Visit and Lecture by John Comaroff – „Ethnicity, Inc. Revisited“

by: Caren Bergs, M.A., University of Göttingen

From November 10 to November 15, 2013, the Interdisciplinary Research Unit on the Constitution of Cultural Property hosted Professor John Comaroff, Hugh K. Foster Professor of African and African American Studies and of Anthropology/ Oppenheimer Research Fellow in African Studies (Harvard University), for intellectual exchange and a public lecture on “Ethnicity, Inc. Revisited“.

On the occasion of his visit, the entire team, collectively and individually, had plenty of opportunity to discuss their research projects in depth with Prof Comaroff who left us all in an energized and motivated state, ready to tackle the remaining months of our research time.

Professor Comaroff’s visit to Göttingen concluded with his public lecture which picked up main points from the widely received work Ethnicity, Inc. (2009), co-authored with Jean Comaroff. In an anecdote during the lecture he noted that “Ethnicity, Inc.“ had at one point even became mandatory reading for the employees of the largest South African company based on ethnicity, Bafokeng, Inc. – which had formerly been researched by him and Jean.

Professor Comaroff’s lecture aimed to recap, expand and update „Ethnicity, Inc.“ In 2000, the Congress of Traditional Leaders of South Africa (Contralesa) formed a corporation to invest in mining, forestry, industry and tourism. The idea behind this was to empower their peoples by „usher[ing] their rural chiefdoms into the world of global business,“ because the political fight for constitutional recognition had been focused upon too long. Comaroff then went on query the extent to which the future of ethnicity would lie in ethno-futures and entering the market place. In doing so, the binary of rural „traditional“ culture and urban Africa would be made to collapse.

Heritage, Comaroff pointed out, is alienable identity: its objects and objectifications may be consumed by others and sold on a market. To have culture to sell means having a presence in the world. This he illustrated with the rise of ethno-businesses in South Africa, with their cultural products being in high demand. The idea behind empowerment is constituted here with access to markets, material benefits and a people selling its “essential own” – as a brand. Selling culture challenges tried and not so true dichotomies such as tourist performances endangering or replacing “authentic“ traditions.

To Comaroff, politics and economics appear far more interlinked today, He stressed that the context in which culture, identity and politics are embedded, i.e. the nation-state, is changing. Coming from the “fiction of homogeneity” upon which European polities were founded, we now find ourselves in an age of acceptance of heterodox nationhood – a “cultural diversity within a civic order composed of universal citizens”. More than for Africa, this holds true for Europe with its nation-states born of European “colonial fantasy”. In African polities it is an essential right, in the pursuit of collective interest, to be different. Cultural identity, Comaroff stressed, “has become, simultaneously, a function of elective self-production and ascriptive biology”. Culture therefore congeals into a “genetically-endowed intellectual property”, becomes a form of capital and can be sold for profit.

Comaroff also noted the importance of legal instruments, as difference turns into a subject for legal actions. Hence “Ethnicity, Inc.” is a mixture of the commodification of culture, legal actions over cultural identity, the “displacement of the politics into the domain of jurisprudence” and the dissolving binary of rural and urban culture(s).

This is not a new phenomenon, as Comaroff showed by evoking the examples of the Pomo Indians, who went from being two homeless Native American families to being an ethnic group with a casino license, and Maryann Martin who opened a gaming house on the grounds of being the only member of the ethnic group of the Augustine Cahuilla Indians. The creation of ethno-businesses in the USA is mostly financed with the capital of non-Native Americans. Another point of interest is the proclaimed sovereignty of the state and its laws. Native American identity usually begins with a land claim, as “territory” is a major principle of sovereignty. The emergence of the prototypical Native American ethno-business depended on the recognition of legal sovereignty. Cultural identity is then incidental to these corporations. Only in few cases an ethnic group turns local knowledge into a brand from which arises an ethnic corporation, as is the case with the Pueblo of Sandoval, New Mexico, and their brand of “Hopi Blue” corn.

