Writer : Guha Shankar
Year : 2010
A central debate in the international forum centres on the ways in which intellectual property (IP) protocols can protect the intangible cultural heritage (ICH) – documentary recordings of songs, music and dance performance, verbal art – of indigenous and native communities from appropriation and exploitation. Less attention has been paid to the means and methods by which such artefacts are created and how such practices may enhance cultural protection and aid in community cultural sustainability. An on-going programme, launched in 2008 by a coalition of international institutions, seeks to train indigenous community members to document their traditional cultural expressions, folklore and ways of life, and to employ best practice in the organisation and management of documentary material. The lessons and issues arising from this project will broaden and deepen current understanding and discussions in the debate over IP, ICH, cultural representation and empowerment.
This paper begins with a copy of an email message from January 2010, received by staff at the World Intellectual Property Organisation offices in Geneva, Switzerland, the American Folklife Center at the Library of Congress in Washington, DC and Duke University’s Center for Documentary Studies in Durham, NC. The email originates from Nanyuki, a town in Laikipia district, located in the Rift Valley Province of central Kenya, some ninety miles from Nairobi, the national capital. The author is a young Maasai woman, Ann Sintoyia Tome, a member of the Il-Laikipiak Maasai section of the larger Maasai community that is spread out across Kenya and Tanzania. Her message was as follows:
Hope the new year has begun well for you. Here in Il Ngwesi we began the year with a lot of rain and now everywhere is sooooo green and beautiful we are happy and the cattle, sheep and goats are happier, unfortunately there has been some few incidences of animals stolen from Il Ngwesi and as a result there is tension between Il Ngwesi community and their neighbors the Samburu but last week a group of people from both communities decided to hold peace talks between the two communities and they employed traditional peace building mechanisms. I borrowed a mini camcorder (canon HV20) from a friend and was able to document the meeting and since the process is on going I will be documenting the processes and I hope to produce a documentary. Today I will be downloading my work and hopefully try to edit the stuff - hope I will remember my lessons
(Tome, Ann, personal communication, January 2010)
The email makes apparent a chain that links four organisations that are politically, temporally and spatially separate. In the letter, Ann Tome, a member of Maasai Cultural Heritage Foundation (MCH), which is an indigenous community-based group in Kenya, addresses Wend Wendland, Director of the Traditional Knowledge Division at WIPO, Tom Rankin, Director of the Center for Documentary Studies and the principal author, a folklorist and anthropologist on the staff of the US National Library. The letter goes directly to the heart of a recently-initiated project that gives concrete shape and substance to, and connects in meaningful ways, the disparate and sometimes abstract realms of intellectual property, traditional cultural expressions, indigenous knowledge and practice, cultural sustainability, audiovisual documentation and training for cultural communities, and archival techniques.
This article, then, consists of understanding Ann Tome’s letter against the backdrop of this project and in relation to the aims and goals of these four organisations. In some measure, the article points to a crucial realm of regimes and schemes for IP, ICH, cultural property rights and control, namely - how will existing instruments and programmes accommodate the active involvement of cultural communities in the creation of, and positive self-exploitation of their own cultural assets? It claims that such communities can, in important respects, shift their traditional status as objects of anthropological study to the role of producers and self-reflexive, self-conscious ethnographers and subjects. But the broader problem remains, namely that while indigenous and other cultural communities might take a leading role in their own processes of self- representation, they still remain at the mercy of structural imbalances and deprivations that remain entrenched, particularly bio-prospecting and the cultural theft of traditional knowledge and genetic resources. The conjecture and critique then, is that while ICH and Traditional Cultural Expressions (TCEs) and Traditional Knowledge (TK) are foremost on the agenda of world bodies, the larger societal, historical and political issues may well remain under-examined.
So to begin. In 2008, the World Intellectual Property Organisation, a specialised agency of the United Nations, initiated the Creative Heritage project which, if developed along the lines envisioned for it, promises to shift significantly the discourse and practice of intellectual property protection for traditional and indigenous communities. Since its establishment in 1967, WIPO’s larger mandate and interests have been aimed at the development of a worldwide -
..balanced and accessible international intellectual property (IP) system, which rewards creativity, stimulates innovation and contributes to the economic development while safeguarding the public interest...(http://wipo.int/about-wipo/en/what_is_wipo.html)
Within WIPO itself, the issues of protecting the intellectual property and cultural heritage of traditional communities, including those of indigenous groups, occupies a separate but important space. Since 2001, deliberations and discussions of WIPO’s Intergovernmental Committee on Traditional Knowledge, Genetic Resources and Traditional Cultural Expressions/ Folklore (more commonly known as IGC), have centred on the perceived need to protect the traditional knowledge of cultural communities (TK) and their traditional cultural expressions (or ‘folklore’ - a contested term) from being appropriated and misused. Such discussions take place among and between representatives of national governments, first nations, other indigenous groups and a number of observers and NGOs. Such discussions have also focused on how communities may participate in, and derive financial benefit from, the commercial development of traditional cultural forms and artistic performances and establish control over their own intellectual property (WIPO, op cit.).
