Interview with Rosemary Coombe on Copyright and Cultural Politics
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Summary: These interviews were conducted as a part of the Contested Commons/ Trespassing Publics conference organized by Sarai: CSDS and the Alternative Law Forum in January 2005.
Rosemary J. Coombe is a Tier One Canada Research Chair in Law, Communication and Cultural Studies at York University in Toronto, where she teaches in the Communications and Culture Joint PhD/MA Programme, and is cross-appointed to the Osgoode Hall Faculty of Law Graduate Programme, and the Graduate Programme in Social and Political Thought.
Her research focuses on the intersection of anthropology, law, and cultural studies on issues relating to cultural rights and the politics of globalising intellectual property. She has published widely in these areas. She is the author of The Cultural Life of Intellectual Properties is a legal ethnography of the ways in which intellectual property law shapes cultural politics in consumer societies.
LL: Your work has really been at the cutting edge in terms of the intersection between law and anthropology, intellectual property and anthropology. Could you tell us how you brought these two together, and what the terms mean to you?
RC:I come from a background in cultural anthropology, which in those days was called 'symbolic' anthropology. When I went to law school, it struck me that the only field of law that I came across where judges and lawyers seemed particularly concerned with issues of cultural meaning was in intellectual property. However, the scholarly literature at the time didn't seem to address IP as the protection of cultural forms in any way. It was very much an abstract debate about incentives to create, with no attention paid to what was getting created, or the social roles of these creations.
At the same time, I was aware of how my students reacted to the teaching of IP, how excited they got when we were talking about movies we knew, or trademarks they came across in their everyday life. And it occurred to me that these trademarks, these copyright texts, these advertisements, these jingles, everything was protected by IP in very important ways, as part of the public culture, at least of North American society, which did sculpt my purview at the time. But I was also uncomfortably aware of the beginnings of rumbles about whether or not IP could be used as a way to help Indigenous peoples to protect their cultural innovations.
One of the early essays that got me interested in the intersection between IP and cultural theory was Rosemary's essay, Critical Cultural Legal Studies, Yale Journal of Law and the Humanities (1998). It captured for me an exciting way of speaking about the social life of law, and of the dual life of signs in the everyday. On the one hand as signifier of meaning, and at the same time, as valuable property. I am extracting the introduction to the essay which is written in a very De Certeu inspired manner, which illustrates the point that Rosemary Coombe makes about her early attempt to get ethnography and IP together.
I am on my way to the university to teach my class in intellectual property. I decide to walk down Queen Street--into that ever-so-self-consciously hip strip officially (and painfully) known as "The Fashion District," which runs west from the downtown core in Toronto. Parallel to King and Dundas Streets and crosscut by Dufferin, Bathurst, and Simcoe, Queen Street is central to the city's British colonial topography, overlaid more recently by a municipally imposed multiculturalism. Just to my west, street signs proclaim me to be in "Little Portugal," although all visible evidence suggests that "Little Saigon" might be more appropriate. Identities in such social contexts shift too quickly to be encompassed by official mappings, which, despite the liberal intentions of their cartographers, belie a colonial containment of alterity.
Shifts in relations between spaces, places, and identities are clear in the new uses of old contributions to the cityscape tendered by a now-elderly generation of Ukrainian, Polish, and Czech immigrants--Orthodox churches, butcher shops, travel agencies, and package services that long specialized in shipping goods into the Soviet Union. Gradually, these commercial spaces are being transformed. Rents along this section of the street are lower than they are closer to downtown, but even this far west, aspiring entrepreneurs accrue some of the street's cachet. Xeroxed reproductions of Warhol posters, plastic busts of Elvis, Partridge Family gameboards, and Monkees album covers are favored forms of commercial decor in an area where Fredric Jameson's name is often dropped in cafe conversations, and paraphrases of Jean Baudrillard litter the alternative press. Nostalgia with respect to histories of marketing and celebrity, and an ironic attitude toward them, create a shared identity for a generation unbound by organic traditions. This, social theorists would have us believe, is characteristic of the condition of postmodernity.
