IP law assimilates South Asian culture through commercialization, enabling erasure by allowing the patenting of traditional knowledge, ignoring its origins and contributions from marginalized groups. The result is the silencing of non-Western voices in the endless cycle of dispossession.

After Choudhury copyrighted the Bikram Yoga sequence, Indians, Indian-Americans, and officials in the Indian government expressed their outrage, offering a variety of strategies for reclaiming traditional knowledge. The objections of all three parties are evident in the news media: major Indian newspapers, US publications, and the statements by Indian government officials demonstrated significant criticism of yoga piracy specifically and biopiracy more generally. One example of this vehement outcry unfolded in the Huffington Post. In 2010, The Hindu American Foundation started a campaign called “Take Back Yoga,” focusing on the inherent links between yoga and Hindu identity and sparking a kind of global nationalism about the practices. Aseem Shukla, Co-Founder of the Hindu American Foundation, argues that “[t]he severance of yoga from Hinduism disenfranchises millions of Hindu Americans from their spiritual heritage and a legacy in which they can take pride.” 387 Claiming that Hinduism suffers from “overt intellectual property theft, absence of trademark protections and the facile complicity of generations of Hindu yogis, gurus, swamis and others that offered up a religion's spiritual wealth at the altar of crass commercialism,” Shukla concludes that “Hindus must take back yoga and reclaim the intellectual property of their spiritual heritage--not sell out for the expediency of winning more clients for the yoga studio down the street.”388 His blog post elicited a vehement response from Oprah-endorsed new ager Deepak Chopra, who historicizes 387 Aseem Shukla, “On Faith Panelists Blog: The Theft of Yoga,” Washington Post, April 18, 2010, http://newsweek.washingtonpost.com/onfaith/panelists/aseem_shukla/2010/04/nearly_twenty_mi llion_people_in.html. 388 Ibid. 147 yoga as before Hinduism and claims that “enlightenment has always been outside the bounds of religion.”389 While he respects the “Take Back Yoga” campaign as an “innocent attempt by the Indian diaspora to get some respect” he admonishes the Hindu American Foundation to “lighten up” because “Indian pride is getting more than its share of strokes.”390 Chopra embraces the Western practice of yoga as part of the globalization of the South Asian philosophy. Unlike those who seek acknowledgment of the origins and spiritual context of the practice, he is unbothered by the transformation of yoga into a new cultural form. Together, the positions of the Hindu American Foundation and Chopra prompted hundreds of thoughtful comments from the public, including self-identified Indian nationals, Indian ex-pats, and Indian-Americans, igniting a dispute about the state of yoga in America. One yoga instructor proclaims that “[n]obody owns yoga”391 while one Indian doctor comments that Shukla’s position is “characterized by a pseudo-nationalist claim to a non-existent purity of composite, often contradictory and disparate beliefs originally associated with people living on the banks of the River Indus (Sindhu in Sanskrit), now in Pakistan!”392 Shukla fires back to Chopra’s response, calling him “a principle purveyor of the usurpation I sought to expose” and “the most prominent exponent of the art of ‘How to Deconstruct, Repackage and Sell Hindu Philosophy Without Calling it Hindu!”393 Reports of comments of Indians in India were significantly more in line with Shukla’s than Chopras. Ashok Jain, a lawyer for the Indian Supreme Court, said “[t]he government of India should be filing for cultural patents…Why have 389 Deepak Chopra, “Who Owns Yoga?,” Huffington Post, December 1, 2010, http://www.huffingtonpost.com/deepak-chopra/who-owns-yoga_b_790078.html. 390 Ibid. 391 Paul Vitello, “Hindu Group Stirs Debate in Fight for Soul of Yoga,” New York Times, November 27, 2010, Comment 156, http://www.nytimes.com/2010/11/28/nyregion/28yoga.html?pagewanted=all. 392 Ibid. 393 Shukla, “On Faith Panelists Blog: The Theft of Yoga.” 148 we failed? The cost of filing patents is nothing. We must take action now. In 10 years, copyright will be a big issue.”394 Sudha Gopalakrishnan, the Mission Director for the National Mission for Manuscripts, said about indigenous knowledge that “[o]ur ‘intangible’ heritage is in grave danger and needs to be protected.”395 The end result of the debate was the creation of the TKDL, a digital database designed to catalog prior art in a manner that prevents the continued patenting of traditional knowledge.396 The database itself is a collection of information about over 1,500 asanas and ayurvedic treatments as well as their past and present histories in an attempt to prevent the appropriation of indigenous knowledge. 397 Because both the US Patent Office and the European Patent Office agreed to recognize the contents of the database as proof of prior art, the cataloging of traditional knowledge in it offers a means of preventing the grant of patents on already-existing information.398 Though, as the conversation between the Hindu American Foundation and Chopra as well as Fish’s ethnographic research demonstrates, not all Indians or Hindus see eye-to-eye on the issue of the ownership of traditional knowledge. Nonetheless, the pushback against yoga’s commodification is real and significant. In discussions about the ownership of yoga, assertions of Indian and Hindu identity perform two important rhetorically disidentificatory roles. First, individual acts of renaming reconceptualize copyright and patent law, prompting new conceptions of the fundamental principles of the legal regime. Terms such as “cultural patents” and “intangible heritage” indict the boundaries of the intellectual property system, identifying its inability to account for the role of racial Others in knowledge production. In the spirit of disidentification, these rhetorical acts simultaneously deconstruct and critique the intellectual property system while engaging in reconstructive and reconstitutive acts of worldmaking.399 For Muñoz, the term worldmaking “delineates the ways in which performances—both theatrical and everyday rituals—have the ability to establish alternative views of the world…they are oppositional ideologies that function as critiques of oppressive regimes of ‘truth’ that subjugate minoritarian people.”400 In this case, positing alternatives to intellectual property