11.16.08
Posted in Uncategorized at 8:23 pm by Leonard Kniffel
A panel titled “Drawbacks to Traditional Copyright Protections and Alternative Models” delivered perhaps the most empassioned talks of the Traditional Cultural Expression Conference in Washington, D.C.
Debra Harry, executive director of the Indigenous Peoples Council on Biocolonialism pulled no punches as she emphasized that indigenous people must be consulted at the onset and throughout any effort to manage or preserve their cultural heritage. She looked around the room and observed that not enough idigenous people were present at the conference.
Trying to twist western intellectual property laws to fit indigenous expression is futile, Harry suggested, as it protects “alienable commodities.” Indigenous people have a completely different view. The World Intellectual Property Organization (WIPO) refers to it as the conceptual divide. Indigenous people view their cultural expression as holistic and dynamic, with collective rights that are unalienable, intergenerational, and perpetual, with a foundation in human rights law or the right of self-determination. The Western view is that intellectual property rights are alienable or a commodity that we think of as needing short-term protection and public domain provisions founded in trade agreements. Indigenous peoples are rights-holders not stake-holders, Harry said. When it belongs to indigenous communities, she observed, it no longer has its real value when used by outsiders. Librarians need to rely on the 2007 United Nations Declaration on the Rights of Indigenous Peoples, asserting the right of self-determination, she recommended.
Rebecca Tsosie, professor of law at Arizona State University, said the human race is “at time when we have to embrace change and do it by talking to people not like us.” Indigenous people are always compared to Europeans, she asserted, since “contact” it has always been this way. The difference now is that indigenous people have a political status, unlike the period of colonization when there was a presumption that indigenous people had no laws, no status. “We have sui generis laws,” Tsosie said, but until that statute there was no protection. She emphasized, as did Harry, consultation with native people, who look at cultural heritage collectively. ”It’s the right thing to do,” she said, especially with regard to all the cultural heritage and artifacts that have already been taken away from their rightful owners. ”Tribal and indigenous people are not at the table in the international sphere, and they should be,” she added. The U.N. Declaration says indigenous people have the right to self determination and contains model for defining native rights within domestic structures.
Wednesday evening keynote speaker Wend Wendland of WIPO rose to the challenge presented earlier in the conference by Winston Tabb of Johns Hopkins University. In attempting to answer Tabb’s challenge with regard to what the profession wants to see happen, he said that the library community could do two main things: 1) see to what extent your resources and technology and expertise could be made available to indeigenous people so they can document their own culture, and 2) develop a framework or protocol that can serve as guidelines. He acknowledged the need to consult widely, and to observe and participate in a wide variety of projects. He invited the American Library Association and the International Federation of Library Associations and Institutions to help develop a guidebook for libraries. It’s not that indigenous people want to be included in the existing system, he added, it is that they want a distinctly different one. But the agenda of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge, and Folklore is overloaded, he said, and need to focus squarely on intellectual property.
It was at this point in the conference that it became clear to many that the discussion had veered away from the general concept of traditional cultural expression, which is way too inclusive. It was only when the group got into issues specific to indigenous populations that the question was understandably framed. Similar concerns apply to native people in Australia and New Zealand and other places around the world, just as much as North America.
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Posted in Uncategorized at 7:20 pm by Leonard Kniffel
“Challenges to Libraries and Archives in the Management of Works of Indigenous Communities” was the theme of the fourth panel at the Traditional Cultural Expression Conference in Washington, D.C.
Kimberly A. Christen, associate professor at Washington State University, explained access parameters in tagging for databases, to illustrate collaborative management of indigenous materials, that is, matching access to user profiles that honors indigenous people’s wishes. Communities can do this now, without the law, she said, citing examples from Australia, where there is a strong movement afoot to preserve and collect indigenous knowledge. She also talked about “reciprocal curation” and announced that a Plateau Peoples Web Portal is launching in 2009, containing stories from the Coeur d’Alene, Umatilla, and Yakama peoples. We are “moving toward models that work in a more balanced way,” she said.
