Wednesday, April 8, 2015

Yes, Virginia, Copyright Can Change the World*

Anthony Seeger_001 I got to attend the most awesome presentation, and since there really isn’t a better place to write about it, y’all are just going to have to put up with some fun IP stuff.  (or… you know, go back to looking at Twitter.)

The Suyá

Professor Anthony Seeger is a ethnomusicologist who has been studying and working with a remote indigenous society in Brazil for nearly 45 years.  (He’s also, based on the hints from the introducer and his references to “Uncle Pete,” Pete Seeger’s nephew.)

Professor Seeger began his work with the Suyá in 1971.  He and his wife moved into the tiny village and he began learning about their music.  They taught the Seegers much.  They had songs they’d learned from fishes, and songs they’d learned from trees, and songs they’d learned from tribes they’d captured.  They had songs and ceremonies and art and all sorts of things that they’d gathered over the centuries and incorporated into their lifestyle and their Suyá culture.

A Giant Shift

Then, in 2004, Gisele came - Yes, that Gisele – and everything changed.  Gisele came for a commercial purpose, but more importantly, Gisele came with an NGO and Gisele came under requirements of Brazilian law.  (And this is where I start pulling out books from my “IP and writing shelf”".”)

Brazil and Protection of Culture

In 2001, Brazil enacted Provisional Act No. 2.186-16, on Genetic Heritage and Traditional Knowledge.(1)  Brazil has a very rich biodiversity (hello, the Amazon!).  For the peoples who have lived amid this biodiversity for generations, there’s a lot of knowledge related to the plants and animals in their surroundings, knowledge about what can be used as medicine, how to prepare things, how to find things, etc.  Basically, the communities have a lot of knowledge that has commercial value to outsiders.  The Act required, among other things, the fair and equitable sharing of benefits arising from the use of traditional knowledge related to this biodiversity.  And the trend and norms exemplified by the Act apply more broadly to cultural aspects of indigenous societies in Brazil.  If you want to use it, you ask and you compensate.


As Professor Seeger tells the story, Gisele wanted to use some tribal designs on sandals.  She wanted to do some good, too.  I don’t know which came first.  And as discussed above, there were rules to follow: ask permission, compensate.  So, she partnered with an NGO to approach the Suyá about using their tribal designs.  She’d get to sell her sandals; they’d get $200,000 compensation for use of their culture; they’d get to be in a commercial; she’d get to be painted with their traditional body paint.(2)  Everybody’s happy.  Except…

The Suyá learn about the concept of ownership over traditional knowledge and traditional cultural expressions, and they go “wait a minute, we borrowed this stuff from other tribes.  What if the other tribes get mad that we’re using it?  What if they want some of the money?  What if they kill us in retaliation?” New concerns to them.

The Kïsêdjê

The Suyá began taking a critical look at their culture in a way they never had.  What had been “ours” was now analyzed to decide whether or not it really belonged to them.  And they started making changes. 

For the Commercial

First it was small things, mainly for the commercial, mainly so they wouldn’t have to worry about other claims on that compensation.  All the female body painting in their community had been borrowed from tribes further up the river.  They thought hard and “remembered,” reconstructed, what their traditional body paint must have looked like before incorporating paint styles from the other tribes.  This is how they painted Gisele.  For the music and the ceremony in the commercial, they chose very old songs that they were sure were theirs, a ceremony taught by the mice, not from another tribe.

The Songs and Culture

Changes continued long after Gisele left.  They stopped singing certain songs, stopped making certain handicrafts. – They created a brand new style of basket that has no practical purpose whatsoever other than being sold as a tchotchke to tourists, because they were worried about selling the baskets they used daily, which were incorporated from another tribe.(3) – They changed their language.  They even changed their name!  Suyá was what other tribes had called them and they’d gone with it.  But they’re original name for themselves was Kïsêdjê.  Now, they are the Kïsêdjê again.

The Language and Knowledge

Before Gisele, there was no word in their language for theft or stealing.  They would say to the outsiders, “you white people, why do you think that when you give something away you have less?  When we give something away, we have more.”  After Gisele, there are words for stealing and theft.  Their history used to talk of being great conquerors and all the things they borrowed or took from other tribes.  Their history has changed.  There are things they were given; things they learned.

