The judgment of Solomon: global protections for tradition and the problem of community ownership.

Author:Noyes, Dorothy

Then spake the woman whose the living child was unto the king, for her bowels yearned upon her son, and she said, O my lord, give her the living child, and in no wise slay it.

1 Kings 4, 26

Ihr aber, ihr Zuhorer der Geschichte vom Kreidekreis Nehmt zur Kenntnis die Meinung der Alten: Dass da gehoren soll, was da ist, denen, die fur es gut sind, also Die Kinder den Mutterlichen, damit sie gedeihen Die Wagen den guten Fahrern, damit gut gefahren wird Und das Tal den Bewasserern, damit es Frucht bringt. But you, you listeners to the story of the Chalk Circle, Learn the opinion of the elders: That what there is should belong to the ones who are good for it, thus Children to the motherly, so that they may thrive Wagons to the good drivers, so that they are well driven And the valley to the waterers, so that it bears fruit. Bertolt Brecht, Der kaukasische Kreidekreis, 1945 In the absence of local knowledge, global judges depend on wisdom. King Solomon, ignorant of the history of the two rival claimants to a baby, was confident of the principle that mothers are naturally loving. Bertolt Brecht, revising the story, argued that the birth mother might not be the best mother, particularly when vested privilege made her overconfident of her entitlements. As a good communist, he mistrusted the Lockean tradition of possessive individualism that equates origins with ownership (Hafstein 2004a, 306). But as a good modernizer, he had global assumptions of his own. In the frame story to his Caucasian Chalk Circle, a Party representative helps two village councils to resolve a dispute over the possession of a valley. The goatherders who have made cheese in the valley since time immemorial agree to surrender it to an agricultural cooperative that has a plan to irrigate it for orchards, a more productive use of the land. (1)

Stalinist agricultural reality, in turn, tragically undermined Brecht's assumption that modernizing planners always know best (Scott 1998). In fact, judges' wise assumptions are often undone by historical outcomes. In this article I address a more recent debate over possession: who owns tradition? (Brown 2003; Rikoon 2004; Hafstein 2004a). I suggest that some of the assumptions of global advocates for local communities in current intellectual property struggles may be equally ephemeral.

I speak primarily from the experience of my own discipline, folklore. Since the history of commercially recorded music and more with the post-1960s growth of a market for traditional arts, folklorists have repeatedly become involved on an ad hoc basis in disputes over the rights to a particular tradition. Many of these disputes impinge on copyright and other forms of intellectual property law (Cohen 1974; Jabbour 1983; Evans-Pritchard 1987). Others take place in the context of heritage preservation efforts. Folklorists were involved in UNESCO's efforts to establish model provisions for the protection of tradition in 1980 and again in 1989 (Jabbour 1983; Kirshenblatt-Gimblett 2004). With UNESCO's Intangible Heritage initiatives since 1972 and with the creation in 2000 of the World Intellectual Property Organization's Intergovernmental Committee (IGC) on Genetic Resources, Traditional Knowledge, and Folklore, folklorists have been participating more intensively as what John Kingdon calls "policy entrepreneurs" in global initiatives to protect local tradition (1995, 122-24). While we are, as Kingdon says, motivated by a sense that our expertise can contribute importantly to a debate that concerns us closely, some of us may admit that we also fit another of his categories, "policy groupies," eager to be where the action is. And in fact we are gaining a place at the table. Some of our colleagues sit on UNESCO's Intangible Heritage Committee, two representatives from the American Folklife Center of the Library of Congress serve on the U.S. delegation to WIPO, and the American Folklore Society and the Societe Internationale d'Ethnologie et Folklore are accredited NGOs at the IGC sessions. Representatives of both of these societies along with individual folklorists (myself included) have had the opportunity of informal exchange with members of the WIPO Secretariat, who have exercised an admirable determination to consider the perspectives of both scholars and local actors.

