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more it is consumed through a patent regime, the more knowledge about it
is likely to expand.
Yet why do Euro-Americans sometimes accuse scientists of ˜patenting
nature™? In biotechnology, the manifestation of nature they dwell on is ˜life
itself ™ (Franklin 2001 ). So along with objections to patenting human beings
or individuals go living things and life (Strathern 1999a: 171 “2; Strathern 1998:
744). Yet the very act of patenting seems to reaf¬rm a strong divide between
nature, which cannot be patented, and artefacts, which can. What could be
more explicit than the legal exclusion of plants or animal varieties or biological
processes (Walden 1995: 182, apropos the European Patent Convention 1973),
not to speak of the human body (in the EC 1998 Biotechnology Directive)?
So why do people talk as though nature, or life, were being patented? One
does not have to look very far for an answer. Patent confers ownership, and
there is a long history of Euro-American suspicion over what people do to
one another through asserting ownership.
Patent ownership confers the right to enjoy bene¬ts that arise from the
owner™s investment in the invention. As with all intellectual property rights,
the right is held as private property; although others can seek release of the
information (e.g., under license), the owner regulates access. But it is not
always clear what the property contains. An often voiced concern is about
what is being gathered into the patent. Let me note several distinct concerns.
The ¬rst concern has been touched on: truncating the network of scientists
behind the invention into those who claim the ¬nal inventive step that leads
to a patentable product. The second concern is the breadth of the patent:
how much is being claimed over future processes or products is a matter of
current controversy. The third concern is that there is too much modi¬cation
of what people see as the order of things, and it is here that appeals to nature
emerge.
When people claim that property ownership has inappropriately extracted
items from that world, they go behind the decision as to whether something is
an invention to query the process by which the invention came into being in the
¬rst place, back to the moment when all the elements were still unmodi¬ed
(cf Pottage 1998: 753). To assert that ˜nature™ is being ˜patented™ is to draw
up political or ethical lines in order to curb the extended agency of human
interference. Indeed, criticism of property rights may go hand in hand with
the disenchantment of technology; it is alleged that the separation between
technology and nature has been breached because patents that properly apply
to technology are now being applied to nature. The phrase patenting nature is
part of the politics of disenchantment.
103
THE PATENT AND THE MALANGGAN


The fourth concern is a very old one. To assert ownership by way of patent
inevitably engages with a long Euro-American debate over private property,
historically regarded as carved out of what would otherwise be available to
all. This may be nature or it may be other human artefacts and knowledge.
Critics of current practices have reintroduced the language of enclosing the
commons. Phillips and Firth (1990: 21 “2) continue their comment on each
invention as a permutation of previous inventions as follows:

Correlative to this view, is the asumption that, if each unit of information is a com-
munity resource, part of the common heritage of mankind, no edi¬ce constructed
from such communal blocks should be able to constitute a privately-owned inven-
tion. [They then add:] The modern intellectual property lawyer ¬nds it dif¬cult
to accept this, unless he can persuade himself that there is no difference between
a palace and the pile of bricks from which it is built.

What is claimed for society (common heritage) is then claimed for nature:

[T]he patentability of discoveries would result in man™s expropriation of nature
itself, and it is dif¬cult to justify the expropriation by one of what is already the
natural legacy of all.
Phillips and Firth 1990: 35

Expropriation implies an exclusion of, the owner™s separation from, others.
Ownership works as a kind of extended agency, an extension of a person™s
capacity, personal or corporate, with a reach as far as products will travel. If
what is owned has the legal character of private property, then technology, in
the legal form of a patent as the right to exploit it, is so to speak folded within
the individual owner.
This is textbook stuff. Here I have a suggestion. In relation to ˜inhabiting™,
the concept of ˜containment™ conveys the sense in which parts of our social lives
seem to be lived within others, ¬gures within ¬gures, knowledge composed of
(other) knowledge. With the in¬‚ection of dwelling, it implies more than the
kind of ¬t with the world that makes it comfortable and familiar; it points to
an existential orientation toward it. Euro-Americans take momentary refuge
in nature or in technology, either of which seems at once around and part
of them, or else in all the dwelling places afforded by notions of community
or locality. But there is a further candidate for habitation, nothing to do
with environment or community, that allows Euro-Americans to dwell in
a thoroughly taken-for-granted world, an envelope that allows them to live
within themselves.
I take my candidate from the way self-acknowledged Euro-American mod-
erns become attached to a world they see full of useful and beautiful things. It
104 KINSHIP, LAW AND THE UNEXPECTED


