The Eighth Annual IP/Gender: Mapping the Connections: Gender and Traditional Cultural Expressions

[note: my pick for standout this morning is Sylvia Kang’ara’s explanation of what we understand property to be—both clear and very rich.]

Opening Remarks
Ann Shalleck, Director, Women and the Law Program American University Washington College of Law

Family law is historically the locus of the traditional, the cultural—deals with altruism and solidarity as dominant components rather than individualism and arms-length bargaining. Feminism challenges that exceptionalism in a variety of ways and understand how its development as an exceptional realm is linked to separation of market and family.

Colonial project: Negotiation between colonial powers and local elites: power over economy became colonial/allocated to colonizer; local elites were given some stake in the economy, but large control over family. Decolonization/nation-building: family and family law became a site for struggles about who controls the definition of the natural, traditional, cultural. Family as a site for production overlaps with family as a site of cultural production. Family affects how benefits get distributed—both economic and cultural.

An Ethnographic Framing of Legal Protection for Traditional Cultural Expressions
Moderator: Peter Jaszi, Director, Glushko-Samuelson Intellectual Property Law Clinic, American University Washington College of Law

Women’s work in the home, and the home work of other family members, is invisible—trying to make that visible.

Lorraine Aragon, Associate Professor of Anthropology, University of North Carolina – Chapel Hill
Indonesian textiles: commodification correlates with a reduction in women’s authority. Textiles are a key example for Adam Smith discussing how the division of labor constitutes the invisible hand of the market. Contrast to Indonesia, where women are working on production of cloth not impersonally; they know who the cloth will clothe and the production is collaborative. Done within a kin/society framework. Cloths themselves are gendered female, exchanged in marriage for knives, jewelry, livestock. Women marry into kin groups with their cloths.

Visual iconography in textiles is understood to have a matching counterpart for men in ritual speech. Men have the verbal/oral domain; women speak with cloth. Legally: authorship exists, but practically there is no assertion of individual authorship. Indonesia also has protection for cultural property. State asserts ownership of folklore on behalf of creators; scope is vast and includes dances, calligraphy, artworks, stories. Divides world into modern individuals and traditional groups: one produces modern commodities and the other produces works with use value. Men get put into the first group and women into the second.

Fixation of culture into owned objects is problematic; saying the state owns them collectively is also a problem.

There are ideals of balance between men and women; women control domestic economies. They can inherit wealth, handle money. Household economy is often focused on nuclear family working as a unit. Europeans wanted to deal with the men, even in areas traditionally passed through women (land). These things linger into postcolonial law.

Women are not inferior cosmologically in Indonesia, but they have to beat the odds to gain power and status. Domestic economy, rural horticultural households, have really shrunk over the past few decades, and that’s where women were most powerful.

Commoditization of textiles further diminishes that authority. Loss of gendered production techniques (plant dyes); differences in ability to travel between men and women. Bark cloth: has no commodity value; women retain control over its production; it has almost vanished. Like all textile types, has ritual qualities. Worn by ritual specialists, including elder women and male transvestites whose ritual role is to unite male and female.

Some dyes are taboo to men—symbolic connection between fluids and female fluids. This retains women’s control over the process. As these textiles become attractive to tourists/external markets, they have been marketed in larger areas. Men start to become entrepreneurs—they see in Bali that tourists like X, and they come back and direct women what to make so it can be sold. Become mediators with the market; may have more language skills/English than their wives and daughters. Small factories; introduction of chemical dyes allow men to move into control/positions as designers. Some women’s cooperative groups are trying to maintain older production processes/women’s control.

Commoditization: women are asked to “empty themselves” of creativity to serve the interests of the employer. Creativity becomes about specialized knowledge, autonomy—linked to mobility; not just a personal trait. Creativity is now being remapped on Indonesia as a nation—its “ownership” of batik and the “personality” expressed thereby. Indonesians don’t need a label saying “Batik Indonesia” for themselves—newly developed labeling is for export. Ethnicity, Inc.

Cultural protection seems to promise economic development gains for producers and protection of tradition; tension between these things is rarely recognized.

Boatema Boateng, Associate Professor of Communication, University of California – San Diego
Ghana
Kente cloth: each symbol has a specific meaning. Unlike the male breadwinner/female housewife scenario of classic Western analysis, women’s economic roles in African societies were vital—patriarchy was a distortion of realigning towards Western domination, creating hierarchy where there had been balance before. Focus on gender norms does not fully capture male and female roles in Yoruba society, which gives more attention to seniority.

Women produce dyes used by men to produce adinkra cloth.

Women have registered individual adinkra designs as their own. Gives women an advantage in the masculinized spaces of the law. Men are feminized with respect to the law protecting traditional cultural expression.

