Remix, Copyright, A2K, and Indigenous Intellectual Property Rights

By Sarah Carr-Locke

Since last September, I have been a Research Assistant for the Digital Information Systems and Cultural Heritage working group for the Intellectual Property Issues in Cultural Heritage (IPinCH) project. 

Before starting this work, I was aware of some innovative digital cultural heritage projects (such as the Reciprocal Research Network) and could easily reflect on why the Internet might present both an opportunity and a challenge for Indigenous heritage, yet beyond that I was fairly new to the topic. As I began conducting research and entering items into the IPinCH Knowledge Base, I became more educated and excited about the Access to Knowledge (A2K) debate, archaeological repositories, innovations in Australian Indigenous archives, and how Indigenous communities are choosing to use digital databases to record their cultural information, to name a few examples. The ways Indigenous heritage is treated and managed in the Western world is complex at best, and whether you are a non-Indigenous researcher (like myself) or a community researcher of any kind, you will often come across contradictions in the intersections between your personal experience and your research. I thought I would use this blog to explore some ideas about music and to respond to some issues that I have come across during my research.

As part of my self-guided research, a few weeks ago I watched RiP: A Remix Manifesto, an amazingly creative and articulate documentary on “remix culture” in music. I am a big music fan and most of the music I listen to includes the practice of sampling older songs to create new ones (as is common in hip-hop and various electronic types of music). My recent research into Indigenous IP rights and open access research results made me consider the film in a way I would not have before my RA work. When I talk about intellectual property issues in general with my musician friends, music licensing rights come up frequently as a topic of debate.  RiP argues that artists and DJs should be able to use others’ sounds to create new and innovative music that is more than the sum of its parts.  If one wishes to legally use portions of older music, they must pay thousands of dollars in licensing fees to the large record companies that own the rights over the use of both music and lyrics of the artists that are produced on their label. Thus in the case of the remix artists presented in this movie, their ability to express themselves creatively is being repressed (partially by being made unaffordable) by large corporations that seek to control and limit new cultural production. The movie makes a great point when it goes through sequential clips of how blues music for example has constantly been reinvented throughout the decades in a pastiche that has continued through rock to electronic and DJ culture and illustrates that music naturally borrows from what came before. Within the hip hop that I tend to listen to, the use of bits of old jazz, blues and disco is seen as a way to pay tribute to artistic influences and as a device to display cultural continuity and political solidarity with different eras of African American culture. In other words, the remixed music is used in a purposeful, strategic fashion in order to create something new.

However, some of the main points made in the movie are problematic from an Indigenous IP perspective.  The remix manifesto presented movie is as follows:

1.    Culture always builds on the past

2.    The past always tries to control the future

3.    Our future is becoming less free

4.    To build free societies you must limit the control of the past

Within the context of the arguments made in the movie, “the past” refers to music that was written anytime before today.  The controllers of the past in this case are the Intellectual property rights holders of the music, which again tend to be large corporations (such as Disney), rather than the original artists themselves.  The documentary makes a valid and important point about the commoditization of creativity and demonstrates that there is an unbalanced IP legal system, which does not serve the creators or would-be re-mixers of the music, but only favors the continued amassing of money for a small number of corporate bodies.  For me, it is easy to sympathize with the musicians in favor of a less limiting licensing system that is more democratic.  It is also easy to agree with the film’s point that the IP system is messed up.

However, I couldn’t help but wonder about what was not addressed in the film – what if an artist wanted to use a sample of an ethnographic recording of an Indigenous song (as Deep Forest and others have done)? Many have written about the use of and protection for traditional music, so I won’t spend much time doing so here, but I wanted to question why this issue seems to be missing in these types of manifestos. What if “The Past” is not your culture’s past but the Intellectual Property of a culture that is being oppressed within your society? What if that past and associated images/trademarks are also being controlled by corporations (i.e.: Disney’s use of Pocahontas)? What if the open use of others’ past caused the reinforcement of negative images and stereotypes that actually have political consequences for Indigenous people in the present?[1] Is there a difference between an homage and appropriation? Indeed, if the manifesto is taken out of its intended context and examined from the perspective of IPinCH concerns, the manifesto sounds offensive. 

The A2K movement often presents its argument in similar terms to the remix manifesto – pitting elite academic institutions that keep research limited against regular members of the public and people in other countries who would use knowledge in their own ways to better the world, without the requirement of university tuition. Knowledge, they say, should be “free” for all and accessible through the Internet. Initially, both the A2K and remix arguments sound ethical and appropriate for encouraging fair use of common culture. Yet, many Indigenous communities and their allies will note that traditional knowledge and other forms of intangible heritage are often used inappropriately, without permission and for financial gain for third parties. They are therefore understandably wary of a system that is fully open, either from the point of view of music use rights or research results. This creates a strange situation where polarized thinking about openness for IP creates bedfellows of Indigenous groups, media conglomerates and elitist academic institutions. I believe, as do many others, that it is a basic human right for Indigenous communities to have a say in how their traditional (and archaeological) cultural information is used and presented to the public.  This right to manage heritage should not be equated with a dictatorial urge to limit the artistic and intellectual freedom of others, but should be understood as a way of ensure that the benefits of traditional culture go to the community of origin first and foremost. 

As a response to RiP and some of the arguments for A2K, I offer the following Indigenous Intellectual Property manifesto.

1.    Free Access ? Equal Access. It should be recognized that access to resources (technological, financial, legal, academic) is not evenly distributed across society or cultures and is biased in favor of non-Indigenous, Western peoples.

2.    Ethical and fair uses of the past (be they musical or otherwise) must be prioritized over exploitative and possibly spiritually or social harmful uses of the past, particularly in the case where societies see this past as part of their living present.

3.    Simplistic arguments should be examined critically. Everyone should be critical at all times of every side of the debate, and of simplistic arguments for openness and access – and to question who might benefit most and who might be more vulnerable to exploitation under openness.

4.    Traditional Indigenous culture is neither static nor fixed in the past, but is continually negotiated (or remixed!) in the present. Therefore it is not a contradiction for Indigenous groups to want to take advantage of all the benefits of information and communication technology for their own aims.

5.    Those involved in projects wishing to utilize traditional culture not their own are encouraged to involve community members in their project and, when appropriate to donate a portion of their proceeds to community-based projects that empower communities.

While the A2K and remix movements seek to democratize culture and knowledge, true democratization is only possible through a close consideration of ethical exchanges and equal rights.  The colonialism, racism, unequal access to resources, and other unpleasant features of society as a whole will tend to be replicated within the digital realm, yet there is an opportunity to comment on and combat these inequalities while we work towards democratic access to knowledge and culture. I will continue to listen to sampled music, but will favor the use of Indigenous words and sounds by Indigenous artists (see for example beatnation.org) and will remain critical of my consumption, but also revel in the fantastic opportunities and conversations that this time in history allows.