South Africa: Power Dynamics And IP Laws | Is The Balance Fairly Struck By Current IP Legislation?

Last Updated: 11 April 2019
Article by Adams & Adams

Part one of this series by Myriam Christmann was titled The Thorny Issue of Cultural Appropriation and served as an introduction to the topic in general and introduced the idea that the remedy to widespread cultural appropriation could be achieved through carefully-drafted intellectual property laws. This post is an overview of the developments that led to the phenomenon of cultural appropriation and the contrasts that exist between today's dominant culture and minority cultures (when we refer to culture, we are generally referring to an integrated system of symbols, ideas and values that a particular community may adopt or live by).

In my previous post I discussed that although the phenomenon of cultural appropriation is relatively simple, its roots and developments are much more controversial. One particular difficulty that arises in this context is the phenomenon's multidimensional nature, being pervasive into a vast number of creative domains, as cultural influences blend, merge, and synthesise. Since appropriation occurs through the dominance of a subordinate by a dominant culture, what becomes central to the concept of cultural appropriation are relationships of power. Calls to redress the phenomenon thus arise from attempts to address power imbalances consequent of colonisation.

Colonisation has occurred with the rise of modernity, namely the Discovery of the New World and the achievements of the Renaissance and Enlightenment movement with Europe as its centre. Together they built the underlying foundation and the unfolding of the Western civilisation ('the West'). The emergence of the West's achievements, for example, technology, freedom of the individual and equality are often praised to be the greatest in human history. Whilst these achievements are in no way meant to be condemned, the darker sides are often neglected; one of them being the effects of colonisation that are still felt today.

During colonialism the West manifested itself as the superior power, dominating native inhabitants not only by means of cultural assimilation (language, belief, clothes, etc.) but also by means of degradation and dehumanising, physical and psychological violence to the extent of genocide and complete extinction of native and indigenous communities. To put it mildly, the West imposed itself forcefully on every corner of the world. The inflicted wounds on generations of people are still to heal. And it is until today that the aftermath, or rather development of coloniality is extending into our present and future. Indeed, colonialism has not disappeared with the processes of decolonisation, but rather furthered the process where communities and people have been, and are, racialised and gendered socio-economically and politically according to an invented Eurocentric worldview.

And the law is no exception in this regard. The creation and foundation of intellectual property laws as we know them today have been shaped primarily by a Eurocentric worldview.

With the emergence of copyright, the foundation for the creative "Self" was laid down by the Enlightenment movement. While authors like Plato, Aristotle or Confucius regarded themselves as mere vessels and transmitters of ancient knowledge (or even receiving gifts from the muses), the period of Enlightenment and Romanticism liberated the notion of the Individual as the sole creator of an artistic work, thereby reshaping the traditional creative process. Copyright laws aim for the protection of the (individual) author's identity and his/her creative process and not for the creative process that resulted within the traditions of (indigenous) communities.

The same holds true for the law of trade marks, in the sense that "self-realisation" within the realm of the individualisation process is marked by the phenomenon of consumerism – I buy therefore I am. The role of trade marks is hence justified by granting monopolies within the market, in order to indicate the source of origin for the consumer. However, the longing for such self-realisation is most often satisfied by the consumption of material goods without proper consciousness and lacking awareness of the consequences it bears; one of them being cultural appropriation.

Both notions (legal and non-legal) originate from the Eurocentric point of view, yet, the issue increasingly becomes a global one. This is not in itself a problem, but since cultures portray permeable concepts that transcend, develop and grow from each other it would be negligent to assume that the only creative processes that can be protected are those that emanate from an individual self. The problem of that assumption is that the contrasting of two different cultures depends, obviously and necessarily, on the dichotomy of otherness.

Due to the fact that within the Eurocentric standard the world is perceived by means of identity, there is an implication of relational standards. The Self, the "I" opposed to the other. Identity is, however, only represented by an established social order or hierarchy, in which a certain group (or certain groups) is founded as being superior to others. This again results in notions of power relationships reflecting superiority and inferiority embedded in particular identities.

It is for this reason important to understand the value of cultures that are opposed to the Eurocentric view, and what culture actually means to indigenous communities and the world as a whole. The next post will, therefore, be dedicated to elaborate in more detail on indigenous culture, indigenous identity as a human right and the role of intellectual property laws in that regard.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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