Today WIPO includes 184 states, among them. Russia. In July 2011 WIPO, in conjunction with RosPatent, plans to hold a 12
Discussion paper
Sergey Sokolovsky
On copyright and culture Something unusual happened in the Australian summer of 2002: the January numbers of the Canberra press were full of reports to the effect that activists from the Aboriginal Tent Embassy had seized the coat of arms that had adorned a pillar at the western entrance to the Old Parliament House, and had declared that the kangaroo and emu that featured on it were their cultural property. The act was timed to coincide with the Tent Embassy’s thirtieth anniversary. Australian legislation does not make the desecration of state symbols an offence in itself. Provided it is your own property by purchase or inheritance, you are free to trample or burn any country’s flag or destroy its national crest. Only if it is not your property are you answerable at law, and then only for criminal damage, as might be the case if you had destroyed a cupboard or a bicycle. You have complete freedom to desecrate or destroy the symbols of any country, even in a public gathering, but not immediately outside the embassy of the country whose coat of arms or flag you have obtained: that would count as a violation of public order. The theft of the Australian coat of arms was blamed on the well-known activist Kevin Buzzacott, familiar to environmentalists and defenders of Aboriginal rights as Uncle Kev; according to him, the kangaroo and emu were totems of the Arubunna tribe and therefore images of them could not be used without permission from the tribe’s elders. Uncle Kev also declared that the Australian airline, Qantas, could not use the famous flying kangaroo that has been the company’s logo since 1944. Activists from the Aboriginal Tent Embassy went to the Supreme Court to declare that copyright on all indigenous flora and fauna, including their images, belonged to the Aborigines and that such images could not be reproduced without the Aborigines’ written consent [Probin 2002]. The Australian courts spent three years considering the case of the abduction of the bronze state coat of arms, an item of Crown property. In April 2005 Buzzacott was arrested for failing to appear at the latest court session. Two days previously he had attempted to remove the emblem from the courtroom, saying it belonged to the Aborigines. The case was concluded three days later, with Buzzacott receiving a suspended sentence of one year’s imprisonment1. Five years on, another Australian Aborigine — Sol Bellear from the Council of Aborigines of New South Wales — accused the world ice dance champions, Oksana Domnina and Maksim Shabalin, of theft. The Russian duo, who were then in training for the Vancouver Olympics, had appeared at the national championships in St Petersburg performing a new num1
Documents relating to the case are available on the website of the Australian Supreme Court at .
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ber entitled ‘The dance of the Aborigines’. ‘It’s very offensive,’ said Sol Bellear, ‘We see it as stealing Aboriginal culture and it is yet another example of the Aboriginal people of Australia being exploited. It may be that they have based this on a ceremony that is strictly for men or strictly for women, and these are important things. It’s not just intellectual property. It’s straightout cultural theft.’2 The statement was picked up by world news agencies and nearly led to the scrapping of Domnina and Shabalin’s Olympic programme [Oxley 2010]. In fact the dance was very far removed from the real dances of the Australian Aborigines: it was a stylised imitation employing motifs and elements from dances originating among indigenous peoples in various parts of the world, and only the costumes recalled the Aborigines of Australia. Oksana Domnina did write about the Australian Aborigines on 2 November 2009 on her blog (the reference to Australia subsequently disappeared from the blog’s English version).3 Representatives of the indigenous peoples of Canada who attended the Olympic opening ceremony expressed some concern at the costumes, but after meeting the skaters they gave them traditional red-white-black blankets which they put on after the compulsory dance. Shabalin said that the representatives of the Canadian indigenous peoples were very welcoming and wished them success. A vast quantity of similar conflicts around the defence of various forms of intellectual property — brands, logos, patents, copyright, know-how — can be found in Who Owns Native Culture? [Brown 2004], a book by the American anthropologist Michael Brown, which Pragmatika Kul’tury publishers plan to bring out in Russian translation4. For several decades there has been such a concept in international intellectual-property law as ‘traditional cultural expressions’ (TCE; otherwise ‘expressions of folklore’), although it has hardly ever been at the centre of Russian political, legal, or scholarly discussion (and therefore lacks an established Russian legal term). Elements of folk traditions are now issued in the state symbols of many countries, in the trademarks and brands of industrial corporations, and in the symbols of public services and institutions, while folk motifs (myths, legends, ornaments, and pieces of music) are used by contemporary poets, writers, artists, and composers. This whole universe of appropriated symbols brings a considerable return to their current owners.
2
Comments from Australians can be found on the websites of the Australian Courier Mail and Sydney Morning Herald, both of which carried reports of the conflict on 21 January 2010. These comments include a discussion of the theme of copyright: ; . 3 The English version of the blog can be read on the English version of Domnina and Shabalin’s website at . 4 One chapter of this highly interesting book is available in translation on the website of the journal Kriticheskaya massa, published by the same house (2006. No. 4. ).
