Propertied Culture Thought Experiment
from Alfino, "Deep Copy Culture" (forthcoming)
However, when we look at advanced post-industrial cultures such as the US, we find the transformation (or colonization) of traditional culture into ‘propertied culture’ (cultural expressions in which someone owns copyright, patent or trademark) and traditional forms of culture into commercial culture. Thus, it is increasingly common for casual and non-commercial use of propertied culture to trigger rights violations. Seen from the standpoint of modern copyright, this is a completely welcome outcome because it extends the market for profitable cultural representations (books, movies, theatre), promoting economic growth.
From the perspective of our investigation, however, the uncritical extension of propertied culture is problematic if it distorts natural symbolic behaviours or constrains access to adaptive resources. People naturally use the representations and cultural images and identities available to them to construct and revise their identities and expression, from the great poet to a man or woman trying to get a date. In a highly-commercialized culture, a higher percentage of those representations are propertied and will require payments to rights holders. But conditioning access to culture on economic status is problematic if working with cultural representations is both crucial to identity formation and a wide range of social and evolutionary processes; that is, if the deep copy culture hypothesis is correct.
To see why, consider the following thought experiment. Imagine a future in which an indigenous people lack the financial resources to access archives of their own culture’s history. Of course, many existing indigenous peoples do in fact lack the resources to travel to the urban locations where universities and states often archive and display their cultural artefacts. So this part of the thought experiment is not so unrealistic. But to make the thought experiment more vivid, imagine also, and contrary to recent experience, that research archives in the future become less transparent, with fewer resources online at no charge, and that more institutions charge for access to collections. Further, imagine that the cultural group seeking access to their own cultural archives (of art, personal records, traditional practices, history) has experienced a profound dislocation in their cultural experience, perhaps due to war and genocide or an oppressive regime that criminalized its practice, so that the project of recovering cultural knowledge is particularly immediate and relevant.
What would be wrong with simply denying the group’s access to the archive? If we are imagining propertied culture as meeting Locke’s proviso of leaving “enough, and as good left,” then the answer could be ‘nothing’. But clearly this misses something vital about the role of culture. As I have been arguing, culture does ‘work’ for us that we did not appreciate or understand well in the 18th century, when we were opening up new markets for copyright with decisions like Donaldson. If we are participants in a deep copy culture, one which has consequences for our flourishing both individually and as a group, then the denial of the group’s access to their own culture is a perverse and unnatural act, akin to a violation of a human right. Cultural representations are the medium and reference points for identity. Like education, which takes us deeper into complex cultural representations, the denial of access to one’s own culture, like the desecration of cultural artefacts, is an act of profound aggression. When cultures have been disrupted in deep ways, such as in the transatlantic slave trade or genocides, people typically develop new culture around the disruption, treating it as the crisis of history and identity that it is. Our thought experiment represents an extreme limit condition to dramatize the unnaturalness of a fully-propertied copyright culture. But it is not so far-fetched to connect access to one’s culture to a fundamental human right. It is similar, for example, to Article 9 of the European Convention on Human Rights, which governs the freedom of thought, conscience and religion (European Court of Human Rights 2010) and protects broad ranges of cultural practice from intimidation and fear.