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Keeping Places and the Politics of Repatriation

Articles by : Peter Toner
Under the present conditions of neoliberal regimes of power, in which cultural property is managed (and sometimes commodified) and cultural rights are asserted, indigenous peoples have been concerned with protecting what is distinctive about their cultures and seeking greater autonomy to control it. The repatriation of both tangible and intangible cultural heritage is a hot-button issue which has sometimes set indigenous peoples against Western cultural institutions like museums, but has just as often resulted in innovative cooperative arrangements which benefit both.

Items of cultural property have been removed from their places of origin for centuries, and re-located in museums and other cultural institutions. Arguments for their return are often rebuffed with arguments that these objects have become part of the heritage of all humanity, and that they can only be adequately cared for by the institutions that have custody of them. Most readers will be familiar with the case of the so-called “Parthenon Marbles” (see http://www.parthenonuk.com/index.php), sculptures from the Acropolis collected by Lord Elgin in the early 19th century and now kept in the British Museum, which the government of Greece has claimed rightful ownership of on cultural heritage grounds—a case that, in 2007, has still not been settled. Other well-known cases include the return of a Lakota Ghost Dance shirt from Glasgow’s Kelvingrove Art Gallery in 1999, and the return of the brain of Ishi to the custody of native Californians (see Rockafellar & Starn 1999, Scheper-Hughes 2001). There is an increasing recognition on the part of Western cultural institutions that objects in their collections are the cultural property of the peoples from whom they were collected and ought to be repatriated.

Similar initiatives are underway in the realm of intangible cultural heritage, where digitized recordings of music and oral narrative, along with digital photographs and other “virtual” objects, are being returned to the custody of indigenous communities. Many such communities have established cultural centres, community museums, knowledge centres, and other “keeping places” where their own cultural property can be managed and controlled. It has been noted that such keeping places may be considered to occupy the opposite end of the spectrum from the Creative Commons, as they are concerned not with public access but with control over access, especially in the case of “secret” items of cultural heritage to which access must be restricted (Brown 2005:52). Indigenous leaders from the Galiwin’ku Indigenous Knowledge Centre in the Northern Territory of Australia, for example, have begun the process of acquiring photographs, recordings, and other items collected by ethnographers and missionaries since the 1920s, and envision a keeping place designed according to local standards of knowledge management (Gumbula 2005). Indigenous memories prompted by repatriation may even be considered a form of metadata to be attached to virtual objects as a form of documentation (see Toner 2003). The use of digital technologies for the management of cultural property is ongoing in other Aboriginal communities in Australia as well (see Christen 2005).

The autonomy offered by indigenous management of their own cultural property is clearly empowering. Although indigenous leaders often want certain items of their cultural property to remain with collecting institutions (because these items cannot be adequately cared for locally), they are equally adamant that other items of cultural property simply cannot be managed properly in a museum or archive. Australian Aboriginal leaders in Galiwin’ku, for example, believe that the only proper form of management of sacred ritual objects is in a ritual context which a museum cannot provide. The consensus that seems to be emerging is for the recognition of indigenous rights to their cultural property, along with the joint management of that cultural property by indigenous communities and collecting institutions. This arrangement is likely to yield a range of benefits to indigenous communities. It remains to be seen, however, the changes that will be wrought by the discursive shift that sees these items of culture as “property” to be “owned”, or as “heritage” to be “managed”.

Introduction

The primary circulation of several thousand, small-scale, low-budget, and largely non-profit ethnomusicological records is now directly linked to a secondary circulation of several million dollars worth of contemporary record sales, copyrights, royalty and ownership claims, many of them held by the largest music entertainment conglomerates in the world. Hardly any of this money circulation returns to or benefits the originators of the cultural and intellectual property in question. It is this basic inequity, coupled with the reproduction of such negative caricature, that creates the current ethnomusicological reality: discourses on world music are inseparable from discourses on indigeneity and domination (Feld 1996:27).

