AU IP/Gender Panel I: Women’s Leadership in Traditional Cultural Production

Panel I: Community Structure and Women’s Leadership in Traditional Cultural Production
Moderator – Margaret Chon, Seattle University School of Law
Helen Chuma Okoro, Nigerian Institute of Advanced Legal Studies (and CC Nigeria), Traditional Knowledge, Intellectual Property Protection, and Matriarchal Dominance: The Case of Traditional Textiles in South Western Nigeria
Research looked at how to use communal TMs to promote products in Nigeria, esp. textiles. Findings: very difficult to use communal TM to promote textile sector particularly, because of structural organization of sector.  Characteristics of textiles: traditional knowledge; intergenerational in nature.  Good reputation: markets exist for the fabric (adire).  Method of production is natural, organic, by hand. 
A market leader, matriarchical structure: mother figure, very influential.  How can that relate to IP? There’s an idea that traditional knowledge is inconsistent with traditional IP.  But traditional textiles are fundamentally produced for commercial purposes, so the idea of noncommercial TK is not relevant; the reputation is what needs protecting.  Everyone wants to benefit from the reputation, so there’s lots of imitation.  Traditional textiles are more expensive to produce; have difficulty competing with copies/synthetic imitations.  Many families therefore may abandon the production.  Need incentive to continue in trade, and IP could provide that.  They understand they do have some kind of property/right, though they don’t call it IP. They do share designs, but against outsiders they won’t share. Maternal line transmits the knowledge.
Small, fragmented industry of producers.  Traditional model: result is lots of competition.  Communal methods can work better—protect designs individually by copyright, individual TM, but lack enforcement capacity. Nigerian TM act dates from 1965, substandard. Protection for certification marks but not GIs.
Market mother may be able to provide the necessary structure to make sure standards are maintained, work hand in hand with standard organization for certification marks.  If that works, can be transplanted to other sectors.
Lorraine Aragon, University of North Carolina, Cut From the Same Cloth? Reimagining Copyright’s Relationship with TCEs and Gender in Indonesia
Between 2003-2010, weaver argued w/district headman about his plan to © a textile design. Nela’s argument wasn’t technical/legal but about needs & customs of women.  Widely shared traditions exist across Indonesia; she was defending what women of the region (not the nation, a recent invention) customarily do—share designs/knowledge.  District head predicted econ. benefits to recently created district; drawing on recently enacted law saying state holds © over folklore and people’s cultural products—district’s procedures could be “cut from the same cloth” as national law.
Offers ways to rethink authorship and property models in light of gender, in a nonwestern context.
Textiles: how do the weavers view claims over their work? In Indonesia, this is women’s gendered domain (also pottery); where other TCEs are more male-controlled.  Convergence of IP and cultural property (CP) models in developing nations—discussed as provincialization of IP (though all IP can be discussed as provincialization).  Other literature calls it indigenization of IP. But that doesn’t work for Indonesia; may not work anywhere that lacks indigenous group membership/enrolled tribes/clear lines of authority/a state eager to appease indigenous groups. There’s no legal category of indigenous people in Indonesia, but over 300 ethnic groups.
Reverse anthropology: look at things w/logic of local people.  Materiality studies: the spirit/nature/agency of possessions. 
These textiles are handmade, used for ritual purposes/exchanges; regional market, sometimes internal or external. Internal market is shared and guarded, somewhat separate from external markets. Index ancestry & community status; you wouldn’t ordinarily want to make a design from another group.  Some dyes take years to make.  Producers describe themselves as conduits; say they learn the most complex, dangerous designs in dreams. (Conduit description is not limited to women—male producers in male genres say the same thing.) Splitting agency outside the self; carrying on traditions. They do make claims for themselves, but not ownership or origination claims even though they might be adding creativity the west would consider copyrightable.
Convergence of IP and CP in Indonesia and several other places. Variable dynamics of this convergence often go unrecognized.  Domestic concerns change response to TRIPs.  Settler states: North America, Australia, New Zealand—different process than in postcolonial states.  Settler states: indigenous groups can advance political goals through IP claims.  Postcolonial: individual producers have weak status—CP promises the actual producers very little, even as others get excited about it.  Idea of culture as property is not of interest to producers, because both IP and CP deny their distributive practices/informal management of system.
