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Anthropology and Its Intellectual Properties
MICHAEL F BROWN
As a graduate student puzzling over kinship charts and structuralist interpretations of myth in the 1970s, I never imagined that knowledge of intellectual property law would become an essential item in the anthropologist’s toolkit. Over the last decade, however, struggles over intellectual property rights (IPR) have subtly reshaped everyday practice in anthropology as well as in other scientific and humanistic disciplines. Today we have little choice but to familiarize ourselves with the basics of intellectual property law and the trenchant critiques launched against it.
The impact of IPR has been felt in a range of anthropological venues. The growing salience of intellectual property on the global stage has reinvigorated the study of property concepts by economic anthropologists. On a more practical level, anthropologists who work in laboratory settings find themselves pressed by their universities to seek patents for innovative processes that in an earlier era would have been shared freely with the scientific community. And anyone who publishes articles, monographs, or textbooks must struggle to make sense of a publishing environment in which digital technologies have destabilized traditional notions of copyright.
IPR-thinking has had its greatest impact on the relationship between anthropologists and our research subjects. Anthropologists who collect tissue specimens or gather information about traditional medicines now routinely face accusations of engaging in “biopiracy” even when their motives have nothing to do with financial gain. Linguists seeking to preserve endangered indigenous languages may find their work impeded by activists who insist that language itself is a form of intellectual property to which native speakers hold implicit copyright. Ethnographic documents held in museums and archives are increasingly subject to demands that they be repatriated to their “authors”—not the ethnographers who prepared them but the people whose lives and stories the ethnographers documented. One might think that archaeologists would be insulated from this trend. Yet they, too, face claims that their work is nothing more than the theft of someone else ’s history.
The Rise of IPR-Thinking
The new prominence of IPR in anthropological practice reflects the convergence of several trends. The steady shift of the industrial North from manufacturing to knowledge work has pushed corporations toward aggressive policies that extend the reach of patents, copyrights, and trademarks far beyond their previous limits. This has provoked spirited resistance, especially in the developing world. As collectors and purveyors of folk knowledge, anthropologists find themselves the target of suspicion even though the direct economic benefit we realize from our professional publications is typically modest at best.
The high profile assumed by IPR discourse has proved useful for advocates of indigenous rights searching for ways to defend traditional heritage from misappropriation. This development accounts for the number of recent conferences, books, and journal articles on the subject of indigenous IPR. Nevertheless, existing intellectual property law is often difficult to reconcile with indigenous values. Patents and copyrights are statutory rights rather than natural ones, and they are framed by a commercial logic that fosters the misleading impression that economic motives drive the heritage-protection movement. For bureaucrats and international lawyers, IPR-thinking reduces heritage protection to an elaborate exercise in data management, a trend apparent in the language of UNESCO’s new International Convention for the Safeguarding of the Intangible Cultural Heritage. Such reductive formulas are unlikely to promote the social change needed to reverse centuries of discrimination against indigenous peoples.
Challenges for Anthropology
For working anthropologists, matters of prior informed consent and IPR now loom large when we contemplate fieldwork in any community that maintains folk traditions, especially when our research calls attention to resources, practices, or knowledge perceived to have commercial potential. Formal contracts that stipulate community review of publications and community ownership of marketable discoveries are likely to become familiar elements when we seek permission to work in many parts of the world. (See, for example, the model “Academic Research Agreement” prepared by the Indigenous Peoples Council on Biocolonialism at www.ipcb.org/publications/policy/ files/appndex1.html).
Many critics of anthropological practice are convinced that action-focused projects developed in close collaboration with host communities will eventually resolve most intellectual property concerns. I’m not so sure. Collaboration is admirable, and it is hardly unreasonable for communities to ask fieldworkers to provide practical assistance that meets local needs. To the extent that intellectual property is about control, however, there will always be a degree of tension over what kinds of questions are permissible and who determines the uses to which anthropological data can be put.
One of the things we stand for as anthropologists is the freest possible exchange of ideas. This value does not trump all other considerations, of course. There are times when discretion is an ethical imperative and an expression of simple human decency. We must also take seriously our hosts’ insistence that they have a legitimate intellectual property interest in our research and publications. At the same time, there are reasons to be wary of research agreements that cross the line into effective ownership of our data.
Although many disputes now presented in the idioms of intellectual property are simply struggles over control of information, some qualify as legitimate IPR riddles. What interests—legal, moral, financial—do people possess in their life histories or the grammar of their language? What is the best way to document traditional music without exposing it to possible exploitation by commercial recording artists? If anthropological research leads to the identification of patentable gene sequences or blood factors, how do we insure that source communities are appropriately compensated? What level of collaboration with indigenous consultants merits their recognition as co-authors? How can anthropologists work with cultural repositories to craft agreements that strike an appropriate balance between the privacy and IPR interests of indigenous communities and a donor ’s desire to share the fruits of his or her research?
Professional associations such as the Society of American Archivists are working overtime on these questions. Given the unique challenges of anthropological fieldwork and the rapidly changing face of intellectual property law, however, it may be time for AAA to consider adding the practical dilemmas of IPR to its list of topics meriting urgent discussion.
When today’s heated debates about indigenous IPR make the ethical and legal status of anthropological data seem impossibly knotty, I bring the issues down to human scale by thinking about the field notes I prepared while working among the Aguaruna of northeastern Peru in the 1970s and -80s. The notes are written in my own hand and, in a few places, punctuated with flattened mosquitos containing my dried blood. By any reasonable standard, I am the notes’ author as well as their owner. Yet they will never be entirely mine. The people who shared their life stories have moral rights in those accounts. Other kinds of information contained in my battered notebooks are less directly linked to specific individuals, but they are still inescapably tied to a time, a place, a community—in other words, to an encounter in which all participants have a significant moral stake.
“Justice,” the Nobel laureate Elias Canetti once wrote, “begins with the necessity of sharing.” Affirming the jointness of anthropological practice cannot resolve all questions posed by contemporary IPR debate. But it offers a useful starting point as anthropology confronts the moral and logistical complexity of an era in which genes, cell lines, music, art, and traditional knowledge are increasingly subject to market forces and instantaneous world-wide circulation.
Michael F Brown is the author of Who Owns Native Culture? (2003). Resources on indigenous IPR can be accessed at his website, www.williams.edu/go/native.