I have been thinking of Munir's post on asia-commons about my letter to the artist regarding IPR enforcement. The comments on the Copy South website also show that many are asking and looking for "a way forward."

Such a "way forward" is difficult because many of us are captive audiences in a global stage show of the IPR discourse where many governments are subservient to richest countries in the world and majority holders of IP capital.

At such a juncture I am compelled again to question the concept of the citizen and the (corporate-)state relationship in what comprises society. And here I am reminded of Raissa's reply to Trevor's question regarding the conflict in Mindanao: self-determination.

At the public forum on privacy, security and public interest with FMA/Privacy Int'l/LSE, Bombim asked what seem to be a naive but very significant question to Chat following her (very impressive) intervention on privacy issues. Basically, Bombim asks, aren't women's rights human rights too?

Bombim's question (which I thought was in itself an important symptom of a larger cause) and Raissa's remarks about self-determination made me reflect on the nature and process of "discourse-making" and why "a way forward" is very difficult.

Discourse is generally determined and kept under control by placing "talking points" around a given domain, for instance the IPR domain. "Talking points" are references that are advocated by actors in the discourse - from state, industry to civil society - a lexicon of "proper" thinking and behavior.

So, in IPR, for instance, we can say that the "talking points" are "intellectual property" and "rights", and from these emanate other "talking points" such as "music rights" and "piracy" and "freedom" and "democracy."

In response to this, advocates of a less-restrictive IPR domain may assert their own "talking points" such as "freedom of expression" or "human rights" or attempt to redefine the meanings of the dominant "talking points."

And as a result, compromises may be made such as "exceptions and limitations." Another result of this is the accommodation and recognition of other "talking points" such as "making available rights" or "fair use." In either case, the dominant discourse remains the same it is a means to reach a goal in communication. Within the dynamics of difference, conflict and deadlock, the discourse inevitably marginalizes certain sectors not within the sphere of stakeholdering, not within the sphere of the goal. Inadvertently, controversies may arise again and a second-order of "talking points" may emerge.

This push-and-pull, give-and-take, within the unchanging topology of the discourse developed largely by the UN and its victor-members just after WWII continues on, a great source of profit for many, certainly a career for even more and a recreation for others - but not so pleasant for the majority of the world's population not at, but always represented in, the process of advocating for "rights" under *international* humanitarian and human rights laws.

Those of us unsatisfied with current discourse because our experiences show that the creation and shaping of "rights" after WWII has not improved the equilibrium of decent life within our societies know that a way forward is difficult. Many think it is impossible. But I would like to contemplate on some possibilities, one of which is the radical change in the pragmatic language of the discourse - a shift from "talking points" to "autonomous processes."

Imagine for instance a shift from "human rights" to "self determination", or a shift from "women's rights" to "gender making", or a shift from "piracy" to "sharing communities."

I think that such a shift in language could change the nature of the discourse from dialectics as a practical goal to dialectics as a process of shared understanding. The current imperialism going on is an intellectual one and intellectual intrusions take place through the medium of language. My proposal therefore is a radical change in the language of advocacy, which I know is difficult for those, particularly many IP NGOs, who have partly shaped that language. So, "representation" might then actually begin to mean something to those being represented. "Stakeholdering" might also stop marginalizing non-stakeholders and instead take on the process of "community", a very good description of which is mentioned in an article called "Islam: Aesthetics of a mystic religion":

"Community is a delicate but durable bond that grows among people who discover that their core identities intersect with those of others."

This definition, which thinks of community as a growing process rather than as a static 'group of people with shared values', is an "autonomous process" and not a "talking point." It is an empowering definition that is based on the process of self-determination rather than the assertion or negotiation of rights for, over or against others.

So language has a crucial role in creating a way forward not only in terms of our (or whoever else's) agenda that may be called into being, but a way forward in how we experience and express the complex matrix of diversity.

With this perspective, I have thought of a number of areas - which intersect - where change in language may be useful with regards to finding spaces outside the IPR discourse.

One is in the legal profession. Whilst calculating the risk of being disbarred (and numerous other threats), those in the legal profession may consider refusing to litigate against "piracy" or other copyright/IPR infringement. I thought of this after reading Lessig's account of "doujinshi" in Japan

"The most puzzling feature of the doujinshi market, for those trained in the law, at least, is that it is allowed to exist at all. Under Japanese copyright law, which in this respect (on paper) mirrors American copyright law, the doujinshi market is an illegal one. Doujinshi are plainly "derivative works." There is no general practice by doujinshi artists of securing the permission of the manga creators. Instead, the practice is simply to take and modify the creations of others, as Walt Disney did with "Steamboat Bill, Jr". Under both Japanese and American law, that "taking" without the permission of the original copyright owner is illegal. It is an infringement of the original copyright to make a copy or a derivative work without the original copyright owner's permission... Yet this illegal market exists and indeed flourishes in Japan, and in the view of many, it is precisely because it exists that Japanese manga flourish."

