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On Copyright and Culture:

Discussion of an Article by Sergei Sokolovskiy

Yuri Berezkin (Peter the Great Museum of Anthropology and Ethnography (Kunstkamera), Russian Academy of Science / European University at St Petersburg, Russia)

Michael Brown (Williams College, Williamstown, MA USA)

Anastasia Ilchenko (University of Tartu, Estonia)

Olga Murashko (Moscow State University / The World of Indigenous Peoples — Live Arctic almanac, Moscow, Russia)

Dimitris Papanikolaou (St Cross College, Oxford, UK)

Nadezhda Pechenina (Information Centre ‘Shoria’ / Russian Association of Indigenous Peoples of the North, Siberia, and the Far East, Kemerovo, Russia)

Dimitris Plantzos (University of Ioannina, Greece)

Marilyn Strathern (University of Cambridge, UK)

9 F O R U M

Sergei Sokolovskiy

Some Stories about Copyright and Culture

Something unusual happened in the Australian summer of 2002: the January numbers of the Canberra press were full of reports to the effect that activists from the Aboriginal Tent Embassy had seized the crest that had adorned the western entrance to the old parliament building, and had declared that the kangaroo and emu that featured on it were their cultural property. The act was timed to coincide with the Tent Em-bassy’s thirtieth anniversary.

Australian legislation does not make the desecration of state symbols an offence in itself. Provided it is your own property by purchase or inheritance, you are free to trample or burn any country’s flag or destroy its national crest. Only if it is not your property are you answerable at law, and then only for criminal damage, as might be the case if you had destroyed a cup-board or a bicycle. You have complete freedom to desecrate or destroy the symbols of any country, even in a public gathering, but not immediately outside the embassy of the country whose crest or flag you have obtained: that would count as a violation of public order.

The theft of the Australian crest was blamed on the well-known activist Kevin Buzzacott, familiar to environmentalists and defenders of Aboriginal rights as Uncle Kev; according to him, the kangaroo and emu were totems of the Arubunna tribe and therefore images of them

Sergei SokolovskiyInstitute of Ethnology and Anthropology, Russian Academy of Sciences,Moscow, Russiasokolovskiserg@mail.ru

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could not be used without permission from the tribe’s elders. Uncle Kev also declared that the Australian airline, Qantas, could not use the famous flying kangaroo that has been the company’s logo since 1944. Activists from the Aboriginal Tent Embassy went to the Supreme Court to declare that copyright on all indigenous flora and fauna, including their images, belonged to the Aborigines and that such images could not be reproduced without the Aborigines’ written consent [Probin 2002].

The Australian courts spent three years considering the case of the abduction of the bronze state crest, an item of Crown property. In April 2005 Buzzacott was arrested for failing to appear at the latest court session. Two days previously he had attempted to remove the emblem from the courtroom, saying it belonged to the Aborigines. The case was concluded three days later, with Buzzacott receiving a suspended sentence of one year’s imprisonment.1

Five years on, another Australian Aborigine — Sol Bellear from the Council of Aborigines of New South Wales — accused the world ice dance champions, Oksana Domnina and Maksim Shabalin, of theft. The Russian duo, who were then in training for the Vancouver Olympics, had appeared at the national championships in St Peters-burg performing a new number entitled ‘The dance of the Aborigines’. ‘This is very insulting,’ said Sol Bellear, ‘we regard it as theft of the culture of the ancient indigenous population, and as one more example of the exploitation of the Aborigines of Australia. These dances might be based on a ceremony intended only for men or only for women. This is not just a misuse of our intellectual property. It is unconditional cultural robbery’.2 The statement was picked up by world news agencies and nearly led to the scrapping of Domnina and Shabalin’s Olympic programme [Wildey 2010].

In fact the dance was very far removed from the real dances of the Australian Aborigines: it was a stylised imitation employing motifs and elements from dances originating among indigenous peoples in various parts of the world, and only the costumes recalled the Aborigines of Australia. Oksana Domnina did write about the Australian Aborigines on 2 November 2009 on her blog (the reference to Australia subsequently disappeared from the blog’s English version).3 Representatives of the indigenous peoples of Canada who

1 Documents relating to the case are available on the website of the Australian Supreme Court at <http://www.courts.act.gov.au/supreme/judgmentsca/buzzacott.htm>.

2 Comments from Australians can be found on the websites of the Australian Courier Mail and Sydney Morning Herald, both of which carried reports of the confl ict on 21 January 2010. These comments in-clude a discussion of the theme of copyright: <http://www.couriermail.com.au/news/national/skat-ers-stole-aboriginal-dance/comments-e6freooo-1225822226740>; <http://www.smh.com.au/opin-ion/politics/russian-ice-dancers-should-rethink-their-routine-20100121-mnwj.html>.

3 The English version of the blog can be read on the English version of Domnina and Shabalin’s website at <http://en.domnina-shabalin.ru/blog/>.

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at the costumes, but after meeting the skaters they gave them tra-ditional red-white-black cloths which they put on after the com-pulsory dance. Shabalin said that the representatives of the Canadian indigenous peoples were very welcoming and wished them success.

A vast quantity of similar conflicts around the defence of various forms of intellectual property — brands, logos, patents, copyright, know-how — can be found in Who Owns Native Culture? [Brown 2004], a book by the American anthropologist Michael Brown, which Pragmatika Kultury publishers plan to bring out in Russian translation.1 For several decades there has been such a concept in international intellectual-property law as ‘traditional cultural expres-sions’ (TCE; otherwise ‘expressions of folklore’), although it has hardly ever been at the centre of Russian political, legal, or scholarly discussion (and therefore lacks an accepted Russian translation). Elements of folk traditions are now issued in the state symbols of many countries, in the trademarks and brands of industrial cor-porations, and in the symbols of public services and institutions, while folk motifs (myths, legends, ornaments, and pieces of music) are used by contemporary poets, writers, artists, and composers. This whole universe of appropriated symbols brings a considerable return to the current owners.

The history of the legal defence of expressions of folklore began not with folkloric texts, rituals, dances, traditional drawings, architecture, costumes, or other craft items, but with song and music, and therefore it is music in particular that has provided a basis for the reconside-ration of existing conceptions of copyright in terms of defending traditional culture. As far as specialists are aware [Dommann 2008: 3], one of the first instances of the legal defence of this kind of folk-lore was an agreement reached in January 1954 between the American recording firm Tempo Records and the Afghan state broadcaster, Radio Kabul. This agreement gave the American company exclusive rights to record indigenous music throughout the territory of Afghanistan. To all appearances it was beneficial to both sides, since Radio Kabul received money and high-quality recordings of local folklore which it could then use in its programmes, while the recording firm received control over two markets: it could serve the music collections of interested American universities and colleges, on the one hand, and on the other it could satisfy Afghan consumers interested in traditional music. There were also plans to use the recordings in television and film production. Here it should be recalled that neither the Berne Convention of 1886 on defending

1 One chapter of this highly interesting book is available in translation on the website of the journal Kriticheskaya massa, published by the same house (No. 4, 2006 <http://www.rruido.com/km_content/index.php.uid=5>).

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literary and artistic works, nor the International Convention of 1952 mentions traditional music as something that can be defended, although composed music is indeed covered by international agreements on the defence of intellectual property. What is more, Afghanistan — then a constitutional monarchy — was not a party to either Convention. In essence the contract was a case of the natio-nalisation of tradition, quite typical for a state engaged in becoming national — something Afghanistan did later than most other states. For anthropologists and historians of culture the interesting points are the employment of the concepts of folklore and tradition in legal practice, and also the functioning of these concepts in the context of new technologies that transforming unique folkloric events into what Bruno Latour, emphasising both fixity and immutability and also the capacity for stereotyped reproduction, has called ‘immutable mobiles’ [Latour 1986].

By the late 1980s the copyright defence of expressions of folklore had become widespread. At the same time, there was an extension of the range of expressions that enjoyed such defence: it now took in not just music and artworks with a firm attribution to a concrete traditional community, but also antiquities whose attribution was at best uncertain: petroglyphs, archaeological finds, and even natural monuments. Many oral expressions of folklore (myths, tales, legends) were protected, and also dances and rituals, tribal names and elements of traditional healing knowledge. Many countries’ laws acquired special acts protecting traditional cultural expressions and regulating their reproduction, use, and multiplication. For obvious reasons it was not just jurists and interested companies that took part in developing law on copyrighting folklore, but also folklorists, anthropologists, museum staff, and leaders of various organisations speaking on behalf of indigenous peoples. For instance, in 1990 in the USA a law was passed entitled the ‘Native American Grave Protection and Repatriation Act’ [NAGPRA 1990]. Under the act, all museums whose collections included the relevant archaeological finds were given five years from the law’s publication to engage in talks with representatives of the first nations and return the objects to the hands of the tribes on whose lands they were discovered. For new finds, a three-month period was set aside for their scientific study after which they had to be handed over to the tribe that staked a claim. Talks between museum workers and representatives of the USA’s indigenous peoples did not always succeed in reaching a compromise. In most cases the period for artefacts to be returned was extended to allow for the construction of depositories on reservation territory; in some, the tribal elders preferred not to have their cultural objects returned; but there were also many cases in which museum objects were returned and lost, because they were used in everyday activities. For instance, representatives of the Hopi Indians declared that all

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cluding the words of their language, must be returned and could not be used by anyone else [Brown 2004: 14–16].

The website of the World Intellectual Property Organization (WIPO), which has existed since 1967, gained a page devoted to traditional knowledge, problems of genetic resources, traditional cultural expressions, and folklore. Traditional cultural expressions were defined by the creators of the site as including music, art, drawings and designs, names, signs and symbols, performances, architectural forms, craft works, and narratives [WIPO]. In 1985 WIPO, together with UNESCO, developed model national laws on protecting expressions of folklore from unlawful exploitation and other damage [UNESCO 1985]. Today WIPO includes 1984 states, among them Russia. In July 2011 WIPO, in conjunction with RosPatent, planned to held a 12-day summer school in St Petersburg whose programme included such topics as intellectual property and biodiversity, traditional knowledge, genetic resources, and traditional cultural expressions [Summer School].

All the same, this kind of protection for folklore is still rather new and remains subject to discussion, not just because authors’ rights are usually asserted on behalf of concrete authors or juridical persons rather than a collective folk ‘author’ that is difficult to define in law, but also because this section of law coexists today with a movement, opposite in spirit, that advocates the free exchange of knowledge and culture — the so-called Creative Commons, active in as many as 80 countries and opposed to the familiar Copyright regime. What is more, it seems strange to place limits on something that yesterday was in common use and belonged to the public.

In connection with the discussion of these competing regimes in authors’ rights, one must clearly remember that in law copyright is not a right but a monopoly. The well-known British historian Lord Macaulay said as much more than 150 years ago, when he addressed the House of Commons during debates on amendments to the law on authors’ rights. The bill aimed to extend the term of copyright to sixty years from the author’s death. In reply Macaulay delivered a speech that was to become famous, and that resulted in the bill’s being rejected by 45 votes to 38. The central point of the speech was the following words:

Copyright is monopoly, and produces all the effects which the general voice of mankind attributes to monopoly […] the effect of monopoly generally is to make articles scarce, to make them dear, and to make them bad. […] It is good that authors should be remunerated; and the least exceptionable way of remunerating them is by a monopoly. Yet monopoly is an evil. For the sake of the good we must submit to the evil; but the evil ought not to last

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a day longer than is necessary for the purpose of securing the good.1

Since the author of expressions of folklore is a collectivity, the people, in this case the monopoly lasts for ever — which must tend to stifle the development of culture.

In an interview with the WIPO journal, Laurence Lessig, one of the people who developed the free licensing regime, explained the growth of Creative Commons as the creation of something intermediate between the former copyright regime and its complete abolition: ‘many people believed in copyright, but did not think their work needed to be regulated as strictly as in accordance with the model where all rights are privatised […] a voluntary system is in essence a license on copying, but it also upholds the values on which the creative environment or ecology are based, where the rules of exchange are not defined by commerce but depend on the ability to share and freely develop the creations of others’ [Lessig 2011: 4]. In his book, Free Culture, Lessig adduces a vast number of cases where copyright and the patenting of inventions, which were introduced to stimulate creativity and defend creative rights, have become barriers to progress and development and have blocked creative and scientific endeavour for decades in various branches of science and technology [Lessig 2004].

Many developing countries, which had suffered from the West’s patent policy in fields such as pharmacology and medicine, were less happy with the course of introducing the market into science, education, and culture, and blocked the introduction of various international agreements under the aegis of WIPO. In response, the Western countries transferred their main efforts in international patenting and licensing to the WTO, where they constituted a majority, and created the General Agreement on Tariffs and Trade (GATT). The Russian government, aspiring to WTO membership, is now pursuing an ever stricter course with regard to copyright and licensing, borne out not only by the introduction in 2009 of a system of obligations for copyright and protection in productions and phonograms [WIPO 2009a; 2009b], but also by the row about the digitisation of library holdings, where the main battle was between WIPO and a group of Russian television and film magnates headed by Nikita Mikhalkov, on the one hand, and supporters of Creative Commons headed by the President of the Association of Internet Publishers, I. I. Zasursky, on the other (interested readers can easily find all the materials and arguments on the Internet).

1 A complete text of this speech is available on <http://www.fullbooks.com/The-Miscellaneous- Writings-and-Speeches-ofx31295.html>. For a Russian translation, see the website of the Moscow Libertarium at <http://www.libertarium.ru/macaulay-ru-002>.

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kiy In this brief account of the problems that we face when copyright is

extended to expressions of folklore and traditional culture, I have not been able to touch on even a hundredth part of the questions that are posed to representatives of the most diverse professional commu-nities, indigenous peoples’ organisations, and society as a whole. Researchers in the field of the social sciences confront this problem not only in as much as it is a direct object of investigation, but also in their capacity as creators and consumers of intellectual property, and also citizens of the state. I hope that a discussion of the questions set out below will permit anthropologists and Russian society as a whole better to understand the complexity of the problems in this area, problems with which Russian society is only just beginning to familiarise itself. These are the questions:

From these stories it is clear that the relationship of ‘culture and property’ is a serious problem. It can perhaps be resolved in law; but that is a matter for lawyers. For us it is important to treat what is happening as an object of investigation, and to understand what is actually going on. What ideas lie at the roots of these conflicts? How is the object of cultural property understood in this connection? How are relations organised between people defending their cultural tradition and the rest of the world?

Why did such conflicts not take place 50 years ago, and what is provoking them now? Is this connected with ‘globalisation’?

In what condition (at what stage of development?) are such conflicts in the national culture in which you work? How seriously are they being studied by social scientists?

What are the possible future developments of such cases, and how significant are they for the discipline in which you work?

References

Brown M. F. Who Owns Native Culture? Cambridge, MA: Harvard Univer-sity Press, 2004.

Dommann M. ‘Lost in Tradition? Reconsidering the History of Folklore and its Legal Protection since 1800’ // Graber C.B., Burri-Nenova M. (eds). Intellectual Property and Traditional Cultural Expression in a Digital Environment. Northampton, MA, 2008. Pp. 3–16.

Latour B. ‘Visualization and Cognition: Thinking with Eyes and Hands’ // Knowledge and Society. Studies in the Sociology of Culture Past and Present. 1986. No. 6. Pp. 1–40.

Lessig L. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. New York: Penguin Press, 2004 <www.free-culture.cc/freeculture.pdf>.

_____. ‘An Interview’ // WIPO Magazine. No. 1. Feb 2011. Pp. 4–6.

1

2

3

4

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NAGPRA 1990. Native American Graves Protection and Repatriation Act <http://www.nps.gov/nagpra/mandates/25usc3001etseq.htm>.

Probin A. ‘The Roo is Taboo, Australians Told. Suit Claims Copyright on Native Animals’ // Herald Sun (Melbourne), 30 January, 2002 <http://www.williams.edu/go/native/rooemu.htm>.

Summer School. WIPO-Russia Summer School on Intellectual Property. St Petersburg, 11–22 July, 2011 <http://www.wipo.int/academy/en/courses/summer_school_russia/index_ori.html>.

UNESCO 1985. Model Provisions on National Laws for the Protection of Expressions of Folklore Against Illicit Exploitation and Other Prejudicial Actions. UNESCO; OMPI/WIPO, 1985.

Wildey A. ‘Figure-Skating Russians Surprised after Dance Offends Abori-gines’ // <http://www.reuters.com/article/ideUSTRE60K50V20100 121>. Accessed 21 January, 2010.

WIPO. ‘World Intellectual Property Organization. Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions’ / Folklore <http://www.wipo.int/tk/en/folklore>.

[WIPO 2009a]. WIPO Copyright Treaty. Feb 5 2009 <http://www.wipo.int/eipolex/en/profile.jsp?code=RU>.

[WIPO 2009b]. WIPO Patent Law Treaty, August 12, 2009 <http://www.wipo.int/wipolex/en/profile.jsp?code=RU>.