law is an act of reimagining which conceives of a new regime for governing knowledge that considers and recognizes racial Others. Second, the desire to connect intellectual property with national identity acts as a mechanism for rethinking the world in a manner that recognizes marginalized groups. While the accuracy of the absolute link between Hinduism and yoga may be in doubt and the deployment of key concepts of intellectual property law, such as patent and copyright, inaccurate, the attempt to reclaim yoga’s heritage is a nationalistic maneuver which refuses the narrative of the practice as undifferentiated knowledge in the public domain, owned by no one. The assertion of national identity constitutes yogic knowledge, linking it with Indianness and Hinduness and refusing the narrative that there is a single, undifferentiated public domain in which individual contributions cannot be identified. Indeed, the prevailing narrative of traditional knowledge, which I discuss in greater depth in the following section, posits Western colonizers as the civilizing forces which refine and polish the haphazard mass of information that colonized peoples cluelessly possess.401 Succinctly stated, 399 Muñoz, Disidentifications: Queers of Color and the Performance of Politics, 195. 400 Ibid. 401 Halbert, Resisting Intellectual Property, 136-137. 150 through the nationalistic discourses of the Bikram Yoga controversy, “a national identity for a new type of political subject was born.”402 This political subject confronts the erasure of racial Otherness from the landscape of intellectual property, rendering visible the links between otherwise ahistoric raw materials in the public domain and particular social identities. Indeed, rhetorical disidentification renders visible racial histories in the manner Gilroy advocates, disallowing erasures of marginalized groups which make exploitation possible. Moreover, the historicized Indian subject is one capable of contributing to a global phenomenon—far from being powerless, the Indians and Hindus who contributed to yoga are forces to be reckoned with and the creators of an increasingly valuable commodity form. The manner in which Indians and Indian Americans perform their discontent with the regime of ownership which governs yoga confronts the dehistoricization of the practice and forces consideration of the individuals who contributed to its creation, formation, and evolution. While Coombe identifies the circulation of racially derogatory trademarks as a way of constituting national identity, erasures of racial histories in discourses of invention is an equally important means of racialization. Refusing to acknowledge the contributions of marginalized groups and categorizing traditional information as “undiscovered” or an ahistoric part of the public domain effects the same type of constitutive process that occurs through trademarks. Moreover, the forced recognition of Indian and Hindu identity interrupts white and Western narratives of invention, particularly as they define the nation. American national identity is built around the inventor—from Benjamin Franklin to Thomas Edison, the American Dream is embodied by individuals who demonstrate the ingenuity of their inventive forefathers. This narrative is marked by the erasure of bodies of color and their labor. The linking of yoga and 402 M. Charland, “Constitutive Rhetoric: The Case of the Peuple Quebecois,” Quarterly Journal of Speech 73, no. 2 (1987): 134. 151 Indian national identity operates as a counternarrative American-style objectification and commodification of yoga. The history of yoga told by some Indian government officials, Indians, and Indian Americans and foregrounded here demonstrates the myth of the originality of patented knowledge and makes visible the role of marginalized groups in the process of creation. Patentability, prior art, and the public domain Marginalized groups are rendered visible in the discussion of the ownership of traditional knowledge through the redefinition of the very landscape of copyright and patent law and the concomitant rewriting of the public domain.403 Dr. V. B. Gupta, Head of the IT Division of the Council of Scientific and Industrial Research and the creator of the TKDL, explains, “[y]oga was created in India as early as 2000 B.C. Copyright doesn’t exist on anything after 50 years, and it is in the public domain…So someone claiming yoga as their own and charging franchise money is not acceptable.”404 A recent research paper on the TKDL explained the topic similarly: “Once the traditional knowledge is recorded in TKDL, it becomes public domain knowledge. Under patent law, this means that it is considered to be prior art and hence is not patentable.”405 The statements of Gupta, Hirwade, Jain, and Gopalakrishnan and the actions of the Indian government intervene in a Western narrative of the public domain, recasting the concept to reflect knowledge and practices of those who are racially different. In doing so, they force rereadings of intellectual property’s most central terms from the vantage point of Otherness. In asserting the voice of the Indian people in constituting the public domain, contesting the meaning of prior art and patentable, the individuals cited here break the Western monopoly on defining 403 While the use of the term patent in the context of yoga is inaccurate, the discourses I identify here still prompt the reevaluation of patent law’s scope and relationship to traditional knowledge. 404 Susanne Hiller, “Hottest Yoga in Town: At 100 Degrees You Feel the ‘Bikram Glow.’ It’s Not Pretty.,” National Post, March 12, 2003. 405 Hirwade, “Protecting Traditional Knowledge Digitally: A Case Study of TKDL.” 152 the boundaries of intellectual property. Moreover, they implicitly and explicitly demonstrate public domain’s tendency to ignore questions of difference and erase racial histories, functionally critiquing the omissions of marginalized groups in the work of Lessig and other free culture advocates. As Kimberly Christen points out, Lessig, in particular, fails to acknowledge that “[i]ndividual creators are privileged even as they build on knowledge sets from the past and work from biased (not neutral) technologies, knowledge practices, and economic structures. The rhetoric of freedom—free of restrictions—replays the structure of enclosure, open for some closed for others.”406 Gupta, Hirwade, Jain, and Gopalakrishnan direct attention to free culture’s omissions, centering the concepts of patentable, prior art, and public domain on issues of race.