Elders from the village went upriver to see some of the tribes whose songs and ceremonies they had incorporated. (4)  Those tribes said, “these are not ours anymore; you have changed them; you have made them your own; they are yours now.”(5)  But the Kïsêdjê do not want to take chances.

Professor Seeger was last with the Kïsêdjê several years ago.  He is going back soon to see what else has changed.

How We Got Here

Brazil’s laws and cultural norms surrounding  Traditional Knowledge (TK) and Folklore did not arise in a vacuum.  The concept of TK as something that should be owned and protected under the guise of intellectual property began in the 1960s as the global IP community was amending the international copyright treaty, the Berne Convention.(6)  But, it didn’t really pick up steam until the late 1980s and early 1990s when international  Intellectual Property was being shifted out of this sort of wishy-washy handshake treaty home to the very toothy jaws of international trade law.(7) 

In both its initial incarnation and its full blown growth spurt, TK was and is, a response to external intellectual property norms being imported, first through colonialism, then through multi-lateral treaties, and finally through trade agreements. Brazil was always at the forefront of this pushback.  (8)

Following the Path to TK as IP

Gisele brought the Kïsêdjê the concept of ownership over culture.  The rules of the Brazilian society to which Gisele belonged had taught her that cultural elements belonged to the community whose culture they composed.  Scholars and policy people had built this idea into Brazilian culture.  And not just the idea that the cultural elements belong to the community, but that the community has the right to exercise control over the use of the elements by others, the right to prevent use, the right to be compensated for use, the right to determine the manner of use.  Scholars and policy people had applied these rights to the elements they found most valuable in their own countries and communities.  These rights come from a foreign framework for individual ownership of individual’s creations; a foreign framework that was being foisted upon them by other communities looking to increase the market size for the most valuable elements of their own cultures.  It’s a long, connected road.

Mind Blown

I was absolutely stunned by the manner in which the Kïsêdjê incorporated all this.  Pulling out elements that had been in their culture for centuries because they originally came from a different people.  Can you imagine if every culture tried to give back the things they borrowed?!

Can you imagine English without its loanwords?  Can you imagine not teaching preschoolers Ring Around the Rosy, Frère Jacques or Happy Birthday because they’re British, French or Canadian, respectively, and not American?  What would we have left?  What would we eat?!  If we gave all the borrowed cultural elements back.  The idea is baffling.

Drastic changes in a tiny little community in the middle of Brazil’s vast forests are the result of the trade-exportation of Euro-American concepts of Intellectual Property.  Talk about a butterfly effect!



*But is this the change we were aiming for?

(1) This was followed in 2005 by Decree No. 5.459 of June 7, 2005 on Genetic Heritage & Traditional Knowledge.  Since Gisele came to the village in 2004, I’m focusing on the 2001 provisional act.

(2) We got to watch the commercial twice during Professor Seeger’s talk. It’s quite neat. I couldn’t find it on YouTube.  It’s in Portuguese and for sandals.

(3) I find this particularly fascinating because the purpose behind copyright and intellectual property laws in general in the Anglo tradition is to spur innovation.  Coming up with a brand new basket design is innovation.  So in that regard, the concept of TK protection did exactly what is was supposed to do.  However, how useful is innovation that leads to an article that useless from a practical stance?

(4) An anthropologist who studied one of the upriver tribes was in the audience. That was pretty neat.

(5) In Western Copyright law, this would be like the concept of a work that becomes so uniquely its own and removed from the original on which it is based that it is no longer considered a derivative work of the original; such as the relationship between Fifty Shades of Grey and Twilight.

(6) WIPO has a great TK background briefer

(7) Google ngram showing growth of the term

(8) The Implementation Game (Carolyn Deere) goes into this in much more detail on p. 42.

Updated 4/13/2015 with video link.

1 comment:

Mike Linksvayer said...

That's quite a story. I'm glad you wrote it up. Had I not been primed to think it real by mention of an apparently real ethnomusicologist I would've thought it someone's attempt at an allegory for designing around patents, or not using culturally relevant samples, or not using material due to license incompatibility...