In recent times, the UN and the WIPO have come to recognize the “inherent” rights of indigenous peoples to their tangible and intangible cultural property. This has led to the acceleration of processes of incorporation. Comaroff told the story of the San/Bushmen in the Kalahari desert who were severly suppressed under colonialism and the San’s knowledge of the hoodia cactus which can stave off hunger and thirst. In 1963, the Council for Scientific and Industrial Research (CSIR) of South Africa became interested in the cactus and its effects; from then on word spread about the cactus as a hope for the alleviation of obesity without side effects. The bioactive component was patented under label P57 in 1997 and subsequently licensed to the British company Phytopharm and then to Pfizer – all under the impression that the San were extinct. An NGO representing the rights of the San was formed and protested against this case of biopiracy. This led to a profit-sharing agreement between Phytopharm and the San. The San “identity” has since gone through a reanimation, stimulated by the assertion of intellectual property coupled with a land claim. Today, the San are an ethno-corporation while their “identity” is debated by academics.

The major example in Comaroff’s talk was Bafokeng, Inc. which gained wealth with platinum and whose corporate history goes back to sage decisions made by one Bafokeng king in the nineteenth century. Buying land to protect it from white settlers and hence establishing the Bafokeng as a corporate, private owner, the terrain was defended from seizure. Today, Bafokeng Inc. is a nation of 300,000 shareholders and is involved in a complex network of companies yielding some $100 million per year. Comaroff noted that the success in turning Bafokeng Inc. into a hugely successful nation/business is accompanied by a lack of Bafokeng cultural identity.

The strategies of the Bafokeng, the San and Native Americans groups in the USA have several points in common: genealogical membership in their respective ethnic group; sovereignty vis-à-vis the nation state through incorporation based on land claims; and a reliance on ”lawfare” to crystallize or reproduce the sociological entity within which cultural identity is taken to inhere.

To Comaroff “Ethnicity, Inc.” is a “world-historical phenomenon in the making” with many roots in nation states’ search to distinguish themselves through unique cultures. “The ethnically-defined peoples” have taken ethnicity into the global sphere. As such, “Ethnicity, Inc.” is an important subject for anthropological research.

For further reading::
Comaroff, John L. and Jean (2009): Ethnicity, Inc. Chicago: University of Chicago Press.

Workshop and Lecture Review: Sex, Human Rights and Heritage. Public Lecture and Workshop with Ellen Hertz

by: Prof. Dr. Regina F. Bendix, University of Göttingen

On December 10 and 11, 2012, the CP team hosted Prof. Dr. Ellen Hertz from the Institute of Ethnology at the University of Neuchatel, Switzerland, where she leads the synergia group entitled “Intangible Cultural Heritage: The Midas Touch?” ( Trained in both anthropology and law, Ellen Hertz’s presentations focused on questions of gender within heritage policy. She presented an evening lecture entitled “Sex, Lies and Heritage: Gender Equality -vs- Cultural Diversity, Round Three” – summarized in her abstract as follows:

Sex, lies and heritage: gender equality -vs- cultural diversity, round three

At first viewing, it is difficult to view the UNESCO-driven desire to safeguard intangible cultural heritage (“ICH”) and promote cultural diversity as anything but laudable. However, as many have pointed out before me, the preservation of what has been called “traditional culture” raises a number of issues for another excessively laudable series of U.N.-based initiatives: covenants designed to guarantee what have been labeled as “universal human rights”. This is particularly true, it seems to me, when it comes to gender equality, and notably the 1979 U.N. Convention on the Elimination of All Forms of Discrimination Against Women. Gender differentiation is central in innumerable ways to all cultures, and discrimination, either explicit or implicit, often follows. Gender differentiation can take forms ranging from sex-based dress codes during rituals, to exclusion of women (or men) from certain areas of traditional knowledge, to the baring of women from certain trades or forms of cultural ownership, not to mention forms of bodily transformation such as excision that are clearly off-limits for heritage preservation efforts.

The state parties responsible for drafting the 2003 UNESCO Convention for the Safeguarding of ICH were aware of these issues, and UNESCO even convened a working group that meet to produce specific recommendations on the subject. However, though the discussions were extremely interesting and sophisticated, they seem to have done more to illuminate problems at hand than to propose solutions. The guidelines and binding recommendations that were to have come from this work have not been issued or circulated. Indeed, the entire discussion seems to have disappeared from the UNESCO vitrine, and raising it today seems almost indecorous.
This paper is based on interviews with experts involved in these debates. It seeks to understand how the issue of gender inequality has been exited from the public sphere, and how it is handled in “private”, in the negotiations around specific propositions of ICH that reach the Paris office and the Intergovernmental Committee who screen UNESCO’s lists of ICH. It asks how UNESCO officials have in pragmatic ways “solved” a problem that I argue is fundamentally unsolvable if we respect the terms of the respective normative frameworks on the Conventions. I conclude by offering some suggestions as to a more productive framing of the problem of gender equality in a world where women disproportionately bear the burden of symbolizing and maintaining “cultural diversity”, and where the cause of sex equality is brandished by states for geopolitical aims.

