Jaszi festschrift, Panel 1 – Traditional Knowledge

Intellectual Property and the Public Interest: Toward a Festschrift for Peter A. Jaszi

Boatema Boateng, “Tradition” and the Production of the Other in Intellectual Property Law

Jaszi’s questioning of received wisdom of copyright law is a key influence.  How different cultural forms have been shoehorned into © while others have been denied entry.  A matter of power, as well as overlooked similarities among kinds of knowledge production. It must be more than coincidence that forms still denied protection are produced by global South and by specific subject populations in North and South.  Ghana’s protection under ©: while fabric designs were protected under industrial design, other elements of local culture weren’t protected for a long time.  But in 1860s-70s Britain began to turn interest in Ghana from slave raids to territorial control and resource exploitation (gold). Asanti made adinkra cloth; resisted British control, but Empire claimed elements of Asanti culture through ©.  Britain had no qualms about questions of originality that now dog protection for a range of cultural forms—it simply used © to claim cultural forms for itself.  Reinforces her view that protection distinctions are matters of politics, not philosophy.  It’s easy to assign formal equivalence to positions in debates over protection for traditional cultural forms, especially in UN.  Yet for most ex-colonies, modern nationhood doesn’t translate to modernity in the eyes of outside observers. 

Forms of subjugation changed over time: dominationàideas of underdevelopment.  Most former colonies have gained formal independence, adopting trappings of modern nationhood including legal systems.  But this doesn’t make them fully modern, as you can see from the persistence of the concepts of modernity and of tradition, tribe, etc.  Culture and knowledge of indigenous people defined as folklore, traditional cultural expressions—serves to fix the people who produce this knowledge in a subordinate position to the people of Europe.  Exclusions from IP law exist in US quilts on the basis of gender & categories of art v. craft; it’s clear in quilting that this isn’t traditional knowledge and yet it still raises the same questions of originality/entitlement raised with TK. 

Not all gloom & doom: possible creative use of these categories to push at boundaries of resistance.  Indigenous people do innovate!  But the double standard has facilitated shoehorning of software to © and patent while firmly resisting protection for cultural expressions of global South. Key issues are not only about what’s protected and why but also about whether those who produce have gained full admission to the benefits of humanity.

Lorraine Aragon, The Third Enclosure: In Search of Porous Fences around Traditional Cultural Expressions

Third enclosure: shift from covering material fixations to claiming indigenous elements with blurry boundaries as national property.  Romantic authorship doesn’t seem to be part of this law. Her work began with religion in Indonesia.  Rice fields were reallocated annually; “owners” were the deities and people were the managers.  Most Indonesian traditional artists show little interest in either IP or cultural property claims, while high-level officials support regulation of TCEs.  Jaszi investigated effects on artists; talked to lots of artists and gov’t officials (w/Aragon).  Jaszi wrote final report, 2010. Discusses promises and perils of conventional IP, and what sui generis right would provide.  Mobilizing IP in discussion v. TCEs.  Production (arts) v. product (TCEs).  Conventional IP is robust and tested internationally, but TCE protection isn’t.  IP is a metaphor, and so is culture—it’s a noun of process, not a product: the tending of something—crops or animals (Raymond Williams, keywords).  We tend to use it in anthropology as an adjective rather than as a noun, which seemed too fixed.

From traditional arts to Ethnicity, Inc. Perfect storm of financial pressure to move from natural to cultural resources + human rights and cultural heritage rhetoric.  Yet out of touch w/how art process works, how authority works, how IP works.  Law as politics, like North Carolina’s HB 2 “bathroom bill.”  Giant solution to relatively small problem. Gov’t and media tap into public anxieties—cultural theft, sexual boundaries.  Incapable of being implemented: the Indonesian law has no implementing regulations; NC is not going to check birth certificates at bathroom doors.  Multi-scale politics and aspiration: speaking to issues working at higher or lower levels on political scale.  Cultural theft in Indonesia: the enemy is always Malaysia, accused of stealing many genres (though they’re shared in a long history).  Indonesia: 4^th most populous nation, thousands of ethnic groups, hundreds of islands, lots of hybridity already. Political intervention: expressions are matched w/provinces which are matched w/ethnic groups as if everyone was matched at the border.  A process of fixation.  Invented traditions. 

Dizzyingly different to distinguish between traditional works and new creations based on traditional elements: Jaszi said that old forms were once new forms, and new forms are always based on elements from the past.  Disrupted the narrative of modern innovation v. old static existence.  Invented traditions aren’t not just nostalgic fictions, but often forgotten/unforeseen art trajectories.  Art repertoires as extended minds. 