Up to the moment of the launch of the Creative Heritage Project, the IGC’s focus, or more precisely, the focus of the staff of WIPO, was on developing, defining and refining the legal mechanisms, instruments and technically specific discourse that is the province of policy makers and policy implementers, legal mavens and patent specialists. The Creative Heritage Project, and more specifically the initiative termed Community Cultural Documentation, (http://www.wipo.int/tk/en/folklore/culturalheritage/community-cult.html) marked a departure from established procedures in that WIPO now aimed to directly
...assist indigenous communities to document their own cultural traditions, archive this heritage for future generations, and safeguard their interest in authorizing use of their recordings and traditions by third parties.(http://www.wipo.int/tk/en/folklore/culturalheritage/wipo-afc-cds.html).
Concentrating on the keywords in this text, WIPO entered the realm of ethnographic field documentation, digital recording, librarianship and curatorial work all at once and all at the same time.
The genesis of this move can be traced back to conversations between Wend Wendland and the representatives of various indigenous communities who have been attending the meetings of the IGC over the last few years. Among them is the Kenyan indigenous organisation, Maasai Cultural Heritage which represents the Il Ngwesi Maasai group who are part of the Il Laikipiak Maasai group within the wider Maasai community. Sometime in 2006 or 2007, on the heels of an expert consultation visit to Kenya by WIPO and the International Labour Organisation, it was MCH who pitched the idea of a training programme that would enable them to gain comprehensive skills and technical expertise in a number of areas to use for community sustainability initiatives.
A little historical background may be in order here. The Laikipia Maasai of Kenya are a Nilotic people, who speak Maa, a language they share with other Nilotic people such as the Samburu and Camus. They are traditionally pastoralists whose economy, sense of identity, religious customs and expressive cultural practices have been inextricably linked to the maintenance and management of large herds of livestock - mostly cows but also goats and sheep. Even in the areas in Laikipia district where they are concentrated, the Maasai are a political and cultural minority – according to some estimates they comprise less than 10% of the population in this region (or about 35,000 individuals) (http://www.maasai-association.org/maasai.html). Despite their small numbers and marginalised position within Kenya, they have long held iconic status in the national and international imagination as cultural exotics and part of the Kenyan landscape.
But the Maasai’s future, already constrained in the colonial and immediate post-colonial eras, has become even more troubled of late. In a report and request for assistance prepared for WIPO in 2007, John Ole Tingoi an Il Ngwesi Maasai man and MCH member, reported on the conclusions that the Maasai themselves had arrived at following a community-wide meeting held in 2003. The 2003 meeting identified constraints and impediments to a sustainable Maasai future and these were not only present but intensifying by the time MCH made a formal request to the IGC for assistance in 2007. It is a sobering picture of poverty, of the appropriation and exploitation of cultural property and intangible cultural heritage by external forces, of the appropriation of ancestral lands and the displacement of communities, of cultural loss in the realm of language and the attendant dissociation of Maasai youth from their cultural community. All of these things retard the community’s efforts at self- determination, sustainability and the maintenance of identity. (Ole Tingoi, John, July 2007, A Case of the Laikipia Maasai in Kenya, for the WIPO panel on Indigenous and Local Communities’ Concerns and Experiences in Promoting, Sustaining and Safeguarding their Traditional Knowledge, Traditional Cultural Expressions and Genetic Resources, WIPO/Grtkf/Ic/11/ Inf/5(A)). The following highlights from the report indicate the various aspects of Maasai society which are under threat.
