The point of intellectual property is to promote the creation of new content, but IP has become so cumbersome it actually thwarts creativity rather than promote it. However, restrictions do not just come in the form of laws, but also critiques of what society finds socially acceptable. Concerns about avant-garde art pushing boundaries would normally be considered the domain of traditional conservatives. Nonetheless, recent developments have made unlikely critics on the Left, concerned about new art “appropriating” the culture of minorities.
I.
In a previous post, I made a strong argument that copyright has become too restrictive. Other forms of intellectual property, like patents, aren’t much better. Duke Law Professor James Boyle has written extensively on this issue: What Intellectual Property Should Learn From Software, A Manifesto on WIPO and the Future of Intellectual Property, and a free book, The Public Domain. Software patents are especially annoying, just ask Richard Stallman.
I had previously stated that IP is interesting because it has a utilitarian basis, not a moral one. Professor Boyle has more degrees than me and says it better:
Yet intellectual property rights are not ends in themselves. Their goal is to give us a decentralized system of innovation in science and culture: no government agency should pick which books are written or have the sole say over which technologies are developed. Instead, the creation of limited legal monopolies called intellectual property rights gives us a way of protecting and rewarding innovators in art and technology, encouraging firms to produce quality products, and allowing consumers to rely on the identity of the products they purchased.
While some academics, technology groups, and libertarian groups (like the Cato Institute) have talked about the problems with IP, mainstream politics has yet to really embrace the discussion, with one exception: the Left is not a fan of pharmaceutical patents. For example, ThinkProgress lauds the Vatican for speaking out against drug patents, and the Huffington Post bemoans the extension of drug patents in the TPP. Naturally, these articles do not have a great grasp of markets or how they work to benefit individuals, but they do bring forward some interesting points; ThinkProgress holds drug patent laws as more of a moral issue keeping lifesaving drugs away from the poor, while the Huffington Post piece (written by the founder of the CEPR) supplies alternative, more efficient ways to run the drug patent system. If you want a counterpoint, I’d recommend The Economist’s commentary on this topic.
I think this discussion is excellent, and more Republicans should start talking about the most obvious IP reforms, like reducing the amount of patents issued (especially in software), and making it easier for the FDA to approve more drugs at lower cost to companies. Unfortunately much of the discussion about cultural appropriation is decidedly less excellent.
II.
Wikipedia defines cultural appropriation as “a sociological concept which views the adoption or use of elements of one culture by members of a different culture as a largely negative phenomenon.” This has an obvious tension with the view I have put forward that intellectual property ought to be narrowly defined, although the two topics are not enforced the same way. Both concern abstract ideas and how they should be shared, but cultural appropriation (or borrowing/inspiration if “appropriation” is too loaded a term) is simply viewed negatively by its critics, while copying pharmaceutical formulas is actually illegal. No one is advocating that government protections be extended to cultural elements…right?
That’s what I thought until I found the United Nations Declaration on the Rights of Indigenous Peoples. Article 31, Section 1:
Indigenous peoples have the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions.
Also Article 11, Section 2:
States shall provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws, traditions and customs.
It’s hard to determine how much weight to give this document. UN General Assembly resolutions are non-binding, so it’s unlikely anyone expects this to be treated like a real legal document. Furthermore, cultural appropriation is a term that has arisen out of academia, not law, so there aren’t obvious legal precedents to follow. If you don’t think about it too hard, the language seems somewhat reasonable, but if taken at face value, it implies state enforcement of an expansive interpretation of intellectual property, stifling not just creativity, but perhaps free expression as well. It would unambiguously create what Lawrence Lessig calls a “permission culture” in his 2004 book Free Culture. At the time, he was referring to asking permission from corporate interests dedicated to protecting their outmoded methods of business, but freezing culture in the past is a bad thing no matter if that culture is owned by corporate interests or indigenous peoples. And that’s not even getting into the specifics of the language, which seem to imply total control (time limits? fair use?) of all intellectual property, even for things we wouldn’t normally consider copyrightable, like sports and “traditional knowledge”. It’s troubling that an entire committee actually agreed to this broad language.
III.
But let’s dial it back a little. It’s important to steel man your opponents, so all we can really claim is that the people who believe intellectual property protections should apply to cultural elements are real, but are confined to UN committees and have yet to introduce any actual legislation. Instead, a much more common, and less extreme, position is simply that use of cultural elements can be offensive to members of the culture involved, especially if used in the wrong contexts.
For example, ThinkProgress, which did not like pharmaceutical patents keeping medicine from the poor, harshly condemned Kylie Jenner for wearing cornrows. They agree with actress Amandla Stenberg that Jenner is “profiting” off of a style that is (or was) associated with negative Black stereotypes, and that she has not “acknowledged” the underlying influences.
