first place to research with a financial poten- tial, in the ESRC case it sits side by side with require- ments that research-generated information (including primary data from interviews or diaries) be datasetted and thus archived for use by third parties. No mention is made of intellectual property rights here except as a "problem" which may affect the deposition of data. The issue is not claims to original ownership but the asser- tion of national interests against other claims to the country's store of information. Brown dryly observes that in the mad scramble for control, ethno-nationalists are similarly promoting ideas about cultural protection?the collapse of the MARILYN STRATHERN Department of Anthropology, University of Cambridge, Cambridge CB2 3FR, U.K. 26 x 97 Brown's opening remarks pinpoint an inflationary di- mension to recent discussions of intellectual property. The idea of intellectual property rights as a potential in- 1. And enshrined in the 1970 UNESCO convention on the illicit transfer of ownership of cultural property, part of the postwar an- thropological effort to put "culture" into the international vocabu- lary. But if the formula (cultural property) was relatively new, some of the sentiments concerning the appropriation of people's heritage had been long in place: see Winter (1993) on Greenfield's (1989) The Return of Cultural Treasures. Busse notes that the Ordinance re- lating to Papuan Antiquities dates from 1913; the issue then was not claims to original ownership but the assertion of national inter- ests against other claims to the country's "antiquities." BROWN Can Culture Be Copyrighted?\1\l idea/expression distinction or the abandonment of time horizons?which, converted into intellectual property rights regulations, would certainly serve the interests of corporations. This is a judicious and cool account. If it leans to- wards particularly American cultural pragmatics in its concerns for native peoples, Brown's careful weighing is also more generally useful. On the one hand, he advo- cates compensation mechanisms for the commercial use of knowledge/artefacts and clear guidelines for col- lecting culturally sensitive ethnographic data. On the other hand, he is in despair over some of the broader debate about cultural appropriation, the very kind of wider con text ualisat ion that anthropologists normally favour. He sees anthropologists abandoning social cri- tique when it comes to ethno-nationalist claims to en- during rights. Yet this politics has its own social reality: people who feel that their ancestors were duped do not want their descendants to have been. Brown does appeal to "situational pragmatism"; a multicultural democ- racy implies weighing the benefits of special rights against the injury done to notions of equity and fairness. This of course is an old political-economic issue that recurs at every angle or joint in the social body. I have a single comment: one needs to pick one's so- cial domain. In terms of the many decision-making con- texts Brown summons (e.g., the ethics of Native Ameri- can churches' using Christian symbols), he is absolutely right to point to the excesses and absurdities of "the dramatic expansion of the intellectual property of na- tive people." But if we shift into the world of already existing inequities, where?to use a romanticist meta- phor?it is hard to make one's voice heard, then intel- lectual property rights is a forceful sound bite. Precisely because it rolls so much up into a bundle, precisely be- cause it has rhetorically inflationary potential, and pre- cisely because it invokes property, it is a political slogan of power. Power is not always so easy to come by. The anthropologist just needs to be careful not to mistake slogan for social analytic. DONALD TUZIN Department of Anthropology, University of California, San Diego, La Jolla, Calif. 92093-0532, U.S.A. (dtuzin@ucsd.edu). 19 x 97 In these postmodern times, anthropology, to quote the Lord Ko-Ko and friends, finds itself in a "pretty how-de- do." The debates over cultural copyright are filled with strange bedfellows and moral dilemmas. Having barely completed the task of dereifying culture and discredit- ing the concept of "the tribe" as an instrument of 19th- century imperialism, anthropology, at times, seems ready to welcome back such notions in order to defend intellectual property rights on the part of indigenous collectivities and the corresponding right to prevent "outsiders" from emulating or commercially exploiting their cultural patrimony. The role of indigenous advo- cate may come easily to anthropologists, considering the practical, sentimental, and philosophical ties that bind them to the peoples they study, but, as Brown's masterful analysis shows, in the case of the more draco- nian versions of "cultural copyright" such partisanship can run afoul of principles of equal or more compelling value, such as public domain, fair usage, and, perhaps above all, the preservation of cultural knowledge in all its variation. Furthermore, even if one were to accept the validity of radical claims, such as that of the Apache tribal con- sortium, who gets to speak for "the tribe"? Regardless of whether such spokespersons are designated by demo- cratic elections or by nondemocratic customary proce- dures, as social actors they are subject to situational constraints and temptations that could result in faulty decisions; only a naive observer?a fortiori a poor eth- nographer?would mistake rhetoric for the complex motives that