is a world they imagine that people desire to appropriate, whether they think
of private individuals in exclusive possession of property or of the common
people in open possession of its bounty. Ownership. What is not owned exists
either to be owned as some future resource not yet exploited or else is no-
tionally owned by humankind in general, including the generations to come.
Ownership envelops all. Is ownership a mode of habitation? The manner
in which Euro-Americans attach things to themselves makes them at home
in the world “ whether contained by technology or by nature “ from which they
think of such things as coming. Ownership is a kind of second skin to these
two containers, a world through which people are in¬nitely interconnected
through the inclusions and exclusions of property relations, and in which pos-
session is taken to be at once a natural drive and the just reward of creativity.
Property “ in rights, in pro¬ts “ seems comfortably within everyone™s grasp,
subject only to the limitations of unequal endowment.
It would, I think, be an enchanted world, created not least by the magico-
puri¬catory divide at the heart of property relations, the cultural sleight of
hand that suggests that just as things are intrinsically separate from persons
so too things intrisically separate persons from one another. Principles of
ownership carry their own exclusions and separations. The stereotype is that
we would have to go to other cultures to escape that particular enchantment.


return to new ireland “ 2
For a third time, the stereotype would be misleading for New Ireland. There
is much that can be translated as ownership.
We saw that agency or energy located in numerous social places had to be
gathered into one place, focused in the carved and painted Malanggan ¬gures
and then redispersed. However, that is only half of the story. Every gathering
together, every recombining of motifs out of motifs, involves a speci¬c claim
of title. It is not possible to incorporate designs without permission. That is
because only certain people have the right to use the knowledge associated
with particular Malanggan.
On the one hand, the authorisation to display the image is vested exclusively
in the sponsoring clan or local group; on the other hand, expertise is required to
carve the ¬gure, and owners of Malanggan must commission an expert carver.
Sponsors own not so much rights to the designs as rights to their reproduction,
and the subjects of reproduction are images retained as memories. It is the
right to make bodies, to make material and to give physical form to images, that
is transferred across the generations and across groups. Transfer is sealed by
payment. Now if Malanggan can be considered technology, in the captivating
105
THE PATENT AND THE MALANGGAN


effect of the skill required to reproduce the ¬gure at all, we might be tempted to
see the enchantment of technology. The skill in question is as much intellectual
as manual and requires the work of both owner and carver.
When Malanggan are displayed, the new owner takes away the sighting of
the form to which he has acquired rights and which he then holds as a memory
for what may be as long as a generation. This means that the would-be sponsor
(the owner) of a new Malanggan carving will have glimpsed the image long
before it is to be reproduced.33 He must now describe the image in detail to
an expert carver, who in turn conceives the new form in his own mind, an
inspiration assisted by magic or by dreaming. What is dazzling to the Euro-
American is the ability of the carver to produce a form from a description
held by another person (the owner) as the memory of a Malanggan seen
years earlier. What one suspects34 is dazzling to New Irelanders is the way the
resulting body emerges from two bodies.
I earlier asked why New Irelanders distance themselves from what they
regard as enveloping them. Perhaps one answer lies in the enchantment of
this particular technology, the way artefacts are construed as having come
into being. Reproduction requires two persons, and they have to be socially
distinct. The techniques by which new Malanggan come into being work
only because of the successful joining of quite separate efforts (the work of
remembering and the work of carving).35 Indeed, it is important that the form
emerging from the clan repertoire is only like its original in some respects;
axiomatically, Malanggan do not duplicate one another (cf K¨ chler 1987:
u
244), any more than human offspring duplicate one or other parent alone.
(We might say that the ˜ancestral™ Malanggan body is the child™s image of the
parent body.) What is contained within the ˜skin™ (body) of the Malanggan
must be kept distinct from the container: social difference is conserved at the
very point at which the deceased also merges with the ancestors. Similarly,
between sponsor and carver, it has to be the work of joining that makes the
reproduction a unique and amazing process. Work is perceived to be at the
heart of Malanggan (Sykes personal communication; Lincoln 1987: 33).
Now the mode in which these rights are claimed has long prompted compar-
isons with intellectual property and speci¬cally with copyright. Some ¬gures
are made with an outstretched tongue said to have the function of ˜threatening
all offenders against the owner™s copyright™ (Heintze 1987: 53). ˜Copyright™ is
of course the ethnographer™s gloss.
One could therefore think of the whole ¬gure as an artistic work subject
to copyright, a kind of literary text replete with (permitted) quotations from
other texts but itself an original form of expression. However, let us take the
analogy step by step. What is gained is the right to reproduce the design. And
106 KINSHIP, LAW AND THE UNEXPECTED


