A ‘colonization of knowledge’ – is new copyright law fair to Indigenous people?
March 11, 2019
In the wake of a sweeping music copyright law that went into effect in October, some historic Indigenous songs, stories and languages could be released to the public, raising concerns about privacy and the use of "personal" data.
The Music Modernization Act establishes a system to find and compensate artists whose music was recorded before 1972 whenever their work is streamed online today.
If the performer cannot be located, though, the act allows early folk and ceremonial songs to become public for non-commercial purposes. Artists who are located can appeal the use of their recordings.
Those who can't be found, however, may not even know the recording exists.
Among these works are a substantial number of recordings of Indigenous ceremonies and religious events, taken from Indigenous communities during the first half of the 20th century by anthropologists and sociologists and often held in museum and university collections.
Many of them were taken without permission, any form of transaction or explanation of their intended use. This means that numerous tribes and tribal members have no idea what recordings exist, including ones that may have deep personal and cultural value.
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Under the new law, the museums holding ethnographic recordings could begin releasing large portions of their Native American catalogues online.
Advocates for the repatriation of recordings like these say they constitute a kind of intellectual property the federal government does not fully recognize.
Ethnomusicology scholars, archivists and anthropologists across the country are helping Indigenous communities reclaim recordings of their tribes and families by mining the archives of their own institutions for such audio. It is personal data, they argue, taken under ethically dubious circumstances.
Oral traditions, histories and even laws are an integral part of many Indigenous tribes in the U.S. The ceremonies and stories that were captured by anthropologists are considered a very sensitive kind of knowledge, with special significance to the Native people involved. Unfortunately, that's not how federal law defines their value.
"The problem with intellectual property law is you cast all value in monetary terms. The ethical perspective on Native American field recordings, from anthropologists at least, and from many Native American community members too, is that other kinds of values attach to these," said Aaron A. Fox, an associate professor of ethnomusicology at Columbia University. "They're values of sovereignty, rather than exchange value."
Fox said that while many also see intellectual value in releasing documented history into the public realm, basic social justice requires that Indigenous communities should be allowed to decide which of their traditions are special and how their distribution should be regulated.
The circumstances under which most of the recordings were taken are simply too unequal, he said.
"It's the colonization of knowledge," said Jane Anderson, an associate professor of anthropology and museum studies at New York University.
Anderson said Indigenous people today are asked to secure their rights to their own cultural heritage, rights they never ceded in the first place.
"These recordings weren't necessarily made with the consent and permission for their endless circulation that now happens," she said. "Copyright law doesn't really care about the content, but for Indigenous people, the content really matters."
The U.S. Copyright Office is proposing a provision requiring a "reasonable search" for the recorded performer, including consultation with a tribe in the case of ethnographic recordings "if such contact information is known."
If the proper tribe is contacted, it can file an opt-out notice with the Copyright Office to stop the release of the recording. But that process could prove to be overly burdensome for some tribes, said Trevor Reed, an associate professor of law at the American Indian Policy Institute at Arizona State University, which is advocating for the Copyright Office to consult tribes and experts on how to create an alternative system for Indigenous recordings.
Reed said some tribes will likely not have the staff or resources to track down the actual owners of the recordings, often due to incomplete or nonexistent documentation. The institute is also recommending that the copyright office reimburse tribes for search expenses.
Fox said that with the proper legal and cultural framework, the law could be amended to help tribes repatriate lost intellectual property and at the same time enrich their own connection to their communities' collective histories.
It would be similar to the Native American Graves Protection and Repatriation Act (NAGPRA), which prohibits the sale of Indigenous remains and artifacts.
"The internet has made possible literally thousands of serendipitous discoveries by descendants and tribal communities … leading to reconnections of recordings to families," he said. But unlike under NAGPRA, there's no legal structure that requires institutions to consult tribes about access. "So the whole system is dependent on an apparatus of goodwill and good intention."
Graham Lee Brewer is a contributing editor at High Country News and a member of the Cherokee Nation. Email him at firstname.lastname@example.org.