“Disney Rebuffs Lion Song Claim” (BBC News headline, 7 July 2004; see http://news.bbc.co.uk/2/hi/entertainment/3872677.stm)

“Disney Settles Lion Song Dispute” (BBC News headline, 16 February 2006; see http://news.bbc.co.uk/2/hi/entertainment/4721564.stm)

What is ownership in the context of cultural property? What can be “owned”? High-profile cases of cultural property being stolen in the global marketplace catch our attention, as surely as witnessing a holdup would, and we are inevitably drawn to side with the indigenous underdog. Very often, the cultural property in question is used with impunity, and at best indigenous peoples can claim both a legal and a moral victory. When the Yolngu (Australian Aboriginal) artist Wandjuk Marika recognized one of his sacred paintings reproduced on a tea towel he could not seek restitution, (http://www.mq.edu.au/hoa/shame.htm), but his outrage and advocacy set in train a series of bureaucratic, legislative, and legal interventions that culminated in the recognition of Aboriginal artists as authors under intellectual property law in landmark cases such as Wunungmurra vs. Stipes (1985) and Bulun Bulun vs. Nejlam Pty Ltd (1989) (Anderson 2005:354-360 and passim).

In the realm of world music, it is an open question as to how many royalties have been returned to the BaBenzélé and other so-called “pygmy” peoples for their unique hindewhu riff, but the attention drawn to the chains of schizophonic mimesis known to ethnomusicologists as “pygmy pop” (Feld 1996) has resulted in a much greater awareness in the discipline of our own unwitting complicity in acts of musical appropriation. At any rate, in many cases the legality of appropriation is a matter for the courts even if the ethics seem to us transparent. My epigraphic reference to the 2006 settlement by Walt Disney Enterprises Inc. with the family of Solomon Linda for the well-known and well-loved song “The Lion Sleeps Tonight” reveals a clear victory for owners of cultural property, although a settlement rather than a verdict leaves the exact legal position somewhat ambiguous (for more on this case see http://www.pbs.org/independentlens/lionstrail/index.html).

“Ideas are big, big business” Anthony Seeger tells us, “…knowledge is a commodity that is bought, sold, smuggled, sabotaged, stolen, and above all consumed” (1996:87).

And although the appropriation of cultural property is discussed using the language of rights, “…the issue is often who has the power, the time, the motivation and the money to exercise his or her rights” (ibid.:92).

Regardless of the regime of rights in place within the indigenous context as to who may produce music, who may listen, and who must be asked (see for example Seeger 1992:347-9), and regardless of the problems in its provision of cross-cultural protection (Mills 1996), it is increasingly the case that Western intellectual property law is the final arbiter of indigenous claims. The question of whether intellectual property law is in fact the best chance for indigenous peoples to protect their cultural property is a more contested issue.

For those who see existing law as the best course of action, the real issue is to find appropriate parallels between indigenous cultural property which has yet to be protected in case law and Western cultural property which has, thereby making use of established precedents. Others see the necessity of establishing new sui generis laws specifically tailored to the protection of indigenous cultural property.

“Heritage” and the Emergence of Cultural Property Internationalism

Recent history has seen the emergence of organizations and protocols dedicated to the idea that cultural property should be understood under the category of “heritage”, and should therefore be subject to preservation and protection. The classification of the products of traditional practices as “heritage” raises as many thorny issues as the classification of these products as “property”, and indeed many of the issues overlap. It is, perhaps, not entirely coincidental that the advent of recording technology in 1877, which enabled the rise of schizophonia, was hot on the heels of the first widely-accepted anthropological definition of the concept of “culture” by Edward Tylor in 1871. Both led to a reification of “culture” and its products, which led in turn to their re-conceptualization as “heritage” in need of protection.

“Cultural property internationalism” is shorthand for the proposition that everyone has an interest in the preservation and enjoyment of cultural property, wherever it is situated, from whatever cultural or geographic source it derives. In the frequently quoted words of the 1954 Hague Convention, cultural property is “the cultural heritage of all mankind” (Merryman 2005:11).

Merryman brings a valuable historical perspective to the ways in which ideas of cultural property have developed in Western society. It was in the context of warfare and subsequent plundering that cultural property internationalism first took shape, with arguments that cultural property should be protected on the grounds that it belongs to all of humanity. An international standard for the treatment of cultural property during times of war was codified in a number of documents like the Lieber Code of 1863 and the Roerich Pact of 1935, leading ultimately to the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict of 1954 (ibid.:13-19). The establishment of UNESCO in 1945 was another major development for cultural property internationalism, as this important organization went about crafting a number of initiatives to protect cultural property (ibid.:20-26).

