The Judgment of Solomon: Global Protections for Tradition and the Problem of Community Ownership

Abstract

Then spake the woman whose the living child was unto the king, for her bowels yearned upon her son, and she said, O my lord, give her the living child, and in no wise slay it. 1 Kings 4, 26 Ihr aber, ihr Zuhorer der Geschichte vom Kreidekreis Nehmt zur Kenntnis die Meinung der Alten: Dass da gehoren soll, was da ist, denen, die fur es gut sind, also Die Kinder den Mutterlichen, damit sie gedeihen Die Wagen den guten Fahrern, damit gut gefahren wird Und das Tal den Bewasserern, damit es Frucht bringt. But you, you listeners to the story of the Chalk Circle, Learn the opinion of the elders: That what there is should belong to the ones who are good for it, thus Children to the motherly, so that they may thrive Wagons to the good drivers, so that they are well driven And the valley to the waterers, so that it bears fruit. Bertolt Brecht, Der kaukasische Kreidekreis, 1945 In the absence of local knowledge, global judges depend on wisdom. King Solomon, ignorant of the history of the two rival claimants to a baby, was confident of the principle that mothers are naturally loving. Bertolt Brecht, revising the story, argued that the birth mother might not be the best mother, particularly when vested privilege made her overconfident of her entitlements. As a good communist, he mistrusted the Lockean tradition of possessive individualism that equates origins with ownership (Hafstein 2004a, 306). But as a good modernizer, he had global assumptions of his own. In the frame story to his Caucasian Chalk Circle, a Party representative helps two village councils to resolve a dispute over the possession of a valley. The goatherders who have made cheese in the valley since time immemorial agree to surrender it to an agricultural cooperative that has a plan to irrigate it for orchards, a more productive use of the land. (1) Stalinist agricultural reality, in turn, tragically undermined Brecht's assumption that modernizing planners always know best (Scott 1998). In fact, judges' wise assumptions are often undone by historical outcomes. In this article I address a more recent debate over possession: who owns tradition? (Brown 2003; Rikoon 2004; Hafstein 2004a). I suggest that some of the assumptions of global advocates for local communities in current intellectual property struggles may be equally ephemeral. I speak primarily from the experience of my own discipline, folklore. Since the history of commercially recorded music and more with the post-1960s growth of a market for traditional arts, folklorists have repeatedly become involved on an ad hoc basis in disputes over the rights to a particular tradition. Many of these disputes impinge on copyright and other forms of intellectual property law (Cohen 1974; Jabbour 1983; Evans-Pritchard 1987). Others take place in the context of heritage preservation efforts. Folklorists were involved in UNESCO's efforts to establish model provisions for the protection of tradition in 1980 and again in 1989 (Jabbour 1983; Kirshenblatt-Gimblett 2004). With UNESCO's Intangible Heritage initiatives since 1972 and with the creation in 2000 of the World Intellectual Property Organization's Intergovernmental Committee (IGC) on Genetic Resources, Traditional Knowledge, and Folklore, folklorists have been participating more intensively as what John Kingdon calls policy entrepreneurs in global initiatives to protect local tradition (1995, 122-24). While we are, as Kingdon says, motivated by a sense that our expertise can contribute importantly to a debate that concerns us closely, some of us may admit that we also fit another of his categories, policy groupies, eager to be where the action is. And in fact we are gaining a place at the table. Some of our colleagues sit on UNESCO's Intangible Heritage Committee, two representatives from the American Folklife Center of the Library of Congress serve on the U. …