Ross Coggins’ poem The Development Set offers a stinging and still relevant critique of professional self-perpetuating development advice. Interrogate protection of traditional cultural expressions in the context of the larger development agenda, structural adjustment programs, etc. Structural adjustment has had adverse consequences for women; how can TCEs possibly function effectively for reversing the significant structural constraints on women’s rights? Must challenge changes in IP regulation that have curtailed the possibility of achieving development through tech transfer. Unless TCEs are harnessed to initiatives that challenge constraints on women’s lives and IP frameworks that put developing nations in the status of producers of raw materials, they have limited potential. Category of TCE itself runs risk of reinforcing distinctions between third- and fourth-world countries and developed world.

African feminist insights: it’s not just about male dominance and female subjugation. Extend gender analysis of development to patriarchal modern state. African female scholars are exploited as producers of raw material for finished goods produced by Western scholars. This is similar to how TCEs work in IP law. Don’t reinforce status of African women, men, and TCE as mere raw material.

Jane Anderson, Assistant Professor of Anthropology, University of Massachusetts – Amherst
Australia
Dispute over improved accessiblity of certain materials, including photos/recordings: Historical documents to some; methods of control to others. Descendants of people captured in the photos: they were not collected freely; there was no discussion of future use; subjects were not considered to have rights. Circulation of photos thus reflects colonial history. Copyright upholds liberal individualism in the archive, continuing to marginalize indigenous people. They didn’t make the photo/recording, so their labor isn’t valued. Indigenous people have to come up with different arguments for access, copying, and control. They are not the public contemplated by the archive.

Indigenous informants are nameless while the recorder/archive keeper is named. Reminds us who has legal rights and who doesn’t.

Imagine that a community wants its own archive; they don’t want to have to travel days to see their own history; they don’t like people turning up with documents they don’t own that are taken to be about them. Colonial archive v. local sites; old works v. present recordings as part of the archive; new relations of control. Very few may be literate—presents problems for digital archives. Can access be made less dependent on written commands? Cataloging and classifying may be of less concern to the community as identifying specific individuals. Legacy of colonial collecting practices continue—indigenous peoples still aren’t owners of materials made/taken from them (including genetic material). Information necessary to make informed decisions is hard to find.

Q: What would need to happen for women to see more benefits of commercialization in Indonesia?

Aragon: Not sure—wage labor could be improved for women doing low-level work. Ask the women. There’s always a focus on the final product, instead of looking at the process and how the workers are being treated. That would be a start.

PANEL 2
Marc Perlman, Associate Professor of Music and Ethnomusicology, Brown University
Moderator

Alicia Ory De Nicola, Research Associate in Anthropology, University College London
Male Printers, Female Designers: Geographic Indication and the Role of Caste, Class and Gender in Indian Traditional Textile Printing

Conflicting local and national interests. Bagru: North Indian printing cluster, handblock printing. Newly adopted GI; already well known in India but the idea is to tell international consumers that there is something unique. Locals have stopped wearing cotton-printed cloth, though. Chinese imports replaced them. Local printers now are looking for global consumer; struggle to adapt. Very difficult for designers—in the past, the artisan was the creator, given patronage. Chemical dyes changed matters. Printers step in to deal with market realities. Two separate communities: printers are male heads of households, working as families. The designers now come from urban areas, well-educated at design schools; access to English and to travel which local printers don’t have—become critical in selling textiles in a global market.

GI protection means the idea of creativity goes back from the designers to the villagers—designers have taken discourse of creativity for themselves; GI is a stamp meaning it was created and that the creative value came from Bagru. But the printers still really need the designers to reach a global market. When you feminize a commodity, you lose a lot of its cultural capital. Here, to an urban middle-class space, losing cultural capital of male head of household’s labor. As part of the household income for male head of household labor, it’s more important economically than it might be to a middle-class household.

In response to questions: she didn’t set out to study this, but people kept bringing it up—they’d been convinced by NGOs/government that this would make them more competitive, since other people had gotten GIs already.

There is a preexisting cultural reputation—Indira Ghandi, Bollywood actresses go to get Bagru saris; the hope is for internationalization of that fame. Also a desire for recognition of worthiness.

Q: but then what happens with diminishing returns when everyone gets a GI—history of appelations for wine?

A: She believes that it won’t be as successful on the international level. Some middle class women have 100s of saris, each from somewhere specific and with specific uses. But she doesn’t think that will replicate.

Middle-class designers are taught a responsibility towards villages: go to village as a source of inspiration and to have connections to those villages. One way for NGOs, designers, and government to see themselves doing that is to follow development schemes.

Q: counterfeiting as an issue?

A: Yes, but not the way you probably mean it. As design companies get bigger and go into rural areas, taking on the idea of creativity themselves, they want to protect their prints. They have printers build walls around the commons to protect their designs. When they were local designs, they were shared by the community. There are copying issues, but really only for designers, not for printers.