The realm of cultural property itself has expanded, from artworks and architectural monuments to human remains, folklore, and music, with a consequent shift in terminology to “cultural heritage” (Brown 2005:40). If placing the creative and intellectual products of traditional societies into the category of “property” presents a range of problems, so too does placing those products into the category of “heritage”: although members of indigenous societies may apply concepts of preservationism to their cultural products (as when Australian Aboriginal musicians allow ethnomusicologists to record their music on the grounds of preserving it for future generations), there may be an important gap between our notions of preserving culture and indigenous notions. Michael Brown has noted that academic opinion has been shifting on the subject of hybridity or cultural mixing, from a relaxed and even celebratory stance to one of concern over the impact of global cultural flows on “…a community’s sense of its own authenticity” (ibid.:43). This points to an unresolved tension in heritage circles between “heritage as a resource for all of humanity and as something that properly belongs to, and remains controlled by, its communities of origin” (ibid.:49).

George Yúdice (2003) has advocated an approach to culture as a resource which is increasingly being drawn upon and managed by indigenous peoples to mediate their place in a globalized world dominated by neoliberalism. He writes:

As previous understandings of culture—canons of artistic exellence; symbolic patterns that give coherence to and thus endow a group of people or society with human worth—lose force, we see here an iteration of the expediency of culture. In our era, representations of and claims to cultural difference are expedient insofar as they multiply commodities and empower community (ibid.:25).

Such a view is echoed in Rosemary Coombe’s examination of the legalization of cultural claims in the context of neoliberalism, where culture is something to be evoked, reified, claimed, managed, contested, and legislated (Coombe 2005:37). According to Coombe:

It appears that neoliberalism is capable of accommodating those forms of cultural difference that can be formulated in commodity terms but that it is challenged by those who assert rights based upon cultural difference that are difficult to encompass within the conceptual frameworks of modernity (ibid.; for a more extended discussion of these and other matters, see Coombe 1998).

It is clear that the very conceptualisation of “cultural property”, to say nothing of its management, is problematic. Faced with the appropriation of ecological knowledge, pharmaceutical knowledge, artistic designs, music, and even their own names (as in the case of the Volkswagen Tuareg), indigenous peoples have turned for protection to Western legal systems, in particular intellectual property law. While there have been some successes, others have called for sui generis laws designed specifically for indigenous cultural property, while others have noted the tensions inherent in subsuming the wealth of indigenous intellectual creations under the categories of “property” or “heritage”. The responses of indigenous peoples themselves have been diverse as they situate themselves and their cultures within a global political and economic system.

Creative Commons, Enclosure, and Irish Traditional Music

Another facet of debates around the issue of cultural property are the notions of “the commons” and “enclosure”. Christopher Smith has examined the historical development of enclosure—”the claim, contestation, and assignment of personal ownership to resources formerly held in common by a local community” (Smith 2006:10)—beginning in the early 16th century in Europe and the early 17th century in America. In brief, land formerly used for common grazing or hunting was claimed by the propertied classes as privately-held property, which resulted in a large proportion of the population becoming disenfranchised. A similar process can be seen to be at work in the area of creative expression, in which the communal ownership and creation of music has gradually given way to commodification and private ownership, evidenced by the sheet-music industry, mass-produced instruments, and sound reproduction technology (ibid.:10-12). As Smith writes, “[t]he creation and reproduction of music grew separated from its consumption” (ibid.:12).

Anthony McCann has argued that traditional musical practices rely upon “models of creativity, collaboration, and participation that together add up to the antithesis of the text-based, individualist, and essentially capitalist nature of intellectual property regimes” (McCann 2001:90). The application of an intellectual property regime to music leads to the assumption that musical practice is a commodity exchange (ibid.), whereas Irish traditional music is best understood as a manifestation of a gift economy (ibid.:92). McCann examines the implications of commercialism in music and the application of intellectual property law to Irish traditional music as a form of enclosure (ibid.:95), and advocates the utility of theories of common property for the study of traditional music and its transmission. If the very basis of Irish traditional music practice is based on the sharing of non-owned and non-commodified creative resources in the context of social interaction, then the enclosure of such resources and the application of intellectual property law threatens its very existence. As Fintan Vallely has indicated, the Irish music session involves the sharing of intellectual property among the participants, and the entire tradition is essentially the work of many hands (Vallely 1996).