To obtain my morning espresso, I am once again compelled to choose between great pastry at the local Ukrainian bakery or better coffee at the Second Cup(R), a franchised yuppie coffee bar that locals tried hard to resent when it first "invaded" their neighborhood. Priding themselves on their individuality and social distinction, residents rejected the corporate insignia of serial equivalence that they saw a "chain" to represent. Once the Ukrainian bakery obtained a trademark, standardized its logo, and opened three new locations flying the flag of FuturesTM, it seemed rather futile to maintain the attitude. It's too early for decisions; characteristically, I decide simply *465 not to decide and visit both. Clutching poppyseed cake and skimming movie reviews, I bump into a disheveled young man. His shoulder bag proclaims him "Armed and Hammered." I smile at the parody and think about the different ways in which we recode and recycle the detritus of commercial culture.
Standing in line amidst the predictable layout of the coffee bar (it's probably a legally protected form of trade dress), I notice the lovely graphics of the early-twentieth-century cigarette advertisements--now enlarged and framed to hang on restaurant walls. Their availability for this purpose is a consequence of the expiration of copyright protection for the advertisements, but savvy marketers know only too well that you need only provide them with a new format to set the royalties flowing once again. Although the original image may not be protected as an exclusive property, the new presentation of it will be. In any case, the copyright notice will scare off a good number of competitors regardless of its legitimacy or the extent of its coverage. [FN4] I glance at the display of merchandise in the coffee shop. "Old," "colonial" trademarks have been newly reproduced to stick on bags of coffee and adorn overpriced mugs while "new" varieties of expensive Columbian beans are marketed with narratives of imperialist nostalgia. Scorning the brandnamed coffees embraced by our parents, we are nonetheless eager to embrace ever- emergent symbolic distinctions in "unbranded" goods. The social passages, from advertisement to ambience, distinction to genericity, labor to logo to libertinism (the Armed and Hammered parody), and standardization to signification that are congealed in these encounters are complex but typical of relationships of symbolic exchange (as well as capitalist patterns of manufacturing difference and consumer behaviors of social differentiation).
In the window of a Latin American import shop I recognize a familiar logo, but I can decipher no more--the rest of the label is in Spanish. Jars of Nescafe(R) are imported from Latin America to sell to immigrant families from Equador and Columbia, nostalgic for the tastes of home. In mass markets, I muse, "the real thing" must be authenticated by figures of standardization; somehow the trademark embodies the security and comfort afforded by familiar distinctions. This speculation is only slightly complicated when I find Jacob's "Krim Krakers" from Malaysia in an Asian grocery--next to the more familiar Jacob's Cream Crackers offered at a lower price. The cost of importing the pidgin packaging is clearly substantial. Also on display *466 are varieties of tinned beans--canned by Mr Gouda's(R). Once the main source of mass-marketed Caribbean foodstuffs in Toronto--the only source of ackee, for example--the company now markets garbanzo, pinto, and kidney beans under the banner "Multicultural." How long, I wonder, before they claim the trademark rights in the use of this term for the marketing of groceries?
On the street, hot pink posters stapled to telephone poles inform me that the Nancy Sinatras (a local lesbian band) are playing the Cameron (a local pub) again on Thursday. Huge billboard advertisements for Black Label(R) beer loom overhead. Populated by nonchalant black-clad youth posing in smoky billiard halls, they seem eerily to echo something of the local mien. In fact, this is exactly what they do. Black Label(R) had been a "dormant brand" for many years. It was precisely this lack of connotation--the mark's minimalist economy--that made the brand a favorite among those associated with the Queen Street counterculture in the late 1980s. Any beer that wasn't associated with suburban barbecues, babes in bikinis, and weekends with the buddies was difficult to find, and this one's black label was cooly mnemonic of the anti- lifestyle of the area's artists, actors, students, and cultural workers. Noticing the increase in sales, the manufacturer located the neighborhood taverns doing the brisk business and decided to explore its new market. Students "in plain clothes" were sent as detectives to investigate the rites, ethos, and symbols of this lifeworld; sufficient ethnography was accomplished to model renewed advertising upon the signifying styles characteristic of the subculture so discovered. The advertising campaign subsequently won national awards, and was chronicled and celebrated as the creative authorial work of corporate copyrighters. For years, local residents were surrounded by commercial simulacra of their leisure (but tourists were at least assured that they were in the right neighborhood).
