Nicole Aylwin is a Ph.D. Candidate in the Communication and Culture Graduate Programme at York University
On September 23, 2010, the York Centre for Public Policy and Law brought together one anthropologist, one political scientist and one socio-legal scholar to discuss the potential for ‘protecting’ the knowledge and heritage of indigenous people under international law and policy. Although this sounds like an opening to a great joke guaranteed to wow at academic cocktail parties, the three panelists, Catherine Bell (University of Alberta), Patricia Goff (Laurier University) and Rosemary Coombe (York University) instead treated the audience to an edifying discussion on how indigenous rights, intellectual property and human rights are intersecting and changing the dimensions of international law and policy in the process.
Each panelist took as their starting assumption the idea that culture has become an object of new economic and policy investment, as well as the rhetorical basis for new forms of social struggle and legal claims making. As a result, new spaces of both possibility and peril are being opened in the international legal arena as new subject positions are formed and new ideas about knowledge, property and rights are being debated.
Catherine Bell discussed the Echo Mask episode and the attempts of the Nuxalk Nation to repatriate an important piece of their heritage. This frustrating case is emblematic of some of the challenges now facing lawyers and policy makers as they attempt to reconcile modern categories of ownership and tangible and intangible property with more complex notions of community ownership and the cultural right to access and control one’s own heritage.
Bringing these issues together in a very different way was political scientist Patricia Goff. Interested in questions of global governance, Goff described the World Intellectual Property Organization as a “quiet giant” in the international policy system. Recently, WIPO has begun to reach out to “new beneficiaries” in an attempt to find new means to recognize, maintain and protect traditional cultural expressions (TCEs) and to ensure the global intellectual property system retains legitimacy in our culturally pluralistic society. However, according to Goff, the work of WIPO remains problematic since the very structure of the global economy, and WIPO’s designated role within it, prevents the organization from fully recognizing the link between traditional knowledge, the cultural rights of communities and the importance of recognition.
Finally, IP Osgoode member Rosemary Coombe reminded us that neoliberalism is not monolithic and it does have limits. Many of these limits become opportunities for indigenous groups and communities. As the rigid line between old categories such as ‘tradition’, ‘heritage’, ‘culture’ and ‘economy’ have become blurred, new forms of claim-making in international legal arenas has become possible. New opportunities have also been provided to those seeking recognition through the institutions that at one time excluded them.
By providing a new culturalist rhetoric that grounds political and proprietary claims, neoliberalism has created spaces where intellectual property continually collides with issues of cultural rights, indigenous rights to self-determination and rights to recognition. Thus, questions such as the one given notoriety by Michael Brown—Who owns Native Culture?— are turning out to be less about fixed doctrinal legal rules and classic property relations, and more about creating new spaces for political, legal and cultural negotiation.
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