Traditional Cultural Expression, First Panel

November 14, 2008

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.