Opportunities of Resistance: Irish Traditional Music and the Irish Music Rights Organisation 1995-2000

This is the draft of an article that I published in 2012: “Opportunities of Resistance: Irish Traditional Music and the Irish Music Rights Organisation 1995-2000.” Popular Music and Society 35(5):651-681.

Introduction

Legal sociologist Roger Cotterrell has noted that for those not personally committed in some way to the legal system, personal experience of the law often only arises when the law is felt to impact directly, positively or negatively, on the individual’s personal conditions of life (184). Legal power, I would suggest, becomes available for analysis in moments of resistance and conflict arising from prescriptive assertions and demands for obedience. As the work of scholars such as Kembrew McLeod have made clear, the unsettled and unsettling moments of personal encounter and participation in the contexts of “music and copyright” can serve as valuable diagnostic tools whereby the expansionary dynamics and political consequences of doctrine can be made visible. Moments of resistance and contestation can serve not only as clear invitations to analysis and critique, but also as clear invitations to possibilities of empowerment.

In this paper I outline a series of encounters of resistance and conflict relating to the political and economic expansion of the Irish Music Rights Organisation (IMRO) during the years 1995-2000, with particular emphasis on the domain of Irish traditional music. IMRO administers licences[i] for performing rights[ii] in Ireland. In their own words, “The Irish Music Rights Organisation is the national body charged with administering public performance rights in copyright music in Ireland on behalf of songwriters, composers, arrangers of public-domain works, and music publishers. IMRO’s function is to collect and distribute royalties arising from the public performance of copyright works.” Musical performing rights entitle the copyright owner of a work to receive a royalty whenever their musical work is performed in public or broadcast.

The Irish Music Rights Organisation achieved independence from the English Performing Right Society (PRS) in 1995. In the period that followed, IMRO representatives intensified their efforts to increase the number of licences contracted with the company. Expansion, as a consequence, was the most significant aspect of the activities of the Irish Music Rights Organisation during the period 1995-2000. A series of controversies resulted during the second half of the 1990s, allowing for an eruption of suspicion, if not paranoia, about IMRO’s operations. Representatives of IMRO encountered fierce resistance as certain groups refused to comply with the purported need for IMRO licences, in particular, primary schools, publicans, and, the main focus of this article, supporters of ‘Irish traditional music’. By the year 2000, however, what had been one of the most notorious organisations in the country had become one of the most accepted, in a complete and almost miraculous turnaround. Presently, the organisation operates with full government sanction, full support of the legal system, and with an unchallenged economic monopoly position in the Irish jurisdiction.

Primary Targets

In one week at the end of April 1996 there was a short flurry of public outcry in the national media and in sessions of the Dáil (the Irish parliament)[iii]. The outcry arose as a result of The Irish Music Rights Organisation’s dogged pursuit of performance royalties in relation to primary schools. The IMRO position was that songs and tunes were being used in public performances, and the writers and composers of those songs and tunes were therefore owed royalty payments for use of their property. Teachers, politicians, and journalists condemned the move. IMRO’s demands to schools were heralded as a direct threat to the continuance of some of education’s most sacred rites, such as the school concert, disco, and even nativity play. The Fianna Fáil[iv] education spokesman of the day, and later Minister for Education, Micheál Martin, declared the demands “anti-music” and called on the Minister for Enterprise and Employment to change the 1963 Copyright Act so that school performances would be exempt from such charges. There was recognition of the fact that the representatives of the organisation were within their legal rights to pursue royalties from primary schools, but the morality of such actions was questioned.

Representatives of the Irish Music Rights Organisation argued that it was obliged under Irish and international law to collect royalties for composers and songwriters. One of the reasons that such demands hadn’t been made of Irish schools before was that the London-based Performing Right Society had, in IMRO’s estimation, been lax in their duties. Since attaining independence in 1995, Keena reports, the Irish Music Rights Organisation had “tightened up our affairs”. In an article entitled “Sing a Song o’ Sixpence, a pocketful of cash”, Sunday Independent journalist Declan Lynch denounced the organisation’s actions as “petty” and “anti-social,” also commenting on the “widespread odium” that had been generated against the Irish Music Rights Organisation, confirming these disputes as a public relations disaster (Lynch). Ultimately, however, the disputes were settled when, following negotiations, schools agreed to contract for performance royalty licenses at reduced rates. Following that week of controversy, IMRO were to have no more publicly-aired disputes with primary or secondary schools.[v]

If nothing else, IMRO’s brief dispute with primary schools increased brand recognition for the organisation. Described in an Irish Independent headline in 1994 as a ‘Music Rights group’ (Cullen), by 1996 IMRO’s name had reached a level of widespread infamy. Even bad publicity is publicity. All that was left for the organisation to do was to convince those in opposition that they were legitimate, and worthy of widespread support. A second major target for IMRO in performing rights disputes in the 1990s was the Vintners’ Federation of Ireland (VFI), an association of Irish publicans operating outside the Dublin area. Publicans objected to the amounts they were being asked to pay for performing rights licences and registered this objection in a campaign of non-cooperation with the Irish Music Rights Organisation. The Vintners’ Federation had been contesting payments to PRS-IMRO since 1984. 1996 saw an escalation of the ongoing disputes between the Vintners’ Federation and the Irish Music Rights Organisation, and a concentration of IMRO’s efforts to resolve them. By the end of 1996 the VFI were the only major music-using group with which IMRO had been unable to agree a tariff for performing rights licences.[vi]

It must be remembered that publicans, for the most part, weren’t arguing that performance royalties shouldn’t be paid to the Irish Music Rights Organisation at all, as had been the case with primary schools. Rather, what was in dispute was the level of the tariff which publicans were being charged for blanket licences. As in the case of primary schools, some felt that the Irish Music Rights Organisation’s pursuit of royalties was unnecessarily aggressive. Other reasons, or rather justifications, were given for opposition to IMRO; among them, that the organisation was undemocratic and unregulated, and in practical terms accountable to no-one. It was felt that the levels of payment requested from the publicans were arbitrary, ‘made-up’, and unjustifiable. IMRO had made numerous attempts to achieve an agreement with the Vintners’ Federation, and it was in their best interests to do so, both financially and from the point of view of public relations. The 1996 IMRO Director’s Report and Financial Statements, however, indicated that 900 court cases were still in progress for non-payment of royalties, mainly against members of the VFI. In 1996, the bill for the Irish Music Rights Organisation’s ‘vigorous pursuit’ of the outstanding debts owed by the Vintners’ Federation of Ireland came to IR£361,293, or 14.7% of net operating expenses.

Irish Traditional Music Enters the Fray

The opposition that arose from among the supporters of primary schools undoubtedly provided the Vintners’ Federation with encouragement for their own opposition to the Irish Music Rights Organisation, and raised the emotional stakes in IMRO’s “vigorous pursuit” of royalties. What had complicated the issue tremendously by 1996, however, was the co-optation of ‘traditional music’ as a major issue in the Vintners’ negotiations. In October of 1996, for example, vintner associates threatened to boycott a music industry event, an Irish traditional Music Expo, ITMEX, in Ennis, County Clare, unless IMRO withdrew their participation. As Vallely comments: “this was akin to having a board meeting without the treasurer” (“Copyright”, 9). As the VFI continued to oppose royalty payments, they turned to the issue of performance royalties for ‘traditional sessions’[vii] to further justify their opposition. This issue provided the Vintners’ Federation with a justification, albeit a dubious one, for the reduction of tariffs for blanket licensing agreements, leading Hugh Duffy to claim that “the VFI are using the traditional music issue to lobby support for their reluctance to pay any writers’ royalties at all” (cited in Vallely, “Copyright”, 8). This was very likely the case. It is important to emphasize that the introduction of the Irish traditional music theme into negotiations was primarily an economic consideration. Although the justifications offered by the VFI were largely insubstantiable[viii], IMRO nevertheless conceded reductions in this regard as part of the deal secured. In retrospect, these concessions amounted to skilful negotiation and savvy public relations. What became clear during the course of these negotiations, however, was that for the people who played in the ‘sessions’ concerned, the issues extended beyond the merely economic.

The Rumble at the Crossroads

‘Crosbhealach an Cheoil – The Crossroads Conference’ (April 19-21, 1996), had been convened as an independent forum in response to growing commercial development within Irish ‘traditional’ culture. The call for discussion had been answered by forty one speakers, and by another three hundred or so conference participants. This was not your usual conference. For perhaps the first time in history, a conference had been called at which practising traditional musicians were in the majority. They had plenty to say, and they were going to make sure that they got to say it. Many were annoyed at a continuous stream of misrepresentation among documentary makers and the national media. Others were tired of those who continually trotted out the tradition versus innovation debate. Some were angry at what they saw as the dilution of the national race and its culture. Others just had a chip on their shoulder. Some were just there for the ‘crack’ [ix].

The Temple Bar Music Centre hadn’t been officially open for more than a year, and the building still had that vague mixture of promise and chaos about it. Inside, up there in a newly-painted room on the third floor, a room probably reserved for the storage of sound equipment at some later date, there was quite a buzz in the air. The room was jammed, packed to the rafters. In the absence of a place to sit I had seated myself precariously and rather uncomfortably on the top of my wooden bodhrán case. There must have been a good fifty people in a room which would have comfortably sat thirty.

The paper was to be entitled, “Irish Traditional Music – Whose Copyright?” William Hammond took a seat in front of the microphone at the table. As he did so, I was aware of the presence, not two feet from where I sat, of the Chief Executive Officer of the Irish Music Rights Organisation (IMRO), Hugh Duffy. IMRO had been at the centre of a growing swirl of speculation and discontent among traditional musicians over the previous months, as IMRO had engaged with publicans around the country in pursuit of performance royalties for their members. This continued to cause controversy and confusion, many musicians feeling that one of the vital features of what they considered ‘traditional music’, the ‘session’, was now being placed under threat.

In his broad Cork accent, William Hammond proceeded to describe what he saw as a ‘tollgate’ on the ‘crossroads’ of Irish traditional music. Willie, known more for his prowess as a set-dancer and festival organiser than for his forays into legal difficulties, explained how, in his view, the life of traditional music was being hampered by overzealous collecting on the part of IMRO as they took on the publicans of the Vintners’ Federation of Ireland. The Vintners’ position was simple. While they respected IMRO’s right to property, they were unable to agree upon charges which, in their view, were inequitable and which, they felt, derived from IMRO’s monopolistic position.

Willie spoke quietly, and a little hesitantly, obviously not used to speaking in such terms in front of a crowd.

“You can picture the scene where a few lads and lassies who are fed up with competitions and fed up playing on their own, decide to find a place to play a few tunes on a Friday night, and they ask around, and one says,

– I’ve an uncle, he has a bar. He’ll let us play a few tunes for a few pints and expenses.

So the uncle, who pays all his bills to IMRO and PPI for the radio, is delighted to have a few tunes on a Friday night. He decides to put an ad in the paper. So, on the Friday night the group comes in and they take a seat in the corner of the bar for a night of music-making, working out tunes, and tune-swapping.

This is where the law steps in. The local representative of the collection society sees the advert and decides to visit the pub. The representative, seeing the live music, copyrighted music, visits the uncle the next day saying,

– Listen here, you’ve live music going on here. You have to pay £500 a year in advance for the session.

So what does the publican do in that situation?”

Willie continued, admitting that he found it difficult to find where all the pieces fitted into what was overall a very confusing puzzle. He admitted that even finding the smallest amount of information had been a time-consuming exercise. Questioning whether performance rights should cover traditional sessions, he claimed that musicians were finding it harder to find new places to play, and that publicans were cutting back on the number of sessions that they held each week. He expressed worry that the session, the “practice room of Irish traditional music”, was under threat: “No single person is responsible for that tradition. It’s the collective work of many generations of Irish musicians. What rights does it have? None.” Willie finished the talk with a suggestion that maybe it was time for a new society to be formed, a traditional music protection society. The room rang with considered applause. A number of hands were quickly raised to the chairman as people sought a place to speak in reply.

Dermot McLaughlin, then Music Officer for the Arts Council, was one of the first to speak. He expressed reservations about the tone with which the paper had been delivered. “The paper suggested,” he offered, “that copyright legislation is almost a bad thing, when, in fact, a fuller understanding of how the system works would actually suggest something quite different. I think the specifics of how traditional music fits in is actually catered for in law. I think the copyright agencies have certainly done, in my opinion, a fair bit of work to bring traditional music back into the mainstream, so that people who trade and who earn a living from it can do so, and can enjoy the full protection and remuneration that the laws have already put in place. They guarantee a future and an income for the music.”

Willie replied that his only area of conflict with copyright was where it interferes with traditional music. It was hard to hold Hugh Duffy of IMRO from speaking. He was obviously incensed. He stood up, barely waiting for permission to speak. Pointing out a number of inaccuracies in Willie’s presentation, Mr. Duffy sternly reprimanded that he had found a lot of the information very biased.

“Purists like yourself,” he began defiantly, “who defy innovation and question copyright-innovation have allowed the multi-national drinks industry to hijack you, and you are doing no service to the arrangers of copyright music! The arrangers of copyright have been pillaged for the last fifty years both in this country, in the UK, and in America. They haven’t got a penny out of it, and massive fortunes have been made.” “You make the case,” he continued adamantly, “about the poor publican. The publicans are in the business of selling drink. They’re not in the business of anything else …” He restated his accusation of misinformation, and pointed out the financial support that IMRO had provided for the conference.

Sitting next to Hugh Duffy was record producer, song collector and record label director, Robin Morton, now based in Scotland. He rose animatedly to make a number of points:

“I’ve been interested in this issue of copyright protection for twenty five years, and have been fighting the same battle that IMRO have won. I think there’s an awful lot of misunderstanding here of what IMRO’s about and the battle they won with an English organisation called the Performing Right Society. They can put an awful lot of money into an awful lot of people’s pockets in this country and they’ve done a damn good job, and you really should be talking to them. You shouldn’t be coming here!

“The picture you developed there was rather like the picture of an Ancient Ireland where we all sit around in the pubs, and I was nearly crying into my pint, and it was a very emotional scene you were drawing up! This man’s right,” he said, pointing to Hugh Duffy, “The pub owner, this guy’s uncle, is making a lot of money out of it, and you can rest assured that there’s absolutely no reason why that shouldn’t go back to traditional musicians. You can work out a system how that should happen and these people are open to it. I know, I’ve talked to them. They’re reasonable people. They’ve put up a battle for a lot of great musicians in this country to be properly paid. You really should be talking to them, not fighting with them. For Christ’s sake, get in there and talk to them and understand what they’re saying and let them understand what you’re saying!”

The Chair passed the right to speak to Tom Munnelly, a longtime folklorist and song collector from Dublin, now living in County Clare, a place often regarded as the heartland of traditional music.

“I live in an area of West Clare where there are quite a number of pubs and they do have music in them, and they supply a few pints. In fact, if the musicians were paid they’d probably be cheaper.” Laughter broke the tension somewhat. “But this is from personal experience. I am a great believer in ‘Public Domain’. I believe that traditional music and song genuinely belongs to anybody who cares to use it.” He detailed how certain songs he had collected from a singer named John Reilly, for example, The Well Below the Valley, Lord Baker, and the Raggle Taggle Gypsy, had been recorded by singer Christy Moore and the Irish group Planxty. This he had no problem with. “Where I do have a problem is when I get the Planxty songbook and I see ‘The Well Below the Valley, Copyright Phil Coulter.’ Now that pisses me off!”

Robin Morton jumped to Phil Coulter’s defence, saying that if Phil Coulter had not copyrighted the song the money would have gone to some corporation elsewhere. He also testified as a friend to Coulter’s good character, and insisted that there had been no malice intended in Coulter’s actions. “There’s money there to be earned,” Morton insisted, as the Chair repeatedly made attempts to call the session to a close on account of time restrictions, “For God’s sake, take the money from these big organisations! I think the real problem is that no-one knows where it’s coming from. It’s not a rip off!” At that the Chair called a halt to proceedings, joking that from that point on all were banned from speaking any more about this topic, as I raised myself gently from my bodhrán case.

In the context of such concerns, the Vintners’ Federation of Ireland’s fourteen-year dispute with the PRS, PRS-IMRO, and the later independent IMRO ended anti-climactically in late December, 1997. The written documentation of the agreement was accepted at a meeting in Tuam, County Galway, between the VFI President, Paul O’Grady, and the then IMRO Chairman, Brendan Graham. The negotiations had led to an agreed tariff for the collection of performance royalty charges from publicans outside the Dublin area, effective from the 6th January, 1998. Under the newly-agreed tariffs it was stated that “Irish traditional music in the public domain is exempt … but that copyright music will incur the full tariff. Disputes about matters such as the definition and categorisation of music, and the status of Irish traditional music, can be referred to the IMRO/VFI Arbitration Committee …” (Lyons 13). The agreement with the Vintners’ Federation meant that all of the groups that IMRO had targeted as the main ‘music users’ in Ireland had agreed tariffs with the Irish Music Rights Organisation. IMRO’s program of systematic expansion had, it seemed, been successfully completed. As the Irish Music Rights Organisation was to find out, however, the co-optation of ‘traditional music’ and the ‘session’ issue into the Vintners’ negotiations had a sting it its tail.

Musicians Take Note

A number of factors had contributed to the growing visibility of copyright as an issue within so-called ‘traditional’ contexts.[x] The growing popularity of what was labelled ‘Irish traditional’ or ‘Celtic’ music in music industry markets during the eighties and nineties created a climate in which PRS, PRS-IMRO, and then IMRO were called upon to meet the rising expectations of financial rewards from royalties. In turn, the growing recognition of financial reward for new compositions led to an increase in both the number of tunes being composed and registered, and in the number of arrangements being claimed as original and copyrighted. Until the mid-nineties, however, knowledge or awareness of copyright remained the preserve of those for whom financial considerations remained central to their experience of musical practice. For those who did not give much thought to commercial incentive, the issue of copyright remained irrelevant so long as it did not impinge on their lives. The tariff negotiations between the Vintners’ Federation and the Irish Music Rights Organisation made a difference. It still remained something of an esoteric issue, but copyright had begun to impinge.

The growing awareness of copyright and performing rights among musicians started to influence the choice of tunes in sessions at least by 1996. Working from understandings that were nothing if not confused, some musicians would refuse to play certain tunes suggested by other players at ‘traditional sessions’. This was because these tunes were considered ‘copyright’. It was thought that ‘copyright’ tunes couldn’t be played at a ‘traditional session’, as reported to me in 2001:

There was definitely that. I noticed that, that people were more aware of what they were playing and sort of said, ‘Look we’re not going to play any composed music, y’know, so we won’t be playing any Paddy O’Brien or Hammy Hamilton or …’ cause a lot of them would know the music. Yeah, I suppose it shows you that the musicians didn’t know anything about it if they thought that, like (Hammond).

Other musicians refused to play their own tunes until such time as they had been released on a commercial recording, for fear they would lose their copyright. This was very practically an issue of self-censorship in a new awareness of a dichotomy between ‘traditional’ and ‘copyrighted’: “the absurdity of that scenario for the musicians would be the equivalent of censoring pub conversation to exclude mention of ideas in contemporary Irish literature” (Vallely, “Copyright”, 6). Whether these concerns were based on correct interpretations of the law or on complete misunderstandings was of little matter. On the whole they contributed further to an atmosphere of confusion.

The initial reaction to the licensing of ‘sessions’ among many people was simple incredulity. They couldn’t see how the ideas of ‘copyright’, ‘intellectual property’ or ‘property’ of any sort could be applied to ‘traditional’ contexts, and specifically the ‘session’. There was a clear perception of a radical disconnect. This generally ran along the lines of: “But there is no copyright in traditional music?” It simply wasn’t considered to have anything to do with what ‘traditional music’ was all about. As Martin Hayes, one of the most respected Irish musicians on the commercial scene, commented in Seattle: “I mean, like, nobody owns the stuff. You can’t own this stuff” (Hayes). Another musician in Philadelphia phrased it similarly: “The music doesn’t belong to anybody, so if somebody’s trying to learn it and you can help them, it’s not yours, so it’s not like you can hold back because it’s not yours anyway” (Rogers). That the idea of copyright and performance royalties could be so far removed from musicians’ understandings of ‘traditional’ ways of thinking was exemplified by the colourful reaction of a commercially-successful and highly regarded Irish-American musician and composer to the news during an interview that ‘sessions’ in Ireland were deemed to be liable for performing rights licensing:

Get out of town! I can’t believe that. … Man that’s so sticky. Holy cow, though, I can’t even imagine them trying to pursue that. … Oh no no no. Wait a second, from a session? … So who pays? The pub or the musicians? So there would be somebody sitting there and marking down every tune that went by to see who it goes to? … How do they divvy it up? How can they decide? It’s bizarre. It’s really bizarre (Carroll).

Many people who played music and also compose tunes found it hard to reconcile the logic of copyright with the fact that they would be quite delighted if their tunes were played at ‘sessions’, even if no-one knew that they had composed them. The attitude of Maighréad Ní Mhaonaigh, fiddler with successful music group Altán, was typical: “The best thing is to compose tunes and not have people recognise them as newly-composed, that they slip back into the tradition. For me that’s the biggest thrill of all” (Ní Mhaonaigh). Vallely quotes fiddler Máire Breathnach, another commercially-active performer, as saying: “That kind of recognition is superior to any payment” (Vallely, “Session”), and elsewhere notes that many musicians and composers who welcome IMRO royalty cheques for their own work in overtly commercial contexts, are adamant that ‘sessions’ should not be liable (“Copyright”, 8). As one musician said to me rather bluntly: “You’re not entitled to a copyright if it’s being played in the session, because that’s alien to the whole culture to do something like that” (Hammond).

Save the Session

Some of the fears that ‘traditional’ supporters felt paralleled the concerns of the defenders of primary schools. There was concern, for example, that IMRO’s demands might discourage publicans from allowing ‘sessions’ on their premises at all. Some, like William Hammond (4), felt that IMRO’s actions were directly threatening the existence of ‘the practice room’ of ‘traditional music’. On the fourth of February, 1997, Fintan Vallely published a feature article in The Irish Times sensationally entitled “Save the Session”. It was the first nationally published statement on the matter, and the effect it had on conversations around the country, and, indeed, around the world, was swift. The issue of copyright briefly achieved celebrity status among musicians. The Irish traditional music mailing list on the internet, IRTRAD-L[xi], with about 600 members at any time, was informed of the article on the day of its release. A list-member posted the article in its entirety for those without world wide web access. For the next two days the list engaged in passionate discussion of the issues. “Save the Session” undoubtedly provided the clearest commentary on the issue to date. The main concern seemed to be clear, and echoed the concerns that had been voiced previously. IMRO was approaching publicans regarding licensing for performance royalties due to their members. Where ‘traditional’ music was concerned, ‘arrangements’ of tunes whose copyright had expired, played by IMRO members, were deemed to accrue royalties. Three things seemed to justify IMRO’s jurisdiction in this matter: these ‘arrangements’, the presence of newly-composed, copyrighted tunes at ‘sessions’, and the authority of legislation and international agreements. Many musicians expressed concern that this was inappropriate, and an intrusion, if not actually indirectly threatening the continuance of many sessions in pubs.

Rumours abounded that sessions were being shut down on account of pressure placed on publicans by representatives of IMRO. It is clear from the passage above that the Vintners’ Federation in no way sought to diminish these rumours.[xii] A number of publicans did not consider a ‘session’ a financial venture, but merely a favour to some local musicians. Were they obliged to think about it as a financial endeavour requiring a licence, they might well decide that not having a ‘session’ at all might be less hassle. But this would really only be an issue if no other music, of any sort, was ‘used’ on the premises. Any other ‘music use’ at all would require a blanket licence, rendering the ‘session issue’ largely irrelevant. All in all, the perceived threat to sessions was greatly exaggerated and largely erroneous.[xiii] It remained, though, a highly emotive and charged concern in the atmosphere of the Vintners’ opposition to the Irish Music Rights Organisation. Furthermore, it created a dubious cause and effect scenario which helped to justify negative impressions of IMRO’s role.

Blanketing the Issues

As noted before, however, it wasn’t necessary that IMRO consider the views of a disparate ‘traditional’ lobby at all. IMRO’s dispute with the Vintners’ Federation was purely a contractual and financial one, based on disagreements over the level of tariffs. To argue that IMRO had no jurisdiction in these contexts was hardly likely to faze an organisation that claimed absolute jurisdiction in all places outside of the family circle where there might be the possibility of even one copyright work being played. Sinacore-Guinn (29) reminds us that the licensing process is fundamentally adversarial – users and collectives ultimately wanting different things. There is no room to contribute to this equation unless one is either a licensor or a licensee. Furthermore, to argue that certain contexts were non-commercial was hardly likely to succeed in the face of an organisation whose representatives claimed that all contexts were commercial, and that the primary motivation of human life was economic.

Three binary oppositions were central to musicians’ confusion about the inclusion of ‘sessions’ within the regulatory authority of the Irish Music Rights Organisation: ‘traditional’ or ‘non-traditional’; ‘commercial’ or ‘non-commercial; and, ‘for profit’ and ‘not for profit’. Each opposition was based on an assessment of the social and contextual elements of what may have been considered ‘sessions’. Elements which might have been considered by someone seeking to make a judgement of a ‘session’ on the basis of such oppositions might have included whether or not any of the musicians were paid, whether or not the ‘session’ was amplified, or whether or not the pub-owner was seen to benefit commercially from the ‘session’.

Ultimately, however, none of these concerns were really an issue for the representatives of the Irish Music Rights Organisation. The issuing of blanket licences, as well as the all-embracing logic of performance royalty collection, ensured that anything judged by IMRO to be a ‘performance’ of a copyrighted work outside of the family circle was to be adjudged a ‘public performance’. Any ‘public performance’ was a commercial concern, and therefore subject to a royalty payment. This was the case regardless of the musical genre. With the law on their side, it didn’t really matter what anyone else thought. From the point of view of the representatives of the Irish Music Rights Organisation there is no such thing as a non-commercial, not-for-profit ‘session’, because musical activity implies ‘works’, which implies ‘commercial interest’. Moreover, with blanket licences the onus was on the licensed premises to show that only non-copyright music was being played. If this were not shown to be the case, IMRO could claim complete and absolute jurisdiction without needing to consider the nature of the social conditions, or the genre of the musical activity. For ‘traditional sessions’, the representatives of the organisation could indeed claim complete jurisdiction, given that the presence of even one performance of a copyrighted ‘arrangement’, of a tune or song not itself considered to be in copyright, constituted a justification for licensing. Again, the burden of proof demanded disproof.

Comhaltas Ceoltóirí Éireann’s Opposition to IMRO

No organised ‘traditional’ lobby group grew out of the diffuse resistance to the Irish Music Rights Organisation. However, the major Irish traditional music organisation already in existence, Comhaltas Ceoltóirí Éireann (CCÉ) (‘Association of Musicians of Ireland’), provided somewhat more structured opposition.[xiv] At the time that ‘traditional music’ became a focus of the VFI-IMRO dispute the official position of Comhaltas Ceoltóirí Éireann as an organisation was one of unequivocable non-communication with regard to the Irish Music Rights Organisation. The full-time Ard-Stiúrthóir or Director-General of the organisation, Labhrás Ó Murchú, insisted to the members of his organisation that to talk to IMRO was to acknowledge their role and authority. In 1996, the members of Comhaltas Ceoltóirí Éireann overwhelmingly passed a motion at their national congress pledging non-involvement with the Irish Music Rights Organisation under any conditions. In the same year a representative of CCÉ’s subsidiary trade union, the Association of Irish Traditional Musicians, dismissed IMRO as “an English import”, while Ó Murchú himself could not even be drawn to make a comment on the matter (Vallely, “Copyright”, 9).

