As Prashant notes in this month’s article for the Local Contexts, Global Commons node, Lawrence Lessig, the prolific scholar-champion of the commons and supporter of the capitalist order, distinguishes between two types of piracy. Simplistically speaking this division constructs a beneficial piracy (taking) that operates in contrast to a negative piracy (Piracy I). On the one hand, Lessig argues that the former effects a transformative use of original source materials thereby producing creative output. On the other hand, he denigrates the latter, negative piracy, as simplistic mechanical reproduction - a type of activity that Lessig notes is commonplace in markets throughout Asia. Critiques of Lessig’s work, for example, in Kavita Phillips’ paper, “What is a technological author? The pirate function and intellectual property,” suggest that this dichotomy of piracies constructs the figure of the Asian pirate as a crude copier of originals who does not himself produce anything of social value and, instead, inhibits the efficient functioning of the capitalist market.

The following article challenges this perception of the Asian pirate. In order to do this I assume that contemporary legal and market systems do not offer equality of access to social, political and economic resources or opportunities. As such, I suggest that Lessig’s “problem” of Asian piracy should be rethought taking into account both the history of colonialism and postcolonial realities. In lieu of this, I introduce the modern Asian privateer who uses the domain of the market, the avenue of domination in the postcolonial context, and not the legal-political; the avenue of domination in the colonial context, to negotiate equality of access not only for himself, but also for his customers.

The act of piracy, a robbery committed on either the high seas or the shore, has an extensive history and traces its roots back to both ancient Roman and Greek cultures. In fact, the first recordings of pirates tell of a fierce sea people that threatened travelers and settlements in the Aegean around the 13th century B.C. In the intervening centuries pirating activity spread throughout the waterways of the world threatening both inter-state trade and communications. As such, the pirate has always been considered a threatening figure existing outside the law in direct threat to the stable social order. In the era of the modern political state, policing piracy was a problematic enterprise as the crimes took place on the high seas and outside of any nation’s jurisdiction. During the era of European imperialism the pirate threat, because it created great difficulties for the successful administration of the colonial project, was recognised as menace to humanity and the progression of civilisation. Thus, international agreements were drawn up regarding its eradication. These agreements, thought to be the earliest invocations of the universal jurisdiction in international law, allowed for states to try, convict, and punish pirates encountered outside of the nation’s boundaries. Thus, the traditional pirate exists as an illegal figure that is a parasite that retards the progressive project of capitalism. It is this figure of the pirate that is invoked both in the hegemonic understanding of the intellectual property piracy (for example see Vaswani’s article “India steps up fight against piracy”).

Not all acts of theft and violence on the high seas, however, were viewed as illegal pirate activity. Between the 16th and 19th centuries, during the height of the colonial project, the privateer became an accepted tool of naval warfare sanctioned and used by most European powers. Like the pirate, the privateer attacked and robbed merchant ships. The profits of these ventures were then split between the ship’s investors and crew. Unlike the pirate, however, the privateer was legally allowed to attack and commit robberies - in fact, that was the privateer’s function: to attack, rob, and disrupt maritime activities of enemy nations. Additionally, unlike the pirate, the privateer was considered to be a state-authorised warship and its crew, if captured, were to be treated as prisoners of war. The logic behind the authorisation of privateering was that interrupting an enemy’s trade, particularly the trade between a state and its colonies, would create not only economic hardship for a nation, but might also cause its empire to disintegrate. For example, Britain used privateers to attempt to stem the flow of gold from Mexico to Spain that the latter used, in part, to fund its navy. Privateers, therefore, were legitimised by the state since their activities were considered an effective technique for weakening an enemy nation that posed a direct threat to the nation’s stability and way of life.

During the colonial times in which the privateer existed, relations of power and subjugation were overtly rationalised through the political domain. In other words, hierarchies of domination were figured through governmental constructs in which one state had the right to exert direct political control over other political territories. For example, a European state, such as Spain, maintained direct political control over its respective colonies, such as Mexico. This type of relationship was often rationalised as a humanitarian project in which the coloniser bestowed civilisation on colonised populations. It was in this world, where relations were rationalised through the political domain, that the privateer moved as a legitimate figure protecting societal interests. In contrast, in the contemporary moment such strong notions in the primacy of political hierarchies are no longer in operation. One state no longer has the right to the direct political control of another and, in the myths of the post-colonial era, nations relate to one another as equals in international forums. However, the reality is that not much has changed since colonial times and power is still unequally distributed. In truth, certain societies still exert strong forms of economic domination over the old colonies. This domination has, in reality, resulted in inequality of access to resources and opportunities for the vast majority of people living in former colonies. This inequality is preserved through the hegemonic myth of capitalism that requires the same treatment for all market players with no consideration for formative histories and the individual social positions these produce. In short, power and domination are no longer so much politically overt, as it was during the time of the privateer, as they are economically subtle.

Given this logic, if, in colonial times, privateering was a state-authorised method of combating the threat of enemy subjugation, then, in postcolonial times, the Asian pirate should be rethought. In this sense a postcolonial privateer would be a figure who legitimately, though perhaps not legally in the strict sense of the word, struggles against the economic suppression of his community from external hegemonic market forces. In this sense, the Asian privateer, through the mechanical reproduction of otherwise costly goods, is providing his own society with access to informational resources - informational resources that are necessary to effectively participate in international dialogues in nearly every domain.

** This material is based upon work supported by the University of California Pacific Rim Research Program (UC PRRP) for Project 06 T PRRP 09 0017 and the Wenner Gren Foundation Dissertation Fieldwork Grant Program. Any opinions, findings and conclusions or recomendations expressed in this material are those of the author(s) and do not necessarily reflect the views of either the UC PRRP or the Wenner Gren Foundation.

tags: India culture piracy post-colonial asian asia privateer lessig

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