what circulate in transactions are ˜not objects, but the images they embody™
(K¨ chler 1988: 629; Harrison 1992: 234).36 At issue is not the identical text, the
u
form of expression that is key to Euro-American concepts of copyright, but
the idea behind it:

For when the license [for a Malanggan] is sold, not the ¬gure itself but the de-
scription of the form and associated rites are made available to the purchaser.
Bodrogi 1987: 21, my emphasis

When a Malanggan appears, others may challenge the owner™s right to repro-
duce a particular design, and Gunn (1987: 81, 83) speaks of people having to
˜defend copyright held by another subclan™ or of the process of transference
being subject to public inspection for ˜breaches of copyright™. Yet the challenge
comes from those who hold a memory or idea of the image they claim is theirs,
not from being able to compare its expression or realisation in material form.
The carving no longer exists. Moreover, the owner of the supposed copyright
cannot necessarily give permission for others to make copies. He can dispose
of the copyright, like property, but in many circumstances another can only
make a copy by acquiring the copyright itself. And then:

With the sale of the copyright the earlier owner is deprived of all rights to make
the type [now] sold.37
Bodrogi 1987: 21

Finally, the design is not copied as such; rather, it is lodged in the memory as an
image to be recalled at a later date.38 Indeed, in respect of certain elements of
the Malanggan, we may note that claimants™ rights exist only until the moment
of their realisation in material form, the point at which they are transferred
to others; people own them most securely as memories still to be realised.
Reproduced, not replicated: the analogy with copyright does not seem to go
far enough.
If we did indeed think of the Malanggan not only as art or text but also as
a piece of technology, then we might refer to the rights in question as being
guaranteed by something closer to a patent.39 Some differences are clear. A
patent grants a monopoly to exploit an idea (embodied in some artefact),
and is held by one owner at a time; others obtain the idea or artefact through
license or purchase. By contrast, use of Malanggan is (usually) effected only
by those who simultaneously own the ˜patent™ rights insofar as one cannot
display the product, the embodied image, without having acquired ownership
of the idea as well. However, in one respect a Malanggan bears resemblance
to an invention under patent.
107
THE PATENT AND THE MALANGGAN


Such an invention gathers together expertise (all the knowledge that went
into making it) and then through its application disperses the effect of that
expertise (through products widely available). And that gathering together is
done for a set period: a patent is made to expire.40 In the interim, it has con-
densed multiple agencies into itself, reproducing them in the names of the new
owners. Moreover, the unique item with its particular combination of motifs
is the effective materialisation essential for transfer to the next generation; the
conceptual template held by the heirs is not extinguished but neither can it be
activated without being embodied in a speci¬c Malanggan form. Of course in
the case of expiring patents it is the owner™s rights that are extinguished after
so many years, and the invention goes on being used, whereas New Irelanders
extinguish the particular invention (the individual Malanggan), and the rights
go on being conserved. Nonetheless, we might conclude that Malanggan not
only are like a technology in some of their effects but also are like the very
patents taken out to protect the application of technology, at once a description
of transferable rights and a speci¬cation of how they are to be materialised.
Patent applications in the United Kingdom run at some 27 000 a year, per-
haps 7 000 of these being granted, with some 180000 renewals (Bainbridge
1999: 336“7). This gives the order of recent patents, with upward of some two
million, it has been calculated, lying expired in the Patent Of¬ce.41 The reason
Malanggan are one of the best represented and collectible type of art object,
some 5 000 now housed within the museums of the world,42 is precisely be-
cause their function as unique habitations for energy and power will have long
expired. The rights to reproduction remain active until the image has been
properly reproduced, but then it (the image) comes to lodge in a new version
whose powers are animated by a new generation.43 This is technology in a
state of perpetual transferral.


