Alternative Intellectual Property?: Indigenous Protocols, Copyleft and New Juridifications of Customary Practices

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Alternative Intellectual Property?: Indigenous Protocols, Copyleft and New Juridifications of Customary Practices

Kathy Bowrey1
This article takes up the workshop theme of ‘Customs in Common’ in an attempt to locate, or create, a space for an Aboriginal dialogue about legal rights in the context of indigenous culture and intellectual property law. Can Australian law create a space for a dialogue with indigenous people that allows for a form of indigenous autonomy or self-determination? How can Aboriginal law or custom be given contemporary meaning, significance and impact on Australian law?
At the outset, (at least) two problems stand out. The first is political in nature. Who is it that can speak ‘for’ indigenous people? As Aboriginal writer, Irene Watson, explains,
The idea of speaking ‘for’ is alien to my knowledge of the possibilities of an Aboriginal political representation. … There has never been an Aboriginal dialogue that has given over to this concept that is of giving the Aboriginal voice a political representative quality.2
This is not a problem of there being a lack of Aboriginal political structures, but a problem with the forms of Aboriginal political representation that the Australian political system can recognise.
The second problem is one of law and legal language. In the context of teaching law, Watson puts the problem this way,
In looking forward, my own task is to resist assimilating or fitting into the dominant power structures and ‘ways of knowing’ while also offering non-Aboriginal students the opportunity to absorb or assimilate into themselves Aboriginal knowledge of this country. It is a difficult task; I have few resources to work with and a body of western knowledge that works against the centering of Aboriginal ways and knowledges as it posits Aboriginal peoples as pre-historic, native, without any formal knowledge system. The western knowledge system is supported by written documents, rules and regulations, and technological infrastructure. While Aboriginal knowledge exists alongside that western knowledge system, it is a non-formal, Aboriginal (local, traditional or ecological) knowledge system. The teaching of Aboriginal knowledge is problematic in that a different approach is called for … 3
The intellectual project described herein is one of trying to find a way of allowing for an Aboriginal dialogue using Australian law, acknowledging that this entails use of the oppressor’s legal tools to provide for a form of self-determination. Can an Aboriginal voice be valued in Anglo-Australian legal institutions without it turning into something unrecognisable to Aboriginal people, and/or without the dialogue being turned against Aboriginal people?4
In the past, overwhelmingly legal efforts and energies have focussed on accommodation of indigenous rights and difference through advocacy for recognition of new rights in international law, and through reform of national law. However I want to deviate from that ‘public law’ and ‘big picture’ trajectory. The inquiry heads away from designing formal legal reforms at the international and national level. We need a fuller exploration of smaller domains - an investigation of the practical uses of private law at the community level for the protection of custom. This avenue is suggested for both pragmatic and jurisprudential reasons.
It is not suggested that public law, public international law, or national law reform is unimportant. However in the contemporary Australian context post-Mabo, the emancipatory potential of international and national law has, to say the least, proven disappointing. Reforms have been compromised and limited.
We need to learn from this experience. Firstly, political goodwill toward reconciliation cannot be assumed. Secondly, even where goodwill is present, Anglo-Australian legal intuition, grounded in legal positivism, is generally for reform that presumes an indigenous solidity in history, and a corresponding homogeneity in wants, needs, desires and capacities. It leads to abstract statements of the law’s and policy makers’ good intentions, which translates into significant obstacles to indigenous claims and to self-determination in practical contexts.5
Political and legal authority has not been closed to all kinds of indigenous self-determination. However indigenous ‘progress’ is now claimed to be lacking in such cases, laying the foundation for the Federal Government to blame communities for ‘failing’. As Mick Dodson notes,
In [Federal Health Minister Tony Abbott] saying that, ‘Australians’ sense of guilt about the past and naive idealisation of communal life may now be the biggest single obstacle to the betterment of Aboriginal people,’ the minister is using the language of ideology, not of evidence.
Surely, we have moved beyond the old standby of blaming the victim and can finally start being honest about our shared responsibility for failure and our joint capacity for success.6
In the Australian context, self-determination of indigenous peoples has been branded by the Federal Government as a social experiment that failed.7
Whilst in international arenas the rhetoric concerning indigenous people is very different to the current domestic context, initiatives are still generally dependent on the state and its bureaucracies for implementation. Further,