Firstly, saying that Kylie Jenner is wrong for not “acknowledging” her influences or doing enough to fight racism sounds like the Copenhagen Interpretation of Ethics, where simply observing or interacting with a problem makes you responsible for that problem. Something is wrong if we would give Kylie Jenner less flak even if she had done nothing additional for the Black community, but had simply worn a different hairstyle that day. It seems clear then that while not acknowledging racism is a problem, in this instance there is also a real claim of “theft” of the haircut.
But does an IP style argument make sense? Can you steal hairstyles? The image of submitting a police report for a copied haircut is preposterous, but even if treated as an intellectual property crime, it’s quite a stretch: trademarking a hairstyle as a person’s image is beyond even the loosest interpretations of trademark law. Trademarking it as the image of an entire group of people is even less plausible. Moreover, if you can steal hairstyles from Black culture, should no mimicking of hairstyles ever occur across any cultures? If the argument only works one way, it sounds like the argument from privilege where an argument conveniently works for my interest but not for yours. This entire line of thinking requires a hypocritical, expansive view of intellectual property in direct conflict with the Left’s view of IP in other areas, and it has the same problems as other expansive intellectual property: it limits the ability to create newer pieces and forms of culture. And remember, intellectual property protections are not a right, they’re something we tolerate to encourage creators; does stealing hairstyles really discourage creators?
So if Jenner copied something that can’t be stolen, what exactly is the issue with what she did? Well, it’s still true that someone could be offended by the borrowing of cultural elements. In fact, I would guess most original authors would be pretty unhappy with what their works get used for after the copyright ends (Exhibit A: Jane Austen would be horrified). But those aren’t generally considered good enough reasons to stop these practices that offend the original authors; the cost to free discourse and creativity is far too high. Of course, the ideas we are discussing are too abstract to ever be protected by copyright or trademark anyway, which makes critiques of them more akin to broad discussions about art and culture generally. Thus, we are essentially discussing boundaries on what art can and cannot do. I’m of the opinion that we should place limits on art, even informal limits, with extreme caution; art is usually about breaking boundaries, not setting them. Any limits we do set should be loose, and constantly revisited; each case must be evaluated in its specific context, and broad rules must be abandoned.
In support of this point, not everyone on the Left is on board with the idea that cultural appropriation is necessarily bad. Take another high profile cultural borrowing: Iggy Azalea. The Daily Beast (who is also a hypocritical opponent of expansive IP) calls her rapping a “cultural crime”. But going back to ThinkProgress, in this piece after bashing Katy Perry for mixing different types of Asian symbols in a musical performance, the author actually makes a nuanced observation on cultural inspiration and concludes Iggy Azalea is playing a vital role in creating new music:
Without cultural cross-pollination, without everybody getting inspired by everybody else—and, sure, stealing from everybody else—we wouldn’t have half the art or music or fashion or entertainment that we want and need and love.
The Atlantic also has an article that refrains from blasting all cultural borrowing as evil, but still errs too far on the side of broad rules. For example, they suggest artists consider paying royalties for using cultural elements, like “any other creative collaboration”. Except no one pays royalties for elements of cultures! Broadcasts of football, soccer, or lacrosse can be copyrighted; playing those sports cannot be. Straight Outta Compton is copyrighted; using the musical style of rapping cannot be. The mere mental image of Iggy Azalea writing checks out to “All Atlanta Rappers” begets laughter.
The article also says sacred objects should not be used as accessories, with the examples being Native American headdresses and Purple Hearts. Those seem like sensible boundaries to me, but this is not as straightforward as the author suggests; different things are sacred to different groups of people. Sometimes we just don’t care about the group, and sometimes we accessorize them anyway:
And even what the author considers the most obvious rule, never wear blackface, is only 100% true if we ignore the Academy Award nomination to Robert Downey Jr. in Tropic Thunder. Yes, we can say this is a caveat, and it was for a role that satirized the Hollywood trope of overly serious actors (and of using blackface itself), but that’s my point: there are no hard rules when it comes to cultural borrowing.
IV.
In the realm of intellectual property, hard rules mean state prohibitions and restrictions on creativity. Trying to approximate government IP protections with informal social rules results in exactly the same problems. Intellectual property protections are not rights, they are an agreement between society and producers to maximize creativity through sharing. If the creation of new ideas isn’t being maximized, then those protections should be rolled back. “Appropriation” and borrowing of intellectual property isn’t a detrimental side-effect, it is the very purpose IP protections exist: to encourage people to make new stuff! Of course, something being legal does not automatically make it a nice thing to do (I’m looking at you municipal parking departments). We can say the same thing about cultural borrowing as we can say for all communication: people won’t interpret your speech the same as you, so remain charitable and don’t be rude.
If you are someone highly concerned about cultural appropriation, your takeaway from this piece may be that your interpretation of “not being rude” is just broader than mine. That’s entirely plausible, but I hope you also take away that limiting the ability of creators in any field to develop ideas has real losses to our society. Since ideas that are never expressed have no visibility by their nature, it is important to remember that even if you can’t see those losses, the impacts are real. The trade-off is worth it in some situations, and not in others. Regardless, this is never the place for moral absolutism, rather for nuance and consideration.