Monday, October 3, 2011
Nicholas Reid reflects in essay form on general matters and ideas related to literature, history, popular culture and the arts. You are free to agree or disagree with him.
SHOULD NATURAL THINGS BE COPYRIGHTED?
There’s a very good article by Jonathan Milne in the latest NZ Listener (1 October 2011). It concerns the contentious Wai 262 claim that has been put to the Waitangi Tribunal. This is the one in which certain iwi are seeking to copyright not only traditional Maori medical practices, but also the plants (and their names) that are used in such practices. A feature is made of manuka honey, and its incorporation into products that make massive profits for multinational corporations. The Wai 262 claim argues that iwi should receive compensation (i.e. a lot of money) for such uses.
At this point, I could raise side-issues, some of which are touched on by Milne.
One is the fact that, in the New Zealand political context, governments are now reluctant to dabble in these matters lest they face a replay of the Foreshore-and-Seabed brouhaha. The prime minister and his Treaty Negotiations minister are keeping diplomatically quiet about it in an election year and will address the matter in 2012 at the earliest.
The other is that, should the Wai 262 arguments be made into law, only a minority of any iwi would ever benefit from them; namely, that part with the commercial skills (or legal advice) to make the most out of the financial settlements. Sometimes, generous-hearted liberals assume that pay-outs to an indigenous group automatically benefit all disadvantaged members of that group. They are seen as an extension of egalitarian social welfare. In reality, it never works that way. The beneficiaries will be a handful of astute Maori entrepreneurs.
These are interesting issues, but they’re not really the issues that most interest me.
I’m more concerned by the notion that things existing in the natural world can be copyrighted at all. If a flower, root or leaf has medicinal properties, its exploitation could doubtless make a fortune for the commercial outfit with the expertise to develop it, much to the annoyance of those who dislike the profit motive anyway. But to copyright or patent such a naturally-existing object would not be to end profitable exploitation. It would merely change the names of those doing the profitable exploiting.
I have heard the argument that indigenous plants are the taonga – or “treasure” – of an indigenous people, and therefore have special cultural or spiritual significance to which non-indigenous people are not privy. In the New Zealand context, the concept taonga is recognised under legislation pursuant to the Treaty of Waitangi. (Not under the treaty itself, of course. It is a very vague document and of itself has no legal standing.)
But I am not persuaded by this argument for a number of reasons.
First, we all invest things with cultural and spiritual significance. I won’t turn autobiographical and give you my own responses to the natural world. It’s likely that they are different from those of indigenous peoples in many places. But they have a strong spiritual (I prefer the most robust term “religious”) element. How I respond to plants, trees and leaves in New Zealand is as genuine and important to me as the response of anybody else in this country. I do not believe modern Maori – any Maori – have insights into the natural world superior to my own, although in some cases they are likely to be different from my own.
Second, there is this whole problem of indigeneity. Who has the right to be seen as “native”? If naturally-existing things are copyrighted in the name of one group, on the assumption that they are more indigenous than another, then other groups are effectively being told they have lesser rights, or at least a lesser connection to the natural environment in which they live.
Put bluntly, then, I oppose putting patents or copyrights on things that are not human creations anyway.
This objection is not a challenge to the concepts of ownership and property. I appreciate that patches of land are natural things and can be owned. But land itself cannot be patented. You can own that patch of manuka and I can own this patch of manuka, but I do not believe either of us should have the right to claim all manuka as a monopoly. Neither of us created it.
Should we therefore say that, for example, groups of French vignerons should not be allowed to copyright (as they do) names of wine like Champagne and Bordeaux, and forbid others to use them? But in that case, it is not a natural thing - the regional variety of grape - that is being monopolised. It is a human invention – the method by which a certain regional type of wine is produced from the grape, which can be traced to specific individuals.
This is a quick and superficial response to the whole issue on my part, but it does lead into even thornier cultural questions.
Can copyright be given to groups who have inherited a traditional craft or knowledge, for whose invention or discovery no individual is responsible? Part of the argument over medicinal plants has to do with the idea that an indigenous group first discovered their medicinal properties. They should therefore be rewarded with patents the way pharmaceutical researchers are.
The problem here is that age-old remedies and crafts were no one person’s invention. You cannot point to an individual as the originator of traditions. Therefore no individual (or modern group) can really claim credit for them.
What of purely cultural (and human-made) phenomena? Should non-Maori perform haka, or use traditional Maori motifs in their art-work or wear moko on their faces? After all, isn’t this a species of “cultural theft”? Postmodern cultural commentators are always ready to dash in with words like “appropriation” whenever they see an artist using motifs from a culture other than the artist’s own.
Again, I would argue that none of these things was invented by an individual, and attempts to restrict their use or development to one ethnic group would be a species of censorship, as well as an intrusion on the expressive freedom of artists.
This is not the same as an individual’s copyright on an individual work of art. If, as a poet, I expect to hold copyright on a sonnet I have written, I am not assuming that others have to apply to me if they choose to write sonnets of their own. Haka, motifs like the koru, and moko are artistic forms. Unless they are specific works by specific creators, there is no case for patenting them or copyrighting them or limiting their use to one ethnic group.
There is, of course, the wider issue of cultural sensitivity. (A few years ago, the disingenuous term “cultural safety” was invented in some bureaucratic documents. This can only be read as an attempt to pretend that the matter was in the same category of urgency as literal physical safety.) There is the possibility that vulgar and otherwise insensitive performances of haka by non-Maori will give offence to Maori, or that moko will be debased if used as a fashion statement.
I, too, find vulgar misuses of traditional motifs distasteful. But this is an argument for sensitivity, not for legislation, copyright or restricted use. As the member of a particular cultural sub-group, I am often offended by the misuses that are made of symbols and images that are important to me. But I have never thought that the uses of these symbols and images should be limited by legislation, lest by sensitivities be hurt.
The case for patented restriction of traditional human cultural motifs is feeble. But it is nevertheless stronger than the argument for the patented restriction of natural things, for which there is no case at all.