- This is the first installment of our CP 101 series. The second post of this series is: CP 101(2): What is a Property Right? by Kilian Bizer.
As a visiting fellow of the RGCP in August 2010, I found myself doing yet again something I often find myself doing: complaining about the conceptualization of “traditional culture” (and its various avatars–folklore, ICH, TCEs, TK, etc.) embedded in current intergovernmental protection and propertization initiatives. One afternoon I sat down and wrote out the principal points of irritation, trying to imagine what a general alternative statement might look like so that it could be made available to policymakers and local actors engaged on various sides of cultural propertization initiatives.
This is a risky venture, for those of us in the ethnographic fields have grown leery of generalization, remembering the Eurocentric exercises in classification for which folklorists were known before 1968. We know the risks of reducing complex and diverse situations into inflexible formulae.Yet if we refuse to put forward ideal-typical accounts of how vernacular cultural practices operate, we abandon the field to bad theory. Well-meaning actors will continue to construct policy on the basis of a series of outmoded and often dangerous assumptions about community, traditionality, and culture.
As one of the goals of the RCGP, therefore, we would like to create a short, accessible guide: “How Traditional Culture Works.” This will be the first of the “CP-101” series of informational papers intended to lay out the general conceptual and institutional frameworks that shape the stakes in current cultural property debates. Others planned include “What is a Property Right?”, “What is an International Convention?”, and “Policy in Practice: Intended and Unintended Consequences.”
We therefore publish my unvarnished first draft, inviting your comments, corrections, and questions. We hope to expand it a little, but not so much that it will not be read by policymakers in a hurry. What else should be talked about? What is of limited applicability or completely wrongheaded? What can be better conceptualized? (Note that the language of this draft is of course too compressed and academic for a general audience: for the moment I am trying to sort out the ideas.)
Dorry
The rhetoric of UNESCO and WIPO –community, identity, heritage, property, etc.–is often taken at its word because indigenous groups and local actors also adopt it. Sometimes this adoption is opportunistic. Often it is sincere, but even then it is taken as doxa divorced from real practice. It appropriates what is sometimes the only idiom of valorization available to those actors that outsiders will also acknowledge. Adopting the rhetoric becomes a means of getting a seat at the table.
But if you listen more closely to what local actors are doing and saying in more indirect ways, you see that the public rhetoric provides a highly ideological and inaccurate rendition of how traditional culture (that is, all culture) actually works. This is a major cause of the perverse effects of many protection efforts.
I list here some of the most egregious misunderstandings followed by a more evidence-based ideal-typification of traditional cultural process. In each case a too simple generalization is followed by a better generalization. Alas, it is usually less euphonious.
TOO SIMPLE: Folklore is created and owned by a community (i.e. a group). It is thus different in kind from author-creation or networked scientific and technological innovation. A community is a natural group, bounded and homogeneous. Once the tradition is created it is generally stable unless there is outside interference. (The UNESCO process and propertization initiatives have tended to re-racialize culture as based in descent; they have assumed local homogeneity and therefore allowed local power grabs by self-proclaimed representatives and/or created instrumental legal persons. Their assumptions about authenticity as tied to origins have imposed freezing on practices.)
BETTER: Folklore is created and continually recreated in communities (differentiated and unbounded social networks) in a process of competitive mutual observation. (Even among indigenous peoples.)
Traditional creation is slow open-source. It arises in a milieu of greater constraint and scarcity and is thus less specialized and fixed, more adaptable, than open-source or academic innovation. It is designed, as it were, for continual recycling and for ease of transmission. But it is likewise dependent on voluntarism and social control, likewise negotiated and contested, and likewise ongoing, even after the arrival of modernity.
TOO SIMPLE: Using folklore is a right.
BETTER: Practicing folklore is a responsibility.
• You can’t just “use” most kinds of folklore–you have to invest time and effort and you have to learn from somebody who is willing to teach you, typically in a collective situation. Most of what makes folklore valuable is not susceptible to straight copying: folklore has to be re-created, and that depends on a social context as well as on key performers.
• Most traditional practices demand constant, sometimes hard and often boring labor for little or no direct economic gain; many, indeed, demand expenditure of money as well as time. The resources that must be devoted are typically far out of proportion to any income or objective rewards generated.