new irelanders, says sykes (2000), claim malanggan as a
distinctive feature of their modern and customary cultural life. Imperfect
as the analogy with technology is, it draws attention to the way in which
artefacts such as Malanggan work their effects on people and to the knowl-
edge that is held to be embedded within them. And impossible as the analogy
with patenting is, the comparison perhaps enables us to grasp some of the
imaginative and ideological potential of Euro-American intellectual property
concepts, one of the many forms modern rationalities take (Rabinow 1996a).
The recombination of elements of information, the amalgamation of new
and existing forms, the minute variations that may be suf¬cient to demonstrate
crucial intervention, channelling past knowledge to future effect, a limited
108 KINSHIP, LAW AND THE UNEXPECTED


period of ef¬cacy: all this could as well describe a Malanggan as it describes
a patent. Yet there is a gulf of ideological proportions between them. Mod-
erns of New Ireland persuasion think of Malanggan neither as inventions
(application of technology),44 nor as describing the original inventive step
(patents). Indeed, individuals are only regarded as producing original images
under certain somewhat risky circumstances. The overriding doctrine is that
artefacts are acquired not created; therefore, the routes of acquisition are a
crucial source of their value. Concomitantly, it is not the protection of new
forms that New Ireland people seek but the right to reproduce what others
have reproduced before them. This representation of their efforts is as much
a misrepresention (Harrison 2000) as are the equally dogmatic assertions by
English-speakers of originality and innovation as the basis of technological
advance. The Euro-American doctrine is encapsulated in the very notion of
patent rights. These point to inventions as artefacts created not acquired, and
what is protected is not a right to reproduce the original invention but the
right to prevent others from freely reproducing the capacity that the invention
has created.
We have seen how the concept of nature upholds this legal doctrine; it
underwrites the distinction between discovery (of things in nature) and in-
vention (abstracted from nature through human ingenuity). And it may do
so to the point of absurdity. In talking about attempts to patent a cell line
and similar biotechnological innovations, Pottage criticises the way this ˜ba-
nal doctrinal distinction™ (1998: 750) is used to put down political or ethical
objections. His own objections to the ˜endless permutations of “nature” and
“artefact”™ (1998: 753) are twofold. First, the distinctions are brought in to
truncate arguments concerning the political or ethical implications of what is
or is not commodi¬able. ˜Political oppositions are not a function of [cannot
be dismissed as] doctrinal confusion™ (1998: 753). Legal doctrine takes, as the
basis for decision-making, linguistic and categorical distinctions rather than
what is happening to whatever we might want to call nature. Second, there
are situations in which it is increasingly obscure just how an invention is to be
identi¬ed. ˜[T]he production of an immortal cell line demands little more of
the “inventor” than the mastery of a routine scienti¬c technique. The “inven-
tive” process seems merely to transcribe a natural code into a new medium™
(1998: 752, note omitted). In his view, biotechnology has rendered transpar-
ent or implausible the very distinctions that bind the patent law upon which
biotechnology so crucially relies (1998: 745).
The question of ˜man™s expropriation of nature . . . [as] expropriation by
one of what is already the natural legacy of all™ (Phillips and Firth 1990: 35)
is open to debate. But there is a further question in the way the problem is
109
THE PATENT AND THE MALANGGAN