Labhrás Ó Murchú has been in charge of the operations of Comhaltas Ceoltóirí Éireann since 1968. The position he holds is a lifetime appointment, and one not included in the organisation’s constitution. Appointed as a trustee of the organisation, he also holds the position of main spokesperson for Comhaltas, and is the editor of the organisation’s journal, Treoir. In 1997 Ó Murchú was nominated and elected to the Culture and Education Panel of Seanad Éireann, the Irish Senate. He was at the time of these issues a member of Oireachtas (government) committees on education, heritage and Irish language, and the deputy government spokesperson on these matters within the Seanad.

What particularly focused Ó Murchú’s attention on the Irish Music Rights Organisation, and what caused him to break his public silence, was the passage of the Copyright and Related Rights bill through the Irish parliament. Said to be the largest piece of legislation ever to have passed through parliament, it was the first time that the issue of copyright had been specifically addressed in Irish legislation since the Copyright Act, 1963. The new legislation was to be a significant revision and expansion of the 1963 Act in line with advances in technology, international obligations, and the laws of the European Union. A draft of the proposed bill for the new Copyright and Related Rights Acts was published in early 1998, whereupon lobbying interests began to make their case known through the voices of Senators in the Irish Seanad.

In his role as Senator, Ó Murchú lobbied against the Copyright bill, which inconveniently placed him in opposition to the official line of the Chief Whip of his political party, Fianna Fáil. At this point it is clear that Ó Murchú’s role as Senator and his role as Ard-Stiúrthóir of Comhaltas Ceoltóirí Éireann were not clearly distinguished from each other insofar as his representative capacity was concerned. In March, 1998, Ó Murchú attended a UNESCO conference in Stockholm, “The Power of Culture”, as a member of a delegation from the Oireachtas. Quite by accident, he found himself at a session which discussed issues concerning the encroachment of intellectual property rights upon traditional cultures. The concerns expressed at this session, and the widely-expressed need that certain protective measures needed to be enacted, provided him with internationally-sanctioned conceptual support for the anti-copyright stance of his organisation and his lobbying efforts.[xv]

Ó Murchú’s, and hence Comhaltas’, position against IMRO very much reflected the concerns generally expressed around the country. They had, he felt, no expertise or appropriate understanding of what might be considered ‘traditional music’. Furthermore, as far as the mandate of the Irish Music Rights Organisation was concerned, Ó Murchú claimed that the number of people in traditional music for whom copyright was an issue, whether they were commercially active or not, was negligible. He gave the clear impression that the vast majority of musicians involved in the commercial world would never even consider the issue of copyright, seeing traditional music as a free music, in the sense that everybody could play it, without restriction, without consideration of ownership.[xvi] The other side of that argument, which Ó Murchú was very clear about, was that the copyright ethic of claiming ownership on tunes and songs that IMRO was promoting was anathema to the spirit of generosity which had sustained the types of “traditional” musical activity which Comhaltas Ceoltóirí Éireann represented.[xvii] While for representatives of the Irish Music Rights Organisation “traditional” primarily means “anonymous” and therefore in the “public domain”, Ó Murchú was adamant that this position was not one his organisation could go along with.

This clash of approaches to music or musical activity was fundamental. Because of it, the development and expansion of copyright as an issue, and the expansion of IMRO as an organisation, would lead, he felt, to certain behavioural changes and the self-imposition of restrictions among traditional musicians.[xviii] He considered it the duty of his organisation to contribute to the debate in the Senate “before it’s too late”. He believed that once the debate was opened up, and IMRO’s intentions made clear, that it would have a considerable effect on musicians and the ways in which they thought about what they were doing. he stated in interview with me, “Their intent, whatever about their mandate, is to expand and expand”. Ó Murchú was also somewhat concerned that the public relations efforts of the Irish Music Rights Organisation in this regard were contributing to a veil of positivity which made it difficult to focus on the issues of conflict which remained to be debated. The Irish Music Rights Organisation, for example, had been increasing the level of sponsorship for ‘traditional music’ events in a bid to increase levels of support for their project. Ó Murchú’s stated aim at this stage, however, was to try to ensure that the ‘corpus’ of music that was already there could be protected by legislation. He expressed a need to sit down with the Irish Music Rights Organisation to work out some of the problems, rather than “doing this across tables and across headlines” (Ó Murchú, “Eagarfhocal”, 1).[xix]

It is questionable whether Ó Murchú would have been interested in the idea of copyright at all had it not been for the aggressive manoeuvres of the Irish Music Rights Organisation towards venues and events which ran under the auspices of his organisation. The Fleadh Cheoil na hÉireann committee in Clonmel was, in 1996, billed by IMRO for the ‘use’ of copyrighted music during the course of the festival. At around the same time a Comhaltas centre in County Clare, Cois na hAbhna, and another in County Westmeath, Dún na Sí, also received bills for the ‘use’ of copyrighted music:

It was good in a way that it happened as it gave me ammunition subsequently. Luckily enough each of those three contacted me. There could always be the danger that one of them could have written a cheque and sent it to IMRO, but they all contacted me, and I rang IMRO and I said, “Look, back off.” (Ó Murchú, “Personal interview”).

It was of great concern to Ó Murchú that the Copyright and Related Rights bill not allow for some legislative possibility that would severely impede the musical practices of those in his organisation and allow the expansion of the Irish Music Rights Organisation to continue unimpeded: “If anything gets into that which is going to create a loophole for IMRO or any collecting agencies we’ve a problem” (Ó Murchú, “Personal interview”). Assurance had apparently been given in writing by Minister Tom Kitt, however, that “under no circumstances would the corpus of traditional music be interfered with” (ibid.).

Treoir magazine published an article entitled “Irish Traditional Music must not be licensed” in the second issue of 1998 (Ó Murchú, “Eagarfhocal”, 1). The article was an almost verbatim report of Ó Murchú’s spoken contributions to a Joint Oireachtas Committee on Heritage to which IMRO representatives had been invited to speak. No other contributions were registered in this article. Stating that it was imperative that IMRO did not “stifle or inhibit the natural momentum of Irish traditional music”, Ó Murchú championed his organisation for having “ploughed a lonely furrow to save our music from extinction”. “To ask our musicians to take out a licence to play their music,” he added, “would be the equivalent of asking a young lad to pay for the privilege of hurling a sliothar [sic.][xx]”. What was particularly interesting, and most definitely a sign of things to come, was the final line of the article: “The IMRO representatives gave an assurance that Irish traditional music, as outlined by Senator Ó Murchú, would not be restricted or hampered by IMRO.”[xxi] 

The Agreement

Following a series of private meetings, Shay Hennessy, then Chairman of the Irish Music Rights Organisation, and Labhrás Ó Murchú, Ard-Stiúrthóir (Director-General) of Comhaltas Ceoltóirí Éireann, signed a ‘Letter of Agreement’ on the 21st December 1998. In this “wide-ranging agreement” CCÉ and IMRO agree to cooperate in the promotion of traditional Irish music, song, and dance, to the mutual benefit of members of both organisations. IMRO stated that they accepted that the provisions of copyright law “should not deprive Irish people of the right to make free use of music from their folk/heritage tradition in its original form”. According to this agreement, Comhaltas Ceoltóirí Éireann contracted with the Irish Music Rights Organisation for a blanket licence to cover all official Comhaltas functions and centres, excluding broadcasts, for the sum of £1,000 per annum. In return for the blanket licence, and allegedly in recognition of the cultural work that Comhaltas undertake, IMRO agrees to make a “financial subvention” to Comhaltas for the sum of £50,000 per year, commencing in January 1999. This sum is to be reviewed at the end of a five-year term. As part of the agreement, IMRO also agrees to refer all requests for support for Traditional music to CCÉ. An additional sum of money, a “financial subvention” of £25,000 per year, was also included, going to Brú Ború, a cultural centre affiliated to Comhaltas Ceoltóirí Éireann in order to assist a “millenium project to encourage the creativity and development of composers and arrangers writing in the traditional idiom”. CCÉ, in return, agreed to support IMRO’s submission to the Irish Department of Enterprise, Trade and Employment in relation to the proposed Copyright bill.

The Agreement was announced in the first 1999 issue of Treoir magazine, under the heading: “IMRO and Comhaltas Sign Agreement” (CCÉ 6), and in the June, 1999 issue of the IMRO Members Newsletter, in an article entitled, “IMRO and Comhaltas Céoltóirí [sic] Éireann Sign Agreement to Benefit Traditional Irish Music” (IMRO, “June”, 6). Although mention is made in both articles of both the blanket licence and the financial contribution to Comhaltas, no mention is made of the sums involved or of any other details. The IMRO Newsletter simply states that: “In recognition of the work being done by Comhaltas, IMRO will provide financial support to help encourage and foster the creativity and development of composers and arrangers writing in their traditional idiom”.[xxii] It continues:

Speaking on behalf of Comhaltas, Senator Labhrás Ó’Murchú [sic] said that the agreement will result in very significant benefits to both organisations. He also stressed the importance of a copyright-friendly environment as the digital age develops and pledged his organisations [sic] backing to the submissions made by IMRO to the Department of Enterprise, Trade & Employment in relation to the proposed Copyright Bill (6).

The article in Treoir further reported that: “Senator Labhrás Ó Murchú, Ardstiúrthóir, Comhaltas Ceoltóirí Éireann, said that the agreement will result in very significant benefits to both organisations. ‘Traditional Irish music is winning new audiences all over the world and this agreement will contribute further to its development in all its forms’” (6). Although this was offered as having been said by the Senator, these were also the exact words found in the text of IMRO’s 1998 Annual Report and Accounts (15). The two representative voices of the organisations had truly become one.

Then Minister for Enterprise, Trade, and Employment, Tom Kitt, published sanctioning remarks in issue 2 of Treoir magazine in 1999, which gave official legitimation to the agreement between IMRO and Comhaltas Ceoltóirí Éireann. In an article whose title proclaimed “Pure Tradition Copyright Free”, his own remarks clearly placed his understanding of the word “traditional” within cultural nationalist and romantic discourses of “the folk”. His remarks contrasted that which is authentically traditional, communal, non-creative, non-original, and non-copyrightable, with that which is authored, individual, creative, original, and copyrightable.[xxiii] Furthermore, his hope was that the agreement which had been signed would go a long way to ensuring the eradication of conflict within “the music community”.

Initially, when no sums were disclosed, some members of Comhaltas inquired officially as to whether a licence-fee had been paid to the Irish Music Rights Organisation. Some were worried that the payment of a licence-fee would constitute recognition that the Irish Music Rights Organisation was a suitable licence-granting authority in contexts of traditional music, setting a significant precedent for similar organisations worldwide. They were assured by official representatives of Comhaltas Ceoltóirí Éireann that no licence had been paid for. This assurance was given three months after the agreement with IMRO had been signed, at which time the full sums of money involved had not yet become public knowledge. When they became public knowledge, it was understood that the licence fee of £1000 obviously constituted little more than a nominal payment. What was important about the licence fee, though, was that it officially granted the Irish Music Rights Organisation full nominal jurisdiction in the contexts of traditional Irish music, insofar as Labhrás Ó Murchú and Comhaltas Ceoltóirí Éireann were recognised by IMRO as being the primary authorities in those contexts.

It later transpired that none of the members of Comhaltas Ceoltóirí Éireann had been informed in advance of the Ard-Stiúrthóir’s intention to sign an agreement with the Irish Music Rights Organisation, and in fact the first cheques were handed over before the official committees of CCÉ were able to approve the agreement as per the proper constitutional conventions of the organisation. As suggested above, neither were high-ranking members of CCÉ informed of the full financial details of the agreement until they had, in fact, become public knowledge following a series of possibly accidental information leaks.

One Year On

By Issue 1, 2000, of Treoir, the ‘Letter of Agreement’ had become “The Cooperation Agreement”, the first birthday of which had been reached by December 1999. In this article, “A Protection for Ethnic Music”, it was reaffirmed that ‘the Agreement’ “underlines the copyright-free status of Irish traditional music in its original form” (CCÉ, “Protection”, 19). This was stated despite any such claim being in the original letter of agreement. Neither had the agreement, or anything else for that matter, managed to arrive at a successful or adequate legal definition of what ‘traditional’ meant, never mind “Irish traditional music in its original form”. That the phrase used in the original agreement was “music from their [Irish people’s] folk/heritage tradition in its original form” simply added to the confusion. In the “Cooperation Agreement” article, more than a year after the agreement, there was still no disclosure of the sums of money involved, although at least now there was an admission that Brú Ború had received an undisclosed “financial subscription”. To mark the anniversary, the article reported, Shay Hennessy, then IMRO Chairman, and Hugh Duffy, then IMRO’s Chief Executive Officer, addressed the CCÉ Ardchomhairle (‘Advisory Board’). It was reported that the 27 member Ardchomhairle “unanimously[xxiv] expressed satisfaction with the relationship to date between Comhaltas and IMRO and endorsed the discussions which are ongoing between both organisations over a range of issues that are important not only to both organisations but to the future of Irish creators of all genres in the next century” (ibid.).[xxv]  At this meeting it was repeatedly stated during the IMRO address that the agreement had, indeed, achieved the “copyright-free status of traditional music in its original form”. [xxvi]

Ó Murchú was convinced that ‘the end of debate’ has been reached, that the ‘problem’ of copyright and traditional music has been solved, that the role of Comhaltas Ceoltóirí Éireann as representative of Irish traditional music has been vindicated and legitimated, and that all problems have been eliminated. He was to state during a presentation at the University of Limerick: “What we now have is legislation, the Minister on the record, and an agreement with the collecting agency that traditional music in its original form is copyright-free. And the second part of it, that we are not going to be interfered with in our activities” (Ó Murchú, “Lecture”). Likewise, the representatives of the Irish Music Rights Organisation were satisfied that it had all worked out to the mutual advantage of both organisations. As the then-chairman of the organisation stated: “Comhaltas has about 37,000 members worldwide, which is a fairly large constituency of people, and certainly there are a potential 27,000 IMRO members in that constituency, or whatever percentage there might be of that 37,000, we’ll certainly be there assisting them and helping them to develop their creativity” (Hennessy).

Enclosure and the Diagnostic Opportunities of Resistance

I have discussed IMRO in the context of Irish traditional music communities before, in an article published in the journal Ethnomusicology (McCann, “All That is Not Given”). That article was structured with a binary opposition. On one side, I sought “to clarify the nature of the social relationships that are inextricably bound up with Irish traditional musical practice” (89). For this purpose I used the concept of the “musical commons”. I surmised that the social contexts of ‘Irish traditional music’ are “based on the idea of gift, which supports what could be seen as a characteristically non-commodified common property resource” (95). This “commons” of “gift” was presented as “inherently non-commodified” and “deeply embedded in cultural practice” (97). On the other side, in direct opposition, I placed the Irish Music Rights Organisation (IMRO), and the commodifying constraints of copyright. Having established that the practices of ‘Irish traditional music’ constituted a commons of gift, I argued for the usefulness of the concept of enclosure: “It would not be too difficult to then see the commodifying processes of neo-classical economics, commercialism in music, and of the conceptually-bound and conceptually-driven agency of the Irish Music Rights Organisation as an example of enclosure in a musical context” (95). In this line of thinking, it was only through an analysis of a “commons” that an understanding of enclosure could emerge.

In that paper, then, the concept of the commons provided an analytic and, explicitly, a defensive focus. In this paper, however, I am arguing that it is not through an analysis of any defensively-constructed commons that understandings of enclosure helpfully emerge, but, rather, through the identification and analysis of moments and situations of resistance and conflict. If expansion is the primary characteristic of IMRO’s operations from 1995-2000, it is only through an awareness of resistance to that expansion that such dynamics of enclosure are rendered politically visible.

The flavour of the most public resistance to the organisation’s operations was undoubtedly oppositional. “Resistance,” in all three cases offered here, referred to a manifestation of opposition to the expansion, that is, authority, of the Irish Music Rights Organisation in such a way as to hinder the licensing operations of the organisation. Resistance, in this sense, was an indication of a refusal to comply with IMRO’s contractual expectations. In the case of both the primary schools and the Vintners’ Federation, resistance was vociferous. The claims made by IMRO representatives were characterised in both disputes as being unnecessarily aggressive. In the case of primary schools, the claims to jurisdiction were even portrayed as being both inappropriate and immoral, though undeniably “legal”. In the case of the Vintners’ Federation, the most obvious resistance took the form of adversarial legal action in direct opposition to the demands of the Irish Music Rights Organisation. But the most important aspect of people’s representations of resistance in these circumstances for me is not their oppositional character, but the ways in which such resistance can draw attention to very particular modalities of power. Despite the apparent victories achieved by the Irish Music Rights Organisation, resistance does at the very least provide an analytic window through which to uncover the fragilities of their authority and the discursive character of their forever questionable assertions (as any assertions tend to be).

Performing rights provided, and continue to provide, the focus for their assertions. Performing rights provide one of the main financial supports for the international music industry. When you clear away all the legal jargon, and it’s difficult enough to clear away, the primary function of performing or performance rights, as gleaned from copyright theory, is that they act as a justification for prescriptive control, suggesting that it is legitimate for one person to prescribe the actions of another unless a fee is paid. I have suggested elsewhere that there may be little basis to the logic behind IMRO’s licensing of “uses” of “music” in public spaces other than: “Obey me! Pay me money! (or else!)” (McCann, “For A Song”). For IMRO to operate successfully, or even to operate at all, licences for “music use” must be enforced on the basis of either persuasion or litigation, and the claims to authority that the organisation makes must needs remain unchallenged. Without resistance, such enclosing dynamics might well lead everyone to believe that there are simply no alternatives.

One formal definition of ‘resistance’ presents it as: “The act, on the part of persons, of resisting, opposing, or withstanding. … Opposition of one material thing to another material thing, force, etc. … esp. in the physical sciences, the opposition offered by one body to the pressure or movement of another” (Onions, ed. 1807). Similarly, resistance in social life is often defined in terms of dualisms. One popular dualism is that of resistance in opposition to power or domination: “The orthodox assumption seems to be that resistance is against power and that effective resistance will eventually overturn power” (Cresswell 264). Analyses of resistance, therefore, have tended to focus on social movements, organised in opposition to dominant forces of state or multinational capital (see Sharp et al.). Dominant understandings of resistance constitute a prime example of oppositional definition, resistance being most often defined in relation to its ‘opposite’, that being ‘power’ or ‘domination’. In some cases, indeed, the ‘power’ is represented as being so ‘powerful’ that resistance is the work of the powerless, and hence futile (Sharp et al 2). It would seem, perhaps, that to equate resistance with opposition is an obvious way to understand the examples of resistance to IMRO’s expansion presented here. However, the well-trodden analytic path may not be the most helpful way to proceed. To illustrate some of the problems with a purely oppositional understanding of resistance to corporate expansion it is perhaps helpful to take a look at a cyclical model of expansion found in the work of John Ryan.

In The Production of Culture in the Music Industry, sociologist John Ryan details the history of the ASCAP-BMI controversy over the collection of performing rights royalties in the United States. Ryan follows the development of the American Society of Composers, Authors and Publishers (ASCAP) from its establishment in 1914, and the subsequent conflict between ASCAP and a rival firm, Broadcast Music Incorporated (BMI). Ryan notes that: “ASCAP’s early history was a continual cycle of laying claim to a particular domain, a challenge to this claim by concerned music users, legitimation of ASCAP’s claim by the courts, followed by a new expansion of domain” (31). The correlation in this regard between ASCAP’s early history and the activities of the Irish Music Rights Organisation after 1995 are striking. The dynamic Ryan has identified I think of as a “cycle of expansion”. This could be used to speak of the fundamental pattern of IMRO’s expansionary activities during the period 1995-2000. It can be simply restated as a cycle of expansion, resistance, and legitimation, followed by further expansion. The term “expansion” is here used in two senses. It refers to an enlargement in the scale of IMRO’s operations, and also to an increase in the number of domains or areas in which the representatives of the Irish Music Rights Organisation claim jurisdiction.

It is important, if Ryan’s model is to be used in the contexts outlined, that it be used only to describe but not explain the expansion of the Irish Music Rights Organisation in the period 1995-2000. Were it used as an explanatory model, the analysis would then privilege the cyclical and inevitable victory of the expansionary force over any resistance offered, render acquiescence to IMRO’s claims to unquestionable authority inevitable and politically unremarkable, and enact analytic capitulation to the discursive power of the truth-claims being made. The expansion is a profoundly political achievement, involving particular people in particular circumstances. The dynamic of expansion is, at heart, a manifestation of personal investments in ways of thinking and ways of doing. This expansion might be helpfully understood, indeed, as the political extension of authority-as-certitude, accompanied by sustained acquiescence to rhetorical assertions of unquestioned authority.

Thanks to the work of Foucault, some have claimed that, “Resistance is in danger of becoming a meaningless and theoretically unhelpful term” (Cresswell 259). This is largely on account of Foucault’s statement that: “Where there is power, there is resistance, and yet, or rather consequently, this resistance is never in a position of exteriority in relation to power” (95). Foucault has argued at length for the ubiquity of power. It follows, therefore, that he must also be arguing for the ubiquity of resistance. As Cresswell remarks, however:

Something that is applicable to everything is not a particularly useful tool in interrogating social and cultural life. … Everybody is so busy resisting always, and already, that little more needs to be done. One problem is that an act such as an armed insurrection or a general strike is equated with the act of farting in public or telling jokes about the boss. The word resistance can apply to all of these and yet they are clearly more different than they are alike (259).

If we ground Foucault’s understanding of the ubiquity of power in the affectual variabilities of any experience in social interaction, however, we can also perhaps reclaim the specificities and possibilities of resistance, without necessarily defaulting to either oppositional or hopelessly diffuse models. Resistance, I believe, can be helpfully understood as expectational difference, located in particular circumstances, lived and experienced by particular people, with very particular effects of power. This allows us to think of resistance in a way which is not necessarily opposed to power or domination. In many ways resistance, then, might be understood as the tension of difference within social life. Its ubiquity might render it totally useless were it not for the benefits of the identification of resistance as an invitation to diagnostic possibilities for the analysis of the dynamics of enclosure.

Cresswell’s use of resistance as a diagnostic tool stems from Lila Abu-Lughod’s anthropological fieldwork among Bedouin women. The complex realities of Bedouin life challenged Abu-Lughod’s search for resistance as the absence or incompleteness of power. The ‘romance of resistance’ with which she had originally approached her work had led her to foreclose her analyses of power and social life among Bedouin women. It was ultimately more useful to allow resistance to “tell us about forms of power and how people are caught up in them” (42). Tim Cresswell combines the work of Abu-Lughod with the insights of Foucault, thereby inverting Foucault’s dictum, that where there is power there is resistance, to come up with the slogan that “everywhere there is resistance there is also power” (265):

It is important that we do not stop thinking about everyday forms of resistance, but equally important that we do not romanticise and essentialise them. Rather than telling us how people are free or partially free from forces of oppression inscribed in space, resistance can be used strategically to reveal how people are caught up in a multitude of often invisible modes of power (266).

In my work I use manifestations of resistance, such as those above, to provide diagnostic opportunities (rather than ‘tools’), with which to identify the process and practices of enclosure. In previous work I have, like many others (see, for example, May), equated enclosure with commodification, and, indeed, have done so with regard to IMRO’s claims to jurisdiction in the realm of Irish traditional musical practice (McCann, “All That Is Not Given”). When I speak of enclosure now, however, I adopt a more social-psychological approach. I have come to understand enclosure as a broader social process, an expansionary social dynamic involving accelerative commodification of everyday life, emerging from dominant dispositional tendencies to “eliminate” uncertainty (McCann, “Beyond The Commons”). It is in this sense that I politically contextualize the discursive absolutisms of the Irish Music Rights Organisation, and in this sense that I take resistance almost as a homing beacon for the identification of such discursive politics as a particular modality of power enacted in social relations. The expansion of the Irish Music Rights Organisation from 1995-2000 relied almost entirely on the assertion and extension of authority-as-certitude, that is, authority about which there was to be no doubt tolerated.

I proceed in the spirit of Stuart Hall’s remark that “The effects of power are particularly visible when attempts are made to fix meanings” (10).[xxvii] We might say that we are only able to identify the expansion of the Irish Music Rights Organisation, the extension of the organisation’s authority-as-certitude, by identifying and highlighting the moments and sites of people’s greatest resistance to that expansion. Importantly, where authority-as-certitude is concerned there can be no middle ground. The claims of authority-as-certitude must be met with either acceptance or rejection. One of the primary features of resistance in situations of enclosure, then, is that it is characteristically negotiated within discourses of obedience and disobedience, loyalty and disloyalty, orthodoxy and heresy, truth and error. This is clearly evident in the polarization of legality and illegality that overshadows the activities of the Irish Music Rights Organisation, and, indeed, any operation reliant on the certitudes of legislation.

Hegemony

The representatives of the Irish Music Rights Organisation are now allowed to assert absolute authority to undertake activities and deploy strategies in all domains within the Irish state. This includes the unquestioned status of the meanings and prescriptions that they propagate in the name of copyright, performing rights, members, and market economics. With the accession of primary schools, the Vintner’s Federation, and Comhaltas to IMRO’s demands, the representatives of the Irish Music Rights Organisation moved further towards an intensification of hegemony.  This includes the power of hegemonic definition (Anderson 130). One of the key features of hegemony, as developed in the Marxist tradition from the writings of Antonio Gramsci, is the political and personal force of very particular ways of making sense of experience:

It is different in this sense from the notion of ‘world-view’, in that the ways of seeing the world and ourselves and others are not just intellectual but political facts, expressed over a range from institutions to relationships and consciousness. It is also different from ideology … in that it is seen to depend for its hold not only on its expression of the interests of a ruling class but also on its acceptance as ‘normal reality’ or ‘commonsense’ by those in practice subordinated to it (Williams 117-118).

One of the most significant effects of IMRO’s achievement of hegemony is that the “unquestionable” authority of “self-evidence” comes to be vested in the organization. With the achievement of hegemony, the activities of the Irish Music Rights Organisation, and the assumptions upon which they are based, become naturalized, assuming a patina of necessity and inevitability.  The existence of the organization “becomes experienced as an axiom, a fait accompli: children all too soon stop asking ‘Why?’” (Jenkins 107). With the self-evidence of the existence of the Irish Music Rights Organisation comes systematic reinforcement of the organisation’s authority-as-certitude. Something as simple as an IMRO sticker on the door of every commercial premises in the country quietly reinforces the position of the Irish Music Rights Organisation as a taken-for-granted presence in the social interactions of everyday life in Ireland. Many music festivals are sponsored by the organisation, increasing brand recognition and garnering bucketloads of positivity-by-association. IMRO showcase gigs are held regularly to showcase the musical talents of IMRO members in major Irish population centres such as Dublin, Belfast, Cork, Limerick, Galway, Waterford, and Wexford. Such exposure allows the organisation to consolidate the unchallenged position it holds in virtually all contexts of Irish life. The unquestioned status of the organisation is perpetuated, the hegemony of IMRO’s influence maintained.