The expropriation of lands is a particularly problematic example of the way both international and national forces impinge on the Maasai’s traditional way of life. The process of expropriation continues the policies of colonial era governments and the post- colonial state into the present day, this time, however, with added pressure being brought to bear on cattle culture by the forces of wildlife conservation and eco- tourism (Kimuyu, 2009). After agriculture, tourism is Kenya's next largest source of foreign revenue. The main tourist attractions are wildlife safaris through the nineteen national parks and game preserves. Parks like the Maasai Mara National park are world famous. Those of us who have grown up seeing dramatic images of enormous picturesque herds of wildebeest on wildlife programmes on TV will be aware that Maasai Mara is where the animals head for in summer on their annual migrations from the Serengeti. While the parks are truly amazing, and a world treasure, they have also been carved out from the traditional grazing lands of the Maasai and other pastoralist communities in Kenya, such as the Samburu, Boran and Turkana. With regard to the national parks and the ascendancy of wildlife tourism as the economic engine that drives Kenya, the policy has been to enforce the cessation of cattle grazing and the movement of livestock from one grazing area to the other through lands that were once open. (Grandin, B.E., n.d.. Pastoral Culture and Range Management: Recent lessons from Maasailand, http://www.ilri.org/InfoServ/Webpub/Fulldocs/Bulletin28/Pastoral.htm ; Markakis, J., 2004, Pastoralism on the Margin, Minority Rights Group International, http://www.minorityrights.org/1054/reports/pastoralism-on-the-margin.html )
This move is the result, in large part, of the discourse and practice of conservation agencies and wildlife lodge operators who view nature and cattle culture as opposed and inimical. Some conservationists and private operators of game lodges take the position that cattle degrade wildlife areas and contribute to the decline of game populations and thus they have closed off wide areas to cattle grazing. This proposition has become policy, despite evidence that pastoral peoples are keenly aware of the symbiotic relationship between their livestock and game animals and that all three have co-existed for generations. (Grandin, op cit.; Wilson, K.B. 1992. ‘Rethinking Pastoral Ecological Impact in East Africa’, Journal of Tropical Ecology; Markakis, op cit.)
Another threat is that of persistent water shortage which places livestock and people under duress and further threatens the pastoral life of the Maasai. The water shortage is the unfortunate consequence of intermittent drought over the last decade and more, combined with man-made problems caused by the diversion of waterways for family farms, large-scale commercial agro-businesses and usage by other communities located upstream from the Maasai (personal observation and communications with MCH members, 2008-09).
The Maasai response along with that of other such communities has been to severely curtail the size of their herds and to turn to other means of subsistence, such as farming on the lands that are left to them and migration into the towns to obtain work in service industries (op cit.). So for all these very complicated and interconnected reasons, all of which I have greatly simplified here, it is hard to escape the conclusion that cattle culture will soon disappear in East Africa, and so too will the core marker of cultural identity, social organisation and economic sustenance for the Maasai and their fellow pastoralists.
Returning to the representation to WIPO that the Maasai made in 2007, there were two other important challenges that they noted:
Among the forms of assistance proposed by the MCH, there are a couple that have specific relevance to the development of the Community Cultural Documentation Programme at WIPO:
... assistance in exploring IP issues and mechanisms to protect, manage and promote their cultural heritage, e.g., trademarks to promote handicraft, copyright for the protection of music and songs, and patents in the context of traditional medical knowledge.
... assistance in protecting TCEs like music through documentation of new music and establishment of an online library.
... enhance community capacity through providing intellectual property awareness raising and training, to enable the community to participate fully in their own development at various levels.
(Ole Tingoi, John, op cit.)
This specific request from the Maasai was translated by WIPO into a pilot project that would initially address Maasai concerns, but that would, if it proved workable, be established as a permanent programme providing assistance to any member state or community that requested such assistance. As the WIPO site notes, the resonance of the Creative Heritage Project and the Community Cultural Documentation Initiative for the larger constituencies that WIPO interacts with was apparent and compelling, which meant there was all the more reason to invest staff time and resources in the project. Through this project, IP rights (an esoteric concept whose parameters are difficult to grasp) community development (an expansive phrase) and emerging technology are all brought into greater focus. To quote WIPO:
This pilot program recognizes both the utility of new technologies for indigenous communities and the paramount need to empower communities to make informed decisions about how to manage IP issues in a way that corresponds with community values and development goals.
