Nicole Aylwin and Rosemary J. Coombe
By an overwhelming vote in October 2005, UNESCO adopted the Convention on the Protection and Promotion of the Diversity of Cultural Expressions (hereafter the Cultural Diversity Convention). The Cultural Diversity Convention is designed to recognize the importance of cultural diversity and its contribution to the well being of humanity and its future improvements. Some of its listed objectives include, ‘to protect and promote the diversity of cultural expression’, ‘to create conditions for cultures to flourish and to freely interact in a mutually beneficial manner,’ and ‘to promote respect for the diversity of cultural expression and raise awareness of its value at the local, national and international level.’
The Cultural Diversity Convention suggests that cultural diversity is integrally linked to a number of other United Nations goals such as development, poverty reduction, and environmental sustainability (UNESCO: 2005). This new Convention authoritatively positions the concept of cultural diversity in the international policy making arena and articulates it as a value similar to biological diversity.
- Like biological diversity, culture is viewed as if it were a scarce or limited resource in need of protection from further depletion. Nation states, it is feared, no longer have the ability to protect national or internal cultural differences under trade conditions where all goods and services are increasingly viewed as market-based commodities. To counter such trends, culture is represented as a national resource to be preserved, maintained, and protected (like biological diversity) for successful economies, development projects, and sustainable environmental management.
- As prime bearers of ‘cultural distinction’ in the international imagination, indigenous peoples are often the target, objects, and, too occasionally, subjects of projects that seek to capitalize upon culture as a resource. From the marketing of handicrafts to the promotion of tourism, indigenous peoples and other ethnic minorities often provide the cultural content that nation states seize upon to promote these projects. This is not surprising. The Convention on Biological Diversity has already focused world attention on the importance of protecting, promoting, and maintaining traditional knowledge for the preservation of diversity among, between and within biological species. The World Bank now fosters ‘development with identity’ and promotes projects that build upon indigenous social capital.
The World Intellectual Property Organization has founded a division called the Inter-Governmental Committee on Intellectual Property, Genetic Resources, Traditional Knowledge and Folklore/Traditional Cultural Expressions (IGC) that has spent nearly a decade negotiating means to protect, compensate and provide benefits to holders of traditional knowledge and cultural expressions, many of whom identify as indigenous peoples. The World Health Organization has put increased emphasis upon the importance of traditional medicines in meeting human health needs. The newly forged U.N. Permanent Forum on Indigenous Peoples will ensure that indigenous peoples have a more permanent and legitimate voice in all of these international negotiations, although indigenous, environmental, and development NGOs are still needed to represent the interests of minorities and communities within states who are unprepared to recognize them as indigenous peoples.
What role is the Cultural Diversity Convention likely to play in indigenous struggles to have traditional knowledge recognized, respected and compensated for and to protect traditional cultural expressions? Is it likely to help or hinder the political efforts of indigenous peoples with respect to the territorial rights they insist are integrally related to their so-called ‘cultural and intellectual properties’ or their desire to maintain and revitalize cultural identities long marginalized by the modern state?
The common pool of culture
The well-intentioned Cultural Diversity Convention was appropriately negotiated in a fashion designed to avoid approaching culture as a museum of artefacts, expressions, and practices to be preserved in a frozen fashion or essentialized as the static possession of distinct peoples defined primarily by holding it. Moreover, it is clear that intercultural cooperation is valued alongside the maintenance of cultural distinction and objectives of cultural growth and transformation are revered as well as cultural protection.
Nonetheless, for a document that prizes cultural diversity, it is remarkably devoid of respect for cultural pluralism. Culture is envisioned more as a sum total of expressive goods available for development and exploitation than as forms of life or frameworks of meaning and identity in the lives of people and the social life of communities. This is consistent with an ever-more hegemonic economic reductionism wherein culture is valued for its utility under conditions of informational capitalism in which non-tangible informational goods are increasingly commodified through intellectual property laws.
Markets need culture as a source of new forms of difference that can be packaged, bought and sold and ways of life only to the extent that they can be represented as forms of social capital. What isn’t recognized here is the basis of cultural generation in practices of social life and the reproduction and transformation of social orders. Culture is divorced from the social contexts of its ongoing creation and diversity is disarticulated from social relations between and amongst communities.
Constructing cultural diversity as a non-renewable sum of expressive cultural resources, enables it to be managed as so much ‘cultural inventory’ (Albro, 2005). Reducing diversity to variety permits even cultural resources in the public domain to be quantified, measured, and categorized so that states can assess what is available to use, buy, trade or recirculate. The logic is one of maximizing production. The preamble of the Cultural Diversity Convention emphasizes ‘the vital role of cultural interaction and creativity, which nurture and renew cultural expressions and enhance the role played by those involved in the development of culture for the progress of society at large’ (UNESCO: 2005).