The implications of these discussions of the commons and processes of enclosure can be extrapolated from Irish traditional music to traditional musics worldwide. In other cultural contexts, music may not be the kind of thing that can be “owned”; or, if it is, then the concept of “ownership” at work may be based on premises entirely different from those underpinning Western intellectual property law. This raises the irony that, while advocates for the protection of indigenous cultural property may turn to Western intellectual property law for its protection, the classification of indigenous creations as a form of “property” may itself undermine the cultural foundations upon which those creations are predicated. As George Yúdice has written:

…in accepting Western forms of law in order to protect their technologies…and cultural practices…, non-Western peoples may undergo even more rapid transformation. If a particular technology or ritual is not currently included as a form of protectable property, the recourse to Western law to ensure that others do not make profits therefrom almost certainly entails the acceptance of the property principle. What will it mean when non-Western forms of knowledge, technology, and cultural practices are incorporated into intellectual property and copyright law” (Yúdice 2003:2)?

Deep Forest, Graceland, and the Inspiration-Collaboration-Appropriation Spectrum

The schizophonic condition has had the effect of bringing musical traditions from around the world to the attention of musicians from around the world. This has resulted in a remarkable flow of musical ideas and exciting examples of musical hybridity. However, although the flow and use of musical ideas may occur both in “the West” and among “the Rest”, the power dynamics at play are often radically different. As Steven Feld has pointed out, it is one thing for James Brown to make use of African polyrhythms, or for Fela Anikulapo Kuti to make use of the James Brown scratch guitar technique, but it is quite another for the Talking Heads to use both of these musical styles and others besides (Feld 1994:246). Western musicians typically have more power in such situations, and when the professional record industry becomes involved then the economic stakes shift dramatically. The borrowing of musical ideas may be a ubiquitous feature of human musical creativity, but power differentials matter—especially when the musical tradition being borrowed is considered to be a form of inalienable religious property.

One may imagine the realm cross-cultural musical borrowing as a spectrum, with relatively benign “inspiration” at one end, overt “appropriation” at the other extreme, and a variety of forms of “collaboration” occupying points somewhere in the middle. On the “inspiration” end one may imagine a situation in which a musician has absorbed something of the essence of another musical tradition and uses that experience to generate original music. On the “appropriation” end of the spectrum, we could consider the unauthorized use of a recording of someone else’s musical property for the appropriator’s musical (and financial) gain. In the middle are a wide variety of possibilities where musicians from different traditions willingly collaborate to create music, but where the issue of overall control may be important. Such a heuristic spectrum of musical borrowing enables a consideration of music as cultural property and many of the ethical issues involved in using other people’s music.

The most notorious case of musical appropriation in the scholarly literature on world music is certainly that of Deep Forest. The essence of the case is that ethnomusicological recordings made by Hugo Zemp in the Solomon Islands, first published by UNESCO, were sampled by the French musicians Michael Sanchez and Eric Mouquet on their very successful album Deep Forest. In Zemp’s account of the affair (Zemp 1996), he claims to have been misled and that permission for the use of his recordings on Deep Forest was not obtained. The matter has not been adequately resolved, but it has functioned as a lightning rod for debate in ethnomusicology on the economics, politics, and ethics of sampling, and on our own (probably unwitting) complicity in such situations. What Deep Forest signals are the potential dangers involved in recording other people’s cultural property and disseminating it to the wider world, where its eventual use may slip out of our control. In a world music marketplace that still thrives on exoticizing difference, the cultural property collected by anthropologists and ethnomusicologists becomes a potential resource, and we must attend to the pote
ntial pitfalls inherent in our role as its custodians.

In the “collaboration” range, in the middle of the spectrum, lie countless musical interchanges between Western and non-Western musicians. Louise Meintjes has written that the notion of collaboration can be understood in two ways: first, it is established in the music itself and the ways in which musical styles are combined; and second, collaboration is understood differently by different interpreters coming from different contexts (Meintjes 1990:37). In her study of Paul Simon’s Graceland album, another lightning rod for ethnomusicological debate, Meintjes indicates that, while some songs on the album, like “Homeless”, are clearly collaborative in a musical sense, other elements of the album suggest signs of “appropriation, exploitation, and domination” (ibid.:47). Above all, the overall ownership of the album remains with Paul Simon (Feld 1994:242). Feld has suggested that, in world music, non-Western musicians often act as wage labour, concluding that the music industry “…seems to draw the boundary line between participation and collaboration at ownership. Whose music? Paul Simon’s music” (ibid.).

