Governing Culture

Introduction
In recent years there has been much discussion in intellectual property circles about the legal protection of Aboriginal art work. From time to time it emerges as a counter in debates about the proper level of intellectual property protection. Writing in the Alternative Law Journal de Zwart (1996) uses the concern to protect Aboriginal copyright as an argument to defend the copyright laws in general; the context is the challenge to accepted notions of copyright presented by the new computer technologies. As her argument goes, the interests of Microsoft and the interests of the Aboriginal community are bound together. Another writer, McMillan (1998 75) uses the perceived shortcomings of Aboriginal intellectual property to opposite effect; in her argument (against the restrictive effects of copyright law) it shows how the law fails to sufficiently protect the weak while over-protecting the powerful.

My own purpose is to examine the current proposals regarding the legal protection of Aboriginal culture from the so-called "governmentality" point of view. Governmentality is a method of examining (especially) liberal government by looking at the technologies and rationalities of rule. The term, and the concept, derives from an article , "Governmentality" by Foucault (1991).

The field
In examining the literature on Australian indigenous intellectual property it will be seen that a remarkable degree of consensus is achieved over a the field. This ranges from the implications of the "Our Culture Our Future" discussion paper commissioned by ATSIC (IPIC 1997) to a research paper prepared for the current government (Davis 1997) . The Stopping the Rip-offs (1994) paper was prepared for the previous, ALP, government but its recommendations differ little from the Davis paper , the discussion paper "Our Culture Our Future" commissioned by ATSIC (ICIP 1997) , and discussions within the mainstream of intellectual property law. McKeogh and Stewart for example are authors of the standard textbook on intellectual property in Australia (McKeogh and Stewart 1997b). Their discussion (McKeogh and Stewart 1997a) is a good detailed summary of what might be called the consensus position. For referencing purposes I will draw mostly upon their account, which is itself a summary of a bureaucratic and legal consensus. Another legal author who stands close to the consensus view is Colin Golvan, whose various proposals are repeatedly quoted approvingly (in McKeogh and Stewart 1997a, the Davis paper and elsewhere) and who as a lawyer represented the interests of indigenous artists in a number of key court cases. (Dissent within the borders of that consensus we will come to later) The key propositions of the literature in question is that there is an entity called Aboriginal (or "indigenous Australian") culture which can and should receive legal protection through the medium of intellectual property laws.

The protection currently available under Australian intellectual property law is not, however, thought to be sufficient and law reforms are required. Discussions of this area continually return to a consensus view that "Western" intellectual property with its focus on individual rights and its concern to protect the free transmission of ideas (its underlying liberal values in short) is ill-suited to this task. Indigenous Australians are imagined as communally rather than individually oriented, so that intellectual property is owned by "communities" rather than by individuals; as opposed to valuing the free transmission of ideas they are presented as culturally requiring their restriction. A limitation of "Western" intellectal property laws is that they are thought to protect only original work , "traditional" artwork is by its nature, perhaps, not original to the artist. The time limitations of Western copyright are also thought to be inapproppriate to indigenous intellectual property (eg Mc Keogh and Stewart 1997a 62). At the same time the diversity of Aboriginal culture is routinely referred to, although it is apparently not so diverse in the above respects.

Solving this problem is thought to have a number of desirable effects; as Janke (1996 16) summarizes:
"[Enhanced intellectual property] rights would give indigenous Australians true self-determination in allowing Aboriginal and Torres Strait Islander people to economically benefit from the sharing of their cultures, as well as ensuring cultural integrity. Similarly, it would ensure a lot of pride for indigenous people, particularly youth."
The importance of Aboriginal culture for Australian national identity and tourism is also repeated throughout the literature. (eg ICIP 1997, Wells 1996)

The solution that is repeatedly recommended in the literature is to pass a sui generis piece of legislation to protect the integrity of Aboriginal culture. (The usual reference point is the "Report of the Working Party on the Protection of Aboriginal Folklore". Its findings, published in 1983 recommended the passage of an Aboriginal Folklore Act although the definition of the material to be protected as "folklore" is now seen to be questionable, see below.) McKeogh and Stewart find it heartening that there is unanimity on this point. And indeed there is unanimity, the same recommendation can be found treated sympathetically in "Our Culture Our Future" and in Davis' paper. There is a sameness in the literature. The same three court cases are referred to as examples both of the acheivements of working through the copyright laws as they stand and of the limitations of this strategy.