Her afternoon workshop “Can Sex be Heritage?” was cast as a thought experiment. Using a cultural practice that is not part of ICH thus far and is not likely to ever be nominated permits one to understand what factors come together in the decision-making about “acceptable” ICH. Aside from issues such as UNESCO Puritanism, questions of scale and the nature of diplomatic negotiation, the concept of “patriomonial emotions” (borrowed from French ethnologist Daniel Fabre whose research team pursued this, documented in several workshops, in Paris: proved particularly helpful in understanding what “emotional property” or characteristic a cultural practice needs to evoke in order to be suitable for heritage status. Lust is clearly not among them. The normative character of the heritage of humanity manifests itself thus even in this implicit guidance of aesthetic response. There was lively discussion intermingling with Ellen’s presentation, making us all look forward to if and when Ellen finds the time to write a book on a topic that will allow for a better understanding of heritage-making and its blind spots with regard to the humanity’s cultures.

An Operatic Cultural Property: Smetana in Berlin

I just attended a performance of Smetana’s opera The Bartered Bride at the Berlin Staatsoper (remaining performances on 26 April, 20 June, and 23 June 2012). Originally performed in 1866, this opera is a prime example of what central Europeans call Folklorismus: high culture drawing on traditional genres and conventions for its form while taking the peasant culture of the national past as its subject matter. In contrast to the ideology of heritage as the preservation of tradition in its authentic form, Folklorismus treats tradition as the raw material from which a self-aware culture may be constructed. Folklorismus as a concept is thus less naive than heritage about the activities of intellectuals and policymakers, and it does not condemn them as destructive or inauthentic. But like heritage, Folklorismus tends to posit tradition itself as inert, unselfconscious, and clearly demarcated from cosmopolitan modernity.

In Smetana’s opera, the setting of a generic “Bohemian village” frames the classic comic plot in which a young couple who want to get married outwit the older generation and manage at the end to have it all: love, money, and parental consent. Local color inflects the story with the introduction of a marriage broker and the supposedly traditional custom of bride purchase. More broadly, local color provides the musical and scenic decor: the drama is set during a single day at a village feast complete with dancing, embroidered costumes, a choral ode to beer, and a traveling circus. The score draws heavily on Bohemian dance rhythms.

So we are given all the familiar Bohemian cultural properties, in the scenic sense. Perhaps it comes as no surprise that the celebrated composer of this emblematic Czech national opera, Bedřich Smetana, was christened Friedrich Smetana. He was educated in German, received the cosmopolitan musical formation typical of Prague in the 1840s, and began to use the Czech language regularly only in the 1860s, when he returned from six years in Sweden to establish his reputation in a Bohemia newly buzzing with public nationalist fervor under Franz Josef’s scheme of aristocratic federalism. Throughout its history, Prodaná Nevěsta has been performed as often in German as in Czech, making it accessible to enthusiastic international audiences. In Berlin the opera was accordingly performed as Die Verkaufte Braut, in a new translation.

How does one stage such an opera today, when we cannot help seeing the once thrillingly new Folklorismus through a thick scrim of the nationalist kitsch that followed? Capturing the audience’s attention is a general challenge in the staging of dramatic works from the past, which may be over-familiar or alien in their conventions or both. The debate plays out in terms that can be compared to the current debate in policy circles over moral rights in indigenous traditions: does the piece belong to the composer-author, to the singer-actors, or to the director? In opera, singers long held primary control over performances because they have historically commanded the audience: they could change composer-prescribed costumes or staging, add embellishments and high notes to their parts, even switch and interpolate arias for music better suited to their voice. In the twentieth century, two other agendas have competed with this privileging of the star performer: respect for the composer’s intentions and the desire to give the opera contemporary relevance as drama. The historical performance movement (earlier unfortunately termed “authentic performance”) seeks to restore performance practices, instruments, and stagings from the time and place of the piece’s composition. Although a contemporary perspective inevitably shapes such efforts, the project is intrinsically allied with what Paul Ricoeur called the “hermeneutics of completion,” the desire to help a text from the past speak on its own terms. When well done, it makes old work simultaneously strange and eloquent.