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Fig. 1. Uncle Kev with the stolen Australian crest (photo from the Nuclear Free News website <http://www.nuclear-free.com/English/buzzacott2.htm>)

Fig. 2. Russian figure-skaters Oksana Domnina and Maksim Shabalin performing the ‘Aboriginal’ dance (photo from <http://www.smh.com.au/opinion/politics/

russian-ice-dancers-should-rethink-their-routine-20100121-mnwj.html>)

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YURI BEREZKIN

Since the four questions that have been asked are all interconnected, I shall answer them all at once, or at least those of them that I know something about. I cannot, for example, make any judgment about whether such questions are being seriously studied by the social sciences.

The history of mankind is the history of the borrowing of elements of culture by groups of people from other groups of people. Normally culture is supposed to be stable: it is a tradition. But the copying of cultural stereotypes, like the replication of other objects, entails mistakes. If the new variants that arise are viable, they also reproduce themselves, leading to competition between the different variants — the process of natural selection with which we are all familiar. This process is different from biological evo-lution (not counting bacteria) in that changes may arise not only from errors in the copying process but also by means of the borrowing of elements of culture from outside. It is easier to borrow than to invent, and therefore funda-mental discoveries are rare events in human history. In any culture the borrowed element is itself subject to change (or at least its signifi-cance, its ‘value’, as Durkheim would have called it, is) and therefore there is no cultural entropy. The result of cultural exchange is not a universal levelling, but an increase in comp-lexity and diversity.

What is specific to the current situation is that, as a result of a cataclysmic expansion in the networks of communication, contact has been established between cultures with no previous experience of regulating such interactions. While Europeans were filling their museums with ethnographical exhibits from far-away lands, their original creators and possessors remained unaware of what was happening, and therefore there were no difficulties concerning the rights of ownership. However, when the cultures of the ‘fourth world’, as it is now called, gained access to the networks of communi-cation and discovered what was happening,

Yuri BerezkinPeter the Great Museum of Anthropology and Ethnography (Kunstkamera), Russian Academy of Science / European University at St Petersburg,RussiaBerezkin1@gmail.com

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borrowing on the legal basis to which they were accustomed. It is taken for granted that ‘Tribe A’ may not simply make use of an ornament or melody belonging to the neighbouring ‘Tribe B’ — certain conditions have to be fulfilled before that is allowable. This makes it even harder to imagine that their neighbours might take possession of some sacred pipes or human remains from burial sites and put them on general display.

There is no single answer to this problem. It would be naпve to imagine that a general congruity in ideas about values, forms of property, cultural identities, the significance of science and know-ledge, and indeed the meaning of existence, sufficient to allow the development of generally comprehensible and acceptable rules for resolving conflicts over cultural property could be achieved in the foreseeable future. We can only place our hopes on reciprocal goodwill, compromise and common sense. Examples of such compromises are quite numerous. It is not so long ago that a mask kept in a museum in Washington was taken to the bedside of a dying Tlingit nobleman. He died with honour in the knowledge that one of the symbols of his kin was beside him, and then the mask was safely returned to Washington. Both sides were satisfied.

But there have been cases, some of them thoroughly shocking, when priceless anthropological materials have been rendered inaccessible for study and even ‘returned’ to ethnic groups that claimed them even thought they had no real connexion with them, but merely lived on the territories where they had been discovered. Unfortunate precedents of this type are scandalous, but understandable. Representatives of ‘Euro-American’ (or ‘Judaeo-Christian’) culture often feel guilty about the crimes that really were committed by their ancestors long ago against the representatives of other cultures. This feeling does our contemporaries credit, but is only partially justified, since the representatives of non-European cultures behaved no better towards each other. And indeed, if one were to approach the past with the legal and ethical norms of the present day, one would have to condemn practically the whole of humanity in absentia. However that may be, one way of atoning for past injustices has been not merely to acknowledge the values of any and every non-European culture, but at least in part to acknowledge the legal relationships that are characteristic of them. From this point of view, imitating the body painting or dances of the Aborigines without obtaining their formal permission is criminal.

I am quite convinced that the cultural goods of any people ought to be accessible to all. It is not a question of the superiority of one or another set of legal norms, since there is no supreme authority that could pronounce on such a question, nor can there be. What has

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happened is a clash between ‘tribal’ and (to use Mikhaylo Mikhaylov’s expression) ‘planetary’ consciousness. Scholarship is by its very nature international, and therefore the persons engaged in it are more likely than others to have a planetary consciousness. Restrictions placed on the use of cultural goods are like tollbooths on the boundaries of mediaeval feudal estates: in the short term small groups of people gain by them, but in the long run everybody loses.

At the same time, the use of other people’s ‘logos’ should not be theft: the sources should be cited. This is no different, in principle, from the reproduction of illustrations in a work of scholarship. If you have taken a figure from someone else’s article, then naturally you must refer to it; but to require a formal letter from the editorial office giving permission to reproduce it on every occasion, or to forbid visitors to photograph the exhibits in a museum, would be to impede the dissemination of knowledge and retard the progress of science.

Russia’s position on access to cultural goods is by no means the worst, in comparison with some other countries, and not because we are in advance of them, but because of our underdeveloped legal consciousness and habit of living by unwritten rules. This is not a good way to live, but attempts at universal regulation will also lead nowhere. The only way to achieve anything is by negotiation and agreement. Even when we encounter an aggressive determination to ‘hold on to what we’ve got’, we should not give way to pressure. The values of our culture with its libraries and museums, expeditions and research institutes are as deserving of respect as any others.

MICHAEL BROWN

Cultural Property, Control of Meaning, and Paths to Recognition

Sergei Sokolovskiy correctly pinpoints emerging ideas of cultural ownership as a significant global preoccupation. In common with many obser-vers of this phenomenon, he is struck by the frequency with which discussions about cultural heritage gravitate to the idioms of intellectual property — in particular, ideas based in copy-right and patent law. I have come to believe, however, that the idioms of intellectual pro-perty are dominant largely because they offer a convenient way to talk about anxieties that are broader and deeper than simple disputes over the commercial value of artistic creations or technical innovations.

Michael BrownWilliams College,Williamstown, MA USAmichael.f.brown@williams.edu

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kiy Consider a recent news story. On May 20, 2011, the New York Times

reported that a lawsuit had been filed by a tattoo artist against Warner Brothers Entertainment for the company’s use of a tattoo design on the face of an actor in the film The Hangover, Part II [Cohen 2011a]. The design, which the artist had years earlier inked onto the face of the boxer Mike Tyson, was described as ‘tribal’ in origin. It was clearly inspired by, if not directly copied from, the tattooing tradition (tā moko) of the Maori people of New Zealand. A month later, the same newspaper announced that Warner Brothers and the artist had reached an amicable settlement [Cohen 2011b]. No details were disclosed, but one may presume that the artist received financial compensation for the unauthorised use of ‘his’ design.

A notable feature of this tempest in a pot of tattoo ink is that neither the presiding judge in the legal case nor the journalists covering it thought to question how an American artist could plausibly assert a copyright interest in a design that he admitted to have lifted from an indigenous cultural tradition. Media outlets in New Zealand duly reported Maori complaints, but these had no apparent effect on legal processes in the United States [‘Tyson’s Moko’ 2011]. With respect to U.S. law, then, the Maori people and their religious and artistic traditions are invisible.

Although public discussion of this case emphasised its implications for intellectual property law, I am convinced that Maori protests had less to do with financial injustice or ownership than with the control of meanings and, more broadly, the struggle to achieve political recognition.

Meanings. For the Maori, tattoos transmit specific messages.1 The right to use individual designs is determined by genealogy and other social attributes. When non-Maori people use these same designs for aesthetic reasons or to satisfy their sense of personal identity, they disrupt the tattoos’ socially embedded meanings. The problem of corrupted or diluted meaning is hardly unique to the indigenous world: in the commercial arena, registered trademarks give manufacturers greater control over the meaning of their brands. The latter is strictly an economic concern, whereas the desire of traditional communities to maintain control over their most potent symbols is felt to be a matter of cultural coherence and even cultural survival.

Indigenous communities are following multiple paths to regain authority over symbols that they insist are theirs alone. Some communities have used trademark law to protect iconography from appropriation by outsiders [Brown 2003: 83–87]. Some are experimenting with ‘geographical indications’ that identify com-

1 For an extended discussion of this issue, see [Pritchard 2000].

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mercially valuable products with a specific place. Others seek comprehensive control of symbols under the rubric of indigenous sovereignty, although it is by no means clear how sovereignty, as such, can prevent ideas and symbols from crossing cultural borders. Probably the most common strategy is to embrace secrecy. The latter is having a significant impact on anthropologists, whose profession requires discussion of ritual practices and other forms of traditional knowledge increasingly defined as secret or ‘sensitive’[Christen 2006].

Recognition. Many scholars have noted the link between recent conflicts over cultural property and the politics of recognition, the latter arising from the demand of indigenous peoples that their continuing presence be acknowledged by the nation-states to which colonial history has consigned them.1 Although the global campaign for indigenous recognition is pursued using various rhetorical frames — the language of human rights, demands for repatriation or reparations, assertions of sovereignty, among others — property claims have proven to be especially influential. Property is a robust and malleable concept supported by highly developed legal machinery. With the near-disappearance of socialist governments in the late twentieth century, capitalist ideas of property have made themselves felt in almost every corner of the world. At the same time, intellectual property has gained global salience that it formerly lacked, raising difficult questions for indigenous and non-indigenous citizens alike. How is it, we ask, that private corporations are free to turn local knowledge into legally protected property over which they exercise monopoly rights for decades? Why can a pharmaceutical company lay claim to parts of our genetic endowment without our knowledge or consent? What can we do to protect the cultural commons from what seems to be a mad scramble for the privatisation of knowledge?

The widespread disquiet generated by aggressive expansion of intellectual property has created an opening that indigenous peoples have been quick to exploit to advance their political ends. They have been helped, too, by the growing interest of nation-states in recovering symbolically potent items of material culture that, owing to the vagaries of conquest and colonialism, are in the hands of distant powers. If Greece, Italy, Scotland, and other nations can clamour for repatriation of objects that embody cultural patrimony, shouldn’t the Hopi, the Seneca, or the Quechua be free to do the same?2

1 For a recent example, see [Skrydstrup 2009].2 For a concise analyses of the emergence and expansion of the legal concept of cultural property, see

[Coombe 2009] and [Carpenter, Katyal, and Riley 2009].

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American cultural property in all of its varied forms have yet to produce dramatic changes in property law. In part this is because the U.S. is relatively decentralised. For historical reasons too complex to explore here, the U.S. has also been wary of efforts to bureaucratise or regulate culture, which is why the federal government has never had a cabinet-level post equivalent to the ministries of culture found in many other nations. The most important U.S. law affecting the status of Native American cultural property is the Native American Graves Protection and Repatriation Act (NAGPRA), implemented in 1990. NAGPRA requires most federal agencies, as well as museums and repositories that receive federal monies, to repatriate human remains, grave goods, sacred objects, and ‘items of cultural pat-rimony’ to Native American communities that request their return and which can prove descent or prior ownership. The law is primarily intended to undo more than a century of grave-robbing and allow federally recognised Native American nations to rebury their ancestors in a dignified manner. NAGPRA says nothing about Native American intellectual property, and its implications for indigenous cultural property, construed broadly, are limited. Nevertheless, the law has helped to foster new, collaborative partnerships between museums and Native American communities, partnerships that seem likely to continue long after the disposition of items covered by NAGPRA has been resolved. It has also caused archives to develop new policies that take into account Native American sensitivities about the circulation of information about certain traditional religious practices. In that sense, NAGPRA represents a pivotal moment in the process of recognising the moral and political claims of the country’s indigenous citizens.1

In sum, the growing importance of cultural property is an instance of what philosophers call an ‘overdetermined’ phenomenon, something that has multiple causes and implications. It draws on growing anxiety about cultural identities in a world that seems, at least in some respects, increasingly borderless. It can be seen as a reaction to the predatory patent and copyright practices of the corporate world, especially in the areas of biotechnology and media. It draws strength from parallel efforts to redress the grievances of indigenous peoples in settler democracies (e.g., Canada, Australia, and the United States) and campaigns to repatriate items of cultural patrimony to nation-states who successfully argue that the objects were improperly alienated from them.

1 As with all legal regimes, NAGPRA’s apparently simple language can generate considerable complexity. For details on complications that arise in the law’s implementation, see, among many others, [Brown, Bruchac 2006] and the articles in a recent special issue of the journal Museum Anthropology [Colwell-Chanthaphonh, Nash 2010].

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Where this process is headed is anyone’s guess. A dystopian vision is offered by John and Jean Comaroff in their book Ethnicity, Inc. [2009]. They fear that cultural identities and culture in general are fast becoming commodities to be trafficked for economic gain. More optimistic assessments come from bureaucrats at UNESCO and similar institutions, who are reinventing heritage as a resource that can be legally defined and rationally managed in a manner akin to electricity or water. Many anthropologists and museum professionals voice the opinion that repatriation of human remains and impor-tant items of material culture has dramatically improved relations with indigenous communities and offered new possibilities for collaborative research. Others — and I count myself among these — celebrate increased attention to cultural heritage and issues of social justice while wondering how the tendency to treat culture as a form of group property can be reconciled with an ethic of free, open discussion and constructive dialogue across cultural boundaries. Sorting out the virtues and pathologies of property-based ideas of heritage is likely to remain one of the biggest challenges facing anthropologists and folklorists in the coming decades.

References

Brown M. Who Owns Native Culture? Cambridge, MA: Harvard University Press, 2003.

_______, Bruchac M. ‘NAGPRA from the Middle Distance: Legal Puzzles and Unintended Consequences’ // Merryman J. H. (ed.). Im-perialism, Art, and Restitution. Cambridge: Cambridge University Press, 2006. Pp. 192–217.

Carpenter K., Katyal S., Riley A. ‘In Defense of Property’ // Yale Law Journal. 2009. Vol. 118. Pp. 1022–5.

Christen K. ‘Changing the Default: Taking Aboriginal Systems of Accountability Seriously’ // World Anthropologies Network. 2006. Vol. 2. Pp. 115–26.

Cohen N. ‘On Tyson’s Face, It’s Art. On Film, a Legal Issue’ // New York Times. 20 May 2011a. Section A. P. 1.

______. ‘Tattoo Artist Settles Tyson Dispute With Hangover 2’ // New York Times. 21 June 2011b <http://mediadecoder.blogs.nytimes.com/2011/06/21/tattoo-artist-settles-tyson-dispute-with-hangover-2>.

Colwell-Chanthaphonh C., Nash S. (eds.). Museum Anthropology. 2010. Vol. 33 (2). (Special issue commemorating twentieth anniversary of NAGPRA.)

Comaroff J. L., Comaroff J. Ethnicity, Inc. Chicago: University of Chicago Press, 2009.

Coombe R. ‘The Expanding Purview of Cultural Properties and Their Politics’ // Annual Review of Law and Social Science. 2009. Vol. 5. Pp. 393–413.

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kiy Pritchard S. ‘Essence, Identity, Signature: Tattoos and Cultural Property’ //

Social Semiotics. 2000. Vol. 10 (3). Pp. 331–46.

Skrydstrup M. ‘Theorizing Repatriation’ // Ethnologia Europaea. 2009. Vol. 39 (2). Pp. 54–66.

‘Tyson’s Moko Draws Fire from Maori’ // New Zealand Herald. 25 May 2011 <http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1& objectid=10727836>.

ANASTASIA ILCHENKO

The Concept of Property and Modern Folklore Studies

Sergei Sokolovskiy’s article raises issues which are relatively new to contemporary anthropo-logy — not because it is only recently that anthropology has paid them any attention, but because they are issues which are per se of recent origin, be it in anthropology or in other dis-ciplines.

For example, folklore has traditionally been considered as the oral art of the people, without an author. It is comparatively recently that folklorists gave up the idea of authorship (until then the absence of an author had been regarded as one of the essential characteristics of folk-lore). Key to the discussion on whether author-ship was or was not a necessary attribute of real folklore were the works of Alan Dundes and Richard Dorson on ‘fakelore’, or fabricated folklore, which Dundes nevertheless proposed should be included within the purview of modern folklore studies [Dorson 1973; 1977: 4; Dundes 1989]. Now it turns out that works of folklore may have an author, and that this does not make them works of literature, but does mean that they belong to a particular individual. In such a case, a work of folklore is no longer part of the common heritage of the people, it has a definite owner. Reminiscences and life histories and other texts whose authorship can easily be established are now studied as part of folklore studies [Bertaux 1981; Geertz 1988].