• Traditions continue to exist only insofar as they are continually practiced and transmitted interpersonally, because artisanal and performance knowledge cannot be fully captured by codification or recording.
• Use rights may come from descent or other formal entitlements, but in most cases they are earned through doing the work: showing up and lending a hand. Practitioners look above all for successors who will do the work and do it well.
• The social and cultural value assigned to the tradition creates one set of incentives to do the work of maintaining it: its practitioners derive personal honor as well as a sense of obligation to keep it going. If you don’t have to earn the honor associated with the tradition but receive it automatically by virtue of group membership, and if the practice is “protected” by some supervising authority, there are strong incentives for free riding by individuals (i.e., assuming that others in the group will take care of it). The tradition loses a critical mass of dedicated performers and thus loses complexity and meaning.
• Another incentive has historically been that traditional arts offer an intellectual and aesthetic outlet in a climate of scarce options–a world of no exit and sublimated voice, in Hirschman’s terms. If the tradition is frozen as heritage, this creative outlet is lost. And with globalization and abundance of cultural and political options, this outlet becomes less necessary: the sense of an obligation to maintain it and the possibility of creativity within it become more important as incentives to practice. Thus regimes organized around a notion of stewardship may offer possibilities for certain individually based, labor-intensive and specialized kinds of tradition if they are not linked–as the UNESCO ICH regime has been in practice–with freezing of the form. The best successes have come not with property rights or protection of the “authentic” thing, but with apprenticeships and fellowships that free people’s time up to allow them to practice the tradition–free them from the demand of adapting the work to a market or making a living at something else. Note that the kinds of art protected by the National Treasures system of Japan and Korea are typically professional traditions that once depended on elite patronage. This would be somewhat analogous to state funding of opera houses, universities etc., which also replaced elite patronage of artists and scholars.
TOO SIMPLE: The principal use of traditional culture is to maintain group identity.
BETTER: Traditional culture serves all the same varied purposes served by codified forms of practice, even in the contemporary world. It may serve as entertainment, sport, religion, education, politics, medicine, philosophy, etc.–particularly for the lowest-status members of poor communities who lack access to the codified forms.
• In some cases–artisanal and some performance traditions–it allows individuals to earn income. Other forms are not commercialized until late in their histories, or at all, but serve other purposes, which may be differentially affected by “protection” or propertization. Some examples:
• Entertainment and aesthetic experience. The conditions of protection–i.e. sacralization, touristification, freezing–can remove many of these satisfactions for local participants.
• Developing verbal, physical, and other skills–typically related to traditional forms of labor or prestige.
• Collective reflection, political debate, social theorizing, and exercise of social control, typically in the absence of a free and accessible Habermasian public sphere. This space is jeopardized by freezing, public and state scrutiny, and labelling of meanings.
• Opportunities to earn prestige, social protagonism, and a public voice for actors who lack other kinds of social authority. (Subaltern castes or ethnic groups, women, sexual minorities, landless day laborers, children etc.) When the tradition acquires external prestige, the senior men and/or the best-positioned entrepreneurs have a tendency to take it over.
• The initiation/socialization of children and outsiders, e.g. immigrants but also local patrons, useful resource persons, etc. The latter uses can be lost with propertization that creates exclusive rights to participation.
• Religious devotion. Elements of the built environment that are fenced off from the everyday world as heritage may not be accessible for local devotional activities. “Intangible” traditions conserved as heritage have sometimes been divorced from their religious context.
The sense of identity is a secondary effect of long practical intimacy: the tradition is “in the blood.” (When people say this they mean that they feel driven to perform and/or can perform without thinking–they are talking about passion and habit, not descent.) Communities do sometimes maintain traditions that have lost their primary uses because of this sense of belonging and pleasure in participation. Bureaucratization of such traditions reduces this already thinner form of intimacy, alienating people from their own practices.
TOO SIMPLE: Folklore disappears with modernity, colonialism, globalization, etc. (The dinosaurs are dying out.)