 

Other prominent examples of intercultural musical collaboration between Western musicians with (variously) powerful positions in the international music industry and non-Western musicians with less or no access to the reins of musical power abound: Peter Gabriel’s collaborations with Youssou N’Dour, Telek, and others; Ry Cooder’s award-winning collaborations with V.M. Bhatt, Ali Farka Toure, and the Buena Vista Social Club project; Australian David Bridie’s work with musicians in Papua New Guinea; Mickey Hart’s work with the Gyuto Monks Tibetan Tantric Choir; David Byrne’s own music and his brokerage through his Luaka Bop label; and the list goes on. As Meintjes has pointed out, the nature of the collaboration is largely in the ears of the listener. Some seem to use non-Western music as backing for their own music, while others are musically more even-handed, or even overtly foreground the non-Western musical elements. Some physically foreground the Western star in live performance, while others actively seek the background. All are at least potentially problematic, as the international music industry “…is organized in a way that promotes hierarchical, competitive, profit-oriented work and does not readily accommodate collaboration” (Meintjes 1990:47).

The “inspiration” end of the spectrum is the most amorphous and difficult to analyze, and takes us back to the idea of underlying compositions as “raw materials” for improvisation. A musician may hear a specific piece of music, or may immerse himself or herself in a style of music, and their experience of close listening may result in a composition that is clearly their original creation, even if it does make some minimal use of the source music. Jan Garbarek’s “Pygmy Lullaby”, inspired by Deep Forest’s “Sweet Lullaby” (which sampled Zemp’s recording of the Solomon Island singer Afunakwa) (Feld 2000:159-64), would appear to fit into this category. The ethics seem more clear in this case than in the case of sampling a field recording and adding synthesizers to it. Other issues of cultural property, however, remain unresolved, especially the idea that music may be considered to be inalienable cultural property. If this is the case, how are we to interpret activities at the “inspiration” end of the spectrum?

 

Recording Technology, Schizophonia, and Intellectual Property

Another set of historical developments that have had a significant impact on the issue of cultural property are the changes wrought by the advent of recording technology. Before Thomas Edison’s invention of the phonograph in 1877, sounds could only ever be heard in close proximity to their sources. Recording technology made possible a condition that the composer R. Murray Schafer dubbed “schizophonia”—”…the split between an original sound and its electroacoustical transmission or reproduction” (cited in Feld 1995:97). For the first time in human history, music could be removed from its place of origin without taking the musician with it. The resulting issues have serious ramifications for cultural property.

The phonograph was first used for ethnographic research by Jesse Walter Fewkes in his research among the Passamaquoddy in Calais, Maine, in 1890, followed quickly by further research in the American southwest with the Zuni (Brady 1999:54-6). Early American cultural anthropology followed suit, and the phonograph became an important research tool used by Franz Boas, Paul Radin, Robert Lowie, Alfred Kroeber, and many others (ibid.:66-9). As ethnographic collections made with the phonograph began to grow, specialized institutions were created to manage and preserve them, such as the Berlin Phonogramm-Archiv under the direction of Erich M. von Hornbostel (Porter 1974:4). These ethnographic collections were made in the context of prevailing notions of preservationism, which held that indigenous cultures were bound for extinction, and therefore had to be collected and preserved while there was still time. This idea of preserving facets of indigenous cultures is still present today in international treaties and agreements concerning cultural property and cultural heritage.

The phonograph was also used by individuals who were not only scholars of “traditional” musics, but who also incorporated the results of this scholarship into their own creative activities. The Hungarian modernist composer Béla Bartók, for example, began collecting the folk songs of Hungarian “peasants” in 1905 and continued collecting for over a decade, with the twin goals of popularising these folk songs, on the one hand, and using the materials for his own compositions on the other (Brown 2000:122). The Australian composer Percy Grainger used the phonograph to collect folk songs in England between 1906 and 1908, which also influenced his own compositional creativity (Yates 1982:265).

 

Kay Kaufman Shelemay has identified three major periods in the history of recording technology. The “phonograph era” described above began with the invention of the phonograph and lasted until the Second World War, and she notes that ethnomusicologists and the commercial record industry shared technologies, methodologies, and musical content. While the earliest technology allowed for both recording and playback, Shelemay notes that the invention of the 78-RPM in 1895 marked a separation of acts of recording from acts of musical consumption as most people only had the capacity to play professionally made recordings (Shelemay 1991:279-81). The “LP era” began just after the Second World War and lasted until the late 1960s, and for the first time recording technology had the capacity for much longer recordings (ibid.:282-4). Notable for the issue of cultural property is the fact that LP records continued the trend that separated music producers from consumers. This trend was overturned in the late 1960s with the beginning of the “cassette era”, which once again placed technology in the hands of ordinary people that enabled both playback and recording (ibid.:285). From this point on, record industry professionals and ethnomusicologists were not the only individuals to record indigenous musics. Indeed, it is extremely common for our indigenous research collaborators themselves to make sound recordings on equipment that they have available to them.