The concept of variability is, unlike that of authorship, still regarded as important as an

Anastasia IlchenkoUniversity of Tartu,Estoniaanastasiya.ast@gmail.com

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attribute of folklore; discussion has more than one been provoked by the works of Lauri Honko [Siikala 1992: 30; Honko 2000]. However, it turns out that we cannot accept all this at the same time: if folklore is variable, may have an author and may be intellectual property, the result is a contradiction. If we agree that, for example, an anecdote (in the sense of a humorous story about some occurrence in life), or a piece of gossip has an author, then the anecdote is the author’s intellectual property and may not be passed on without his or her agreement. In such a case the anecdote is no longer folklore, since if we have no more right to pass it on, the existence of ‘an extensive corpus and variation’ [Honko 2000] is impossible. This may be a very rough example, but it does show that one should not be over-zealous, even in the defence of intellectual property.

There are two theories in modern folklore studies to account for the fact that a particular folkloric text (an anecdote, a song, a riddle or a game) may be encountered in different parts of the world. One is polygenesis, according to which the text was created more than once, at different times, in different places and by different people. Despite this two texts which exist independently may be so strikingly similar that they appear to be variants of a single work. Polygenesis is explained by the assertion that all cultures and societies pass through the same stages of intellectual and cultural development. Con-sequently people are predisposed to express the same things in the same way. According to another interpretation, human nature is the same for everybody, and universal psychological conditions express themselves in the creation of the same forms by the same means. Finally, there is the idea that all people describe similar experiences in similar ways. This means that similar works of folklore may arise independently of each other as a result of a universal human mentality. How then can one determine who was the first to invent a particular example of folklore, and is there any point in doing so?

Besides polygenesis there is the theory of monogenesis, according to which each element of folklore was created once and thereafter served as a model for the creation of supplementary variants. According to this theory, all versions of the same type are manifestations of human interaction and are all related to each other, since they stem from a single original. Imagine that the concept of folklore as protected intellectual property had appeared several centuries ago; where then would be the Aarne-Thompson-Uther index of folk tale types? The folk tales would have been considered intellectual property, and their distribution prohibited. On the other hand, if a work of folklore were created, for example, in America, and then, thanks to the flexibility of its subject and the constant migrations of people, spread all over Europe, would it be possible to claim American rights to it?

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kiy Folklore is a natural phenomenon which, unlike literature or archi-

tecture, it is hard to control. If an architect must often obtain other architects’ approval for the style of his building, so that it fits in with other buildings around it, or if a writer is always to one degree or another in accord with the literary currents of his time and, even if he is part of the creation of something new in the literature of his country, always starts from the old (as Pushkin progressed from romanticism to realism), folklore is an absolutely spontaneous and unregulated phenomenon, and the plain man never stops to consider whether to adopt a drinking game popular in the USA just because he does not own the Russian rights to it. Take beer bingo for example, a game which combines bingo and alcohol. I do not know the origins of this game or which country it came from, but it is clearly exploited for commercial purposes — many pubs in Estonia have beer bingo evenings and profit by them, and this probably does not happen only in Estonia — so perhaps the country that holds the rights to it should assert them?

It remains unclear, then, what should be done with the numerous folklore archives, since their ‘exhibits’ have been used by many generations of folklorists in writing their books and articles, which have in turn been used by other folklorists. Should each of them be asked not to divulge it, or required to refer to the original source, and in such a case from whom should permission to publish be sought: from the collector or from the informant? The folklorist might, after all, be using the information for commercial purposes: he might receive a fee for the book in which he used it.

Many states have attempted to solve this sort of question relating to intellectual property and folklore. For example, in 2000 a bill was presented to the Ghanaian parliament proposing the creation of a Folklore Council to manage the popular culture of the peoples of Ghana.1 In the event that any person, not being a Ghanaian citizen, were to make use of any portion of the country’s folklore for any purpose not covered by the principle of fair use, he or she would have to seek the Council’s permission. Similarly, if a Ghanaian citizen were to make use of a work of folklore for commercial purposes, he or she would have to pay a royalty at a rate determined by the Council. Any monies raised from the use of folklore would be banked and used for the purposes of preserving and propagating the folklore and art of the indigenous population.

The reaction on the part of Ghanaian authors and artists was not long in coming. In written comments on the copyright bill, performers,

1 The source for this is an article by A. O. Amegatcher, the former head of the Ghana Copyright Offi ce. The article was fi rst presented as a working paper after discussion at a session of the Legal Committee of  the International Confederation of Societies of Authors and Composers, 17–18 May 2001 in Lausanne.

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organising themselves as the Committee on Misgiving of Music Industry Practitioners, condemned as unjust that Ghanaians them-selves were not exempt from charges for the use of their own folklore, which was their ancestral heritage. Another difficulty that counted against the bill was that of establishing authenticity. Not all the folklore of Ghana is typical only of that country, much is shared with its neighbours, and much was borrowed so far back in the past that it would be hard to determine to whom the rights to it belonged and whether a particular work was exclusively Ghanaian property.

In addition to the aforementioned drawbacks in the definition of folklore as intellectual property and the application of copyright to it, one must agree with the conclusions drawn by Sergei Sokolovskiy when he quotes Lord Macauley’s speech, which although a century and a half old has not lost its significance: a monopoly is to a great extent an evil, both for supply and demand. And, as Sokolovskiy rightly concludes, ‘Since the author of works of folklore is a collective subject, the people, in this case the monopoly is an everlasting one, which cannot help but have a suffocating effect on cultural development.’ Indeed, even if we were to determine, for example, what part of contemporary folklore forms part of purely Russian culture (though it is hard to tell how this could be done, since in our case the culture is widespread over the territories of the Ukraine and Belarus, and also amongst many emigrants in countries very far away from Russia), establish property rights over Russian folklore and exact a fee for its use, or at least require the filling in of a multitude of forms (since the Russian bureaucracy is already the heroine of countless humorous stories), would this not be harmful to folklore studies? The fact that Russian folklore is available for study by foreign scholars (even though they might receive income from publishing books about it, or post-doctoral grants in order to study it) is purely positive: the ‘injection’ of new ideas into Russian folklore studies, the ideas of people who were educated outside Russia, had access to different libraries and were taught according to different methodo-logies is exceedingly useful to contemporary scholarship. If this sort of knowledge exchange were to be complicated by financial or bureaucratic questions, there is no saying what might happen.

A by no means insignificant problem in the context of intellectual property is that of ethics and anonymity. According to the Code of Ethics of the American Anthropological Association, an anthro-pologist must determine in advance whether his informants desire to remain anonymous in any publications or research papers or whether, on the contrary, they desire that their names should without fail appear in the studies as the providers of the information. Researchers should explain to participants in their projects the potential outcomes of their choice, and also that, despite the efforts of the researchers themselves, it is possible that the informants might be recognised,

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kiy or that, on the contrary, their names might not appear.1 Further-

more, the anthropologist must obtain his informant’s consent to take part in the research.2 In some countries this takes the form of a mandatory written agreement; for instance, until recently obtaining written consent from informants was normal practice for Estonian folklorists. These requirements seem absolutely right and proper; the reality, however, is quite different. I have more than once come across lectures and reports by folklorists about manifestations of popular culture which are to all intents and purposes secret, when the informants have agreed to the folklorist’s presence on condition that all the information should remain ‘between themselves’. The folklorist has taken clandestine photographs and then presented the whole ‘secret’ at international conferences with a certain pride: ‘Look what I’ve done!’ On the one hand, this is unethical, but on the other, it may be that without this folklorist’s presentation no one would ever know about these things, which may be of immense significance for folklore research, for example, connecting two cultures which were previously believed never to have been in contact.

In this case, and in others, codes of ethics need to be more flexible, more specific and more detailed. For example, they say nothing about the study of folklore on the Internet. It is assumed that if a user has left a message on a forum, he is willing for this message to become communal property, but whether the community in this case is the same as the scholarly community is another matter: is the user willing for his personal family experiences, war memoirs, or stories about maternity hospitals to be discussed in scholarly articles and at folklore symposia, when he has no idea that this is going on? In this case we ought to get the user’s permission, but it very often happens that he appears on the forum only once, and there is no means of getting it. Then, if we exclude him from the investigation, this affects the whole result: his exclusion is artificial, but if we retain the data that we got from him, we breach the code of ethics. In the end the easiest solution is to stop doing any research, so as not to infringe anyone’s rights and not to produce work that is incomplete.

Until we have a solution to such problems, and clear and generally accepted answers to the questions that have been asked, we can

1 ‘A. Responsibility to people and animals with whom anthropological researchers work and whose lives and cultures they study.

3. Anthropological researchers must determine in advance whether their hosts / providers of informa-tion wish to remain anonymous or receive recognition, and make every effort to comply with those wishes. Researchers must present to their research participants the possible impacts of the choices, and make clear that despite their best efforts, anonymity may be compromised or recognition fail to materialize’.

2 ‘Anthropological researchers should obtain in advance the informed consent of persons being studied, providing information, owning or controlling access to material being studied, or otherwise identifi ed as having interests which might be impacted by the research’.

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hardly consider the problem of ‘culture and property’ to have been solved. It is not merely a question of research methodology, but also of results, and the level of contemporary folklore studies as such: for example, until we are thoroughly sure what belongs to which culture and whether indeed it is possible for folklore to belong to a single culture, we cannot possibly speak of the creation of rights to such material.

Bibliography

Bertaux D. (ed). Biography and Society. The Life History Approach in the Social Sciences. Beverly Hills: Sage, 1981.

Dorson R. M. ‘Is Folklore a Discipline?’ // Folklore. 1973. Vol. 84. No. 3. Pp. 177–205.

_____. American Folklore. Chicago: University of Chicago Press, 1977.

Dundes A. ‘The Fabrication of Fakelore’ // Dundes A. Folklore matters. Knoxville: University of Tennessee Press, 1989. Pp. 40–56.

Geertz C. Works and Lives: The Anthropologist as Author. Cambridge: Polity Press, 1988.

Honko L. (ed.). Thick Corpus, Organic Variation and Textuality in Oral Tradition. Helsinki: Finnish Literature Society, 2000. (Studia Fennica Folkloristica 7).

Siikala A. ‘Lauri Honko at 60’ // Kvideland R. et al. (eds.). Folklore Processed in Honour of Lauri Honko on his 60th Birthday 6th March 1992. Helsinki: Finnish Literature Society, 1992. (Studia Fennica Folkloristica 1). Pp. 25–31.

OLGA MURASHKO

Traditional Lore is not Easily Preserved as Property, But it Does Need Protection

I shall also begin my answer to Sergei Soko-lovskiy’s questions with a story, because the problems that arise in connection with tra-ditional lore can only be understood with reference to specific examples.

My story is connected with the transformation of the production and sale of souvenirs of Northern peoples. Only twenty or twenty-five years ago splendid artefacts made by craftsmen from the indigenous populations of the North used to be sold at the airports of our northern and far eastern cities. They were also sold in the souvenir departments of the local department stores. They included items of national costume:

Olga MurashkoMoscow State University / The World of Indigenous Peoples — Live Arctic almanac,Moscow, Russiamurashko.olga@gmail.com

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kiy reindeer-skin boots and coats, hats, decorative items in fur, leather,

wood, bone and stone, dolls in traditional costume, model sledges, amulets, jewellery and musical instruments. They were remarkable for their authenticity and collective authorship: they were produced by ‘the regional (or village) lifestyle house’. In the villages one could watch these items being made in the lifestyle house or in the workshops. The process, from the initial processing of the material to the final product, was a genuinely collective one. The workers were talented members of the indigenous populations of the North. The range of images and the actual models for the artefacts were made by local artists. Of course there were conflicts between the makers and the bureaucracy: the range of products that might be offered for sale had to be authorised somewhere, and the money the craftsmen received for their work was far less than the prices for which it was sold. But in the final analysis they were original works by different craftsmen, and every example of a particular sort of article was different. The actual workshops provided work and an income for artistically gifted inhabitants of distant northern villages.

At the beginning of the 1990s I observed a change in the range and quality of the souvenirs produced. There was less variety, the quality was deteriorating, and authenticity disappearing. In the shops one could no longer find out which village a particular item came from. When I asked about works from particular village workshops that I knew about, the salespeople would sometimes reply frankly ‘Who would go all that way nowadays to get them? They’re made by craftsmen in the town.’ These ‘craftsmen’, as a rule, had no connexion with the peoples of the North. At the same time the flow of tourists, particularly from abroad, to the major cities of the North was increasing, and there began to be special flights and sea cruises. With time various limited companies and plcs producing souvenirs appeared in the towns of the North and the Far East, but these souvenirs were not a source of enchantment, but rather of disenchantment for the tourists. More than once I have seen large groups of Japanese tourists in Petropavlovsk-Kamchatsky, Vladi vostok or Khabarovsk asking their guides where they could buy ethnographic souvenirs and getting no satisfactory answer. What they were offered as ethnographic souvenirs bore no resemblance to them. What the tourists wanted were originals, and not fakes, but in the meantime the village craftsmen had lost their jobs and any opportunity to sell their work and support themselves by their craft.

There is an obvious infringement of both producers’ and consumers’ rights in this sphere. The same thing is happening in the market for ‘traditional folk remedies’ and similar services. There are ‘ethnic’ symbols on the packaging of various so-called dietary supplements, and the instructions refer to ancient ethnic traditions, but at the

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same time, as the people who sell them admit, these ‘traditional’ supplements, creams and ointments are made ‘here in the town’. In the spa towns of the Altai and Sayany I have seen dozens of home-made posters at the hotels or private houses advertising ‘traditional’ medicinal teas or herbal steam-baths, but none of these have anything to do with the indigenous populations. The healing practices of certain ‘urban shamans’ judging by their advertisements, are modified versions of methods and external attributes borrowed from the shamans of different ethnic groups, by whom they claim to have been taught, but it is not clear by what right they use them.

The same thing is happening in the sphere of ethnographic tourism. These services are monopolised by firms from a different ethnic background, who make up their own programmes and ‘ethnographic’ entourage very different from traditional culture. Representatives of the native populations are invited to come and sing and dance for the tourists in folk ensembles, or drive their reindeer so that the tourists can watch them in comfort, and are paid a pittance.

Traditional lore is also used in more ‘exclusive’ spheres than souvenirs, folk medicine and ethnographic tourism. Reindeer herding in the North requires a whole range of skills and methods based on traditional knowledge. This includes knowledge of the landscape and of the climate and flora of the region, in order to find seasonal pastures, know how to choose the best routes to drive the reindeer and how many of them to take along each one, to avoid the dangers that attend their movement, and also knowledge of breeding and veterinary medicine. In the Soviet period the reindeer were collective property, and each band of herdsmen made use of its own collective traditional knowledge to make a success of reindeer husbandry, which was encouraged by awards, prizes and diplomas. It goes without saying that there were conflicts during this period between the bureaucracy and experienced reindeer herdsmen. But when the herdsmen went off with their beasts hundreds of kilometres away from the administrators of the collective and Soviet farms, traditional experience was proved right.

When the Soviet farms were privatised, in some parts of the Russian Federation the herds became the property of hereditary reindeer-herding communities, and in these places we can observe a rise in the numbers of domestic reindeer. In other places the principle of ethnic reindeer husbandry was abandoned, and the reindeer, with the profits from the sale of their meat, hides and antlers, were sold to new owners, who either exploited the traditional knowledge of hereditary reindeer-herders, or ignored it and hired workers from outside. Experience has shown this sort of business to be short-lived. Numbers of reindeer have declined rapidly, the traditional genetic resources in the field of reindeer husbandry are spoilt or lost, the indigenous

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kiy reindeer-herders lose their employment and their knowledge is not

passed on.

In order to avoid such a situation in Norway, a reindeer husbandry law was passed in 1978, according to which only persons of Saami descent may be reindeer herders and only they may own brands and reindeer-herding businesses inside the reindeer pasture zone established by the same law.

In Russia a bill on northern reindeer husbandry, which would have given priority to native reindeer-herders in the ownership of the herds, was proposed several times during the middle of the 1990s, but in the course of discussion it was for some reason transformed into a bill ‘for state support for reindeer husbandry’, from which the ethnic element was removed, and then dropped altogether. At present reindeer-herding in Russia is regarded as just another form of animal husbandry, without any ethnic component.

I wanted to used these examples to extend the field of investigation of the problem of ‘culture and property’ to the traditional lore of indigenous peoples, and to show how essential it is that it should be solved.

It is absolutely clear that the situation of conflict with regard to the rights to the use of traditional lore arose at the time when indigenous communities were being introduced to the market economy, and has become more acute as a result of globalisation and the information society. Fifty years ago indigenous communities had no access to the modern mass media and simply could not know that their traditional lore was being exploited for profit by third parties.

The conflict in the area of the rights to the use of traditional lore and expressions of culture for commercial purposes has arisen over the last twenty years in Russia for exactly the same reasons.

