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Beverly Diamond

Indigenous cultural and intellectual property under the microscope

by Beverly Diamond

Cultural and intellectual property issues have become urgent concerns for Indigenous groups in their struggle to protect their rights to land, to resources, and to expressive cultural forms that enable both their physical and spiritual sustenance. They share an interest in enabling legitimate access (for instance, community access to archival recordings) while seeking to prevent inappropriate uses of indigenous knowledge.

Song and dance traditions are particularly complex forms of their knowledge and ones that are facing huge new challenges, but also new opportunities, because of internet communications and other aspects of globalization.

As part of the global conversation about such issues, Memorial University and the University of Toronto have collaborated to organize an international colloquium titled, Indigenous Music and Dance as Cultural Property: Global Perspectives, which is taking place May 1-4, 2008, in Toronto. The meeting will bring about 25 indigenous musicians and dancers into direct dialogue with indigenous and non-indigenous researchers, media producers, as well as elders and legal advisors. The participants bring experience and knowledge of First Nations, Inuit, Métis, Hawaiian, Saami, Maori, Pilaga (Argentinian), Suya (Brazil) and Australian Aboriginal cultures.

So what are the issues and why should Newfoundlanders and Labradorians care about them? The research that has led up to our colloquium has focused on three different sets of topics.

One set relates to traditional indigenous knowledge. Because traditional song has the power to revitalize people’s relationship with their land and their communities while also mediating their relationships with others, specific repertoires often have protocols that define who should perform, in what context, and in what places.

These “customary laws” are often more complex than the copyright laws of modern nations and there are many incongruencies between different systems of regulation. Copyright and related legal mechanisms protect individual rights but indigenous people continue to urge international bodies such as UNESCO and the World Intellectual Property Organization to recognize various forms of communal song ownership (by a specific First Nation, a clan, or a family).

Copyright protects individual creative acts but indigenous communities are starting to assert their right to own specific song forms rather than specific songs made in those forms. These issues are relevant in our province because it is the nation state (Canada) that decides whether and when to sign the international protocols. Furthermore, whenever an Aboriginal artist makes a recording or does a public performance, he/she needs to consider whether the traditional protocols must be observed.

There are further issues, however, with performance traditions that are widely admired and imitated by non-indigenous people: consider the didjeridoo, for instance, which is marketed to the whole world online, or the German powwow circuit which is getting larger every day. In what way should the protocols operate in these contexts? What are the understandings of non-indigenous performers of these musical traditions?

We have gathered information about community protocols on our website ( The process of defining protocols, however, is an on-going one. Perspectives both shift over time and differ across different regions. Newfoundland and Labrador Mi’kmaq are now participating in the Mi’kmaq Ethics Watch, one of the protocol-related initiatives of recent years. It may well become one of the models that other indigenous communities will emulate.

A second set of issues relates to archives. Indigenous singers have often told me that they feel they are the most studied, the most scrutinized, and the most recorded people on earth. Equally, however, they often have trouble getting detailed information about the audio and video recordings that reside in archives around the world. A number of initiatives have tried to rectify this.

The Library of Congress undertook a huge repatriation project, called the Federal Cylinder Project, in the 1980s. More recently, a transnational Saami joik project has been funded by the European Union and an Australia National Aboriginal Recording Project has been underway for a couple of years. Both on national or transnational levels and in local contexts, archival projects face the difficult question of who decides what should be put in the public domain and how can access be appropriately controlled? In every case, new technologies are seen as both a boon and a challenge. Canada and, more specifically, our own province has lagged behind many other parts of the world in addressing the archival concerns of indigenous people. Other models may well be useful as we begin to address similar issues. Of course archive questions also pertain to individual folklorists, anthropologists, or ethnomusicologists (such as myself) who must act responsibly about the disposition of our own research collections.

The third set of issues relates to contemporary artistic practice. The late 20th and early 21st centuries are a vibrant time for the visual, theatrical, and other performing arts of indigenous people. In music and dance contexts, innovative work now utilizes the sounds, movements and value-laden processes of traditional learning processes, combining these with diverse styles and instruments.

The Inuit performer, Taqralik Partridge, for instance, started as a traditional throat singer but now incorporates a variety of rap-related word art into her narratives of northern life. The Saami duo, Frode Fjellheim and Ulla Pirttijarvi, use the improvisatory techniques of traditional singers (called joikers) and incorporate elements of jazz and popular music idioms. The Maori band Moana and the Tribe build rhythms that are rooted in the chant tradition of haka but transform them via electronics and contemporary instrumentation.

Artists’ views about how and whether traditional protocols should inform their uses (and teaching) of traditional song vary, however, and there is much to learn about best practices in this regard. They also consider how to avoid what some have called the “aesthetic of pastiche” in world music in order to put forward their unique message, one that raises important questions about the history of encounter among the world’s peoples.

There are further issues of representation to consider when modern indigenous music circulates still more widely via radio and TV, the Internet, and at festivals. The Olympics have become one site that is deeply contentious in that there is often a highly visible indigenous component. Opinions vary as to whether such global showcases are opportunities to counter historic stereotypes or not.

I feel very privileged to have had the opportunity to lead the upcoming colloquium and hope it will take us a few steps further along the road to understanding these issues. We are hoping to develop an educational DVD from the presentations, workshops and performances at this colloquium that might be useful in the schools of Newfoundland and Labrador.

I am grateful to have had the support of University of Toronto colleagues, particularly Dr. Gage Averill, vice-president and dean of the University of Toronto, Mississauga, and Dr. Robin Elliott, director of the Institute for Canadian Music. I am equally grateful for the enthusiastic participation from eight countries and also for generous support from the Canada Council, the Social Sciences and Humanities Research Council, the International Research Linkages program, the MMaP Research Centre at Memorial University, the Institute for Canadian Music (University of Toronto), the Indigenous Peoples Caucus of the Creators Rights Alliance, and the International Council for Traditional Music.

Dr. Beverly Diamond is the Canada Research Chair in ethnomusicology at Memorial and the director of Memorial’s Research Centre for Music, Media and Place (MMaP).