Intellectual property laws are a tool to justify the appropriation of indigenous cultural and genetic resources. The notion of property and innovation is a construct of western ideologies that facilitates the commodification and control of indigenous life through coercive international agreements.

The means of justifying the new imperial science are inseparable from the means of its extension; the “rule of law,”– or as it is also known, the “supremacy of law,” – accomplishes both. Law is, Alan Hunt maintains, a “primary agency of the advance of new modalities of power and constitutes distinctive features of their mode of operation.”2 The imposition of the “rule of law” by a dominant nation-state upon other peoples was a classic means of extending empire, part of the process of colonization. This was, and remains, especially true of property law. Indeed, the politics of property has long been the central historical dynamic mediating the relationships between indigenous peoples and imperial states. Whereas sovereignty over indigenous lands was typically justified by appeal to three international legal theories of territorial acquisition – occupation, conquest, and cession – acquisition of less tangible indigenous resources – cultural, intellectual, and genetic – is now widely legitimated by appeal to intellectual property laws. Intellectual property policies are justified in the U.S. Constitution on utilitarian grounds as a means “to promote the progress of science and useful arts.”3 Yet the lack of evidential support for the claim that patents and copyrights indeed effectively promote these ends has been noted.4 In its place, one is generally offered appeals to “faith” that they are doing so, for instance: “Faith in the private sector’s ability to produce beneficial innovations is strong at the moment.”5 Intellectual property laws have been a particularly effective strategy for acquiring, commodifying, and rendering profitable intangible indigenous resources, such as artistic expressions and medicinal and spiritual knowledge. Current copyright laws, for example, support and facilitate the practice of cultural imperialism by consigning traditional music to the public domain, then providing for its facile “conversion” to private property. The appropriation by American artists and record companies of calypso music is a case in point. Millions of dollars have been made from a single song without any of this being returned to the communities of its origin.6 Patent law enables a similar practice in the case of genetic resources. The U.S. government is currently funding numerous major industry/university consortia which have planted their bioprospecting stakes throughout the world. The concrete repercussions of divergent construals of knowledge – as commodity and as gift – are painfully apparent in Exhibit Three (Chapter 1), in the case of the Guajajara. How the law has served to advance new modalities of power, and to regulate their mode of operation, might be better appreciated by considering the origins and development of intellectual property law. I will do so briefly, focusing on copyright law. The Origins of Copyright Law While guilds were instrumental in shaping patent and trademark law, mercantile interests played a major role in shaping the formation of copyright law in England. In particular, publishers sought to obtain monopoly control over the production of books. This control was challenged in the late seventeenth century by writers who needed to earn their livelihood from the sale of their writing. Copyright is popularly viewed as a law for authors and artists. It originated, however, with publishers and has long benefited entrepreneurs far more than creators.7 Martha Woodmansee has described how writers transformed themselves into “authors” in the modern sense by redefining the nature of writing. She recounts how, prior to the mid-eighteenth century, writing was considered a mere vehicle of received ideas which were already in the public domain, and, as such a vehicle, it too, by extension or analogy, was considered part of the public domain.8 At its best, writing was understood to be a process of inspired craftsmanship, and writers were understood to be a vehicle or instrument, neither distinctly nor personally responsible for their creations. Understood as craftspersons, writers had to prove themselves adept at following the body of rules that had been preserved and handed down to them for manipulating traditional materials to achieve goals dictated by their audience. Understood as inspired, they were equally the subject of independent forces, for the more inspired moments of (their) work – that which is novel and most excellent in it – are not any more the writer’s doing than are its more routine aspects, but are instead attributable to a higher, external agency – if not to a muse, then to divine dictation.9 The production of poetical works, Goethe notes, was “regarded as something sacred, and it was considered close to simony to accept or bargain for an honorarium.”10 As Woodmansee argues, this view of the writer changed, and the view of writer as author emerged, as the element of craftsmanship was eliminated or discarded, and that of inspiration was emphasized. Moreover, the source of inspiration was internalized, seen as emanating from within the writer. Literary inspiration came to be regarded as a matter of “original genius,” and the inspired work came to be regarded as the peculiar and distinctive product, and property, of the writer.11 The struggle between publishers and writers gradually intensified. Publishers attempted to reduce books to their physical foundations: “The book is not an ideal object . . . it is a fabrication made of paper . . . a commodity produced for hard cash.”12 Authors insisted their work