There is also a lack of mutual criticism where it might be expected. Miller (1995),to take a particulary striking example, advocates a developement of the common law offence of blasphemy to protect against the misuse of indigenous culture. This thought is taken up by others , it is repeated by McKeogh and Stewart and in the IPIC "Our Culture Our Future" statement. From a legal point of view his argument that in Australia this offence might extend to punishing offences against non-Christian religions is an interesting one but it is perhaps surprising that there is not at least some discussion of its wider ramifications. The main authority Miller relies on for his arguments is after all R v Lemon [1979] All ER 482, the notorious (and successful) private prosecution of Gay News, at one time a liberal cause celebre. This is not to suggest that any such expansion or revival of the blasphemy laws is on the agenda in a practical sense, but the fact that it is taken seriously helps to put the discussion in context. The repeated suggestion that sui generis legislation might incorporate criminal sanctions, "fines or imprisonment" as the ICIP document spells it out, should be understood in this context (ICIP 1997 9.6).

The indigenous intellectual property cases that have been reported up to now have involved fairly straightforward cases of appropriation of artwork. Rather more interesting is the question of pastiche. The literature characteristically yearns for some way of preventing pastiche , while recognizing the obvious practical problems that this entails. Golvan (1992) for example complains about the reproduction of "X-ray koalas". The "X-ray" style of art is apparently local to Arnhem Land, koalas however are not . Koalas depicted in this style, then, are clearly not examples of traditional authentic Aboriginal art. Golvan would seek a way to ban the sale of X-ray koala pictures. MCKeogh and Stewart suggest that protection against pastiche might be available under the Trade Practices Act, on the grounds that work in an indigenous style is implicitly claiming to be the work of traditional indigenous artists. Under the Act any person or persons could seek injunctive relief, while damages would be available to those whose commercial interests were affected. Another proposal favourably discussed throughout the literature is the developement of an Authenticity Label or trademark. Janke (1996 23) comments: "The mark's main focus would be in the souvenir products market rather than the high art market....A major hurdle would be the definition of what is authentic Aboriginal art."

Speculatively, the ICIP document "Our Culture Our Future" (drafted by Janke, incidentally, on behalf of the legal firm Miles Frankel) raises the possibility of giving special protection to "non-indigenous style" artwork by indigenous artists, the work of Albert Namitjera being a case in point. This is worth reflecting on; as it illuminates a theme which is common throughout the literature. This is that the authenticity of Aboriginal culture must be defined by Aborigines. The literature emphasises throughout how alien is Aboriginal law and Aboriginal concepts to "Western" norms, so Aboriginality cannot (or should not) be defined in terms of those norms. Speaking of the developement of an Authenticity Label in association with the National Indigenous Arts Advocacy Association, Wells (1996) notes: In the event, defining authenticity was based on extensive consultations with indigenous communities across Australia to elicit diverse perceptions...A convergent perception would necessarily be acceptable across indigenous and Australian law, society and culture.

The draft definition which this consultation came up with was to the effect that authentic Aboriginal art is what authentic Aboriginal artists produce(ibid ). Authentic Aboriginal artists, it seems, must belong to an authentic Aboriginal collectivity. The literature, relying as it does on arguments related to Aboriginal communal life and shared cultural values, is largely meaningless without this assumption. The existing discourse of authenticity thus depends on a notion of Aboriginal community, which is required to be self-defining (because its self-definition is a touchstone of its authenticity) and which stands inherently outside something thought of as "Western law".

Community
Recent governmentality literature has explored the notion of community as a tool of liberal government (Rose 1996), and the indigenous intellectual property literature described above does seem to exemplify this. According to Rose one of the characteristics of modern liberalism is the replacement of "society" or "the social" with a multiplicity of "communities". Government through the social becomes difficult when as Rose puts it, governments "can no longer conceive of a naturally functioning and systematically integrated national population". The language of"community" in the sense used here had its origin in the language of resistance to the government of the social, and in particular to the mentality of welfare bureaucracies. While the social is imagined as an essentially unitary zone of government, communities are essentially about difference and choice in "lifestyle" and values; membership of a community is , as compared to membership of society, imagined as an active condition. From the point of view of liberal governance the community is a compatible tool for a number of reasons. It is an aid to "government at a distance" in the sense used by Miller and Rose (1990), and enables a more finely tuned government of the self in that a community in the words of Rose (1996) is a "fulcrum for personal identity". Further to this, government of the community offers the promise of extending liberal government to difficult and marginal groups; by adapting pre-existing communities or constructing new ones. Rose (1996) notes that the paradox of communities is that they are imagined as at once pre-existing and needing to be created with the help of appropriate specialists. Kathryn Wells, quoted above, would appear to be an example of such a specialist.

