Kristin R. Eschenfelder. Book Review of Intellectual Property and Traditional Cultural Expressions in a Digital Environment (Eds.) Christoph Beat Graber and Mira Burri-Nenova (Cheltenham, UK: Edward Elgar) 2008.
This book represents the outcome of a 2007 international symposium by the International Communications and Art Law Research Center at the University of Lucerene Law School. The symposium was part of the eDiversity project, funded by the Swiss National Science Foundation, to examine legal protection of cultural diversity in a globalized networked digital environment. The book’s chapters collect contemporary European legal and cultural scholarly perspectives on the potential for legal (intellectual property (IP) or human rights) protections for traditional cultural expressions (TCE) including visual art, folklore, dance, song, etc. The stated goals of book include examination of collisions between rules about use of TCE enacted by international legal instruments and those enacted by local cultural norms, and also consideration of the role of information and communications technologies (ICT) in protecting TCE or facilitating economic development through TCE.
The book speaks primarily to audiences interested in the development, the potential utility of, or negative effects of international legal instruments or approaches. The book includes a variety of voices. Its authors are varyingly optimistic and pessimistic about the ability of international legal instruments to protect ICT. Some authors portray TCE as a means of economic development; others argue global capitalist markets and nation-states as a threat to the survival of local cultures. Some authors represent ICT as a tool to help protect TCE, while others argue it can only reify and objectify dynamic living cultural practices and weaken human relationships. Overall, the book is perhaps more optimistic than pessimistic.
As a collection of symposium papers, there is repetition of key concepts and issues between the chapters. It is a collection of independent works rather than a work that one might read cover to cover. This book would be most appropriate for graduate and post-graduate audiences specializing in intellectual or cultural property issues or international governance debates.
I briefly summarize each chapter below, focusing on what I perceived as the most interesting unique arguments in each chapter.
Dommann’s chapter “Lost in Tradition?” provides a history of the legal protection of folklore. Doman frames “traditions” as a valued subset of cultural practices. The elevation of some cultural practices to traditions is purposeful, often done for nationalistic reasons.
She provides an overview of folklore protection across time. Pre 18th century- works were considered divinely inspired; and therefore works belonged to God. The shift to paradigms of authorship as an individual activity and the belief that individual authors should be protected came with the fixity of works in writing or audio recording. Recording technologies brought the field of folklore heated debates about whether folklorists should claim copyright over the oral materials they recorded and collected. In the post-colonial period, developing nations began to criticize the categories of things protected as folklore.
She provides a brief review of contemporary debates related to folklore. Should law protect folklore, or only protect works inspired by folklore? Should folklore be conceptualized as “property?” And if one assumes folklore can be property, it is not clear who should be the “owners” of folklore: a community, a home nation-state or humanity?
Teubner and Fischer-Lescano’s “Cannibalizing epistemes” examines examples of litigation against western exploiters of indigenous TCE and traditional knowledge (TK). The authors frame this litigation as honorable but an inadequate solution. Introducing an argument repeated in many other chapters, the authors posit that legal instruments need to protect the context in which TCE and TK are created and used, not just static representations of the TCE or the TK, and not just the groups of people that create TCE and TK. The authors also argue for the need to ensure informed consent for collection of TCE/TK, and argue that groups should have the ability to restrict access to TCE/TK or demand compensation for use of TCE/TK.
“The Disneyland of cultural rights to intellectual property,” by Burns Coleman, reviews debates over whether expression and practice of culture should be a human right. She also suggests that some TCE need special protection as insignias of truth or official sanction
She argues that control over artistic forms should not be given the status of a human right. She suggests that expression of culture is better conceptualized as a distributive justice issue. In arguing against a human rights status, she argues that it is difficult to pin down the value of culture, or the harm cultural loss entails given different valuations of culture. She argues that because different people have different valuations of culture, it is a mistake to classify it as a human right for all people.
She argues that misuse of some TCEs should be seen as fraud because a subset of TCE serve as insignias, or guarantors of truth. Here she introduces another theme seen across several chapters – that a TCE should be conceptualized as a relation of exchange that establish patterns of social relations. She compares TCE to coats of arms. Coats of arms can only be used by certain people (e.g., royal family) under certain rules (e.g. official events or proclamations). Because the coat of arms can only be used a certain way, its use signifies relationships and conditions. Like a coat of arms, the sanctioned performance or use of some TCE can also act as a signifier of “officialness.”
Macmillan’s chapter “Human Rights, cultural property and intellectual property” argues that neither current IP law nor human rights instruments will protect TCE. She argues that a modified, “more complex architecture” of IP protection is needed. Required modifications include improved conceptualizations of communal rights, and redefinitions of “commons” that do not allow uncontrolled exploitation. She also critiques the arguments that commoditization of cultural property can further development, laying out a series of claims that international legal instruments supporting global trade negatively impact cultural diversity.