Such aspects are vital in considering the discursive implications of the expansion of the Irish Music Rights Organisation. As Bocock (63) notes, in hegemony the representatives of a group or organisation successfully achieve their objective of providing a dominant, prioritised, and centralised outlook that operates in all aspects of social life. The Irish Music Rights Organisation provides just such an outlook, at least insofar as copyright, music, and ownership are concerned.

By participating unquestioningly in the discourses of music and copyright we also participate actively in the accelerative commodification of musical practice. One of the key implications of IMRO’s resource management discourses is that they depoliticize the discursive terrain, immunizing IMRO against sustained ethical interrogation, frequently co-opting resistance by providing the scaffolding of more authoritative discourse as the only (near-sighted) horizon of possibility: “Past experience is encapsulated in an institution’s rules so that it acts as a guide to what to expect from the future. The more fully the institutions encode expectations, the more they put uncertainty under control, with the further effect that behaviour tends to conform to the institutional matrix: if this degree of coordination is achieved, disorder and confusion disappear” (Douglas 47-48).

The hegemonic dynamics of IMRO’s operations effectively sustain the impression of ‘the end of debate’; resistance to the foundation of IMRO’s authority is consistently rendered ineffective, politically irrelevant, and, especially now, discursively invisible. Law, legal doctrine, legal practice, and, by association, the role, activities, and expansion of bodies such as the Irish Music Rights Organisation are implicated in our everyday interactions and social relationships. Legislation, in any jurisdiction, consists of a set of prescriptions which specify the way in which legal subjects ought to behave. But law also “exists in the sense that it is embodied as a set of expectations or understandings about behaviour” (Cotterrell 155), and it “only ‘exists’ if the prescriptions of conduct actually have some effect on the way people think or behave” (9). The law, then, takes on a very palpable presence in our lives. However, it is always possible to raise questions even while the absence of questioning may have become the air that we breathe and the lifeblood of our financial wellbeing.

References

Abu-Lughod, Lila. “The Romance of Resistance: Tracing Transformations of Power Through Bedouin Women.” American Ethnologist 17.1(1990): 41-55. Print.

Allen, Robert C. Enclosure and the Yeoman. Oxford: Clarendon Press, 1992.

Anderson, Kay. “Cultural hegemony and the race definition process in Vancouver’s Chinatown 1880-1980.” Environment and Planning D: Society and Space 6(1988): 127-149.

Bakhtin, Mikhail. The Dialogic Imagination. Austin: U of Texas P, 1981.

Bannon, Lisa. “Birds sing, but campers can’t – unless they pay up.” Wall Street Journal, 21 August 1996. 9 March 2006. <http://www.law.umkc.edu/faculty/projects/ftrials/communications/ASCAP.html&gt;.

Boal, Iain. The Long Theft: Episodes in the History of Enclosure. San Francisco: City Lights, 2006.

Bocock, Robert. Hegemony. London: Tavistock Publications, 1986.

Bollier, David. Silent Theft: The Private Plunder of Our Common Wealth. New York: Routledge, 2002.

Boyle, James. “The Second Enclosure Movement and the Construction of the Public Domain.” Preliminary discussion draft produced for the Conference on the Public Domain at Duke Law School. Nov. 9-11, 2001. 25 August 2005. URL: http://www.law.duke.edu/pd/papers/boyle.pdf

Brown, Michael F. “On Resisting Resistance.” American Anthropologist 98.4(1996): 729-735.

Brush, Stephen B. “Is Common Heritage Outmoded?” Valuing Local Knowledge: Indigenous People and Intellectual Property Rights. Eds. Stephen B. Brush and Doreen Stabinsky. Washington, DC: Island Press, 1996. 143-164.

Carroll, Liz. Musician, Chicago. Personal interview, 2000.

Carroll, William C. “”The Nursery of Beggary”: Enclosure, Vagrancy, and Sedition in the Tudor-Stuart Period.” Enclosure Acts: Sexuality, Property, and Culture in Early Modern England. Eds. Richard Burt and John Michael Archer. Ithaca: Cornell University Press, 1994. 34-47.

Carson, Ciaran. Last Night’s Fun: A Book About Irish Traditional Music. London: Jonathan Cape, 1996.

CCÉ – Comhaltas Ceoltóirí Éireann. Bunreacht [“Constitution”]. Monkstown: Comhaltas Ceoltóirí Éireann, 1996.
—. “IMRO and Comhaltas Sign Agreement” Treoir 31.1(1999): 6
—. “A Protection for Ethnic Music.” Treoir 32.1(2000): 19.

Cotterrell, Roger. The Sociology of Law: An Introduction. London: Butterworths, 1984.

Cresswell, Timothy. “Falling Down: Resistance as diagnostic.” Entanglements of Power: Geographies of domination/resistance. Eds. J. P. Sharp, P. Routledge, C. Philo, and R. Paddison. London: Routledge, 2000. 256-268.

Curran, Richard. “Music Rights group boosts royalty revenue by over £1m.” Irish Independent. August 27, 1994

de Jouvenel, Bertrand. Sovereignty. Cambridge: The University Press, 1957.

Douglas, Mary. How Institutions Think. Syracuse: Syracuse UP, 1986.

Duke, J. T. Conflict and Power in Social Life. Provo, Utah: Brigham Young UP, 1976.

Eagleton, Terence. The Truth About the Irish. Dublin: New Island Books, 1999.

Fairbairn, Hazel. Group Playing in Traditional Irish Music: Interaction and Heterophony in the Session. Ph.D. Thesis, University of Cambridge.1993.

Foucault, Michel. The History of Sexuality: An Introduction. New York: Vintage Books, 1990.

Freire, Paolo. Pedagogy of the Oppressed. New York: Continuum, 1997.

Friedrich, C. J. “Authority.” A Dictionary of the Social Sciences. Eds. J. Gould and W. Kolb. London: Tavistock Publications, 1964. 42-44.

Friedrich, C. J., ed. Authority. Cambridge, Massachusetts: Harvard UP, 1958.

Frow, John. Time and Commodity Culture: Essays in Cultural Theory and Postmodernity. Oxford: Clarendon Press, 1997.

Giddens, Anthony. Capitalism and Modern Social Theory: An Analysis of the Writings of Marx, Durkheim and Max Weber. Cambridge: Cambridge UP, 1971.

Goldsmith, Edward, Nicholas Hildyard, and Patrick McCully, eds. Whose Common Future? Vol. 22. Sturminster Newton, Dorset: The Ecologist, 1992.

Gramsci, Antonio. Selections from the Prison Notebooks. Eds. Q. Hoare and G. Nowell Smith. New York: International Publishers, 1971

Gudeman, Stephen. “Sketches, Qualms, and Other Thoughts on Intellectual Property Rights.” Valuing Local Knowledge: Indigenous People and Intellectual Property Rights. Eds. Stephen B. Brush and Doreen Stabinsky. Washington, DC: Island Press, 1996. 102-121.

Stuart Hall, ed. Representation: Cultural Representations and Signifying Practices. London: Sage Publications in association with The Open University, 1997.

Hamilton, S. C. “The Session – A Socio-musical Phenomenon in Irish Traditional Music.” M.A. Thesis, Queen’s University of Belfast, 1977

Hammond, William. “Storm Grows Over Copyright.” Irish Music Magazine 1.10(1996): 4-5.
—. Musician, Cork. Personal interview, 2001.

Hayes, Martin. Musician, Seattle. Personal interview, 1998.

Hennessy, Shay.  Irish Music Rights Organisation, Dublin. Personal interview, 2000.

Henry, Edward O. “Institutions for the Promotion of Indigenous Music: The Case for Ireland’s Comhaltas Ceoltóirí Éireann.” Ethnomusicology 33.1(1989): 67-95.

IMRO. Directors’ Report and Financial Statements. Dublin: Irish Music Rights Organisation, 1995.
—. Directors’ Report and Financial Statements. Dublin: Irish Music Rights Organisation, 1996.
—. Annual Report including Directors’ Report and Financial Statements. Dublin: Irish Music Rights Organisation, 1997.
—. Irish Music Rights Organisation Annual Report & Accounts. Dublin: Irish Music Rights Organisation, 1998.
—. Membership Newsletter (June). Dublin: Irish Music Rights Organisation, 1999.
—. Membership Newsletter (March). Dublin: Irish Music Rights Organisation, 2000.

Jaworski, Adam and Nikolas Coupland, eds. The Discourse Reader. London: Routledge, 1999.

Jenkins, Richard. Pierre Bourdieu. London: Routledge, 1992.

Kamenka, Eugene, ed. The Portable Karl Marx. New York: Penguin Books, 1983.

Keena, Colm. “IMRO insists on school royalties despite widespread criticism.” The Irish Times. April 24 1996.

Kitt, Tom. “Pure Tradition Copyright Free.” Treoir 31.2(1999): 15-16.

Kneafsey, Moya. “’If it wasn’t for the tourists we wouldn’t have an audience’: the case of tourism and traditional music in North Mayo.” Irish Tourism: Image, Culture and Identity. Eds. B. O’ Connor and M. Cronin. Cork: Cork UP, 2003.

Lewis, G. C. An Essay on the Influence of Authority in Matters of Opinion. London: John W. Parker, 1849.

Lynch, Declan. “Sing a song o’ sixpence, a pocketful of cash.” The Sunday Independent. 28 April 1996.

Lyons, P. M. The Irish Music Rights Organisation – Revenues, Costs and Distributions. Dublin: Irish Music Rights Organisation, 1999.

Christopher May. A Global Political Economy of Intellectual Property Rights: The new enclosures? London: Routledge, 2000.

Anthony McCann. “All That is Not Given is Lost: Irish Traditional Music, Copyright, and Common Property.” Ethnomusicology 45.1(2001): 89-106.
—. Beyond the Commons: The Expansion of the Irish Music Rights Organisation, the Elimination of Uncertainty, and the Politics of Enclosure. Warrenpoint: Anthony McCann, 2003.
—. I Got It for a Song!: Lifting the Lid on Performing Rights. Warrenpoint: Anthony McCann, 2003.
—. “Enclosure Without and Within the ‘Information Commons’.” Information and Communications Technology Law 14.3(2005): 217-240

McFarlane, Gavin. Copyright: The Development and Exercise of the Performing Right. Eastbourne: John Offord, 1980.

McLeod, Kembrew. Owning Culture: Authorship, Ownership and Intellectual Property Law.New York: Peter Lang Publishing, 2001.
—. Freedom of Expression: Tales from the Dark Side of Intellectual Property Law. New York: Doubleday/Random House, 2005.

Midnight Notes Collective. The New Enclosures. New York and Boston: Autonomedia and Midnight Notes, 1990.

Mills, Sara. Discourse. London: Routledge, 2003.

Mingay, G. E. Enclosure and the Small Farmer in the Age of the Industrial Revolution. London: Macmillan Press, 1968.

Murphy, Raymond. Social Closure: The Theory of Monopolization and Exclusion. Oxford: Clarendon Press, 1988.

Neeson, Jeanette M. Commoners: common right, enclosure and social change in England, 1700-1820. Cambridge: Cambridge UP, 1993.

Ní Mhaonaigh, Maighréad. Musician, Galway. Personal interview, July 1995.

Labhrás Ó Murchú. “Eagarfhocal/Editorial.” Treoir 30.2(1998): 1
—. Ardstiúrthóir, CCÉ, Dublin. Personal inteview, August 1998.
—. Lecture Presentation to Masters in Traditional Music Performance Students. University of Limerick. April 28 2000.

Ortner, Sherry B. “Resistance and the Problem of Ethnographic Refusal.” Comparative Studies in Society and History 37.1(1995): 173-193.

Peabody, R. L. “Authority.” International Encyclopedia of the Social Sciences. New York: The Macmillan Company and the Free Press, 1968. 473-477.

Robins, Kevin and Frank Webster. Times of the Technoculture: From the Information Society to the Virtual Life. London: Routledge, 1999.

Rogers, Roy. Musician, Philadelphia. Personal interview, November 1998.

Ryan, John. The Production of Culture in the Music Industry – the ASCAP-BMI Controversy. Lanham: University Press of America, 1985.

Scott, James C. Weapons of the Weak: Everyday Forms of Peasant Resistance. New Haven: Yale UP, 1985.

Sherman, Brad. “Appropriating The Postmodern: Copyright and the Challenge of the New.” Social and Legal Studies 4(1995): 31-54.

Shiva, Vandana, A. H. Jafri, G. Bedi, and R. Holla-Bhar. The Enclosure and Recovery of the Commons: Biodiversity, Indigenous Knowledge and Intellectual Property Rights. New Delhi: Research Foundation for Science, Technology and Ecology, 1997.

Siemon, James R. “Landlord Not King: Agrarian Change and Interarticulation.” Enclosure Acts: Sexuality, Property, and Culture in Early Modern England. Eds. R. Burt and J. M. Archer. Ithaca: Cornell UP, 1994. 17-33.

Simmel, Georg. The Philosophy of Money. London: Routledge, 1978.

Sinacore-Guinn, David. Collective Administration of Copyright and Neighbouring Rights: International Practices, Procedures, and Organizations. Boston: Little, Brown and Company, 1993.

Slater, Gilbert. The English Peasantry and the Enclosure of Common Fields. New York: Augustus M. Kelley, 1907.

Strasser, Susan, ed. Commodifying Everything: Relationships of the Market. London: Routledge, 2003.

Thirsk, Joan. Tudor Enclosures. Leicester: U of Leicester, 1958.

Thompson, E. P. The Making of the English Working Class. Harmondsworth: Penguin Books, 1968.
—. Customs in Common. New York: The New Press, 1993.

Thuente, Mary Helen. The Harp Re-Strung: The United Irishmen and the Development of Irish Literary Nationalism. New York: Syracuse UP, 1994.

Turner, Michael. Enclosures in Britain 1750-1830. London: Macmillan Press, 1984.

Vaidhyanathan, Siva. The Anarchist in the Library.  New York: Basic Books, 2004.

Vallely, Fintan. “Copyright, The Publican and the Collectors.” Unpublished, 1996.
—. “Save The Session.” Dublin: The Irish Times, February 4 1997.
—. “Comhaltas Ceoltóirí Éireann (CCÉ).” In The Companion to Irish Traditional Music. Ed. Fintan Vallely, ed. Cork: Cork UP, 1999. 77-81.

Vaysse, Laurence. “La Musique Traditionnelle Irlandaise et le Pub: Histoire et Actualité.” M. Mus. Thesis. Université de Poitiers, 1996.

Weber, Max. Economy and Society: An Outline of Interpretive Sociology. Berkeley: U of California P, 1968.

Weldon, T. D. The Vocabulary of Politics. Harmondsworth: Penguin Books, 1953.

Williams, Raymond. Keywords: A Vocabulary of Culture and Society. London: Fontana/Croom Helm, 1976.

WIPO. Introduction to Intellectual Property Theory and Practice. London: Kluwer Law International, 1997.

Yelling, J. A. Common Field and Enclosure in England 1450-1850. London: Macmillan, 1977.


[i] Enforcement of the property right of copyright can be exercised by other persons by licence or assignment (WIPO 1997b:5). When the representatives of the Irish Music Rights Organisation identify that a premises requires an IMRO license the proprietor is approached, and asked to sign a standard public performance contract. The licence granted by IMRO permits the licensee “to perform copyright music from the IMRO repertoire on the premises, in return for paying royalties to IMRO according to the applicable tariff” (Lyons 1999:7). IMRO agents are granted a right of free entry, for monitoring purposes, to any premises which has been licensed.

Licensing constituted the primary activity of the Irish Music Rights Organisation during the period 1995-2000, for “the licensing of works is how collectives earn their money” (Sinacore-Guinn 1993:30). In 1999 licensing revenue for the Irish Music Rights Organisation came to IR£17,418,077. In 2000, the figure had risen to IR£19,457,780 (IMRO 2000:6). The performance royalty licensing rates vary greatly from premises to premises. They take account of the type and frequency of ‘performances’, the nature of the venue and other variable conditions. Royalties are paid annually and, in advance. This blanket licence[i] runs from year to year, until such time as the licence is cancelled. Most music users will not attempt to contact licensing collectives. Often they will only enter into a licensing agreement upon threat of litigation (Sinacore-Guinn 1993:36). As a result, collectives actively identify and pursue all potential music users:

It is an unfortunate fact of life that respect for the rights of creators is not the norm. A significant number of users avoid or even actively resist a collective’s efforts to control the use of its repertoire of works. It is up to the collective to assert its rights and the rights of its affiliated rights owners in a way that will cause compliance (Sinacore-Guinn 1993:39).

Strong-arm, coercive tactics, including litigation, are generally avoided, as they are costly and generate bad public relations. Nevertheless, licensing is the most debated and litigated area of collective administration worldwide (Sinacore-Guinn 1993). In 1993 the Irish Music Rights Organisation paid out more than IR£47,000 in legal expenses (Curran 1994). By 1999 IMRO’s legal, collection and professional fees came to IR£476,258, a rise from IR£413,453 the previous year. If someone refuses to pay for an IMRO licence when approached, then the organisation takes recourse to the Circuit Court. If a licensing agreement has been contracted but royalties are not paid, then the ‘music user’ is sued by the Irish Music Rights Organisation as a commercial debtor. The use of debt-collection agencies is standard practice for IMRO as the last attempt at resolution before more substantial coercion. The use of persuasion is preferable for the organisation, so significant efforts are made to convince users of the necessity for proper licensing. Often a performing rights society will undertake cultural activities, programs, and sponsorships in order to encourage the creation of new works, educate people as to the nature of creative rights, and garner support for those rights. The Irish Music Rights Organisation is very active in this regard. Such activities also perform the obvious functions of brand recognition and public relations.

[ii] According to the Irish Copyright and Related Rights Act, 2000, “copyright is a property right whereby, subject to this Act, the owner of the copyright in any work may undertake or authorise other persons in relation to that work to undertake certain acts in the State, being acts which are designated by this Act as acts restricted by copyright in a work of that description” (17.1). Copyright, then, is a set of prescriptions on the actions of others in relation to a “literary or artistic work” which control what can or cannot be done by other people in relation to that “work”. According to the Copyright and Related Rights Act, 2000 (4.37), the owner of a copyright has the exclusive right to undertake, or authorise others to undertake, all or any of the “acts restricted by copyright”. A person is understood to infringe the copyright in a work if they undertake or authorise another to undertake any of these acts without the licence of the copyright owner. The acts restricted by copyright are as follows:

(a) to copy the work;
(b) to make the work available to the public;
(c) to make an adaptation of the work or to undertake either (a) or (b) in relation to an adaptation.

The “performing right”, although not specifically mentioned in the Copyright and Related Rights Act, is generally understood to pertain to (b), making a work available to the public. If the act of copying is the first act which requires authorization, then the second is the act of public performance: “The right to control this act of public performance is of interest not only to the owners of copyright in works originally designed for public performance. It is of interest also to the owners of copyright, and to persons authorized by them, when others may wish to arrange the public performance of works originally intended to be used by being reproduced and published” (WIPO 1997b:155). This ‘performance’ is often assumed (without much discussion) to be at least analogous to copying. This includes performing, showing or playing a copy of the work in public; broadcasting a copy of the work in public; including a copy of the work in a cable programme service; issuing copies of the work to the public; renting copies of the work; or, lending copies of the work without the payment of remuneration to the owner of the copyright in the work. Performing rights are statutory, that is, they exist solely and exclusively by virtue of the laws that create and recognize them (Sinacore-Guinn 1993:14).

[iii] “The Oireachtas or National Parliament consists of the President, a House of Representatives (Dáil Éireann) and a Senate (Seanad Éireann). The Dáil, consisting of 166 members, is elected by adult suffrage on the Single Transferable vote system in constituencies of 3, 4 or 5 members. Of the 60 members of the Senate, 11 are nominated by the Taoiseach (Prime Minister), 6 are elected by the universities and the remaining 43 are elected from 5 panels of candidates established on a vocational basis, representing the following public services and interests: (1) national language and culture, literature, art, education and such professional interests as may be defined by law for the purpose of this panel; (2) agricultural and allied interests, and fisheries; (3) labour, whether organized or unorganized; (4) industry and commerce, including banking, finance, accountancy, engineering and architecture; (5) public adminstration and social services, including voluntary social activities. The electing body comprises members of the Dáil, Senate, county boroughs and county councils” (B. Turner 2000:439).

[iv] Fianna Fáil is the republican nationalist political party in the Republic of Ireland.

[v] A similarly public outcry opposed the American Society of Composers, Authors and Publishers’ decision in the Summer of 1996 to approach Girl Scout Camps in the United States for performance royalty licences. The Wall Street Journal reported that ASCAP had informed camps across the U.S. that they must pay licence fees to use any of the four million copyrighted songs written or published by ASCAP’s 68,000 members. SESAC, another performing rights organisation, also announced their intention to ask camps for royalties. Rather than risk lawsuits, many camps were provoked into excluding copyrighted songs from their activities. The Wall Street Journal article left the enduring image of 214 Girl Scouts at the Diablo Day Camp 3 p.m. sing-along, learning the Macarena dance: “Keeping time by slapping their hands across their arms and hips, they jiggle, hop and stomp. They spin, wiggle and shake. They bounce for two minutes. In silence” (Bannon 1996).

[vi] As early, relatively speaking, as November 1993, IMRO had secured a licensing agreement with the Licensed Vintners’ Association (LVA), which represented publicans in the Dublin area (Lyons 1999).

[vii] ‘Sessions’ can be adequately or inadequately described, but never adequately defined, for the term ‘session’ can now be used as a label for any context in which two or more musicians or singers are gathered in social activity. In The Companion to Irish Traditional Music, Colin Hamilton describes a session as: “A loose association of musicians who meet, generally, but not always, in a pub to play an unpredetermined selection, mainly of dance music, but sometimes with solo pieces such as slow airs or songs. There will be one or more ‘core’ musicians, and others who are less regular” (1999:345). Scholars such as Hamilton (1977), and Vaysse (1996), have noted that the character of each ‘session’ ultimately arises from the personalities and social interaction of those engaged in the activity. In this sense, the meaning of the ‘term’ session can only really be adequately accounted for by looking to the particular circumstances implied by those who use the term. Some would look to the metaphor of casual conversation to characterise the musical activity taking place in what they would term a ‘session’: “Going to the pub, it’s just like going for a drink and telling stories, or telling jokes or whatever. We’re just telling tunes” (J. McCarthy quoted in Vaysse 1996:165). This view would be consistent with the view of Foy who, half-jokingly, describes a ‘session’ as:

… a gathering of Irish traditional musicians for the purpose of celebrating their common interest in the music by playing it together in a relaxed, informal setting, while in the process generally beefing up the mystical cultural mantra that hums along uninterruptedly beneath all manifestations of Irishness worldwide … an elaborate excuse for getting out of the house and spending an evening with friends over a few pints of beer (1999: 12-13).

Perhaps the most important word in this description, for the purposes of this article, is “beer”. A detailed examination of relatively recent manifestations of the relationship between public houses and the “traditional session” is beyond the scope of this thesis, but this has already been explored in the works of Laurence Vaysse (1996), Colin Hamilton (1977), Hazel Fairbairn (1993), and Moya Kneafsey (2002).[vii] To date, however, Reg Hall (1995) is the only person to undertake a detailed historical investigation of this type of music-making in pubs before this date.[vii] Interestingly, Hall’s study focuses on an English context. In a complex overview, Hall shows that among Irish immigrants in London such music-making was to be found in the local Irish pubs by the 1940s. Landlords who tolerated musicians carefully negotiated licensing laws that allowed only two musicians at a time, and, “As musicians became confident in their new surroundings and as publicans realised their music-making attracted custom, the one-off, risky session became institutionalised as a regular weekly event, expected and looked forward to by musicians, landlord and customers alike” (1995:5). As sessions became a regular occurrence in London pubs during the early 1950s a shift occurred: “it became common for landlords to pay two or three musicians for a session. The established practice of other musicians joining in was unchanged, and there was no embarrassment about some being paid and others not” (1995:7). Vaysse records that in Ireland payment for the ‘anchoring’ of sessions has really only become frequent since the 1970s (1996:86). As Hamilton notes:

As the session became a standard aspect of Irish musical life, publicans, keen to have their bars known as centres of good music, began, from around the middle of the 1970s, to pay one or two musicians to turn up on a regular night, to ensure that a session would happen. If this ‘seeding’ worked, the publican was guaranteed a regular core of perhaps half a dozen musicians at a small cost. Almost all the current regular sessions are based on this principle, but at festivals and other like events, sessions are still normally impromptu and non-commercial (1999:345).

As Fairbairn has found, however, payment is not always an issue, and often a more informal arrangement between musicians and publican “allows them an elevated status of desirable clients, rather than that of employees. This means that the landlord is beholden to the musicians, he knowns that the music attracts custom, but has no contractual security. In this way the musicians ensure good treatment” (1993:159). There are certainly some publicans with a personal fondness for particular musicians, and, indeed, with an interest and investment in what they consider ‘traditional music’. These ‘landlords’ are often well-known and well-loved, and are often musicians or singers themselves. Often the relationship with a publican is nondescript, but functional. Hamilton notes that “Even in cases where the host provides no encouragement to the players in the way of money or free drink, he at least provides a place for them to play” (1977:49). Many publicans, however, maintain a relationship with musicians that is at best business-like, and at worst testy and volatile. One city publican, for example, barred so many musicians from entering his pub during the 1990s that those nominated for prohibition gained a certain credibility among fellow musicians. That particular publican now runs a disco bar.

[viii] Why was the issue of ‘traditional sessions’ brought into the dispute at all? Ultimately, as mentioned earlier, the aim of the Vintner Federation’s negotiations with the Irish Music Rights Organisation was to reduce the level of tariffs for performing royalty blanket licences. Many publicans felt that the issue of ‘traditional sessions’ could lead to a reduction in payments for licences. It was assumed that the ‘use’ of ‘traditional music’ or the hosting of ‘traditional sessions’ were qualitatively different from other ‘uses’ of music. Two claims were made by publicans. The first was that they shouldn’t have to pay performance royalties for ‘traditional sessions’ at all. The second was that ‘traditional sessions’ shouldn’t be charged as much as other musical events.

The first claim made by publicans stemmed from the assumption that music that was considered ‘traditional’ was automatically ‘non-copyright’. This ran along the same lines as a much-repeated exclamation I have regularly encountered in conversation: “But there is no copyright in traditional music!” The answer that the representatives of the Irish Music Rights Organisation offered to this argument was the following, from a letter to a publican:

I wish to explain that our interest lies in the public performance of copyright music and as traditional does not automatically mean non-copyright we are therefore pursuing royalties with you for these performances.

