Madhavi Sunder, Acting Professor of Law, University of California, Davis. Thanks to Jesse L. Alexander III, Sonal Ambegaokar, Guro Inder Khalsa, and Sage Reeves for excellent research assistance, and to The Journal ofGender, Race & Justice at the University ofIowa for making this newly minted professor's first conference a delightful experience. Thanks also to the participants ofthe conference, especialIymy co-panelists Rebecca Tsosie and Phoebe Weaver Williams, for their valuable insights. 1 presented an earIy draft of this Artiele to the Asian Pacific American Cultural Politics Research Group at the University of California, Davis, and gained much from the comments of the participants, especialIy Gayatri Gopinath, Kevin R. Johnson, and Thomas w. Joo. This Artiele also benefitted from an illuminating conversation with Janet E. Halley. My greatest debt is to my husband, Anupam Chander, who inspired me to join him in seeking to understand the significance of diaspora to law. This Artiele is part of a larger intellectual project to explore criticalIy the implications ofthe elision of intelIectual property and identity politics. Today, we are witnessing, on the one hand, the rise of identity-based justifications for new intelIectual property rights and, on the other hand, identity polities' growing interest in regulating culture flows through intellectual property law. I am exploring the implications for both intelIectual property and identity polities of these simultaneous phenomena.
We have fewer cultures in the world and more internal cultural debates. 1
It should come as no surprise that in today' s Infonnation Age many of our important local and global rights struggles revolve not around material circumstances-Iand, jobs, money-but around metaphysical goods-ideas, infonnation, meanings. Californians began the year 2000, for example, debating whether gays and lesbians may have access to the definition of marriage, not to the rights and privileges of that institution.2 Similarly-as many Page 70 ofmy colleagues in this Symposium have described-African, Asian, Chicano, and Native Americans are responding to the historic exclusion of minorities from popular cultural representations with campaignsfor access to the seats of cultural power, in the form of actors, writers, directors, and producers in Hollywood television and film.3 At the global level, many countries are struggling to develop legal means toprotect their culture industries-namely music, television, and film-from being drowned out by American media exports.4 These efforts illuminate the new centrality ofstruggles over discursive power-the right to create, and control, cultural meanings.
An important question for law is whether conflicts over rights to make and control cultural meanings will be govemed by free speech .laws, as cases involving access to the media in the United States traditionally have been govemed,5 or by the laws of intellectual property. Speech and property present strikingly different metaphors for regulating cultural meanings. While we tend REY. 385 (1999). Page 71 to think of speech, in ideal terms at least, as "free" (while recognizing certain limited restrietions), the very concept of property is founded on ownership, or more specífieally, on legal rights to use, transfer, and exclude.
At the moment, it looks like the property forees are gaining ground.6 Scholars and activists increasingly are seeking to use intellectual property law to provide subordinate groups with legal rights to exclusive control over cultural representation including, most importantly, the right to exclude unwanted or harmful images from being portrayed by "non-owners" of the inteIlectual property.7 These new arguments for intellectual property rights in cultural identity suggest a profound shift in inteIlectual property law: where law has traditionaIly allocated rights to exclusive control and exclusion over inteIlectual products in order to provide economic incentives for production, it now contemplates awarding intellectual property rights in order to protect the Page 72 identity of the property owner, regardless of the economic consequences of nonprotection.8 The quest to control cultural representation through intellectual property rights follows two important developments. First, attention to the "politics of recognition,,9 has heightened awareness of the critical role that representation plays in the development of individual and group identity. The influential insight of Charles Taylor that "our identity is partly shaped by recognition or its absence, often by the misrecognition ofothers," has focused attention on the effects of representation, and particularly on the need to address the "real damage, real distortion" that a person or a group can suffer "if the people or society around them mirror back to them a confining or demeaning or contemptible picture of themselves."10
Second, there is the rising fear among many that certain cultures are being wiped out or appropriated and thereby lost. In response to such fears, Will Kymlicka, has made some of the most compelling arguments for legally recognizing claims for "cultural survival."11 Reminiscent of Johann Gottfried von Herder, 12 Kymlicka observes that modemity simply has not diminished the value of cultural membership or the desire for cultural distinctiveness.13 Kymlicka notes that while liberalization "has resulted both in fewer commonalities within each of the national cultures, and greater commonalities Page 73 across these cultures,"14 modern peoples nevertheless persist in trying to maintain sorne sort of cultural integrity.15 From these empirical observations, Kyrnlicka argues that liberalism mandates cultural survival "because it is only through having access to societal culture that people have access to a range of meaningful options.,,16
These concerns about the effects of misrepresentation, on the one hand, and the persistent desire and need for cultural survival, on the other, have translated into claims for intellectual property rights in culture as a bulwark against cultural imperialism and cultural appropriation17 The concern about "cultural imperialism" refers to the tbreat ofassimilation or the loss ofcultural distinctiveness;18 in an international framework, the fear is that globalization of U.S. popular consumer culture wilI replace local cultures entirely.19 "Cultural appropriation" is a term used to describe the phenomenon of culture traveling in the opposite direction: "the taking-from a culture that is not one's own-of intellectual property, cultural expressions or artifacts, history and ways of knowledge.,,20 Cultural appropriation raises at least two major concerns. One concern is that non-owners of a culture may misrepresent another culture, and thereby damage the culture being distorted.21 Another fear is that outsiders wilI exploit the cultural resources of a people, with the people losing the economic benefit of their cultural production (this claim is akin to one of unjust enrichment, or of "cultural theft").22 Empowered by the insights ofTaylor and Page 74 Kyrnlicka, subaltern groups accuse whites of unjustly appropriating images of minority groups,23 stories and symbols ofNative Americans,24 art of Australian aboriginals,25 and the folklore and spirituals of African Americans.26 Interestingly, calls for minority groups to own their culture in the form of intellectual property resound despite the historical association ofproperty with the exclusion and oppression of minority groups27 Following Patricia Williams' argument that subordinated groups should not abandon the pursuit for "rights" just because they long have been on the losing end of that discourse, advocates of intellectual property rights in culture argue that "if effectively framed, [property rights] can serve both as a countervail to oppression and as a source of empowerment.,,28 They argue that because the "right of exclusion at the heart of the concept of property is· ultimately about power," property rights that allow subordinate groups to exclude foreign influences on their culture, or exclude foreigners from appropriating their culture, would provide "empowerment.',29
This Article criticizes current efforts to use intellectual property rights to address imbalances in cultural representation. I stake out my argument by way ofa cautionary tale from abroad. In Part I, I consider the recent debate in India Page 75 surrounding the regulation of Fire,30 a "diasporic,,31 film, written and directed by Deepa Mehta, which depicts female homosexuality in contemporary India. 1 argue that under a mantle of cultural protectionism, right wing Hindu fundamentalists treated lodian culture much like it was their intellectual property as they sought to persuade the lodian government and the market to shut down the film. Cultural protectionists, while not explicitly relying on intellectual property law to support their position, conceived Indian culture as having an essential meaning that needed to be legally preserved and protected against dilution by foreign influence, andsought an absolute right to define lodian culture and to exclude meanings that contradicted their definition.
I develop the core of my argument against intellectual property rights in culture in Part n. largue that in an era characterized by identity politics (claims for the preservation of cultural distinctiveness), legal commitment to cultural dissenH:onsisting ofthe right to recast cultural mores, traditions, and meanings in light of new values, information, and needs-rather than cultural survival, is necessary to balance the needs of individuals against those of groupS.32 The Fire .controversy illuminates how identity politics in postcolonial India is characterized by...