This article is about the soft side of copyright: not just what will stand up in court, but what lies in the cultural expectations of the creators and users of intellectual property, especially those from non-western backgrounds. A wide variety of indigenous and newly immigrant cultures exist within most legal entities in the modern world. It is increasingly important to gain access to the conceptual world of other societies, in order to discuss with them areas where scholarly desires for intellectual goods may overwhelm appropriate cultural respect.
The whole point of a semiotic approach to culture is, as I have said, to aid us in gaining access to the conceptual world in which our subjects live so that we can, in some extended sense of the term, converse with them. -- Geertz, 1973, p. 24.
This article is about the soft side of copyright: not just what will stand up in court, but what lies in the cultural expectations of the creators and users of intellectual property, especially those from non-western backgrounds. These issues have been discussed recently in a number of forums, including the November 2000 "Folklife Collections in Crisis" meeting organized by the Library of Congress in Washington, DC, and the "Digital Collectives in Indigenous Cultures and Communities" meeting sponsored by the National Science Foundation in Hilo, Hawaii, in August 2001.
A wide variety of old indigenous and newly immigrant cultures exist within most legal entities in the modern world. In the United States, for example, the Bureau of the Census recognizes over 116 Native American tribes with a combined population of 1,878,285 according to the 1990 census (the latest figures available) and 28.4 million foreign-born residents. [US Department of Commerce, 1990 and 2000]. For all of these 30 million people, Title 17 of the US Code is supposed to serve as the final, official social contract on copyright. It is the law, and it does not recognize local variants among communities.
Anthropologists, folklorists, or historians who genuinely understand and observe Title 17 when using intellectual property belonging to a member of one of these communities are acting legally, and certainly as ethically as those who rely on their own private presumptions about copyright law. At the same time, they may be violating the cultural expectations of the creator of that intellectual property, or of the community or other groups of individuals that believe they own the real rights. It seems increasingly important to gain access to the conceptual world of other societies, in order to discuss with them areas where scholarly desires for intellectual goods may overwhelm appropriate cultural respect.
My own work as an oral historian generally deals with people from other western societies, rather than with members of fundamentally different cultures. Even within that relatively homogeneous world, I have encountered a variety of strongly held beliefs about intellectual property rights that may have little or nothing to do with US or European law. In my work as a copyright librarian, I have also seen how the Anglo-American tradition varies in significant ways from German and more generally European law, particularly in the work-for-hire and moral rights clauses.
Based on this experience, I would like to suggest three factors that affect how we deal with intellectual property issues across a wide range of indigenous and western cultures.
The next three sections will examine each of these factors in greater detail.
Law and Ethics
US copyright law is complex, but the basic principles are simple:
Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device. - 17 USC 102
The key words are: "original" and "fixed." The test for originality sets the requirements very low, so that most people describing something in their own words would meet that test, and the method of fixation was deliberately made as broad and device-independent as possible. Clearly both digital and analog sound and image recording equipment qualify. The law does explicitly exclude ideas:
In no case does copyright protection for an original work of authorship extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. - 17 USC 102
This exclusion can be important for the researcher. The old-fashioned method where researchers make field notes in their own words, with at most short quotations from informants, has all the problems of faulty memory and misperceptions that cannot later be revised by rehearing the conversation. But that method creates no copyright problems, since the researchers take only ideas, procedures, processes, systems, and methods of operation, all of which the law exempts, and reformulate them in their own unique expression.
Ethics represent, in some sense, the laws of a profession. The American Anthropological Association (AAA) offers ethical guidelines for a number of complex situations, including the possible negative effects from publishing factual data:
…under III(C)(1) [of the AAA Code of Ethics], anthropologists are reminded "... they are not only responsible for the factual content of their statements but also must consider carefully the social and political implications of the information they disseminate. They must do everything in their power to insure that such information is well understood, properly contextualized, and responsibly utilized. ... At the same time, they must be alert to the possible harm their information may cause people with whom they work of colleagues." - Watkins, .