A teenager on the streetcar I board shrugs off a leather jacket adorned with a stitch-on emblem--a cameo of the Colonel (you know the one), his genteel Southern gentleman's face overlaid with skull and crossbones. Food tampering, I wonder? No, too literal--maybe a comment on the company's treatment of chickens. I ask her if she knows why there is a skull and crossbones over the Kentucky Fried Chicken(R) logo. Glancing quickly and curiously at her jacket she says, "It's my boyfriend's, but I think you can buy them." "Do you know who makes them?" I ask. She looks at me as if I had requested the name of her narcotics source and murmurs something noncommittal.
I wave from the window to a few of my former students selling silk-screened t-shirts. This week they are embossed with the cartoon image of My Favorite MartianTM, the insignia of Mattel's Hot *467 Wheels(R), and reproductions of popular book jackets. Recently they created t-shirts that featured the cover of anthropologist Emily Martin's book, The Woman in the Body, [FN5] which reproduces Picasso's "Girl Before a Mirror," and the jacket of Foucault's Discipline and Punish, [FN6] which reproduces a gruesome medieval woodblock. These were sold to local feminists, sadomasochists, and tourists seeking souvenirs to recall their experience of the street's intertextual sophistication. I'm somewhat bemused that these book covers are the most immediately useful resources they derived from my Law and Contemporary Social Theory course. At least in some eyes, I'm uncomfortably aware, my status as a professor teaching intellectual property at the country's most esteemed faculty of law demands a less reflexive view of my students' entrepreneurial activities. I'm more concerned that their inventories may at any time be seized without notice by zealous monitors of those private properties that circulate culturally in the public sphere, and that criminal charges may be laid by state officials whose sense of the public interest seems shaped primarily by profit- oriented actors. It is difficult merely to wink in the students' direction.
A young girl I guess to have Salvadorean ancestry walks by carrying a bottle of water trademarked "Clearly CanadianTM." How much easier it is to acquire membership in a national community through the indicia of consumption than through the bureaucracy of immigration tribunals and refugee claims procedures. On the back of the newspaper I'm carrying, a major brewery advertises one of its flagship brands ("Canadian" beer). The slogan "I am . . . Canadian" surrounds an image of a young white man struggling with his fly in what appears to be a motel room. "Next time, I'll remember to bring underwear," the caption reads. The welfare state is slowly but surely dismantled and ideologists of free trade sacrifice national traditions of care, shared responsibility, and social commitment for the uncertain benefits of foreign investment and competitive standing in a global economy. A tawdry and exclusionary image of national belonging circulates in the press, while others struggle to have the dimensions of their suffering heard in parliaments. Market forces shape the commerce of meanings that citizenship may acquire, ever proclaiming the transparency of the nation-state and the simplicity of its claims upon us.
In a grocery store window incongruously juxtaposed with more fashionable retro facades, the Land'o'Lakes(R) Indian princess peeks *468 out from amidst the clutter. Nearby, expensive art deco and fifties collectibles are represented by dozens of gleaming chrome objects displayed in the front window of the Red IndianTM store. Such slick nostalgia, marketed with an emblem from an era when "we" were more "innocent" and less "politically correct," sits altogether too smugly across the street from a crafts outlet owned by native peoples, in which exquisite beadwork sits abandoned on dusty sheets of pegboard. A few yards away, advertisements for IndianTM jeans dominate the walls of a bus shelter where a man of First Nations ancestry is unconsciously sprawled, suffering the devastating cumulative effects of solvent abuse in a hostile urban environment. More "Clearly CanadianTM," I wonder? A cheerful Disney film titled The Indian in the Closet is advertised through marketing tie-ins promoted by McDonalds(R)--children are promised their own fre e "Indian" with every Happy MealTM. Both in the Magic Kingdom(R) and under The Golden Arches(R), native peoples are mere toys to fire fantasy. Attempts by First Nations peoples to "come out of the closet" and protest their stereotyping in commercial culture provide poignant reminders of the political stakes in contemporary struggles over commodified representations.