The American Folklife Center at the Library of Congress began in 1928, said Michael Taft, head of the archive, and it started by attempting to collect all American folk music. All the material is openly accessible and no one has objected in 80 years, he said, adding that he did not expect that to last. He noted that no one can copy material without going through protocol, and LC views itself not as copyright owner but rather custodian. The Center has in some instances tried to repatriate recordings to tribal owners. Taft talked about the Zuni storytelling collection, which was deteriorating by the 1990s. The Zuni community blessed turning the collection over to LC in 1996, and the library is planning to make it entirely available to the Zuni community while preserving it at the Library of Congress. Yet, there remains the question of who the tribe deems eligible to access the tapes, he added.
“There has probably never been a more interesting time to be an archivist,” said Robert Leopold, director of the National Anthropological Archives and Human Studies Film Archives at the Smithsonian Institution. Speaking about ethical issues surrounding the acquisition and curation of indigenous materials, he talked about the slippery slope of restricted access when donor language specifies, for example, only “genuine scholars” need apply, which requires “archival clairvoyance,” Leopold quipped. He said that protecting traditional cultural expression requires “strengthening trust in what are already some of the most trusted institutions in America.”
Christen observed that a lot of people object when they hear that certain things are only for women, only for men, but these restrictions consitutue, in library lingo, a knowledge management system.
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11.15.08
Posted in Uncategorized at 2:09 pm by Leonard Kniffel
“Traditional Cultural Expression on the International Scene” was the theme of the second panel at the Traditional Cultural Expression Conference in Washington, D.C.
Michael S. Shapiro, of the U.S. Patent and Trademark Office, talked about the basic attributes of folklore, namely that it is: passed from generation to generation, community oriented, not attributable to individual authors, and continually used in the community. Copyright, he said, has been not been well suited to protect it.
Jamie Love, director of Knowledge Ecology International, introduced the concept of sui generis, a legal term that describes ownership of a unique class of intellectual property rights. He observed that WIPO wants to move from philosophical debate about copyright and trademark to evidence-based economic discussion. He cited way the music business is structured as an example of how the system has deteriorated to allow a handful of people get the great bulk of the money.
Preston Hardison, Watershed Policy Analyst for the Tulalip Tribes in Washington State, described native attitudes toward intellectual property as “stewardship.” Native people see themselves as custodians of their traditions, not individual owners. “Indigenous systems of thought are very different,” he said. “Rocks are alive; it’s a different ways of thinking about the world.” Indigenous people are a separate object of international law, he explained, noting that there are over 10,000 indigenous groups in the world. “I don’t like having to talk law,” he said, but “if you can’t talk the legalese you are at a disadvantage.”
The speakers pointed out that one of the major complications when it comes to protecting traditional cultural expression is the influence of outside cultures on an indigenous culture—and vice versa.
Winston Tabb of Johns Hopkins University, a longtime library representative in international dialogue, was one of the conference participants, and during the second panel, he asked the group to consider that the major questions that needs to be answered in order to formulate a U.S. library position on the protection of traditional cultural expression are: What needs to happen? And, is WIPO the right place for it to happen?
The group was beginning to grapple with the unique situation of indigenous peoples, as opposed to the general concept of traditional cultural expression, and to recognize that this poses a set of issues that developed over thousands of years. Using copyright logic on indigenous culture is like trying to put a square peg into a round hole, as one participant observed.
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11.14.08
Posted in Uncategorized at 5:09 pm by Leonard Kniffel
The Traditional Cultural Expression Conference settled into an intensive series of panel discussions on its second day, November 13, at the Madison Hotel in Washington, D.C., and the participants learned that the American Library Association’s primary purpose in holding the three-day invitational event was “to define the U.S library position on cultural expression.”
The first panel of speakers began the definition by examining “The Nature of Traditional Cultural Expression: Legal and Ethical Issues,” and offering illustrations of real-life dilemmas that can beset libraries and archives when it comes to copyright.
Michael Taft of the Library of Congress emphasized that scholars and archivists need to be a presence in the international arena. He talked about LC’s American Folklife Center, which includes the largest collection of Native American ethnographic field recordings. He noted that in 2002, Folklife Center Director Peggy Bulger began attending World Intellectual Property Organization (WIPO) meetings and found librarians were simply not represented in the discussions. Taft raised a number of questions related to folk art. Who retains rights if, for example, an Inuit healer moves to Kansas and is no longer a member of the indigenous community? Or, the Cambodian example, where the ruling regime attempted to wipe out certain cultural traditions, forcing performers who maintained them to do so outside the country’s boarders. How do intellectual property rights apply to tradition bearers living in a diaspora? He raised other questions about “cultural robbery”: the fact that Korea is applying for ownership of Feng Shui, generally known to have originated in China, and the fact that others have tried to claim the steel pan, an instrument created in the 1940s in Trinidad. “This is the kind of debate raised at WIPO,” said Taft.