This is an important issue, since facts, per se, have no protection, per se, under US Copyright law (though compilations of factual data can be protected under certain circumstances). If everyone agrees on what "facts" are, publishing them should be legally unexceptionable. Of course, different cultures do not agree. Even within US society, for example, creationists and evolutionists dispute the facts of the Bible versus the facts of the geological record. Facts are as complex as cultures, and disagreements over facts are likely to occur whenever people from different cultures and sub-cultures interact. The AAA guideline only alerts researchers to possible harm. It does not, and probably cannot, sort out the enormous variety of possible intellectual property rules.
An equally difficult problem is that both copyright law and professional ethics keep changing. In 1998, for example, the US extended the term of copyright protection from 50 to 70 years after the death of the author (U.S. Congress, 1998). And the recent publication of Patrick Tierney's book Darkness in El Dorado: How Scientists and Journalists Devastated the Amazon (W.W. Norton) has sparked new ethical debate. Such debates have been going on since the 1970s:
In 1971, the Vietnam War precipitated American anthropology's first statement on ethics, and ethical discourse has been punctuated by crises from within and without ever since. -- Fluehr-Lobban, 2000
This evolution in law and ethics must particularly be remembered when looking back at published works. The authors themselves were creatures of their own time-slice of culture and the laws and ethics it represented. Today is different.
Modern technology has changed oral history and ethnography. When Claude Levi-Strauss first went to Brazil, his recording technology consisted of note pads, pens and pencils, and a camera whose film he husbanded to the point that occasionally he only pretended to take pictures. (Levi-Strauss, 1973, p. 184) Some things he drew rather than photographed. In general, copyright law does not prevent people from taking pictures of people or things on public display, unless the person or owner objects. It may prevent their publication under certain circumstances, such as a photo of work of art, but in general, copyright law has been tolerant toward this level of technology.
Low-cost portable tape recorders and minicassette recorders have made capturing an informant's words easy and affordable. In analog form, this represents little beyond a more thorough form of note-taking, since the analog tapes are not readily publishable. My experience with them is that the quality is almost invariably bad, especially if they are used in a space with poor acoustics or ambient noise. On rare occasions an interview recording might find its way onto a radio or television broadcast, and copyright becomes an issue. Most ethnographical accounts use traditional print-based publications without long verbatim transcripts.
The copyright problem with using digital sound, image, or video arises with publication, not capture. Digital recording devices are not necessarily more invasive of an informant's privacy and intellectual property than their analog equivalents. When used with the informant's consent, for note-taking purposes, US copyright law makes no complaint. But the ease of publication is immensely greater. As the Internet grows faster and as computers become more multi-media friendly, it is tempting to put these already digital recordings on the Web. The temptation is all the greater because the recording quality seems better on average than for analog, probably because instant-replay lets results be viewed and controls adjusted as needed. While Web publication has the scientific virtue of giving all researchers access to the same body of data, so that footnotes can be verified and conclusions disputed or revised, under US copyright law informants own the rights to their own words and images, as fixed in the digital medium, unless transferred by written assignment or unless the researcher had established a work-for-hire agreement. They have a right to object in US courts, if they choose to, and they may.
Today many indigenous cultures have at least some Web access. In the US, for example, many tribal schools and all the colleges and universities have Internet-connected computers . This means that recordings, which at one time would vanish outside the world of smaller and more isolated communities never to be heard or seen, would now, when put on the Web, be available to members of that community. This can have consequences for the community and raises the likelihood of intellectual property objections, either within US law or in terms of their own culture.