With the impetus provided by the Maasai’s representation to WIPO, Wend Wendland approached Peggy Bulger, AFC Director, about developing a training programme that would fit the Maasai’s needs. Bulger is part of the US delegation that attends the deliberations of the IGC. The Library and the AFC’s presence in this world forum is a necessary, ameliorative one, in that there it presents a different perspective on IP and cultural rights, one that is grounded in cultural and humanistic ideas rather than in the legalistic, property- minded and technocratic concerns of the official representatives of nation states who attend the meetings. Bulger and other colleagues, both within and outside the Library, who have attended the meetings of the IGC, have long insisted that libraries and archives have to be included in discussions of IP and cultural heritage. This is because institutions such as the LC hold and safeguard vast amounts of the recorded cultural heritage, the ICH and TCEs of worldwide cultural communities, including those of indigenous groups. The AFC holds several million items of ethnographic documentation in its archive and actively collects such material as part of its legislative mandate from the US Congress to preserve, protect and present folk life and documented expressive cultural forms from around the world. The years of experience that AFC’s professional staff have accumulated in teaching ethnographic methodology, documentation techniques and library and archival practices to a range of audiences in a wide range of settings, are especially relevant to the Maasai project.
The Maasai training programme is modelled on the intensive field schools in cultural documentation that the AFC has conducted on an almost annual basis in various US locations over the last dozen years. They are directed by AFC folklorist, David Taylor, with the support of other AFC staff in various capacities. The field schools aim to provide hands-on training in the ethnographic documentation techniques needed for effective fieldwork concerning folklore and related fields. Typically, instruction covers topics such as research ethics, project planning, interviewing, documentary photography, sound recording, writing field notes, archiving and delivering public presentations on research findings. Participants in the field schools are a varied group of individuals. Most have little experience or previous training in cultural documentation but they do have a strong desire to obtain this training. They also often possess the potential to use the training for specific purposes. Past participants have included graduate and undergraduate students in folklore and related fields, school teachers, librarians, museum curators, arts and humanities council staff members, cultural activists and oral historians (http://www.loc.gov/folklife/fieldschool/index.html ).
CDS’s participation in the process is natural for several reasons, principally because of that institution’s public outreach and educational programmes that parallel the AFC’s and also extend the project’s training capacity by providing world-class hands-on instruction with digital media technologies for university students and media professionals both nationally and internationally (http://cds.aas.duke.edu/courses/conted.html ). Tom Rankin, the CDS director, is also a folklorist and noted documentary photographer and a member of AFC’s Advisory Board.
In September 2008, John Ole Tingoi and Ann Sintoyia Tome, of the Maasai community and Kiprop Lagat, an anthropologist and curator from the National Museums of Kenya, arrived at the American Folklife Center for the first phase of the programme. The intensive curriculum included such topics as project planning, research ethics, documentation techniques, archival methods and database development and management. Wend Wendland from WIPO was also in attendance in Washington and provided the IP component of the training, with the support of the US Copyright Office at the Library. After a week, the three trainees then travelled to the Center for Documentary Studies for hands-on training with digital audio, still cameras and video cameras. The training at Duke consisted almost entirely of hands-on work with audio, still and (to some extent) video cameras. The week-long programme at CDS included several field trips into the neighbouring communities to document live events and activities such as the Sunday farmers’ market. In this way, the trainees were exposed in an immediate way to the interactive and inter-subjective nature of field documentation and to the practical considerations that are involved in such encounters. Such challenges include securing the permission of the subjects being documented and explaining the purpose of documentation to strangers, as well as learning about technical issues such as framing questions and follow-up queries and listening and watching for audio and imaging challenges, such as sound bleed. The trip home for the Kenyans included a stop at WIPO headquarters in Geneva for additional work and discussions of IP rights and management
The second phase of the training programme occurred nearly a year later, when Wendland, Shankar and Rankin travelled to Kenya to give a laptop, audio recorder and still camera to the community and to reinforce training methods and techniques. WIPO paid for the equipment and many of the in-country costs for the participants in the programme. In Kenya, the three original trainees, Ole Tingoi, Tome and Lagat were joined by two other members of the community who also participated in the training. After an elaborate, day-long welcoming ceremony and hand-over of the equipment in Il Ngwesi, the programme proceeded. Over the course of a week, the trainees discussed and settled on aspects of community life they wanted to explore, conducted fieldwork interviews and documented events, reviewed their documentation materials and organised their collections. The topics for research included cattle herding practices, women’s oral narratives, the education of school children and music. While the Maasai show plenty of interest in documenting ICH, they are also interested in documenting the historical, social and economic challenges and disruptions to their way of life by conducting oral history interviews with elders to document instances of land expropriation, water diversion and inter-communal conflicts such as the one that Ann Tome wrote about. In these respects, the Maasai’s clear goal is to use the technology and training to document the holistic reality of their lives, not just to paint a celebratory, but limited, portrait of their dances, songs and artefacts – their TCEs - alone.