Beat Graber’s chapter “Using Human Rights to Tackle Fragmentation in the Field of TCE” argues for a new “Obligations” approach to TCE protection. Beat Graber argues current institutional structures fail to protect because of “fragmentation” in two senses. First, WIPO and UNESCO develop uncoordinated and contradictory policy protection frameworks. Second, protection is fragmented because of clashes between local traditional protection systems (e.g., customs for use) and global systems (e.g., international legal instruments). Customary laws say different things that international legal instruments.
He argues the contemporary legal system cannot overcome three core problems. First, it cannot protect secret or sacred TCE because protection requires some measure of exposure (e.g., placing it on an official TCE list) Second, conflicts between local and international control systems outlined above are unresolved. Finally, it is difficult to come up with a definition of TCE that incorporates the modern view of TCE as discrete entities, and traditional views which see TCE as inseparable social relationships and land.
The obligations approach overcomes the fragmentations and problems outlined above by emphasizing obligations and the right to benefit from the protection of TCE. It becomes an obligation of the state to ensure effective protection of TCE. An indigenous author would have obligations as a custodian of TCE that might limit her individualistic property or use claims. It would emphasize collective dimensions of human rights, while avoiding group rights which many see as problematic. It would recognize that cultural processes have unique interests that may compete with other interests. It would develop means to balance individual/private and collective interests, and it would develop processes to coordinate contemporary legal practices and traditional rules.
“Legal Protection of Traditional Cultural Expressions: A Policy Perspective” by Girsberger outlines varying interpretations of TCE and protection. It describes the major institutional players (WIPO groups, UNESCO groups) and policy documents (Conventions, Agreements) in TCE policy creation. It considers how these groups and documents do and do not coordinate with each other. It provides a helpful overview of what misuses (e.g., preventing false or misleading claims) a legal instrument should protect against, and what policy/protection objectives (e.g., promote respect) instruments should aim to ensure.
Wendland’s “It’s a small world (after all)” argues that IP principles can be an effective tool for guard against misappropriation of TCE, but that copyright law fails to provide protection for TCE that fall into the public domain. She recounts recent work of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (WIPO IGC) – a group of which she is a member.
Like other authors in this book, she argues that protection of TCE means protecting cultural processes. At the same time, like other authors in the book, she points to the danger of artificially reifying cultural processes through protection. Given the dynamic nature of TCE, in talk about “protecting TCE” one needs distinguish between preservation of TCE, protection of local creativity to create/enact TCE, and unauthorized use of TCE.
She argues that IP can assist with preventing unauthorized use and misrepresentation, and they can aid in commercial exploitation. Given the failure of copyright to protect TCE in the public domain, she calls for bridge building between open access (a2k movement) and indigenous knowledge concerns. She calls for creation of “knowledge sharing spaces” that facilitate free sharing subject to compliance with specific cultural norms and practices.
“The lay of the land: the geography of traditional cultural expression” by Gibson provides a more detailed argument for why TCE instruments should protect the mechanisms of transmission and reproduction of TCE and not just TCE as objects. First, tradition is the primary mechanism of transmission and reproduction of TCE. Moreover, land is an important element of the re-enacting process because land supports particular relationships between people that encourage the continued enactment of TCE. She argues that TCE ownership and use rules should be conceptualized as based on relationships. She analogizes to older land use rules governed by relationships: a serf sought permission to farm on land based on his relationship to a lord. In turn, the lord’s right to use the land was granted by a king.
She argues that the modern view of TCE as an object strips value from the relationship between people and weakens the responsibilities between people for the transmission and reproduction of culture. Moreover, open use of TCE strips it of its value for defining groups and supporting relationships between people in those groups. This weakens the ability of a group to exist as a group, self-express as a group, and operate politically as a group.
Gibson also describes “the Culture Plot,” — how debates about the “value” of TCE often frame value in Western terms. Western views favor “commodified and ossified” uses are favored over “performative and generative” uses, and see source communities of TCE just one of many possible deserving users of TCE. Traditional groups “waste” TCE by limiting its uses. They may prevent its preservation and thus preclude societal enjoyment and use of the TCE. Commoditization or misuse may decrease the value of TCE to a source group (as it is no longer special, secret, a group marker), but loss of TCE (as stories or languages are forgotten) is blamed on indigenous groups. This blame rests on the assumption that the TCE should have been preserved so that it could be used by others outside the group.
Burri-Nenova’s “The Long Tail of the Rainbow Serpent” presents an optimistic view of use of technology for commercial exploitation of TCE by source communities. Burri-Nenova argues that TCE are examples of Chris Anderson’s “long tail” cultural goods which have a small number of highly distributed users. In the long tail argument, technologies that lower costs of production and distribution will facilitate successful marketing of works like TCE. Conversely, under conditions where storage and distribution costs high, content providers only market products that sell across all varying cultural tastes, resulting in a “blanding down” of commercial cultural content away from culturally specific works like TCE.
The author sees DRM and variations on creative commons licenses as a possible solution to the problem of misappropriation, and also the problem of valued older TCE lacking protection in the public domain. She calls for a balance between openness and discretion.