There are two ways in which this line from IMRO may be interpreted. One is to assume that the word ‘traditional’ refers to anything that for all intents and purposes ‘sounds traditional’, that is, sonic forms which seem to conform to the genre-limitations of what, in the opinion of the IMRO representative or the publican, is commonly considered to be ‘traditional music’. The other is to assume that the representative of the Irish Music Rights Organisation is equating ‘traditional’ with ‘anonymous’ and, hence, with ‘public domain’. In this scenario the IMRO representative would be referring to the practice in which some musicians engage in copyrighting ‘arrangements’ of ‘traditional’, understood as ‘public domain’, tunes or songs. They thereby secure a 100% performance royalty for any performance of the arrangement which they have recorded in some form, and, importantly, which they have registered with IMRO or some other performing right organisation. Every time they or someone else plays that ‘arrangement’, they are due a royalty. By contracting with IMRO for a blanket licence, the publican gains permission for the ‘use’ of the worldwide repertoire of copyrighted material. The onus, then, was on each publican to prove that not one copyrighted work or copyrighted arrangement of a ‘public domain’ work was ‘used’ on whichever night might be in question. This was an impossible task for publicans. They had no way of predicting or prescribing what might be played or sung after they had paid for the blanket licence in advance. Also, it was unlikely that they would bother to record and classify each incidence of music or song on the nights in question in order eventually to show that no copyrighted material was ‘used’. It was easier to pay the few extra pounds for the tariff.

The second claim, that ‘traditional sessions’ shouldn’t be charged as much as other musical events, stemmed from the understanding that the majority of tunes played or songs sung at ‘traditional sessions’ were ‘traditional’, implying that they were therefore ‘anonymous’, therefore ‘public domain’, and that therefore a reduction in the amount paid could be justified. It was also argued that a standard tariff for ‘sessions’ did not discriminate between different premises and the vast range of social contexts to be found in pubs. Vallely quotes the then Vintners’ Federation Chairman, Tadhg O’Sullivan, as saying:

The pub session is not full-blooded, public entertainment, and players’ arrangements are not new tunes … and anyway, the way that IMRO levies charges, why should a Kerry pub that has only a handful of customers at a session for the whole winter be obliged to pay the same as a similar premises in Dublin that is packed the year round? (quoted in Vallely 1997).

Again, with both blanket licences and the practice of copyrighting ‘arrangements’, there was no need for IMRO to concede a reduction in tariffs on this account, at least not on the basis of the publicans’ reasoning. It was interesting that an issue was made of ‘traditional music’ at all, or that the representatives of the Irish Music Rights Organisation were drawn into a discussion concerning it. If one were to follow the logic dictated by copyright there should have been no distinction drawn between one type of music and another on the basis of genre (see WIPO 1997b). Within the logic of copyright discourse a ‘work’ has either been copyrighted or it has not, is either in copyright or is not. If the status of a ‘work’ is in question, genre should not enter into the issue, in the same way that aesthetic worth should not be taken into consideration for a work’s originality requirement (Sherman 1995). Concessions, however, were granted to publicans, on a number of occasions.[viii]

The ‘session issue’ was arguably, then, only brought into negotiations by the Vintners’ Federation of Ireland (VFI) in order to seek further reductions on the blanket licensing tariffs which they were contesting with the Irish Music Rights Organisation.

[ix] As Terry Eagleton (1999) has noted, the word ‘crack’ or ‘craic’ is ‘rapidly approaching the status of ‘begorrah’. Most likely of Anglo-saxon rather than Gaelic etymology, the term most commonly refers in Ireland to an atmosphere of comfortable and pervasive conviviality, a complete absence of distrust in pleasant, relaxed, and relaxing company, most likely among friends. Heightened euphoria is not a necessary requirement. Those who wish to understand, participate in or experience ‘crack’ or ‘craic’ must commit themselves to its creation. Ciarán Carson indulges in a digression on the subject during his book Last Night’s Fun: “‘crack’… popularly and recently Gaelicised as craic and advertised in countless retro-renovated bars throughout the land, as in ‘Live Ceol [Music], Sandwiches and Craic’. Non Irish speakers in particular will insist on its ancient Gaelic lineage and will laboriously enunciate this shibboleth to foreigners who take it for a pharmacological rather than a social high. In fact, the Oxford English Dictionary dates crack, ‘chat, talk of the news’, to 1450” (1996:83). Carson suggests that ‘crack’ as a term was, until fairly recently, primarily confined to the North of Ireland.

[x] It’s really only in the last ten years that the issue of copyright has become familiar to people in ‘traditional’ social circles. Before then it was of interest mainly to collectors and archivists, and to the commercially-viable performers who always seemed to learn more about copyright in the aftermath of a shady deal than they ever knew going into one. But even then, it wasn’t of any major concern to most people. As Nicholas Carolan, Director of the Irish Traditional Music Archive in Dublin, remembers it: “One had heard various stories, say, about how Planxty were ripped off, and they weren’t making any money from their own records and that kind of thing, but that was so far removed from the experience of most people involved in traditional music. It was interesting but that was all it was. It wasn’t personally pertinent” (Personal interview, Dublin, 2000).

[xi] You can find IRTRAD-L at http://listserv.heanet.ie

[xii] The reasons that a publican might have for closing down a session are many and varied, and musicians would be as likely to find as many reasons to move on to another venue. Regular reasons include personalty clashes, changes to new ownership less appreciative of ‘traditional music’, or changes in the personality of an upwardly-mobile ‘local’ that gets transformed into a spacious and trendy ‘superpub’ in a bid to maximize income. Hosting a session might simply not be financially viable. A restaurant proprietor in Galway once expressed surprise to me, not that musicians were paid so little for a session, but that they were paid so much. Apparently, she felt, to offset the expense of musicians a publican would have to sell three times as much in value of alcohol to make it worth their while. For smaller pubs this is unlikely to happen. This would suggest either that musicians in these smaller venues would be unlikely to be paid. It might also suggest that any ‘traditional’ musical activity in these pubs at all is an indication that neither musicians or publican are particularly interested in framing the ‘session’ in terms of financial potential.

[xiii] According to one musician, the only direct knock-on effect of IMRO’s licensing demands on sessions was that many publicans placed a moratorium on new sessions. Even this attitude lasted for only a short period, however, and, following the VFI agreement, things pretty much returned to normal (Personal interview, Cork, 2001).

[xiv] An overview of Comhaltas Ceoltóirí Éireann has already been provided by Henry (1989) and Vallely (1999a). A number of key points will be here drawn from these accounts, and from examination of the CCÉ Constitution (CCÉ 1996). The constitution of Comhaltas Ceoltóirí Éireann lays claim to nondenominational and nonpolitical status. The constitution indicates that membership is open to all who sympathise with the aims and objectives of the organisation, and who undertake to abide by its Constitution and Rules. Those whose actions are interpreted as being in opposition to the aims of the organisation are liable to suffer expulsion. The specific goals of the organisation, set forth in the constitution, are as follows:

1. To promote Irish Traditional Music in all its forms;
2. To restore the playing of the Harp and Uilleann Pipes in the National life of Ireland;
3. To promote Irish Traditional Dancing;
4. To foster and promote the Irish language at all times;
5. To create a closer bond among all lovers of Irish music;
6. To cooperate with all bodies working for the restoration of Irish Culture;
7. To establish Branches throughout the country and abroad to achieve the foregoing aims and objects (CCÉ 1996:3-5).

There are reportedly over 400 branches of the organisation in Ireland and internationally. The primary roles of these branches are the recruitment of new members and the teaching of Irish traditional music and dance. A series of competitions are held every year on a pyramidal county, provincial and national basis. The final competition is an annual festival called Fleadh Cheoil na hÉireann, or All-Ireland Fleadh, which draws competitors from an international catchment who have qualified from earlier rounds.

Administrative levels of the organisation include the branches, the county boards, and the provincial councils, all of which are overseen by a central exective council (CEC), based in Dublin. The CEC has a president, general secretary, five vice-chairpersons, a national treasurer, a national registrar, a competitions officer, a music officer, a public relations officer, and two delegates from each provincial council. Permanent trustees are appointed by the CEC. They are responsible for instituting any criminal or civil proceedings on the organisation’s behalf. The property of the organisation is vested in the trustees. The Central Executive council meets three times a year to direct the policy of the organisation and to decide on the venue for the All-Ireland Fleadh. Once a year a congress is held, which is attended by the members of the central executive council, two delegates from each branch, and two delegates from each county board.

[xv] In the editorial of the second issue of Treoir, 1998, it was stated: “At the Stockholm conference there was widespread concern at the possibility of a nation’s store of traditional music falling into private commercial hands as has already happened in some countries. This has obvious connotations for Ireland” (Ó Murchú 1998). What those connotations might be was not stated.

[xvi] “Now there’d be a very small section of musicians, and I’d say it would be very small, and particularly in more recent times, may see some advantage in a copyright-type situation but it raises huge questions, then, for the whole body of Irish traditional musicians” (Labhrás Ó Murchú, personal interview, Dublin, 1998).

[xvii] “Now obviously a newly composed song could be copyrighted, if that is the wish of the author. Our hope would be that they wouldn’t do that, that they would contribute that song to the corpus of traditional music like they themselves had got their songs from previous generations. We’d be looking for a degree of generosity there” (Labhrás Ó Murchú, personal interview, Dublin, 1998).

[xviii] “But once it becomes widely known through debate as to what the intention is, then I think yes there will be alarm bells set off in the minds of a lot of musicians each time they go to play a tune, whether they’re playing in a pub, or in a concert, or in a session, I think they’re going to say, ‘we can play the first two reels, but we can’t play the third reel’. Now you can see what that will do to music making” (Labhrás Ó Murchú, personal interview, Dublin, 1998).

[xix] “I think it’s still vital that the individual musician feels free to hear a tune or tape it and replay it and not be wondering whether somebody is policing them and whether there’s a royalty involved. I think IMRO have to alter the equation. They tell us they have, IMRO are telling us there’s no danger to traditional music” (Labhrás Ó Murchú, personal interview, Dublin, 1998).

[xx] A sliotar is a leather ball, approximately the size of a tennis ball, which is used in the game of hurling, one of Ireland’s ‘national’ sports. A sliotar can also be referred to as a “hurley ball”. To “hurl a sliotar” is to hit the ball with a hurling stick (camán), which stands waist-high and is normally made of ash.

[xxi] This apparently did not stem the flow of opposition, however. In a representation to the Irish Senate in June 1998, Labhrás Ó Murchú likened the “inherent dangers in copyright law” to the decree by “a Queen of England” which called for all pipers and harpists to be hanged. This refers to a request made by Elizabeth I to Lord Barrymore to “hang the harpers wherever found” (see Thuente 1994).

[xxii] By October of 1999 the IMRO Members Newsletter extended the remit of the agreement in paradoxically more vague and more specific terms: “Under the agreement IMRO will provide sponsorship for various events and will make available its experts for lectures and curriculum design. CCE [sic.], in return, will support IMRO and its activities both nationally and internationally” (IMRO 1999a).

[xxiii] “Clearly, for pure traditional music which is, by definition, without an author, and for which the question of originality cannot arise, there is no reason primary copyright should attach to it at all. Copyright considerations would not affect the right of players to play music which is part of a genuine traditional community resource and over which no primary copyright interest can exist. … With regards to how disputes in this grey area might be avoided, I believe that interested parties, both in respect of traditional music and of music copyright, have a serious responsibility to behave sensibly and reasonably towards each other in asserting their respective rights. In this context, I welcome the recent demarcation agreement between Comhaltas Ceoltóirí Éireann and the Irish Music Rights Organisation which should go a long way to ensuring that unnecessary and damaging disputes on such issues within the music community are avoided” (Kitt 1999:15).

[xxiv] The claim to unanimity was patently untrue, as some dissension had been voiced at the meeting, and the ‘ongoing discussions’ between the organisations primarily meant that Labhrás Ó Murchú was still communicating with officials from the Irish Music Rights Organisation.

[xxv] An interesting development in the discourse available to Treoir readers in this article was the presence of acronyms, phrases, and taxonomy more familiar to the members of IMRO than the members of Comhaltas. Using the rhetoric of ‘protection’, ‘challenge’ and ‘opportunity’ , in the space of three short paragraphs the article managed to shore up the joint activities of CCÉ and IMRO with the legitimating support of the WTO (World Trade Organisation) intellectual property negotiations, the EU (European Union) Rental and Lending Directive, and of Comhaltas members in the US and the UK. “The possibilities,” it reported, “of Comhaltas members in the US and the UK who create new music in these territories joining IMRO is at an advanced stage [sic.]” (CCÉ 2000).

[xxvi] The fact that this was simply a rhetorical phrase to paper over conceptual cracks and stop people asking questions, was certainly not a point that any of those leading the meeting were willing to dwell on. It remains a catchy phrase that doesn’t really change anything as far as copyright or legislation is concerned.

[xxvii] I am reminded of the words of poet John Clare, that “enclosure had a terrible but instructive visibility” (cited in E. P. Thompson 1993:180).

Advertisements

A Politics of Gentleness: towards a critical vernacular ecology

The following talk was given at Peace House in Oxford on the 21st November, 2013, during a workshop on Gentleness, Trust, and Activism, as part of the Northumbria University project, “Effectiveness in Action: Exploring the role of the Durkheimian ‘sacred’ in motivating community action, using reflexive and gently disruptive co-research methodologies.” The talk includes discussions of:

– What I mean by gentleness
– What I mean by ‘power’
– What I mean by a politics of gentleness
– What I mean by enclosure
– What role the ‘elimination of uncertainty’ plays in enclosure
– What I mean by a ‘critical vernacular ecology’ and its relevance to the practice of everyday life

The following link will direct you to the soundcloud page where you can listen to the talk in its entirety:

A Politics of Gentleness: towards a critical vernacular ecology

The (slightly edited) transcription follows below:

Just to throw the cat among the pigeons, I am an advocate of gentleness.  I am not an advocate of non-violence.  I’ll explain that later, maybe, if you ask me.

Right, for many years I’ve been doing many things. I did a lot of ethnography among people who do Irish music and Irish singing for quite a while during the 1990s. During the mid-1990s I was very interested in social and ethical dynamics among Irish traditional musician, particularly the ways in which the social and ethical dynamics among Irish traditional musicians were under pressure from the encroachments of intellectual property thinking and copyright thinking. Around 1995 to the year 2000 was a real cauldron time for the commodification of Irish musical practice, in terms of commercialisation, in terms of education, in terms of performance, in terms of copyright. Lots of things between 1995 and the year 2000 coalesced, and that cauldron of change is, I suppose, the origin story for a lot of the work that I’ve since done.

My main interests at the moment are what I call cultural climate (which other people might call emotional climate), the quality of relationship, the quality of spaces that we have at various times, the ways in which these change from one way to another way, the way in which they might, in some people’s eyes, get worse and in other people’s eyes get better.

I’m also very much focused at the moment on the issue of culture change. When I talk about culture change I mean it very much from the perspective of what for me are the functions of theory.  And when I say theory I simply mean thoughtful practice. But I also mean theory in the sense that theory, thoughtful practice, hopefully helps me reduce the possibilities of coercion, violence, domination and oppression in my own relationships and, by invitation, in the relationships of others, and, secondly, hopefully allows me to come to a greater understanding of what the conditions for human flourishing might be and how we might work towards actually establishing those within our own lives, our own relationships, and, by invitation, in the lives or relationships of others.

At the heart of my work is this word “gentleness”.  I don’t have a definition for gentleness but I will say what I mean by gentleness.  What I mean by gentleness is the quality of relationship that happens when the elimination of uncertainty does not dominate in relationship in a particular environment.  It is the quality of relationship that simply happens.  It’s the quality of relationship that we can trust will likely happen when the elimination of uncertainty in its various forms does not dominate in a particular environment.

And when I say gentleness I also work on the principal of “multiple vocabularies”.  I understand the concerns about the etymology of the term gentleness and its relationship to class structure and class histories.  So, one of the ways in which I talk about gentleness is with the idea of multiple vocabularies.  I might say “gentleness” but other people might say “kindness” or “couthiness” or “decency” or “generosity” or “hospitality” or “trust”. What’s of interest to me isn’t so much the word or the words that I use but the quality of relationship that is being spoken about behind or underneath those words. [Lift the words up and look underneath them]. And for me it’s that quality of relationship that comes from the withness and the hereness of people in space when the elimination of uncertainty does not dominate as an ethic within that space.

Now I imagine when I say the elimination of uncertainty that I’m not just talking in terms of kind of heady, cerebral philosophers like Descartes who seek to eliminate uncertainty and eliminate all doubt in everything they do, I’m talking about the quest for perfection, the quest for control, the quest for saturating, the quest to fix.  You know, many things which are frequently associated with patriarchal qualities but which can be found in many forms and many places and in my own life and many other people’s lives. That quality of the elimination of uncertainty, for me, is the driving factor of the shitty stuff. It’s the heart of what makes things crap.  It’s also the heart of what makes things-crap have an expansionary quality to them, and that is a core part of what I’m going to be talking about for the next few minutes.  It isn’t just that things get bad.  Is it when things are bad they get worse when they work within their own gravities and their own logic, and that is crucial to all of this. It’s why it’s not enough to just stand there and say, “I don’t like that”.  Things get worse if we don’t do something about them when they are based around the elimination of uncertainty.

The elimination of uncertainty for me is the engine of enclosure. When I studied enclosure for quite a number of years I tried to study enclosure historically, looking at enclosure of the commons, and I stayed away from the notion of the commons eventually because I noticed that a lot of the ways in which people would talk about the commons for me were actually versions of enclosure, so I found the rhetoric of the commons was frequently misleading and I sort of moved away from it. I’ve now moved back to it in a different form but I’ll maybe talk about that later.

The notion of enclosure for me refers to an expansionary dynamic that happens when the elimination of uncertainty ethic dominates. It involves a very key thing and something that is to be found across many different situations where things simply get worse. The expansion comes from … [I pick this up later].

I’d found a lot of people who described enclosure historically and currently. But in terms of explaining it … how will I know when I’m participating in it? That’s the key problem. How can I understand something psychologically enough that I know that I myself am participating in it, whether it’s enclosure or commodification or what have you. Show me somebody out there who talks about commodification in a way that I can understand when I am participating in it. I haven’t been able to find anyone. And so that was a part of my core quest as a thinker was to try and understand commodification and enclosure in a way that I could understand my own participation in it.  How was I making things worse when they were getting worse?  How was I making things worse when they were getting worse, even when I thought I was making them better?  How could I understand the misguided (sometimes) best intentions that I might bring to something, and still make things worse?  So that was at the heart of what I was trying to make sense of.

And at the heart of it as well, bringing us back to [talking to Clare Cochrane] your exploration of activism … at the heart of it for me was the assumption that there is no time when activism does not happen. There is not activism and non-activism. There’s not action and non-action. And this gets to the heart of what people might understand as the notion of power.

If you look at the literature you generally find that power means either the ability to control resources, or the ability to engage in goal-directed action, or the ability to control behaviour of others, or variations on those.  So, power is generally a very directive way of thinking about how we engage relationships with other people.

If you follow that line of thinking then you come to the first of what I think of as 4 points of a “critical vernacular ecology”. “Vernacular” in the sense of “ordinary-life” ecology.

First point is … if you go to the orthodoxies of political and social thinking, and economic thinking … the quieter forms of life, the people who are gentle, the people who are hospitable, the people who are generous, the people I have admired most in my lifetime whether as relatives or as friends, those people are not visible within social and political theory.  Not only are they not visible, they are not possible within social and political theory. They’re neither visible nor possible and they’re not possible because they’re not plausible. They’re not visible, they’re not plausible, they’re not possible, therefore they tend to be rendered automatically irrelevant to social and political theory in terms of the orthodoxies that are present in the academic world, and by association irrelevant to influence in governmental state politics and in various other forms of life.  And to our school system, and God knows what else.

One of the key things for me has been to think, okay, hold on a second, and this is the second point, that not only are these quieter forms of politics for me invisible, impossible, implausible,  and irrelevant for a lot of people, but they are also a deeply deeply human and deeply, deeply powerful, and I think the most powerful way of being human. They have deep within them huge potential for us to learn about the realities of politics, the realities of making a difference.

And at the heart of trying to understand that I came to a new understanding of power. To step away from the idea of control and step away from the idea of goal-directed action. To step away from the idea of controlling other people’s behaviour. To move towards something that doesn’t fall into the logic that says: only those who seek to control are powerful; those who do not seek to control are powerless. Therefore those people who I look to for power and influence and example within that framework would be powerless.  How [in contrast] could I work from a position where I would never be powerless, and the people I admire would never be considered powerless but would in fact be considered the height of power and the height of how we could and maybe should – that’s questionable – but how we could be making a difference in this world to achieve the optimal conditions for human flourishing in any particular environment.

And I came to the understanding of power as “the ability to vary experience”, whether the experience of oneself or the experience of others. That’s all. Power as the ability to vary the experience of oneself or others, in an anthropocentric sense, but you could expand that, of course, to the environment and to nature and to everything else around us, but within a kind of a social sense, I understand power as the ability to vary the experience of oneself or another. Like John Cassavetes, the filmmaker, who talked about “the power of small emotions”, or like Michel Foucault who talked about that sense of micro-politics, while also being really specific about it.

So this … [I move a glass on the table] is an act of power.  Silence becomes an act of power.  The interest isn’t whether something [or someone] is powerful or not, the interest is what the effects of power are. But saying somebody is powerless within that makes no sense whatever. So, the idea of powerlessness and powerfulness, and the idea of the state as the centre of power, for me, is just uninteresting. The question for me becomes … where is power happening? when is it happening? with what effects is it happening? and who’s involved?

Because within that framework we always-already make a difference, so to consider ourselves helpless is to misread the situation. The only question is, how do we make the difference that we make? How can we listen more to the possibilities of the differences that we might make within that situation? How can we identify the opportunities for making a difference in a more helpful way that increases the possibility of human flourishing and decreases and reduces the possibilities of domination, oppression, coercion and violence?

When I talked about non-violence earlier what I was referring to was the idea that for me the elimination of uncertainty is the core act of violence. It is a claim made in language about a reality which for me is always imbued with uncertainty and ambiguity and fuzziness and relationship and movement and flux. To eliminate uncertainty is to eliminate all of those things from your consideration. That for me is the core act of violence and I believe we always participate in it to some extent within the structures in our lives. So, for me, non-violence is not possible. Less violence is always possible.

For me, it’s about dominance. It’s about the dominance of the elimination of uncertainty. We can’t make ourselves pure and uncontaminated from a lot of the structures of violence that we find ourselves surrounded by, but we can reduce the influence of them within our own lives by becoming more self-aware and more community-aware in the way that we actually think about what we do.

So, one of the ways in which I was thinking about power was – I tend to think very visually … Generally when we think about power we think about power as control, usually in terms of state power and state authority. In terms of a centre of power. That’s very much the idea behind “speaking back to power.” When we say that, for the most part that’s the type of power that we’re talking about. We speak back to the centre of authority, the centre of those people who say things which shall not be challenged.

And [within this centre-periphery model of power] we occupy a very marginal place when we talk about the likes of gentleness or kindness or hospitality. We regard it as a very, very marginal part of the power conversation if it’s at all relevant. It’s probably actually way out here somewhere in this part [at or beyond the margin of the circle].

What I’m interested in saying is if you look at the vast majority of people and do an inventory of the amount of hours that people spend doing what they do, the vast majorities of people’s lives are spent, and this is crucially important to the education conversation, the vast majority of people’s lives are spent in informal [qualities of] relationship, in the quieter forms of life. If you were to do an inventory of what you do all day every day, most of it is pretty quiet and of low intensity. The vast majority of human life is informal, casual, non-institutional. That’s where most of the power in the world happens. That’s where most of the difference in the world is actually happening all day every day, and what we [normally] consider the centre of power is, actually, if you were to use a margins framework (which I’m not too happy about, but I’ll use it anyway), is marginal to that conversation of power [understood] as the ability to vary the experience of oneself or another.

So it inverts the conversation about power, and it says that placing a piece of paper in a box once every 4 years or 5 years or 7 years depending on which election you’re talking about, in whichever country, that’s not the vast amount of the difference that you’re going to make, within a framework of making a difference.  I’m not saying democracy, I’m not saying citizenship. Within a framework of making a difference the vast majority of the power that you’re going to engage in will be in things like … when your husband is dying of cancer, placing your hand on his hand and wiping his brow … holding your one-year-old son’s hand as you walk across the road, saying “take daddy’s hand” to make sure he doesn’t get killed as he walks across the road, waking up every morning to find your son [staring at you lovingly] and then spontaneously giving you a big slobbery kiss because he doesn’t know how to close his mouth yet.

Times when people are making a huge difference in each other’s lives but are not counted, these are not put in the reckoning of Politics with a capital ‘P’.  What I would suggest is, that this [formal, institutional qualities of power] could be called politics with a small ‘p’, and this [quieter, informal qualities of power] could be thought of as Politics with a capital ‘P’. I think it is really important to continually reassert that in the ways that we think about things.

So that’s the second point, that this is a very fertile way for making sense of how politics can be reconsidered. The third point is that these forms of life, of relationship, these qualities of relationship are deeply powerful and deeply important ways of identifying, critiquing and challenging elimination of uncertainty in politics.

The elimination of uncertainty, enclosure, has an expansionary heart. The way in which expansion happens within elimination-of-uncertainty enclosing politics is the extension of authority-as-certitude.  Basically somebody comes along and says “this is the way it is”. you take something off the supermarket shelf of thinking and you go, “Oh yeah I’ll get that, it’s great. I won’t look at the ingredients list on the side of the can, that’s grand. I’ll just take that, consume it, eat it, go home, be grand.”  Or you say, “Hold on a second … Certitude is the absence of doubt, absence of uncertainty. That’s just misrepresenting, grossly misrepresenting the way the world works, the way that experience happens, the way that relationships happen.”

The identification of the elimination of uncertainty is about saying, “Hold on a second, I disagree, I think differently.” This first of all automatically identifies the expansionary quality of it.  If nobody turns up and says hold on a second then you will never know that expansion is taking place, you’ll get the gentrification without dissent, for example. With the expansion of enclosure you will get the complete change of a community, the displacement of people’s values and ways of life and of people themselves around the world in wars all over the place. As a result of that vast power of people saying, “This is the way it is,” and people acquiescing and they themselves again in turn saying, “This is the way it is,” and living “This is the way it is,” and that expansion happening person by person by person by person.

But that quieter quality of politics is a way to actually make that visible. It is only really through the quieter politics that you can make that visible in any way that changes the equation.

Generally people start with the idea of human nature. Human nature is self interest; human nature is altruism; human nature is whatever it is, social, whatever. This is a huge frustration to me. It is one of the big traps of thinking in the English language, the idea that something is such and such; that it’s an equation, human nature equals such and such.  It avoids the challenge of diversity, it avoids the challenge of variety and one of the things that’s crucial in any understanding of social life and politics is to understand that human nature can be many, many things.  Human character can be many, many things.

What I ended coming up with in terms of looking at different contexts, looking at how people work, looking at human behaviour, looking at environmental design, and various other things …  You can look at everything and drive yourself crazy or you can look at a few particular things and try and find key variables in what happens to make sense of stuff.  So I came up with 3 key variables.

The 3 key variables were intensity of affect or emotion, the way in which that changes from moment to moment.  The intensity of affect or emotion will change in different circumstances.

A second key variable is directivity, things being more or less directive, more or less pushy and pully in terms of the gravities they have, either within us or around us, or from us or to us.