On my way into the subway, I pass the Twiggy restaurant and reluctantly shift my attention to the intellectual property lecture ahead of me. Already I have considered at least thirty-four legally protected cultural texts, run into about a dozen potential intellectual property infringements, and encountered a score of other intellectual properties I didn't reflect upon. Other representations, no longer protected by laws of trademark and copyright, are now part of the city's vibrant public domain, while elements of the public domain are constantly appropriated in the proprietary expressions of those whom the law recognizes as authors. Intellectual property issues press upon me in the commercial culture I share with my students, but eighteenth-century philosophical frameworks are deemed the appropriate academic vehicles with which to explore the dusty doctrines of copyright. There are "cases to cover" and I must get through them all on time.
My meanderings along Queen Street mirror and compress the major themes of my work on intellectual property over the last decade. These issues, concerns, and practices include: the constitutive role of intellectual properties in commercial and popular culture; the forms of cultural power the law affords holders of copyright, trademark, and publicity rights; the significance of celebrity images in alternative imaginations of gender; the commodification of citizenship and the negotiation of national belonging on commercial terrain; the appropriations, reappropriations and rumors that continually *469 reactivate and reanimate commodity/signs [FN7] to make them speak to local needs; the colonial categorical cartographies that underlie our legal regimes; and the postcolonial struggles of indigenous peoples to eliminate commodified representations of their alterity. Consideration of these themes has enabled me to delineate the parameters of what I nominate "a critical cultural legal studies."
While much of Rosemary's early work centered around the appropriation of corporate signs by people who used it in their everyday, to subvert corporate authorship, Rosemary's more recent work has been with the question of indigenous peoples rights.
RC:And coming from anthropology, which primarily studies non-Western societies, I thought I'd done something fairly original, which was to think about consumer patterns and Western society as an anthropologist, see them as cultural forms. In addition, I was aware that this intersection between IP and Indigenous peoples was something I would eventually have to explore, given these two backgrounds. That came about a bit more suddenly than I wanted, because I also knew that I would have to inevitably learn a big field of international law. The TRIPS agreement came about, it became necessary to understand a lot more about trade, in order to understand even domestic IP law. But I did get a phone call from Canada's Ministry of Industry, which actually administers most domains of property (besides property rights, which is within the Ministry of Heritage).
RC:They were trying to find a specialist who knew something about IP because they were having to think about how to implement the Convention of Biological Diversity, a mandate to find a means of protecting traditional knowledge. They said to me, "Well, we're thinking this isn't really an IP issue, it is a human rights issue, and we want to explore that, but we can't find anyone who knows anything about IP, who also knows anything about human rights..." So I came up to speed on those issues pretty quickly. I think the most basic and fundamental thing that I learned, and I think I was somewhat ashamed to realise, as I was learning this for the first time, was that IP is part of the human rights system. It is not legally, in the larger sense of the term, i.e., how it is positioned globally, a property right at all; it is a cultural right within the larger human rights framework. And when you think about it that way, a whole other series of questions opens up around what cultural policy should attempt to do.
LL: Do you find a tension between these two dimensions of your work? On the one hand, it's the ethnography of the everyday, vis-a-vis consumer culture, and on the other hand, it's really in terms of your anthropological skills in dealing with IP issues relating to Indigenous people.
RC: I do, and I don't. From a very formalistic perspective, I can see why some people think there is a contradiction or tension there: because if you simply look at the activity involving the appropriation of cultural forms that are claimed within some kind of an ownership regime, or even a liability regime, then you're saying, "Well, these two activities are the same." But I think that begs a larger question, of how actors are socially situated in the world. The kinds of appropriation I was originally concerned with are the appropriation of those who are excluded from the production of cultural texts through their position as consumers. There are ways of consuming these corporate texts that are active interventions in the world. And in a mass-mediated environment, of course, things have changed a lot with digital technology, you get spoken to, and it is very difficult to speak back.
For a complete bibliography, see here
http://www.yorku.ca/rcoombe/publications.htm
RC: Forms of appropriation are a particular kind of politics in regard to a particular set of hegemonic texts. I was interested in thinking about hegemony as something which has to be constructed and reconstructed and maintained, and it is constantly resisted. With respect to Indigenous peoples, I was realising that they are perhaps, in cultural terms, even more disenfranchised than the consumer is, vis-a-vis the corporation. Indigenous peoples, at least in North America, have a history of being represented by others, and very little history of being able to represent themselves. And they are often represented falsely, and represented in stereotypical ways... Most stereotypes reproduce a skewed understanding of the social positioning of a people. But to have that continually reproduced in the public domain is a reproduction of your social position of being abject, marginalised. These are often very offensive images in US/Canadian culture. The 'squaw' image, the 'lazy Mexican' image...And we have a long history of studies done by civil liberties unions, for instance, which show that these kinds of images are dangerous: they reduce the self-esteem of a people.