The development of recording technology is an essential feature of any discussion of cultural property for the simple reason that making sound recordings allows music to be taken away from its originating source and reproduced away from that source. Other forms of cultural property have been misappropriated for centuries as the result of colonial expansion, and indeed have come to form the backbone of our most respected cultural institutions: museums, g
alleries, libraries, and archives. The movement of music from its source through the act of recording is even more complex when one considers the ephemeral nature of sound in the first place, the fact that sound disappears rapidly after its production. So, in a single act of recording it becomes possible to capture fleeting sounds and save them from a physical oblivion, and also to remove those sounds from their source and reproduce them elsewhere. When music is considered to be property, as it is in a great many cultures around the world, this process of schizophonia generates many challenges. It also generates a range of opportunities for the owners of cultural property to use recording technology for their own schizophonic work in protecting their rights. It is important, then, to adopt a nuanced view of schizophonia. As Steven Feld has written:

Schizophonia…needs to be imagined processually, not as a monolithic move in the history of technology, but as varied practices located in the situations, flows, phases, and circulation patterns that characterize particular cultural objects moving in and out of short and long commodity states, being transformed with the experiential and material situation of producers, exchangers, and consumers…, located in historically specific national and global positions vis-à-vis late capitalism and development…, cultural domination…, modernity and postmodernity (Feld 1995:99).

Jazz and Intellectual Property

Although current debates about intellectual property in anthropology and ethnomusicology typically concern the cultural property of indigenous peoples, it is illuminating to consider musical forms that are embedded within mainstream Western culture, but which still present certain challenges in terms of the application of Western copyright law. Like the vast majority of indigenous musics, jazz is a musical form that is grounded in oral transmission and improvisational practice, and therefore presents a useful case for discussion.

Of the three basic requirements of copyright (authorship, tangibility, and originality), the tangibility requirement seems relatively easy to address. Legal scholars have already noted that copyright law does not easily accommodate improvisational arts because these forms “…conflate two actions that are usually undertaken separately—the acts of authorship and performance” (Donat 1997:1369). Donat points out a strategy that can easily be used by improvisational artists, including jazz musicians as well as indigenous and other “traditional” musicians, as a means of fixing their performances for copyright purposes: audio or video recording. This actually secures copyright not only in the secondary work of the recording (important in Feld’s (1996) discussion as ethnomusicologists typically hold the rights to this form of intellectual property), but also in the underlying work of the musical creation itself (ibid.:1385).

The creative works embodied in jazz improvisation, however, face comparable challenges to indigenous musics in dealing with the “originality” requirement. It has been noted that copyright law does not adequately recognize or protect jazz improvisation and actually discourages jazz creation by privileging the originality of the composers of underlying works over the “derivative” creativity of their jazz re-interpreters (Anonymous 2005:1940-1). The so-called “idea/expression dichotomy” (ibid.:1947) is a key element here—the notion that ideas cannot be copyrighted because to do so would be to remove those ideas from public circulation, whereas the specific expression of ideas ought to be protected. The problem in the case of jazz is that compositions that form the basis of the jazz canon are treated as expressions, not ideas (and therefore protected under copyright law). A case could be made that these compositions (at least as they are used in the jazz idiom) are raw materials—uncopyrightable ideas—and jazz musicians make sufficient changes to those raw materials and employ sufficient creativity that their improvisations themselves ought to be protected as original works (ibid.:1948). The existing interpretation of copyright law would seem to favour the George Gershwins and Cole Porters, rather than the Miles Davises and John Coltranes.