Indonesian law: state has © in folklore and people’s cultural products owned in common; includes stories, dances, clothes, sculptures, handicrafts, jewelry, traditional weavings, etc. with no time limits on folklore protection—very big state claim.  The design is not unfamiliar in Indonesia: echoes postcolonial eminent domain land law. In history of SE Asia, rulers’ interest was never land/ownership—there was plenty of land. Wanted to control labor. Only when Europeans came in did they look to control land as property.  The idea of private property is crosscultural—legacy of Dutch control.  Indonesia’s government controls oil; rainforests are being cut down; wants to diversify its resources = shift to CP.  Property law is there to remedy waste: idea is that if it’s not owned it’s not being well used—lawyers felt that Indonesians too freely and naively gave away cultural resources to outsiders, so state has to do it for them.
Repercussions of law: allegations against Malaysia for cultural theft of batik, beef curry, dances, etc. Accused Robert Wilson of appropriating a Bugis myth for int’l production of I La Galigo, 2004-2005—he asked for local permission but state said that wasn’t enough. Pursued w/tremendous passion b/c IP doesn’t offer them much in conventional form.
District leaders then sought to © elements of “their” local culture. Flores example on which paper is based is outstanding because there were no “foreign” cultural thieves at issue. District had been formed from other districts; district head got the idea that he could © the “chicken eye” design and collect royalties from weavers who were now outside the district.
Indonesia long defined geographic-political units according to ethnicity and TCEs, part of the nation-building project. In reality, people and TCEs move fluidly across these boundaries.
Weavers said: our ancestors didn’t live only in this new district; techniques are transferred through marriage and migration. We all come “from one bamboo clump.”  © will kill the small women entrepreneur—there are so few economic opportunities for women without capital here, but if some women own certain motifs, they lose that.
Other women: customary law is weightier and more accepted than state law. © in state was a solution looking for a problem. The language of the © law is not intrinsically gendered; makes all producers of TCE childlike wards of the state.
Can IP provincialization be done in a socially progressive way that helps indigenous groups?  It doesn’t work as formulated in Indonesia. Could positive law support women’s customary authority over TCE production?  Unless it does, we can expect them to walk away from it as much as they can.
Chon: Three major themes: (1) diversity, (2) hybridity, (3) pluralism.  Take us away from the metaphor of war we’ve worked with in the © field for so long.  Oppositional relation between free expression/exclusive rights—very tired as a metaphor. Hybridity, heterogeneity, multiplicity instead—but conflict and tension are still inherent in those relations. This isn’t shiny new happy world, but instead we have many things to figure out.
Okoro’s matriarchal figure: variations/nuances on this figure.  Existence of multiple markets: not just global postindustrial mass markets. We need to be more like antitrust/competition lawyers in looking at the market at issue and its particular needs.  Also: difference in power structures and leadership.  In Nigeria, power shifts to women in ways that the typical IP model doesn’t recognize.
Hybridity: both papers talk about TK or CP as it intersects/hybridizes with formal IP categories, particularly TM and ©, and how that affects traditional cultures: Okoro is a more positive story, Aragon more negative. Okoro = fill the needs of a high-end market if it can be connected to that market.  What could be the incentives to allow traditional weavers to continue work? She identifies certification mark; what really jumped out in paper is the idea that these textile production units are family based—going to biological daughters rather than daughters in law. Deeper commitment, as a result, to the production unit than in a typical business unit, which we might want to protect.  Can this deep commitment be translated to a highly decentralized, global market.  But one challenge is there’s no enforcement capacity for small local entrepreneurs and little capacity in the IP enforcement system period.
Final challenge: how do you signal the qualities—high quality, handmade, organic, credence attributes—with a relatively shallow right, TM?
Aragon: (1) Social norms, or IP without IP.  (2) Second enclosure movement: eminent domain laws have an analogue in use of © for TCE.  Jamie Boyle has identified this dynamic in West.  (3) Facially neutral laws with differential impacts, as in this case study. 
Aragon offers a solution from the people: look at what they’re doing creatively and think about how to address that production model.  Indigenization model doesn’t work in the context of Indonesia, v. New Zealand with a vocal minority community and a state eager to appease that community’s legal interests. That goes to hybridity: local circumstances may be very different from dominant models.  Also: these textiles are means of reflecting and indexing one’s place in the world: how do we hang on to the local identity in a globalized, marketized world? Use of IP to assert national sovereign power, vs. Malaysia for example; used as a way for Indonesia to assert its muscle in the world.  How does that work versus industrialized countries that might appropriate and monetize—Robert Wilson?  Power dynamic of Western grabbing & not sharing benefits. 