RC: I was working on trademarks involving stereotypes of Indian people, used in sports teams , perhaps the most egregious examples. But I was also thinking, since we do have laws designed to protect against consumer confusion, that there's no reason why, at least within commercial fields, Indigenous people should not be able to use those kinds of laws to protect against commercial forms that allegedly depict them, thus leading consumers to believe that these products are made by Indigenous people. Homi Bhabha talks about the stereotype being both something that you desire as well as something you resist; there is attraction and revulsion at the same time. You see a sort of imaginary version of the Indian being used to market everything, especially with the dawn of New Age culture: certain kinds of spirituality are thought to attend, or certain kinds of 'naturalness', from within the imagery. But the people who seem to benefit most from this normally have no connection to Indigenous people at all. So I thought Indigenous people were between a rock and a hard place...It struck me that there were certain laws implemented, and others that could be expanded, to enable Indigenous people to more fully represent themselves and prevent their misrepresentation by others.
Extract from The Cultural Life of Intellectual Properties
The dynamics of relationships between those whose social alterity was specularized and those who profited from its commodification in marks of trade have shifted dramatically as these objects of property have been turned into subjects and sites of politics. Specularizations of alterity have come under the intense scrutiny of civil rights movements since World War II. Peoples historically othered in imperialist social imaginaries protest the continuing circulation of indicia iconic of their former subjugation and contest the propriety of this continuing commodification of colonial desire. The multiple metamorphoses of Aunt Jemima, the abandonment of the Frito Bandito, protests over Sambo restaurants and Robertson's Golly(wog), are but a few of the struggles in which minority groups have focused attention on commodity/signs. Indigenous peoples in Hawaii, for example, seek to rescue such signs of their traditional culture as the hula and the luau from their commercial distortions in a tourist industry founded upon the consumption of their cultural distinction--exotic spoils of an unconstitutional territorial incorporation. 93 Whether these commodity/signs are commodifications of their heritage or stereotypical signs of their alterity, many peoples find "their own" representations legally owned by others.
Of those historically subjugated groups who have demanded an end to the commodification of their cultural difference in North American mass markets, Native Americans have faced the longest struggles. Long after the Frito Bandito has been laid to rest, and black mammies and little black Sambos have ceased to signify on American commercial terrain (although they have returned as a form of collectible nostalgia), In-
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dians are still a privileged form of alterity in advertising. 94 From Red Man® chewing tobacco, Indian Spirit® air freshener, Indian-style™ popcorn, teams of Braves®, Red Indian® jeans, Warrior boxes, and Indian heads on everything from baking soda tins and neon beer signs to children's campgrounds, the corporeality of the "Indian" continues to mark the privileges of the incorporated in commerce.
Contesting legally legitimated claims that stereotypical images of themselves be considered merely the marketing vehicles of others, Native peoples have come up against commercial indifference, animosity, and public ridicule. The movement to end the use of Native American team names, logos, and mascots has been both protracted and politically revealing. Dismissed by some as evidence of "political correctness" gone to ridiculous extremes, the offensiveness of these signs is denied by many bewildered liberals, and they are even considered complimentary by a few team owners, journalists, and zealous fans. Protests about these signs have been greeted with a curious degree of misrecognition. An examination of these controversies reveals a great deal about the trademark as a vehicle for articulatory practice.