Taft also emphasized the difficulty in establishing what traditions are community-owned. For example, some creators of the famous Gee’s Bend quilts filed lawsuits claiming that the man who brought them to the attention of the larger world, Matt Arnett, was not the owner of the designs, despite the fact that he had marketed them and greatly increased their value. “This kind of complication worldwide boggles the mind,” Taft said, and it parallels the growth of trade and technology. Folk music is largely thought to be in the public domain, he observed, but he then played a recording by popular singer Moby that turned out to be a cover of a recording from the Alan Lomax archive of a woman named Vera Hall, whom he recorded in the 1930s. Taft also played the Hall song, and they were virtually identical, minus the contemprary orchestration. Moby had thought the song in public domain but agreed to pay royalties once it was pointed out that it was not.
Kay Mathiesen, of the School of Information Resources and Library Science at the University of Arizona, talked about some the ethical concepts surrounding access to and preservation of indigenous intellectual property in the historical context of colonialism, dispossession, and the forced assimilate of native people while their culture was appropriated.
Mathiesen pointed out that differing world views lead to conflicting values over consititutional rights and human rights, and a tension with intellectual freedom as the core value of librarians. We live in a pluralistic society but overlapping consensus is possible, she said. “An atheist and a believer might both believe in separation of church and state,” she noted. “Different beliefs overlap on principle. Listen and understand. Not necessarily agree. Listen more, talk less,” she advised.
Justifications for limitations on intellectual freedom rights, so dear to librarians, Mathiesen said, can include: intellectual property and copyright, secrecy (trade secrets, state secrets), harmful material (child pornography), and privacy (medical records, reading records). She asked the group to examine how this applies to indigenous cultures’ rights. “Offensiveness” is difficult to add to the list, she said, if no harm can be demonstrated.
During the discussion, it struck this observer that part of what makes the conversation about traditional cultural expression, so complx is that terms like “intellectual property,” “copyright,” “trade secrets,” and even “pornography,” represent contemporary concepts that cannot simply be pasted over traditions and practices that predate them by thousands of years. And the presumed superiority of the conquerer over the conquered, the colonizer over the colonized, that has dominated library, archive, and museum development is not sustainable.
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11.13.08
Posted in Uncategorized at 3:27 pm by Leonard Kniffel
Wend Wendland of WIPO
It doesn’t take long before a dinner table conversation about “traditional cultural expression” gets into some really heavy stuff. That’s what happened last night, November 12, when I sat at the table in Washington, D.C., with Wend Wendland, head of the Traditional Creativity, Cultural Expressions, and Cultural Heritage Section of the World Intellectual Property Organization (WIPO), who’d come all the way from Geneva to deliver the keynote address at a small invitational conference sponsored by the Office for Information Technology Policy of ALA’s Washington Office. Before you could say “copyright,” we’d leaped from folk art to questions about who owns the rights to ancient human remains and to a definition of “genetic resources” (biological material that contains units of heredity).
I wondered, can this group of about 50 professionals (much less the world), ever reach agreement about what constitutes offensive, much less who has the right to prohibit that which offends. These decisions are up to individual nations, Wendland said, because WIPO, of course, has no legal jurisdiction. It can only frame the issues and try to bring countries to consensus.
Carrie Russell, of the ALA Washington Office, pointed out that Digital Millennial Copyright Act wasn’t getting anywhere in the U.S.—until it went to WIPO, where it passed, she said. “Then, the U.S. was interested.”
The Traditional Cultural Expression Conference came out of the need to address international copyright issues, Russell said. “Our objective is to get librarians involved in WIPO.”
Wendland explained how collections of indigenous knowledge raise special concerns for librarians. Some groups reject the concept of public domain, he said. But librarians, archivists, and indigenous people can form partnerships, he added, that are sensitive to traditions and art forms that go back thousands of years and take into consideration where such issues as protocol, privacy, blasphemy, and heresy enter the discussion.
Today the real discussion began as we moved into sessions ranging from “The Nature of Traditional Cultural Expression” to “Challenges to Libraries and Archives in the Management of Works of Indigenous Communities.”
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