|Foodini, the puppet-magician, whose tricks always failed.|
Protecting the rights of indigenous cultural groups to their cultural heritage with intellectual property law is but one of the UN's World International Property Organization (WIPO)’s many aims. Its international anti-piracy efforts are meant chiefly to protect individuals and corporations, not indigenous cultures. After all, national copyright law was initiated originally to protect authors and publishers from copying and mass marketing without permission. Authors and publishers must grant permission, and they commonly do so in exchange for appropriate payment. Patents are meant to protect inventors and trade-mark protection was added to the mix.
Looking at WIPO's self-descriptions, it is plain that beyond the human rights rhetoric, they regard cultural heritage as property assets needing protection; further, that their intellectual property law-in-the-making is meant to encourage “sustainable development” (an oxymoron; see my blog entry for Sept. 2, 2010, "Why Sustainable Development Must Be Abandoned"). They divide cultural heritage into three components: traditional knowledge, genetic resources, and traditional cultural expressions (or folklore). On their website they state that these are “economic and cultural assets of indigenous and local communities and their countries” and that “WIPO [is undertaking] negotiations with the objective of reaching agreement on a text of an international legal instrument (or instruments) which will ensure the effective protection” of these three components of cultural heritage ( http://www.wipo.int/tk/en/igc/index.html).
WIPO’s cultural asset-think continues in its document entitled WIPO Overview 2011 (WIPO Publication No. 1007E/11). Primarily, they envision an economic marketplace with commodity exchanges of intellectual property: “The intellectual property system provides a way for these intangible assets to be owned, disseminated and traded, thus enabling creators or owners of intellectual property rights to reap some benefit from their own work or from their investment in a creation.” This protection is justified not only by asserting proprietary rights, but also by proposing that copyright stimulates creativity and invention. The possibility of making a profit encourages (the jargon word here is incentivizes) people to come up with more ideas, some of which will be good ideas that will not only enrich the creator but also ensure the progress of humankind. Note the rhetoric: “In this way, the intellectual property system serves its fundamental purposes of stimulating innovation and creativity and of contributing to market order.” Market order? Yes, protection from such things as piracy. “Innovation and creativity,” WIPO goes on to assert, “increasingly play a role in the development of solutions to such emerging challenges as climate change, food security, and public health.” No doubt, but one wonders what proportion of copyrights and patents are going to alternative energy compared with those going to the fossil fuel companies, what proportion are going to organic and local agriculture compared with Monsanto and agribusiness, and so on. “By providing a stable environment for marketing products protected by intellectual property [law, WIPO] also oils the wheels of international trade” (What Is Intellectual Property, WIPO Publication No. 450[E]. p. 22).
Returning to WIPO’s discussion of cultural heritage, the Overview 2011 document repeats the statement about developing international legal instruments. But it also states that “Indigenous and local communities seek appropriate and practical ways of preserving, promoting and protecting their cultural and intellectual heritage as a means of sustaining their cultural integrity and promoting their own sustainable economic development consistent with their collective values.” Here, WIPO not only acknowledges its orientation to the commodity marketplace, but also couples cultural heritage to sustainable economic development, with the caveat that this be consistent with the indigenous peoples’ collective values. What if those values are not oriented toward economic development? Wouldn’t international protection of cultural heritage as intellectual property under copyright law tip the playing field in favor of economic development? The indigenous culture that refuses to protect heritage by copyright risks exploitation in the international marketplace. If their cultural values are not commodity-oriented, if traditionally they view heritage (including music) as a bundle of relationships, copyrighting culture would pressure them to think of culture as an economic asset instead.
From the point of view of WIPO, the International Monetary Fund, and others whose goal is to lift indigenous cultures out of material poverty through sustainable economic development, this change in indigenous worldview would be a positive good. But for those who think that “bundle of relationships” thinking is an important and potentially viable alternative to cultural asset-think, it would be a disaster. The way to prevent environmental catastrophe is not through encouraging technological innovation, commodity exchange and marketplace rewards, for that is what got us into the global environmental crisis in the first place, not to mention the economic crash of 2008 and growing income inequality throughout the world. Only when we stop objectifying, only when we stop putting an economic value on everything (for even so-called cultural value turns out to have a market price, David Throsby notwithstanding), only when we begin to realize that living beings take precedence, that we exist in a “bundle of relationships,” with one another, and with the planet, only then will we begin to understand how we may change course to reduce poverty (material and experiential) and injustice, and avoid environmental catastrophe.
The bundle of relationships argument asserts the primacy of the gift over the commodity exchange, something I’ve been writing about for a number of years here and elsewhere. When I was a youngster, my schoolteacher said that Peter Minuit, representing the Dutch colonists in New York, supposedly bought the island of Manhattan, from the Indians who were said to own it, in exchange for wampum worth $24. Our class of students was told that the Dutch got the better of the bargain: the “savages” were stupid to have sold Manhattan for a ridiculously low price. Later I came to realize it wasn’t stupidity. They did not have the same concept of property rights and ownership as the Dutch settlers who paid them. They thought they were giving the Dutch the right to use the land, not to own it. Owning it was a concept foreign to them. The European colonists were more powerful and able to force their concepts of property ownership on the Indians. If the indigenous Americans had been more powerful, the European ideas would not have prevailed. Nor would they have prevailed if international law prohibited this kind of exploitation. In the same way, if indigenous cultures conceive of traditional music as a bundle of relationships, that leaves them open to economic exploitation from outsiders.
The solution to this problem, WIPO would argue, is not cultural relativism, but international law which protects their music as intellectual property, whether they have the concepts of property and ownership or not. Nonetheless, the idea that a bundle of relationships, with their ensuing obligations takes precedence over any economic value is a useful insight for cultural policymakers like me who are interested in promoting the kinds of amateur musical communities, such as the old-time string band revival which I have written about earlier, as a model for the circulation of music in general. The answers are not to be sought in propertizing and marketing culture, but in relationships, rights, and reciprocal duties.