Where pseudo-ethnic souvenirs, folk medicine, ethnographic tourism and the reference to ethnic traditions to promote the sale of goods is concerned, this conflict has so far been expressed as offended bewilder-ment and inarticulate dissatisfaction on the part of the indigenous peoples. Their representatives cannot understand how anyone could claim that arbitrary stylisations were the national artefacts of any people, call wooden or stone artefacts, debased and distorted in comparison with authentic works, by the names of their gods, or use as medicine pseudo-ethnic preparations which bear no relation to the traditions of the peoples named in their promotional material.

Indigenous people do not know what to do when they encounter such cases, because there is no area of law and no standards which could form the basis for a legal protest against the exploitation of traditional law or the deformation of a particular ethnic culture.

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A seminar organised in April 2011 by the Association of Small Indigenous Peoples of the North, Siberia and the Far East of the Russian Federation and dedicated to the problem of the protection and preservation of cultural heritage and traditional lore in the work of organisations of small indigenous peoples provided an opportunity for representatives of the indigenous peoples of the North, Siberia and the Far East to question representatives of Rospatent, who were present at the seminar, about what should be done when their rights were infringed. L. N. Simonova, the deputy head of the Department for International Co-operation, and N. V. Buzova, the deputy head of the legal department of the Federal Institute for Industrial Property, both of whom are regular participants in the sessions of the WIPO Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore, attempted to answer their questions. They spoke in detail about the work of the committee and the state of Russian legislation on the subject. The representatives of the indigenous peoples understood from their lectures that legislators have not yet found a means of solving the conflicts enumerated above. If the indigenous peoples have no registered trade mark or patent on their products, it is impossible to prove priority or that and products with similar names or purposes made by other peoples are borrowings from or distortions of their own tradition.

At the same time, Simonova and Buzova made a number of recommendations at the seminar which were very valuable from the Association’s point of view. It seems to me that these recommendations partly answer Sokolovskiy’s third and fourth questions: what the scholarly community can do to help achieve a civilised solution to the problem of the protection of the rights of bearers of traditional knowledge.

I give these recommendations here, with the agreement of L. N. Si-monova, in the form of a quotation from the manuscript of the still unpublished article by Simonova and Buzova intended for the almanac ‘The world of indigenous peoples — the Living Arctic’.

Work towards a means of preserving traditional lore may be conducted along several pathways in parallel.

1. Work on documenting traditional lore and the genetic resources and folklore connected with it: compiling registers, lists and databases.

To this end work must be done on recommendations and guidelines for documenting traditional lore; these should determine the aims for which databases should be created and the quantity and quality of the information which should be entered into them. In addition, the keepers or bearers of the lore (the

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methods of obtaining it, and of compiling questionnaires for obtaining necessary information, sources of funding, and so on.

The development of these guidelines or recommendations may be based on the project prepared by the WIPO secretariat within the framework of the committee’s work. These guidelines were developed for keepers of traditional lore.

In addition, the experience of countries which have already undertaken such work, such as India, which has created a data-base of Indian medicine, should be taken into account.

2. It would be a useful step to compile a list of visual or verbal markers used by traditional communities in the manufacture of traditional artefacts or services (for example in the tourist business). This list could be used in assessing the registration of trademarks in order to prevent improper use of such markers. It should be understood that this recommendation would require amendments to national legislation.

3. It is necessary to study the question of the use of such means of individualisation of items of intellectual property as protected designations of origin (PDO) and geographical indications (GI). PDOs are intended to identify traditional goods.

All the work in this list will require expenditure, including fi-nancial expenditure, therefore before it is carried out the indi-viduals and organisations who will be involved in carrying out the work must be identified, as must sources of funding.

The majority of organisations of small indigenous peoples are aware of the importance and urgency of work on documenting traditional lore. This work is interesting for ethnographers, or at least for me. In my opinion, the success of such work will depend on close co-operation between scholars and the community organisations of the indigenous peoples.

It seems to me that the circle of questions and possible research topics connected with the problems of preserving and protecting traditional lore and cultural expressions might be significantly expanded.

The following questions are interesting and important for me:

How do the indigenous peoples themselves understand these two contradictory contemporary processes: attempts at an ‘ethnic authorisation’ of traditional lore and expressions of culture, on the one hand, and the simultaneous creation by the indigenous peoples themselves of theatrical and souvenir forms of cultural expressions, significantly different from the authentic local models, with a view

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to their successful presentation and commodification? Is there a problem regarding the collective or individual authorship of these theatrical and souvenir forms of cultural expressions? How do the indigenous peoples themselves solve it or propose that it should be solved? How do the indigenous peoples themselves perceive and evaluate the process of transformation of traditional manifestations of culture, beginning with the folklore collectives active in the Soviet period, the work of craftsmen in the ‘lifestyle houses’ and village workshops mentioned at the beginning of this article? What is their consciousness of the processes of the transformation of traditional knowledge and skills in the traditional use of natural resources over the period of contact with Russian colonists, and particularly during the Soviet period, when some members of the indigenous population received specialised agricultural training which has also become part of their fund of knowledge?

My own experience of working in the field with indigenous po-pulations at the places where they have traditionally lived has convinced me that traditional ethnic lore exists in a multiplicity of local forms and is apparently perennial: it may lie dormant until it is needed and reborn at times of historical, social and economic crisis. This is demonstrated by stories told by members of indigenous peoples about how they survived during the Second World War or how they are surviving now, mobilising the traditional lore of their forefathers. Answers to the questions I have enumerated above are needed by the indigenous peoples themselves in order better to understand the historical dynamics and properties of their traditional lore, by scholars in order to expand scholarly conceptions of the field, and by government in order to take well-founded, well-informed administrative decisions about the preservation and pro-tection of the traditional lore of indigenous peoples.

DIMITRIS PAPANIKOLAOU

Acropolis on the Head

With the two consecutive EU / IMF bailouts and the effective blacklisting of Greece (and, with it, anything Greek) by financial organisa-tions and the popular presses of Europe, public opinion in Greece has felt, during the last year, a pressure never experienced in recent memory.1

1 The recent economic crisis, to be sure, is pluridimensional and its effect on Greek society, culture and national self-perception (not to mention national politics) will take some time to settle and be meas-ured. My anecdotal mention here is made with the full awareness of its incidental and fragmentary nature. [This was written in 2011, but has not lost its relevance as of 2013. Eds.].

Dimitris PapanikolaouSt Cross College,Oxford, UKdimitris.papanikolaou@mod-langs.ox.ac.uk

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kiy While politicians were ostensibly running out of solutions, a popular

argument made its appearance in the Greek coffee shops, but also in less intimate public fora such as the internet. The argument went like this: ‘Greece should exert copyright on all Greek words used in other languages, as well as all the ancient Greek texts; they should pay copyright for the language, for performances of ancient theatre, for editions of ancient Greek philosophy. And then we will see if Greece would be in debt or not’. Often articulated in a self-consciously mocking tone, it was not really meant to suggest any viable solution — I personally have not met anyone in Athens who said this with a straight face. It was instead a performative assertion of anxiety over withering national sovereignty and eroding social cohesion, or rather, an expression of sheer desperation.

This example is useful, I think, in order to help reframe our discussion about the ‘ownership of culture’. It reminds us that, instead of asking who owns what kind of culture and up to what extent, it would be more fruitful to ask who makes an ownership claim and when. That is, what is the agency behind a collective copyright demand, in what circumstances is this made, and based on what type of ideological and conceptual backgrounds is this demand presented as legitimate.

To put it more technically, it seems to me quite futile (and perhaps self-defeating, as the examples in Sergei Sokolovskiy’s article show well) to simply look for legitimate owners of culture, especially if with culture we understand such broad categories as ‘folk culture’, ‘folklore’, ‘traditional symbols’ and ‘heritage’. What we should be looking instead are regimes of ownership and their genealogies, historical materialities and ideological contexts.

This also explains why ‘conflicts about cultural property’ are seen by many as ‘quite recent’. Actually, they look recent, because the very form of the question, ‘who owns culture’, the semiotic value of each and every word in it — who, owns, culture — belongs to a discursive genealogy that also includes the conflict potentially arising out of such a question.

Evidently, recent claims of cultural ownership, such as the ones referred to by Sokolovskiy, betray multiple debts: to romantic ideals of national culture and authenticity but also to modernism’s conceptualisation of tradition as being rebuilt in the present, ‘an amalgam of the timeless and the temporal together’; to the institution of nationalism but also to postnationalist and neo-nationalist agendas shaped by late modernity and the new media; to the development of international copyright agencies in the twentieth century, the rise of popular culture and mass culture industries, but also to the long process of establishing ‘folk culture’ as a privileged expression of authenticity, rootedness and immediacy. I am sketching a very rough and generalising picture here, but I am doing this in order to stress

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that all these processes are intertwined and roughly contempo-raneous: this larger development does not simply provoke, or help understand, modern claims to cultural ownership and copyright; it includes them as one of its central aspects.

My corner of the world and professional interest has, of course, its own fair share in debates over cultural ownership. After all, a foun-dational stone of the Greek nation can be seen to have been based around an ownership claim over classical Greek heritage, as Michael Herzfeld [1986; 1987], among many others, has so influentially shown. This cluster of ownership claims over classical Greece still performs centrally located ideological and cultural work in modern Greece, providing official Greek identity, cultural politics and national ideology with its most recognisable springboard.1

Naturally, some globally iconic modern debates over cultural ownership have originated from Greece, and are still making headlines in the country, influencing politics and national public discourse. Think of the debate over the Return of the Parthenon Marbles from the British Museum to Greece (its more famous stage initiated in the 1980s by the then Minister of Culture, Melina Mercouri, an internationally renowned actress known for her role in the 1960 film Never on Sunday); or the debate over the use of the name Macedonia and its ethnonational, ethnosymbolic and ethno-genealogical repercussions.

However, as both Eleanna Yalouri [2001] and Yannis Hamilakis [2007] have shown, cultural ownership claims such as the one over the Acropolis (its symbolic weight, the reproduction of its image, the movement and ownership of its parts), are neither homogeneous nor made once and for all. They are, instead, a multithreaded discursive construction made and developed over time, taking different turns, articulated with diverse, sometimes oxymoronic, strategies, and, in the end, used to support an array of interests and positionalities often not so visible on the surface discursive network of the original ownership claim.2

Neither the identities and identifications at stake in a cultural copyright claim, nor their politics, remain solid and transparent. They are porous, complex, fluid. They change, adapting to new situations and adopting new versions of authenticity, ownership and belonging. Hence, to stay with the same example, what started

1 A look at the new Greek passport suffi ces to prove this point. Each page contains a hologram of a re-cognisable aspect of Greek culture, in 8 our of 10 cases this is an ancient Greek artefact or an archaeo-logical site. The Parthenon is shown twice, including in the centrefold, in those middle pages where one can also see the pins that hold the booklet together. Talking about the sutures of identity…

2 All these issues have recently resurfaced in discussions around the new Acropolis museum. See [Plant-zos 2011], and the debate in the same journal.

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1980s, has over time evolved as a postcolonial argument against cultural looting, before it was transformed, in recent years, into a claim about ‘world heritage’, ‘wholeness’ and the need to ‘restitute’ the integrity of Acropolis as a world heritage monument. A claim of cultural ownership made on behalf of a nation state, has thus mutated into a debate about cultural politics and power, before taking the shape of a call in the name of cultural integrity, global heritage and transcendental aesthetics.

Having said that, a recent re-turn of analytic interest towards the micropolitics of identity and everyday life, has reminded us even more forcefully that the surface discursive network of a cultural ownership claim should be read for what it is: the visible top of a much larger iceberg. This is how I read, for instance, Michael Herzfeld’s recent contribution to A Singular Antiquity, the fine volume edited by Dimitris Damaskos and Dimitris Plantzos on Modern Greece’s multilayered claims over its classical past [2008]. Herzfeld’s article, if I read it correctly, urges anthropologists and cultural analysts to contextualise larger cultural models by turning to the specifics of everyday identity claims, the everyday battle for identitarian property and belonging. A lot of analysis has been devoted to the way classical heritage has been claimed and negotiated in Modern Greece, but, Herzfeld says, often this had the result of diverting attention from the ‘social architectonics of Greek everyday life’. Performing the needed change of focus himself, Herzfeld moves in the same article, from analysing the official ‘patterning of both collective and individual self-presentation on a Classical Greek model’, to talking about modern Greek queer sexual identities and the dynamics of living in the uneven Greek urban landscape.

He seems to be asking us to forget the ancient demos and turn to the multiplicity of Greek identities in the making (including queer and non-normative identities in general); forget the Acropolis and turn our gaze to the polykatoikies, the big blocks of flats of the Greek cities. Again, if I understand it correctly, what Herzfeld points towards is the acknowledgment of a mistake we make every time we analyse large claims to heritage, cultural property and propriety. We underestimate the impact that smaller everyday claims also have in the texture of modern life, and the interactive and symbiotic relations these smaller claims develop with the larger regimes of cultural authorship, belonging and control.

Forgetting ownership

Based on the arguments I have presented so far, I would like to suggest the need for a revision: we need to rethink the ways we look at claims of cultural ownership and control, and review the

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instruments we use in order to contextualise them. We could, as an alternative, forget ownership altogether — I mean, forget it as the central focus of our investigation – and concentrate instead on a) the larger discursive economies within which claims of ownership are made and b) the types of strategies used to make these claims (but also to antagonise, subvert, or diversify them).

Drawing from my work, and being extra-schematic, I could single out three key economies that shape cultural production, change and circulation in the later twentieth century. They are the ones providing the fertile ground for a number of developments, including the tendency to assert cultural copyright, but also its opposite, the willingness to create ‘copyright free’ zones and ‘copyright liberalist’ agendas. These larger economies can be described as the economy of translatability, the economy of transferability and movement and, last but certainly not least, the economy of exchangeable authenticity. Most ownership claims of the type we are discussing, spring out of an environment dominated by the larger post-war moves to intensify cultural translatability (both within the nation state and across nation states), to control (enabling, channelling and/or disabling) the movement of people, images and cultural products, and to create domains within which reified images of ‘authenticity’ could be experienced in packaged and prized portions.

Mapping these larger economies of translatability, transferability and exchangeable authenticity, offers a relative advantage. Instead of seeing assertions of cultural copyright only in the context of nationalism or ethnic antagonism, we can review them alongside strategies of global and local culture industries, the cultural poetics of authenticity, the creation and circulation of stereotypes, the genea-logies of cryptocolonialism and the reactions it provokes, the emergence of new financial zones and investment trends, the impact of new industries (tourism, ‘ethnic’ cultural products, new media) and so forth. More importantly, perhaps, an effort to map these larger economies allows us to assess cultural ownership claims not only in the same analytical framework as their larger political, economic and cultural context, but also in the more concrete (yet also more fluid) contexts of everyday life.

If with larger economies I am trying to underline here the need to further contextualise claims of ownership, it is also to their modality that I think we should turn, that is, to the types of strategy used in order to assert such claims. One of these types of strategy is that of exceptionalism, the argument that one cultural formation, expression, or artefact, is exceptionally valuable, and an exception in the realm of human culture (and, thus, exceptional claims can be made about and around it). Nevertheless, exceptionalism is a dis-cursive strategy used not only in cultural ownership claims – it stands

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even, popular culture analysis. This is why it is analytically useful to see how exceptionalism is instrumentalised in each case, but also the continuities it forges between these diverse spheres. An analysis of the structures of exceptionalism in cultural claims could put us in a better position to follow, for example, the analogies and continuities between a claim of ownership over a cultural artefact (eg. Greek ownership over the Acropolis as a unique and transcendental symbol), a national culture claim (eg. Greek culture is unique as heir to the classical spirit), a political claim (eg. Greeks should be rewarded for being the guardians of a unique culture), and a natio-nalist ideological platform (Greeks are right; the others are wrong).

But, again, what I find to be most intriguing in this genre of analysis, is that it can then turn its attention to the everyday, and see how exceptionalist strategies play out in that context too. I have in the past been fascinated observing how overgrown claims of exception change context and lettering as they are being used to support small gestures of everyday life; how they are explained or ridiculed by people, undermined while also, at other levels, strongly held. This is the moment when the Parthenon turns into a bottle for ouzo drink sold in the streets of Plaka, becomes the cheap TV background for a right-wing TV commentator, or is worn as an elaborate hat by an exuberant drag queen singing the songs of Melina Mercouri in an Athenian gay club. These are all, of course, very different gestures of appropriation, ironic overappropriation or banalisation. Yet the challenge is to treat them not as bad copies of a ‘serious’ and ‘agenda-setting’ original ownership claim, but to see them all as characterised by similar strategies (even though put to slightly different uses) and trading in the same ecology of identity and culture.

It is not only more fun: seeing the Parthenon worn as a hat under a glittering disco-ball (from the loudspeakers: bouzouki and Mercouri singing in French ‘je t’invite, je suis Grecque’), you realise that the ownership claim over the iconic monument had never been more real.

References

Hamilakis Y. The Nation and its Ruins: Antiquity, Archaeology and National Imagination in Greece. Oxford, 2007.