BETTER: In most cases, old folklore is transmuted into something else, and/or moves to a more available environment. (The dinosaurs evolved into birds.) There is a natural history to traditions too. Note that with culture this does not entail evolutionary “progress” or increased complexity; it does not entail free choice; it does not entail increase of well-being. But people do adapt valued practices with remarkable ingenuity and tenacity; conversely, reform and abandonment and forgetting are never as thorough as either our fears or our hopes would have them. Culture is a continual recycling, both willed and unwilled.
TOO SIMPLE: Cultural diversity is a scarce resource, so all traditional culture should be preserved.
BETTER: Cultural invention and differentiation are ongoing, and forgetting is as necessary as remembering for life to go forward. If people don’t value practices, why not let them die? New stuff keeps happening. History did not end. Some deaths, however, are more violent than others. Radical interventions into cultural practices, whether intended to abolish or preserve them, often have painful and destructive consequences for the larger social situation.
AND the poor lack the freedom of choice possessed by the rich as to maintaining their traditions. This is a problem of inequality, not of cultural difference. It has to do, dare I say, with fast-capitalism: the rapid global transformation and equally rapid abandonment of landscapes, labor forces, etc., by international capital and the simultaneous, equally abrupt, penetration of local markets by global consumer goods. It’s hard to maintain time-consuming traditions when you are working long hours in a factory, still harder when you are forced to migrate and lose both materials and a community of knowledge. Even without migration, it’s hard to keep young people interested in the practices of the poor when seductive facsimiles of those of the wealthy are on offer. But in less insecure parts of the world global options are often rejected in favor of, or adapted to, local tastes, and with an increase in prosperity local tastes are likely to reassert themselves still further. (Consider the history of American culture in Europe; consider contemporary Japan or China.)
TOO SIMPLE: Dignity is damaged when the tradition is exposed or misused.
BETTER: Dignity is at bottom a problem of inequality, particularly of unequal access to privacy. [I am not so sure of myself in this section and need to think further–help welcome] How many people reading this document derive their own sense of personal dignity from their inherited cultural traditions? How many of us would want to outlaw parody of, say, the Catholic mass? Would we want to protect the right to secrecy of Western politicians in the same way we are concerned to protect the secrecy of indigenous ritual specialists? The problem is rather that those peoples classed as “traditional” or “culture” are increasingly pressured to admit outsiders and expose and commodify their cultural practices–which means also their own bodies and everyday lives–in a context of scarce economic options. To be sure, they often find ways of partitioning their practices so that some aspects are made public and others are reserved for insiders. It should also be remembered that the possession of secrets is an important source of traditional authority–there are plenty of contemporary Western examples–but to gain this social power you have to advertise the existence of the secrets. (Their existence is often more important than their actual content.) The relationship between dignity and attention is thus complex.
Version 1.0 for comment, 27 Aug 2010
Dorothy Noyes, The Ohio State University, noyes.10@osu.edu
7 Comments
This is I think a very crucial and overdue contribution to the debate on cultural property. As Valdimar Hafstein once said in an interview about his work on UNESCO, it is nice to see that disciplines like folklore studies or Volkskunde are indeed able to create „Rücklauf“, yet at the same time it would also be nice to see that this „Rücklauf“ does not draw from musty disciplinary work, but rather from current work. This format might well help to achieve just that.
A couple of comments: even though folklore is more a responsibility than a right as you point out, in modern capitalist societies rights are important in the way that they ensure the sharing of benefits or profits. I would be wary of depriving groups of this possibility to commodify and capitalize the stuff they produce or do or used to produce or do, however bad the consequences for group dynamics and social conflicts, as you among others have pointed out. Mind the knowledge versus information gap, of course, but copying and codifying might at times be the better solution (on a side note, Benjamin’s optimism as to the the positive aspects of reproduction comes to mind). Thus, the challenge maybe lies in finding models that fit the special nature of folklore to the highest extent possible.