And then the third one is the way in which we relate to uncertainty, our relationship to uncertainty in language and thought, remembering that the elimination of uncertainty is merely a language claim that we make about the world.

What I discovered, though, is that these are direct correlates. [see The Cultural Climate Framework]

The more we try to eliminate uncertainty the more intensity we generate. The more we try to be intense the more elimination of uncertainty thinking becomes appropriate. The more highly directive ways of doing things become appropriate the more we try to be directive in terms of obligation, law, should, must, need to, have to. The more intense it becomes, the more elimination of uncertainty thinking becomes appropriate.

It’s about appropriateness-to-context. The idea is that if you were in an environment, and this is where it becomes core to understanding, if you’re in an environment which is dominated by the elimination of uncertainty, be it a highly controlled, highly ordered, probably a very top down organised environment, what will feel most appropriate within that environment, whether you’re for or against it, will be elimination-of-uncertainty thinking.

Opposition is one of the key responses to whatever happens in such an environment.  Opposition tends to be an elimination-of-uncertainty response, the idea that somebody is not you, and that you will oppose them.

The gravities increase the more you move towards the elimination of uncertainty and intensify and double back into themselves. Crucially, because working with the elimination of uncertainty brings us to misrepresent what’s going on, the more we think in terms of elimination of uncertainty, the more we think in terms of enemies and targets and things to fix and so on an so forth, things to be erased, the more blind we become to what’s actually going on, and, more importantly, blind to our participation in what’s going on.

So, one of the things that I’ve been very interested in as a fourth point of the critical vernacular ecology is the idea that we need new theory.  We need new theory from old wisdoms.  We need new ways of talking about what’s going on based on understandings that we have already had. This is my attempt, my contribution.

Core to this is an idea that is very familiar within Aikido, the notion that to improve a situation you “sidestep, enter and turn.”  Sidestep – when there’s a truck coming down the road you get out of the bloody way because it will run you over.  So you sidestep.  Then you go back into the situation at a point of lower intensity and you move with the situation in a way which will bring it to a lower intensity.

I’ve taken advice from a friend in Australia many times, don’t plant trees where they’re going to get cut down.  Two strikes and I’m out, now three strikes and I’m out now.  I’ll try twice and if I find that the trees are going to get cut down I’m going to move to somewhere where it’s more fertile because the importance is to keep the energy at a high level in terms of being out there rather than going in to places where damage-limitation will suck you dry.

Damage-limitation is crucially important, but if you spend most of your time up doing that in elimination-of-uncertainty zones you’re going to burn yourself out. What’s really, really important is to make forays into the difficult places and find a way to keep yourself balanced and not burn yourself out. To keep that balance, work-life balance I suppose, in a sense, so that, when you make your forays, now you have your armour, you are prepared, you are able to, in a sense, engage in some sort of martial art when you do damage limitation work. But when you come out of it, you yourself are not being defined by the logic of that which you are seeking to make better.

There’s a guy called Simon Sinek who does leadership work and he talks about how most people in leadership start with what they want to do, and then they identify how they’re going to do it, and then they think, “Oh I’m kind of doing something some particular way, I’m going to think about why I’m doing it now.” Sinek went around looking at all the different leaders … Martin Luther King, Steve Jobs, you know, , and he was looking at the way in which people who had a very clear purpose (“the why”) for what they were doing were often more successful in drawing other people to what they were doing.

Now I have misgivings about this because often people who are successful in drawing people to follow them are people who are all about the elimination of uncertainty.  I watched a documentary the other day about Hitler. He was a superb, a superb speaker. He was superb at drawing followers behind him. The faster your movement grows the more you should be suspicious of what quality it has. Very simple. Invitational movements grow really really slowly. Trauma happens really, really quickly but it takes year to actually heal from that trauma. The quicker what you are doing is spreading the more you need to question what you are doing. But what I would suggest, is what I call “How 2.0”, very pretentious of me. How 2.0 is not “how am I doing it?” but, “how do I want it to feel when it happens?”. “How do I want it to feel when it happens?” And that for me is the core. That is the core of this work.

In thinking about the elimination of uncertainty, and thinking about enclosure, and thinking about gentleness, or kindness, or whatever, when you lift the words up and look underneath, and look below those multiple vocabularies, the important thing is to think about “how do I want it to feel?”, and then when it’s happening “how does it actually feel?”. If it feels really, really intense than you’re into the “enclosure triad” – High intensity.  High directivity and elimination of uncertainty thinking. If what you are doing feels like that, it’s time to rethink.

Emotional and political possibilities of pedagogy in virtual worlds.

This is a working paper.

Abstract:

A lot of emphasis is currently being placed on the development of e-learning in Higher Education. Through innovations such as Second Life, Moodle, Blackboard, and other such developments, it would seem that e-learning offers the promise of interesting and innovative approaches to lifelong learning, Continuing Professional Development (CPD), and widening participation. E-learning, it seems, is a good thing.

In this paper I explore some of the pedagogic implications of the use of virtual learning environments. What might be the possibilities and limitations of such technological spaces and places with regard to qualities of relationship and learning? Could moves to emphasise the human face of online learning be a response to a degree of dehumanisation that may always-already take place when a move is made from face-to-face to online learning?

Further, what might be the implications of virtual learning environments for teachers, lecturers, and facilitators who privilege the affectual dimensions of pedagogic interactions? What might we mean by ‘learning’ when we speak of virtual learning environments? What might be the limitations and possibilities of virtual environments for thinking about helpfully transformative social, political, and personal education? What we understand as the conditions, limitations, parameters, and possibilities of learning as a process very much guide, and even at times determine, how we conceive of the structuring possibilities of virtual learning environments.  An exploration of the emotional and political dimensions of pedagogy in virtual worlds is important for understanding limitations and possibilities in our negotiations of those worlds.

Introduction: towards a pedagogy of gentleness?

I remain fascinated by the possibilities of affect, influence, and power in online environments and virtual worlds. In my research and teaching I am seeking to understand power and agency in ways that allow an attitude of gentleness, rather than an attitude of control, to be my default baseline. I do not make much of a distinction between online environments and so-called Real Life environments in trying to understand either the politics of attitude or the politics of gentleness.

What I understand “gentleness” as the dynamic that happens when the expectation that uncertainty can be or should be eliminated does not dominate in our relationships and in the situations we negotiate. One of the specific notions that I have been exploring is a “pedagogy of gentleness”. I believe it is both possible and desirable to reduce the extent to which people, whether as teachers or students, might seek to control, manage, or eliminate uncertainty within learning environments. From practice-based research I have drawn the following principles for my pedagogic practice, among others:

1. There is nothing more personal, political, or relevant for me than attending to the character of my own emotional attitude in my role as an educator. How I feel on the day will have a major influence on the character of my teaching. This is what Teresa Brennan (2004) referred to as the “transmission of affect”. As Teresa Brennan outlines: “By the transmission of affect, I mean simply that the emotions or affects of one person, and the enhancing or depressing energies these affects entail, can enter into another” (3). This is consistent with the later work of critical pedagogist Paolo Freire and his insistence on the importance of “being with” (Freire 1998). I also find it important to note Megan Boler’s insistence that: “A pedagogy that recognizes emotions as central to the domains of cognition and morality need not preclude intellectual rigor or critical inquiry” (Boler 1999:110).

2. It is important for me not to seek to prescribe the outcomes or direction of a classroom. The character and quality of the interaction in the room is of greater importance to me than a clear trajectory, and the quality I am seeking to foster is consistent with Mark Smith’s characterisation of “local education” practices: “Instead of aiming for particular changes in individuals, we look to the nature of the interactions we foster – we move from a focus on product to a concern with process and praxis” (Smith 1994:36). The emotional climate I seek to foster in my teaching and learning is very much a conversational one, with an openness to detours and divergences in direction. As Smith notes, “The specific goal may not be clear at any one time, either to educators or learners, yet the process is deliberate. Educators in these situations seek to foster an environment in which conversation can take place” (1994:63). Learning outcomes, then, are used for the module as a whole but are not used for each session. I am reminded of the words of Derrick Jensen:

“I cannot control what my students want or are able to learn, and I have no desire to. Nor can I control whether the students like the class, and I have no desire to do that either. Nor can I control whether they are at a place in their lives to learn from anything I have to offer. … What I perceive as the direction they need to head may bear no relationship to the direction they actually need to head, the direction they’re capable to heading, or the direction they indeed end up heading. And I need at all times to defer to that uncertainty, that mystery” (2004:109-110)

3. Confusion can be fruitful. In my pedagogy I offer students an invitation to “trust your confusion” in expectation of the conversational quality of the interactions. This can be unsettling for students at times, but it can also facilitate a space of creativity and opportunity; Megan Boler speaks of a “pedagogy of discomfort” in which students are invited “to leave the familiar shores of learned beliefs and habits, and swim further out into the “foreign” and risky depths of the sea of ethical and moral differences” (Boler 1999:181). This is very much in the spirit of what a colleague of mine, Paul Devlin, advises his students, that they find their place of uncertainty and build a house there. One of the challenges, of course, is to find a way to match the exploration and generation of confusion with the generation and provision of stabilities (but not certainties) that will balance that confusion for the students.

These principles become important markers for me in trying to make sense of teaching and learning, whether face-to-face in a classroom or in online environments and virtual worlds.

E-Learning: triumph and disaster.

Lewis and Whitlock have declared that; “It is no longer necessary to argue the case for e-learning” (2003:xv). Would that this were so, but my own experience tells me otherwise. At the end of one semester at my university I was ready to throw my computer in the bin and declare online teaching and learning a lost cause.

As a mature student doing online courses for professional development, I have grappled with buggy software, wrestled with unruly hardware, screamed in frustration as I discovered that my serendipitous and fluid personal study styles developed over too many years as a postgraduate left me ill-suited to the scheduled delivery modes of online teaching and learning.

In the same year I served as a Course Director for an online course. I learned to do the following, among other things: listen to students with similar frustrations as myself; calm students with angry complaints; work with people who had suffered family bereavements, without the benefit of face-to-face contact; chase a tutor constantly for what seemed at the time like absence and neglect, but turned out to be more complicated than that; work with librarians mid-semester to scramble together online-accessible resource lists; and work with the university tech people to manage software difficulties.

After these experiences as student and as teacher I was certainly not inclined to give online teaching and learning the benefit of the doubt. My experiences generally in face-to-face teaching and learning had been very positive. I had become increasingly able to let classes happen, to respond to the conditions of the classroom and the mood of the students, in and around the themes I had prepared in advance for discussion. Silences, pauses, and an ability to stand, listen, and let it go, were becoming powerful tools in my arsenal of techniques for teaching. I was concerned that the parts of teaching I enjoy most would not be available to me in an online teaching and learning environment. I was concerned that what I was developing as my own best practice was not going to be available to me as an online tutor. To become a good online tutor would require me, horror of horrors, to start from the beginning again, to rebuild through the frustrations and the difficulties, to come to a constructive position for the development of online modules.

In short, I had come to a place where the onus was on me to either argue the case for online teaching and learning or to avoid it altogether. I didn’t really have the option of avoiding it, though, as there was an e-pedagogy module to complete for the PG CHEP (Post Graduate Certificate in Higher Education Practice), and I had just been commissioned to provide 4 units for yet another online module. Not only that, but I was due to start as Module Coordinator for the provision of another online course in the year to come. Online teaching and learning, it seemed, had become my fate.

“Look at the screen … and smile!”

It is easy enough to feel awestruck in the face of the new technologies in universities. This would seem to be the case for students; Lewis and Whitlock have written that, “E-learning has proved a dispiriting experience for some learners: slogging their way through unattractively presented content on a screen, unsure of where they are going and how long it will take to get there (if they ever arrive), aware only that it all seems to be taking a lot more time than they ever thought” (2003:xv). I would suggest that the same could be said for the experience of a lot of teachers, although I imagine many of them can make more of a positive difference to their own experience than they maybe realise.

A lot of emphasis is currently being placed on the development of e-learning in Higher Education. It would seem that e-learning offers the promise of interesting and innovative approaches to lifelong learning, Continuing Professional Development (CPD), and widening participation. The student populations of university campuses are increasingly diverse, and there is increasing pressure on university resources. By offering e-learning platforms universities can also ostensibly offer more learning in part-time, distance, and other flexible models. E-learning, it seems, is a good thing. Lewis and Whitlock again;

“E-learning is no longer new. It occupies a growing role in most education and training organizations. It is making the lives of individuals easier: helping people learn whilst at work or in the home, flexibly and at times that suit them. … As technology and software improve, e-learning becomes faster, more reliable, more portable and easier to use. So, not surprisingly, e-learning is playing an increasing part in the lives of learners and of learning and training organizations” (2003:xv).

Jane Knight (2003) describes e-learning as, “The catalyst that is changing the whole model of learning in this century”. In an ideal world, e-learning is claimed to offer “a student centred learning environment which can be tailored to meet the learning needs of individual students”, with approaches to learning that are described as “active” (Kenya Education Network 2007). E-learning promises increased student-staff and student-student communication, frequent individual feedback, collaborative learning, and greater student motivation.

One of the biggest challenges for the continuing development of e-learning is, I believe, to temper this unbounded optimism with a large dose of reality. Could all of this optimism be little more than rhetoric, feeding into tired progress narratives about the benefits of technology and our unquestionable need to follow the latest developments?[i]

We can celebrate the emancipatory potential of learning technologies all we like, but as of yet there has been little solid research to substantiate the claims that are being made. In the context of people with learning difficulties, for example, Abbott notes that, “There is little published, peer-reviewed research related to the use of digital technologies to assist those with learning difficulties to learn more effectively and efficiently” (2007:7). There are not necessarily more educational possibilities available to us simply because technology is involved.[ii]

E-Learning and the challenges of pedagogy

The pedagogic challenges we face in e-learning are in large part the same pedagogic challenges we face in any context of teaching and learning – teaching one, by one, by one … ; inviting people to make sense of their lives; providing educational opportunities. The non-technical personal competencies among the competencies required for online tutoring (see Salmon 2000) are little different from those required for teaching generally. Calder and Milne (Date unknown) suggest that:

“The most compelling reason for using learning Technology is that high quality resources, implemented effectively in courses, have the potential to significantly improve the quality of teaching by enhancing student’s learning experiences and involvement in the learning process through: interactive learning environments; assessment and feedback ; facilitating student-staff and student-student communication.”

But surely any pedagogy, online or otherwise, would, I hope, seek to enhance students’ learning experiences and involvement in the learning process though greater interaction, more appropriate assessment and better feedback, and better student-staff and student-student communication.[iii]

There is a case to be made for the benefits of online education, and many voices in the literature make such a case, from Jane Knight’s techno-boosterism (2003) to some more measured approaches found on the JISC website (e.g. Abbott 2007). Hawkridge and Vincent (1992) put forward a cohesive and closely reasoned argument for the use of computers by people with learning difficulties, while also recognising the limits of technological determinism in this field: “Computers can ease learning difficulties,” they write, “They can help learners to overcome their difficulties. They cannot work magic. They are not necessarily the best solution. Because each learner’s needs are slightly different, there are few standard rules.” (Hawkridge and Vincent 1992:21)

People are working to humanise e-learning. Throughout online educational practice people are encouraging less interventionist and more communicative tutorial support; encouraging more dialogue between students and between students and tutors; fostering community in whatever what they can. But these attempts may sometimes amount to little more than a back-pedalling response to a degree of dehumanisation that always-already occurs in institutional education of any sort, if Freire (1970), Illich (1970), Jensen (2001, 2004), and many others are to be believed. Maybe more, maybe moves to emphasise the human face of online learning is a response to a degree of dehumanisation that may always-already take place when a move is made from face-to-face to online learning. This was the argument made in early research on so-called computer-mediated communication systems. It was assumed that Computer-Mediated Communication (CMC) restricted or limited the possibilities of human communication when compared to face-to-face communication (see Herring 2002:133). For example, Daft and Lengel (1986) proposed a theory of “information richness”. For them, “lean” text-based CMC media make use of a single channel of communication, thereby being best suited to linear, concrete tasks such as scheduling. In contrast, they proposed that multiple channel media such as face-to-face speech are richer, and are more likely to be appropriate to complex and ambiguous tasks. Short, Williams, and Christie (1979) and Spears and Lea (1992) make the case that the text-based nature of CMC results in low “social presence”, and is thereby less-well suited to relational communication.

Virtual Learning Environments give us little obvious opportunity as tutors to work with  silence and pauses, often powerful tools in the classroom. E-learning gives us little obvious opportunity to work with the affectual dimensions of individual interactions or of a group interaction. To work with online technologies is for me to first of all acknowledge the limitations of those technologies with regards to relationship. As Brook and Boal have written, “… virtual technologies are pernicious when their simulacra of relationships are deployed societywide as substitutes for face-to-face interactions, which are inherently richer than mediated interactions” (1995:vii).

In acknowledging those limitations we can temper the enthusiastic hyperbole of e-learning evangelism and work towards more realistic and appropriate online pedagogies that recognise that online education is not a new dawn or a dazzling virtual reality separate from the dull one we ordinarily inhabit. Technology in and of itself does not constitute a revolution. It is important to stay grounded. Shapiro writes, “… it would be a mistake, conceptually and practically, to erect a barrier between online and offline activity. Cyberspace is not somewhere “out there,” a world apart from flesh and blood, asphalt and trees. Our actions online have (need it even be said?) a real impact on the lives of other human beings” (Shapiro 1999:31).

My own experience is that engagement with online teaching presents us with few opportunities for pedagogic reflection unless we explicitly allow for such opportunities. A JISC report from 2004 states that “Making the move towards new technologies presents practitioners with a complex set of challenges – they may need to develop new skills, embrace changes in the nature of their role, and then reassess the pedagogies they employ” (JISC 2004:7). But to be honest, very few of us get time to reassess the pedagogies we employ because very few of us get opportunities to really reflect on the implications of our pedagogies at all, whether online or face-to-face. We don’t really get the time or the headspace to reconceive our teaching roles or our understandings of pedagogy while we clamber awkwardly to cope with the latest online delivery software package or struggle to make sense of students who communicate solely through digital text. Administrating and monitoring online courses is hard enough as it is.

Yet, one of the key challenges in online learning is to remember that we are teachers and to underline the importance of the role of teaching. Online learning, or e-learning, is still online teaching and learning, but the dropping of the second word is significant. Erica Williams, back in 1991, warned of the bifurcation of teaching and learning, as ‘delivery’ was beginning to be preferred to the term ‘teaching’ and ‘instructional designer’ was increasingly being substituted for the word ‘teacher’. Pedagogy, paradoxically, was increasingly being used to erase teaching from learning. Voithofer applies Williams’ critique to online pedagogy where frequently, as Voithofer says, “a “teacher-proof” course that ensures predictable and exportable learning modules is part of the design objective” (2002:491). Passive tenses abound as teachers become less present in online environments, even to the point of becoming interchangeable – in this university, once we design units for modules they apparently become the intellectual property of the university and can be reused by any other tutor without consultation.[iv] So, in a very practical sense, the teacher could be anybody.

Deeply personal pedagogic approaches could easily become problematic as this happens, and people are likely to default to pedagogic approaches in which they are not terribly invested. This embedded interchangeability likely also encourages approaches to pedagogy which are more about information delivery than invitations to personal exploration and support of a journey of critical inquiry. This could, over time, profoundly distort the ways in which the possibilities of teaching are conceived in technological domains by teachers and also by students. As McConnell writes, “If tutors are moving towards a relationship that is peripheral, purely diagnostic and outside the actual productive work of the community, then they are likely to be seen by members as outsiders who exert control and unilateral power” (2006:194).

The Internet was not initially designed with teaching and learning practices in mind. As Talbott reminds us, “Often hailed as an unparalleled weapon against the establishment, the Internet actually grew out of a scheme for making military communications more secure.” (1995:1). Originally, the Internet was designed for the exchange of technical data, designed to facilitate computation and calculation. To use Internet and computer technologies unquestioningly in teaching and learning may be to risk allowing the quiet imperatives of code (see Lessig’s Code 2.0) and the powerful rhetorics of technological progress to determine the possibilities of our pedagogy. We do well to consider the words of Steven Jones, that “the Internet is a “piggy-backed” medium, one that follows paths we already know” (Jones 1997:8).

Blamires has noted that “the successful educational use of technology also requires rigorous thought about learning” (1999, p113). ‘What learning involves’ is often something which is very much taken for granted in discussions about online teaching and learning, even though our underlying assumptions about learning remain very influential but, most frequently, those assumptions also remain as surreptitiously silent partners in the development of online learning provision. As McConnell suggests, “our view of learning often determines the way we design e-learning events and courses, and … this has serious consequences for the learning outcomes of those students taking the courses” (2006:10). To quote Neil Gaiman’s Sandman, “Tools, of course, can be the subtlest of traps” (1997:141). What we understand as the conditions, limitations, parameters, and possibilities of learning as a process (i.e. our pedagogic approach) very much guide, and even, at times, determine how we conceive of the structuring possibilities of a virtual learning environment.

Take the following quotation from the JISC report, Effective Practice with e-Learning (2004:12); “A learning activity can be defined as an interaction between a learner and an environment, leading to a planned outcome. It is the planned outcome which makes learning a purposeful activity”. This is a very limited understanding of ‘learning’ which allows no room for learning to take place in a non-goal-directed manner, no room for serendipity, no room for exploratory detours, no room for the more interesting aspects of what the experience of learning can be.

Two aspects of this statement jump out for me: first, who has the power of definition in this instance? Undoubtedly the teacher. Second, who plans the outcome? Again, undoubtedly the teacher. Conceiving of learning activities in this way maintains a clear hierarchy between teachers who teach, plan, deliver, and students who learn as they are directed, get managed, and receive. There is nothing in this conception of learning which challenges tendencies within institutional education or e-learning towards ‘banking’ or ‘deposit’ educational models, where students are conceived of as containers to be filled with information. Online teaching and learning is always-already heavily circumscribed in terms of content and delivery. It is important that our conceptions of learning do not merely reinforce that circumscription with limited and limiting understandings of what it can mean for us to learn. As Voithofer writes:

“Following traditional instructional design models will lead to courses and curricula that teach standardized content through unresponsive pedagogies because they rest on assumptions that construct learners according to skills, knowledge, and performance rather than cultural factors that elude simple descriptions (conductive reasoning and ontological knowing), yet are no less significant to learning” (2002:494).

Students, in effect, can easily become interchangeable information clients, in a manner consistent with the increasing influence of neo-liberalism within the university sector[v], and in ways that facilitate views of education as little more than individually-oriented information processing or information management (as in ADDIE Instructional Design or Resource-Based Learning (RBL) approaches – see Mobbs 2003 and Maier 2000). It is crucial, therefore, that pedagogy in e-learning be understood as more than just the study of teaching practice or the promotion of best practice in teaching. E-learning practices are primed to spiral off into unrealistic and misguided rhetoric of a technoromantic (Coyne 1996) or technologically deterministic (Mackay 2001) character. Because of this, it is important that the need for critical questioning is not just located in the learning experiences of students but in our own reflections about the basic assumptions about learning, behaviour, time, and social change, that are always-already structured into the technological systems that we employ for our online teaching. These basic assumptions about the meaning and role of technology, the role of information in personal development, the nature of progress, and the place of the individual in society, in turn tacitly shape the limits of our pedagogic imaginations.

I am encouraged by some of the literature on online interactivity and course design (e.g. Clarke 2001). However, I do not regard computer interactions to be any more interactive than standard classroom interactions, indeed I regard them as much less so. It is commonly assumed by many that online environments are qualitatively or even essentially different from other non-electronic teaching and learning environments. Consider the following statement by Lewis and Whitlock, for example. “E-learning programmes should be interactive. This distinguishes them from textbooks, videos and other one-way media for transmitting information. The designer of the package achieves interaction by asking questions and posing problems” (2003:61). Again, as they frame interactivity, the designer initiates interaction, and frames the problems. Interactivity is assumed to be something other than that which ordinarily happens. E-learning technology is assumed to facilitate interactivity whereas other kinds of technology (e.g. books, videos, television) are assumed not to – computers are presented as essentially different in kind and consequence from previous technologies. Interactive learning, it follows, can only occur within an IT problem-based framework. I just don’t find that a helpful starting point for pedagogy.

David McConnell (2006) optimistically proposes that a new paradigm of learning is emerging in the development of e-learning, which he terms “networked collaborative e-learning”[vi]. For McConnell, two core features of this new paradigm are the emphases on both communities and identity formation as key features of attempts to make e-learning effective and productive. McConnell is concerned that the now orthodox focus on stand-alone e-learning packages that focus on individual student learning is too reliant on instructional system design [ISD] principles “that do not foster participative learning or critical analytical thinking” (2006:8). To encourage a broader pedagogic approach than that offered by “instructional system design” he draws attention to the work of the educational psychologist Vygotsky (1962, 1978). Vygotsky was keen to emphasise the importance of social context and the experiential dimensions of education in the development of understanding.

I’m not so sure that ‘networked collaborative e-learning’ (NCEL) constitutes a paradigm shift as much as it serves as a constant challenge to e-learning pedagogists. In my own experience it is easy to state that ‘networked collaborative e-learning’ or NCEL is occurring, and an awful lot more difficult to put it into practice. Talking about fostering community is a lot easier than fostering community; ask any UK government. To foster online community, it is important that personal contact be maintained at every opportunity, and that the tutor avoid at all costs the temptation to reduce the provision of a course to information delivery and merely interventionist tweaking of the course materials. As with classroom practice, online teaching and learning constitutes and is constituted by a series of relationships, which can be more or less disrespectful depending on the efforts made to maintain strong, clear, and frequent communication among the participants. Online teaching and learning always-already involves communication between and among people. The main issue is the quality of that communication and the texture of the attitudes and relationships that are facilitated by both that communication and by the collective level of virtual ‘social presence’ that the participants allow themselves to contribute.

Closing thoughts

Through the process of developing my online lectures I have become convinced that it is possible to work towards more humanised pedagogies in online learning. I am not convinced that the pedagogies of Instructional Design or Resource-Based Learning will get me where I want to go, but I do believe that there is plenty of scope for the introduction of radical or critical pedagogic approaches to online teaching and learning. I would say, though, that more helpful approaches would be facilitated by a more extensive consultation process among the people involved in the lecture design process, more consistent and explicit discussions of pedagogy generally across the university, and more time to prepare the lectures.

In my online work I aspire to, as Voithofer says, “… learning that is deeply personal and situated, taking into consideration local learning perspectives, while remaining historical within the narratives of the learner’s experiences” (2002:481). This will be difficult, I am sure, and may require considerable personal investment, maybe even more than in face-to-face teaching. Nevertheless, I am keen to explore the possibilities, at least for a while.

References

Chris Abbott. 2007. E-inclusion: Learning Difficulties and Digital Technologies. Bristol: Futurelab.

Mike Blamires, ed. 1999. Enabling Technology for Inclusion. London: Paul Chapman.

James Brook and Iain A. Boal, eds. 1995. Resisting the Virtual Life: The Culture and Politics of Information. San Francisco: City Lights.

Colin Calder and John Milne. Date unknown. “Introduction to Learning Technology” [online]. University of Aberdeen. URL: http://www.abdn.ac.uk/~ltu006/guide/ (accessed May 24, 2007)

Alan Clarke. 2001. Designing Computer-Based Learning Materials. Aldershot: Gower.