Herzfeld M. Ours once more: Folklore, Identity and the Making of Modern Greece. New York, 1986.

______. Anthropology through the Looking Glass: Critical Ethnography in the Margins of Europe. Cambridge, 1987.

______. ‘Archaeological Etymologies: Monumentality and Domesticity in twentieth century Greece’ // Plantzos, D. and D. Damaskos (eds), A Singular Antiquity: Archaeology and Hellenic Identity in Twentieth-Century Greece. Athens, 2008. Pp. 43–54.

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Plantzos D. ‘Behold the Raking Geison: the new Acropolis Museum and its Context-Free Archaeologies’ // Antiquity. 2011.Vol. 85. Pp. 613–25.

Yalouri E. The Acropolis: Global Fame, Local Claim. Oxford, 2001.

NADEZHDA PECHENINA

Everything ethnic — traditional beliefs and opinions, traditional lore connected with the traditional way of life and use of natural resources by the indigenous peoples, their folklore and the objects of their material and spiritual culture – should be an object of cultural property. The more evident points of conflict in the present period of the capitalisation and stratification of society are the many instances of the acquisition and exploitation of traditional lore, language, culture and ritual or domestic objects for the purposes of profit and self-enrichment by persons, including scholars, without any connexion with the representatives of the culture in question. Frequently a different understanding is imposed, resulting in a dis-torted interpretation.

Different researchers define traditional lore from different standpoints. In the opinion of the ethnographer Olga Murashko the category of traditional lore includes:

— knowledge of a given territory and its biological resources; the make-up of the populations of wild and domestic animals, the species and properties of wild and cultivated edible and medi-cinal plants; the system of seasonal and spatial disposition of permanent or working settlements, sites of temporary habitation, and nomadic routes;

— knowledge of how to exploit different parts of the territory and different climatic and natural zones;

— knowledge of seasonal forms of hus-bandry, self-government and agricul-tural self-management ensuring su-stainability in the use of renewable natural resources and the transmission

Nadezhda PecheninaInformation Centre ‘Shoria’ / Russian Association of Indigenous Peoples of the North, Siberia, and the Far East,Kemerovo, Russianpechenina@mail.ru

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including the traditional agricultural calendar, methods of hunting, gathering and making things, skills in making tools and domestic utensils, work prohibitions, and the system of removing certain parts of the territory from agricultural use as sacred spaces which it was prohibited to visit, means of demarcation of resources and production, rules for bringing up children […]

Since all peoples and their local populations have different histories and habitations, the traditional lore of each and every group of indigenous people is unique, being linked to the peculiarities of a particular historical and geographical land-scape [Znachenie traditsionnykh znanii 2007: 3].

Many material goods of cultural value were handed over by small indigenous peoples for no reward, or taken from them by force or by deception, and are now the property of various museums or private collections far away from the places where the indigenous people live and are inaccessible to most of them, which is a source of mistrust and tends to generate a negative attitude on the part of many ethnic groups.

For example, after the political repression of the Shor people in Kemerovo Province in 1939, there are no more Shor textbooks, books in the Shor language or Shor national costumes, and their family distinctions and totems have been completely lost. To see the genuine Shor costumes of their kinsfolk in the Kunstkamera and make drawings of the ornament, they now have to pay a fee! (But in the old days one could immediately tell who any Shor person was by the ornamentation of his costume: where he came from, what seok (lineage) he belonged to, how many children there were in his family, and so on.)

We may suppose that the leaders and representatives of small indigenous peoples are taking tentative steps towards protecting their cultural rights.

Under socialism cultural goods were public property and under state protection. In the era of globalisation and reform a real threat of disappearance hangs above all over small ethnic groups as the out-side world becomes more aggressive. Cultural goods have become a source of profit for the non-indigenous population.

Russian membership of the World Trade Organisation has also had a negative impact and has led to irreversible processes and negative consequences for small indigenous peoples and ethnic minorities in general.

It is known that recent years have seen the beginning of research in this field conducted with the participation of representatives of

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indigenous populations and their associations, its preliminary results are being discussed, and a basis is being found for the right of intellectual property on the part of indigenous peoples as a parti cular sort of right. It is essential to explain this to the aboriginal populations and provide them with legal education.

The preservation of the traditional culture and individuality of small indigenous peoples such as the Shor may be achieved by establishing a special legal framework and the determination of mechanisms for its protection. There is a danger that, because of hypocrisy and double standards at all levels of government towards the small indigenous peoples of the North, Siberia and the Far East of the Russian Federation, even if a law is introduced to protect the intellectual property and cultural rights of indigenous peoples, many of its articles will be enforced only on paper, like many other legal norms. Many processes are irreversible, and with the closure of schools with few pupils, the far-flung Shor villages are fated to disappear and the people will be forced to leave, while it is only in the villages that traditional husbandry and traditional practices and lore can survive. It is well known that when traditional occupations die out, the traditional lore dies with them, and traditional Shor lore is still to this day largely undescribed.

Among the younger generation of Shor people there is still a vague notion of the strict taboos that once operated, but they are condemned to oblivion, even those relating to the treatment of fire or presence in sacred spaces. As the elders depart this life, they take their unique and priceless knowledge with them.

References

Znachenie traditsionnykh znanii dlya ustoichivogo razvitiya korennykh naro-dov: posobie po sboru, dokumentirovaniyu i primeneniyu traditsionnykh znanii dlya organizatsii korennykh narodov [The Significance of Traditional Knowledge for the Sustained Development of Indi-genous Peoples: A Guide to the Collection, Documentation, and Implementation of Traditional Knowledge for the Organisation of Indigenous Peoples] / Murashko O. A. (ed.). M.: no publisher given, 2007. <http://batani.nichost.ru/joom/index2.php?option=com_docman&task=doc_view&gid=10&Itemid=37>.

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Owning the past, controlling the future: Cultural heritage and the politics of identity

In the early years of this century, Andreas Huyssen, Columbia University Professor of Comparative Literature, estimated that ‘[n]o doubt, the world is being musealised, and we all play our parts in it. Total recall seems to be the goal. So is this an archivist’s fantasy gone mad?’ [Huyssen 2003: 15]. A widespread trend towards the musealisation of the present through the preservation of the past could not go unnoticed across the globe in the last years of the twentieth century: old buildings and historic sites, events and immaterial ‘cultural resources’ or ‘com-modities’ were re-invented into the present as historical landmarks, loci of collective memory, monuments of national, ethnic or even localist pride. This marked a shift from ‘history’ — largely left to the ‘experts’ in the academia and state-controlled research centres — to ‘heri-tage’ — pretty much everybody’s business. ‘Heritage’ is related to inheritance. As a term it expresses a notion of belonging, and it evokes the idea of community, be that national or local. The shift from history to heritage, from the certainty that the past is controlled by an academic discipline to the possibility that it might, instead, be shared as a collective ex-perience, has marked a new, bottom-up approach to culture and its management, as well as new ways of managing cultural economics: the spread of tourist consumerism, the adoption of new leisure life-styles, and the globalisation of pleasure and learning meant that local cultures were re-negotiated at large and that new opportunities for cultural distinction were presenting themselves. A cultural El Dorado, so to speak.

1. Why is new ‘cultural property’ constantly invented? Cultural display re-enforces national and communal ties. It confirms the community’s historical significance, its importance as a world-wide agent of culture. At the same time, it seems

Dimitris PlantzosUniversity of Ioannina,Greecedplantzo@cc.uoi.gr

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to be tied to economic growth, especially when other local economies are threatened with extinction, mostly affected by the same globalised market that turned local culture into a popular commodity in the first place. The idea of the world as a picture, as an exhibition of itself, is not new; it goes back to the eighteenth century, with private collections and museums being considerably older [Mitchell 1988; Dicks 2003]. The advent of nationalism meant that ‘national’ cultures had now to include ‘their’ people so that they could learn to view the material and immaterial remains of ‘their’ nation’s past as part of their own newly forged identities. Displaying culture became thus a project striving to construct national discourse and chart national topographies, confirm identities and re-enforce national ties, inscribing the nation’s locality onto the bodies of its subjects (what Arjun Appadurai has called ‘the production of natives’: [Appadurai 1996: 178–199]). Inventing cultural property became therefore an exercise in nation building. More to the point, it became essential in safeguarding the nation’s survival.

Greece owes its existence as a modern nation-state to the neo-classical fantasy — part Orientalist, part utopian — nurtured by its western friends, pretty much the same way Siam (present-day Thailand), though never colonised as such, was given borders that were colonially determined based on a triple factor of census — map — museum as identified by Anderson (1993; see [Thongchai Winichakul 1994]). Such ‘buffer zones’ have been described as ‘crypto-colonies’, deploying the same cultural strategies involving the past and its management as those observed in the colonies proper [Herzfeld 2002]. This serves a double objective: reminding on the one hand the world at large that the country is ‘still inhabited’, as well disciplining the national subjects at home. As new ethnic groups keep emerging, demanding recognition of their status as independent national entities as well as the territorial consummation of this recognition, new items of cultural property are ‘discovered’, re-invented, revived and promoted.

This is not the end of the story, however. As social cohesion within the nation-state might be affected by structural problems such as the recent international economic crisis, new ways of claiming cultural identities are invented, even against the hitherto unquestioned supremacy of the nation itself. A recent uprising of the local population in the Greek town of Keratea, a few km away from Athens, against the construction of a sanitary landfill, created havoc for many months, involving daily clashes of local ‘rebels’ with riot police, the throwing of thousands of file bottles and even sabotaging motorways and other public facilities. What is interesting is that the so-called ‘Keratea kouros’, a statue of a youth made in the sixth century BC and discovered in 1893, was widely broadcast by the local ‘partisan committees’ as a symbol of their town’s

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kiy resistance against the oppression of the state. The fact that the

artefact in question is housed in the central national museum in Athens is pointed out by the people of Keratea as a violation of their patrimonial inheritance. (It should also be noted that the community in Keratea does not claim not to belong to the national body; they present themselves not as an ethnic minority, which in any case they are not, but as a local community safeguarding its patrimony against its colonisation by the central state). Deploying strategies borrowed from the globalised counter-globalisation movements, such as the use of the internet, the ancient statue was put forward as an emancipatory device, a self-evident argument of cultural authenticity, and a means of achieving a decentred version of modernity. In this case, the neo-classical policies of the central state are inversed, the state is accused of colonising the local past, and the local community is attempting a re-colonisation of its own cultural heritage in order to substantiate its claims of independence (at least on a moral scale).

2. Why now? ‘Globalisation’, ‘postcoloniality’, ‘subalternity’ have become the buzz words in cultural studies for some time now, seemingly providing the answers to every question. I would have thought that these phenomena, and the way they have become theorised in the last thirty years or so, are good descriptions of ‘the state we’re in’ though not necessarily viable explanations of its historical course. And ‘the state we’re in’ is of course the nation-state , modernity’s favourite offspring and postmodernity’s supposed victim. Globalisation – the immense expansion of world com-munication as well as the newly established supremacy of a world market — is usually thought to swallow the independent nation-state whereas in fact it needs it in order to enforce its strategies. Inter-national economic agreements and foreign affairs policies are in need of the nation-state in order to be implemented. And as many historians were observing already in the late 1990s, ‘[w]ith all the calumny it has earned, it may be the only political structure that can protect the people of the third world from the totalitarian system that oligolpolies establish — ironically, through the massive state power of the advanced nations’ [Kapur 1998: 193].

In many instances, cultural patrimony is used by countries in the periphery of the West, be they former colonies such as Egypt [Colla 2007], or ‘crypto-colonies’ as Greece, in order to compensate for ‘national shortcomings’, real or imaginary. Greek demands for the return of the Elgin marbles are a case in point: abducted from Athens by members of the western elites infused with the neo-classical spirit of dilettantism, the ‘marbles’ are now housed in London, in the metropolitan museum par excellence, where they are displayed, alongside archaeological remains from the entire world, as objects of world culture as well as documents of Britain’s imperial might,

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now heavily subdued.1 The Greek campaign for the return of the Parthenon / Elgin marbles has often acquired a noticeable sense of postcoloniality, as Greece seems desperate to affirm its cultural supremacy against the constant questioning by its allies of its efficiency as a modern state [Plantzos 2011]. Heritage is thus deployed as a weapon not against globalisation or colonialism, but against a metropolis which appears to be monopolising modernity.

Described as cases of peripheral (post)modernity [Buell 1994], these developments are the result of ‘incomplete’ — or merely inadequate — modernisation, where modernity is injected from the top down in the form of narratives constructed by colonialism, Orientalism etc. Such ‘always already postmodern’ cultural situations (as dubbed by Buell), idiosyncratic or peripheral as they may be, have been produced by an effort to come up with a modernity for the periphery of the western world, in order to reshuffle hitherto accepted time- and place-frames by means of ‘re-centring’ the globalisation flow (cf. [Iwabuchi 2002]).

At the same time, as the example discussed above illustrates, the indigenous nature of culture is exploited in the construction of subaltern pasts circulated by minorities within the national body in order to react against the supremacy of the state. Perceiving the nation-state as an obedient servant to the forces of globalisation, such groups attack its integrity by undermining its cultural authority. Ironically enough, this very trend is itself globalised, part of a (third) worldwide emancipatory move against western modernity and the state’s metropolitan, centrally deployed and controlled nationalism [Appadurai 2001].

3. The view from the (crypto-) colony. Since the nineteenth century Greek society has forged a multi-focal relationship with Greece’s past, and archaeology, as a discipline as well as a public discourse, is being under persistent re-evaluation and re-interpretation. Multiple historical narratives are constantly being deployed and these can only be studied through interdisciplinary projects open to the multiplicity of the phenomena they study. Archaeology, both as an academic discipline and a state institution, has been an essential nation-building, identity-forging agent in nineteenth – twentieth century Greece. As recent studies have shown [Hamilakis 2007; Damaskos, Plantzos 2008] Greece, as a typical modern nation-state of the second generation, undertakes its own archaeology as a means of surviving in a rapidly changing world system and — ultimately — claiming new kinds of centrality in it. Such undertakings include

1 The sculptures are now in Room 18 of the British Museum, London. For a discussion of their history and opposing views of the controversy around them, see <http://www.britishmuseum.org/the_museum/news_and_press/statements/parthenon_sculptures.aspx>, and <http://www.theacropolismuseum.gr/default.php?pname=History&la=2> [Eds.].

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kiy non-academic, unsolicited approaches to the past, its study and

interpretation. To this end, local memory — rehearsed, revived, or invented — may be offered as an alternative history, one that seems more appropriate in respect of the multifarious challenges local communities face, from national politics to globalisation. Institu-tional archaeology (and history) is therefore expected to validate, if not legitimise, the canon of monuments, events, narratives etc forming the particular community’s working cultural memory. At the same time, institutional archaeology is evaluated itself according to the extent it caters for the community’s particular needs regarding collective memory (or oblivion).

4. The predicament of cultural studies. In his 1988 book entitled The Predicament of Culture, James Clifford criticised Edward Said and his Orientalism for upholding a simplistic duality between an oppressor-West and an oppressed-East, the latter still keeping remarkably silent ([Clifford 1988: 255–276] on [Said 1994 (first published: 1979)]; cf. [Turner 1994]). Scholars have made considerable attempts since then to rescue social anthropology and archaeology from this kind of binary discourse, turning to centrifugal narratives, apparently not controlled by the colonialist centres. Today most of us are happy with the idea that non-western ways of life can also be shown to be contingent fictions and that the postcolonial world is not necessarily bound to a perpetual consumption of modernity. Still, some old problems persist: if nineteenth century disciplines such as anthro-pology and archaeology were in fact deployed on behalf of the West in order to colonise the rest of the world, how can we accommodate them in postcoloniality? How can we deal with the fact that the moment we speak of another culture — indigenous, pre-modern, postcolonial, subaltern, developing, advanced or whatever — we set its colonisation in motion?

To put it bluntly, if Said (writing at Columbia University) can be found to have orientalised the Orient, and Anderson (Cornell University) can be accused — as he has been — of imagining the nation on behalf of the national states he studies, should we not accuse Appadurai (formerly University of Chicago, now based in New York) of attempting to colonise the social imaginary of his country-folk back home? Who has the authority to discuss identity? Is Herzfeld (Harvard University) orientalising Thongchai Winichakul (University of Wisconsin) when he talks of ‘crypto-colonies’ and is the latter not initiating a self-orientalising process when he talks of his country’s emergence as a modern nation-state? (To make matters worse, Anderson calls Thongchai’s book ‘brilliant’, and makes extensive usage of its central thesis in the revised edition of his Imagined Communities [Anderson 1991: 163–185]). The present author has been accused by a fellow-Greek colleague of a ‘discomfort […] toward [his] national identity’, a position assuming he would

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welcome ‘a global(ised) identity’ instead [Fotiadis 2008] and by an eminent British scholar of anti-Hellenism unbecoming to a Greek ([Snodgrass 2011] in response to [Plantzos 2011]). Is this a crisis of the discipline or merely a bunch of scholarly egos running amuck?