The Washington Redskins, Atlanta Braves, Cleveland Indians, Chicago Blackhawks, Kansas City Chiefs, Florida State University Seminoles, St. John University Redmen, Chief Illiniwek of the University of Ilinois Fighting Illini, and Miami of Ohio University Redskins 95 are team names that bind fans across ethnic and generational lines. Along with associated logos and mascots, these names provide steady streams of income. The law bestows on their "owners" exclusive rights to circulate these marks in commercial (and many noncommercial) contexts and powers to enjoin their use by others. As a consequence, team insignia have become valuable properties in their own right. The exploitation of merchandising rights (the right to license one's exclusive rights under trademark laws) provides a significant and autonomous source of revenue. 96
folklore
indigenous people
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sui generis protection
traditional knowledge
RC: I don't think that this is exactly the same as a corporation wanting to maintain goodwill, because a corporation only gets its goodwill from the way it behaves in public, and the quality of its goods. Alot of the appropriations I was concerned about were not simple parodies , they were often parodies that spoke to the way in which a corporation pulls power in society. I think it is fair to comment upon that. And if the corporation puts its trademark out there, as representing itself, as its corporate presence, I think it is fair, if any corporation wants to use a trademark to do that. But Indian people were not putting these stereotypes out there as representations of themselves. The other issues have to do with more sacrilegious usages of Indigenous symbolism, which I think raise a separate set of concerns...but they are also concerns which are very differently construed in different jurisdictions.
LL: On the question of traditional environmental knowledges, one of the problems in the Indian context is that you encounter the system of property, which creates a set of conflicts, negotiated by modern IP law. In India, the problem has been that instead of thinking out the issue a little more thoroughly, the response has been a greater system of property, even if it has been a sui generis form. What has your experience been, in dealing with alternatives to the modern IP regime?
RC:I don't come across many Indigenous people who are very interested in an IP regime as a means of protecting traditional knowledge. But I feel that thinking about it as IP, or beginning to articulate it as an IP problem, probably drew much wider attention and much greater public focus on the issue, than it would have otherwise have gathered. I think that's been good. I believe that for many of the world's Indigenous peoples, the ability to claim some kind of rights to traditional knowledge, or some kind of rights to be treated with respect, is just one part of a larger set of claims relating to self-determination. Certainly, rights with respect to cultural heritage have been critical to a larger set of rights that have been negotiated within the United Nations system over the past decade, part of the Draft Declaration of Rights for Indigenous Peoples.
RC: There are of course many interesting and complicated questions with respect to Indigenous identity. Certainly, there is no singular definition of Indigenous peoples that travels globally. But as you well know from the Indian context, these rights are supposed to attach to some peculiar entity known as "local communities" embodying traditional lifestyles. Now that clearly is not a term with any fixed referent, and I think it's one that's subject to various uses. Which communities can represent themselves as "local", and under what conditions? It seems to me that there is an awful lot of activity to suggest that NGOs, for instance, are very interested in helping particular villages, interested in positioning certain communities as "local" and constructing those communities' relationship to knowledge as "traditional". The charges against such activity that I take most seriously are the ones suggesting that this creates a new set of inequalities ,in the sense that perhaps those more marginalised, who might actually have greater and more important knowledge, are less likely to be able to find those kinds of cultural brokers capable of representing them in terms that can make them viable recipients of these new rights, whatever they might be.
RC: I've always been much more in favour of a cultural policy approach, which says that maintaining diversity is important, that we should consider such diversity as a public good. Certainly, in Canada there's a long history of that kind of approach. What I would like to encourage is cross-cultural exchange and the capacity of peoples with certain kinds of knowledges of the environment to be a part and parcel of the more public process of thinking about environmental impact assessment, for example. Indigenous people would like to be able to keep their languages alive, to be able to teach children in those languages, thus bring the value of their agricultural knowledge into the school system. This would also go a long way towards making people think those languages were valuable, and to make them understand that the traditional knowledge held by their grandparents is also valuable. This would create some intergenerational bonds, which would contribute towards cultural revitalisation. That will happen only if there are benefits, even if these are only in terms of the new employment prospects opened up by that activity.
LL: The dominant paradigm in the social sciences in India after the 1970s has been this entire tradition/modernity debate, as configured in the context of the postcolonial. Your work clearly attempts to move beyond that, and avoid the setting of the tradition/modernity debate, especially in terms of the romanticising of the Indigenous community as the eternally fixed, as "the static". In what ways have you tried to do this?