The contrary tendency is known as Regietheater, director’s theatre. Concerned to create a performance that is effective in the present, it frequently practices the characteristically modern “hermeneutics of suspicion,” proposing to open up what is tacit or repressed or distorted in the original text. This critical agenda interacts with the director’s assertion of will and pursuit of reputation as an auteur in his or her own right. Regietheater is often maligned, sometimes with good reason, for simply ignoring rather than challenging the spirit of a text, making it the pretext for the imposition of other scenic effects or concerns. In some respects, historical performance and Regie, as approaches to the single-authored historical products of elite culture, are comparable to heritage and Folklorismus as approaches to historical folk culture.

Born as Folklorismus, The Bartered Bride is by now itself a core monument of Czech national heritage, a familiar sacred cow to which homage must be paid, but not, perhaps, attention. It is not yet strange enough to audiences to create the demand for a historicist staging. For a theater that cares about its artistic reputation, Regietheater is the only option. The Berlin staging by Balázs Kovalik–who as a Hungarian has his own experiences with nationalist Folklorismus–struck me as the best kind of Regietheater, coming straight to terms with the chief points of tension between the past of the text and the present of the audience. One tension is stylistic, the other ethical.

How do we stomach all that Czech folklore? Well, Kovalik acknowledges the way we see it now: across a proscenium, without a context or human agency. During the brilliant overture to the piece, the curtain rose one quarter to reveal the sneakered feet and bluejeaned legs of a boy wandering around the stage; he was approached, in seeming threat, by one and then a second pair of scarlet-stockinged masculine legs. Instead of closing in on him, these then kicked up their heels and started dancing. As the sneakered figure backed uneasily away, the stage filled up with the standard folkloric ballet, of which we saw, however, only spinning skirts and dancing legs, all in traditional scarlet stockings–of which, according to the program, four dozen pairs had been ordered for the opera’s premiere in the imperial capital Vienna.

When the curtain rose fully, we saw the boy sketching: sketching a Bohemian village, each pen stroke projected onto a scrim. Behind this was a massive folding screen with a beautiful video image of a dense nineteenth-century forest, which changed color and light as the time and mood changed. Then came the chief conceit of the staging. Immobilized in heavy embroidered folk costumes, the bride and groom made their entrances standing in glass cases like those of an ethnographic museum, pushed in by uniformed workers. As the drama proceeded, the customs and traditions constraining the characters were objectified in dioramas of home, church, bedroom, circus tent: they stepped out of the cases to take action and back into them as they accepted their traps or sought their comfort. The village festival was populated by both costumed folkdancers and urban tourists coming in to drink beer and reclaim their roots. In a drama about a bride who is treated as property, the scenic materialization of containment and constraint provided a gloss rather than an obstacle to understanding. And despite the aggressive framing of the sets, the acting was naturalistic and the singing expressive, true to the Romantic spirit of the piece.

The ethical obstacles for a contemporary audience have to do, in the first instance, with Mařenka, this bartered bride. She is clever and assertive but has to stand up against her parents and the marriage broker, trying to marry her off to the feeble-minded son of a wealthy family, and also eventually against her lover, who has apparently relinquished his rights in her for three hundred guilders. Then there is that feeble-minded son, Vašek (the boy in the sneakers): not only foolish, sexually impulsive, and disoriented but a stutterer. He is freely manipulated throughout the opera by his contemptuous parents, his putative bride Mařenka (who tricks him into refusing her), and even a beautiful circus performer, who persuades him to take over as dancing bear from a drunken member of the troupe. In contrast, the other tenor is Mařenka‘s successful lover Jeník, a prodigal son who turns out to be Vašek ‘s older brother from the landowner Micha’s first marriage, returning home to claim his inheritance. He accomplishes this by pretending to sell Mařenka back to the marriage broker and stipulating in the contract that she must marry the son of Micha. The Berlin staging gives due weight to the lyric lamentations of both Mařenka, when she thinks that Jeník has betrayed her, and Vašek, who understands at least that everyone is playing cruelly with him.