Cultural interaction and creativity are periphery processes that facilitate the production of new or revitalized cultural content for the inventories of public goods. The social relations and processes behind the production of diversity are depoliticised as ‘interaction,’ conveniently ignoring the unequal power relations, colonial history, and racial and ethnic conflicts that also fuel the production and destruction of cultural difference. Managing collections of cultural goods is far easier than managing the politics of cultural diversity as it actually manifests itself in the world.
The public domain and traditional knowledge
- The Cultural Diversity Convention clearly places the power to determine who gets to make ‘withdrawals’ from the cultural resource bank with those who know how to properly ‘manage’ it in the market. Thus the role of intellectual property rights is given priority, because it enables culture to be characterized as an intangible informational good that needs to be ‘protected’ through proprietary means. This position is consistent with the economics of neoliberalism that seeks to sequester cultural distinction as a market resource to stimulate economic growth.
- By imagining a need to sustain a disappearing resource and establishing cultural diversity as scarce, diversity, intellectual property rights can be harnessed to assign value to what would otherwise be ‘lost’ in another version of the ‘tragedy of the commons.’ More cultural expressions will be generated, we are led to believe, if the proper market incentives are provided. Eventually, or so the story goes, the intellectual property rights will expire and these cultural forms will then enter and enrich the public domain.
It would be impossible to list the number of scholars, activists, and policymakers who have disrupted the variations of this dominant narrative and exposed its limitations, misrepresentations, and ideological underpinnings. The obvious fact that fewer and fewer cultural expressions are in fact entering the public domain due to the ever-greater expansion and convergence of intellectual property protections and the ever-greater extension of their terms, does not seem to be at all appreciated here.
Using the private monopolies that intellectual property rights create to promote ‘the free flow of ideas’ has always been paradoxical; it is increasingly nonsensical. But if the granting of intellectual property rights to enrich the public domain has been increasingly undermined, the very concept and contents of the public domain is also under scrutiny.
The IGC has worked tirelessly (with the input of WIPO member states, a number of civil society organizations, holders of traditional knowledge, healer’s associations, guardians of traditional cultural expression and indigenous peoples’ representatives) to educate the global public on the limits of using both conventional intellectual property rights and the public domain as appropriate means to protect the world’s indigenous and minority peoples from the misappropriation of their traditional knowledge and cultural expressions (WIPO 2003, 2005; Ahmed, Aylwin and Coombe, forthcoming).
Their work illustrates that many forms of cultural diversity will require alternative means of protection if they are to be maintained and that these means will involve important recognitions of legal pluralism, respectful of diverse social structures and appreciative of alternative forms of place-based livelihoods.
Finding ways to protect what is internationally known as traditional knowledge or cultural heritage has been integral to the struggle for indigenous rights of self-determination. There is considerable concern that a significant amount of traditional knowledge and cultural expressions have been wrongfully appropriated and used indiscriminately outside of indigenous communities, on the basis that such material resides in the ‘public domain.’ For years the invisibility and/or relative powerlessness of indigenous peoples in both national and international law has encouraged, or at least condoned the free and irresponsible use of traditional knowledge and culture.
Intellectual property rights have done little if anything to restrict such appropriations. Often the appropriation of this cultural content has been claimed as a new work by the appropriator who is viewed as simply borrowing ideas or reworking expressions considered to be found in the public domain because of their origins in collective traditions rather than individual authorship.
For many indigenous communities the public domain is a foreign and an inappropriate category because others maintain that it ‘contains’ traditional cultural forms that were appropriated in violation of indigenous laws and customs and/or without their prior informed consent. In other words, this domain does not represent their sense of what is properly public, because the ‘cultural inventory’ was acquired illegitimately, to the detriment of their communities, their traditions, their spirituality and their capacities for economic improvement.
Legal scholars Anapum Chander and Madhavi Sunder (2004: 20) astutely comment that many of today’s critics of over-extensive intellectual property protections do so by entertaining what they call the ‘romance of the public domain,’ – an ideal that assumes equal access to the goods within it. This romance conveniently obscures inequalities, particularly those of indigenous groups, and their lack of ability to equally access, use and benefit from a commons constructed without consideration for their interests. Access to these resources is granted to powerful industrial actors who can mobilize them for commercial purposes, and intellectual property rights then protect the products of their investment (increasingly in perpetuity) but intellectual property rights don’t work nearly as well to protect other social interests, and neither does the romance of the public domain.