At the end of the week, the documentation team had produced nearly one thousand digital images and six hours of audio recordings. While a complete set of the materials remained with the Maasai for their immediate use, surrogates of the digital files were brought back to the US for preservation and long-term storage at the Library in accordance with a preliminary understanding reached with the Maasai. The process of drafting an official Memorandum of Understanding designating the LC as the repository for archival materials is now ongoing. The need for such an ‘off-site’ location for community cultural assets is due to MCH’s realisation of the need for the physical security and protection of the files, and the simple fact that such complex IT storage and security systems, not to mention trained IT personnel, are not presently within the Masaai’s capabilities.
Stepping aside from the particulars of the cultural documentation programme, it is necessary to provide a corrective to previously-stated, somewhat dire predictions about the Maasai’s prospects with regard to their economic and cultural sustainability. There is one exception to the trend towards increased dependency on wider market forces that makes for economic viability for the Maasai, although the future of this enterprise, too, has been precarious of late. It remains the case that there has been a historical tension between wildlife conservationists and the Maasai and other cattle herding people. But the Il Laikipiak Maasai decided, with the assistance of a neighbouring nature conservancy, to take the bull by the horns and turn to eco-tourism by starting their own eco-lodge, the Il Ngwesi Lodge, in 1996. They are attempting to position Il Ngwesi as a desirable destination for tourists seeking cultural and natural wonders. The lodge was built by the Maasai in 1996 with the guidance of Ian Craig, the proprietor of the neighbouring Lewa Wildlife Conservancy and a noted conservationist. A couple of decades ago, Craig set aside vast acres of his own family ranch in order to set up a safe haven for the endangered black rhino. In establishing the lodge at Il Ngwesi, the Maasai set aside eighty percent of their grazing land for wildlife conservation (http://milkingtherhino.org/faq.php). Using wildlife and nature for economic sustainability in this way is described in the local idiom as ‘milking the animal’ and a 2009 documentary, Milking the Rhino, chronicles the tensions involved in the enterprise (see above). At the lodge, it is Maasai men, clad in traditional garb, who provide the essential services for the visitors. Tourists can venture out into the conservation area with native guides for glimpses of wildlife and for meals in the bush, with stops at a cultural village located a few miles from the lodge where they will hear and see traditional music and dance performances and where they will also have the opportunity to buy Maasai handicrafts. Money from the lodge is directed into the wider community, but this potential economic engine may stall due to problems outside its immediate control. The drop in visitors to the lodge during 2008 and 2009 was attributed to the drought and to violence in the area in the wake of the 2007-2008 elections, and it is probably the case that tourist visits will continue to be modest because of the contracting global economy (personal conversations with Il Ngwesi lodge personnel, 2009; see also Holland, H., 2008, Post-poll violence halves Kenya Q1 tourism revenues, http://www.reuters.com/article/idUSL02261502 ).
With regard to the cultural documentation training, the programme has the potential to both serve the ‘cultural good’ or the well-being of the community while also playing a central role in developing ‘cultural goods’. In several respects, Ann Tome’s letter with which this paper began, indicates that the Maasai have imbibed the lessons they learned in Washington, North Carolina and in Laikipia and are moving forward with the vision they presented to WIPO a few years ago. A subsequent email from Ann mentions another documentary that she is making, this time on an age ritual, the final rite of passage that men over the age of forty-five undergo prior to rejoining the community as senior elders. The project has also proved more broadly beneficial in other respects. Because of AFC’s interactions with the Maasai and also due to WIPO’s urging, the Centre has developed and launched a substantial set of web-based resources. The site seeks to provide all cultural communities and would be-ethnographers, not just indigenous groups, with guidelines, insights, information about best practice and tools to conduct their own projects of self- documentation as a means of controlling the ways they are represented and of producing cultural heritage assets that are relevant to them. (http://www.loc.gov/folklife/edresources/ed-cultdocmethods.html )
More proof that the Maasai are utilising the digital technology now available to them for their own sustainability arrived a little earlier this year in the author’s mailbox. Ole Tingoi mailed calendars, designed by him and produced by a commercial printer in Nairobi, which are saturated with colourful images of the Maasai that were collected during the course of the training programme in Kenya in 2009. There is a promise that there will be more such products for the consumer market in future years. There has been some preliminary discussion about producing and making music available as fee-based downloads from commercial sites. The preliminary assessment, then, is that in Maasai land at least, digital technology and archival artefacts are in a cosy embrace with folklore, traditional lifestyles and the ways of commerce. The future may be unwritten - but the Maasai are on the move towards it.