drive high-stakes culture politics in mat- ters of copyright and other new arenas. And yet, this said, who should determine whether and to what extent culture should be copyrighted? What solomonic process will sort out and create enlightened, sustainable policy upon the balance of rights among individuals, culturally identifiable collectivities, commercial interests, and the long-term public good? For the present, at least, these issues are being decided in the courts, but in the end it is posterity?the descendants of ourselves, as an- thropologists, and those of the peoples we study?who will judge whether, in retrospect, cultural privacy was worth the price of cultural oblivion. Brown's sane and judicious study is not only a timely wakeup call for anthropologists to ponder the poten- tially grave implications of cultural copyright legalities for the future of the discipline; more positively, through detached, clearsighted renderings it discloses the very anthropological saliency of the value contests sur- rounding cultural copyright. Do we glimpse, here, a re- search orientation constructive for anthropology in an era when so many old disciplinary verities no longer apply? If so, this would be good news, indeed, for "cul- tural copyright" is only one in an emergent family of issues that pose important challenges and opportunities for future anthropology. For instance, how far does cul- tural relativism go in defending practices, such as in- fibulation and clitoridectomy performed on little girls, that seem to offend more universalistic values? Simi- larly, what should be anthropology's stance on the knotty issue of cultural asylum?as, for example, in the case of the Saudi Arabian woman who sought Canadian asylum on the grounds that Saudi culture deprived her (as a woman) of her basic human rights? On a much larger scale, the combined effects of runaway popula- tion growth and prospective global warming imply that the not-too-distant future will witness population dislo- cations of monumental proportions. Never mind indig- enous intellectual property rights; how defensible will exclusionary real property rights and sovereignty be, for the autochthone, when a growing proportion of the hu- man race, with rights of its own, is beating on the door? And again, as the loss of biodiversity on the planet even- 218 I CURRENT ANTHROPOLOGY Volum e 39, Num ber 2, April 1998 tually approaches crisis levels, how far will anthropol- ogy go in defending the rights of indigenous groups to dispose of their resources entirely as they see fit? These are the sorts of challenges that anthropology will face in the coming century. If anthropology's arid response is to invoke what D'Andrade (1995) has called "moral models" and join the babble of competing advo- cacies?reifying and sentimentalizing culture all over again?it will fail in its purposes; it will fail to develop new purposes appropriate to the new sociocultural real- ities of the 21st century; and it will become part of the problem, not part of the solution. Reply MICHAEL F. BROWN William stown, Mass., U.S.A. 10 xn 97 These 15 reasoned responses illustrate the wide-ranging thought needed to gain analytical purchase on issues of information policy and cultural ownership. Some com- mentators (e.g., Santos Granero, Powers, Posey) would move the analysis farther in the direction of concrete policies, whereas others (Barnes, Coombe, Descola, Hi- att, Strathern, Rosen, Tuzin) argue for situating the is- sues within larger debates about property concepts and their limitations, the politics of knowledge and repre- sentation, and dilemmas of ethnic sovereignty within multicultural states. The subject clearly demands both approaches, and I am grateful for the impressive erudi- tion that the commentators have brought to bear on its many facets. Let me begin by underlining areas of general agree- ment. The commentators acknowledge that the lan- guage of cultural property is a problematic and in many ways impoverished way of talking about social prob- lems that really turn on questions of sovereignty, mu- tual respect, and the precarious status of native cultures within mass society. As Strathern notes, however, in- tellectual property discourse is a "forceful sound bite" because it condenses many issues into a compact no- tion that feeds upon public uneasiness about the future of authenticity in a world increasingly defined by simu- lation. Most of the commentators also recognize that com- prehensive claims of cultural ownership can, if taken to extremes, play into the hands of demagogues. European observers?in particular, Descola and Hiatt?are more sensitive to this issue than their colleagues from North America, South America, and Australia, doubtless be- cause of their proximity to recent cases of genocidal vio- lence rooted in ideologies of ethnic nationalism. Even those who do not share their dark view of the trajectory of indigenous political assertion must acknowledge the power of their cautionary tale. We also agree that the current struggle over intangi- ble cultural property can be seen as a hopeful sign ? hopeful because it signals the arrival of native peoples as significant players in global debates about social and economic justice. Here, however, I part ways with some commentators. Coombe, for example, seems unable to distinguish between comprehension of native claims and unthinking support for them. I have no trouble un- derstanding the historical circumstances that lead in- digenous groups to assert control over