Sustainability and Property Law

Returning from the annual Society for Ethnomusicology conference, I was struck again by the way the discourse over intangible cultural heritage (aka folklore) and cultural policy is still dominated by the question, "who owns culture?" Because most of the conference panels were devoted to professors and graduate students presenting their ethnographic-based research on a variety of music throughout the world, cultural policy was not a major theme; yet it was not absent, as many of the applied ethnomusicology panels and papers took it up in one form or another. My colleague Marc Perlman, who took a year off from teaching to attend law school, contrasted two approaches to intangible cultural heritage policy: stewardship and ownership. WIPO operates in the area of ownership (copyright law) whereas UNESCO takes more of a stewardship approach (in theory, at least). In my thinking on the subject I've been supportive of stewardship initiatives and skeptical of promoting ownership and property rights as a means toward sustainability. Yet there is no denying that without legal ownership of their cultural heritage, indigenous peoples have been/will be exploited for their music, medical knowledge, etc. Probably I've been too idealistic in avoiding thinking through ownership because I have misgivings about art as commodity. But sustainability thinking, I still believe, tilts towards stewardship. Considering ownership, I wrote in my essay for The World of Music that Emerson's poem "Hamatreya" reveals that the farmers whose names are on the Concord gravestones mistakenly thought they owned the land they worked. They had the deeds to it--for a time--but the poet observes from the names on the stones that the land owns them.