The Politics of Origins: Collective Creation Revisited

Abstract

The Politics of Origins:Collective Creation Revisited Valdimar Tr. Hafstein, Ph.D. candidate (bio) Is collective creation a figment of the nineteenth-century imagination? Have folklorists long since surpassed communal theories of creativity? That, at least, is the official position of the United States government. Who knew the government even has a position on the origins of folklore? That, in and of itself, warrants further exploration. More important, this position carries consequences that extend to international politics and trade. These consequences illustrate the nexus between theory and policy, to which folklorists (in spite of appointments to public offices) have long been remarkably indifferent. Theory and practice are divorced in a bifurcated field, rendering the political articulations of folklore theory all but invisible.1 What follows is an attempt to render visible the political dimension of concepts of creativity that are widely accepted (yet rarely articulated) among folklorists in the United States. The official U.S. position on the origins of folklore was put forward at the fourth session of the Intergovernmental Committee on Genetic Resources, Traditional Knowledge, and Folklore at the Geneva headquarters of WIPO (World Intellectual Property Organization) in December 2002.2 In her opening statement, the head of the U.S. delegation (Linda Lourie of the U.S. Patent and Trademark Office) questioned the notion that folklore is "communally developed," referring to the reports prepared by the WIPO Secretariat for this meeting that indicate traditional knowledge "is generally understood as being the result of creation and innovation by a collective originator: the community" (WIPO 2002c:31).3 The chief delegate of the United States scoffed at what she described as "nineteenth-century notions" and claimed that, on the contrary, folklore is "always individually created and then adopted by the community" (author's notes, December 9, 2002). Her statement gave this folklorist pause. Perhaps a little context will help explain why. Some ninety-four national delegations,4 eighteen intergovernmental organizations,5 [End Page 300] and fifty-four nongovernmental organizations (NGOs)6 were represented at the meeting of this committee, the purpose of which was to evaluate the need for legal protection of folklore and traditional knowledge at the international level and, if the need is recognized, to propose mechanisms for providing such protection.7 The problem that the committee was to address is that, although intellectual property rights (copyright, patents, industrial design protection, and so forth) offer strong protection to creations that are original, novel, and attributable to an individual creator/owner (person or corporation), they systematically exclude products of the creativity of a large part of humankind—creations that may be considered traditional.8 A great number of member states have frequently brought this matter up in the organizations of the United Nations in the past three decades, but so far to little avail (cf. Brown 1998). Despite the official Model Provisions for National Laws on the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Actions adopted jointly in 1982 by WIPO and UNESCO and the equally official (and equally nonbinding) Recommendation on the Safeguarding of Traditional Culture and Folklore from UNESCO in 1989 (Honko 1990a, 1990b; Seitel 2001), next to no progress has been made at the international level.9 To be sure, copyright and other intellectual property regimes have been globalized through various treaties and accords signed during this period, but they still exclude all creations that cannot be considered original/novel and whose origination cannot be attributed to a specific person or company. Meanwhile, ever greater parts of collective imaginaries, traditional knowledge, and technology formerly held in common have been privatized through intellectual property regimes as the reach of those regimes is extended and the protection they offer is deepened (e.g., Coombe 1998; Lessig 2001; Vaidhyanathan 2001; McCann 2003; also noteworthy is an old "dialogue" between Gershon Legman and Charles Seeger in Western Folklore [Legman 1962; Seeger 1962]). WIPO's Intergovernmental Committee was set up as a compromise between "developed" and "developing" countries, with the former pushing for global enforcement of intellectual property rights and the latter demanding equitable protection for their traditional know-how and expressions of culture. The idea was to keep these concerns of the developing countries out...