cultural records, nor do I contest demands that they should have a voice in determining how such records are used. Neverthe- less, those who value anthropology and other forms of social inquiry also have a responsibility to ask whether the wholesale "repatriation of information" is either feasible or morally defensible and, if we destroy cultural records or sequester them through novel forms of indig- enous copyright as some would insist, what legal princi- ples will prevent other social groups?defined by eth- nicity, religious affiliation, or political agenda?from advancing similar claims. In an age of identity politics, it seems only prudent to ponder the broad implications of such policies before embracing them. Coombe is mistaken when she implies that I advance absolutist visions of free speech and freedom of access to information. Although I argue that standards of free speech and freedom of access should be considered in cultural-property debates, nowhere do I contend that these goals always and everywhere trump other consid- erations. I have no more sympathy for unqualified appli- cation of the principle of free speech than I do for preemptive claims of cultural ownership or for the simple-minded notion that a people has an inherent right to control how it is represented to the world at large. Only by clearing away such totalizing positions can we begin the difficult business of finding a middle ground that balances the genuine concerns and griev- ances of native groups with the democratic values (how- ever imperfectly applied) of the liberal state. In this sense I find myself drawn to the pragmatism of Powers, Cleveland, and Stephenson. It may be time, as Cleve- land says, to focus on goals rather than on methods. Karlsson misconstrues my references to American In- dians. I mention Hopi and Apache assertions of control over cultural information because on this issue, as on many others, these tribes are leading the way for other indigenous groups in North America and elsewhere. The tribal documents in question offer unusually clear and straightforward expressions of the authors' posi- tions. My respect for their views does not, however, oblige me to agree with all of their assertions. I do not dispute the sovereign right of native peoples to restrict the activities of outside researchers as they see fit. The principal point at issue is the claim that indigenous groups "own"?that is, possess inalienable and exclu- sive rights in?cultural information that they have shared over the years with outsiders and that has long resided in the public domain. American Indian spokespersons have every right to criticize New Agers who imitate Indian rituals or en- gage in other offensive behavior. In fact, vigorous con- demnation of New Age practices by Indians is far more BROWN Can Culture Be Copyrighted?\2l9 likely to promote greater cultural sensitivity than are a score of scholarly treatises on the problem of cultural appropriation. Nevertheless, there is little evidence that greater native control over material in libraries, muse- ums, and archives will discourage the activities of those determined to emulate Native American religious ritu- als, who are far more likely to talk things over with their channeled spirit guides than to consult works of anthropology. Karlsson incorrectly concludes that I question the sincerity of American Indian activists simply because some happen to be skillful negotiators. Indians have been forced to hone their negotiating talents through decades of involvement with state and federal govern- ments, the news media, nongovernmental organiza- tions, and researchers of various descriptions. I see no necessary contradiction between a sincere commitment to one's cultural values and mastery of the skills of cross-cultural communication. It bears noting, how- ever, that burgeoning revenues from tribal gaming en- terprises now permit American Indians to hire some of the nation's most influential lobbyists and lawyers to advance their interests in the public arena. Elsewhere, for instance, in Australia, the state routinely finances litigation and other legal activities that contest the state's own power. These developments beg for dispas- sionate analysis by scholars willing to jettison habitual assumptions about the relative powerlessness of native peoples, especially in the developed world. Despite an- thropology's claim to be attentive to human agency, we prove highly selective in our willingness to acknowl- edge it, especially when the fate of received wisdom hangs in the balance. It would seem that we need vic- tims far more than they need us. Posey is right to emphasize the many efforts being made to develop workable strategies for the protection of indigenous know-how from corporate efforts to alien- ate it through the prevailing system of copyrights and patents. But the devil, as they say, is in the details. I have read most of the documents to which he refers, and I do not share his conviction that they offer a clear vision of how the desires of indigenous peoples to "con- trol their heritage" (to frame the issue in an idiom fa- vored by the United Nations) can be balanced against the legitimate claims of other social actors.1 The situa- tion is hardly helped by the recent reemergence in inter- national forums of what Descola identifies as volkisch philosophy, that is, belief in a transcendent, mystical link between a people and its territory. This is not to deny that many native peoples identify closely with their land, investing