The twenty-first century has ushered in new debates and social movements that aim to structure how culture is produced, owned, and distributed. At one side, open-knowledge advocates seek greater freedom for finding, distributing, using, and reusing information. On the other hand, traditional-knowledge rights advocates seek to protect certain forms of knowledge from appropriation and exploitation and seek recognition for communal and culturally situated notions of heritage and intellectual property. Understanding and bridging the tension between these movements represents a vital and significant challenge. This paper explores possible areas of where these seemingly divergent goals may converge, centered on the Creative Commons concept of some rights reserved. We argue that this concept can be extended into areas where scientific disciplines intersect with traditional knowledge. This model can help build a voluntary framework for negotiating more equitable and open communication between field researchers and diverse stakeholding communities.

Recently the commons has become a predominant metaphor for the types of social relationships between people, ideas, and new digital technologies. In IP debates, the commons signifies openness, the exclusion of intermediaries, and remix culture that is creative, innovative, and politically disobedient. This article examines the material and social implications of these debates (and the legal copyright regimes they interact with) in the translation and remix of Warumungu culture onto a set of locally produced DVDs. Although DVD technology can account for concerns such as monitoring access, preserving cultural knowledge, and reinforcing existing kinship networks, it also brings with it the possibility of multiple reproductions, knowledge sampling, and unintended mobilizations. Tracking the shifting mandates and emergent protocols in this digital interface redirects the lines of the debate to include multiple structures of accountability, ongoing systems of inequity, and overlapping access regimes involved in the always tense processes of cultural innovation.

The challenge of how to stop the unauthorized use of Indigenous knowledge has been firmly constituted as a problem to be solved by and managed through the legal domain. In this paper, my questions are directed to the way Indigenous knowledge has been made into a category of intellectual property law and consequently how law has sought to define and manage the boundaries of Indigenous knowledge.

In the late nineteenth century, while advocates garnered support for a law protecting America's archaeological resources, the U.S. government was seeking to dispossess Native Americans of traditional lands and eradicate native languages and cultural practices. That the government should safeguard Indian heritage in one way while simultaneously enacting policies of cultural obliteration deserves close scrutiny and provides insight into the ways in which archaeology is drawn into complex sociopolitical developments. Focusing on the American Southwest, this article argues that the Antiquities Act was fundamentally linked to the process of incorporating Native Americans into the web of national politics and markets. Whereas government programs such as boarding schools and missions sought to integrate living indigenous communities, the Antiquities Act served to place the Native American past under the explicit control of the American government and its agents of science. This story of archaeology is vital, because it helps explain the contemporary environment in which debates continue about the ownership and management of heritage.

Heritage piety departs ever farther from reality. High-minded admonitions broaden the gulf between what happens to cultural property and what virtuous stewards feel should happen. Ever more of our patrimony gets looted, destroyed, mutilated, shorn of context, hidden from scrutiny, inadequately stored, poorly conserved, eBayed. Merryman cites three causes: the animus of UNESCO and archaeology against marketing cultural property, the sanguine view that trafficking abuse can be quashed by state fiat and moral suasion, and excessive constraint against heritage export by blanket diktats from source nations (and tribes and ethnic groups). These evils endure because heritage stewards commonly subscribe to four underlying sacrosanct fictions. (1) The heritage of all humanity deserves to be preserved in toto. (2) Cultural heritage matters above all for the information it can yield. (3) Collecting is reprehensible; it must be circumscribed if not outlawed. (4) Nations and tribes are enduring entities with sacred rights to time-honored legacies. I show why these views are mistaken yet remain embedded in heritage philosophy and protocol. In particular, although heritage is piously declared the legacy of all mankind, chauvinist sentiment continues to impede internationalism, partly because it buttresses the credentials of those in charge, who are forced into moral postures that promise unachievable stewardship. National and local self-esteem are holy writ for UNESCO and other cultural property agencies. Equating heritage with identity justifies every group's claim to the bones, the belongings, the riddles, and the refuse of every forebear back into the mists of time. All that stands in the way of everyone's reunion with all their ancestors and ancestral things is its utter impossibility. Heritage professionals once seen as selfless are now targets of suspicion, often thought backward looking, deluded, self-seeking, or hypocritical. Small wonder that militant reformers who seek to suppress illicit cultural property dealings by treaties, court decisions, government fiats, and the moral artillery of shame and guilt are viewed with an increasingly cynical eye.

The May 2004 decision of the London High Court in the matter of Thomson v. Christie's captured the interest of the salacious British press for its glamorous players: the Canadian heiress, the English aristocrat, and the international auction house. Taylor Thomson, the daughter of billionaire newspaper baron, Lord Thomson of Fleet, sued both the Marquess of Cholmondeley, a bachelor filmmaker with a fortune valued at over £100 million, and Christie's Auction House, for misrepresenting a pair of gilt and porphyry urns she purchased from Cholmondeley at a Christie's sale in London in 1994 for just under £2 million.

The abundance of literature dealing with the Parthenon Marbles, the Benin Bronzes, and NAGPRA has made it seem that conflict over the fate of patrimonial property is always a story about contemporary society's encounter with its colonial past. Professor Bailkin's recent book reveals a considerably more varied, complex, and multi-layered history of cultural property controversies.