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The history of the legal defence of expressions of folklore began not with folkloric texts, rituals, dances, traditional drawings, architecture, costumes, or other craft items, but with song and music, and therefore it is music in particular that has provided a basis for the reconsideration of existing conceptions of copyright in terms of defending traditional culture. As far as specialists are aware [Dommann 2008: 3], one of the first instances of the legal defence of this kind of folklore was an agreement reached in January 1954 between the American recording firm Tempo Records and the Afghan state broadcaster, Radio Kabul. This agreement gave the American company exclusive rights to record indigenous music throughout the territory of Afghanistan. To all appearances it was beneficial to both sides, since Radio Kabul received money and highquality recordings of local folklore which it could then use in its programmes, while the recording firm received control over two markets: it could serve the music collections of interested American universities and colleges, on the one hand, and on the other it could satisfy Afghan consumers interested in traditional music. There were also plans to use the recordings in television and film production. Here it should be recalled that neither the Berne Convention of 1886 on defending literary and artistic works, nor the International Convention of 1952 mentions traditional music as something that can be defended, although composed music is indeed covered by international agreements on the defence of intellectual property. What is more, Afghanistan — then a constitutional monarchy — was not a party to either Convention. In essence the contract was a case of the nationalisation of tradition, quite typical for a state engaged in becoming national — something Afghanistan did later than most other states. For anthropologists and historians of culture the interesting points are the employment of the concepts of folklore and tradition in legal practice, and also the functioning of these concepts in the context of new technologies that transformed unique folkloric events into what Bruno Latour, emphasizing both fixity and immutability and also the capacity for stereotyped reproduction, has called ‘immutable mobiles’ [Latour 1986]. By the late 1980s the copyright defence of expressions of folklore had become widespread. At the same time, there was an extension of the range of expressions that enjoyed such defence: it now took in not just music and artworks with a firm attribution to a concrete traditional community, but also antiquities whose attribution was at best uncertain: petroglyphs, archaeological finds, and even natural monuments. Many oral expressions of folklore (myths, tales, legends) were protected, and also dances and rituals, tribal names and elements of traditional healing knowledge. Many countries’ laws acquired special acts protecting traditional cultural expressions and regulating their reproduction, use, and multiplication. For obvious reasons it was not just jurists and interested companies that took part in developing law on copyrighting folklore, but also folklorists, anthropologists, museum staff, and leaders of various organizations 3
speaking on behalf of indigenous peoples. For instance, in 1990 in the USA a law was passed entitled the ‘Native American Grave Protection and Repatriation Act’5. Under the act, all museums whose collections included the relevant archaeological finds were given five years from the law’s publication to engage in talks with representatives of the first nations and return the objects to the hands of the tribes on whose lands they were discovered. For new finds, a three-month period was set aside for their scientific study after which they had to be handed over to the tribe that staked a claim. Talks between museum workers and representatives of the USA’s indigenous peoples did not always succeed in reaching a compromise. In most cases the period for artefacts to be returned was extended to allow for the construction of depositories on reservation territory; in some, the tribal elders preferred not to have their cultural objects returned; but there were also many cases in which museum objects were returned and lost, because they were used in everyday activities. For instance, representatives of the Hopi Indians declared that all their culture was sacred and that everything created by Hopi, including the words of their language, must be returned and could not be used by anyone else [Brown 2004: 14–16]. The website of the World Intellectual Property Organization (WIPO), which has existed since 1967, gained a page devoted to traditional knowledge, problems of genetic resources, traditional cultural expressions, and folklore. Traditional cultural expressions were defined by the creators of the site as including music, art, drawings and designs, names, signs and symbols, performances, architectural forms, craft works, and narratives6. In 1985 WIPO, together with UNESCO, developed model national laws on protecting expressions of folklore from unlawful exploitation and other damage [UNESCO 1985]. Today WIPO includes 184 states, among them Russia. In July 2011 WIPO, in conjunction with RosPatent, plans to hold a 12-day summer school in St Petersburg whose programme will include such topics as intellectual property and biodiversity, traditional knowledge, genetic resources, and traditional cultural expressions7. All the same, this kind of protection for folklore is still rather new and remains subject to discussion, not just because authors’ rights are usually asserted on behalf of concrete authors or juridical persons rather than a collective folk ‘author’ that is difficult to define in law, but also because this section of law coexists today with a movement, opposite in spirit, that advocates the free exchange of knowledge and culture — the so-called Creative Commons, active in as many as 80 countries and opposed to the familiar Copyright regime. What is more, it seems strange to place limits on something that just yesterday was in common use and belonged to the public. In connection with the discussion of these competing regimes in authors’ rights, one must clearly remember that in law copyright is not a right but a monopoly. The well-known British 5
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historian Lord Macaulay said as much more than 150 years ago, when he addressed the House of Commons during debates on amendments to the law on authors’ rights. The bill aimed to extend the term of copyright to sixty years from the author’s death. In reply Macaulay delivered a speech that was to become famous, and that resulted in the bill’s being rejected by 45 votes to 38. The central point of the speech was the following words: Copyright general monopoly
voice
is of
generally
monopoly, mankind is
to
and
produces
attributes make
to
articles
all
monopoly scarce,
the
effects
to
the
make
which effect them
the of dear,
and to make them bad. It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last a day longer than is necessary for the purpose of securing the good8. Since the author of expressions of folklore is a collectivity, the people, in this case the monopoly lasts for ever — which must tend to stifle the development of culture. In an interview with the WIPO journal, Laurence Lessig, one of the people who developed the free licensing regime, explained the growth of Creative Commons as the creation of something intermediate between the former copyright regime and its complete abolition: ‘many people believed in copyright but did not believe that their creative works should be as tightly regulated as they were under the all rights reserved model. We decided to build a voluntary optin system whereby creators could mark their works with the freedoms they wanted them to carry. This system affirms a belief in copyright, because it is in essence a copyright license, but it also affirms the values that underpin those creative environments — or ecologies — in which the rules of exchange are not defined by commerce but depend on the ability to share and build on the work of others freely.’ [Lessig 2011: 4]. In his book, Free Culture, Lessig adduces a vast number of cases where copyright and the patenting of inventions, which were introduced to stimulate creativity and defend creative rights, have become barriers to progress and development and have blocked creative and scientific endeavour for decades in various branches of science and technology [Lessig 2004]. Many developing countries, which had suffered from the West’s patent policy in fields such as pharmacology and medicine, were less happy with the course of introducing the market into science, education, and culture, and blocked the introduction of various international agreements under the aegis of WIPO. In response, the Western countries transferred their main efforts in international patenting and licensing to the WTO, where they constituted a majority, and cre8
A complete text of this speech is available on . For a Russian translation, see the website of the Moscow Libertarium at .