To date, a major emphasis of North American folklorists' advocacy has been the insistence that protection regimes should give control of tradition not to the paradigmatic political agent, the nation-state, nor to the paradigmatic economic agent, the individual. Rather, it is argued, folklore is created and therefore owned by communities. In consequence, initiatives should be designed to give communities control over the use of their traditions at the most grassroots level possible (Jabbour 1983; American Folklore Society 2004; Rikoon 2004). In this article I suggest some of the risks to be borne in mind as this generally praiseworthy insistence on local control moves toward implementation in policy. (2) My primary concern is with the emotional and political force of the idea of "community." Community is so powerful symbolically that we can hardly assess it empirically. I discuss the modern assumptions that foster global enthusiasm for community but impede understanding of its real dynamics. I ask how judges will recognize the authentic guardians whose right and duty it is to watch over tradition, and who, in turn, will watch the watchers. Finally, I suggest that the reification of tradition as community-managed heritage tends to undermine one of the most important uses of local tradition, the collective negotiation of intracommunity conflict--such that our global Solomons are likely to be called upon to judge more and more local disputes.

Tradition and the Culturalist Moment

The care and feeding of tradition is a matter of pressing current concern to intergovernmental organizations, caught as they are between northern and southern nation-states and between multinational corporations and the wretched of the earth. I will refer in this article to UNESCO and WIPO, which may be taken as proxies for two cardinal approaches. (3) For UNESCO, with its language of "safeguarding" and "preserving" living cultural heritage, tradition is the baby of the Bible story, to be guarded and nurtured. For WIPO, with its language of "protection" from unauthorized third-party uses, tradition is Brecht's valley, to be developed for the collective good. (4) At the time of this writing, both organizations are strongly engaged in protective efforts. UNESCO is lobbying for member state ratification of its 2003 Convention for the Safeguarding of the Intangible Cultural Heritage. The WIPO Inter-Governmental Committee's Seventh Assembly in November 2004 discussed a draft of core principles and objectives for the protection of folklore, and the General Assembly has directed the Committee to accelerate the development of an international instrument towards this end.

Tradition, folklore, or intangible heritage, as one prefers, (5) is assumed to stem from and therefore to belong to "communities." The label of "community" is accorded by both WIPO and UNESCO to indigenous groups in the first instance and by extension to other minorities within and between nation-states (UNESCO 2003, 1; WIPO 2004, 12-13). Descent is assumed by default to be the unifying basis of community, although religious and other principles of affiliation are secondarily acknowledged. (6) As a rule, groups represented as "communities" are comparatively isolated, subaltern, and not considered to be viable autonomous collective subjects. Indeed, "community" is in part a euphemism conferring dignity and value on groups in a negative position: it is a verbal gift from the rich to the poor. At the same time, insofar as the label implies a refusal of individualism, it distances its referent from modernity (cf. Bauman and Briggs 2003).

Folklore is assumed to be what communities have got amid all they have not got. It is both identity and resource, both baby and valley. Just as the nation-states of the nineteenth century built national cultures out of their folklore, so both new states and subaltern groups within them must make cultural capital out of their own. In the culturalist new world order, folklore also provides the face by which communities represent themselves and claim rights in the political arena. (7) Moreover, in a global economy full of consumers hungry for exotic experience, folklore is a cultural resource comparable to the natural raw materials on which poor countries have so often depended for export income (Yudice 2003).

Both UNESCO and, within the context of folklore protections, WIPO have supported the insistence of developing countries that communities be allowed the free exercise of their tradition in an autonomous space, the boundaries of which should be breached neither by the unwanted invasion of foreign culture nor by the expropriations of foreign cultural industries. (8) The first of the guiding principles proposed at the IGC's Seventh Session in November 2004 is "responsiveness to aspirations and expectations of relevant communities" (WIPO 2004, Annex I, 2). Elsewhere the document states that protection of tradition is not an end in itself, but intended to benefit communities (Annex II, 1). Throughout the WIPO Secretariat's documents discussing objectives, principles, and policy options for the protection of tradition, it is emphasized that, while protections are likely to be instituted by nation-states, they should be designed to reflect community practice and wishes, avoid interference with community-generated initiatives, and accrue advantage to the community above all other stakeholders. The UNESCO Convention, which privileges the cultural expressions themselves, nonetheless identifies communities as the makers and custodians of heritage (UNESCO 2003, 1) and prescribes that communities...

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