Richard L. Daft and Robert H. Lengel. 1986. “Organizational Information Requirements, Media Richness and Structural Design.” Management Science 32(5):554-571

Paolo Freire. 1970. The Pedagogy of the Oppressed. New York: Herder and Herder.

Paolo Freire. 1998. Pedagogy of Freedom: Ethics, Democracy, and Civic Courage. Lanham: Rowman and Littlefield.

Neil Gaiman. 1997. Sandman Vol. 10: The Wake. New York: Vertigo (DC Comics).

David Hawkridge and Tom Vincent. 1992. Learning Difficulties and Computers. London: Jessica Kingsley.

Susan C. Herring. 2002. “Computer-mediated communication on the internet.” Annual Review of Information Science and Technology 36(1):109-161.

Ivan Illich. 1970. Deschooling Society. New York: Harper and Row.

Derrick Jensen. 2001. A Language Older Than Words. New York: Context Books.

Derrick Jensen. 2004. Walking on Water. White River Junction: Chelsea Green Publishing.

Alan Jolliffe, Jonathan Ritter, and David Stevens. 2001. The Online Learning Handbook. London: Kogan Page.

Steven G. Jones. 1997. “The Internet and its Social Landscape.” In Virtual Culture: Identity and Communication in Cybersociety. Steven G. Jones, ed. 7-35. London: Sage.

Kenya Education Network. Date unknown. “Why E-Learning?” [online]
URL: http://cbdd.wsu.edu/edev/Kenet_ToT/Unit1/WhyeElearning.htm (accessed May 24, 2007)

Jane Knight. 2003. “Why is E-learning so important?” [online] Sheffield: E-Learning Centre.
URL: http://labsel.pesarosviluppo.it/docindexer/Uploads%5C207-Why%20is%20e.doc (accessed January 11th, 2011)

JISC. 2004. Effective Practice with E-learning. Bristol: JISC. URL: http://www.jisc.ac.uk

Lawrence Lessig. 2005. Code 2.0. [online] URL: http://codev2.cc/ (accessed January 11th, 2011)

Roger Lewis and Quentin Whitlock. 2003. How to Plan and Manage an E-Learning Programme. Aldershot: Gower.

Hugh Mackay, with Wendy Maples and Paul Reynolds. 2001. Investigating the Information Society. London: Routledge and The Open University.

Pat Maier. 2000. “Resource Based Learning.” [online] URL: http://www.clt.soton.ac.uk/LTIndex/docs/rbl.doc (accessed May 24, 2007)

David McConnell. 2006. E-Learning Groups and Communities. Maidenhead: Open University Press.

Erica McWilliam. 1991. “Introduction.” In Pedagogy, Technology and the Body. Erica McWilliam and Peter G. Taylor, eds. 1-22. New York: Peter Lang.

Richard Mobbs. 2003. “A Successful eLearning Approach.” [online] In What is eLearning & How to become an eTutor. URL: http://www.le.ac.uk/cc/rjm1/etutor/introduction/gettingitright.html (accessed May 24, 2007)

David Murphy, Robert Walker, and Graham Webb, eds. 2001. Online Learning and Teaching with Technology. London: Routledge Falmer.

David Noble. 1997. “Digital Diploma Mills: The Automation of Higher Education.” [online] URL: http://communication.ucsd.edu/dl/ddm1.html (accessed January 11th, 2011)

Ros O’Leary. 2002. “Virtual Learning Environments Higher Education Academy Guide.” [online] URL: http://www.hea.ac.uk (accessed May 24, 2007).

Gilly Salmon. 2000. E-Moderating, the key to teaching and learning online. London: Kogan Page. URL: http://www.monash.edu.au/groups/hepcit/Presentations/2003/GSalmon/modcomp.doc

Andrew Shapiro. 1999. The Control Revolution: How the Internet is Putting Individuals in Charge and Changing the World We Know. New York: Public Affairs.

Ormond Simpson. 2002. Supporting Students in Online, Open and Distance Learning. London: Kogan Page.

Stephen L. Talbott. 1995. The Future Does Not Compute: Transcending the Machines in Our Midst. Sebastopol, CA: O’Reilly and Associates.

Rick Voithofer. 2002. “Nomadic Epistemologies and Performative Pedagogies in Online Education.” Educational Theory 52(4):479–494.


[i] David Noble (1997) warns of corporate promoters of online education who seek to create problem-solvers and technicians through distance education that will be well-suited to fit into the pervasive neo-liberal logics of everyday life. He argues that the drive for technological transformations in online teaching and learning is a camouflage for the increasing commercialisation of formal education, “a disarming disguise”: “…behind this effort are the ubiquitous technozealots who simply view computers as the panacea for everything, because they like to play with them. With the avid encouragement of their private sector and university patrons, they forge ahead, without support for their pedagogical claims about the alleged enhancement of education, without any real evidence of productivity improvement, and without any effective demand from either students or teachers” (Noble 1997).

[ii] Indeed, it can be argued that technology has always been involved: “… the classroom itself is a technology, or comprises a set of technologies which we mostly take for granted – physical materials such as desks and chairs, black, white and green boards, chalk, pens, projection devices, worksheets, textbooks, notebooks, lighting and sound regimes and so on. It also includes social practices we have developed to manage these tools and settings: lectures, group activities, labs and field trips, for example. Technologically enhanced teaching and learning, in this view, is not new” (Murphy et al. 2001:2).

[iii] While I may have been more consciously aware of the interactivity of the lecture designs in e-learning, I do not regard computer interactions to be any more interactive than standard classroom interactions. Indeed, I regard them as much less so. It is commonly assumed by many that online environments are qualitatively or even essentially different from other non-electronic teaching and learning environments. Consider the following statement by Lewis and Whitlock, for example. “E-learning programmes should be interactive. This distinguishes them from textbooks, videos and other one-way media for transmitting information. The designer of the package achieves interaction by asking questions and posing problems” (2003:61). As Lewis and Whitlock frame interactivity, the designer initiates interaction, and frames the problems. Interactivity is assumed to be something other than that which ordinarily happens. E-learning technology is assumed to facilitate interactivity whereas other kinds of technology (e.g. books, videos, television) are assumed not to – computers are presented as essentially different in kind and consequence from previous technologies. Interactive learning, it follows, can only occur within an IT problem-based framework.

[iv] As Course Director of an online course I discovered this to be problematic, as the person who designed the course was not available for consultation.

[v] Note the increasingly common economic language with which discussions of pedagogy are framed, for example, “Learning outcomes help the various stakeholders” (Lewis and Whitlock 2003:62).

[vi] McConnell believes that this shift in e-learning pedagogy correlates with what some (eg. Sklar and Pollack 2000) have identified as a shift in Internet usage. Where once the Internet was deemed a vast reference source or virtual encyclopaedia within the framework of knowledge-based economies, now it is being predominantly used as the home for a myriad of virtual communities; “communication between people has become the dominant mode of use” (McConnell 2006:9).

Questioning Educational Strategies: The Challenges of Radical Pedagogy in Discussions about Irish Traditional Culture.

2013. “Questioning Educational Strategies:  The Challenges of Radical Pedagogy in Discussions about Irish Traditional Culture.” In Crosbhealach an Cheoil – the Crossroads Conference 2003: Education and Traditional Music. F. Vallely et al., eds. 288-298. Dublin: Whinstone. URL: http://www.whinstone.net/books-on-music/

Abstract:

Scholars in the field of radical pedagogy have critically analyzed the role and effect of institutional education in our lives. Thinkers such as Paolo Freire, Ivan Illich and others have highlighted the negative contribution of many formal educational strategies to relations of domination, oppression, and dehumanization. The intense commodification of knowledge experienced in many educational contexts, they argue, can be profoundly disempowering. Illich calls for the disestablishment of the schooling system itself. More recently, Prakash and Esteva make the case that formal education constitutes an assault on the values of traditional communities. They interrogate the relationship between the socializing power of education and a globalizing capitalist ethos, arguing that “education” often constitutes an insidious continuation of colonial ideologies.

In postcolonial Ireland such concerns must be taken seriously. This paper is an opportunity to further interrogate the relationship between formal education and the value systems of vernacular or traditional culture in Irish contexts. By critically addressing the issues raised by the increasing presence of formal educational authorities in the discourses and practices of “Irish traditional music”, we can perhaps assess the effects of formal education on the ways we understand “tradition” and “wisdom” in our lives.

Introduction

Until now I have been most interested in the way that ‘intellectual property’ is increasingly accepted as an authorised way to make sense of our experience of ‘Irish Traditional Music’. I have analysed this acceptance as an example of the process and practices of enclosure (McCann 2001, 2003), looking at the difference such acceptance makes in our everyday lives. In this paper I turn to the ‘enclosure’ implicated in the increasing acceptance of formal education. I will draw on writings within the field of radical pedagogy to suggest that formal education is furthering the diminishment of present, powerful, humanising, and transformational social dynamics in Ireland (and elsewhere). I will suggest that formal education is, more likely that not, undermining particular values that prioritize relationships in favour of others that don’t, often in the name of “Irish Traditional Music”. I will also suggest that we ourselves participate in these processes of diminishment when we promote, accept, or ignore the effects of formal education upon the ways we understand our lives and experience.

In a very straightforward fashion, the critique that I present in this paper is also a critique of my own experience. I am a profoundly institutionalised human being. This is perhaps more so in relation to what I have considered “education” than in relation to anything else. I have, in fact, spent twenty five years in formal, institutional education: six of these in primary schools, seven in secondary school, and twelve in third-level education. I have also spent three years as a traditional music journalist, and I was definitely one of the Great Obsessed. I have been for many years an unquestioning convert to the concept of “Tradition” and the discourses and practices of “Irish Traditional Music”, so anything I say here in critique is very much a critique of my own experience.

Radical Pedagogy

A dictionary will probably tell you that pedagogy is ‘the science of teaching’. Radical pedagogy, explored elsewhere in this volume by Stan Reeves, has grown out of the critical theory of the early Frankfurt School of philosophy. Members of the Frankfurt School were profoundly suspicious of any activities legitimised as “science”. Such activities, they argued, were likely to support and facilitate processes of commodification and reification (where commodities seem to take on a life of their own independent of human life) within capitalist consciousness and related political systems of domination and oppression. Within this tradition of social critique, proponents of radical pedagogy seek to identify, understand, and critically evaluate the effects, consequences, and power relations implicated by particular methods, modes, and environments of teaching and learning in formal, institutional contexts. That means assessing the effects that issue from  particular kinds of teaching and learning environments, gauging the consequences of particular ways of thinking and doing in which we participate as educators and as students.

Commodification

It is probably fair to say that a common claim among radical pedagogists is that environments of formal education (classrooms, lecture theatres, examination halls, schools, universities etc. etc.) are sites where we learn to accept and reproduce the increasing commodification of our experience. What can commodification mean? Commodification (also commoditization) is a popular word among mainly left-wing thinkers, due to Karl Marx’s enthusiasm for the term “commodity” as part of his anti-capitalist arsenal in Das Capital. It is interesting that people who write about the process of commodification concern themselves almost exclusively with attempts to quantify or define the qualities of ‘commodities’ (e.g. Appadurai, ed. 1986). This seems to me a somewhat counterproductive strategy. To focus on commodities-as-things, to focus on the exchange, movement, access, control, and ownership of commodities in these discussions is ironically to adopt a peculiarly commodifying approach, as I understand it. I would further suggest that to consider commodification as primarily or solely an economic issue is further to diminish its usefulness as a concept in the analysis of areas such as education by making commodification in educational contexts invisible. I don’t accept that commodification is a primarily or peculiarly economic process, or that it overly concerns the abstract exchange and movement of commodities.

The Effects of Commodification

So, in using the work of radical pedagogists to speak of the commodifying effects of formal education, what do I mean by commodification? In my own terms, commodification is when we engage in strategies of ‘closure’ and ‘separation’ in the way that we make sense of our experience. We close ‘things’ off, ring ‘things’ round, identify, isolate, eliminate variables, and thereby separate, distance, things from other things, people-as-things from other people-as-things, separate ourselves from acknowledgement of many of the realities of our own experience. Think, for example, of the way that thinking, speaking, and acting in military terms (e.g “collateral damage”) can keep actual effects on people in social situations out of the picture. Commodification allows us to not look too closely at ‘what is actually going on’. By focusing on ‘things’ we can distance ourselves from ethical concerns, distance ourselves from the subtle and complex (power) effects involved in what happens, and keep ourselves from thinking about the character of our own attitude towards others and towards our experience. As long as commodification dominates our experience, we are unlikely to personally, ethically challenge ourselves, nor personally, ethically challenge the negative effects of the dominant authoritative voices wherever we are.

“Commodifying Environments”

It seems there are degrees of commodification, depending on the circumstances. For example, the more formal, rigid, or rule-bound the situation in which you find yourself, the more commodifying the environment. Or, the more unquestioned and unchallengeable authorities, roles, positions, icons, or symbols in your experience, the more commodifying will be your environment. I say ‘commodifying’ instead of ‘commodified’ to underline that commodification as I understand it is a process in which we engage and participate. To speak of a commodifying environment, then, is to speak of particular situations in which the predominant ways we make sense of things are in terms of closures and separations; often voiced in terms of atomised things, abstract entities, isolated individuals, or bounded communities. To reference Karl Marx, in commodification social relations between people come to assume, it would seem, “the fantastic form of a relation between things” (in Kamenka, ed. 1983:446-447). That is, the relatedness that we experience as humans-among-humans comes to be understood as separateness.

Alienation is a key point here. When the closure and separation strategies of commodification become the dominant ways for us to make sense of a situation, then that situation will be one in which we are often alienated, and often unknowingly alienated, distanced from ourselves, from our experience of relatedness. With increasing commodification in the situations of our lives comes increasing deferral to other people’s authority for making sense of things, increasingly unquestioned acceptance of the call to “Believe and Obey”. The commodifying environments of formal education are among those that can contribute forcefully to the alienating and disempowering commodification of our experience.

Paolo Freire and Ivan Illich

There are two key figures in the field of radical pedagogy: Brazilian Paolo Freire (1921-1997), and the peripatetic Austrian Ivan Illich (1926-2002). Freire, was concerned to reform the education system from within. Illich, on the other hand, is seen by many as a trenchant critic of ‘the system’ who sought to disestablish formal schooling.

Paolo Freire engaged in a lifelong political project of humanizing educational reform, which he lived in and through his own activities as an adult educator in Latin America. Perhaps his most influential publication was The Pedagogy of the Oppressed (1970).  Working from a postcolonial, Marxian perspective of oppression, struggle, revolution, liberation, and freedom, Freire highlighted, for example, the negative, dehumanizing effects of what he termed “deposit” or “banking” education, where people are regularly viewed by educators as containers that just need to be filled up with information. In contrast to this, he drew attention to the importance of dialogue in educational contexts, which holds out the possibility to transform a classroom environment from an authoritarian hierarchy to a transformational learning laboratory. Freire also advocated situating educational activity in the lived experience of participants. In this way, each person can win back the right to ‘say his or her own word’, to ‘name the world’. This would happen, he claimed, in and through acknowledgement of the social and political oppression in which they find themselves, and this acknowledgement in turn arises from a process of ‘conscientization’ or the awakening of ‘critical consciousness’. People, Freire taught, could then become aware of possibilities for positive transformation in their lives.

Ivan Illich shared Freire’s concern with the dehumanizing effects of education, but Illich diverged from the Freirian perspective, having less or, rather, no faith in the formal educational systems he encountered. Illich’s most notorious publication on educational issues was Deschooling Society (1970). Illich was, in fact, committed to a lifelong and sweeping critique of institutionalization and professionalization in a variety of fields, and to the disestablishment of formal educational systems. Finger and Asún (2001:10) identify four aspects to Ivan Illich’s anti-institutional position (See Smith 2001).

  • Illich identifies that institutions are more and more part of the intimate experience of our everyday lives.
  • Expert systems and professionalization, he claims, produce negative effects which far outweigh potential benefits, obscure the political conditions that render society unhealthy, and expropriate the power of individuals to heal themselves and shape their environment.
  • Illich drew attention to the problem of commodification. Professionals and the institutions in which they work tend to define processes we experience in social interaction, for example, learning, as commodities, for example, “education”.
  • Illich identified the tendency for institutions to suffer the problem of ‘counterproductivity’. Through institutionalization, he argued, fundamentally beneficial processes or arrangements are often turned into negative ones.

Sometimes it has been assumed that Illich was a totalizing rejectionist, condemning schools in an absolutist fashion. Finger and Asún clarify his position: “Illich is not against schools or hospitals as such, but once a certain threshold of institutionalization is reached, schools make people more stupid …. And more generally, beyond a certain threshold of institutionalized expertise, more experts are counterproductive – they produce the counter effect of what they set out to achieve” (2001:11). Prakash and Esteva state it more forcefully:

“Neither interested in improving the educational system nor in shutting down schools, Illich offered evidence that saying “NO” to education was a matter of decency and courage. Educational alternatives or alternative schools simply cover up the fact that the project of education is fundamentally flawed and indecent … (Illich 1996, 258-259)” (1998:97).

Prakash and Esteva

I recently read Escaping Education: Living as Learning within Grassroots Cultures (1998) and was impressed by the convictions of the authors, educationalists Madhu Suri Prakash and Gustavo Esteva. As radical pedagogists, Prakash and Esteva follow on in the tradition of Illich rather than Freire. To summarise, in their book they make four key points:

  • Formal education constitutes an insidious continuation of colonial ideologies
  • Formal education inculcates inappropriate Western values of the First World
  • Formal education supports a globalizing capitalist ethos
  • Formal education furthers the destruction of traditional communities by undermining traditional values

I am interested in asking to what extent their critique of formal education might be drawn into discussions about formal education and “Irish Traditional Music”. It is tempting to follow Prakash and Esteva in identifying formal education as the continuation of colonial ideologies within an Irish postcolonial context, as perhaps the work of Declan Kiberd in Inventing Ireland (1995) might also invite us to do. It seems to me, however, that such an approach has more in common with the simplistic oppressor/oppressed dichotomies that underlie Freire’s work than with the work of Illich. Similarly, the use of categories such as “Western” and “First World” invite the criticism, especially in the Irish context, that “It’s more complicated than that”. As for formal education supporting a globalizing capitalist ethos, I might well agree, but that is very much a discussion for another day. The direction I want to take here relates to their fourth point: does formal education further the destruction of traditional communities by undermining traditional values? Is the increasingly enthusiastic application of formal education to “traditional culture” concerns crowding out an ethical system of powerful, humanising social dynamics in Ireland (and elsewhere) by undermining relationship-centred values in favour of others? I suggest a cautious “Yes”. I also suggest that often happens in the name of “Irish Traditional Music”, and we participate in this process when we promote, accept or ignore this. To come to a clearer understanding of these dynamics I want to now briefly consider the issue of “tradition”.

The Naturalistic Metaphors of “Tradition”

“Tradition”, like “culture”, is a concept that often facilitates debate, argument, and worse (see, for example, Eisenstadt, ed. 1972; Shils 1981; Hobsbawm and Ranger, eds. 1983; Handler and Linnekin 1984; Hellas, Lash, and Morris, eds. 1996; McCann 2010). Most discourses of “tradition” rely heavily on what can be termed “naturalistic metaphors”. Any metaphor that is “naturalistic” is used in such a way that there is an assumed equivalence between what actually happens and what the metaphor says is the case. To use an extreme example, if I say someone is a banana, and continue to talk and act as if the person is actually a banana, then I am using that metaphor naturalistically. The two most common metaphors used when people talk about “tradition” are ‘tradition is an entity’ and ‘tradition is the passing of things from one person to another’. A third metaphorical structure is a combination of the two. The thinking runs as follows:

1) There is a thing called “tradition”. It can be understood as a bounded, discrete entity, and often refers to a stable, sometimes fixed, store of core aspects of a group’s identity. Recourse is also taken to the Roman etymology of the term “tradition”, which suggests that “tradition” refers to a traditum, any thing handed down from the past to the present, or a traditio, which suggests the transferral of ownership over a thing. If we do enough scholarly work, the case goes, we can identify any particular “tradition” and characterize it in terms of its contents and essential characteristics.

2) “Tradition” exists, but it’s not a bounded, discrete entity. Rather, “tradition” is a discrete process of “handing down” or “transmission”, in which discrete, bounded entities of various sorts (e.g. folklore, folkways, symbols, songs, tunes, stories etc. etc.) are passed down from one person to another, usually “from generation to generation”.

3) “Tradition” exists, but it’s a discrete process as well as being some sort of entity. “Tradition” works as an agent in our lives, in the manner of an “invisible hand,” similar to the invisible hand of the market. “Tradition,” understood in this manner, can often be assumed to have a life of its own (“Living Tradition”), can often be assumed to evolve (“The Evolution of Tradition”), and can also often be assumed to exercise aesthetic judgment (“Tradition-as-aesthetic-filtration-process”).

It has become commonplace in anthropology, sociology, cultural studies, and folklore to draw attention to the inadequacies of thinking about experience in terms of bounded entities. Life, thankfully, is more complicated than that. To insist upon understanding “tradition” as an entity or as a process of entity transaction, or even as a processual entity, is to participate in the construction of reified commodities, whereby we are encouraged to think of “tradition” or the “units of transmission” as somehow having a transcendent, stable existence independent of the uncertain lives we lead and experience. It may be comfortable to think this way, but they aren’t actually bananas. Nevertheless, academics and other analysts often use the term “tradition” in either or both of these ways, dazzling us with terminological halls of mirrors, blinding us with shifting meanings and marshy conceptualization. We are often convinced that such naturalistic metaphorical excursions are valid, accurate ways of speaking in analytical ways about reality by virtue of their supposedly legitimate academic history.

These naturalistic metaphorical constructions of “tradition” are profoundly commodifying in terms of the abstract understandings they afford us of our experience. Both versions rely heavily on the existence of discrete, bounded entities, entities which we construct in and through the intersection of strategies of closure and separation. As a consequence, discussion about “tradition” in these terms tends to revolve around issues of access to, and control and ownership of the entities that constitute “tradition”. In other words, discussions generally concern ‘resource management’, or rather, “tradition management”. As with any commodifying way of speaking about experience, such approaches frequently leave actual experiences unarticulated, as we keep actual effects on people in social situations out of the picture. We avoid looking too closely at ‘what is actually going on’. To repeat, By focusing on ‘things’ we can keep ourselves from thinking too critically about the character of our own attitude towards others and towards our experience. We can, often naïvely, persist in thinking that there is necessarily an equivalence between what actually happens and the ways we talk about what actually happens.

Re-evaluating “Tradition”

I’m very fond of something that Sunday Business Post journalist Tom McGurk once wrote in the context of a discussion of the term “traditional”: “While it doesn’t matter what you call it, it does matter what it is supposed to mean” (1995:25). So, let me turn it around. I want to start not with things, but with the way that I (we?) make sense of life. On the basis of previous research, presented in detail in Beyond the Commons (2003), I would suggest that we each negotiate our experience with the aid of working assemblies of ways of thinking and ways of doing (I refer to these in previous work as “structures of expectation”). We use many different terms to refer to these: for example, habits, routines, norms, guidelines, principles, procedures, protocols, belief systems, philosophies, ways of life, rules, training, rituals, standards, laws, and the list goes on. I would further suggest that these working assemblies of ways of thinking and ways of doing are often considered specifically within a context of community (where, with my theoretical hat on, I understand community as expectational resonance in social interaction). When this happens, we refer to these ‘working assemblies’ with terms such as “convention”, “custom”, “education”, “culture”, or “tradition”. Experience of these working assemblies varies from person to person. They run the gamut from being gently guiding and loosely provisional, to being highly-directive and deeply engrained (very much in the domain of duty, obligation, and absolutes). How a person experiences these working assemblies depends on the circumstances they find themselves in, and their attitude to those circumstances. To discern the more hardened ‘working assemblies’ in your own experience, what Prakash and Esteva refer to as “arrogant particularisms” (1998:2), ask yourself: “What am I willing to argue about?” or “How often do I use the word ‘should’?”

If “tradition” might be one way to speak of ways of thinking and doing in our experience, then, it seems to me, not so helpful to abstractly define “tradition” as a universal analytic category that somehow refers to timeless entities that are separate from experience. It might not be so important, then, to argue what is or isn’t “tradition” or “traditional”, but rather to ask what ways of thinking and doing are influential in my, your, people’s experience. It would be a terrible shame if by focusing on the words “tradition” and “traditional” we managed to evade such a question in favour of the commodifying allure of verbal games. What I believe to be helpful, particularly in the light of persuasive rhetoricians who deploy the terms “tradition” and “traditional” to serve very particular agendas, is to ask for a little specificity: ‘Whose ways of thinking and doing?’, ‘In what circumstances?’, ‘In the promotion of which values?’, ‘With what effects?’.

A Powerful Politics for Being Human

Prakash and Esteva make the case that formal education furthers the destruction of “traditional communities” by undermining “traditional values”. In light of the above discussion, to use the terms “traditional” or “education” as analytic categories is, for me, almost entirely unhelpful without looking specifically at the particular social circumstances we are referring to, which people are thinking the thinking and doing the doing, what exactly they are thinking and doing, and with what effects. This approach to analysis is personally demanding, requiring constant vigilance against overstatement and overgeneralization. That said, I wish to leave four questions hanging:

  • What is valued, where, and how, and by whom?
  • What values are fostered by formal education?
  • What values are not fostered by formal education?
  • What do we want our kids to learn about life?

Prakash and Esteva speak of “traditional values” in terms of a “commons”: “… the children of a community, pursuing the promises of education, systematically learn to forget the languages of their commons and their communities” (1998:8), and again: “However passionately committed to cultural diversity, the classroom must necessarily be the cemetery of sensibilities cultivated in commons and communities …” (1998:26). A little care is called for here, however. The term “commons” is most often a defensive concept, called upon in the context of a perceived threat of encroaching and commodifying enclosure. This is clearly how the term is used by Prakash and Esteva. There are, however, generally two different understandings of the term ‘commons’.

The first and dominant understanding is that the “commons” is a store of resources that people hold in common. To speak of the “commons” in this way is to present an always-already commodifying and commodified space. Typically, then, debate about a resource-commons is largely limited to discussions over access, control, and ownership. Further, action arising from defense of an always-already commodified space is always unlikely to curb the commodifying influences of enclosure.

A second take on the concept of “commons” is more concerned with people and how people relate to each other, In this case, the concept of the “commons” is again used as a defense against commodifying enclosure, but refers to a particular character of relationships rather than to resources. The uncommodifying attitudes of the people who participate in the “commons” are felt to be incompatible with the commodifying attitudes ushered in with the effects of enclosure.