Coming to terms with a culture that is composite, non-linear, centrifugal, multi-vocal is the challenge we are now facing. Realising that it is not enough to expose (other) peoples’ communities as ‘imagined’ or their traditions as ‘invented’, and admitting that we, as scholars of culture, are at the same time the colonisers as well as the colonised, would allow us to faire better in an environment that is turning hostile against authoritative discourses of an ostensibly pedagogical nature. The ‘aboriginal’ activists discussed in Sergei Sokolovskiy’s paper, the ‘rebels’ of Keratea and so many other ‘minorities’ around the globe — ethnic, cultural, economic — resort to violence in order to express the sort of Foucauldian frustration Edward Said understood so well: how to enforce one’s politics of identity in a world that now knows (because we, cultural historians, tried so hard to make it abundantly clear) that cultural identities are, in fact, forged.

References

Anderson B. Imagined Communities. Reflections on the Origin and Spread of Nationalism. London; New York: Verso, 1991 (2nd revised edition).

Appadurai A. Modernity at Large. Cultural Dimensions of Globalization. Minneapolis; London: University of Minnesota Press, 1996.

_______. (ed.). Globalization. Durham; London: Duke University Press, 2001.

Buell F. National Culture and the New Global System. Baltimore; London: The Johns Hopkins University Press, 1994.

Clifford J. The Predicament of Culture. Twentieth Century Ethnography, Literature, and Art. Cambridge, MA: Harvard University Press, 1988.

Colla E. Conflicted Antiquities: Egyptology, Egyptomania, Egyptian Modernity. Durham; London: Duke University Press, 2007.

Damaskos D., Plantzos D. (eds.). A Singular Antiquity: Archaeology and Hellenic Identity in 20th c. Greece. Athens: Benaki Museum, 2008.

Dicks B. Culture on Display. The Production of Contemporary Visitability. London: Open University Press, 2003.

Fotiadis M. ‘Review of Damaskos and Plantzos 2008’ // Cambridge Archaeological Journal. 2010. No. 20: 1. P. 155–6.

Hamilakis Y. The Nation and Its Ruins: Antiquity, Archaeology, and National Imagination in Greece. Oxford: Oxford University Press, 2007.

Herzfeld M. ‘The Absent Presence: Discourses of Crypto-Colonialism’ // The South Atlantic Quarterly. 2002. No. 101. P. 899–926.

Huyssen A. Present Pasts. Urban Palimpsests and the Politics of Memory. Stanford: Stanford University Press, 2003.

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kiy Iwabuchi K. Recentering Globalization. Popular Culture and Japanese

Transnationalism. Durham; London: Duke University Press, 2002.

Kapur G. ‘Globalization and Culture: Navigating the Void’ // F. Jameson, M. Miyoshi (eds.). The Cultures of Globalization. Durham; London: Duke University Press, 1998. P. 191–217.

Mitchell T. Colonising Egypt. Cambridge: University of California Press, 1988.

Plantzos D. ‘Behold the Raking Geison: the New Acropolis Museum and Its Context-Free Archaologies’ // Antiquity. 2011. No. 85. P. 613–25.

Said E.W. Orientalism. New York: Vintage Books, 1994 (2nd revised edition).

Snodgrass A. ‘Soft Targets and No-win Dilemmas: Response to Dimitris Plantzos’ // Antiquity. 2011. No. 85. P. 629–30.

Thongchai Winichakul. Siam Mapped. A History of the Geo-Body of the Nation. Honolulu: University of Hawai‘i Press, 1994.

Turner B. S. Orientalism, Postmodernism and Globalism. London: Routledge, 1994.

MARILYN STRATHERN

I am delighted to have the opportunity to respond to this article. My specific knowledge in this area is largely confined to events of an earlier decade when I was involved in a collaborative study with Eric Hirsch and other colleagues [Hirsch, Strathern 2004]. The study (1999–2002) was undertaken in Papua New Guinea, an independent and self-governing Pacific nation. This was at a time when, in response to an initiative of the World Trade Organisation, the PNG parliament was enacting intellectual property rights (IPR) legislation, while members of its Cultural Commission and others were simultaneously involved in de-veloping, under the auspices of WIPO, a Pacific-wide Model Law for the protection of traditional knowledge and expressions of culture.1 This is now part of the history of international bodies to which Sokolovskiy alludes.

Like others I have some general knowledge of the field. For instance, in response to question (3), anyone from the UK would probably point

1 Papua New Guinea was among many states faced with international pressure to protect outside invest-ment through intellectual property provisions. In the wake of the 1994 WTO agreement on TRIPS (Trade Related Aspects of Intellectual Property Rights), it honoured its obligation to introduce legisla-tion on copyright and patents in 2000.

Marilyn StrathernUniversity of Cambridge,UKms10026@cam.ac.uk

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to national holdings of antiquities collected from outside the UK that have been under constant pressure of demands for repatriation. These frequently give rise to well documented discussion and have been the subject of much critical commentary from within and outside the museological world. Rights of possession are not the same as rights of reproduction, with which IPR is concerned, but claimants do not necessarily make the same distinctions between different kinds of appropriation as holders of the material do. Australian Aboriginal groups, for example, have been among those who have pressed museums in Britain to return, in their case, not cultural property as such — indeed not property at all from their point of view — but their ancestors and relatives held in skeletal form. While the UK has its counterparts to NAGPRA, which addressed First Nation peoples (Native Americans) in the US, an important class of UK claims come from overseas. This does not mean that minority communities in Britain do not have concerns; these have been raised, for example, in objections to historical exhibitions about the slave trade. Information on these matters is generally available. Within Papua New Guinea, it is worth adding, the National Museum tries to keep at bay the predations of overseas art dealers. But this gets us into the arena of illicit trade.

The following is informed, then, by ideas circulating at the time that the newspaper-reading Papua New Guinean public was made aware of intellectual property (indeed, ‘intellectual, biological and cultural property’, see [Whimp, Busse 2000]). Intellectual property issues were turning around the way in which people who spoke about such things spoke about cultural property. Up to that time, it had been regarded as a matter of scheduling ancient monuments and precious pieces of ‘heritage’. It now became a matter of asserting rights to and seeking to preserve a whole range of material and immaterial artefacts and types of knowledge variously under-stood as tradition (modes of transmitting knowledge) or custom (with the PNG inflection of present day practices). The notion of ‘culture’ that passed into general discourse was freshly linked to the notion of ‘property’.

It is in the detail of some of the attendant discussions that interest lies for the anthropologist. I therefore focus largely on one issue that was of concern in Papua New Guinea, namely how to think about culture as custom, that is as something living in the present whose reproduction is taken as essential to human flourishing. I go outside PNG, as will be seen in a moment, but only because some of the thinking at this time was informed by an overseas, albeit neighbouring, example. Indeed the story is left largely in the hands of two key Papua New Guinean academics who were involved in IPR policy making, drawing on accounts already published [Strathern 2006a; 2006b].

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kiy What follows is divided very roughly into responses to questions (1)

and (2). As far as question (4) is concerned, the implications for the discipline of social anthropology fall into two main camps. First are all the issues raised by the ethics of information-collection that receive a special twist when information comes to be regarded as property, cultural or otherwise. Second is what anthropological knowledge can contribute to the interpretation of events. The first is important, but not taken up here; I hope my concern with the second will be evident throughout my remarks. As to the future, others will be in a better position than myself to comment, but one arena that was already evident more than a decade ago was the position of contemporary Papua New Guinean artists and musicians in relation to the ancestral origins of their own creativity. It is touched on briefly below. Whether conflict arises will depend much on how relation-ships are managed.

What can be learnt from Aboriginal Australia

It is intriguing that Sergei Sokolovskiy starts off with an example from Australia, since it was a comparable — and very famous — Australian case more than a decade earlier that Lawrence Kalinoe brought to the discussions. Kalinoe, a prominent Papua New Guinean lawyer, was trying to encourage a broad approach to the upcoming legislation; among other things he sat on the National Intellectual Property Rights Committee while legislation was being formulated. His interest was in how cultural property might in the future be handled, that is, once copyright legislation was in place. The case also throws some light on what may have been behind Buzzacott’s action.

Briefly, an Aboriginal artist, Yumbulul, challenged the Reserve Bank of Australia for reproducing on its ten dollar note an image of the ‘Morning Star pole’ that he had carved and painted; it was on display in the Australian Museum (see e.g. [Barron 1998; Blakeney 1995; 2000]). There were two circuits of action here. One was a legal circuit. The bank used the design quite legitimately under a sub-licence granted them by an Australian agency administering reproduction rights in Aborginal art; the agency in turn had obtained an exclusive licence from Yumbulul himself with respect to the copyright he held in the decorated wooden pole. However, Yumbulul went to court to dispute the original licence, complaining that he did not really have copyright to dispose of. (Against the artist’s will, the Australian Federal Court hearing the case in 1991 upheld the appropriateness of copyright as a property relation between the Aboriginal artist and his carving of the sacred emblem, validating the subsequent licence.) Yumbulul’s court action was the hinge between the first and a second circuit. The second circuit concerned his relations with his clan

1

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‘elders’ (Galpu from Yolngu), who claimed that this reproduction by the Bank was a desecration. The principal person at fault was the artist himself: he had been granted the right to carve the pole, but he was obliged to ensure that the pole would not be used or reproduced in a demeaning way. He had certainly not been granted an absolute right as an individual to pass that right of reproduction on.

The grounds of the conflict here cannot be generalised as a matter of ‘traditional knowledge’ being owned by a ‘group’. Through a series of initiation rites, which among other things authorised his pro-duction of the Morning Star pole, Yumbulul had been placed into a specific position with respect to diverse clan ancestors, co-members, related clans and other kin.1 As the lawyer Anne Barron, drawing on anthropological studies, put it, being shown the sacred evidence of ancestral Dreamtime carries obligations as well as rights [Barron 1998: 48–51]. Yumbulul’s entitlement was to paint and even sell the relevant designs but not to authorise their reproduction by others.

An anthropologist might remark that the concerns surfacing in this second circuit are not adequately described as a property interest in cultural possessions (although they may be translated that way and this may become the general language). It is necessary to add another connotation to ‘reproduction’. For these concerns resonate with those kinship systems where the reproduction of persons is distributed between sets of kin in such a way that, while everyone enjoys clan membership and access to its resources, only some members transmit the right to reproduce its identity. (A parallel in a different context makes the point succinctly: what anthropologists call patrilineal kin reckoning in Papua New Guinea means that while both sons and daughters receive their father’s clan / lineage identity, only sons can pass it on.) The Aboriginal design in question was intimately bound up with the artist’s ‘birth’ (the initiation rites) as a member of a kin group. We may add that a design executed in reference to ancestral images contains its own conditions of reproduction, since only those in the appropriate relationship to an image are endowed with the capacity to re-create it. In this manner, artist belongs to artefact rather than artefact to artist.

Has this any bearing on the Buzzacott case and its aftermath? We could read the latter day political activists as seizing on the legal language of copyright, property (that which can be stolen), and culture to try to bring home a general complaint about how Aborigines were being mistreated. Uncle Kev was a well known campaigner for

1 [Kalinoe 2004] focuses on the fact that the artistic capacity to carve the pole did not indicate original creative work but had been bestowed through initiation rites; the carving only worked as a faithful reproduction of existing imagery.

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kiy justice, environmental issues, and land rights, as well as for cultural

recognition. We could also take the specific reference to the tribe whose permission had to be sought as an echo of the second circuit of events that put Yumbulul under such pressure. Here kangaroo and emu were claimed the preserve of a tribe not as artefacts (‘expressions of culture’) but as living / ancestral animals in sacred association (totems) with them. So if it was not a design that was an issue perhaps what was at issue was the concept1 of these creatures, to which particular human groups were held to belong. In this case, then, the emblem would have been seen as invoking the concept.

However, my prime interest is what the PNG Lawyer, Kalinoe, made of the Australian Yumbulul case [Kalinoe 2004: 44–6]. He notes that there are two significant lessons to be drawn with respect to contemporary artists who deploy traditional art forms. Copyright seems an effective means to protect artists’ individual endeavour, and he is sympathetic to their situation, but while copyright declares their originality, it does not deal with the other side of their creativity — the simultaneously derivative nature of the work with reference to its ancestral origin. So the first lesson is the question of authorisation; if Papua New Guinea wants to avoid a situation like Yumbulul’s, he wrote, it will be necessary to make statutory provision that authorisation must be obtained from everyone involved, not just the individual artist. And second, the very notion of derivation is obliterated in copyright, since — however much a work draws on others — in concrete form it exists for copyright purposes as the original creation of the artist. Copyright would thus introduce a double bias.

However, there is a further ‘underlying issue’ that the Yumbulul case ‘brings to the fore’ [Kalinoe 2004: 46]. This was to do with the public protection of items that Kalinoe called ‘sacred’ (such as those with ancestral value, ancestral not because they are antique but because it is the living presence of ancestors in their descendants that guarantees continuity of inner power). He came to the conclusion that these should be treated, for legal purposes, simply as property — emphatically not as intellectual property. Rather, finding a suitable regulatory regime for ‘indigenous cultural and intellectual property and traditional knowledge’ could be significantly enhanced if the issues relevant to a regime for the preservation of culture were separated from those relevant to the implementation of IPR protection. In effect this is in part what the Model Law (see below) sought to do.

One reason Kalinoe offers for avoiding the IPR route in the protection of sacred property is because IPR brings things into the public eye.

1 In English either design or concept may be rendered as ‘image’.

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The limited time restriction guaranteed by IPR protection is nothing compared to the long term publication entailed when copyright expires. He is thinking of items identified with particular groups which should only be revealed under controlled conditions e.g. when the moment for their reproduction is ripe. The public domain aspect of IPR is well known to cause problems for this kind of resource.1 It is the reverse of, but complementary to, Sokolovskiy’s comment on the monopoly that lasts for ever.

What global discourse reveals and conceals

As intellectual property entered what can only be called a global discourse of indigenous rights, it seemed to carry great potential for the recognition of those very intangibles (ideas, values, images, knowledge) associated with tradition / custom / culture that had for so long struggled to make themselves heard (e.g. [Brush 1993; Greaves 1994]). IPR held much promise for producing an international legal instrument that would put value on things, to which the world would have to attend, that had not been valued before. Over the decade of the 1990s it gradually became clear that IPR was a less than adequate tool for what people wished to attach to particular relations and sets of persons. But once in general circulation, and detached from its exclusive association with the law, the language of IPR continued to fire activist consciousness. Thus it appears of a piece with protests about ‘cultural property’, ‘theft’, and ‘exploitation’.

Here the history of IPR crosses with that of First Nations’ political activism. I offer a brief comment. It would seem from Sokolovskiy’s account that the further removed such conflicts are from the specific claims of individuals or groups, the more power they have to mobilise sentiments on a nation-wide basis, as in the claim in the second Australian case he cites. What was under attack was ‘Aboriginal culture’ at large. In the accusation from the Council of Aborigines of New South Wales the connection with the origins of any specific artefact seems rather distant, the object of complaint being a diffuse and generalised borrowing of costume, signs of a kind of generic indigineity. Indeed, a generic characteristic was claimed that could apply to any Aboriginal ceremony: knowing which dancing would never be mixed-sex, but could only take place with all women or all men present. The quotation from Bellear imagines that the dance regalia could have borrowed from a specific instance (to which specific people belonged) under such an interdict.

1 For example, [Brown 1998; 2003; Coombe 1998; Brush 1999].

2

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may be pressed globally into service as a banner for declamations about exploitation, we might want to remember that one of the general complaints that Aborigines have is the failure of white Australian society to acknowledge the specificity of their title to land, song, carvings, totemic beings. So even when speaking about some-thing that is stolen from Aboriginal people in general, we might say that what is ‘stolen’ is the precise (often kin-based) connection between human flourishing and entitlements distributed between different people. Maybe it is the ‘idea’ (concept) of that connection that was suggested by the dance costumes. We have come by another route back to the intimate link between artefact and entitlement.

The form the conflicts take, and the concomitant language of dispute, are indeed recent and ‘culture’ is imagined in ways that were never articulated before, at once opening up new understandings and exploited no doubt to propagate various political and economic interests. But the language also constantly slides off, slips away from, conceals, the substance of certain claims. Let me enlarge a little on the above observation about what it is that people might feel is taken from them.

