The commonwealth of culture

    “The commonwealth of culture” was the title of the Fellows forum that I put together for the annual conference of the American Folklore Society, which took place in Providence in October, 2012. By  cultural commonwealth I refer to expressive culture as commons, as a shared resource—that kind of wealth, not material wealth. On that forum, as well as in my keynote at the cultural sustainability conference in Vermont last August, I spoke about expressive culture—that is, folklore—within the contemporary commons discourse, particularly the digital commons, copyright, and cultural rights.[1] Commons is a familiar topic for readers of this blog, but it is not familiar, yet, to folklorists even though they are now so occupied with cultural sustainability that they made it the official theme of their 2012 annual conference. The abstract I wrote for the forum on the commonwealth of culture read in part:
    “Although today we associate commonwealth with a political entity such as a state or nation, the original meaning was public welfare or general good. It has something in common with res communes, which in Roman law referred to those things which then could not be “captured” or owned, such as the oceans or air mantle. But in modern nations commonwealth has moved closer to res publicae, the Roman law term for a state-regulated public domain, such as fisheries and air travel flyways. Commonwealth is therefore allied with the notion of a cultural commons, the domain of ideas and performance which folklorists like to think of as a group’s expressive culture. Much in the air today are arguments over enclosures such as copyright that limit the free flow of ideas in the digital, cultural, and/or creative commons. Folklorists, who have a long history of considering culture as a common group possession, have a great deal to contribute to this discussion. Commons thinking is one means of theorizing folklore and cultural sustainability, and so each of the participants in this forum will address those issues briefly and in turn before we invite general discussion from the audience.”
    Altogether six folklorists, all Fellows of the American Folklore Society, spoke on the forum: Mary Hufford, Burt Feintuch, Dorothy Noyes, Nick Spitzer, Lee Haring, and myself. I won’t rehearse their presentations here, or my own. But I would like to expand a little on the idea of folklore, expressive culture, intangible cultural heritage—the competing synonyms today for that part of culture which folklorists claim to know something about—both in the context of the above abstract, and also in the context of what I said in my keynote at the Vermont conference on cultural sustainability.
    Folklorists, I told the group in Vermont, have had a longstanding concern with expressive culture as commons. The idea that folklore is a common resource goes back to very early conceptions of folklore as the expression of a group, not an individual. The author of a folksong, folktale, proverb was thought to be anonymous. The originator of folkways used in making barns, farm implements, crafts and decorative objects was unknown. Of course, someone must once have originated it, but over time the folklore was modified and improved as it passed from one person to the next and down through the generations until it became accepted as a common resource, “traditional” and rightfully shared.
    What folklorists can contribute to the discussion of a cultural commons, then, is based in part on this longstanding concern, where the advantages for a community of shared resources are plain: acceptance by, and accessibility to, anyone and everyone. Aesthetic satisfaction through community validation is yet another advantage. In my presentation for the AFS conference, I emphasized the legal aspects of cultural commonwealth, suggesting that the history of folklore studies lends weight to the argument that no one must “own” culture if we are going to be good stewards of it. Ironically, folklorists are very much involved today in international efforts (e.g., those by WIPO) to propertize culture in order to protect it. (See my blog entry on WIPO.) But thinking of culture as intellectual property, and thinking of groups as possessing cultural rights in this property, while it may seem attractive in the short run, is a losing strategy in the long term, for by putting a price on expressive culture it degrades and transforms it into commodity, thereby furthering the mistaken project of economic rationality.
    In my keynote at the Vermont conference I took the same position, exemplifying it through sound and “orality,” another longstanding concern of folklore studies. My plea that we manage the soundscape as an acoustic commons for all creatures derives in part from this concern with oral communication. But in folklore studies, orality has always been constructed in opposition to literacy, with the result that this distinction has shifted attention away from something I think is more fundamental, and that is how orality (or sound) is experienced as a medium in itself, directly through vibration linking one being to another. This model of sound communication, I argued in that keynote, as well as in the keynote talk I gave in May to the Association of Brazilian Ethnomusicologists, is a cornerstone in the construction of an environmental rationality that stands in opposition to neoliberalism.[2]
    I felt a proprietary interest at the AFS conference in their theme, for to my knowledge I was the first to apply the sustainability concept to folklore, delivering a paper on that topic with special reference to music cultures, at their 2006 conference, then organizing a panel on that subject there for the 2007 annual conference. The idea gained traction, and late in 2008 I received an invitation from Rory Turner to take part in a conference of folklorists and other culture workers at Goucher College, chiefly to advise him and other faculty and administrators about starting an MA program in cultural sustainability, something that they had begun work on earlier that year. In 2009 Goucher did establish the first degree program in that subject, with Turner as founder. Since 2010, when Goucher’s first class enrolled, their MA program has taken the lead in folklore’s commitment to cultural sustainability. Turner has worked effectively to promote the concept. As a result of all these efforts and the discipline’s receptivity to sustainability, its enshrinement as the theme of the 2012 AFS conference may be the first indication that cultural sustainability has become the new paradigm for public folklore.
    Cultural sustainability has come so far, so fast because public folklorists think it an improvement over the previous paradigm, cultural conservation, which ruled from the 1980s until now. Of course, sustainability and conservation have much in common, but they also are significantly different both in concept and history. I've been writing about those similarities and differences in an essay on music, sustainability, and resilience for the forthcoming Handbook of Applied Ethnomusicology, co-edited with Slovenian ethnomusicologist Svanibor Pettan, for Oxford University Press. This volume, with more than 20 contributors, has been inching along for the past five years and probably will not be published until 2015 at the earliest. I wouldn't be surprised if the idea of folklore as an expressive cultural commons also gained traction within the academic side of folklore studies.[3] As the anonymous proverb-turned-cliché puts it, time will tell.