Permissions lie at the heart of any system of intellectual property. In US copyright law, the owner of a copyright can give permission for copies to be made in a variety of ways. A formal written contract is probably the least ambiguous, but a variety of informal agreements are also acceptable, including a written note, email, verbal consent, or even an implicit permission such as when speakers are aware that recording equipment is running and do not object. Permission to record a conversation does not imply a transfer of rights. Under US law, only an explicit written assignment can do that. Permissions are also often quite limited, such as to a particular publication or set of institutional Internet addresses.
Because of all the implicit assumptions of which neither side may be completely aware, cross-cultural permissions are problematic. Can a community that has little or no direct experience with digital video and the Internet give a meaningful permission that allows researchers to record them and publish the interview on their personal home pages? Probably not. They may just not care, and the bottom line with US copyright law is that the rights owner must object before any legal action can be taken to prevent infringement. Although deliberate and repeated violation can be expensive, thus far most Web publication cases do not go beyond a letter-of-objection and the removal of the offending copy. Such copyright risk-taking appears pragmatic in the short term, but any de facto violation of US copyright law could also have strong potential for violating the intellectual property customs of a less individualistic community.
Some anthropologists recommend getting informants to give a verbal permission at the beginning of each recording. This excellent practice protects researchers from violations of US law and should certainly be encouraged. Whether such permission is meaningful in the informant's conceptual world may not be immediately clear to the researcher. And what to do after finding out that the persons giving permission did not, in their own society, have the right to do so, remains an issue that researchers must come to term with on their own.
Since the specific of situations matter, the next three sections look at how new digital technology would affect well-known scenarios from published works by Claude Levi-Strauss (Tristes Tropiques), Clifford Geertz (The Interpretation of Cultures), and Clyde Kluckhohn and Dorothea Leighton (The Navaho). No criticism of these authors is intended or implied. The intellectual property issues that arise today are significantly different than when these books were first published.
Brazil: Tristes Tropiques
In this book, Levi-Strauss recounts his five-year journey into Brazil to study the indigenous people and to become an anthropologist. He arrived in Brazil in 1935 and eventually journeyed into the interior from Sao Paulo. One tribe he visited was the Nambikwara, who keep their proper names secret -- using them is taboo:
One day, when I was playing with a group of children, a girl who had been struck by one of her playmates, took refuge by my side and, with a very mysterious air, began to whisper something in my ear. As I did not understand and was obliged to ask her to repeat it several times, her enemy realized what was going on and, obviously very angry, also came over to confide what seemed to be a solemn secret. After some hesitation and questioning, the meaning of the incident became clear. Out of revenge the first little girl had come over to tell me the name of her enemy… Levi-Strauss, 1973 , p. 312
Although Levi-Strauss used this incident to find out the names of adults, he did not (so far as I am aware) publish the names. If he had published them, however, US copyright law would not apply. Names are considered facts in western societies (Feist, 1991). Phone books publish long lists of names and addresses without ever seeking copyright permission. From the viewpoint of the Nambikwara, publishing the names would constitute a very serious violation of something which might not be intellectual property in the strictly western sense, but would represent exposure of some essential part of their personality without their permission. This is something that the moral rights clauses of the Berne Convention try to guard against. It might be the equivalent of publishing a diary that includes very private ruminations against a person's will.
Levi-Strauss merely listened to the names, and wrote notes based on what he heard. He had no recording equipment. If he had, a copyright issue might have arisen, since the words would be fixed in a permanent medium and could be protected under both French and US law. If the recording apparatus were clearly visible, and if the people betraying the names were adults legally able to enter contracts, their speaking might represent an implicit consent for the recording. Since they were children, and since their parents would never have consented, publishing this hypothetical recording would represent an infringement and would constitute an infringement under both US law and Nambikwara custom.
Tristes Tropiques includes a number of drawings of pots, paintings, and facial art. One reproduction of a painting is figure 40. The caption reads: "A Bororo painting representing religious objects." (Levi-Strauss, 1973, p. 263) Levi-Strauss explains nothing about the original. It might have been centuries old and clearly in public domain by the standards of US law, or it could have been made within the copyright law's protection period: life of the artist plus 70 years. Under US law, the copy in the book could be considered a derivative of the original painting, for which permission would be needed before the drawing could be published. The caption also omits the name of the artist. Levi-Strauss may well not have known it. If he had, omitting it could be a violation of the artist's moral rights under both French and US law.