Once one attempts to govern through the community a characteristic problem emerges, that of the borderline individual who will not or can not join an appropriate community. In looking at attempts to protect and define "authentic" Aboriginal art we are presented with a whole borderline category, the "urban" or "non-traditional" Aborigine, and herein lies the main noticeable area of dissent within the literature. McKeogh and Stewart merely note the "non-traditional" Aboriginal artist in passing, as one of the possible producers of inauthentic artwork, although not one who should be a primary target of intellectual property laws. "Non-traditional" here apparently modifies "Aboriginal" rather than "artist" and is typically used interchangeably with "urban".

Other writers such as Gray (1996) point out that the "traditional" Aboriginal artist is a non-Aboriginal construction, and argue that the "non-traditional" should also receive protection from any projected legal measures. He argues (in the cited article and elsewhere) in effect that the "Aboriginal community" should be so constructed as to include the "non-traditional" Aboriginal. "Non-traditional" Aborigines should have a say (somehow) in the permissible use of traditional designs, and apparently should have some share in the proposed enhancement of intellectual property protection for Aborigines. This direction of argument is potentially highly corrosive of key concepts such as "Aboriginal culture", and it is interesting to see how it is coped with in the literature. As noted above, McKeogh and Stewart brush off the question of inter-Aboriginal appropriation as of slight importance (Gray,ibid 32, notes that "Aboriginal artists and administrators" typically downplay the issue). It is interesting however that IPIC's "Our Culture Our Future" discussion paper does attempt to come to grips with Gray's points, relating them to the "stolen generation" of Aboriginal children, and Janke(1996) also treats Gray's argument sympathetically elsewhere.

The questions Gray raise go to the heart of the construction of "Aboriginal community" as a technique of government. The definition of Aboriginal culture, and conflict over rights to aspects of that culture, should be settled according to a model of "cultural and political self-determination" says Gray (1996 42), and not by non-Aboriginals. Yet surely, if the "traditional Aborigine" can be considered as a non-Aboriginal (or "white") construction so can the unmodified "Aborigine". Furthermore, any arrangement (or locus of power) set up to provide a unified "self-determined" voice with a legally accepted right to influence the machinery of the state will itself, virtually by definition, have to be defined to some extent in non-Aboriginal terms. O'Malley (1998 161) notes the irony of non-Aboriginal forms of governance being imposed on Aborigines as a condition of self-determination, and that is a further issue. But the difficulty which Gray's arguments highlight is independent of any assumptions, or knowledge, about "authentic" modes of Aboriginal governance.

Its interesting to note that the Aboriginal (cultural) community as Gray would construct it is a purer example of a Rosean liberal "community" than constructions more oriented to the traditional artist. Judging from his discussion of the particular problems of "non-traditional" Aboriginal artists in recovering their indigenous identity, he clearly imagines it as a "fulcrum" for constructing such an identity. Gray imagines his version of the community as more self-determined and at the same time more heterogenous than what he perceives as the dominant conception. Membership in it also appears to be more of a matter of individual choice. At least some "non-traditional" Aborigines, and Aboriginal artists, have the choice to opt in or out of their Aboriginality. (Gray's prime example of a "non-traditional artist is Gordon Bennet, who he says was not aware of his Aboriginality until the age of eleven) The future of this discussion within the literature is thus worth watching for the light it may shed on the prevailing governmentality. Insofar as liberal "community-building" technologies are at work one would expect the definition of the Aboriginal cultural community to develop along the lines advocated by Gray. To carry this discussion further we must turn now to consider what is arguably the central technology of liberalism, the market.

The market.
Janke's comments on the expected beneficial results of developing Aboriginal intellectual property have already been quoted above. Although they depend on the market to materialize they are imagined as going well beyond the purely economic. The following remarkable passage from the 1989 Department of Aboriginal Affairs' report on the "Aboriginal arts and crafts industry" was quoted approvingly by McKeogh and Stewart(1997), my emphasis added:
"The developement of informed market interest in Aboriginal art has been, and continues to be, to the advantage of Aboriginal people. There is clear evidence in remote communities that only where there is access to adequate markets will significant production of art and craft be maintained. In these areas, market participation assists in the reproduction of culture. These are also the regions, of course, where distinctly Aboriginal religious systems are maintained. Art also provides an important source of cash income that is independent of the public sector and a vehicle for the expression of Aboriginal cultural values to the wider community."