it with sacred qualities and seeing it as a source of knowledge. But as a generalization about indigenous cultures it seems neither accurate nor 1. An important exception is Janke (1997), an Australian document that came into my possession while this reply was being drafted. Consisting of a general overview of Aboriginal intellectual property and legal frameworks that affect its disposition and use, the docu- ment proposes a range of specific changes in Australian laws relating to copyright, patents, trademarks, and archives manage- ment. free of an insidious naturalism. Given anthropology's long struggle against essentialist approaches to culture, I would expect Posey to be more cautious about jump- ing onto this particular bandwagon. With the exception of Jackson, Rosen, and Stephen- son, the commentators express little concern about the impact of digital technologies on proposed schemes to protect indigenous heritage. Rosen uses the copyrighted status of this CURRENT ANTHROPOLOGY article as evi- dence that intellectual property laws still work, yet the example illustrates perfectly why copyrights and pat- ents cannot protect indigenous knowledge that was never intended for uncontrolled circulation. Rosen and I write to disseminate our thoughts, not to shield them from scrutiny. A century ago we would have been rea- sonably assured that our exchange would be read only by those possessing a copy of the journal. Now that we have inexpensive photocopying, however, this article is far more likely to be seen in facsimile than in its origi- nal form. This may be disturbing to the Wenner-Gren Foundation, which bears the journal's production costs, but for academic authors it is cause for quiet celebra- tion, since our ambition is to be read and cited. If our goal were to restrict access to our words, in contrast, the journal's copyright would afford us no protection whatsoever. Compared with the digital technology now on the horizon, the photocopy machine is as crude as an Oldowan hand-axe, and we are sure to witness profound changes in the ways in which information is created, circulated, transformed, and used?changes that will undermine cultural-protection schemes based on the logic of patents and copyrights. Cleveland raises the important question of cultural values, a theme also developed to a greater or lesser ex- tent in the comments of Rosen, Severi, and Tuzin. An- thropology has found its place in Western thought by showing how practices that seem illogical or immoral in one culture appear perfectly normal from the per- spective of another. Yet, as Tuzin points out, in a glob- alizing world our analysis cannot stop there. We must now come to grips with the challenges of reconciling widely divergent cultural values in our neighborhoods, schools, and workplaces. The turn toward indigenous sovereignty solves some problems but in turn creates others, especially as social boundaries become more permeable. It is crucially important to move the cul- tural-property debate beyond reflexive expressions of solidarity to a more nuanced consideration of the con- flicting rights and responsibilities at stake in the formu- lation of public policies relating to information. I was reminded of the human dimension of this strug- gle several months ago while observing an intellectual property trial in the city of Darwin, the capital of Australia's Northern Territory. The plaintiffs, a well- known Aboriginal artist from Arnhem Land and his se- nior clan relative, were asking the federal court to rec- ognize the clan's economic and moral rights in the artist's graphic designs, rights tied to the clan's territory and ritual knowledge. Representing them were a local solicitor and a genial barrister from Melbourne named 220 I CURRENT ANTHROPOLOGY Volum e 39, Num ber 2, April 1998 Colin Golvan, who brought to the case his considerable expertise in intellectual property litigation. The respon- dent, a company that had pirated the artist's work for mass-produced tee-shirts, was nowhere to be seen, ap- parently because prior litigation had forced it into bank- ruptcy. Instead, opposing counsel was provided by the Ministry for Aboriginal and Torres Strait Islander Af- fairs, which feared that the case, if won by the plaintiffs, could destabilize Australia's system of native land ti- tles. In gowns and wigs, the lawyers from both sides pre- sented cogent arguments on behalf of their clients. Documentation was brought forward in impressive quantities. A museum curator furnished an example of the artist's work for the inspection of the court. The presiding judge, obviously engaged by the case, seemed willing to do the right thing if only he could figure out what it was and then reconcile it with existing laws and commercial practices. Although it was impossible not to admire the good- will of the participants and, indeed, of a society that would devote so much institutional energy to the reso- lution of an isolated community's concerns, I found myself wondering whether this was the most effective way to help Aboriginal artists carry on the traditions of their people while receiving reasonable compensation for their efforts. Max Weber's analysis of bureaucracy demonstrated long ago that modern procedural rational- ity inevitably spawns its own forms of irrationality. As heritage-protection laws come into effect and legal prec- edents accumulate, lawyers will apply ever more intri- cate casuistry to contests over cultural ownership. 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