transcended their material foundation, yet even so constituted property. It was Fichte who provided the distinction on which subsequent copyright law would largely depend, by describing three distinct shares of property in the book: When the book is sold ownership of the physical object passes to the buyer . . . the material aspect, the content of the book, the thoughts it presents also pass to the buyer. To the extent that (the buyer) is able, through intellectual effort, to appropriate them, these ideas cease to be the exclusive property of the author. . . the form in which these ideas are presented, however, remains the property of the author eternally.13 A book thus emerged as “the intellection of a unique individual.”14 The author, far from being a vehicle of ideas, transformed them, making them the expression of an individual’s own unique mind. That original expression is private intellectual property. It, and the right to any profits from it, is what the copyright protects. In his influential study of law and the information society, Shamans, Software and Spleens, James Boyle critiques this romantic view of authorship and the influence it has had on the commodification of information. He argues that it “blinds us to the importance of the commons – to the importance of the raw material from which information products are constructed.”15 In one influential legal definition, “writings” are defined as “any physical rendering of the fruits of creative, intellectual or aesthetic labor.”16 Copyright law, as we have seen, developed in response to the need for writers to sell their intellectual labor, to turn it into a commodity. As a result of eighteenth-century European writers’ challenge to the existing power relations, publishers no longer retained the exclusive right to sell and profit from their writings. In the future, writers would have to surrender their copyright before this could take place. This inclusion of intellectual laborers in the marketplace required a significant conceptual transformation. Not only did the nature of writing need to be reconceived, but so did the nature of knowledge. Knowledge, or more exactly ideas, became something that no longer needed to remain in the public domain. It was able to be transformed into private property, provided that it was “original” and was fixed in some physical form. It could then be exchanged in the marketplace, as a commodity to be bought or sold. Interestingly, the originality requirement, at least in U.S. law, has received a minimalist interpretation. A work is original if it is “one man’s alone”;17 any “distinguishable variation” of a prior work is enough to constitute originality, and render it private intellectual property.18 Innovation and Individuality The chasm between “inspired” writing and “original” authorship is deep. As we have seen, the writer, as a vehicle or instrument, was regarded as subject to independent forces that played a crucial role in the writing process. The inspired moments of a work, no less than its more routine moments, were not the writer’s sole doing. With the shift to the notion of original authorship, inspiration was internalized and the writer was relieved of responsibility to traditions preserved and passed down. Such intellectual labor sprang from the “original genius” of an individual, and hence was that individual’s personal product and property. The criterion of originality in copyright law to which this led has its counterpart in the requirement of novelty in patent law. The result was the embedding within western intellectual property law of assumptions about individuality and innovativeness that are acutely at odds with the conceptual commitments of many indigenous cultures. This embedding has directly enabled the continued expropriation of indigenous cultural and genetic resources. As Aroha Mead comments, I query the concept of “innovation” as defined by western intellectual property laws – particularly when no recognition or value is accorded to the customary knowledge which links a species of plant to a particular usage, and details the most appropriate harvest, portion of the plant . . . and method of preparation.19 Indigenous knowledge and generations of indigenous labor – mental and physical – are discredited. All that is credited is the “chop-shop” labor of individual corporate and academic scientists who interject “novelty” into what they have taken. The justificatory rhetoric embedded in the expropriation of indigenous knowledge and genetic resources is essentially the same as that invoked by those, encountered at the outset of this book, actively engaged in the marketing of indigenous spirituality. In such cases, appeals to common property, private property, and usually both in succession constitute the legitimating rationale of cultural imperialism. It enables the dominant culture to secure political and social control as well as to profit economically from the cultural and genetic resources of indigenous cultures. Just as the concept of terra nullius once provided legal and moral cover for the imperial powers’ treatment of indigenous peoples, the concept of public domain plays a comparable role within late capitalism. As we have seen in Chapter 1, far from being mutually exclusive, these appeals function together to facilitate a conversion, or privatization, process. When intellectual property laws of the dominant culture are imposed on indigenous peoples, the first appeal to common property, or the public domain, lays the legal groundwork for the private ownership secured by the second. What “flows out . . . as the ‘common heritage of mankind’ . . . returns as a commodity.”20 This strategy is particularly effective for acquiring desired but intangible indigenous resources – medicinal and spiritual knowledge, ceremonies, artistic