[1] My keynote talk for the Vermont conference on cultural sustainability in August, 2012 may be downloaded as an mp3 file at http://www.vermontfolklifecenter.org/education/cultural-sustainability/abstracts.php

[2] My keynote talk for ABET in May, 2012 on "The Nature of Ecomusicology" was published in their journal, Music E Cultura, and may be downloaded at http://musicaecultura.abetmusica.org.br/index.php/revista/issue/current

[3] Anthony McCann's pioneering work in commons and enclosure has important implications for folklorists. See https://independent.academia.edu/AnthonyMcCann 

WIPO wipeout

 

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.

Cultural rights are not property rights

-->

         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. 

Cultural Rights, the Internet, and Sustainability

Cultural rights are the inherent rights that social groups possess, rights which permit them to sustain their distinctive cultures—in other words, to sustain their ways of thinking and doing. UNESCO extends its proclamations of individual human rights to the distinct ideas and practices of indigenous societies, ethnic minorities, and other social groups whose ways of life are threatened with exploitation or alteration or even with extinction. In the intellectual worlds of folklore and ethnomusicology that I inhabit, Alan Lomax’s “Appeal to Cultural Equity” (1972) is cited as an early statement of cultural rights in the face of what he called “cultural grey-out.” By grey-out he meant that when indigenous societies modernized, they lost their cultural distinctiveness as their people began to think and behave like those in the developed world—for example, as consumers. For Lomax, cultural grey-out was most obvious in music. Western popular music, in particular, Lomax regarded as a homogenizing force.

    As Lomax’s cultural grey-out hypothesis was put to the test, it became clear that societies tended to resist homogenization, particularly in their expressive cultures—the folklife of traditional foodways, song, dance, habitation, myth, craft, and so forth. Nonetheless, Lomax’s proposed solution to musical grey-out was a “global jukebox,” freely available to everyone, and containing recorded (audio and film) examples of all the diverse music found throughout the world. The inherent force of these authentic expressions would overwhelm listeners and ensure their preservation. Lomax was working on this project until he had a stroke in the early 1990s. Nevertheless his dream became a reality in short order, and today the global jukebox is available here and there and everywhere on the Internet.

    Ironically, while the Internet works against cultural grey-out by delivering an enormous amount of distinct information, relatively inexpensive to mount on the world wide web and representing widely differing ways of thinking and doing, this very information revolution is pressuring us toward adopting new and, to some, troubling ethical principles with regard to privacy and intellectual property rights. This pressure affects cultures as well as individuals.

    On one hand, as consumers we want—no, we deserve—free access to information on the Internet, whether music, images, video, opinions, bank and credit card accounts, recipes, consumer guides, newspapers, books, not to mention people's personal information and their whereabouts, blogs and tweets. We envision a future in which all information is on the Internet—everything on an iPhone or an iPad viewed in the palm of the hand and plugged a-socially into the ears. Is this how music will be sustained? Cultures? People? (Never mind, for the moment, that it's all virtual representation, not live performance.)

    Free access is quickly achieving the ethical status of a natural right, a democratization of the information commons. No one will ever have to visit a library or a record or video store again, let alone attend a live performance. Bookshelves?—you don’t need them. Filing cabinets?—digitize what you have and move into the paperless world. Desks? Pens? Paper? Postage stamps? No way. You’ll feel good about it too because your stuff won’t take up so much of a carbon footprint (not to mention physical space).

    On the other hand, what happens to the rights of the creators of this information? International law grants creators intellectual property rights; no one can copy without permission. But the desire for free access on the Internet is changing society’s conceptions about intellectual property. People are talking about “creative commons” and other ways of changing the legal notion of “fair use.” What about cultural rights to traditional knowledge shared by an indigenous group? Doesn’t a social group, in other words, have the right to protect its way of life from exploitation in the marketplace? Instances of cultural robbery abound—songs that have been sampled and stolen without financial or other compensation; native medicinal plant knowledge that “big pharma” has exploited for profit; and so forth. What about cultural knowledge gathered by ethnographers and stored in archives under restricted conditions of access; can archives afford to safeguard this information without delivering it on the Internet?

    The Internet, then, is delivering virtual sustainability while pressuring ethical and legal conceptions of individual and cultural rights. A recent discussion on one of the listserves I follow is a case in point. An archivist who is well aware of the ethical obligations that ethnographers and culture workers feel toward the people and groups from whom they gather information, nevertheless maintains that archives should obtain both ownership and copyright of materials that are donated, so that they may decide without outside restrictions on how to care for and make accessible the information. Rather than act as stewards on behalf of the depositors, archives should give preference to those deposits they will be able to control. Control is one thing if the material is in a locked room and access is granted only to qualified individuals, but it is quite another when the material is on the Internet. As the Internet becomes the only cost-effective delivery system, it will be harder for archives to justify spending scarce resources on maintaining physical materials. It won’t be long before the cultural artifacts moulder away as surely as the objects that once filled the dry storerooms of natural history museums.

    In this way, the Internet enhances cultural rights and sustains culture, but it also diminishes cultural rights and fails to conserve that which cannot, or should not, be represented on it. In promoting free access it brings about the triumph of consumers’ rights at the expense of producers’ and moves toward the elimination of intellectual property rights, whether individual or collective. Nowadays the best way to preserve intellectual property is to give it away. Soon it may be the only way. But heaven help you if you wish to earn your living from it.