The work might instead have been the artistic equivalent of graffiti, created and abandoned with the expectation that time and routine maintenance would remove it before long. While graffiti could have copyright protection under US law, the owner is normally deliberately anonymous, and nothing stands in the way of copying or publishing protected materials as long as the copyright owner chooses not to object. In any case, the odds of a member of the Bororo tribe taking a researcher to court then or now seems highly unlikely. Whether the Bororo objected is impossible to say. Levi-Strauss apparently did not think so, and he was in as good a position as any to know.
Indonesia: Interpretation of Cultures
In this book, Clifford Geertz describes his experience as a graduate student doing research on the Indonesian island of Bali. He and his wife attended a cock fight, which was technically illegal, and normally held in a secluded location, but this time took place in the town square because everyone thought the required bribes had been paid. They were wrong:
Amid great screeching cries of "pulisi! pulisi!" from the crowd, the policemen jumped out, and, springing into the center of the ring, began to swing their guns around like gangsters in a motion picture, though not going so far as actually to fire them. The superorganism came instantly apart as its components scattered in all directions. People raced down the road, disappeared headfirst over walls, scrambled under platforms, folded themselves behind wicker screens, scuttled up coconut trees. Cocks armed with steer spurs sharp enough to cut off a finger or run a hole through a foot were running wildly around. Everything was dust and panic. - Geertz, 1973, pp. 414-415.
Geertz had no time to make notes while this was happening. He and his wife fled too, which proved to be an important bonding experience with the community. He wrote up the incident soon after from memory, which presents no copyright problems. The vividness of his description does not suffer from the omission of names or other detail that would betray the identities of people at the illegal cock fight.
A researcher in a similar situation today might well have a digital camera, digital sound recorder, or digital video. Some pocket sound recorders are small enough to be concealed, and the zoom on a video or camera can be used from such a distance that the object of the recording is unaware, especially in a crowd intent on events in the ring. In terms of US copyright law, pictures or videos of people at a public event pose no problems. Even a recording of the general sounds of such an event might be acceptable, though conversations with individuals would have protection. But recording such an event would likely violate the community's sense of privacy and their ownership of the "performance" of this piece of their local culture. It would also tempt the police to confiscate the recordings, if they were aware of them, or to use them later for prosecutions, if they were made available as part of the researcher's data on the Web. The recordings could pose real dangers to unwitting informants.
United States: The Navaho
In this book, Clyde Kluckhohn and Dorothea Leighton describe Navaho society as part of the 1940s era Indian Education Research Project. The book includes a translation of the song which "the Singer of the Night Way uses to 'waken' the mask of each supernatural supposed to participate in the rite."
He stirs, he stirs, he stirs, he stirs.
Although Kluckhohn and Leighton do not say so specifically, the context suggests that the text was old beyond memory. That might have meant that the words had fallen into public domain, but only if they had been written down and distributed in a way that met the legal definition of publication. If the song were strictly oral, with neither written words nor written music, the US copyright law of the time (the 1909 law) would have offered no explicit copyright protection (nor would today's law without fixation in some permanent form). If that were the case, Kluckhohn and Leighton could legitimately claim a copyright in their translation, which they did, in effect, as part of their whole book. The situation is too complex for simple judgments.
A contemporary researcher might be tempted both to make a digital recording of the song to decipher later, and to put that recording on the Web for other scholars to hear. Digital recording counts as fixation. Even if the words of the song were public domain (and not merely an unpublished work, which would have a protected status under current law), the singer's performance would be protected. The singer's implied permission to record by singing into a microphone would not stretch to a permission to publish without more active consent.