When the trick is revealed, Mařenka’s parents quickly reseal the bargain with the rich couple, who cede at once to avoid scandal. At this abruptly happy conclusion, Mařenka sings “Now I understand, my dearest love,” not with instantaneous delight but with sarcastic fury as she takes in the way she has been instrumentalized. Vašek, no longer needed, sadly retreats into a display case and resumes his sketching; Mařenka, finally recognizing the kinship between them, draws near and looks at him through the glass as the chorus and families around them proclaim their delight at the wedding. The audience recognizes its own complicity in laughter as well as the distance it shares with Vašek from this tightly engineered social operation. Instead of the classic joyous comedic finale we have something like one of Shakespeare’s “problem plays”: specifically, Measure for Measure, with its formally happy ending dictated from above.

We are reminded that village tradition–to say nothing of the bourgeois culture that voyeuristically celebrates it through the lenses of museums and tourism and opera–is not all beer and dancing . It encompasses the propertization of women, the abuse of the disabled, and the unscrupulous but unavoidable struggle over scarce resources.

The great theorist Mikhail Bakhtin (who was in fact a conglomeration of at least three people, posing his own challenges to narrow conceptions of intellectual property), spoke of aesthetic work as holding potentialities. Art is designed to speak beyond the moment of its making. The intention embedded in a text (whether traditional or single-authored) includes growing in time, exceeding the conscious intentions of its makers and the understandings of its immediate time and place. Smetana was not an immemorial Czech. He drew on a particular artistic repertoire–the Czech cultural properties–in his effort to create a career in Prague at a moment when an explicitly “national” theater had just been opened and because his earlier work had been accused by local critics of “Wagnerism.” The Prague audience was not particularly impressed with the new opera, and only after it was enthusiastically received at the Vienna Music and Theatre Exhibition of 1892 (with intensified folkloristic decor, including those four dozen pairs of red stockings) did it return home to become a national treasure. To what moment and what audience can we really say it belongs? The Berlin staging of Die Verkaufte Braut opens up the potentialities of the piece in such a way that it becomes a common property.


  • Bendix, Regina. 1988. “Folklorism: The Challenge of a Concept.” International Folklore Review 6: 5–15.
  • Die Verkaufte Braut. 2011. Program book with texts by Stefan Horlitz, Marion Recknagel, etc., and new German libretto by Kurt Honolka. Berlin Staatsoper.
  • Morson, Gary Saul and Caryl Emerson. 1990. Mikhail Bakhtin: Creation of a Prosaics. Stanford University Press.
  • Ricoeur, Paul. 1977. Freud and Philosophy: An Essay on Interpretation. Tr. Denis Savage. New Haven: Yale University Press.
  • Tyrrell, John. “Bartered Bride, The.” In The New Grove Dictionary of Opera, edited by Stanley Sadie. Grove Music Online. Oxford Music Online, (accessed April 18, 2012).

The scent of heritage

This is a follow-up post by Valdimar Hafstein, commentator to the Research Unit on Cultural Property, to Regina Bendix’s post on Preservation Analogies.

Seven and a half years ago, three Australian musicians put on a performance in Salurinn, a concert hall in suburban Reykjavík. The artists – Yirryirrngu Ganambarr, Mirrwatnga Munyarryun, Ngongu Ganambarr – are all indigenous Yolngu artists from the north coast of Australia‘s Northern Territory, the home of the didgeridoo, and sure enough their performance prominently featured the wind instrument as well as drums and was accompanied by dance, with all three performers in traditional Yolngu costumes and body-painting.

Iceland’s Channel 2 television news ran a story about the performance and played a clip from the dress rehearsal. The clip was followed by a brief interview with the Yolngu artists. Although the performance was impressive, what has stayed with me is the interview. The first question that the reporter asked these three artists who had traveled literally halfway around the world to sing, dance, and make music – to perform for an Icelandic audience – was “is this art form in danger of disappearing?” The Yolngu artists made his question memorable by their refusal to answer. The reporter finished the story by conveying his bewilderment to television viewers.

I have a point, though it may seem long in the making. It relates to Regina Bendix’s previous blog, albeit in a roundabout way. What the reporter heard in Salurinn was music. What he saw was painted bodies in costumes dancing and playing instruments.

He smelled heritage.

He smelled heritage, the same way that protagonists in a mob movie smell a rat. It‘s not in any particular that you see, and it‘s not in the particulars you hear. It‘s in the relation between things. Something is off.