Consider the views of a Papuan New Guinean anthropologist, at the time Director of the PNG National Cultural Commission [Simet 2000; 2001a], in relation to the Model Law on protection of cultural property in the Pacific.1 The Model Law was advanced in its thinking, insofar as it advised setting up protection mechanisms outside intellectual property regimes. However, it did so by insisting on the claims of ‘traditional owners’2 identified as groups, implying they are singular and homogeneous in nature. The issue on which Simet dwelt is one we have already encountered: how to accommodate multiple rights when they derive from diverse relationships. Thus he observes of the Papua New Guinean Tolai [Simet 2000: 78]:

One idea which might easily form part of the development of a mechanism for protection of indigenous knowledge is the assumption that all traditional knowledge is communally owned.

1 Under the auspices of UNESCO and WIPO: a Model Law for the Protection of Traditional Knowledge and Expressions of Culture in the Pacifi c Islands. At the time of Simet’s observations in 2001 it was being discussed at various fora, including the South Pacifi c Commission (e.g. [Kalinoe 2001]). The Model Law envisages the concept of ‘traditional knowledge’ as covering all tradition-based innovations and creations, including literary, artistic and scientifi c works, along with names, symbols, information, and so forth.

2 Indigenous systems, the principal architect of the Model law [Puri 2002] states, ‘are driven by charac-teristics of trans-generational, non-materialistic, and non-exclusive or communal ownership of rights’ which make IPR inappropriate. Despite this openness to other forms, the Model Law deliberately uses the term ‘property’ in accord with international usage, thus conferring a ‘property right’ on those who own traditional knowledge and expressions of culture (Part II: Rights of Traditional Owners) and seeks to identify the ‘true owners’ in each case.

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[In fact] […] people were very particular about acquisition, ownership, transfer, protection and use of knowledge. Only some kinds of knowledge belonged to the public domain, while the rest belonged to individuals and social groups.

Tolai persons and groups are enmeshed in diverse relations with one another. What distinguishes the PNG regimes from those where IPR originated is that the reproduction of things — including licences for copying them — carries with it the reproduction of relationships. Drawing on other people’s generative power becomes the basis of relationships. The Tolai case shows an institutionalised relationship between those who hold the right to reproduce and those who are the effective agents of reproduction. Reproductive capacity may thus be embedded in persons who are socially distinct from one another, and between whom the distribution of powers must be respected.

This Simet demonstrates [Simet 2001b] through the Tolai manner in which the signs of a clan’s identity are distributed between its masks and the magic that makes the masks vehicles of power. The mask is held by a manager from the clan; the magic is held by a non-member, who as its custodian deploys the magic on the clan’s behalf. The example returns us to a procreative model that supposes a clan depends on other clans for its reproduction. What goes for the procreation of persons and the perpetuation of identities is found over again in the fact that clan members cannot use their own magic for themselves; they can only benefit from it by entering into transactions with others, and by bestowing benefit on others in turn. But how, for an other than anthropological audience, could Simet, himself a Tolai, convey this obvious fact?

One could extend this into some interesting comments on the Creative Commons. But I remain with the following detail. Hidden behind the ‘global’ spread of claims that deploy concepts of property and culture, on the part of ‘groups’ or congeries such as ‘nations’, may well lie other considerations altogether. The nostalgia for or loss of culture summoned in such terms sounds gross; however, it sounds a little more nuanced if one realises that it is precisely the nuances, the details, that are lost when ‘cultural property’ is ‘stolen’. It is stolen in part by the very success that such concepts have in mobilising, if not always political support, then at least widespread public attention.

Acknowledgements

The research project, ‘Property, Transactions and Creations: New Economic Relations in the Pacific’ (PTC) was funded from 1999–2002 by the UK Economic and Social Research Council (award no. R000237838 ); their support is gratefully acknowledged. My ongoing

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Hirsch, Andy Holding, Lawrence Kalinoe, Stuart Kirsch, James Leach, and Karen Sykes, many of whom have also published sub-sequently in this area.

References

Barron A. ‘No Other Law? Author-ity, Property and Aboriginal Art’ // Bently L., Mariatis A. (eds.). Intellectual Property and Ethics, London: Sweet and Maxwell, 1998.

Blakeney M. ‘Protecting Expressions of Australian Aboriginal Folklore under Copyright Law’ // European Intellectual Property Review. 1995. No. 9. Pp. 442–5.

______. ‘The Protection of Traditional Knowledge under Intellectual Property Law’ // European Intellectual Property Review. 2000. No. 6. Pp. 251–61.

Brown M. ‘Can Culture be Copyrighted?’ // Current Anthropology. 1998. No. 39 (2). Pp 193–222.

______.Who Owns Native Culture? Cambridge: Cambridge University Press, 2003.

Brush S. B. ‘Indigenous Knowledge of Biological Resources and Intellectual Property Rights: the Role of Anthropology’ // American Anthropologist. 1993. No. 95 (3). Pp. 653–86.

______. ‘Bioprospecting in the Public Domain’ // Cultural Anthropology. 1999. No. 14. Pp. 535–55.

Coombe R. The Cultural Life of Intellectual Properties: Authorship, Appropriation and the Law. Durham, NC: Duke University Press, 1998.

Greaves T. (ed.). Intellectual Property Rights for Indigenous Peoples: a Sourcebook. Oklahoma City: Society for Applied Anthropology, 1994.

Hirsch E., Strathern M. (eds.). Transactions and Creations: Property Debates and the Stimulus of Melanesia. Oxford: Berghahn, 2004.

Kalinoe L. ‘Expressions of Culture: A Cultural Perspective from Papua New Guinea’. WIPO Sub-Regional Workshop On Intellectual Property, Genetic Resources and Traditional Knowledge, Brisbane, Australia, 2001.

______. ‘Legal Options for the Regulation of Intellectual and Cultural Property in Papua New Guinea’ // [Hirsch, Strathern 2004: 40–59].

Puri K. ‘Draft Model Law for the Pacific’. Draft published as Model Law for the Protection of Traditional Knowledge and Expressions of Culture: Working and Information Papers, 2nd Working Group for Legal Experts on the Protection of Traditional Knowledge and Expressions of Culture. Noumea, New Caledonia, 2003.

Simet J. ‘Copyrighting Traditional Tolai Knowledge?’ // Whimp K., Busse M. (eds.). Protection of Intellectual, Biological and Cultural Property in Papua New Guinea. ANU, Canberra: Asia Pacific Press & Port Moresby: Conservation Melanesia Inc., 2000.

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______. ‘Conclusions: Reflections on Cultural Property Research’ // Sykes K. (ed.), with Simet J., Kamene S. Culture and Cultural Property in the New Guinea Islands Region: Seven Case Studies, New Delhi: UBS Publishers’ Distributors Ltd, 2001a.

______. ‘Custodians by Obligation’. Paper given to Workshop convened by K. Sykes, ‘Becoming Heirs: Making Inheritance Self-evident’. University of Manchester, December 2001b.

Strathern M. ‘Protecting Channels of Communication: Some Challenges from the Pacific’ // Macmillan F. (ed). New Directions in Copyright Law, 2. Cheltenham: Edward Elgar, 2006a.

______. ‘Intellectual Property and Rights: an Anthropological Per-spective’ // Tilley C., Keane W., Küchler S., Rowlands M., Spyer P. (eds.). Handbook of Material Culture. London: Sage Publications, 2006b. (Abridged as ‘Cultural Inventions’ // M. Biagioli, P. Jaszi, M. Woodmansee (eds.). Making and Unmaking Intellectual Property: Creative Production in Legal and Cultural Perspective. Chicago, Chicago University Press, 2011.

Whimp K., Busse M. (eds.). Protection of Intellectual, Biological and Cultural Property in Papua New Guinea. ANU, Canberra: Asia Pacific Press & Port Moresby: Conservation Melanesia Inc., 2000.

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Copyright, Aboriginality and Cultural Heritage: the Paradoxes of Liberalism and Communitarism in Economics, Politics and Law: a Reply by Sergei Sokolovskiy

Before returning to the discussion of the problems raised in the article with which the discussion began, I would like to thank all the participants, and the journal Anthropological Forum for accommodating the discussion on its pages. There are no Russian lawyers or legislators specialising in the protection of authors’ rights or the rights of indigenous populations amongst those who responded, but the replies and commentaries received nevertheless touch on a wide range of issues, which allows me to hope that this topic will attract attention at least amongst anthropologists and perhaps stimulate wider discussion.

Hardly any of us like monopolies, be they state or private, especially when we have personal experience of them. Rising prices on the under-ground or on the railways would probably be more tolerable if we did not know that they were fixed by a monopoly. We feel that to profit from a monopoly is unjust. This must mean that we are not averse to the ideals of social justice and that we can, albeit with reservations, categorise ourselves as people who are ready to support them and the liberal policies that bring them into being.

Sergei SokolovskiyInstitute of Ethnology and Anthropology, Russian Academy of Sciences,Moscow, Russiasokolovskiserg@mail.ru

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We dislike monopolies not only because of the suspicion that monopolists are pocketing our money unfairly, but because from their very beginning they put a brake on progress. The monopolist has no interest in making improvements; he prefers to maintain the status quo. For at least half a century monopolists have been holding back the search for alternative energy sources and the use of alter-native fuels in motor car engines, they have been buying up patents, and continue to do so, preventing the development of inventions in various key areas of electronics and medicine. Now it is the turn of culture, and already the movie moguls of Russia, who made their films with subsidies from the taxpayer, are making money from the import of DVDs on the grounds that they could be used to make copies of their films (their annual income form this ‘operation’ is estimated at between 150 and 200 million dollars, taken likewise from the taxpayer’s pocket),1 and publishers are attempting to prevent library users from making copies without paying them a percentage of the fee for this service and holding back projects for digitising collections of books and music and archives, as a result of which part of their holdings is doomed, if not already lost.

The first paradox is that liberal economics, which guarantees copyright for a limited period and provides property rights over intellectual products (and we remember that copyright is also a form of monopoly), ipso facto stimulates authorial activity but at the same time produces a monopoly that acts as a brake on economic develop-ment. However, while authorial copyright is limited to seventy years, if copyright is extended to folklore it will become perpetual, and the monopoly absolute. The point of copyright is to stimulate the author to further activity and not to life as a rentier. One cannot help but recall Lord Macauley’s words that an unavoidable evil should not be prolonged a minute longer than the law requires.

Popular culture and folklore are areas which were from the beginning in common use, and have suddenly been privatised by the state or by private businesses. The generation which still remembers the state-controlled economy, when everything belonged to the state, but folklore, even when the work of an individual, still remained part of the common heritage, finds it bizarre that the Russian Authors’ Society should attempt to fine old soldiers for public performance of the songs they used to sing at the front.2 Unlike our western colleagues, who imbibed the idea of private property with the milk of their great-great-grandmothers, who witnessed the enclosure of common land in the fifteenth century, we have not yet forgotten the wild

1 See, for example: <http://webplanet.ru/news/law/2011/04/12/mihal.html>; <http://www.snob.ru/chronicle/entry/15026>.

2 <http://www.vesti.ru/doc.html?id=349228>.

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about any attempt to fence off yet another piece of public property and proclaim it to be the possession of one or another group of persons that has an interest in it. The fact that some Russian ethno-logists, anthropologists and folklorists have been in such a hurry to accept the idea of cultural copyright and are willing to sacrifice universal and equal access in the name of historical justice for the indigenous populations is in itself worth analysing.

In her comments Marilyn Strathern draws attention to the fact that ‘rights of ownership are not the same as rights to copy’, concluding with the remark that ‘the “global” extent of demands that make use of the concepts of property and culture […] may conceal completely different notions.’ While I agree with the latter, I would like to remark in respect of the former that I am more interested in those areas of discourse and political action where these rights are not distinguished and where property itself is not so much a political or economic concept as a political instrument. Nevertheless, even if one maintains this distinction one must bear in mind the close connexion that exists between these rights, and the way they are interwoven in modern intellectual property protection régimes, of which copyright is one part. When these specific forms of intellectual property protection are extended to works of folklore we encounter various complications which our discussion has not mentioned at all, or only in passing. Among those problems which arise out of contact between scholarly and legal discourse, on the one hand, and between scholarly and everyday conceptions, on the other, is the problem which I have provisionally designated with Bakhtin’s term ‘hetero-glossia’, by which I mean not so much a plurality of sociolects or styles of speech, as the differing — and incompatible — extent and semantics of particular concepts within the aforementioned discourses and conceptions, namely those of ‘culture’, ‘people’, ‘tradition’, ‘aboriginality’, ‘justice’ and ‘authenticity’. I shall dwell briefly on some of these in order to draw attention to the specifically Russian features of their treatment in various discourses, which are evidently not particularly well known to our colleagues in other countries.

Folklore and the concept of ‘culture’. Folklore, even at the semantic level, combines cultural tradition (lore) with the people (folk/Volk). The ever-growing instability and penetrability of cultural boundaries over the past fifty years, the internal diversity and heterogeneity of so-called local, national and ethnic cultures, the extensive migrations of their carriers, which mean that we can no longer connect culture with a particular territory or specific ethnic group in the same way as before, and the translocation of cultural markers and characteristics once regarded as unique or distinctive as a result of mass migrations and globalisation, their wider geography (in comparison with the

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period before modern aviation and global tourism) and lack of territorial compactness have made the very concept of a culture highly dubious, and its use as an instrument of analysis of an internally homogeneous and clearly bounded unit more or less impossible.

With the emergence of new racist ideologies and the rise of so-called cultural racism or cultural fundamentalism, even the use of the concept of culture in political rhetoric has become suspect. It has been criticised from various quarters using arguments based both on logic and epistemology, and on morality and ethics. In particular, a number of scholars have become disenchanted with the concept because it has become exceedingly wide and lost its former precise meaning. Anthropologists have frequently pointed out that ‘cultures’ in the sense of their previous classical objects, can hardly ever have been the autonomous and isolated units with clearly defined boundaries as which they used to be represented (and sometimes still are) in comparative research. Cultural holism has also been a target of criticism calling for the abandonment of generalising concepts in favour of more precisely and subtly constructed ideas. In this context I would attach importance to the examination of the problem of variation within folklore, very aptly discussed in Anastasia Ilchenko’s comments, and her question whether it is possible for folkloric material to belong to a single culture.

The analytical, strictly defined and operational concept of culture has been replaced by a general, lax notion of it as any set of meanings and practices existing in a particular situation or locale, and the analysis of culture by so called cultural studies has been replaced by cultural criticism. Such concepts and models of culture, cultural patterns, semiotic complexes or webs, and habitus, being very weakly con-ceptualised, were soon either forgotten or subjected to critical deconstruction as yet another example of the attempt to naturalise, objectify or reify the differences between people which effectively turned these differences into a blind force determining human behaviour. The result was that in anthropology culture as an instru-mental and operative analytical concept was more or less written off, although it continued to hold its own in social discourse and political practice.

In the applied sciences (which, it seems, should be taken to include international law) the older, classical understanding of culture is still entrenched. There are also some scholarly subdisciplines which for one reason or another have proved immune to the serious and well-founded criticism to which the concept of culture has been subjected in anthropology. As an example I could cite cross-cultural psychology and its Russian equivalent, ethnopsychology, that part of marketo logy which specialises in the study of doing business with foreigners, and also that specifically Russian synthesis of sociology

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precisely the applied character of the knowledge developed in these fields of study that leads their adepts to retain the classical treatment of this concept. For them it is a category of practice and discourse, but not a category of analysis, nothing more, in other words, than the packaging for their observations, and its relationship to the contents is highly relative. The question obviously arises whether discourses and practices of this sort are still a form of scholarship, but that would distract us from the topic under discussion and will not be raised here.

What is specifically Russian in the way the concept of culture is dealt with within the discourse of the social sciences is that the con-temporary criticism of the concept is largely ignored, as if it and the questions it raises had never existed. This means, in the context of the problem of ‘copyright and culture’, that we have no particular problem in ‘sorting’ cultural artefacts as property or belongings: there are as many cultures or ‘folklores’ as there are peoples, and any cultural artefact, material or immaterial (or, as we used to say until very recently, spiritual) has its ‘domicile’ in ‘its own’ culture, and may or should be returned to it after wandering through other cultures, or else should never leave it in the first place. Of course I am exaggerating some of the views of traditional Russian ethnographers on the subject of culture, but I do not think that this caricature is too far from the actual state of affairs. At the same time, all the questions raised in the course of the criticism of culture are still there, which makes the problem of ‘copyright and culture’ extremely difficult. If cultures were not isolated in the past, and certainly are not today, the gestures of obtaining and returning cultural artefacts evidently take place in some sort of political space which exists outside geographical and historical reality.