On the basis of research done and research still to do, I now suggest that what many of us have long referred to as “traditional culture” in Ireland (and elsewhere) is the second of these, a particular character of social life which arises in particular circumstances from a general and personal orientation in which relatedness and relationship are not only acknowledged but fostered and facilitated. I think of certain house ceilidhs I’ve been to in the company of extended family, for example, or some of my best evenings in the company of friends. It is sometimes hard for people unfamilar with such social dynamics to accept that there are ways of thinking and ways of doing that are not commmodifying, that do not foster and facilitate commodifying attitudes, but for those who have experienced the transformational potential of such circumstances the dynamic couldn’t be more real. It’s not that you won’t find people with commodifying attitudes in such circumstances. These days you probably will. But what is important is that such strategies are just inappropriate to the uncommodifying circumstance. Crucially, if commodifying strategies begin to dominate the situations we find ourselves in then the possibilities for an uncommodifying character of social interaction are diminished; closures and separations become par for the course, with the negative effects of commodification going along for the ride.[1]

I think it’s good to take this away from being an abstract discussion about social dynamics, to ground what I’m saying in some way. To do this I am simply going to give a randomly-selected list of provisional principles which I have come across as “wisdoms”, that is,  emotionally-healthy, humanizing ways of thinking and doing. In my experience, these are not inconsistent with the uncommodifying attitudes of which I speak. Where did I learn them? From other people, to state the oft-forgotten obvious. From my parents and their parents before them. From people I have met and admire. One of the joys of my work as someone who studies ethnomusicology, folklore, and anthropology is that I get to talk to people, read what people have written, learn from people, and it’s my job. No-thing was “passed down” or “transmitted”. They simply speak of ways in which I can orient myself in my experience in relationship to my experience. These are some of the “traditions” that I would like to dominate my life:

  • Respect, humility, gentleness, generosity, and compassion are important
  • Wisdom is more important than knowledge or information
  • Silence is okay
  • You don’t have to be conspicuous
  • People are more than the sum of their resources or talents
  • There’s more to life than collecting tunes or songs
  • Absolute authorities or certitudes have no place among friends
  • You don’t need Press Releases, certificates, diplomas, or degrees to be a decent human being, and having them may not get you any closer to being one
  • Your personal experience is valued and respected, and you value and respect the personal experience of others
  • If you’ve got nothing good to say, say nothing
  • I am/you are not a lesser being because I/you do not:
    – play such and such an instrument
    – play, sing, or dance professionally
    – read musical notation
    – have a certificate/diploma/grade/degree/Ph.D.

They aren’t easy “traditions”, in fact they are sometimes difficult to live by, but that’s the challenge. There is a wealth of wisdom there for us among people we can know and love, if we’d just listen occasionally. These and other similar “traditions” constitute a powerful politics for being human, a powerful politics with which to counter the increasing commodification of experience.

What I want to suggest in this paper is that, despite much wishful thinking, such values are highly unlikely to be fostered by the environments of formal education (nor, indeed, by traditionalist institutions, festivals, tourism, representational government, archives, competitions, or the legal system). Uncommodifying values are inappropriate to the commodifying values of formally-conceived situations, and vice versa. In discussions about “traditional culture” and formal education in Ireland it is often assumed that the inclusion of “Irish traditional music”, “Irish traditional dance”, or “Irish traditional song” in formal education curricula unproblematically promotes the transmission of “traditional culture”. As I hope will now be clear, such thinking is not at all unproblematic. Indeed, I sometimes wonder if we are systematically forgetting, ignoring, or wilfully turning away from powerful, uncommodifying, and humanizing politics, and replacing them with the commodifying strategies and commodified resources of formal education. And that we may be doing this because we are often led to believe, by way of the miracles of naturalistic metaphors and mystifying terminology, that they’re the same; that calling something “traditional” guarantees that we’re on the side of the angels.

So what am I advocating? I am suggesting that we try to spend more time fostering and enjoying the uninstitutionalized, unscripted, uncommodifying situations that come about when people simply hang out together. I am suggesting that we stop assuming that formal education is necessarily the right tool for what we are trying to do. I am suggesting we learn to identify the various ways in which we close and separate, learn to identify the different masks that we wear as we commodify our experience. I am suggesting we notice how important ‘things’ have become and maybe consider life a little more in terms of our relationships and relatedness to others. I am suggesting that we encourage less misrepresentative and less mystifying analyses of ‘what is actually going on’. I am suggesting that we take time to identify our absolutes and certitudes, and challenge them. I am suggesting that we be less enthusiastic about all-out lobbying for the increasing inclusion of “tradition” in formal education (Again, which “traditions”?, whose values?). I am suggesting that we be less enthusiastic about all-out lobbying for unity where “tradition” is concerned, or where anything is concerned, for that matter. I am suggesting that each of us takes a moment to bring the chickens home to roost, asking ourselves: “What are my “traditions”? What are my values? Have I ever questioned the legitimacy of educational authorities? Have I ever questioned the validity or necessity of formal education? What has been my experience of formal education?” The commodification of our experience doesn’t take place without our participation. We aren’t victims. As long as there are people there are humanizing possibilities.

 

Discussion

Floor (Stan Reeves): Thanks for the paper I enjoyed it very much, and I share your interest in radical pedagogies. I have been working in adult education for twenty-three years doing this sort of thing. I concur with what you were saying in the very early part. When I first started practising teaching traditional music in a participative manner, we had to find places to go to, so we went to the secondary school. We had ten classes in the secondary school, and the first thing you have to do when you interact with participative educational methodology in an established institution is you have to deconstruct the room, you literally have to take it apart. On about the fourth night the janitor came up to me, and he just leaned fairly aggressively towards me, and he just said ‘Furniture’, which meant that our student and teachers were not replacing the furniture in the correct fashion. Three months later, I’m in my office, about a half a mile from the school, and a small dark man bursts into the office and says, ‘I want to see the man in charge of the music programme’, and he ran right up to the end of the office and he said, ‘I want to talk to you about the arrangements of the desks in my maths class’. The man had veins standing out in his neck because we had put the desks back in an inappropriate manner. Really, this is to reinforce some of what you are saying about the formal education. I think I want to challenge as well, Paulo Freire, he talks about the inherent contradiction in education, in that yes, it does suffer from narration sickness, and yes, it is inherently de-humanising and domesticating, but there are also books in there that you can read on your own, and make your own interpretations of it and the people you will meet in formal institutions, and experiences that you will have, which are inherently liberating because of who the people are, and the way that they interpret the bodies of knowledge that they get. So the question really is about how within a domesticating formal education sector human beings can find the space to humanise that space, and bring some of  those values into the classroom, and create the humanised classroom. Ira Shor worked all his days in community colleges, the most de-humanising of education establishments, and he was able to find a way, and helped us think through that one. Is there any hope for us?

Reply: There are two things there. One is I am very interested in the tensions between Paulo Freire  and Ivan Illich because Paulo Freire believed that you could reform the educational system, you could actually find those humanising politics in the education system, and Ivan Illich seems to have basically said, I’m sorry, we have got to start somewhere else. He was a lot more subtle than that, but that was basically the main point. My own personal response to that is that first of all, hope for me lies in inviting every person, I am avoiding using the word student here, to acknowledge how they participate in meaning and power in their own life. Now, that can happen anywhere. The issue with this, as far as my own research is guiding me to think, is where that is more likely to happen and where that is less likely to happen. What I am finding is that the more formal education environments become, the less likely it is going to happen. The more formal educational environments become, the more it becomes about persuasion and coercion, the more it becomes about these binaries of students and teachers, the more it becomes appropriate to the oppressor-oppressed dichotomy that Paulo Freire would use quite often. So for me, wherever you have got human beings in a room, wonderful things can happen. As long as you can identify and acknowledge the effects of the environment that you find yourself in. Now, the main problem with the educational environments is that most courses aren’t geared towards saying, ‘Well, let’s start by looking at how what we are doing here is limiting the way we are thinking’, and if you are going to stay in the educational environment and work to reform it in that sense, you need that intensive structural awareness from the start, to say, ‘Well, we are guided in highly directive ways to think in commodifying ways about our experience, by simply being where we are.’ In that sort of expectational environment, in which we find ourselves, how can we challenge that? What things are we not challenging in this environment right now for example? The ideas of a university, all these sort of layers upon layers of things happening here right now. What things do we accept without question? What things are we willing to argue about, which is a very important question? What are we willing to argue about? I find it very important to focus on the issue of attitude. The attitude and the disposition of a person is where the hope comes from. The more they tend towards fundamentalism, the more they tend towards certitude, the more limiting will be their own experience of experience. So for me the issue becomes, in the teaching experience, to challenge people to identify their own certitudes, to challenge people to identify what they are willing to argue about, so that they can then challenge themselves, and bring the chicken’s home to roost.

Floor (Anon): All my formal educational background has been in fairly technical areas, medicine and then in business, and much of the business of the higher institutes in that area has been to attempt to humanise them, so it is exactly the opposite dialogue, beginning with something where the public expectation would be a very rigorous environment. The internal structure of those formal environments is recognising a need to try and humanise it. In turn, here we are taking a human experience and by applying rigour, inadvertently or overtly objectifying it, and then going in the opposite direction, my point would be, I think that there are some techniques and skills from the technical higher learning centres, because they have had to deal with some of these humanising techniques that might be useful in answering some of the questions. But how does one avoid the objectification and commodification of an essentially human study of a traditional culture.

Reply: One of the things I am very interested in is the issue I refer to as the ‘masks of enclosure’. One of the ways in which people often respond to these commodifying forms is with other commodifying strategies, but ones that that don’t necessarily look like commodyfing strategies. That is one thing I am always concerned about, especially in relation to the business and scientific environments. What I am interested in looking at are particular circumstances, what is actually happening, in a particular situation. What are the main dynamics in this particular situation, I’m not interested in ‘Irish Traditional Music’ in general, I’m not. I don’t think there is such a thing. I am interested in looking at where I am in my life, who is around me, what is happening, to what extent are these certitudes and absolutes creeping in, and are there any ways, in any way, that we can find them? Are there any strategies where we can begin to humanise environments? Sometimes that actually means identifying those things which grossly misrepresent the relationship or interrelationship of everyone at all times, that basically lead us to believe, for example, that we are all self-interested, or lead us to believe that we are all atomised individuals, or lead us to believe that everything is closed off and separated.

Floor (Stan Reeves): I’ll tell you how we solved the problem of the janitors. It’s very important because the janitors represent the negative power of the powerless, they have nothing in their lives over which they have any power accept the bloody furniture, and we resolved that problem by humanising the classroom situation. How we did that was we gave them bottles of whiskey, and we began to treat them with respect. We began to say, yes, your job is very difficult and you have been here since six o’clock this morning, and we want to be here till nine o’clock at night, and if we want to get through this relationship together, we are going to have to oil the wheels of love in this situation. So we introduced respect to a relationship with the janitors, and we introduced whiskey, and gave them free tickets to all the concerts, and invited them to bring their families to them all. They had never been treated like that before by academics, and I think it was a lesson not just to the janitors, but also to the other academics,  that it is always, always, always, possible to humanise any situation and it doesn’t always acquire a great theoretical perspective, it just acquires a bottle of whiskey! Every teacher should carry a bottle of whiskey.

 

References

A. Appadurai, ed. 1986. The Social Life of Things: Commodities in Cultural Perspective. Cambridge: Cambridge University Press.

S. N. Eisenstadt, ed. 1972. Post-Traditional Societies. New York: W. W. Norton.

M. Finger and J. M. Asún. 2001. Adult Education at the Crossroads: Learning our way out. London: Zed Books.

P. Freire. 1970. The Pedagogy of the Oppressed. New York: Herder and Herder.

R. Handler and J. Linnekin. 1984. “Tradition, Genuine or Spurious”. Journal of American Folklore 97 (385): 273-290.

P. Heelas, S. Lash, and P. Morris, eds. 1996. Detraditionalization: Critical Reflections on Authority and Identity. Cambridge, MA: Blackwell.

E. Hobsbawm and T. Ranger, eds. 1983. The Invention of Tradition. Cambridge: Cambridge University Press.

I. Illich. 1970. Deschooling Society. New York: Harper and Row.

E. Kamenka, ed. 1983. The Portable Karl Marx. New York: Penguin Books.

D. Kiberd. 1995. Inventing Ireland. London: Jonathan Cape.

A. McCann. 2001. “All That is Not Given is Lost: Irish Traditional Music, Copyright, and Common Property.” Ethnomusicology 45(1): 89-106. http://www.beyondthecommons.com
___. 2003. Beyond the Commons: The Expansion of the Irish Music Rights Organisation, the Elimination of Uncertainty, and the Politics of Enclosure. Warrenpoint: Anthony McCann. URL:  http://www.anthonymccann.com.
___. 2010. “What might I like my kids to learn about life?”: in search of “tradition.” Journal of Ethnology and Folkloristics 4(1): 75-92

T. McGurk. 1995. The Sunday Business Post April 25.

M. S. Prakash and G. Esteva. 1998. Escaping Education: Living as Learning within Grassroots Cultures. transl. Volume . New York: Peter Lang.

E. Shils. 1981. Tradition. Chicago: The University of Chicago Press.

M. K. Smith. 2001. “Ivan Illich: deschooling, conviviality and the possibilities for informal education and lifelong learning.” The Encyclopedia of Informal Education. URL: http://www.infed.org/thinkers/et-illic.htm


[1] This is often the case in defensive “commons” analysis; the shifts in understanding what might be happening from “what we do”, to “commons” under threat of enclosure, to “resource-commons” are often subtle but profoundly damaging in terms of long-term strategies against commodification.

Humanising Music and Copyright

“… copyright stands as an unknown continent that music researchers must explore …” (Franco Fabbri 1993:159). 

“[Clearing the samples] is very tedious. We have to sit there and basically break out every single component of every track that we do and make a list of the sources for everything. We go through every little blip of sound and decide what’s significant enough that we need to contact the owner. From there, it’s a whole bunch of lawyer craziness” (Michael Diamond of The Beastie Boys, in Steuer 2004:186).

 “It is becoming increasingly harder to be an ethnomusicologist with a tape recorder today than it used to be because people are always suspicious, even when we have no commercial intentions”  (Anthony Seeger, cited in Lin-Eftekhar 2002).

In the disciplines of Ethnomusicology, Musicology, and Popular Music Studies, it’s hard to operate in ignorance or apathy about “music and copyright” anymore (see Frith and Marshall, eds. 2004). The disciplinary imperatives of permission contracts potentially foster and facilitate a relational architecture of distrust as we engage with people in our fieldwork. Copyright concerns are apparently having to become increasingly important to both ourselves and the people we work with. Confusion over what does or does not constitute “fair use” or “fair dealing” in relation to copyright restrictions reminds us of the quiet behavioral gravity of normative legal instruments in our research and teaching. It tends to be supremely important to us now that we protect “stuff” as we seek to respect people … and obey the Law.

Law, intellectual property, and copyright have, in only a few years, assumed unprecedented prominence as themes in our lives. Rosemary Coombe notes that what people imagine “the law says” may be a shaping force in the practices of our lives, even though the standards and sanctions involved may be self-imposed or misinformed: “People’s anticipations of law (however reasonable, ill informed, mythical, or even paranoid) may actually shape law and the property rights it protects” (1998:9). Often what is most important is not so much the letter of the law as people’s understanding of it, and our reactions to legal meanings based on that understanding. For example, how many of us respond to the declaration of copyright restrictions in university libraries with detailed study of the law? How many of us simply ‘get with the program’ in an attitude of benign obedience, ignorant of legislation and deferent to restriction? Law, then, can often be understood as “a … diffuse and pervasive force shaping social consciousness and behavior” (12). Neither just a collection of rules, nor a collection of social effects, law can be understood, as “a complex interpretive activity, a practice of encoding and decoding social meaning that merges imperceptibly with rhetoric, ideology, “common sense,” economic argument (of both a highly theoretical and a seat-of-the-pants kind), with social stereotype, narrative cliché and political theory of every level from high abstraction to civics class chant” (Boyle 1996:14).

I write this in my capacity as an ethnomusicologist. In 1992 the field of Ethnomusicology was criticized from within for failing to recognize the need for substantial practical and theoretical engagement with issues of law, and specifically with issues of “music and copyright.” Anthony Seeger noted a “theoretical predisposition to ignore juridical concepts related to music in our research, an uncritical (and perhaps unconscious) re-elaboration of the concepts of twentieth century copyright law in our writings, and a lack of intellectual engagement with the globalization of the world’s economy and its implications for the objects of our research” (1992:345-346). By neglecting these issues, Seeger stated, ethnomusicologists were impoverishing their discipline. They would increasingly find it difficult to contribute significantly to dialogue about musical practices which were increasingly being shaped by the very processes that ethnomusicologists seemed to be ignoring. In 1993, Franco Fabbri was able to note that “copyright stands as an unknown continent that music researchers must explore” (159). Seeger again, in 1996, reiterated the failures of musicologists and ethnomusicologists to consider the implications of local, regional, national, and international legislation for their research in the face of “the transformation of all music to potentially for-profit “intellectual property” throughout the world” (88). He argued that this academic negligence ran the risk of compromising the relationships that ethnomusicologists so delicately foster while doing fieldwork: “Our failure to act both intellectually and practically in this area can only vitiate our analyses, damage our reputations, and make us suspect in the communities in which we wish to work” (ibid.).

Any failure in this regard would not be without consequence. Law, legal doctrine, legal practice, and, by association, the role, activities, and expansion of bodies such as The World Intellectual Property Organisation (WIPO) continue to play a vital role in the production and generation of meaning, power, and knowledge in the social interactions of our lives. By accepting the meanings that structure discourses of law, intellectual property, and copyright, we also allow those same meanings to structure our expectations and our social relationships. Scholars working within the Anthropology of Law (see, for example, Falk Moore, ed. 2004; Darian-Smith, ed. 2006; Donovan and Anderson 2006), the Sociology of Law (see, for example, Cotterrell 1984; Aubert, ed. 1969) and Critical Legal Theory (see, for example, Hutchinson, ed. 1989; Fitzpatrick and Hunt, eds. 1987) have drawn attention to these processes. Legislation, in any jurisdiction, consists of a set of prescriptions which specify the way in which legal subjects ought to behave. Law thus assumes a very palpable presence in our lives.

Research in the area of “music and copyright” can only be enriched by humanised and humanising perspectives. Despite the exponential growth of this increasingly contentious, and increasingly bizarre area of study, to a large extent discussion continues to stagnate in and around issues of access, control, allocation, ownership, and protection. From digital file-sharing to folk and traditional musics, “Who owns the music?” has become the prime question, with “How do we protect the music?” coming a close second. “What are we allowed to do with the music?” and “Where does the money go?” follow close behind. Research, then, has been dominated by the exegesis of litigation and the analysis of economic conditions, as people trace the movement and management of ‘things’, and follow the money. That can be very important, but scholarly debate seems largely to have stalled as a series of descriptive discussions about the management of legally-constituted musical resources rather than tending towards more explanatory approaches that might allow us to understand the impact of discourses and practices of intellectual property within the broader qualitative, social, and emotional dimensions of musical life. The ‘stuff’ becomes all important, people’s personal stories tend to be somewhat less so.

This explanatory weakness, this overwhelming emphasis on commodity transaction, would be for many deeply redolent of the general character of orthodox legal discourses. The apparent separation of law and, in particular, legal doctrine from the contingencies of social and political life is, in fact, one of the prime assertions of orthodox legal theory and one of the most influential foundations of legal practice (Hutchinson, ed. 1989; Fitzpatrick and Hunt, eds. 1987). For many people, law, the doctrines of law, the workings of law, the institutions of law, the concepts of law, seem to be separate from, and only tangentially relevant to, the everyday interactions of their lives. This is largely because law, and practices legitimated by law, are often characterised by specialist legal practitioners as autonomous, self-sufficient, value-free and politically-neutral (Blomley 1994), a strategy referred to by critics as “legal closure”.

As we enact the discourses and practices of copyright and intellectual property in our work, we can be assured that, in very practical ways, the workings of law are not ‘neutral’. Unger would argue that the great power of law is that “it enforces, reflects, constitutes, and legitimizes dominant social and power relations without a need for or the appearance of control from outside and by means of social actors who largely believe in their own neutrality and the myth of legal reasoning” (1986:5). As ethnomusicologists we have this “power of law” at our disposal insofar as we claim it and that claim is accepted by others as valid. One of the achievements of strategies of the aforementioned process of “legal closure” is that “The rule of law … appears rational, benign, and necessary” (Blomley 1994:9). As Peter Jazsi has commented: “The whole structure … is grounded on an uncritical belief in the existence of a distinct and privileged category of activity, that generates products of special social value, entitling the practitioners (the “authors”) to unique rewards” (1991:466).

Law, for the most part, then, “appears as an arcane world of professionalism centered on a body of esoteric knowledge which is intimidating to the uninitiated in its bulk and obscurity” (Cotterrell 1984:17). This is perhaps especially the case for copyright discourses, a complex nexus of legal, economic, and literary doctrinal orthodoxies sustained by a declaratively erudite register of concepts and productive inclinations: property, rights, authorship, public and private interest, public and private space, utility, consumption, production, incentives, possessive individualism, originality, creativity, freedom, and progress. When esoteric knowledges of music scholarship, always-already sustained by many of the same Euro-American orthodoxies, are added to the mix the result can be a heady maelstrom of mutually-reinforcing and profoundly-abstract discourses of obedience, regulation, and resource management. Little wonder that people might consider “music and copyright” to have little relevance to the personal politics of their everyday lives. The gravity of legal closure tends to invite political detachment, facilitated ably by enthusiastic analysis of sonic minutiae and the intricate management of musical commodities. We hardly need to turn to the likes of Marx, Lukacs, Simmel, or Weber to remind us that relationships between people can be easily and formally rendered as relationships about ‘things’ and money. The more approaches to “music and copyright” approximate a sort of musical accountancy, or an exercise in advanced legal classification, the more our attention can be quietly drawn away from the analysis of personal experience, social context, and social change.

This is important, for as the discourses and practices of law increase in technical complexity, and are deemed by many people to be more and more irrelevant to everyday concerns, they tend to intrude more and more into our lives as “increasingly detailed regulations relate [the law] more and more concretely to particular narrowly defined situations and relationships” (Cotterrell 1984:186).  Discourses and practices of intellectual property and copyright have long been associated with expansionary dynamics and with processes of accelerative commodification. Bettig (1996) would argue, for example, that it is almost impossible to separate intellectual property from its role as an instrument of commodification within capitalist systems. It has been shown that the development of capitalism and intellectual property have been concurrent (Rose 1993, Woodmansee and Jaszi 1994). The appearance in the eighteenth century of ‘things of the mind’ as transferable articles of property matured simultaneously with the capitalist system (Jaszi 1991). It is no coincidence, then, that an accelerative, commodifying, expansionary logic should infuse the discourses and practices of intellectual property. But effective legal closure and an overriding emphasis on commodity management both serve to depoliticize the climate. They systematically occlude particular characters of personal experience, social context, and social change, immunizing against critique of the expansionary character and doctrinal representations of law and legal practice by allowing both expansion and doctrine to remain unremarkable, invisible, and analytically unavailable.

Discourses of commodity management are fostered and facilitated by the persistence of the “musical work” as a philosophical and legal concept. The concept provides much to support and little to challenge resource-management models in music and copyright studies. In recent years, sustained attention has been drawn to various discursive and philosophical constructions of the “musical work” by Lydia Goehr (1992, 2000), Ingrid Monson (1996), Michael Talbot et al (2000) and many others.[ii] In discursive practice, the musical work remains for many the central resource, the central transactable commodity of “music and copyright” discourse. I don’t wish to declare “the musical work” or considerations of access, control, allocation, ownership, and protection irrelevant or unimportant. My emphasis, indeed, is a direct response to the real importance of these themes in “music and copyright” discourses. Access, control, allocation, ownership, and protection remain vital themes with which to make sense of the management of works as “musical resources”, and they remain crucial concerns in the combination and recombination of sonic motifs, phrases, and tunes. Such ways of making sense of things matter to many people. As Reinhard Strohm notes, for example, “The work-concept … is as ‘real’ as any aesthetic idea can be, and many generations of musicians have believed in it” (Strohm 2000:128). Often taking someone to court in direct adversarial engagement over the “things”, the “works”, might be the only obvious option that people have available to them in the context of litigation (see Soocher 1998). From a strictly legal standpoint it sometimes seems there is no other way to make sense of the issues. What I do seek to do is to underline, however, that, as analysts, we can do better. We can supplement or even supercede this narrow, enclosing, and often dehumanising focus on property, rights, musical works, and sonic form. We can move towards analysis that is more socially-sensitive to the “absences and inaudibilities in contemporary cultural spheres” (Coombe 1998:9), more sensitive to particular characters of personal experience, social context, and social change.

As copyright and intellectual property become more and more familiar aspects of discursive and musical landscapes through increasingly technological, standardized, specialist, universalised, and universalising practices, those same practices are increasingly regarded as legitimate, or, at least, unremarkable. The solid status of copyright and the justifications for all practices relating to copyright are taken for granted by many of us not only as the way things are and the ways things ought to be, but as the way things must be. Increasingly, as music scholars we often find ourselves in climates where we place the discourses and practices of intellectual property and copyright beyond debate, acquiescing, perhaps unknowingly, perhaps enthusiastically, to rather grandiose narratives of progress, authorship, necessity, and inevitability. In small ways, in our interactions with colleagues, students, and the people we work with in the field, the dictates of legal doctrine are increasingly taken as given, if not absolute. As this happens, the details and internal complexities of doctrine, the features of sonic form, and the politics of ownership can become the focus of inquiry rather than the social, political, personal consequences of acquiescence to doctrine as doctrine. When we can so easily allow the influence of absolutes to cascade throughout our lives, it is important that the interpretive practices of law be deconstructed and revealed as interpretive practices. Hardened narratives of law, intellectual property, and copyright suffuse the practices of intellectual property organizations, universities, academic departments, and libraries. From a scholar’s perspective it is perhaps more helpful to consider that the orthodoxies of “music and copyright,” whether “legal” or “musical,” do not simply reflect “the nature of things.”

It is important to remember that every situation concerning disputes about “music and copyright” serves as a nexus for personal stories and an opportunity for understanding complex emotions, meanings, and relationships of power, authority, and resistance. Focusing on the specificities of history and on the particularities of circumstance allow us to disclose social and political aspects of “music and copyright” debates as, importantly, always-already humanized encounters.  Legal structures are not just to be found in legislation and the workaday rhetoric of lawyers. Insofar as music scholars also acquiesce to the discourses and practices of intellectual property and copyright, or work unquestioning with those who do, we contribute to the privileging of the legal as a key structuring value in the ways in which we relate to each other.

Humanising approaches to “music and copyright”, for me, means challenging legal closure to look at the broader social and political context of debates about access, control, allocation, ownership, and protection, in terms of ‘what is going on’; in terms of particular experiences of authority and power dynamics in particular situations: What’s important, and to whom? Who gets to say? Who is dealing with whom and on what terms? Who is claiming what, and how do they justify or legitimate what they say? How do people feel about what is going on? How do people respond in different ways to situations in which copyright is an abiding concern? What principles are people willing to defend? Is there a point beyond which people in a situation feel unable to challenge the status quo on account of the pressures and certitudes of necessity and inevitability, market and law, national and international government? Is there more at stake than scrambles over who owns what and how much we will allow others to do? By accepting copyright, what might we be allowing to happen to the character of our relationships with each other? To ask such questions is to assume a position of some skepticism with regard to claims that are often made to the natural and unchallengeable status of copyright law. It is helpful to challenge those ideas which are accepted as ‘given’, self-evident, ‘common sense’, ideas that are “so obvious that the question of their origin may seem unreal because to not accept them seems unthinkable” (Cotterrell 1984:121). It is precisely because ideas associated with law are largely unquestioned that they must be examined as having developed in and through particular social formations and social practices.