Finally, Q posed is whether and how IP can accommodate communal, local practices.  State-owned model Aragon gave is is clearly not the ideal model, but what is the alternative?
Betsy Rosenblatt: she saw distinctions between ingroup and outgroup dominating, and Qs of how we define the ingroup. The ingroup in both cases seemed perfectly capable of governing itself—Q is how they protect selves from intrusion/appropriation by some outside group, whether industrial copiers or the state. But Indonesian state saw the ingroup as the whole state, and wanted to protect against other states.
Okoro: the ingroup isn’t working correctly in Nigeria now because it’s very hard to protect from outsiders/globalization.  Need to go beyond the ingroup model, and IP/TM is a way to do that.
Aragon: some communities are being flooded w/cheap Chinese (or Indonesian) knockoffs. Bali deals w/it by info: trying to educate the tourist about machine/chemical production v. the real thing used in rituals w/2-year dye made from plants.  There are market conditions where people go to the cheap version b/c that’s what they can afford. SE Asians in general think the gov’t isn’t helping them with import issues/trade issues; they don’t specifically care about IP but about local support/trade laws.
Jessica Silbey: Nigeria—concerns over integrity and misuse. What counts as misuse?  Just copying or a particular use?
Aruna Ranganathan has been doing ethnographies in Indiaof local craftmakers—experiments to figure out how they market their work differently. They will sell their work for less to people who appreciate authenticity; charge more for people who seem not to care whether it’s an imitation. Using market segmentation to preserve status, but in the reverse of what we’d normally see. Shows what people care about in different communities re: how their work is exchanged and experienced. Seen anything like that kind of price discrimination used to preserve status, identity, or value?
Okoro: Economic advantage is the primary concern. There are some textiles with symbolic meaning, but that is not as important here.  Profit means that misuse is knockoff/passing off.
Aragon: price discrimination goes on all the time in Indonesian markets, but it’s more what we expect—foreigners/nonrelatives get charged more.  May make indigenous designs with cheap dyes so that local people could afford them.  Indonesians wanted to control their own designs; didn’t care what foreigners did and kept their productions separate; misuse was generally not of great concern, with a few exceptions.
Irene Calboli: What do traditional people want? Everything: tradition, control, market access, the ability to set prices—they want what Westerners want; they want respect for their IP but they don’t care about knocking off TMs from the west.  They see the value of the model, but understand that w/in the bigger community they have to play a different game.  How IP can help is difficult—GIs are ways to guarantee geographical region origin, with variation.  If the fake Louis Vuitton helps sell the real ones, the Pier One knockoff may help sell the authentic versions—Pier One is often the first access.  Add to this the problem of corrupt governments.  Also the role of UNESCO certification—batik has this certification; tangible and intangible IP are eligible, and gives some legitimacy.
Aragon: that’s why Indonesia says UNESCO gave them the copyright and Malaysia can’t do it.  (Even though Calboli points out that is not what UNESCO did.)
Bali is really different from the rest of the country: commodified genre may worry about knockoffs; others say they want more gov’t support for things that are disappearing, but they don’t want access to law because they know that law doesn’t function for them—not looking to sue (or be sued).  Gov’t level and local producer level must be distinguished; semi- or partially-commodified markets either at the regional or int’l level. GIs might be something to think about, but not what they’re thinking about.
Okoro: Agrees they want everything, but textile producers want more economic advantage primarily. Just like every creator!  Dignity to some extent, but at this point they’re more worried about economic prospects.
Peter Jaszi: To what extent do the modes of regulation discussed interplay with the imperative for preserving space for dynamism in traditional culture?
Aragon: Copyright doesn’t seem to be the right measure.  Registered designs were ancient but being claimed by corps/big families. I would look for something grassroots, which isn’t there yet.
Okoro: the TM model would allow evolution w/in a controlled environment rather than being overly influenced by economic interests from outside. Just trying to meet demand from outside kills authenticity, but creating incentives to maintain traditional quality allows a different basis for competition.
Jaszi: discusses producers’ difficulty negotiating “living wage” price from Pier One—a problem not particularly susceptible to IP, but perhaps to consumer information and some militancy by well-meaning consumers. Even if Pier One is an entry point, right now those outlets are killing rather than sustaining the communities whose goods are being exported.
Chon: a problem of information flow rather than IP per se.
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