taken care of in the distinction between technology and nature, invention
and discovery, and the rest; patent law in effect de¬nes what has already
been expropriated, that is, is no longer nature. Now New Irelanders remake
people out of people, so to speak, bodies out of bodies, and the competition
is over claims to ancestral power, that is, making claims to what is already
speci¬cally identi¬ed as theirs. Patent-holders, on the other hand, deal with
people in terms of property claims, and instead make their devices out of
things, materials and knowledge ultimately part of a ˜commons™ belonging to
everyone and no one.
When they think of the commons as a natural resource, Euro-Americans
may imagine it as a domain free from people™s inventiveness, and ideally
perhaps even empty of people altogether; at the same time when they think
of dwelling, this is the location they often bring to mind, and they would
also like to think of the commons as a world that people ˜naturally™ possess
and in which people ¬nd their ˜natural™ habititation. It is this ¬‚exibility, we
could say, making people apparently now relevant and now not relevant to
one™s perspective (on the world) that has been so enabling of technological
innovation in the West (Eric Hirsch personal communication). But I have
deliberately ended with an image of nature as a resource “ the commons “
that points to human interest in it. Is not part of our feeling comfortable
with technology, dwelling ˜with™ it, the fact that it gives us things we can own
and thus take possession of for ourselves? Disquiet when those proprietory
extensions of the person seem inappropriate is part of being at home with the
techniques and relations of ownership.
New Irelanders have been on the receiving end not just of colonial exports
or of intellectual property rights legislation but of the very divide between
technology and inhabiting that the convenors of a conference in 2000 called
Inhabiting Technology have problematised. The New Irelanders serve as a re-
minder of the political and ethical debates that surround resource extraction,
the extension of property regimes and so forth. But too often a Euro-American
will re-invent the divide between technology and inhabiting by investing such
peoples with the qualities that his or her own ideas about technology would
give to nature. I have tried instead to make these people and their ideas present
in a different way, by emphasing the very many points on which we might
draw parallels in order to heighten those where we cannot.


acknowledgements
First presented at a conference organised in 2000 by Mike Featherstone, Scott
Lash and Philip Dodd jointly for the Institute of Contemporary Arts (ICA),
110 KINSHIP, LAW AND THE UNEXPECTED


in the journal Theory, Culture and Society, and the U.K. Economic and Social
Research Council (ESRC) Virtual Society? programme, called Inhabiting Tech-
nology, at the Institute of Contemporary Arts, London. It was written in re-
sponse to the conference theme of how we ˜dwell in™ technology. It is not
original. I bring together the expertise of several anthropologists dispersed
over a range of studies, especially Susanne K¨ chler on whose work I draw
u
extensively, although probably rather lopsidedly (see her subsequent volume,
2002), and my portrait of Malanggan is a composite of features from different
ethnographic areas, following only one track among many analytical possi-
bilities. Principal thanks are due to Karen Sykes and the results of her own
investigations in New Ireland. I am very grateful for permission to draw on
unpublished material (I follow Sykes™ spelling). Terence Hay-Edie, who had
been exploring other enchanted worlds, is also due thanks. The stimulus of the
conference at the ICA is self-evident; thanks too to members of the Summer
Institute on World Arts at the University of East Anglia for several comments.
5




Losing (out on) Intellectual Resources




When their ˜transplant™ was terminated, the ˜root people™ on one side felt
that the other side had violated their divine relationship
John Muke, paraphrased in Dorney 1997




I

L
˜ iving men or women should not be allowed to be dealt with
as [a] part of compensation payment under any circumstances™. The
custom is ˜repugnant to the general principles of humanity™ (PNGLR 1997:
150, 151). Thus said Judge Injia in handing down his verdict on, as it was called in
the local headlines, the ˜Compo girl case™. This was at the Mt. Hagen National
Court in 1997; it concerned people from the Minj part of the Wahgi region,
in the Western Highlands of Papua New Guinea.1
The case offers an interesting comment on the role played by legal technique
in the fabrication of persons and things. In some respects it rehearses issues
that have long troubled anthropologists describing marriage arrangements.
They include the extent to which an equation between women and wealth ren-
ders women ˜thing™-like, the locus classicus being bridewealth (bride-price)
payments, which feeds an epistemological anxiety, the extent to which an-
thropological analysis in turn treats its subjects as less than subjects, where
the locus classicus is ˜the exchange of women™.2 With these issues in the back-
ground, I note the role played in this case by the reference to human rights.
That role assisted in the fabrication of persons;3 the antithesis between persons
and things was never far away.
This is an instance in which it might assist analysis to project a Euro-
American distinction between person and thing onto the Papua New Guinean
111
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