District officials have attempted to © traditional “chicken eye” pattern.  Optimism: Indonesia has always had plural legal systems, always in dialogue.  We know that Indonesian producers are clever in managing their own knowledge; it’s not democratic or evenly distributed, but it is locally negotiable as top-down is not.  Related or neighboring rights for performers not well-recognized in Indonesia; could be important for some groups.  Other possibilities: certification marks, etc.  We don’t want this law to be an eminent domain, top-down law, where the commons becomes “waste”—traditional arts’ functionality is ignored when it’s not monetized. But Indonesia has many arts entrepreneurs—might want a legal boost, but not legal dynamite.

Ruth Okediji, Traditional Knowledge and the Public Domain

Property rights regulate distribution/use of scarce resources; so when nations agree to grant property rights in intellectual creation, they’re not only encouraging investment but setting baseline for competitive relations among different people. Every property right contracts the interests of others/adjusts the competitive landscape.  A neutral way to express concerns: new rights harm the public domain, a powerful concern w/particular resonance at WIPO. 

“Traditional knowledge”: search for language to anchor claim for protection against piracy—indig. groups have used the same language as “authors”—they claim there’s no such thing as a global commons.  Recognize public domain as important consideration, but it’s clear that early acknowledgements proceed from different premises. Some countries view public domain as a threshold for protection, and others view it as distraction raised by elites from the global North or of little relevance for interests that lie beyond the traditional patent/©/TM fields.  Public domain is thus a lightning rod in int’l negotiations.  Attempt to find common ground often cedes principles for which we are contending. 

Indigenous groups have real concerns.  “Common heritage of mankind” developed global knowledge infrastructure using plant genetic resources and TK.  Int’l institutions have been built around the idea that this belongs to the public and should be freely/methodically exploited by big institutions.  But the idea that public domain only represents the attempt to recontrol or reallocate resources of the global South goes too far.  Need to assert definitions of public domain as part of TKE; remains skeptical that current proposals are actually in furtherance of global South; privatization and prevention of border-crossing will defeat the very purposes for which we value knowledge. Property begets property in a vicious cycle.  The purpose of the public domain isn’t to deny property rights but to establish a zone in which human beings, communities are able to engage in the oldest act of human expression, the creation of knowledge itself.

Fumi Arewa

Nollywood films: the film production quality weren’t to global standard in early days, but that’s changing—Toronto film festival premiere.  Authorship comes in all kinds of places and forms. Nigeria had very little IP enforcement during the emergence of Nollywood: huge global film industry, challenging assumptions about IP.  IP is very important for creative people, but we over and underestimate its importance in various situations, which Jaszi has drawn attention to in his work.  Attitudes have been shaped by external pressure saying that IP rights are really really wonderful.  Nollywood producers were a tough nut to crack on fair use; they thought fair use was bad for filmmakers. Jaszi, in two hours, got them to start thinking about how fair use could be an important part of IP and important for them.  Developing countries need an IP agenda appropriate to their situations, not externally derived, despite reality that much of IP will be TRIPs-derived. She wants to know what IP does for them and for domestic creators.  IP has been externally derived for a long time—a lot of IP laws on the books.  Digital colonialism: take a second look at historical narratives about lawmaking.  During the colonial period, people were upfront about what they think. Legal systems in places like Nigeria were overlapping and didn’t take account of conflicts; they just copied British laws or laws from other colonies.  No consideration of local or public interest in discussions of laws, which are often still on the books.  Countries are starting to look at this overhang of externally derived law, but it can still harm economic development.

Irene Calboli, (remotely from Singapore) Geographical Indications, Economic Development, and Cultural Heritage: Good Match or Mismatch?

Asian interest in GIs is serious, going far beyond pressure of EU.  Anti-American, anti-New World in EU version, but also interested in protecting GIs as potential for marketing products internationally. To what extent that potential really exists is up for discussion; it can help or can be useless.  Case by case.

Little farms in France and indigenous people want recognition—a moral rights aspect to GIs.  Understandable, but fundamental issue with value of component inputs, foodstuffs v. products that go through more processing.  There can be excellent spillovers for land, people, sustainable development when consumers can be convinced to pay.  Public interest for consumers: accurate product information; narrative of trace-marks.  We need to tailor GI protection for better and more transparent ways for consumers to know where products are from and how they are made. Local developers won’t be able to cheat if the how is clear.