Western and Indigenous conceptions of intellectual property: similarities, differences and convergences

Résumé du document

Anthropological discussions of intellectual property developed in the beginning of the 20th century, mainly as part of a debate that is more generally oriented towards the understanding of human creatitivy, and the value attributed to those creations. But observing those different forms of exchange of incorporeal items also challenges our conceptions of materiality. Taking on Malinowski's idea of understanding, the world through the study of the Papuean society, we can see those observations as a resource with which we can think through and analyze problems that are common to the people in the world. The specific term indigenous is used here to refer to particular people and groups around the world who are seen as natives, associated with a definite territory and have developed autonomously specific types of practices. What is of interest here is to compare the systems of entitlement over incorporeal objects that have been constructed in totally different contexts, and those that were progressively born in the Western world during a period that stretches from the Renaissance until now. In this paper we will consider copyright in a broad sense as the restrictions that create legitimate entitlement to circulate the reproductions of specified objects. I will focus, most of the time, on the constructions developed in the Melanesian societies.

Extraits

[...] This is why, in a first part, we are going to see how Western and Indigenous systems of intellectual property are different one from another, and in the second part we will see how they can meet and be productively linked. Western and indigenous conceptions of entitlement : how do they differ? Diverging nature and function of intellectual property in these two systems The Western conception of intellectual property Copyright is generally understood as the legalization of a particular type of property relation, between the individuals, and their creative productions. This conception is very linked to the context of European print capitalism, the Industrial Era, and thus not necessarily applicable in all cultural contexts[1]. [...]

[...] However, the proprietorship systems can be very different in their initial assumptions, for example the property can be collective or can be a place's, as we saw before. But immaterial objects will often be exchanged/transmitted as any object of value. In Lowie's Primitive Societies we can find several common points between the Western and the primitive systems of entitlement regarding the characteristics associated with property. For example, for the Nootka Indians in British Columbia, there are several categories of intangible property, and the exclusive ownership of those intangibles is transmitted in the family. [...]

[...] About the Andaman Islands, a group of archipelagic islands in the Bay of Bengal, Lowie[8] explains that one can borrow objects from other people without permission as long as they do no excessively move it away it from its owner, or fully appropriate it. The boundaries of material property are not clearly defined. However, this is not the case for incorporeal property, which is defined by very strict rules: for example, no one would ever dare to sing a song composed by someone else. Only the author of the song, no matter its popularity, is enabled to perform it. [...]

[...] There is an indigenous economic power only through intellectual property rights. This is the kind of observation that drives observers to put side by side the right to intellectual property to the right of development and self- determination[18], in those cases. To continue, we can also perceive artistic and moral concerns: the preoccupations that are claimed to be behind the protection of kastom rules are also the desire to maintain quality control and artistic integrity[19]. Restricting the entitlement to carve and paint to the members of a family may be seen as a way of controlling the production of objects intended for the art market, and not having their identity and cultural values altered by an increasing commercialization of those. [...]

[...] Terminating with the idea of exclusivity : in his article Ontologies of the image and economies of exchange, Myers[13] studies the ways in which the relationships to objects, in property, organize boundaries. It is a dimension that is very sensible in indigenous conceptions of intellectual property rights, but also in Western copyright. In Vanuatu the sui generis system of entitlement is really troublingly similar to common international copyright practices: when a carver wants to reproduce a traditional design, he has to pay[14] the owner of it for the right to reproduce this specific design, and then to circulate it[15]. [...]