Lessig says in his book that perhaps there are not enough lawyers in Japan to sue the doujinshi market, an explanation for a puzzled IP lawyer. Clearly, doujinshi is illegal only in the domain of copyright law but not in the Japanese social and market domain where "permission" is not a "talking point".

In the second area, academics and economists have voiced their opinions on the economic argument for strong IPR protections. The alternative theory is there based on practices that have sustained communities of sharing such as "doujinshi" and traditions of recognition such as "ijaza" for generations. These communities of sharing collectively constitute strong and non-self-destructive economic bases sustainable in the absence of IPR. I would like to note that these practices are sustainable not on the basis of "knowledge access" as talking point, but rather on the basis of a self-determined custom of creative dialogue and recognition.

While these traditions are under pressure by the IPR enforcement regime, there is growing effort to leverage on these traditions as tactical information for opposing IPR. I believe that any functional use of these traditions within the "talking points" mechanics of the IPR discourse will not lead to a genuine way forward.

A third area is in aesthetics (self-determined equilibrium). The arts and culture sector flourishes in creativity not out of the mythical originality and genius of the artist but rather of the equilibrium of innovation and knowledge.

"The Ingenious Hidalgo Don Quixote of La Mancha" is considered as one of the greatest works of fiction in the west, groundwork for western modern literature, and itself made by Cervantez based upon a manuscript by the invented Moorish historian, Cide Hamete Benengeli, and its second volume a creative response to the appropriation of the character "Don Quixote" by (the so-called) Alonso Fernández de Avellaneda of Tordesillas. These creative dialogues took place before the laws on copyright were created, before the discourse was determined and dominated by the language of "rights." Sometimes I wonder what the landscape of creativity and market for western literature would have been like without the codification of copyright, from the Licensing Act of 1662 (actually a tool for censorship), the British Statute of Anne in 1709, to the Copyright Clause of the United States Constitution in 1787. I believe that there would have been more "Don Quixotes", more creative dialogue, more creation, innovation and knowledge.

In parts of the world where art is inseparable from religion, knowledge is not subject to ownership and profit because all knowledge belongs to God. How and why might we compromise that for a proprietary view of knowledge? Here art also links with science, for knowledge in science is also not subject to property rights but rather established through a socially-defined acknowledgment of the stream of knowledge (and not "IP protection" or "permission") to preserve the sanctity of science. Why should such a system of equilibrium be re-interpreted as "rights" so that they may be defended against other "rights"?

So in none of these areas am I using "human rights" or "freedom of expression" or "access to information" as basis for a way forward. Neither would I call "doujinshi" or "ijaza" as "alternative IPR" or "alternative licenses." What I am looking at rather is a consideration of the meta-autonomous processes by which people and their communities have conducted their lives without the intrusion of "talking points" of some kind or other.

This does not mean that "human rights" or "freedom of expression" or "women's rights" should be discarded because they are wrong or bad. What is wrong is when we believe in the illusion that these things are inherently good or bad.

A consequential example is the inability of social science to predict and understand the fall of Communism which is often linked to the narrow two-sector (state-market) approach in that discipline. I would interpret this as the inability of western capitalist democracies to accept that "Communism" and "Capitalism" as they have been co-created as "talking points" of "bad versus good" have actually become reflections of each other. Is it not similar with the strong-IPR and anti-/weak-IPR discourse?

The error perhaps is that we have extracted the values (such as "communication rights") that we believe are essential from the processes from which they emanate. This is how, for example, Atty Sy at the same public forum mentioned above earlier, is *able* to use the abstraction of "law and technology interaction" in order to push for an Anti-Cybercrime Bill and its dangerous (de)contextualizations of "privacy", "security" and "human rights" (again, these "talking points").

The legal, economic and aesthetic principles described above are some of many "motors" of a dynamic and non-adversarial process even though these are currently being used to enforce the dominant discourse. However, we should consider these as interactions relating to autonomous (social) processes and not as talking points. Essentially a closing of the lexicon of advocacies. Then perhaps a way forward may become more visible.