expressions. Ownership of such intangibles may in turn (as in the case of genetic information) lead to control of, and denial of indigenous access to, tangible resources. This control is not only “legal theft” of indigenous resources, it is legally sanctioned and facilitated theft. As Vandana Shiva comments, “communities have invested . . . centuries of care, respect, and knowledge” in developing such resources, yet “today, this material and knowledge heritage is being stolen under the garb of IPRs (intellectual property rights).”21 The payoff of imperialistic cultural practice is substantial. There is considerable economic profit to be reaped from the commodification and marketing of indigenous cultural resources. It is also politically invaluable. As the established legal system extends and enforces the practice of cultural imperialism, it brings with it its own legitimating rationale. The latter is, simply put, a way of speaking about and a way of thinking about what is going on; a rhetoric and a reasoning that plays a politically diversionary role as, at the individual level, it nurtures self-deception.22 Ultimately, it constitutes a logic of domination – a structure of fallacious reasoning that seeks to justify subordination. The dominant conceptual framework is held to have certain features that indigenous frameworks lack, and which render it superior. Such alleged superiority, it is assumed, justifies the assimilation of those frameworks and cultures to it.23 This logic of domination figures vitally in biocolonialism and in cultural imperialism more generally. If strategies of resistance to it are to be effective, they must be situated within the broader social context that informs it. The extension of the commodity form to new areas is one of the principal historical processes associated with the political economy of capitalism. It provides a way of reproducing the social relations needed if capital is to survive and grow in a particular sector.24 The development of the notion of intellectual property, and the articulation of intellectual property laws, is a significant moment in the self-expansion of capital, another instance of “the relentless extension of market assumptions into areas where the market has not ruled.”25 We are, as Christopher Lind protests, “forced to genuflect before the great god market in yet one more area of . . . life.”26 It is also a significant move in the dynamics of power that structures dominant/indigenous relations, in the growth of cultural imperialism. It wrests away from indigenous peoples the power to control their cultural, spiritual, and genetic resources. As Jack Kloppenburg notes, “business interests in the developed nations have worked very hard over the past ten years to put in place a legal framework that ensures that genetically engineered materials . . . can be owned.”27 Forged by and in the interests of the dominant powers, particularly the United States, intellectual property laws and western concepts of “originality” and “novelty” are thus imposed on the world through coercive instruments such as the General Agreement on Tariffs and Trade (GATT) and its provisions on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The latter offers an interesting twist on an earlier expropriative colonial rationale based on coercive trade policies. English acquisition of indigenous lands was once held to be justified if the “infidels” refused to engage in trade, according to Peckham’s version of the Laws of Nations.28 According to the U.S. initiative in the GATT, if other nationstates want to engage in trade with the United States, they must adopt U.S. stipulations regarding intellectual property which are contrary to their customary practice and which enable acquisition of their genetic and cultural resources. As one critic notes, TRIPS fail to acknowledge “the more informal, communal system of innovation through which Third World farmers produce, select, improve and breed a plethora of diverse crop varieties.”29 The U.S. government, for some time, pressured Ecuador to ratify a bilateral agreement on intellectual property rights, part of the “strategy to unilaterally push developing countries to broaden the scope of industrial patent law, even beyond the scope that was agreed in GATT.”30 It opened the door to life-form patenting, despite the fact that the Andean Pact Law on Patents forbids any patents on human genes or organs. Ecuador’s refusal, in 1996, to ratify this agreement was influenced by the indignation of the Ecuadorian public when it learned that the United States held a ten-yearold patent on ayahuasca, a plant sacred to indigenous Amazonians.31 As for indigenous nations – which are not recognized as such by the United Nations – there is usually no pretense of “trading” involved. Intellectual property rights are “a sophisticated name for modern piracy.”32 Across the planet, at an accelerating pace, collectively owned traditional medicines and seeds are being privatized and commodified. Altered sufficiently to render them patentable, they are transformed into the “inventions” of individual scientists and corporations, and placed on sale in the genetic marketplace. The knowledge systems that produced the impressive medicinal, pharmaceutical, botanical, and agricultural achievements of indigenous peoples are dismissed as hostile to creativity and change, even as indigenous knowledge and genetic resources – carefully nurtured, developed, and preserved for centuries – are expropriated, mined as “raw materials,” processed in labs and through the intellectual property system, to emerge as valuable commodities. This conjunction of western law and technoscience provides the history and context which informs indigenist critiques of the Diversity Project and other biocolonialist initiatives.