While international and national regimes have extended some protections to ... indigenous peoples, in many respects the results have not corresponded to their needs. Although there has been some participation by indigenous peoples in the development of these laws, the result has, nevertheless, largely been the creation of top-down, international norms that have yet to take shape and that are rarely sufficiently multi-faceted to encompass the differences among indigenous groups. As such, the laws promulgated often are either too broad or too narrow to adequately capture the distinctions and nuances among indigenous groups and their particular cultural properties.8
Likewise Bluemel argues,
Increasingly groups are participating in global governance, however, most justifications for such participation are based upon an analysis of the benefits of participation for the governance system rather than also considering the impact of participation upon the groups. Justifications for group participation are typically borne from a functionalist perspective which concludes the international system needs group participation to enhance the system's legitimacy, but those justifications do little to show how particular group representation solves either systemic or group needs.9
Given this political reality, continuing to discuss the politics of custom within Australian academia at all is possibly perverse. Such a discussion is only of value to me if there is a possibility of a legal space for dialogue that is sensitive to the realities of indigenous difference and of the need for self-determination. The challenge is for us as lawyers to find, or to make, such a space. With a pragmatic recognition of Australian institutional racism, and with a view to working past the impasse of reforms that seek to constitute indigenous people at large or within Australia, as one collectivity, this paper argues we need to look to the potential of private law at the community level.
There is a tendency in scholarship concerned with social justice to neglect private law because it is taken to be preoccupied with the self-interest of individual parties, where there will be inequalities in bargaining power. Formal court processes, in enforcing free will and contract, neglect the differential power relations and reinforce inequalities. Thus the presumption is that ‘downsiders’ inevitably get a raw deal. However it is the particularity of private law, and the capacity of collectives to use private law, that is of interest here.
One example this article reflects on is the status of indigenous cultural protocols - declarations of best practice in regard to using indigenous cultural property. These should not, as is currently the case, be characterised as non-legal, ‘voluntary’ codes of ethical practice. They should be asserted as a form and source of ‘private’ law, articulated and negotiated in regard to practical detail within a community. It is argued that custom more generally may be able to be implemented using devices of private law, where trust law and contract can inform some specifics of such agreements and enhance their status and enforcement.
The inspiration for this idea comes, in part, from recent ‘private law’ developments in intellectual property law – from copyleft.10 Copyleft initiatives generally seek to engender the free circulation of works, subject to copyright. Copyleft both creates legal rights and is a social movement. It seeks to shift the legal focus from the protection of exclusive private property rights, where law creates restrictions, to law facilitating the interests of the community at large and open flows of information. In this sense copyleft uses the tools and powers of private law to advance communal, rather than individual, interests. Copyleft is dialogic, in that individuals and communities establish the terms of ownership and engagement with works produced under such licences. These agreements are legally enforceable in the courts, but because of the social movement aspirations of copyleft, and for want of resources, there is greater reliance on education as to community norms, peer pressure and shaming. These seem to work quite successfully.
This article considers the scope of this practice born of the information technology industries, for providing the foundation for a reinvigoration of custom in Australian jurisprudence, at least with regard to protecting indigenous cultural rights.
The reference to ‘juridification’ in the title of this paper notes the challenge of using private forms of ordering, and using any of our legal ‘ways of knowing’, whilst retaining legal sense and meaning at the community level. When knowledge is ‘juridified’ it is captured by formal legal authority and taken over by the legally trained. With western law, knowledge is objectified, solidified, formalised and through the process of its translation and re-presentation, the meaning changes. Notwithstanding the apparent vitality of free and open source communities (FLOSS), and the proliferation of these licenses, it cannot be presumed that even here law respects community empowerment. Further it may be the case that such private ordering is only legally valued when it appears to service the needs of information capitalism.
However FLOSS shows that informal, grassroots sources of law can be used and function, to some degree, to the sides of formal legal oversight and ‘correction’. Here law and language can retain the natural voice ‘of the community’.11 Experimentation with this form of ‘private ordering’ is now surely worth trying, especially where other legal and political alternatives for reconciliation with indigenous Australia seem so closed.

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