Ironically, WIPO, the UN organization responsible for the administration of intellectual property no less, has acknowledged this and the IGC has drafted strong statements of normative principle, policy objectives, and proposed specific measures to deal with these problems of inequality with relation to cultural forms. UNESCO, the UN body responsible for culture, moreover, seems bound to an ethnocentric worldview in which relations to cultural forms can only be imagined as privately (or nationally) owned properties or publicly available resources.
Communities all over the world are struggling to halt and to reverse the loss of cultural knowledge that was sometimes a deliberate policy and other times an accidental by-product, first of colonial rule and then of state development projects. The struggle over the protection of traditional knowledge and heritage is a cultural rights struggle – not simply to recover expressive forms that may have economic value but to protect and maintain social relations, community identities, and ties to land and resources that sustain alternative life projects (Blaser, Fiet and McRae 2004; Brown, 2004; Coombe 2005b; Cowan et al. 2004, Niezen, 2003).
Protecting and strengthening traditional knowledge in order to sustain it for community purposes may mean limiting access to it, and finding new means to protect it from misappropriation, as the IGC has recognized (Ahmed, Aylwin and Coombe, forthcoming). The Cultural Diversity Convention views all cultural goods as potential resources for development but it doesn’t seem to allow for their use in forms of social and economic development that do not involve their commodification. The market reigns as the exclusive means of circulating and valuing cultural goods; a remarkably monocultural means of promoting cultural diversity and one that is arguably more likely to further hasten the decline of cultural difference than to promote its proliferation (Coombe, 2003).
The melting pot of cultural diversity
The promotion of a homogenized public domain regulated exclusively by intellectual property rights is coupled in the Cultural Diversity Convention with an implicit presumption that the primary differences to be preserved and ‘protected’ were those between nations and the nations to be privileged were nation states. Convention negotiations clearly indicate that many states and other stakeholder groups envisioned one of the major purposes of the Convention as providing a means of ‘protecting’ domestic cultural industries from the onslaught of foreign cultural products occasioned by free trade (Albro, 2005). This form of ‘protection’ may quite properly be considered as a form of trade protectionism and we would argue, only legitimate to the extent that other international rights norms are furthered thereby.
From a cultural rights perspective, the more significant forms of diversity are those more clearly linked to the cultural life of peoples, which may correspond with national jurisdictions but more often refers to minorities within the state. In either case, the most significant cultural goods associated with these forms of life are not usually adequately represented by industrial modes of dissemination. To what extent is this concept of protection likely to encourage the consolidation and promotion of inter-national forms of difference through artificial creations of unique national cultural identities? The Cultural Diversity Convention privileges the state as the bearer of cultural distinction, and further privileges its agency in constituting national difference. The dangers of censorship and the suppression of minority cultural voices should not be ignored.
There is evidence that intellectual property rights are already being used to this effect. ‘Place Branding’ or the marketing of specific locations based on their cultural uniqueness and authenticity, is one way in which intellectual property rights are being used to forge new national, regional, and municipal cultural identities (Coombe, 2005a; Coombe, Schnoor and Ahmed, 2005). Success in branding requires the presentation of differences between places as fixed and homogenous.
In this quest for markers of difference, nation-states have historically been apt to appropriate the visual markers of indigenous peoples resident in their countries as indicators of unique national cultural identities and to promote their cultural expressions abroad to encourage tourism, trade and investment. Forms of cultural difference that have collective social, religious, and historical significance to communities are thereby decontextualized and arguably ‘frozen’ in a fashion that may reduce their availability or suitability for sustaining the cultural life of communities. In some cases, this would clearly be a violation of cultural rights.
- The discourse of culture emphasizes the classification, quantification and the commodification of culture and makes it useful primarily as a resource for state development through its domestic cultural industries. For communities whose valuations of culture do not privilege the state or the market, the Cultural Diversity Convention offers little hope, and the potential that, without recognition of their cultural rights and alternative forms of protection in place, their cultural knowledge and expressions will be even more vulnerable to state and industry appropriation.
- Resisting the inventory of diversity
The Cultural Diversity Convention’s statist and neoliberal proclivities pose obvious dangers. Where are there sources of international legitimation for resistance to this commodification and co-optation of cultural diversity for state and industrial ends? Although we cannot fully make the case here, a re-integration of intellectual property rights into the international human rights framework repositions this alleged property right as a cultural right amongst other cultural rights. It privileges culture not as an inventory of goods, nor as a set of established differences to be valued under the name of a scarce resource designated as diversity, but as a means for engaging in more productive forms of dialogue across and between communities, and more diverse forms of social exchange that properly question the singularity of a public domain while diversifying the forms of protection available for cultural practices and expressions to meet a more diverse set of human needs and aspirations (Coombe, 2003; Coombe, Schnoor and Ahmed, 2005).
