Introduction
For a group of individuals to be classified as a society, it must have some shared values within its members as diverse from other groups. Among the shared values is the cultural heritage that the society cherishes and works hard to maintain and sustain to benefit its various generations, both the past, present and the coming generations.
For this culture to continue being a unique item for such a society, it needs to be protected. In the contemporary society, protection will most obviously include legal measures.
But writers are of the opinion that legal measure should not be used to protect intellectual property as this amount to dilution of the sacred value inherent in such culture and prevents the community from enjoying such culture together as it should be. This paper discusses three writers and their various proponents on legal methods as a way of protecting culture.
Commoditization of Culture by Michael Brown
Brown, author of Heritage as Property, begins his debate by creating a paradox. He says that culture is mostly associated with the society at large as opposed to a particular individual. It is seen as being embedded to a particular society and therefore the connotation of its being tangible and solid is not a welcome to most people.
Thus, several groups are undertaking various efforts to conserve their cultural heritage and to define its context. Examples of such efforts have been evident in such policies as the UN Draft Declaration on Rights of Indigenous Peoples enacted in 1994 as well as the Inter-Apache Summit on Repatriation formulated in 1995, (Brown, P.51). These policies define the culture of the people and the means of protecting it.
Countries are also undertaking these efforts. An example is the French community which has been endeavoring to protect its language and Canada which wants nothing to do with cultural influences from the US, (Brown, P.51). In the process, these efforts are not only demarcating their culture but also commoditizing it, something which has diverse effects, both negative and positive.
Brown says that the use of the term ‘cultural property’ to connote items of heritage may not look harmful on the face of it. But it has serious implications to the various societies in regard to such culture.
It denotes some concrete and a totally demarcated element which violates the rules of culture which should give a feeling of sanctity, wholesome and beautiful possession held by an entire group but to be preserved for the benefit of all the generations. This concept of culture has further been contaminated by the various property rights granted by property laws being enacted.
The property rights such as copyrights and patents only work to individualize cultural heritage something that should be collectively owned. And instead of protecting it, these laws only serve to kill creativity and innovation, (Brown, P.55).
The Intellectual Property system does not serve to respect the rights of the community by creating exclusive property rights in culture. Further, such protection measures are only for a limited period of time after which such culture starts circulating all over the market.
But the Intellectual Property system can also be effectively used to protect cultural heritage. This may be done through the use of trademarks whose protection exists in perpetuity. It illegalizes the use of such works or their reproduction thereof by other entities. Scholars also are of the opinion that other policies should be developed to protect culture.
The Author offers ways in which cultural heritage may be protected without having to commoditize it as he argues that legalistic measures cannot be appropriately used to protect our cultural heritage. According to him, the best method would be to use the civil society, which includes major organizations throughout the globe each of which should seek to promote indigenous knowledge in their respective spheres.
This will provide a channel for coming up with new ideas on alternatives of protecting culture from the local level and then this applied to other natives but will also get modified with other ideas from those other natives.
This will not only motivate the local individuals to forge forward in their fight against misappropriation of their cultural heritage but will also create a worldwide movement so strong that theft of information and culture will become a thing of the past.
Other Dimensions of Commoditization of Culture
Another writer, Coombe who has authored Objects of Property and Subjects of Politics, also argues that, through such legal items as copyrights, patents, trademarks etc, the law only converts the various innovations and creativities into commodities, designed for the exclusive use and control of specific individuals or organizations.
According to her, individuals should be allowed to scrutinize and alter the original meaning of such works. Putting up of such legal measures only kills creativity and only used as a way of differentiating the powerful and the powerless, and is actually a role of politics.
The writer uses a series of court decisions to show that large and powerful organizations, e.g. Coca Cola, General Electric, etc, are more likely to be favored by courts in protection of intellectual property suits.
For her, dropping such legal protections is a way to show that democracy prevails on what one can do in regard to even existing culture.
People should be allowed to change such “If what is quintessentially human is the capacity to make meaning, challenge meaning, and transform meaning, then we strip ourselves of our humanity through overzealous application and continuous expansion of intellectual property protections,” (Coombe, P.122).
Such legal measures inhibit the ability of others to come up with alternatives to the particular item. Such lack of alternatives will definitely lead to diminishing cultural heritage for the particular community.
Another writer, Hyde in his work The Body as Property, talks about commoditization of human body. He says that in the contemporary society, law only functions to define everything in such a way that it can be sold and bought in the market. It serves to materialize all human relations existing in abstraction.
He says that, “the discourse of commoditization normalizes the personal, the subjective, the abnormal…and reinscribes them into the normal regulatory apparatus of consumer, market society,” (Hyde, P. 48). He argues of how the law as well as court decisions, has worked to transform even the most abstract things such as human feelings e.g. emotions, pain and desire into tangible elements capable of quantification, (Hyde P. 49).
The law has extended to materialize body organs as well such as blood and spleens. The legal construction of the body as property denotes that the body belongs to the individual person to the exclusion of all others. About sale of organs, he advocates for a situation where individuals are encouraged to donate their organs out of their own free will and spirit of brotherhood.
For him, “any proposal to pay people for what they ought to do is merely a tribute to our ignorance of the institutional framework for a caring society,” (Hyde, P.67). This means that the law, when formulated to allow sale of organs, is being used as a vehicle to destroy what should be shared out and enjoyed by the entire community, their heritage.
But the law also adopts differing discursive constructions to refer to the body specific to each situation including; “machines, property, sacred and noncommodified,” (Hyde, P.74).
According to him, describing our bodies as property in such a way that associating it with any other meaning is hard, even though it does not go against our moral principles, it brings about issues of great concern that needs to be resolved. Thus any legal definition to commoditize our body should be abandoned and we should adopt such descriptions as are in line with our ethical concerns.
Conclusion
Most of the writers are of the opinion that the law should never be used to protect culture or as it is commonly referred to as ‘to commoditize’ cultural heritage. According to them, law only serves to individualize the culture which should be collectively shared by the whole community. This, they claim that not only does it kill creativity and innovation but it also destroys the essence of the culture for the community.
While this may be generally true, we cannot underestimate the role that the law plays to protect intellectual property from being misappropriated by other individuals. It ensures that lazy people do not benefit from other peoples hard work by selling unauthorized work. So as much as we do not agree on the legal methods of preserving culture, we should also accept that they have also acted to protect it on the other hand.
References
Brown, Michael. Heritage as Property: Property In Question: Value Transformation in the Global Economy, Katherine Verdery and Caroline Humphrey, eds. Oxford : Berg Publishers, 2004, pp. 49-68
Coombe Rosemary. Objects of Property and subjects of politics: In Law and Anthropology, A Reader, ed. Sally Falk Moore, Malden MA, Blackwell, 2005, pp. 111-123
Hyde, Alan. Bodies of Law: The Body as Property, Priceton University Press, 41 William Street, Princeton, New Jersey, 1997, pp. 48-75