Law in the Internet Society

Whose Music? : Sovereignty of Archival Material in the Digital age

-- By AudreyAmsellem - 06 Nov 2017


Initial discourses surrounding the Internet imagined it as a space of commons. But the Internet has long become a space of conflict. These conflicts can take many forms, but the one I will focus on is the cultural conflicts that arise when different notions of property are confronted to each other in the digital age. I will describe the current ethnocentric American legal notion of cultural property and call for culture-specific protocols regarding modes of access and circulation of musical material currently owned by American institutions (mostly Indigenous and African American recordings made in the early 20th century). I will identify and discuss how different notions of property and music conflict and compete in the digital market of modern notions of sharing.

Current State of the Archive

Archivists, inspired by the free culture movement, are engaging in efforts to have this material available to the public. This generation also started to gain consciousness of how the material they “own” was gathered, and the history of imperialism it underlines. There is a common misconception that Indigenous populations have yet to enter modernity, or if they have, live with the scraps that Western modernity has left them with. Indigenous populations are actually well within modernity, but a notion of modernity that is their own. They can be reticent of open-access, not because they are not modern enough, but because it can conflict with their notion of access. Certain material is sensitive, and open-access would allow for potential disrespectful treatment of this material. For example, several religious rituals that were recorded are not meant to be seen at certain times of the day or by certain categories of people (based on age, gender…). These recordings were circulated with complete disregard for these traditions.

Rethinking the Commons

Examining how different communities define property rights gives us an opportunity to rethink definitions of “public” things, “open-access,” “commons,” or “common good.” The cultural material contained in institutions are builders of the nation’s identity, and the crucial issue here is that of control. If we advocate for open access and defacto public domain for indigenous cultural material, we play along the same line of current copyright laws by designing a system that is made without the consultation of creators. Pamela Samuelson argues for an enriched understanding in which multiple public domains can co-exist (784). She argues that the public domain has never been accommodating to Indigenous models of knowledge production and circulation (811). Moreover, copyright law in general has been exploitative to populations with oral musical traditions that are not copyrightable. The music industry has not only profited greatly from that fact, it was built on this history.

Conflicting Definitions of music

The question of the circulation of musical recordings is at the intersection of multiple notions of property, artistry and common good. Within these notions, two are currently confronting each other; both come from a leftist history, both are against the capitalist agenda and the commodification of music, and both use the digital age to further their quest. In recent years, with the rise of repatriation (archivists effort to return cultural material to creators or descendants of creators), the free culture advocates, music lovers, and creators who saw in piracy an opportunity to take down the “empires of sound,” (Bishop) cultivated different solutions to the issue of access to music, based on distinct definitions of music.

Free culture advocates have a definition of music that transcends the cultures in which it was created, and the politics within which it was distributed. Within that notion music is a universal language and a common good, meant to be freely shared to benefit listeners and creators, who could borrow freely in order to create their own works. In Free Culture, Lessig cites examples of when we don’t request licensing from authors: Einstein theories, Shakespeare plays or Japanese doujinshi. Certainly the world has only to gain from borrowing freely from these creations. But what does it have to lose from perpetuating exploitative behavior of the powers it fights? Lessig is aware of this issue, although he does not discuss it at length: “The hard question is therefore not whether a culture is free. All cultures are free to some degree. The hard question instead is “How free is this culture?” How much, and how broadly, is the culture free for others to take and build upon? Is that freedom spread broadly? To musicians in general whether white or not? To filmmakers generally, whether affiliated with a studio or not”(30)? These questions remain unexplored.

For advocates of repatriation, it is clear that a difference of treatment of certain cultural material should be made. To them, music is not apolitical, it does not transcend those it exploits, and there is a difference between the fundamental rights and benefits of education and access, and the rights of historically oppressed population to gain agency over a culture that was taken away from them. As such, it is not solely about restoring a balance, and correcting an unfair copyright law system, but giving authority, control, and a voice to those whose voices are on these recordings.


The question thus remains: how do we formulate a music distribution system without aiming for an unattainable consensus, which seems to only exist as a neo-liberal fantasy? Discourses on the value of open-access invoke a form of universal benefit for the common good. These need to be complicated to include those who continue to be excluded from public discourses. This is not a call for censorship, but rather one for “appropriate handling” (191). Indigenous populations should have a culture-specific protocol for the distribution of cultural content because of their histories of exclusion and oppression, their status as nations with government-to-government relations with the United States, and their alternative worldviews (194). The digital age allows us to create multiple and dynamic systems that make this possible. As such, we should embrace the different usage of networks, and conceptualize the Internet not as a space of commons, nor of conflict, but a space of co-existence.

I think the most important improvement that could be made here comes from asking yourself what you mean by "music distribution system." Music is two systems: a human process of great richness and variability---hard to characterize strictly in any fashion besides observation of the result, which is sounds organized in time that have meaning---and the movement of collections of bits called files containing data, some of which is best interpreted as audio samples.

Despite the continuing activity of those who used after Edison to exploit the technical difficulty of recording, fixing into tangible form and in that form physically distributing music, the latter meaning of the music distribution system is "just the Net." The human extra-skeletal nervous system now carries music all the time everywhere in its normal operation, as the human intra-skeletal nervous system has been doing since long before there was language.

Copyright law still (that is to say since little more than 100 years ago, when it began to concern itself with recorded music) thinks that there can be meaningful legal control of files that are best interpreted as some particular audio samples, containing particular music someone claims to own, once the initial "distribution" has occurred. The industry keeps trying to invent things like "streaming subscriptions" so that copyright law can pretend to work. But the network moves files around all the time because that's what networks do, and sound files are just files and they are frictionlessly copied and moved all the time and law has little to do with that.

So now we live in one great big resonant room where everyone's music is always ever-present and we share it all, all the time, and anyone can use it or make anything out of it that she or he wants to. A few people are pretending that it's not like that and they will be dead soon. Music, which used to exist only in the instant, now lasts forever.

Is this a problem?

That was not a rhetorical question. Deciding if so, and if so what to do about it in light of the technical realities of the new form of human civilization we are transforming into, is what this essay is actually, but hasn't quite figured out how to be, about.

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r2 - 03 Dec 2017 - 21:40:30 - EbenMoglen
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