On the question of cultural diversity (“Cultural invention and differentiation are ongoing, and forgetting is as necessary as remembering for life to go forward.”), one should consider the strong link between traditional knowledge/folklore and biological diversity/genetic resources, as it is discussed in fora like WIPO, the CBD and the WTO as well. In order to ensure that new stuff is happening in areas such as pharmaceutical research, the preservation of biodiversity can be key. There is a wonderful documentary called “The Linguists” with a segment on Kallawaya, a language (from Bolivia) that describes the uses for some 10,000 medicinal plants. Considering the immense amount of plant and animal species still undiscovered by “modern” science, a small amount of that knowledge might only persist because of cultural (and linguistic) diversity. (In an AN interview, the two linguists involved in the documentary also talk about IP to languages.) So, yes, forgetting is necessary, but at times it is regrettable (and not only in terms of loss of profit).
I’m very pleased this got picked up on Savage Minds!
RE: the dignity section, I’m not completely sure where you’re going with it, but it reminds me a bit of Charles Briggs’ critique of Linnekin and the invention of tradition. I’m not entirely sure if that’s all to do with ‘unequal access to privacy’, though.
I’m most interested, though, in the bit about folklore dying out. I think you are right that this is too simple and that, indeed, folklore can be transmuted into other things. But I think there is something to be said as well for the productivity that the idea of folklore dying out can bring. I’m probably going somewhere a little different since my PhD is on Britain (generally not defined as ‘traditional culture’, at least not in the sense which I think you’re using it), but it strikes me that the idea of tradition dying out can actually be very powerfully mobilised by the people who ‘possess’ the tradition. The Heritage Craft Association (www.heritagecrafts.org.uk) are a fantastic example of using this idea politically, especially since Britain hasn’t actually signed up to the UNESCO convention on intangible cultural heritage.
Thank you! You’re right about the power of the threat–this reminds me of my first fieldwork on craft traditions among Italian-Americans in Philadelphia. We interviewed lots of people who made woven palms used as grave decorations on Palm Sunday, and every last one of them told me, “This is a dying art. If I didn’t do it, it would disappear.”
The interesting point was that as far as we can tell the tradition was then more vital than it had ever been. The now third-generation Italian Americans had money to spend on the palms, they now valued instead of avoiding ethnic traditions, and because of intermarriage and the craft’s visibility in the 9th Street Market (and our exhibition), there were also new customers from outside the Italian-American Catholic population. It seems to me that the makers insisted on the “dying art” in the teeth of the evidence, partly to claim value for what they were doing but even more to convince themselves to keep it up, as per my point in the paper about responsibility, because palm weaving is messy and laborious and hard on your back, has to be done in a great rush in the couple of weeks before Palm Sunday, and pays very little given the time invested. There’s perhaps a comparative exploration to be done here of the “dying art” rhetoric among practitioners.
Certainly, as Stefan said, it is overdue to enhance terminology and notions of “cultural property”. However, the gap between legal definitions (which are necessary in order to define policies, legal norms etc.) and ethnology/cultural anthropolgy seems to linger on. If you refer to open source creation of new software or wikipedia there are certainly very interesting parallels to folklore; however, how can we define the differences? According to intellectual property law, a new work based on folklore would lead inevitably to an author`s work (even if it is done by several people together) – hence, it is difficult to say (from a legal perspective) that “new” elements are contributed to folklore as these new works are in principal not available to all/or to the community.
Hence, if we do want to support this process of “reinventing” folklore (and not only practising it) we have to create something new in legal terms that could replace likewise licences (used by open source etc.) and allow for the common use of new elements of folklore. If not, we will have to stick the “frozen” notion of folklore and traditional knowledge.
The problem with the creation of folklore from an economic perspective is that folklore is created by communities which are undefined and based on previous practices which are created by others. That is basically why the practice of folklore happens within the public domain and is not protected by private property rights. The public domain safeguards the communal process of creating and recreating, allows not only mutual observation, as Dorry put it, but also copying and modifying the practices of others. That is why dissent with Dorry’s second “better”: Practicing folklore is, of course, a right. The right is reserved within the public domain. Anybody can use folklore, nobody is excluded. The right to practice folklore might include responsibilities or even duties. Within academia, for example, everybody may use scientific publications of others for his own thinking. Attached to this right is the responsibility to clearly display the origins of thoughts taken from someone else. Basically the same is true for traditional culture. From an economic perspective there is no distinction between rights and responsibilities, but it is a different side of the same medal.