The Emergence of Intellectual Property Law

The creative productions of human minds have not always been thought of as “property”, and so we can well ask what transformations take place when music and other creative endeavours become categorized in this way. The origins and development of the concept of intellectual property and laws to protect it coincide with both technological advances and the rise of capitalism, in addition to European colonial expansion. According to Sherylle Mills, the invention of the printing press in 1476 and the advent of mass publishing led to the first official complaint of plagiarism in 1553 and a variety of efforts to regulate the English printing industry (Mills 1996:57). The 1710 Statute of Anne was the first recognition in law of intellectual property, first created to protect personal property interests in literary works, and expanded in 1842 to include music; similar legislation in the United States included music by 1831 (ibid.)
According to Mills, a copyright is

…a property interest in the musical work, granting its owner the exclusive right to perform, copy, record, display, or distribute the copyrighted work. Third parties must secure permission from the copyright owner to use the piece of music in these manners and must pay financial compensation (“royalties”) for the use…. Any work that is not eligible for copyright protection is considered unowned and lies in the “public domain”. Public domain music may be freely used by anyone, without legal limitations or royalty payments (ibid.:61).

Noting the economically-oriented attitude of U.S. copyright law, Mills goes on to outline the three main requirements of this law: “the author requirement” which relies on identifying the originator of a work (ibid.:63-4); “the tangibility requirement” which necessitates the fixed rendering of a work (ibid.:64-5); and “the originality requirement” which states that a work must be the “the original product of an author’s intellect” (ibid.:65).

As Mills and many other scholars have made clear, copyright law brings together a range of culturally- and historically-specific conceptions of music and of property, and presents numerous problems when confronted with the music and other creations of societies which have differing conceptions of general concepts like “music”, “property”, and “ownership”, and the more specific concepts of “authorship” and “originality”. How, for instance, is Western copyright law to protect music that is the communal property of an entire group, and which has been passed down from generation to generation? This is the case for the Yolngu people of northeast Arnhem Land in northern Australia, where members of each of 40 or so patrifilial groups are considered to be the joint owners of sets of songs whose authorship is attributed (for the most part, but with some exceptions) to ancestral beings. Such a musical tradition would seem to fail the copyright test on the grounds of both authorship and originality because authorship cannot be specified (at least in our terms) and originality is (at least on the surface) lacking. It is generally the case that such music is “anonymous”, “traditional”, and therefore is considered to be in the public domain.

As Anthony McCann writes perceptively about the public domain: “Public domain” is a concept that stems from the construction of copyright, and is that space left over after all else has been parsed out. Anything that is not in copyright is regarded as “public domain,” effectively infinity minus copyright. However, “public domain” is synonymous with uninhibited exploitation of the music or song, and it reinforces the anonymous/authored dichotomy. Not only is a piece that sounds traditional often assumed to be of unknown origin, but it is therefore assumed to be open to all for free and unbridled exploitation (McCann 2001:99).

And even if these kinds of “traditional” musics could be demonstrated to have original authors as copyright law requires, there is the additional question of the limited duration of copyright, currently 50 years after the death of the author under Canadian law, and 70 years after the author’s death under U.S. law (for more on the so-called Mickey Mouse Protection Act, see http://www.wired.com/politics/law/news/1999/01/17327). The fact that copyright law specifies protection for a fixed period of time means that, for those traditional musics which have been performed since time-out-of-memory, any notional original author would be long since deceased, and therefore the content of these musical traditions would be in the “public domain” just as the works of Beethoven are. It can be seen, then, that the conjuncture of traditional musics and Western intellectual property law raises a number of vexatious issues.

 

References Cited and Further Reading

2001. Special Issue on Intellectual Property Rights: Culture as Commodity. Cultural Survival Quarterly 24(4).

Anderson, Jane. 2005. The Making of Indigenous Knowledge in Intellectual Property Law in Australia. International Journal of Cultural Property 12:347-373.

Anonymous. 2005. Jazz Has Got Copyright and That Ain’t Good. Harvard Law Review 118(6): 1940-1961.

Brady, Erica. 1999. A Spiral Way: How the Phonograph Changed Ethnography. Jackson: University Press of Mississippi.

Brown, Julie. 2000. Bartók, the Gypsies, and Hybridity in Music. In Georgina Born (ed.) Western Music and Its Others: Difference, Representation, and Appropriation in Music. Berkeley and Los Angeles: University of California Press.

Brown, Michael F. 1998. Can Culture Be Copyrighted? Current Anthropology 39(2): 193-222.

Brown, Michael F. Heritage Trouble: Recent Work on the Protection of Intangible Cultural Property. International Journal of Cultural Property 12: 40-61.

Christen, Kimerly. 2005. Gone Digital: Aboriginal Remix and the Cultural Commons. International Journal of Cultural Property 12: 315-45.

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