Invisible to the eye, inaudible to the ear, intangible to the hand; yet it is very much real and we know it when we encounter it. We smell it out. Heritage, thus seen, could be described as a volatile compound relating one thing to another: buildings, books, objects, sounds, bodies, practices. We detect it with receptors located in the olfactory epithelium, high up in the nose. The receptors send a signal to the glomeruli, which in turn send signals to the brain, which puts the signals together and makes sense of them: aha, heritage! Sometimes the scent of heritage is nuanced and understated, but more and more often it is overdetermined and smells to high heaven. Noses are not all equally trained to recognize it, but nowadays they are all trained to a greater or lesser degree.

It wasn‘t actually the Icelandic reporter who provoked this musing, it was another report I read this week, right after I read Regina Bendix’s cultural property blog on preservation analogies. The report in question, however, isn‘t analogical in reasoning – not overtly, at least. It‘s about a research project in heritage science coordinated by scientists at the University of Strathclyde in the UK. Its aim is to develop non-destructive methods to identify old books in need of conservation. What the scientists have come up with is a promising method for picking up the scent of heritage – the aroma of an old book. We all know it from the more interesting parts of the archive or the library. They describe it, in the lingo of a knowledgeable sommelier, as „a combination of grassy notes with a tang of acids and a hint of vanilla over an underlying mustiness.“ „This unmistakable smell is as much part of the book as its contents“, they add, yet it is a sure sign of deterioration. The heritage scientists have chemically identified the particular volatile organic compounds that our olfactory receptors signal to the glomeruli and the glomeruli collectively signal to the brain, which in turn interprets the signals as grassy and acidic „with a hint of vanilla over an underlying mustiness“.[1. Matija Strlič, Jacob Thomas, Tanja Trafela, Linda Cséfalvayová, Irena Kralj Cigić, Jana Kolar and May Cassar (2009): „Material Degradomics: On the Smell of Old Books“, Analytical Chemistry 81(20), 8617-8622,] The next step is to develop diagnostic tools to automatically detect and locate old books in need of conservation: a heritage-o-meter, accurate as a Geiger counter. Using this new tool to supplement their natural sense of smell, the archivist and the librarian will be able to sniff out heritage wherever it is hiding.

Moving back from biochemistry to analogy, how could we describe the scent of heritage outside the archive? (Whatever the answer, it‘s got not to smell „like teen spirit“). Is decay necessary to it? If so, what do we mean by decay? Does it refer to a perceived difference in temporalities, along the lines of what Bloch and Koselleck term „die Ungleichzeitigkeit des Gleichzeitigen“? Returning once more to that concert hall in the suburbs of Reykjavík, that, I think, is exactly what the reporter smelled: sounds, movements, colors, any of which could have stood in a context he would have interpreted differently, but which in their particular combination sent signals that, to his/our way of seeing the world set off alarms of asynchronicity: this wasn‘t modern dance, modern music, modern dress. The question followed naturally, the microphone stretched out to the painted Yolngu artists after they had rehearsed their „primitive“ performance for the television cameras: “is this art form in danger of disappearing?”

CP 101(1): Traditional Culture: How Does It Work?

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.)


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,

Vortrag von Ejan Maackay: “The Culture of Law & Economics and the Law & Economics of Culture”

Prof. em. Ejan Mackaay, LL.M., LL.D. (Faculty of Law, Université de Montréal und Fellow der interdisziplinären DFG-Forschergruppe Cultural Property, Georg-August-Universität Göttingen) wird am Mittwoch, 21. Oktober um 18 Uhr c.t. einen öffentlichen Vortrag zum Thema

“The Culture of Law & Economics and the Law & Economics of Culture”

im ZHG 005 halten. Veranstalter sind der Lehrstuhl Prof. Dr. Spindler und die Interdisziplinäre DFG-Forschergruppe zu Cultural Property. Aus der Veranstaltungsankündigung:

When I went through law school, law appeared as a collection of rules, procedures and institutions, perhaps with some coherence, as behoves a country with a Civil Code, but mostly to be memorised without too much inquiry into that coherence. Law was foremost black letter law. Where it did not appear altogether fixed, one would reason one’s way to new results by reliance on one’s sense of justice or fairness. To persons outside the legal community law must have looked like a forbidding black box.