Burkert’s “New information and communication technologies, traditional cultural expressions and intellectual property lawmaking – a polemic comment” critiques current international TCE rulemaking as “International Bad Conscience Lawmaking” (IBCL) driven by guilt and narcissism of international institutions.
He argues that international organizations only took up TCE issues when success of protection interests seemed certain. Given the dominance of pro-protection interests, proposals have shown a “compulsive repetitive obsession” with protection concepts despite critiques. He characterizes this protection-oriented rulemaking as “domesticating the radical elements” in new technologies (citing Brian Winston) to avoid upsetting existing distribution patterns.
He is equally critical of the inclusion of indigenous peoples in rulemaking, arguing that institutions are exploiting indigenous participants and their protection concerns as a counter argument to rebut the “debunking” of protectionist perspectives. Inclusion of indigenous groups allows rule makers a moral high ground and rhetorical strategy of inclusion and caring. He claims that the certainty that the US will likely veto any radical outcomes means that inclusion is just a means for institutions to claim the benefits of claiming that they are working for indigenous interests. Moreover, inclusion preempts unwanted alliances between indigenous peoples and other interests.
He notes argues that while international institutions have sought to include indigenous voices, institutions have been unwilling to give direct rights to indigenous peoples in order to avoid conflicts with national governments that might oppress those peoples. He argues that states’ interests in protecting tribal TCE are hypocritical given lack of nation-state attention to the survival of indigenous groups. States have an interest in using international documents to assert nation-state level authority, or at least suppress claims of tribal autonomy.
Finally he points out that most instrument drafts typically contain exit clauses that weaken their enforcement by stating that document should not override other previously existing (protection oriented) agreements.
Burkert is equally skeptical about the possibility that ICT can protect TCE, characterizing that belief as a “Zoological Garden View” of TCE. The emphasis on protection using ICT makes TCE like a zoo animal. Moreover, ICT protection requires reification of TCE, which conflicts with approaches that emphasize protecting TCE enactment through relationships and situations.
“Commercializing cultural heritage?” by Sahlfeld investigates the relationship between TCE and economic and human or social development. She concludes that use of TCE for economic development might be appropriate in some communities for some TCE, but not in others or for other TCE.
One issue is deciding what economic development and human development mean. She sees economic development as the ability to participate in exchanges that define members of society and human development as the ability to lead a meaningful life. Cultural identity is a factor in human development because humans need TCE for meaningful lives. Inappropriate use of TCE hurt meaningful lives by lowering self esteem and leading to a confusion of values. At a large scale, this can destabilize societies. She emphasizes this is less of an issue in societies where TCE have less significance for people’s identities.
Commercialization may be appropriate for communities where members: are familiar with trading of TCE, are familiar with capitalist economies, TCE exchanges are compatible with community ideas of a meaningful life, agree on the commoditization of TCE (do some disagree and see as taboo?), and can manage the administrative burdens of licensing, compliance, monitoring, enforcement.
The nature of the TCE also matters. Commoditization would be less appropriate for TCE representing sacred or secret values or beliefs; or, where long term loss of meaning through overuse would override short term economic gain of commoditization. She cites Coombs work on the danger that cultural tourism will reify culture as tourists demand an “authentic” performance. Like other authors, Sahlfeld is concerned that commoditization of TCE will undermine the social traditional relationship-based means of production attached with TCE.
Sahlfeld is skeptical that ICT hold value for retransmission and reenactment of TCE among community members. Many source communities still lack access to computers and computer networks. She argues that while mobile phones are more prominent, the small screen on phones is not adequate.
Sahlfeld is also skeptical of the value of international regulations, arguing that indigenous cultures typically have their own regulations that have functioned well. Indigenous cultures don’t need the outside regulations except insofar as they aid in making local regulations more enforceable.
Antons, in his chapter “Traditional cultural expressions and their significance for development in a digital environment: examples from Australia and Southeast Asia” complicates the arguments about protection of TCE by reminding readers that many nations are almost completely “indigenous.” Rulemaking that assumes TCE production by minority cultures has different effects in nations where the majority or whole population is indigenous (many places in Asia or Africa).
Anton explains that within largely indigenous nations, it makes more sense to talk about a split between “high” and “low” culture, where high culture is that associated with the elite. High culture or “court art” has typically been adopted as TCE or the “national culture.” So the beneficiaries of TCE protection can be elites.
Antons takes a positive view of cultural blending and questions the need for some types of protection. He sees “syncretism, “ or the active blending of cultures in choice in selecting cultural expressions as a positive effect of globalization, and argues that it may lead to creation of more new forms of culture than loss of old cultures. He calls into question the assumption that aboriginal cultures are not resilient and cannot negotiate with nation-state and others to avoid assimilation and incorporation into larger cultural apparatus. He also questions whether losing cultural identities will cause harm to individuals. He argues that people can easily add new layers to their identity, and that gaining a new one doesn’t mean losing an old one.