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ated the General Agreement on Tariffs and Trade (GATT). The Russian government, aspiring to WTO membership, is now pursuing an ever stricter course with regard to copyright and licensing, borne out not only by the introduction in 2009 of a system of obligations for copyright and protection in productions and phonograms (WIPO 2009a, 2009b), but also by the row about the digitisation of library holdings, where the main battle was between WIPO and a group of Russian television and film magnates headed by Nikita Mikhalkov, on the one hand, and supporters of Creative Commons headed by the President of the Association of Internet Publishers, Ivan Zasursky, on the other (interested readers can easily find all the materials and arguments on the Internet). In this brief account of the problems that we face when copyright is extended to expressions of folklore and traditional culture, I have not been able to touch on even a hundredth part of the questions that are posed to representatives of the most diverse professional communities, indigenous peoples’ organisations, and society as a whole. Researchers in the field of the social sciences confront this problem not only in as much as it is a direct object of investigation, but also in their capacity as creators and consumers of intellectual property, as well as citizens of the state. I hope that a discussion of the questions set out below will permit anthropologists and Russian society as a whole better to understand the complexity of the problems in this area, problems with which Russian society is only just beginning to familiarise itself. These are the questions:
1. The cases cited by Sergey Sokolovskiy make it clear that the issue of ‘cultural property’ is now an important source of conflict. Obviously, this has legal implications, but those are primarily the business of lawyers. We are interested here in the anthropological implications of the situation itself, the concepts and ideas that underlie this. Why do some objects and phenomena get asserted as ‘cultural property’ and not others? What do such conflicts reveal about the relationship of those who defend what they see as their cultural traditions from the external world? 2. Such conflicts are a relatively recent development. Why did they not exist in the past? What are the specific factors that have provoked them in the present day? Is this connected with globalisation, or is that too facile an explanation? 3. To what extent do such conflicts play a role in the country where you live? How much serious research on them (as opposed to journalistic coverage of them) has there been? 4. Along what lines, in your view, might these conflicts develop in the future? What implications do they have for your particular discipline?
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References Brown M.F. Who Owns Native Culture? Cambridge, MA; L.: Harvard University Press, 2004. Dommann M. Lost in Tradition? Reconsidering the History of Folklore and its Legal Protection since 1800 // Ch.B. Graber, M. Burri-Nenova (eds.). Intellectual Property and Traditional Cultural Expressions in a Digital Environment. Cheltenham, Northampton, MA: Edward Elgar, 2008. P. 3–16. Latour B. Visualization and Cognition: Thinking with Eyes and Hands // Knowledge and Society. Studies in the Sociology of Culture Past and Present. 1986. Vol. 6. P. 1–40. Lessig L. Free Culture. How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. The Penguin Press, 2004. —. An Interview // WIPO Magazine. 2011, February. No. 1. P. 4–6. Oxley S. Figure-Skating Russians Surprised after Dance Offends Aborigines // Reuters. 2010, Jan. 21. . Probin A. ‘The Roo is Taboo, Australians Told. Suit Claims Copyright on Native Animals’ // Herald
Sun
(Melbourne),
30
January,
2002.
. Probin A. The Roo is Taboo, Australians Told; Suit Claims Copyright on Native Animals // Herald Sun (Melbourne). 2002, Jan. 30. . [UNESCO 1985] Model Provisions on National Laws for the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions. UNESCO; OMPI/WIPO, 1985. WIPO Copyright Treaty. 2009, Feb. 5. . WIPO
Patent
Law
Treaty.
2009,
Aug.
12.
jsp?code=RU>.
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