This conception was common to most developed legal systems. But from the 1970s onwards, a new approach was put forth, initially in the USA and from there in other countries as well, proposing to look at the law through the effects legal rules produce amongst persons subject to it. These effects were to be determined by drawing on tools provided by economics, looking at humans as by-and-large rational actors and at law as providing signals affecting the costs and benefits these actors face and to which they adjust their behaviour. This approach strikingly showed a common rationale to wide ranges of legal rules. It made law understandable in an accessible manner.

The approach is known as the economic analysis of law or for short law & economics. It has triggered what may truly be called a conceptual revolution in legal thinking: law is to be understood not merely as black letter complemented with one’s sense of justice, but also through the consequences it produces.

In the first part, the culture of law & economics, I will illustrate the approach by looking at the example of Code provisions dealing with the sale of stolen goods (“goods laundering”) in civil law.

If law & economics is a powerful engine helping us to make sense of existing and yet to be fashioned legal rules, can it give us handles on how “cultural goods” should be dealt with, some claiming them to be property, others demanding intellectual property rights, and yet others payments for the holders of such goods? The second part of the lecture, the law & economics of culture, will tackle that question.

Fellow Prof. Dr. em. Ejan Mackaay in Göttingen

Der kanadische Rechtswissenschaftler Prof. Dr. em. Ejan Mackaay ist ein ausgewiesener Experte in den Bereichen ökonomische Analyse des Rechts und Geistiges Eigentum. Bis zu seiner Emeritierung im Jahr 2009 war er als Professor für Rechtswissenschaften an der Universität Montréal tätig, wo er unter anderem dem Forschungszentrum für öffentliches Recht von 1999-2003 als Direktor vorstand. Nach seiner Emeritierung wurde er zum außerordentlichen Professor des Centre for the Law of Business and International Trade ernannt.

Während seines Fellowaufenthaltes in unserer Forschergruppe (vom 1.September bis zum 30. November 2009) wird er seine eigenen Arbeiten vorstellen, an unseren Forschungskolloquien teilnehmen und gezielt Aspekte individueller Teilprojekte diskutieren. Vor allem steht er den beteiligten Nachwuchswissenschaftler/innen als wichtiger Ansprechpartner zur Verfügung.

Vortrag von Rosemary J. Coombe: “Mapping Legal Geographies of Cultural Rights”

Prof. Rosemary J. Coombe, York University (Toronto, Canada) und Fellow der DFG-Forschergruppe Cultural Property, wird am Donnerstag, 18. Juni um 18 Uhr c.t. einen öffentlichen Vortrag zum Thema

“Mapping Legal Geographies of Cultural Rights”

halten. Veranstaltungsort ist das Institut für Völkerrecht und Europarecht, Seminarraum der Bibliothek im Blauen Turm, 13. Stock, MZG 2314.

Vortrag von Rosemary J. Coombe: “Branding Traditional Places and their Products: Prospects for Geographical Indications and their Limits”

Prof. Rosemary J. Coombe
 von der 
York University (Toronto, Canada) wird am Mittwoch, 17, Juni um 18 Uhr c.t. einen öffentlichen Vortrag zum Thema

“Branding Traditional Places and their Products: Prospects for Geographical
 Indications and their Limits”

halten. Veranstaltungsort ist das Institut für Kulturanthropologie/Europäische Ethnologie, Friedländer Weg 2, Raum PH05.

Prof. Coombe weilt im Sommersemester 2009 als Fellow der interdisziplinären Forschergruppe zu „Cultural Property“ in Göttingen. Sie vereint in ihrer Forschung sowohl Kulturanthropologie wie Jura und politische Theorie und gilt international als eine der ersten Spezialistinnen für Fragen der kulturellen und sozialen Auswirkung von geistigen Eigentumsrechten und kulturellem Eigentum. Einsicht in ihre Arbeiten finden sich auf ihrer Homepage.

Prof. Rosemary J. Coombe meets Research Group

Prof. Rosemary J. Coombe (York University/Toronto) visits the Research Group as Fellow from May 10th through July 17th. The Canadian lawyer and anthropologist is an acknowledged expert on cultural, political, and social implications of laws of intellectual property. During her fellowship at Göttingen, she takes part in meetings and discussions of the research group, presents her own work and discusses specific aspects of individual sub-projects. Most importantly, she accompanies the researchers in their investigative endeavours.