If a contemporary researcher made such a recording only as notes for the private use, no copyright law would be violated. Whether those notes and that recording would violate Navaho intellectual property rights is less certain. At the time when Kluckhohn and Leighton were writing, understanding Native American notions of intellectual property seemed unimportant. The assumption seems to have been that, like the English-speaking world before the statute of Anne in 1710, Navaho society lacked any defined concept for protecting intellectual property. Today researchers and indigenous communities are more aware of the complex relationships between the ownership of intellectual property and the ownership of their own traditions and rituals.
There are no easy solutions, but there are several ways in which harm can be minimized without losing the advantages of modern digital technology, and without violating intellectual property rights too blatantly. One way is to train anthropologists, folklorists, oral historians, and others in the copyright law of their country, and to sensitize them to look for and respect different ownership rules in other communities. Although this has not begun systematically, most research institutions now provide copyright information and informal copyright courses for any students, faculty, and staff who want them. The opportunity to learn exists, if not yet the compulsion.
Another way to minimize harm is to use trusted repositories to store research materials in digital form, rather than to publish them on the Web. Such repositories can offer reasonable guarantees of preservation and make appropriate arrangements to limit access in ways that meet the needs of all parties. Some such repositories exist, such as the Vincent Voice Library at Michigan State University. But no one who has worked closely with setting up such a repository will minimize the problems of establishing (and guaranteeing) authenticity, meeting standards for preservation in terms of migrating media and refreshing formats, and programming the access controls to accord with all the possible complications of rights owners' permissions.
The question of whose rules to use for intellectual property cannot always be answered in the field. Sometimes the rules of unfamiliar societies can be understood only after substantial research and discussion. Since such a process might take years, researchers also need to maintain a real flexibility when using and publishing intellectual property that may belong to others. In an ideal world, everyone's rules are respected. In the real world, practical solutions must be worked out by individual researchers and the participants and communities with which they interact.
17 USC 102, United States Code, Title 17, Chapter 1, section 102. Available (January 2002): <http://www4.law.cornell.edu/uscode/17/102.html>.
American Anthropological Association (June, 1998), Code of Ethics of the American Anthropological Association, Available (January 2002): <http://www.aaanet.org/committees/ethics/ethcode.htm>
Feist Publications v. Rural Telephone Service Co, 111 S. Ct. 1282 (1991). Available (January 2002): <http://supct.law.cornell.edu/supct/cases/499us340.htm>
Fluehr-Lobban, Carolyn (October 6, 2000), "How Anthropology Should Respond to an Ethical Crisis," Chronicle of Higher Education, Section: The Chronicle Review, p. B24.
Geertz, Clifford (1973), The Interpretation of Cultures: Selected Essays. New York, basic Books.
Kluckhohn, Clyde, and Dorothea Leighton (1962), The Navaho, Garden City, NY, Anchor.
Levi-Strauss, Claude (1973), Tristes Tropiques, tr. By John and Doreen Weightman, New York, Washington Square Books.
U.S. Congress (1998), "Sonny Bono Copyright Term Extension Act," S.505. Available (January 2002): <http://lcweb.loc.gov/copyright/legislation/s505.pdf>
U.S. Department of Commerce, 1990 Census. Available (January 2002): <http://www.americanwest.com/pages/indrank.htm> or <http://www.census.gov/population/socdemo/race/indian/cp-3-7/appenG.pdf>
U.S. Department of Commerce, 2000 Census. Available (January 2002): <http://www.census.gov/prod/2000pubs/p20-534.pdf>
Watkins, Joe (), "Briefing Paper on Consideration of the Potentially Negative Impact of the Publication of Factual Data about a Study Population on Such Population," American Anthropological Society Committee on Ethics, Arlington, VA. Available (January 2002): <http://www.aaanet.org/committees/ethics/bp4.htm>.
Copyright 2002 Michael Seadle