Sylvia Kang’ara, Assistant Professor of Law, University of Washington School of Law
Gender and African Traditional Cultural Expression: What does Intellectual Property Have to Do With It?

Property gives a catalog of things that will be recognized as property interests; things outside that catalog are not property. So a system has to explain its catalog. Treating TCE as copyright, TM, etc. is a way of fitting cultural expressions into the catalog without convincing the system that it needs to reopen the catalog comprehensively. Accepts the closed catalog.

Property law also tells us the formal prerequisites for creating an interest. Tells us it’s important for citizens to understand how their interests are created so they can behave accordingly (make a deed, identify owners, engage in transactions). Writing is a key example: the idea is that it gives society notice that a particular interest has been created in a particular person. Without a writing, you have a problem. TCE: how can we register an interest to tell the world? The requirement of signalling gives property law coherence; prevents everyone from claiming everything.

Property law also tells us who is the right holder. Who has a right that they can enforce? Who has a duty to honor that interest? Can conflict with other systems—e.g., a family system. If a right is allocated within the family differently, as a matter of family-based production, you can have a conflict. Using legal language and structure can be costly, especially for women.

Property law also assigns penalties for violation. Remedies may differ. Personal property often has fewer remedies available than intellectual property.

Does receiving traditional wisdom within the family create a status as rights-bearer in that traditional wisdom? What about the perhaps unique formulation used by the speaker of that traditional wisdom?

TCEs are gendered: women may not benefit from them though production takes place in the family. May have unique significance for women because they have spiritual significance. Without a way to say that what women produce in the family is of value it doesn’t make it into the catalog of property law. Catalog needs to be expanded.

Transferability: a key component of Western property. To be property, it needs to be transferable. We need to change that requirement to recognize TCE.

Linking the thing to the individual: exclusive control. This is also not a part of TCE. Expression belongs in/to the community. As long as property law is wedded to exclusive individual control we have a problem. Must recognize work of women within family structures, without consigning women to the traditional or ignoring changes taking place economically.

Q: could say property also functions to enable licensing. In a world of TCE, what kind of licensing would we imagine?

A: Hasn’t focused on that, but it would require a lot of lawyers! Explicit determination of who holds what interest so that they can have the capacity to license. Unless we expand the doctrine, she doesn’t know it can even be done in many countries. What is going on is preservation of culture against unraveling/stealing. Licensing out is a different matter. Distinct from protectionism/preservation.

Q: some responses to historical injustices of property propose to limit scope of property rights. Property law has not been very gender generous. Broadening the catalog may address it rhetorically, but what about distributively?

A: She sees the choice as keeping two spheres separate or broadening legalization. She would prefer progressives to redefine the core of property rights. Retake private law and infuse it with progressive ideas. We can no longer be players at the margins. Spheres will interact whether we like it or not, and that’s where the greatest injustice is. We need to get in on the action, define the terms: what value is, what rights are, who holds rights (head of household only v. others).

Nkiru Nzegwu, Professor of Africana Studies, Binghamton University
The Swakopmund Protocol: An African Response to IP Rights Discourse
Would like to take gender out entirely.

Art is not anonymous; cultures ascribe identity to artist even without signatures, if you know the context. Women could identify the name of the woman who adapted a certain design from Portuguese slavers and brought it into her cloth. So we start with the question: who are the individuals? Anthropology has tried to abandon assumption that cultures are static, but pervades other disciplines, especially when they discuss indigenous peoples (Europe has no indigenous peoples left in this discourse).

Mechanisms for cultural transmission: rules for who gets to learn a practice, within and without the family. African mechanisms are not recognized by intellectual property.

Gender is tied to colonialism and exploitation that came with disparagement of women’s centers of power. Recoup that by dealing with the processes/structures that put gender in place. When gender comes in, research focuses on domination and subordination, but not all hierarchies are problematic and gender has a way of making all hierarchies problematic. We need a visionary model where there is no gender and domination/subordination is thrown out. Not saying gender doesn’t matter today but that in the aspirational world we should be able to look at IP without gender.

Evangelical Christianity and evangelical Islam have come into conflict, doing everything possible to degrade, disparage, and eliminate African cultural traditions that don’t have gender problems.

Swakopmund Protocol: 9 nations ratified a protocol on TCEs, making it regional law (only 6 required). Background: biopiracy/hoodia controversy; South African government licensed the knowledge. Global economic imperative to play within the boundaries—can’t get anything from the system unless you participate and recoup what you have identified over the years as relevant knowledge.

International consensus: claimed that community ownership was an oddity: but corporations aren’t individuals but have been given human attributes and human rights. Laws and definitions are not static; they are shaped to fit purpose.