The substantively altered geography of cultural artefacts, their use, so to speak, ‘above and beyond’ the former linguistic, cultural, ethnic, social and gender distinctions and barriers, makes it problematic to ‘repatriate’ them en masse, to restore them to ‘their proper places’, into the hands of ‘their former owners’, or to control their repro-duction and copying. The artefacts themselves (or their cultural significance) have been too radically transformed, not to speak of their owners and their views on life, or the places where they were made (or were imagined to have been made). No one today could seriously want to remove all didgeridoos from the shops and souvenir stalls, or confiscate them from musicians on no other grounds than that they are the musical instruments of Australian Aborigines and that according to their traditions they should not be seen by women. There is an analogy here with the Russian figure-skaters’ dance. It is true that certain native Australian dances should be performed only by men or only by women, but the very fact that a somewhat abstract

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dance is performed on ice by a mixed couple in stylised costumes would seem to make it impossible to correlate it to those original dances and costumes which the Australian leaders who protested about it had in mind. I can refrain from wearing green on St Patrick’s Day in case some Irishman is offended, but he might equally be pleased, forasmuch as those who do wear it do so with good intentions. Can it be that these completely innocent impulses and motives weigh less than political correctness in the today’s scales, and that every gesture of admiration, solidarity, remembrance, homage, enjoyment or merriment must be seen through the prism of postcolonial political relations and unfailingly measured against them?

Folkore, copyright and indigenous peoples. A further set of problems, with its own paradoxes, is connected with the peculiarities of such an imaginary owner or assigner or rights as the people (in its ethnic sense). We must of course remember that this sense has a much narrower geography today than it did a century ago, but Russia still belongs to that province of the anthropological imagination in which the ideas of the German romantics are still alive, politics still exploits the images of blood and soil in respect of linguistic and cultural communities, and the population is divided into ‘the peoples of Russia’ and other, significantly more suspicious ‘migrants’, ‘dis-placed persons’ and ‘foreigners’. From this point of view, obviously, all cultures belong to someone, that ‘someone’ being the people, and legal and economic relationships in respect of the products of folklore are quite unproblematic, being modelled on the relationships between individuals, and the peoples themselves are conceived as ‘organisms’ and active subjects. However, as soon as such ‘subjects’ enter the field of legal relationships, questions arise as to whether they can in fact perform all those operations which are routinely carried out by a standard rights owner.

The applicability of the concept of group rights to ethnic communities had been called into question more than once by specialists in political philosophy and jurisprudence (see, for example, [Nickel 1997; Pogge 1997; Barry 2001; Benhabib 2003; Phillips 2007]). It is known that in order to defend its interests and co-ordinate its actions a collective rights owner must create clear limits for itself (membership of the group, identity), create a constitution approved by an overwhelming majority of its members, and likewise an election procedure and structure, elect its leadership, define the aims of its activity, develop a strategy or action plan in order to achieve those aims, routinely co-ordinate its activity towards achieving them, evaluating its activities, and adapting its strategies and plans in response to changes in circumstances (cf. [Nickel 1997: 237–41]). It is clear that (leaving aside certain personages who claim the status of community leaders and who regard all this as pos-sible) for such agglomerations of humanity as ethnic communities

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It is impossible to imagine such agglomerations not only as passive holders of rights but as active possessors of rights for the following reasons: there are as a rule no clear and generally accepted criteria for membership for all representatives of these communities, insofar as one part of them has a compound identity (on account of mixed origins, for example), another calls the proposed criteria into question (and without a legitimate basis for determining who can participate in the discussion, since by definition only ‘members of the group’ can take part in it, the problem is insoluble) and a third simply takes no part in the discussion because they are too far away or not interested in it. It is that much harder, in the absence of any clearly defined identity or criteria for membership, to create that effectiveness that a rights owner must have. The representatives of such a community as a rule have different political inclinations and social status, different ideas of their own culture and language and take different communities as their point of reference. Collective effectiveness in the full scope of activities outlined above is a pipe-dream, and arguments about peoples as legal persons are empty political rhetoric.

However, doubts as to whether such communities as ethnic minorities or peoples can function as legal entities do not amount to doubts about the constant identity or boundaries of the community, they are founded on the effectiveness of such collective entities in general. What actions are routinely performed by a rights owner in respect of his legal rights? Typically these are: 1) refraining from exercising his right in particular circumstances; 2) appealing to the legal standard; 3) exercising his right in particular circumstances; 4) taking on the responsibilities associated with the right in question; 5) renouncing the right (for example, when renouncing citizenship); 6) interpreting the applicability of a given legal standard; 7) taking part in the system for overseeing compliance and preventing infringements of the right; 8) receiving compensation for infringements. All these actions are necessary for an active exercise of the right. If a community has no means of interpreting a right and preventing its possible infringements by appealing to the relevant authorities and receiving compensation, then its capacity for exercising the right is severely compromised. Finally I would point out that those who easily imagine peoples as recipients of compensation are inclined to forget about notorious instances of the application of the principle of collective respon-sibility, when not only did the sons answer for the fathers, but whole peoples were annihilated or deported. There are no rights without responsibilities. And if the collective imagination of certain ‘ethno-politicians’ exploits the idea of ‘peoples’ rights’, it must be re-membered that it could equally easily admit the notion of collective punishments.

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A conception of legal relationships between collective subjects, in which it is not corporations or organisations but ‘peoples’ that act as unproblematic wholes is particularly vulnerable when it is regarded as an instrument for obtaining social justice in the context of Russian legislation on small indigenous peoples.1 I would remind the reader that the granting of a special status to indigenous peoples in international law was a consequence of an acknowledgement of their rights to their traditional way of life and their refusal to be integrated into modern urbanised, industrial and market civilisation. This is rarely remembered nowadays, because among the groups represented on the UN Per-manent Forum on Indigenous Issues are some that are completely integrated and do not engage in those forms of agriculture defined in the World Bank Operational Directive of 1982 (which referred to them as ‘tribal groups’) as ‘stable, low-energy, sustained-yield economic systems as exemplified by hunter-gatherers, shifting or semi-perma-nent farmers, herders or fishermen’. This document lists the following features as distinguishing characteristics of such groups:

(a) complete or relative geographical isolation; (b) only partial acculturalisation with respect to the social norms of the dominant society, or none; (c) a natural, non-monetarised or only partially monetarised economy, independent of the national economic system; (d) ethnic distinction from the rest of society; (e) lack of writing and illiteracy; (f) linguistic distinction from the rest of society; (g) close identification with a particular territory; (h) a way of life dependent on the environment; (i) lack of national political representation amongst the local political leaders, and of individual and collective political rights, partly as a result of non-participation in the political process; (j) lack of legal recognition of their traditional lands, lack of guarantees to the land or of legal defence; (k) weak defence against trespassers, even if the boundaries of tribal territories are officially recognised [OMS 2.34].

Although the Bank later renounced such narrow criteria for defining indigenous communities, international practice in their recognition, which declares its chief and fundamental principle with regard to indigenous peoples to be their self-determination and self-perception, is silently based on such principles as autochthonous origin or a traditional extensive economy of the hunter-gatherer type, other-wise it is hard to understand why representatives of the Boers, Orcadians, Welsh and Faroese should have been refused registration at international fora of indigenous peoples [Corntassel, Primeau 1995: 3; Thornberry 2002: 33, 60; Coates 2004: 253].

1 I have had several occasions to write on the logical, political, legal and ethical inconsistencies and paradoxes of our offi cial list of such peoples in connexion with the basis for their special legal status [Sokolovskiy 1998; 2000a; 2000b; 2006; 2007a; 2007b; 2008a; 2008b; 2008c; 2009; 2011].

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who have taken part in drawing up the relevant legislation, boast of any logically constructed principles for the recognition of small ethnic communities, even if we leave aside the arbitrary threshold in our legislation of fifty thousand persons. The official list of small indigenous peoples of Russia includes the Nağaybäk but not the Keräşen, although both groups are Turkic-speaking Orthodox Christians with a common origin and both fully comply with the demographic threshold. In another official list — of the small indigenous peoples of the North, Siberia and the Far East — there is a place, for example, for the Nenets but not for their neighbours the Komi-Iz’vatas, who depend equally on reindeer herding for their traditional way of life. On this list the Votes and Vepsä, peoples whose traditional way of life was agricultural, have received a set of special rights, but the Pomory, who depend upon fishing, which would seem to be one of the recognised traditional ways of life, have not. The granting of privileges on the basis of ethnicity seems to me to be contrary to social justice: neighbours in the same village, equally dependent on the local resources — Karelians and Vepsä, Khakas and Shor, Northern Yakuts and Dolgan, Buryats and Soyot, Chuvans and Markovtsy — are allowed by the law different degrees of access to them. One can only imagine what effect this has on neighbourly relations.

Neither the extension of copyright to works of folklore and local artefacts, nor measures to protect traditional ways of life should be based on ethnicity. If the privilege to exploit local resources should be afforded to those who depend on them — fishermen, hunters, reindeer-herders and the members of their families — irrespectively of their ethnicity, then the royalties on songs or the works of local artists and craftsmen should be payable to specific authors or workshops. It would of course be possible to try to delimit the boundaries of the ‘folklore community’, but I fear that determining the boundaries and membership of such a ‘community’ would be even harder than determining ethnicity, of which records are kept by many institutions in this country.

While I agree with Olga Murashko’s thesis that traditional occupations should be preserved (and even propagated, it seems, though tradi-tionalists themselves would probably object to such a view of the traditional heritage), I cannot agree with her in all particulars: how-ever much sympathy one may have for the dying crafts of those who have been unable or unwilling to come to terms with the market economy, ‘authentic souvenirs’ always were and always will be something like ‘boiling ice’: an attempt on the part of the atheistic Soviet authorities to turn a small profit by trading in desacralised sacred objects. Nor do I think that the tourists who supported this trade should be regarded as some sort of heroes: tourism has always

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provoked the creation of strange simulacra ‘in the traditional style’, and exoticisation has always been the flip side of colonisation. Just as Midas’ touch once turned everything to gold, the mass tourist’s touch or even gaze transforms everything on which it falls into pop-culture and kitsch. As for the tourist’s nostalgia for ‘genuine fakes’, or the marketing strategy that purveys tradition and primitivism as art, these are interesting and independent topics for study and research, which few people in our country have pursued, although they have already been quite well covered in the anthropological literature.

The example of Indian policy on the protection of traditional medicine cited by my colleague, quoting the unpublished article by Simonova and Buzova in the almanac ‘The world of indigenous peoples — the Living Arctic’ is an example of the nationalisation (read ‘statification’) of local traditions and a close parallel to the case of Afghan folk music which I mentioned in my first article. India, as is well known, does not acknowledge the existence on its territory of indigenous peoples as understood by ILO Convention 169, and does not allow registered tribes control over their own cultural heritage. The database for Indian alternative/folk medicine, which is placed on the Internet and widely advertised, is an effective means whereby the Indian state can fight the multinational pharmaceutical com-panies, a means which is indeed deserving of attention and study, but which has nothing to do with the protection of the cultural heritage of individual tribes.

The diversity of legal cultures and conceptions of property, so expressively described by Marilyn Strathern on the basis of examples from Papua New Guinea and Australia, is a real challenge to the extension of copyright to the cultural heritage of indigenous people. No less a challenge is the clash between the ethics of the search for scientific truth and scientific logic with that complex of modern European political consciousness for which I cannot find a better term than ‘the ethics of guilt’. This challenge might also be described as the clash between legal logic and historical consciousness, while the denaturalisation and desubstantivisation of peoples that is taking place in modern social consciousness clashes with the so-called strategic essentialism of the leaders of indigenous movements. A third challenge is offered by the situation of modern, or rather post-modern art, the essence of which is pastiche, quotation, cliché, mixtures of genres and styles, where limits placed on quotation and variation become limits to free expression and speech, on the artist’s freedom to choose his methods of depiction, and copyright, particularly everlasting copyright, a limit on access to culture in general. The fourth challenge, which I have already mentioned in the article which served as a starting-point for the discussion, is the clash between the ideology of the Creative Commons and the appetite of copyright holders.

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humanities are in a better position, as mediators between the cultural mainstream and non-dominant cultures, than politicians, legislators and even the activists of national movements, who are inclined to hear the arguments of one side only. We must try to make use of this privilege, and use it to satisfy all parties. I am sure that a balance of interests can be achieved only on the basis of a model of social justice which arranges the measures of support and protection in such a way that they are available to all who need them without distinction of race, sex, language, culture or ethnicity. I am aware that this strategy is based on anticommunitarian principles, but I have attempted to set forth here the arguments that have brought me to this position, and if my opponents can produce stronger arguments, then I shall be delighted to join their ranks.

References

Barry B. Culture and Equality: An Egalitarian Critique of Multiculturalism. Cambridge, MA: Harvard University Press, 2001.

Benhabib S. Prityazaniya kultury. Ravenstvo i raznoobrazie v globalnuyu eru [The Claims of Culture: Equality and Diversity in the Global Era]. M.: Logos, 2003.

Coates K. S. A Global History of Indigenous Peoples Struggle and Survival. New York: Macmillan, 2004.

Corntassel J. J., Primeau T. H. ‘Indigenous ‘Sovereignty’ and International Law: Revised Strategies for Pursuing ‘Self-Determination’’ // Human Rights Quarterly. 1995. Vol. 17. No. 2. Pp. 343–65.

Nickel J. W. ‘Group Agency and Group Rights’ // I. Shapiro, W. Kymlicka (eds.). Ethnicity and Group Rights. New York; London: New York University Press, 1997. Pp. 235–56.

[OMS 2.34] Tribal People in Bank-Financed Projects: Operational Manual Statement, № 2.34. Washington, D.C.: World Bank Mimeo, 1982.

Phillips A. Multiculturalism without Culture. Princeton: Princeton University Press, 2007.

Pogge T. W. ‘Group Rights and Ethnicity’ // I. Shapiro, W. Kymlicka (eds.). Ethnicity and Group Rights. New York; London: New York University Press, 1997. Pp. 187–221.

Sokolovskiy S. ‘Ponyatie “korennoi narod” v rossiiskoi nauke, politike i zakonodatelstve [The Concept of the “Indigenous People” in Russian Scholarship, Politics and Legislation]’ // Etnograficheskoe obozrenie. 1998. No. 3. Pp. 74–89.

______.‘The Construction of “Indigenousness” in Russian Science, Politics and Law’ // Journal of Legal Pluralism. 2000a. Vol. 45. Pp. 91–113.

______. ‘Korni i krona: mistika i metafizika v konstruirovanii statusa “korennykh narodov” [Roots and Crowns: Mysticism and Metaphysics in the Construction of the Status of “Indigenous Peoples”]’ // Etnograficheskoe obozrenie. 2000b. No. 3. Pp. 3–8.

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______. Identity Politics and Indigeneity Construction in the Russian Census of 2002. Halle, 2006 (Max Planck Institute for Social Anthropology Working Paper Series, No. 77).

______.‘Pravovoi status i identichnost korennykh narodov (po materialam Vserossiiskoi perepisi naseleniya 2002 goda) [The Legal Status and Identity of Indigenous Peoples (on Materials from the Russian Census of 2002)]’ // Rasy i narody. M.: Nauka, 2007a. Is. 33. Pp. 11–57.

______. ‘Indigeneity Construction in the Russian Census 2002’ // Sibirica. Interdisciplinary Journal of Siberian Studies. 2007b. Vol. 6. No. 1. Pp. 59–94.

______. ‘Korennye narody: ot politiki strategicheskogo essentsializma k printsipu sotsialnoy spravedlivosti [Indigenous Peoples: from the Politics of Strategic Essentialism to the Principle of Social Justice]’ // Etnograficheskoe obozrenie. 2008a. No 4. Pp. 59–76.

______. ‘Naselniki i nasilniki: opyt kriticheskogo analiza ponyatiya “korennye narody”, “menshinstva” i “migrant” [Natives and op-pres sors: an attempt at a critical analysis of the concepts of “in-digenous peoples”, “minorities” and “migrants”]’ // Novye etni-cheskie gruppy v Rossii. Puti grazhdanskoi integratsii / Tishkov V. A., Stepanova V. V. (eds.) M.: IEA RAN, 2008b. Pp. 11–44.

______. ‘Size and Place in the Construction of Indigeneity in the Russian Federation: a Comment’ // Current Anthropology. 2008c. Vol. 49. No. 6. Pp. 1014–1015.

______. ‘Chto znachit byt korennym? Mezhdunarodnye podkhody i pra-vovoi status “korennykh narodov” [What Does it Mean to Be Indigenous? International Approaches and the Legal Status of “Indigenous Peoples”]’ // Etnopoliticheskaya situatsiya v Rossii i sopredelnykh gosudarstvakh. Yezhegodnyi doklad Seti etnologicheskogo monitoringa 2009. M.: IEA RAN, 2010. Pp. 147–59.

______. ‘Russian Legal Concepts and the Demography of Indigenous Peoples’ // Axelsson P., Sköld P. (eds.). Indigenous Peoples and Demography. The Complex Relation between Identity and Statistics. New York: Berghahn Books, 2011. Pp. 239–51.

Thornberry P. Indigenous Peoples and Human Rights. Manchester: Manchester Univ. Press, 2002.

Sergei Sokolovskiy’s article was translated by Edmund Griffiths

The responses and Sergei Sokolovskiy’s reply were translated by Ralph Cleminson