Claims of cultural difference from below in new social movements are often made to insist upon valuable forms of distance and autonomy from market relations and from state-backed industrial agendas (Coombe, 2005b: 16). Cultural rights claims have also been used to secure territories and resources (Robbins and Stamatopoulou, 2004) for those who may maintain subsistence livelihoods in which ecosystems provide forms of sustenance and spiritual meaning. New forms of rural development may be cultivated by communities who creatively use intellectual property rights to sustain traditional practices of production and generate new forms of cultural pride in the process (Coombe, Schnoor and Ahmed, 2005). In short, there is good evidence that the deployment of culture as a resource need not be dominated by states nor subsumed by a neoliberal calculus.
- The Cultural Diversity Convention clearly has a number of weaknesses. If, however, it serves to raise the profile of issues of cultural diversity at the international level it may provoke wider conversations that elicit a greater range of valuations. The desire to protect cultural diversity should not be derided, but embraced from a more inclusive human perspective that encompasses a wider scope of human aspiration and continues to address the distinctively meaningful ways in which peoples understand social inequalities and express desires for social justice.
Ahmed, Mohsen Al Attar, Nicole Aylwin and Rosemary Coombe. (forthcoming). ‘Indigenous Cultural Heritage Rights in International Human Rights Law’, in Catherine Bell, and Robert Patterson, eds., First Nations Cultural Heritage and Law Volume Two: Respect, Reconciliation, and Reform. Vancouver: UBC Press.
Albro, Robert. (2005). ‘Making Cultural Policy and Confounding Cultural Diversity’ in Cultural Comment. Online at www.culturalcommons.org/comment-print.cfm, retrieved 10/04/2005.
Blaser, Mario, Harvey A. Feit and Glenn Mc Rae, eds. (2004) In the Way of Development: Indigenous Peoples’ Life Projects and Globalization. London: Zed Books and the Canadian International Development Research Centre.
Brown, Michael. (2003). Who Owns Native Culture? Cambridge: Harvard University Press
Chander, Anupam and Madhavi Sunder. (2004). ‘The Romance of the Public Domain’, California Law Review 92: 1331.
Coombe, Rosemary J. (2005a) ‘Legal Claims to Culture in and Against the Market’, Law, Culture and Humanities, 1(1): 32-55.
Coombe, Rosemary J. (2005b) ‘Protecting Traditional Environmental Knowledge and New Social Movements in the Americas: Intellectual Property, Human Right or Claims to an Alternative Form of Sustainable Development?’ Florida Journal of International Law 17: 115-136.
Coombe, Rosemary J. (2003)‘Fear, Hope, and Longing for the Future of Authorship and a Revitalized Public Domain in Global Regimes of Intellectual Property.’ De Paul Law Review 52: 1171-1191.
Coombe, Rosemary J., Steven Schnoor and Mohsen Al Attar Ahmed. (2005) Bearing Cultural Distinction: Informational Capitalism and New Expectations for Intellectual Property, in Willem Grosheide ed., Articles in Intellectual Property: Crossing Boarders. Amsterdam: Mollengrafica/Intersentia 191-211.
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UNESCO (2005). The Convention on the Protection and the Promotion of the Diversity of Cultural Expressions. Available online at, http://portal.unesco.org/culture/en/ev.php-URL_ID=29388&URL_DO=DO_TOPIC&URL_SECTION=201.html
World Intellectual Property Organization ‘The Protection of Traditional Cultural Expressions/Expressions of Folklore: Revised Objectives and Principles.’ Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore Eighth Session Geneva, June 6-10, 2005. WIPO/GRTKF/IC/8/4 (April 8, 2005).
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- Rosemary J. Coombe is a Tier One Canada Research Chair in Law, Communication and Cultural Studies at York University in Toronto, where she teaches in the Communications and Culture Joint PhD/MA Programme, and is cross-appointed to the Osgoode Hall Faculty of Law Graduate Programme, and the Graduate Programme in Social and Political Thought. Prior to being awarded one of the country's first Canada Research Chairs she was Full Professor of Law at the University of Toronto Faculty of Law. She holds a J.S.D. from Stanford University with a Minor in Anthropology and publishes widely in anthropology and political and legal theory.
- Nicole Aylwin is a post-graduate student in the faculty of Communication and Cultural Studies at York & Ryerson Universities, Toronto, Canada.