It has become widely recognized that the neo-liberal market is a consciously artificial construct (eg Scott 1996, Burchell 1993), and the proposals in the literature being considered are a particularly clear example of this. If the culture is reproduced through participation in the market then those who control the market would seem to control the reproduction of the culture. Gray (1996 33,35) remarks that even traditional artists have felt the pressure of the market to keep their work authentic-looking enough for the market's taste but that now "urban" Aboriginal art is gaining popularity among sections of the art world. If so, the market will no doubt adjust its assistance to the reproduction of culture accordingly. In any case the superficially conflicting goals of governing at a distance and governing the intimate world of the self, in this case not only the economic but the religious life, are apparent here. Miller and Rose (1990) remark upon these goals, in the context of the workplace, as being characteristic of liberal governance.

One aspect of the market frequently referred to in the literature (for example ICIP 1997, Wells 1996) is the international market in culture; tourism and its offshoots such as souvenirs, and collateral areas such as films. The authenticity of traditional Aborigines is thus a valuable national commodity, or at least can be so imagined. "Contemporary identity of Australian culture with Aboriginal culture is a defining part of the tourism industry in Australia" as Wells puts it, and goes on to describe Aboriginal involvement in that indusry in an entirely positive terms. Altman (1993), of the Centre for Aboriginal Economic Policy Research, discusses Aboriginal "lifestyle" tourism and its problems. As he says (p9), "Aboriginal cultures can be marketed as a unique component of the Australian experience", one of the problems is apparently the lukewarm attitude of Aboriginal communities to participating in this market. Again there is a stress on Aboriginal control of the industry, although this stress is explained in terms of making sure that financial returns accrue to Aborigines rather than in terms of protecting the authenticity of the product. The intriguing aspect of cultural tourism, from a theoretical point of view, is the degree of enterprisation of the individuals' and communitys' life that it entails.

Globalization and nationhood
It is a commonplace that market globalization is reducing the powers of the nation state and homogenizing cultures. Hirst and Thompson (1995) repeat a frequent observation when they compare the emerging role of national government as something akin to the role we associate with local government within national borders. Intellectual property is itself for obvious reasons a highly internationalized body of law, and this discussion is taking place a background of tightening intellectual property law internationally. (McKeogh and Stewart 1997b 480f) (Which is not at all the same thing, obviously, as a background of tightening successful enforcement of such law). The legal protection of "folklore" is itself the subject of international conventions, and the World Intellectual Property Organisation (WIPO), (a department of UNESCO) has sponsored a draft set of "Model Provisions for National Laws" to protect folklore against prejudicial actions. Protection against use of folklore though to be prejudicial includes criminal sanction (WIPO 1982, Janke 1997). In 1997 an international conference on the subject was sponsored by WIPO and was attended by Terri Janke in her capacity as ICIP consultant. She notes that there was a lack of "indigenous focus" at the conference (Janke 1997 120), apparently delegates were more concerned with protecting the dominant cultures of their various nations. A plan of action eventuated for this purpose and the drafting of an international agreement on the the sui generis protection of folklore is projected to be finalised "in the second quarter of 1998"; as I write in fact.

I'm not sure Janke is correct that the concern to protect dominant cultures of the conference majority is so fundamentally different from the interests underlying the Australian literature we have been discussing. It is at least a possibility worth investigating that the homogenizing influence of the global market is motivating nation states to assert their national identities in reaction; to, so to speak, niche market. As the foregoing discussion might suggest, the facts would bear the interpretation that the Australian concern to protect what is thought of as the only developed culture unique to it is motivated by much the same concerns. Hirst and Thompson (1995) remark that nations, and ethnic or other groups within nations, that claim an "all-pervasive identity" condemn their members to be marginalized. One cannot participate in the international market without participating in the international culture. Accepting for the sake of argument that they might be correct on this, it might be a smart move for a nation to allow its distinctive national identity to be borne by a minority and thus to gain the advantages both of carrying a national trademark and of international integration. But to speculate in this way would be to attempt to look below the face of the record, and so to go beyond a governmentality approach.