If traditional culture is as diverse as the purposes it serves it should be no surprise to us that there is not one codified form. But the fact that traditional culture is available in the public domain avoids some distributional issues while creating others: As Dorry emphasizes, the lowest-status members may take whatever they like without paying for the right to use it. But at the same time, they cannot gain by selling innovative practices. This is clearly a disadvantage of the public domain which can also have adverse effects on distribution.
To evaluate evolutionary processes is practically impossible. But from time to time we believe that what is must be better than what was – which is clearly a fallacy. To find out what is better, we need a normative concept of where we want to be. This appears very difficult with traditional culture: Should it be preserved? Should it be evolved in a certain direction? What is our objective with traditional culture? Why do we do it? What regime of rights and responsibilities should be attached to the practice of traditional culture? I agree that we know very little about the normative ideas connected to traditional culture. How do we learn more about that?
Economically forgetting is essential. Even destruction might be a good thing. Remember Joseph Schumpeter who saw innovation as something which destroys old practices in enterprises by new processes of products. The same holds for traditional culture: We should not try to simply preserve culture as we preserve plums, apples or pears. Those we preserve because then they are available in times when they are not ripe and ready on trees. Then, preservation makes sense, because we expect a gain by preserving. To preserve just to preserve is costly – and it makes little sense, if there is no clear idea for what purpose preservation is attempted.
The problem of dignity is complex, Dorry says, and at the bottom of many issues of traditional culture – and I agree. The crucial question to me is whether we need intervention from the state or the international community or whether we should leave it to the individuals and groups to organize the exchange and practice of traditional culture. That is why research is needed to evaluate impacts of alternative instruments to regulate behavior. I believe that current practices of traditional culture should be monitored in order to detect violations of dignity and other personal rights. It may be that current technologies change the position of people who practice traditional culture and crucially infringe on their dignity. But the decision to intervene in current practices is a political decision. And the decision should be informed and based on a systematic evaluation of intended or unintended impacts.
A few thoughts on the responsibility to practice culture:
Is law obliged to protect culture? Does it obligate the “owners” of culture to continuously cultivate their traditions? Or does law rather provide an opportunity to protect from undesired interference? These questions cannot be answered without further elaboration.
In the case of material (excludable) cultural goods, it can be observed that by intervening via a form of governmental/international regulation, the obligation can be enforced without the “owner’s” consent. The houses in the Andrassy street in Budapest for instance, which are protected by UNESCO as world cultural heritage, cannot be removed or redesigned (at least not the front, which is visible from the street), even though these houses constitute private property. Thus, the process of preserving existing material culture creates heritage. In these cases, legislative actors (government or international bodies) may influence “owners’” decisions.
When turning to immaterial (mainly non-excludable) cultural goods, intervention becomes more difficult. The law cannot force cultural carriers to maintain their cultural expressions and traditions. Although immaterial goods may be materialised in some way or another, the cultural value can never be entirely reproduced. Here, legal incentives (if necessary) could contribute to preserving culture. Law could firstly motivate and enable a given group to control access to their own culture and secondly release economic potential as well as unfold a culture-preserving and encouraging effect. At the same time, we must not forget that law cannot protect a tradition from becoming extinct. Therefore, the decisions continue to be up to the cultural carriers (it is their responsibility).
The possibilities offered by law and the extent to which it influences culture is closely connected to the question whether law refers to the form of culture or the group of cultural carriers. Geographical indications, for example, provide direct protection for the name of a geographical region and those products inseparably attached to it as well as indirect protection for the cultural carriers, namely the producers of these goods (in this case, they are not necessarily identical with the cultural carriers (insiders)). Geographical indications give the government or the region a monopoly power. Whereas laws as such do not provide an incentive to produce the products, subsidies and tax reliefs can be a motivation to further cultivate the tradition. Thus, whether or not tradition is maintained largely depends on GI-relevant institutions. Nevertheless, the producers have the final say in this case.
Concluding, culture can become extinct for two reasons: an intervention from outside (which could be prevented by law) and internal structures (cultural carriers die out, culture is devaluated for the cultural owners etc.). Law can only help to slow down these processes, but cannot frustrate them. If culture ceases to exist, law loses its validity, as well.