Property in Personhood

Abstract

Traditional communities oppose multinational corporations' efforts to patent traditional remedies. Native Americans contest the Washington Redskins trademark as disparaging. A small New Mexican Indian tribe sues the state government for using a spiritual symbol on the state flag. Australian aboriginal communities seek collective copyrights in their artwork. Indigenous peoples in Canada want copyrights in traditional stories. More and more, historically subordinated groups are turning to concepts of intellectual property - albeit grounded in identity and culture, not economic incentives - as a means to protect against cultural imperialism, cultural appropriation, and digital appropriation.

Current trends in academic thinking do not bode well for these new claims for property in personhood: commodification scholars warn that commodification will lead to the alienation, rather than the preservation, of indigenous culture. Anthropologists argue that property rights essentialize and freeze traveling cultures. Others view these claims as the first step on a slippery slope toward slavery. Finally, there are the critiques from intellectual property, where increasingly scholars bemoan what is called the new enclosure movement in ideas.

But the new claims for intellectual property rights as social relations cannot be dismissed easily. Assertions of power over one's own identity necessarily lead to assertions of property ownership. As Radin has taught us, property is an essential part of what it means to be fully human. Property enables us to have control over our external surroundings. Seen in this light, it is not enough to see all claims for more property simply as intrusions into the public domain - that is, bad intellectual property - or as cultural essentialism, that is, bad identity politics. Instead, we may begin to see them as assertions of personhood.

Just as contemporary property law recognizes property as social relations, we must begin to view intellectual property in a similar way. Indeed, to the extent that contemporary property law offers a balanced, complex, and dialogical view of social relations, the possibilities for property rights in identity are not entirely bleak. Indeed, where scholars increasingly criticize identity politics for relying on a monologic understanding of identity, property could be just what identity politics needs. In other words, while current claims for property in personhood tend toward essentialized views of both property and culture, they need not do so. Far more sophisticated understandings of both property and culture exist. We should not categorically fear the rise of new property rights. Rather, there is much to be gained from articulating competing descriptive and normative visions of intellectual property, particularly those that challenge the historically dominant paradigms.

Keywords: Property, Intellectual Property, Intellectual Property Theory, Identity Politics, Law and Culture, Indigenous Intellectual Property, Traditional Knowledge, International Intellectual Property, Human Rights