Concluding Remarks This discussion has really just touched the surface of what may be drawn out from the field. One of thefurther areas worth looking at are the relationship of intellectual property issues to the wider discussion of recognition of Aboriginal law and land rights. Scott (1996 106) in discussing the construction of the market in modern liberalism, talks of the deliberate creation of spaces of "wild capitalism", delimited areas of "controlled chaos" within the context of a more ordered environment. The construction of spaces of "wildness" as a technique of governance need not, perhaps, be limited to the market. Given the construction of the Aborigine as so thoroughly other it would be interesting to discuss the broader issues of recognition of Aboriginal law and land rights from this point of view.

Another area which could be usefully discussed further in connection with the literature discussed above is the construction of race and its interaction with culture. A comparative overview of the governance, and definition, of indigenous peoples in other countries would also have been useful. Ferguson (1997) would have been an interesting starting point for both of those discussions.

As I write political circumstances in Australia are pushing questions of indigenous governance into the fore of political discourse, and I'm not concerned here to predict how that discourse will develop. This discussion, I hope, has thrown some useful light on one aspect of that discourse.

References

Altman,J 1994 ( Aboriginal Involvement in the Northern territory Tourist Industry) , Centre for Aboriginal Economic Policy Research (CAEPR) Discussion Papers

Burchell, G 1993 " Liberal government and techniques of the self" ,Economy and Society 22(3): 268-282

Davis,M "Indigenous Peoples and Intellectual Propert Rights" Research Paper 20 1996-97 Australian Parliamentary Library

de Zwert 1996 "Copyright in Cyberspace: is copyright dancing on its own grave and singing hallelujah?" Alternative Law Journal 21(6)

Ferguson,F 1997 "How Peoples Get Made: Race, Performance, Judgment" Theory and Event

Foucault, M 1991 "Governmentality" in Burchell,G Gordon,C and Miller,P (ed) The Foucault Effect: Studies in Governmentality . Hemel Hempstead, England, Harvester Wheatsheaf

Golvan,C 1992 "Aboriginal Art and the Protection of Indigenous Cultural Rights"Aboriginal Law Bulletin 2(56)

Gray,S 1996 "Black Enough? Urban and non-traditional aboriginal art and proposed legislative protection for Aboriginal art" Cultue and Policy 7(3) 29-44

Hirst, P and Thompson,G 1995 "Globalisation and the future of the nation state"Economy and Society 24(3) 408-442

ICIP (Indigenous Culture &Intellectual Property Rights) 1997 "Our Culture-Our Future" Janke,T 1996 "Protecting Australian indigenous arts and cultural expression: a matter of legislative reform or cultural policy?" Culture and Policy 7(3) 13-27

Janke,T 1997 "UNESCO-WIPO World Forum on the Protection of Folklore: Lessons for Protecting Indigenous Australian Cultural &Intellectual Property" Copyright Reporter 15(3) 105-128

McKeogh,J and Stewart,A 1997a "Intellectual property and the Dreaming" in Johnston,E Hindess,M Rigney,R (eds) Indigenous Australians and the Law Cavendish,Sydney

McKeogh,J and Stewart,A 1997b Intellectual Property in Australia Butterworths, Sydney

McMillan,F 1998 "Copyright and Culture: A Perspective on Corporate Power" Media and Arts Law Review Vol 3, June p75

Miller,D "Collective ownership of the copyright in spiritually sensitive works: Milpurrurru v Indofurn Pty Ltd, Australian Intellectual Property Review

Miller,P and Rose,N 1990 "Governing Economic Life" Economy and Society 19 1-27

O'Malley, P 1998 "Indigenous Governance" in Dean,M and Hindess,B ed. Governing Australia Cambridge University Press

Rose, N 1996a "The death of the social? Re-figuring the territory of government"Economy and Society 25(3) 327-356

Scott,N 1996 "Bureacratic revolutions and free market utopias" Economy and Society 25(1) 89-110

Stopping the Rip-offs: Intellectual Property Protection for Aboriginal and torres Straight Islander Peoples 1994 Issues Paper, Canberra

Wells,K "The cosmic irony of intellectual property and indigenous authenticity" Culture and Policy 7(3) 45-68

WIPO 1982 "Committee of Government Experts on the Intellectual Property Aspects of Expressions of Folklore" Copyright p282

Cases

Foster v Mountford (1976) 29 FLR 233 [Cited in footnote]

Milpurrurru v Indofurn (1995) AIPC 91-116 [Cited in footnote]

R v Lemon [1979] All ER 482

Yumbulul v Reserve Bank of Australia (1991) IPR 481 [Cited in footnote]

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