Cultural rights are not property rights

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         David Throsby’s view that music is a cultural asset cohabits with the argument that cultural heritage is intellectual property and should therefore be protected by international copyright law. Indeed, the World Intellectual Property Organization (WIPO), an agency of the United Nations, has gathered international legal experts to write that law. Propertizing cultural heritage in this way confuses cultural values with economic value, pushing heritage further into the marketplace. I have already written about this in relation to the economics of cultural policy as Throsby understands it. WIPO’s work, still on the drawing board, is potentially even more troubling than Throsby’s, because it would have the force of international law. How did we get to this place? What is the problem that propertizing traditional culture is meant to solve?

            In a word, exploitation. The instances where European and American musicians have profited enormously from copying indigenous music include Paul Simon’s album Graceland, Herbie Hancock’s “Watermelon Man” (from his Headhunters album), and the French duo Deep Forest. Simon later did help the black South African musicians whom he drew upon, but neither Hancock nor Deep Forest appear to have shared their wealth with the African pygmies whose music they copied and sampled. Indeed, when ethnomusicologist Steven Feld asked Hancock if he felt any obligation to compensate the pygmies, he replied that this kind of borrowing was normal in African and Afro-American culture: “It’s a brother thing,” he was quoted as saying.

            Such musical exploitation pales in comparison to better-known ripoffs in other areas, such as pharmaceuticals derived from indigenous medical knowledge, and textiles imprinted with native art. To cite just one example, treated at length in anthropologist Michael F. Brown’s intelligent and even-handed discussion of Who Owns Native Culture? (Harvard University Press, 2003), an Australian Aboriginal artist named Johnny Bulun Bulun, along with the head of his tribal clan, sued an Australian textile company for putting a design from one of his paintings (hanging in the Metropolotan Museum of Art, no less) on fabric without asking permission or offering compensation. The textile company’s argument was that these images were folkloric, in the public domain, and that anyone could use them—the artist, and also the textile company. In a complex Australian court decision, the textile company for the most part prevailed. To protect indigenous artists and cultural groups from such exploitation, WIPO is propertizing culture—indeed, it must be said that in these instances it had already been propertized (by the musicians, the drug companies, and the textile manufacturers). WIPO could be viewed as simply trying to protect the original owners.

            Of course, intellectual property protection is known to readers of this blog. Records and books carry copyright notices. The law does not permit me to take your song, your poem, your photograph or your short story and market it as if it were my own creation. Or as yours, for that matter, without your permission to do so. In fact, you do not need to publish or market your creation for it to be protected by copyright; US law treats your unpublished ideas as your intellectual property. Therefore, the argument runs, why not consider cultural heritage the intellectual property of cultural groups, and protect it with international copyright law?  

            Protecting cultural heritage by declaring it the intellectual property of cultural groups has implications that reach well beyond discouraging, if not preventing, commercial exploitation. Acknowledging that cultural heritage is intellectual property gives legal approval for, and provides an even greater impetus toward, thinking that heritage is a cultural asset whose primary value is economic and whose proper location is in the commodity marketplace where it may be sold, bought, and collected. I think there are better ways of approaching a solution to this problem, ways that I hinted at in the last paragraph of my second entry “Music is not a cultural asset” (March 11, 2013). Rather than helping to sustain a music worth having and a culture worth wanting, efforts to propertize culture only exacerbate the problem of exploitation, substituting one kind for another. 

             But for now, let us stay with our question: are cultural rights property rights? Should cultural heritage be subjected to international copyright law? Just as we have laws to protect private property (including property owned by corporations, NGOs, etc.) and public property (such as roads, public schools, hospitals and prisons), so we might have, or make, laws to protect heritage as if it were property. Property laws already do apply to certain kinds of tangible heritage. Historical buildings, for example. Intangible cultural heritage, which is based in living history, involves cultural know-how and ways of doing things. Clearly these are ideas and actions; they may result in performances, not always in tangible products. Intellectual property law, which operates through trademarks, patents, and by copyrighting ideas, would seem to apply. 

            Music and Cultural Rights (University of Illinois Press, 2009), edited by ethnomusicologists Andrew Weintraub and Bell Yung, begins by stating that “Cultural rights refer to both proprietary and proprietary-related assertions based on cultural grounds.” Proprietary rights are property rights. The introduction, written by Weintraub, continues: “Cultural rights claims have become increasingly prominent in discourses of human rights, international law, and struggles for social justice throughout the world . . . . especially in advocating rights of indigenous peoples to political self-determination, economic development, land, and education” (p. 1).

            Weintraub questions the wisdom of treating traditional music as intellectual property belonging to a cultural group. “Intellectual property rights laws were created for Western music made for (potential) profit, with specific characteristics (namely, an original work by an author that is fixed in a tangible form of expression). These conditions are antithetical to the collective nature of traditional music” (p. 7). That is, traditional music often (though not always) does not have a known author. In some indigenous cultural groups, when the author is known, it is a bird or jaguar or some other living being, not a human. Moreover, there may not be an object such as a musical score or recording that establishes the work in a fixed form subject to copyright. Instead, traditional music usually is shaped by many co-authors who have changed the music over time, and as it is still changing in expression—that is its living nature—it cannot, must not, be fixed in one tangible form. Finally, Weintraub quotes the author of one of the essays in the book, Felicia Sandler, who wrote that WIPO’s idea of intellectual property rights differs from most indigenous people’s understanding of rights, for WIPO regards them as economic rights whereas indigenous people comprehend them as “a bundle of relationships” (8). By a bundle of relationships is meant a series of obligations that take precedence over economic value. This is a common insight from cultural anthropology.

            These are intelligent critiques, but they are also subject to counter-argument. Even if copyright law was devised to protect intellectual property rights of authors of original works, why could it not be extended in scope to protect a collectivity’s rights to its group intellectual property? After all, group ownership of property is common: we have highways, bridges, public schools, and so forth. Yet, as Lewis Hyde points out in Common As Air (Farrar, Straus, and Giroux, 2010), copyright law is meant to protect ownership rights for a limited time only, after which time no one owns the property—that is, it becomes part of the public domain and anyone may copy and market it. A time limit on copyright protection for cultural heritage would solve the problem of exploitation for only so long; after that it would be open season. But without any time limit, indigenous cultural groups could conceivably sequester anything they claimed to own, in perpetuity; and they could remove from the public domain ideas, artifacts, and anything else that is currently in circulation. 

            Do the Samoans object to Margaret Mead’s Coming of Age in Samoa? Do Native Americans object to the Smithsonian’s Bureau of American Ethnology’s series that documented their culture a century ago? Do the French object to the way French history is presented in the Encyclopedia Britannica? Then remove them from sale; take them out of the public libraries; ban the books, put history and cultural anthropology out of business! Of course, the exact opposite is happening: more and more of the public domain is available on the digital commons. That is, while copyright law attempts to tighten its grip on intellectual property rights—the length of time for copyright protection has been extended from 28 years to the owner’s lifetime plus seventy years, which would be two lifetimes before intellectual property entered the public domain—the digital commons of the Internet exerts a powerful counterforce to traditional copyright law. WIPO may well be too late.

            In the next blog entry, I will take a closer look at WIPO, and at the “bundle of relationships” argument, which is the same position that I have been developing over the years, in this blog and elsewhere, when discussing gift exchanges and gift cultures such as the old-time string band community, where music is freely exchanged and relationships among musicians—among the current custodians, and between them and those who were stewards of this musical tradition in an earlier time—are critical to the experience and continuing sustainability of the music.