RC:I'm not sure this approach is particularly original to me. I believe that in many ways, those dichotomies are already being overturned, out in the world, in practice. Indigenous people have actually been very effective, in the global lawmaking context; to the extent that they have shown that their knowledge is innovative, it changes with time, it is not static... This sounds a bit more radical to IP scholars than to human rights scholars, among whom this mode of assertion has been accepted for a long time. Or even to cultural policy scholars. UNICEF has certainly accepted those principles for a long time. Cultural Survival, a major organisation in the US, has propounded those ideas and shown how it is through traditions that one incorporates modernity and modern forms, and that we live in a necessarily hybridised world. But again, I think it was the Subaltern Studies school in India that made these arguments most forcefully a few decades ago. Most recently, you find a very strong statement of it in Dipesh Chakravarty's book Provincialising Europe. Tradition continues to live on in the ways in which people live modernity, even while the "modern" and its reception have been infused by specific traditions today. The problem is that the traditional knowledge debate came into the legal discussions, and that most legal scholars were completely unaware of the reconstruction of traditions that has gone on.
LL: I'm also curious about how you speculate upon the intersection between the different cultures and communities you've been working with, and the market. For instance, in the Indian context, in many ways, a lot of the local languages and traditions that we speak of really received a major impetus with the emergence of cassettes. For a long time there was very little state patronage, the regional recording industry had been almost killed off with the state's setting up of Hindi as the national language, out of a political need to have a lingua franca. The emergence of cassette culture was characterised by this curious phenomenon, where a lot of the traditions would borrow from Bollywood pop tunes, and there was the counter allegation that Bollywood picks up the folk music of a large number of communities without offering any renumeration. A complex dynamic plays itself out in this manner. Where do you see some of these issues in terms of the North American context, in the future?
RC: Well, I've always thought that both the enforcement of IP and the lack of enforcement of IP are actually productive activities. They give rise to particular kinds of new cultural forms, new forms of identity and community. I have also heard, for example, that the idiom of Bollywood characters forms a kind of lingua franca for subcultures of Senegalese youth. So we are seeing, on the one hand, ways in which the global is localised. But as you mentioned, the other, perhaps surprising, development is how these new technological capacities to distribute cultural texts, and to share them, are in fact revitalising marginalised identities. We have examples of languages that people thought were extinct; surviving speakers of these have come together via the digital, though they're not physically together any more. Diasporic communities have also been similarly enabled by new technologies; and the fact of technology re-nationalising many groups in this way is also a very interesting phenomenon.
For an incredible account of this phenomenon see Rustom Bharucha, Rajasthan: An Oral History - Conversations with Komal Kothari. Penguin India, 2003.
From Lawrence Lessig, Free Culture
All across the world, but especially in Asia and Eastern Europe, there
are businesses that do nothing but take others people's copyrighted
content, copy it, and sell it—all without the permission of a copyright
owner. The recording industry estimates that it loses about $4.6 billion
every year to physical piracy1 (that works out to one in three CDs sold
worldwide). The MPAA estimates that it loses $3 billion annually
worldwide to piracy.
This is piracy plain and simple. Nothing in the argument of this
book, nor in the argument that most people make when talking about
the subject of this book, should draw into doubt this simple point:
This piracy is wrong.
Which is not to say that excuses and justifications couldn't be made
for it. We could, for example, remind ourselves that for the first one
hundred years of the American Republic, America did not honor foreign
copyrights.We were born, in this sense, a pirate nation. It might
therefore seem hypocritical for us to insist so strongly that other developing
nations treat as wrong what we, for the first hundred years of our
existence, treated as right.
That excuse isn't terribly strong. Technically, our law did not ban
the taking of foreign works. It explicitly limited itself to American
works. Thus the American publishers who published foreign works
without the permission of foreign authors were not violating any rule.
The copy shops in Asia, by contrast, are violating Asian law. Asian law
does protect foreign copyrights, and the actions of the copy shops violate
that law. So the wrong of piracy that they engage in is not just a
moral wrong, but a legal wrong, and not just an internationally legal
wrong, but a locally legal wrong as well.
True, these local rules have, in effect, been imposed upon these
countries. No country can be part of the world economy and choose
not to protect copyright internationally.We may have been born a pi-
"PIRACY" 63
rate nation, but we will not allow any other nation to have a similar
childhood.
LL: Alot of progressive scholarship on IP, I'm talking about the public domain, the big names, Lessig, Boyle, Benchler, etc., speaks in a particular manner about piracy, claiming piracy can be redeemed through acts of creativity, through the "transformative author" being resurrected. How do you make sense of the political economy aspect, as well as the anthropological, when it comes to understanding piracy that does not necessarily have a transformative author?
RC:I've always thought that the term "piracy" was not very helpful. It needs to be analytically explored; the etymology would be interesting. The distinction between transformative and non-transformative appropriations is, of course, a legal one in the first instance. And it's not particularly radical, in the sense that it's always thought of in terms of whether or not those usages were going to be considered fair use, or not.
LL: Lessig would account for a lot of what's happening in terms of peer-to-peer, through the transformative author argument; and he would dismiss the rest of what's happening as what he calls "Asian piracy", a term considered highly objectionable and everything else, but that's the framing...
RC:He actually calls it that...?
LL: Yes, in Free Culture...
RC:"Asian piracy"?
LL: Yes, piracy that takes place in Asia.
RC:I think, again, that he's making a safer argument within the American context. With regard to whether those acts of piracy that involve large-scale unauthorised reproduction and distribution should be considered "productive" or not: are you asking an analytical question, a social and cultural question, or a legal question?
LL: Acombination of all three, actually.
RC:As a legal question, I doubt if those acts would ever be considered productive, or acts productive in such a way that they would be overlooked in terms of royalties due to the owners of the intellectual property. From a social and cultural perspective, it's what is done with these products, and the act of producing these products, that needs to be examined more carefully. But the law is not likely to take great count of this. It's very hard to make arguments on expressive grounds alone, particularly outside the US, because the First Amendment simply doesn't permit. It's a local ordinance that doesn't even travel across the border to Canada, for instance. Almost nothing you do with the work is considered a fair dealing with it.
From Lawrence Lessig, Free Culture
All across the world, but especially in Asia and Eastern Europe, there
are businesses that do nothing but take others people's copyrighted
content, copy it, and sell it—all without the permission of a copyright
owner. The recording industry estimates that it loses about $4.6 billion
every year to physical piracy1 (that works out to one in three CDs sold
worldwide). The MPAA estimates that it loses $3 billion annually
worldwide to piracy.
This is piracy plain and simple. Nothing in the argument of this
book, nor in the argument that most people make when talking about
the subject of this book, should draw into doubt this simple point:
This piracy is wrong.
Which is not to say that excuses and justifications couldn't be made
for it. We could, for example, remind ourselves that for the first one
hundred years of the American Republic, America did not honor foreign
copyrights.We were born, in this sense, a pirate nation. It might
therefore seem hypocritical for us to insist so strongly that other developing
nations treat as wrong what we, for the first hundred years of our
existence, treated as right.
That excuse isn't terribly strong. Technically, our law did not ban
the taking of foreign works. It explicitly limited itself to American
works. Thus the American publishers who published foreign works
without the permission of foreign authors were not violating any rule.
The copy shops in Asia, by contrast, are violating Asian law. Asian law
does protect foreign copyrights, and the actions of the copy shops violate
that law. So the wrong of piracy that they engage in is not just a
moral wrong, but a legal wrong, and not just an internationally legal
wrong, but a locally legal wrong as well.
True, these local rules have, in effect, been imposed upon these
countries. No country can be part of the world economy and choose
not to protect copyright internationally.We may have been born a pi-
"PIRACY" 63
rate nation, but we will not allow any other nation to have a similar
childhood.
RC: And in fact, it's even less likely to be appreciated when you've got a moral rights tradition that prevents forms of appropriation that distort the work to the detriment of the author's reputation. All these are situated arguments, made to particular audiences, and they don't necessarily travel. I believe that the kinds of ways that people I've met here are thinking about these issues are in fact so much more sophisticated than the debates we get in North America. And for that reason, I would stop reading Lessig, and stop feeling insulted by a footnote or an offhand comment made there. Instead, start making the more rigorous arguments on the basis of the practices you see, and the ethnographies of those practices, here. We need stronger policy arguments coming from places like India, that are going to have far greater purchase in the rest of the world than the kinds of arguments we see coming out of the United States.
Thank you.
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