It behoves us to take responsibility for our own education with respect to copyright law and its relevance to the practices of Ethnomusicology, Musicology, and Popular Music Studies. As R. M. Cover has written: “Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live” (1983:4-5).

Bibliography

Vilhelm Aubert, ed. 1969. Sociology of Law. Harmondsworth: Penguin Books.

Ronald V. Bettig. 1996. Copyrighting Culture: The Political Economy of Intellectual Property. Boulder: Westview Press.

Nicolas K. Blomley. 1994. Law, Space, and the Geographies of Power. New York: The Guilford Press.

James Boyle. 1996. Shamans, Software, and Spleens: Law and the Construction of the Information Society. Cambridge, Massachusetts: Harvard University Press.

Seán Burke, ed. 1995. Authorship, From Plato to the Postmodern: a Reader. Edinburgh: Edinburgh University Press.

Nicholas Cook, “Between Process and Product: Music and/as Performance”, MTO Music Theory Online,  Volume 7, Number 2, April 2001 URL: http://www.societymusictheory.org/mto/issues/mto.01.7.2/mto.01.7.2.cook_essay.html

Rosemary J. Coombe. 1998. The Cultural Life of Intellectual Properties. Durham: Duke University Press.

Roger Cotterrell. 1984. The Sociology of Law: An Introduction. London: Butterworths.

R. M. Cover. 1983. “Nomos and Narrative.” Harvard Law Review 97(4):4-68.

Ronan Deazley. 2004. On the Origin of the Right to Copy: Charting the Movement of Copyright Law in Eighteenth Century Britain (1695-1775). Oxford: Hart Publishing.

Yehezkel Dror. 1969. “Law and Social Change.” In Vilhelm Aubert, ed. Sociology of Law. 90-99. Harmondsworth: Penguin.

Franco Fabbri. 1993. “Copyright: The Dark Side of the Music Business.” In Music and Copyright. Simon Frith, ed. 159-63. Edinburgh: Edinburgh University Press.

Steven Feld. 2000. “A Sweet Lullaby for World Music.” Public Culture 12(1):145-172.

Peter Fitzpatrick and Alan Hunt, eds. 1987. Critical Legal Studies. Oxford: Blackwell.

Jane L. Florine. 2001. Cuarteto Music and Dancing from Argentina: In Search of the Tunga-Tunga in Córdoba. Gainesville: University Press of Florida.

Simon Frith and Lee Marshall, eds. 2004. Music and Copyright. Edinburgh: Edinburgh University Press.

Jane M. Gaines. 1991. Contested Culture: The Image, The Voice, and The Law. Chapel Hill: The University of North Carolina Press.

Reebee Garofalo. 1997. Rockin’ Out: Popular Music in the USA. New York: Prentice-Hall.

Lydia Goehr. 1992. The Imaginary Museum of Musical Works: An Essay in the Philosophy of Music. Oxford: Clarendon Press.
—. 2000. “‘On the Problems of Dating’ or ‘Looking Backward and Forward with Strohm’.” In The Musical Work: Reality or Invention? Michael Talbot, ed. Liverpool: Liverpool University Press.

Kenneth G. Gourlay. 1978. “Towards a Reassessment of the Ethnomusicologist’s Role in Research.” Ethnomusicology 22(1):1-35.
—. 1982. “Towards a Humanizing Ethnomusicology.” Ethnomusicology 26(3):411-420.

Nancy Guy. 2002. “Trafficking in Taiwan Aboriginal Voices.” In Handle with Care: Ownership and Control of Ethnographic Materials. Sjoerd R. Jaarsma, ed. 195-209. Pittsburgh: University of Pittsburgh Press.
—. 2005. Peking Opera and Politics in Taiwan. Urbana: University of Illinois Press.

Debora J. Halbert. 1999. Intellectual Property in the Information Age: The Politics of Expanding Ownership Rights. Westport, Connecticut and London: Quorum Books.

Stuart Hall, ed. 1997. Representation: Cultural Representations and Signifying Practices. London: Sage Publications in association with The Open University.

A. C. Hutchinson, ed. 1989. Critical Legal Studies. Totowa, New Jersey: Rowman and Littlefield.

Peter Jaszi. 1991. “Towards a Theory of Copyright: The Metamorphoses of “Authorship”.” Duke Law Journal 1991(1991):455-502.
—. 1994. “On The Author Effect: Contemporary Copyright and Collective Creativity.” In The Construction of Authorship: Textual Appropriation in Law and Literature. Martha Woodmansee and Peter Jaszi, eds. 15-29. Durham: Duke University Press.

Charles Keil. 1979. Tiv Song. Chicago: University of Chicago Press.

Judy Lin-Eftekhar. 2002. “Who Owns the Music?” UCLA Magazine Summer 24. URL: http://www.magazine.ucla.edu/year2002/summer02_03.html

Peter Manuel. 1993. Cassette Culture: Popular Music and Technology in North India. Chicago: University of Chicago Press.
—. 2000. East Indian Music in the West Indies: Tan-singing, Chutney, and the Making of Indo-Caribbean Culture. Philadelphia: Temple University Press.

Peter Manuel, Michael Largey, and Ken Bilby. 1995. Caribbean Currents: Caribbean Music from Rumba to Reggae. Philadelphia: Temple University Press.

Peter Martin. 1995. Sounds and Society – Themes in the Sociology of Music Manchester: Manchester University Press.

Anthony McCann. 2001. “All That is Not Given is Lost: Irish Traditional Music, Copyright, and Common Property.” Ethnomusicology 45(1):89-106.
—. 2003. Beyond the Commons: The Expansion of the Irish Music Rights Organisation, the Elimination of Uncertainty, and the Politics of Enclosure. Ph.D. University of Limerick.
URL: http://www.beyondthecommons.org.

Kembrew McLeod. 2001. Owning Culture: Authorship, Ownership, and Intellectual Property
Law
. New York: Peter Lang.
—. 2005. Freedom of Expression®: Overzealous Copyright Bozos and Other Enemies of Creativity. New York: Doubleday.

Ingrid Monson. 1996. Saying Something: Jazz Improvisation and Interaction. Chicago: University of Chicago Press.

Mark Rose. 1993. Authors and Owners: The Invention of Copyright. Cambridge, MA: Harvard University Press.

David Saunders. 1992. Authorship and Copyright. London: Routledge.

Anthony Seeger. 1987. “Do We Need to Remodel Ethnomusicology?” Ethnomusicology 31(3):491-495.
—. 1992. “Ethnomusicology and Music Law.” Ethnomusicology 36(3):345-359.
—. 1996. “Ethnomusicologists, Archives, Professional Organizations, and the Shifting Ethics of Intellectual Property.” Yearbook for Traditional Music 87-105.

Brad Sherman. 1995. “Appropriating The Postmodern: Copyright and the Challenge of the New.” Social and Legal Studies 4:31-54.

Christopher Small 1998. Musicking: The Meanings of Performing and Listening. Hanover: Wesleyan University Press.

Stan Soocher. 1998. They Fought the Law: Rock Music Goes to Court. New York: Schirmer Books

Eric Steuer. 2004. “The Remix Masters.” WIRED 11:186.

Martin Stokes. 1994. “Introduction.” In Ethnicity, Identity and Music: The Musical Construction of Place. Martin,Stokes, ed. 1-27. Oxford: Berg.

Joseph N. Straus. 1995. “Post-structuralism and Music Theory (A Response to Adam Krims).”
URL: http://societymusictheory.org/mto/issues/mto.95.1.1/mto.95.1.1.straus.tlk

Michael Talbot, ed. 2000. The Musical Work: Reality or Invention? Liverpool: Liverpool University Press.

Martha Woodmansee. 1984. “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’.” Eighteenth-Century Studies 17(4):425-448.
—. 1994. “On The Author Effect: Recovering Collectivity.” In The Construction of Authorship: Textual Appropriation in Law and Literature. Martha Woodmansee and Peter Jaszi, eds. 1-15. Durham: Duke University Press.

Martha Woodmansee and Peter Jaszi. 1994. “Introduction.” In The Construction of Authorship: Textual Appropriation in Law and Literature. 1-13. Durham: Duke University Press.

Martha Woodmansee and Peter Jaszi, eds. 1994. The Construction of Authorship: Textual Appropriation in Law and Literature. Durham: Duke University Press.

Roberto M. Unger. 1986. The Critical Legal Studies Movement. Cambridge, Massachusetts: Harvard University Press.


[i] More famous, perhaps, is the work of Foucault in this regard. See Burke ed. (1995) for this and other key contributions to discussions on “authorship”, and Burke (1998) for an extended discussion of the work of Foucault, Barthes, and Derrida in this regard. A collection of essays more focused on the relationship between authorship and copyright can be found in Woodmansee and Jazsi, eds. (1994). A useful summary of various approaches to authorship and copyright can be found in Halbert (1999). For an interesting discussion of “originality” in relation to copyright see Sherman (1995). For a discussion of authorship, ownership, and intellectual property law see McLeod (2001).

[ii] In 1992 Goehr, for example, challenged the naturalized status of the work-concept in musical discourses, noting that, “speaking about music in terms of works is neither an obvious nor a necessary mode of speech, despite the lack of ability we presently seem to have to speak about music in any other way” (243).

Enclosure Without and Within the “Information Commons”

2005. Information and Communications Technology Law 14(3):217-240

Information and Communications Technology Law is available online at:
http://www.informaworld.com/openurl?genre=article&issn=1469-8404&volume=14&issue=3&spage=217

[Someone commented to me by email that this paper left them feeling very pessimistic, as it identifies commodifying contradictions in ‘commons’ discourses but offers no alternative. This is a fair point, as offering alternatives was not a point of this paper. Alternatives are, however, the primary focus of my current and future research, which deals with an elaboration of a ‘politics of gentleness’/’ordinary ethics’ as a predominantly uncommodifying ethic of human flourishing.]

The information commons is an idea whose time has come. In part this is a result of pressures that face the commons. Issues related to intellectual property law in particular are leading to what many are now calling the enclosure of the information commons – a process that separates people from ideas. This process is analogous to the fencing off of the English commons, an act that separated people from the material resources they needed for their survival

Info-commons.org, 2002

Within a repressive society, even progressive movements threaten to turn into their [declared] opposite to the degree to which they accept the rules of the game.

Herbert Marcuse, 1965

Unless we demonstrate greater caution with analytical models that are products, as they all are, of particular histories, we are in danger not only of solving but also of producing tragedies and dilemmas in the commons and elsewhere

Pauline E. Peters, 1987 

Introduction

There are perhaps three primary ways in which the notion of the “information commons” has been taking shape since Felsenstein’s seminal 1993 article promoting the notion of a “Commons of Information”. The first two have been developing in direct response to the demands and discourses of public library practice, first in the United States, and now internationally. Allmang et al. (2005) note in the context of library practice, for example, that a generally accepted meaning of “information commons” has been “a specific location designated to deliver electronic resources for research and production that is maintained by technically proficient staff” (Cowgill et al., 2001). They also note that a second meaning of the term is emerging, speaking more to the notion of open access space with shared information rather than technological enhancement. They quote Nancy Kranich of the American Library Association (ALA), who sees the information commons as a “new dynamic approach to serving the public interest in the digital age” (Kranich 2004). Within the specific contexts of library practice, Allman et al. suggest that a comprehensive information commons is constituted by the combination of “a place that offers shared technology/work/study spaces and a place that supports the distribution of as much full text of published scholarly information as possible” (2005). This is clearly a powerful notion, as a quick google search of the term will confirm that libraries in universities across the world are being renamed “information commons”.

There is a third, not entirely distinct, way in which the notion of “information commons” is being deployed. It’s this one that concerns me most in this paper. The term has become a banner of action for a concerted lobby group of public policy activists and legal scholars from all over the United States, centred primarily in and around the civic communities of Washington D.C. Even more specifically, some of the most intense lobbying for the concept of the “information commons” can be located around a series of interconnected websites, in particular http://www.info-commons.org, and http://onthecommons.org. The first is the website of the Information Commons Project of the ALA, run by Frederick Emrich, a librarian and policy activist. This website also serves as something of a nexus for all three notions of “the (information) commons”. The second is a private website run by David Bollier, who was a founding member of the non-profit organisation Public Knowledge, and author of the influential book Silent Theft (2002), a veritable bible for the new “commons” movements in the United States. David Bollier might easily be taken as the flag-bearer of the cause, and it is his work that will provide much of the focus of this article. The websites run by Emrich and Bollier have provided a focus for thinkers such as Howard Besser, Yochai Benkler, Jonathan Tasini, and Jorge Reina Schement. Other people that might be included as working in the spirit of the “information commons” lobby, sometimes referred to optimistically as a “movement”, are legal scholar Lawrence Lessig, author of The Future of Ideas (2001), communications scholar Siva Vaidhyanathan, author of The Anarchist in the Library (2004), and legal scholar James Boyle, author of Shamans, Software and Spleens (1997), among a number of others. I would argue that these people have become key drivers of meaning in discourses of “information commons”.

From this point on I will be using the term “(information) commons” to refer to this third strand of “information commons” thinking. This is because of the ways in which notions of the “information commons” in this regard intersect and overlap with the use of a rhetoric of “the commons” in American public policy. These discourses are co-extensive and mutually nourishing, and it is interesting, in passing, to note that discourses of “the commons” in the United States are more and more becoming synonymous with discourses of “the information commons”.

There are a number of lines of critique that I could take with regard to discourses of “the (information) commons” and their buddy-narrative of enclosure. I could focus on the use of fear and threat as a way to rally people around a political cause on American Democratic principles; I could focus on the reimagination of both “public domain” and “(information) commons” as more recent versions of the colonial imaginary of terra nullius; I could focus on the utopian technoromanticism of “(information) commons” notions; I could focus on the ways that the Creative Commons movement allows people to enthusiastically endorse the expansionary principles of intellectual property doctrine while sometimes believing that they are radically challenging them; I could focus on the weakness of “information” models as a foundation for sociological analysis; or, I could focus on the ways in which proponents of “the (information) commons” seem to forget that not everyone has a computer, and not everyone either has or wants to have access to the Internet. There’s not time to take on all of these issues here, but I certainly invite you to follow them up yourself. One point that I do want to make, however, is that discourses of “the (information) commons” do not present us with a “new narrative”, as some would claim. As with other post-9/11 American democratic rhetoric, the narratives and rhetoric imbedded in “(information) commons” discourse are tried and tested, not so much new as renamed and repackaged to appeal to a specifically American audience. Not only that, but we do well to remember what Kevin Robins and Frank Webster have written: “there is much about the ‘information revolution’ that is just business as usual (if the technologies are new, the social visions that they generate tend to be surprisingly conservative)” (1999:5).

Champions of “the (information) commons” tend to be critics of what they term “enclosure”. Understandings of enclosure within discourses of “the (information) commons” rely very heavily upon economically-based resource-management models of “the commons”. Historically these have tended to be used by apologists, not critics, of enclosure. What I will suggest is that dominant understandings of the notion of “the (information) commons” within American public policy don’t actually combat the dynamics of enclosure, as the rhetoric would suggest. In particular, I will go as far as to suggest that we might consider many discursive instantiations of “the information commons” to be subtly-cloaked political manifestations of the dynamics of legislative, technological, political, and theoretical enclosure and, more specifically, of the continued expansion of intellectual property doctrine. It has been written that the notion of the “information commons” is “a much-needed tool for achieving intellectual clarity about the digital revolution” (Bollier 2002a). I would suggest, rather, that discourses of the “(information) commons” tend to work more in the spirit of a Trojan horse than an analytic tool.

The idea of “the (information) commons” is not simply “gaining currency”. It is being aggressively sold by David Bollier and others as a “new idea for new times”, to “help name and mentally organize a set of novel, seemingly disconnected phenomena that are not yet understood as related to each other or to the health of our democratic polity” (Bollier 2002a). With a tone interestingly not dissimilar to post-9/11 ‘The World Has Changed’ rhetoric, “(information) commons” apologists suggest that we have to change our discourses to adapt to this Brave New World: “The functioning of our economy and culture has changed dramatically as a result of digital technologies, but our mental maps still tend to depict the landscape of another time, one that is fast-disappearing” (ibid.). This is a new discourse, it is suggested, unlike those “rooted in an earlier media culture” (ibid.). The notion of “the (information) commons”, it is suggested, allows Americans to “talk more cogently about constitutional and cultural norms that are increasingly threatened in the new digital environment. Being able to name endangered values is the first step toward understanding what is at stake and mobilizing suitable responses” (ibid.). I will suggest later that such discourses constitute anything but new ideas for new times.

So what do apologists of “the (information) commons” mean when they talk about “the (information) commons”. The point is that we can never really be sure. David Bollier has written that, “While still a rudimentary concept, the information commons is a valuable idea because it provides a coherent framework and language for explaining phenomena that are otherwise ignored or misunderstood” (Bollier 2002a). This is patently not true. While a discourse of “the (information) commons” may well focus minds, the analytic frameworks that have been erected around the notion are often anything but coherent. Never mind confusion across different writers, even in the same piece of work there can be much confusion, as I will later show. This would suggest that the power of “(information) commons” discourses rests not in the light they shed on the sociological or political aspects of either the process of enclosure or the constitution of “the commons”. Rather, the interchangeability of meanings and metaphors of “the (information) commons” would suggest that the power of the notion “the (information) commons” lies primarily in its ability to draw a public-policy lobby around a rhetorical (American) flag.

My discussion in this paper runs as follows:

  • Discourses of “the (information) commons” are also discourses of “enclosure”
  • Discourses of “the (information) commons”, although often quite confused and confusing, tend to involve us in resource-management approaches to social analysis, primarily reducing analytic discussion to the access, control, allocation, protection, and ownership of posited resources. These tend to be consistent with profoundly inadequate (socio-politically limited) models of expansion and commodification, the primary features of the process and practices of enclosure.
  • Resource-management approaches to concepts of “the (information) commons” likely contribute in the long-term to intensifying (enclosing) dynamics within what might be referred to as commons systems, despite best intentions. This is because resource-management approaches in analysis tend to be both symptomatic and constitutive of the dynamics of enclosure

“Enclosure” and “the Commons”

Discourses of “the (information) commons” emerge from discourses of enclosure. It is a frequent strategy among “(information) commons” theorists to ground and legitimate their narratives in the English parliamentary enclosures of the Industrial Revolution (see, for example, Felsenstein 1993; Lessig 2001; Boyle 2001; Bollier 2002, among others). Indeed, the parliamentary enclosure narratives of history have provided a powerfully-emotive metaphor for many people[i], far beyond the concerns of information or the Internet. Throughout relevant literature, “enclosure” has been contrasted with or, more often perhaps, set up in direct opposition to notions of “the commons”. It comes as little surprise, then, that much of the coherence in rhetorical deployments of “(information) commons” discourses comes from narratives of “enclosure”. “(Information) commons” discourses are couched in a rhetoric of crisis, positing an often vague threat, against which “the (information) commons” must be protected.  The danger to the “(information) commons” (and to democratic process and, arguably, the American Way of Life) comes from “enclosure”. Howard Besser, for example, writes:

In recent years we have begun to experience the erosion of various aspects of our contemporary commons. … Just as the coming industrial revolution provided an excuse for the wealthy to enclose the commons grazing land, the current information age is providing an excuse for the content industry (publishers, motion picture studios, music distributors, etc.) to fence off access to our information commons. (Besser 2002).

What normally happens is that the analogy is made, and a general threat posited as equivalent to the earlier threat of parliamentary enclosure. On the back of identification of this threat a notion of “the (information) commons” is formulated to counter this threat, working by analogy with “the commons” that were enclosed during the English enclosures from the fifteenth to eighteenth centuries. There are two analogies, then, although they are often dealt with as one. It is important to first be a little clearer about where these analogies come from.

“Enclosure” is frequently used as a label to speak of broad social processes and pervasive social change, and variously equated with commodification, privatization, commercialization, and the marketization of everyday life (see, for example, Midnight Notes 1990; Goldsmith et al. 1992; Brush 1996; Gudeman 1996; Shiva et al. 1997; Frow 1997; May 2000; Boyle 2001; Bollier 2002). In this way, “enclosure” has become very much about the identification of the threat of unwelcome social changes, driven by often anonymous corporate agents, fueled by the expansionary logic of free-market capitalism. However, it has been noted that the term “enclosure” is “an arena for the criss-crossing of disputed and competing values and orientations” (Siemon 1994:23). The relationship between “enclosure” and the “commons” has been, if nothing else, an invitation to take sides. Depending on which side you take, the term ‘enclosure’ can have either negative or positive connotations. For some, enclosure is undoubtedly a synonym for increased productivity or profitability (Thirsk 1958:4), for others enclosure refers starkly to “expropriation, exclusion, denial and dispossession” (Goldsmith et al. 1992:131).

In simple terms, it can safely be said that study of parliamentary enclosure concerns land, property, and “the commons” (see Thirsk 1958; Mingay 1968; Yelling 1977; Turner 1984; Allen 1992). “Enclosure”, in this sense, refers primarily to a series of changes to the English landscape from the fifteenth to the nineteenth centuries. It often entailed the changing of agricultural practices from communally administered landholdings, usually in fields without physically defined territorial boundaries, to agricultural holdings which were non-communal. Common lands were “enclosed” by man-made boundaries that separated one farm from another. Slater identifies three generic features of “enclosure” in this regard:

(1) the laying together of scattered properties and consequent abolition of intermixture of properties and holdings; (2) the abolition of common rights; (3) the hedging and ditching of the separate properties. The third process is the actual “enclosing” which gives its name to a series of processes which it completes (1907:85).

For many people, this “enclosure” was undoubtedly negative. William Carroll (1994) has noted that during the Tudor-Stuart period (1485-1714) the term “enclosure” is unstable, to the point where it is used as “an all-purpose signifier for virtually every negative socioagricultural development” (1994:36). This didn’t make the designation any less meaningful for those who resisted enclosure. As the works of E.P. Thompson (1968, 1993), Jeanette Neeson (1993), Kevin Robins and Frank Webster (1999), and Iain Boal (forthcoming), among others, have made clear, changes to the English landscape were symptomatic of a broad programme of expansionary social changes. Profound changes to people’s everyday lives were driven by the burgeoning popularity of a capitalist ethos. Resistance to these changes, such as that offered by the Luddites, was often stereotyped as anti-progressive and backward:

“Luddism was a response to deep-seated changes in ways of life, changes in which technology was undeniably implicated, but which were about much more than mere technical matters. What the Luddites were fighting against, more broadly, was the unfolding logic of the Enclosures movements. The Enclosures … were fundamentally about bringing realms that had hitherto been exempted into the new and expanding commercial relationships that marked the growth of capitalism. Former ways of providing food and sustenance – strip farming, labour relationships based on obligation and deference, widespread access to, and availability of, common land for grazing, hunting and collection of fuel – were denuded and done away with in the name of efficiency, progress and private property rights” (Robins and Webster 1999:7).[ii]

There are others, however, for whom “parliamentary enclosure” carries positive connotations. Allen notes that “Few ideas have commanded as much assent amongst historians as the claim that enclosures and large farms were responsible for the growth in productivity” (1992:2). Thirsk, for example, defines enclosure as “a method of increasing the productivity or profitability of land. This definition would apply accurately to all forms of enclosure” (1958:4). In a more recent commentary, Boyle agrees: “The big point about the enclosure movement was that it worked; this innovation in property systems allowed an unparalleled expansion of productive possibilities” (2001:3).

Whether people are referring to the parliamentary enclosures in England from the fifteenth to the nineteenth centuries or to the more recent critiques of “corporate enclosure”, there have tended to be two dominant characterizations of “the commons”.

In the first, people have conceived of “the commons” as a particular character of uncommodifying social relations in a localized context of community. It is important to note that, in the literature on the parliamentary enclosures, this has tended to be the characterization of “the commons” adopted by critics of the broad social changes that enclosure brought about.  This can primarily be characterised as a relationship-centred approach to “the commons”, whereby “the commons” is understood to refer to a particular character of social relations that are constituted, at least in part, by an ethic of interdependence and cooperation (see, for example, E. P. Thompson 1968, 1993; Neeson 1993). The key point has been, however, that the relations in question are of a peculiarly uncommodifying character. As the editors of The Ecologist note: “[The commons] provides sustenance, security and independence, yet … typically does not produce commodities. Unlike most things in modern industrial society, moreover, it is neither private nor public” (Goldsmith et al. 1992:7-8).[iii]

The second dominant characterization of “the commons” is as a resource-pool to be managed. Within the literature on parliamentary enclosure, this has tended to be the characterization of “the commons” adopted by those very much in favour of enclosure as a means of enacting economic progress and the capitalist ethos.[iv] The term “commons”, in this sense, refers to resources “held in common” or managed in such a way as to allow common access. Again, “the commons” is often considered within a context of community, but the community does not need to be localized or situated. As there is no necessity for a resource management model of “the commons” to consider experiential or broader social psychological elements, the community in question may have the character of an “imagined community” or a simplistic and reductionist abstraction.

“Enclosure” and “the (Information) Commons”

Upon examination the analogies with “parliamentary enclosure” and the English “commons” don’t hold up. No real grounds are offered for the comparativist claims. Yes, a threat has been identified, and yes, this threat has been identified as long-acknowledged processes of commodification, privatization and marketization. Thus far there are similarities with earlier critiques of parliamentary enclosure. But beyond this the analysis does not go. The threat is left vague, and the analogy is never properly justified. No sociological or social psychological explanation is ever offered for the processes of commodification, privatization, or marketization that are identified as threats, therefore no appropriate comparisons can ever be made in considerations of enclosure as a social process. In light of the general discussion in this paper, this is important. On the one hand this lack in the analysis, the deferral to an abstracted threat, allows the threat to remain external to the person identifying the threat. No room is left to understand how we ourselves might be possibly participating in the dynamics of commodification and enclosure, at least in any way that we could do anything about.

When there is such a possibility for internal paradox with regard to what constitutes the threat of enclosure, it is little wonder that there tends to be some degree of internal contradiction with regard to understandings of how the expansionary process of enclosure operates. For example, at one point David Bollier claims that “The privatization of the commons has crept up slowly and quietly, in fits and starts. It has not been an identifiable juggernaut with a single battlefront or defining moment” (2002:4). Elsewhere, in the same document, he states that “… market enclosure … is typically a coercive fait accompli” (2002:22). In the same document, Bollier declares, however, that: “The issue is not market versus commons. The issue is how to set equitable and appropriate boundaries between the two realms – semi-permeable membranes – so that the market and the commons can each retain integrity while invigorating the other” (Bollier 2002:4). This rhetoric of equilibrium fails to take into account the expansionary character of capitalist market relations, and ignores the expansionary dynamic of enclosure that has elsewhere, countless times, been identified as the key threat against which apologists of “the (information) commons” must fight! This is possible, because an underlying sociological explanation for enclosure is never offered, against which to compare his declarations. The concept that lives by the rhetorical sword can just as easily die by the rhetorical sword. Failure to account for the expansionary logic of capitalism leaves Bollier open to accusations of economic and political naivety. Denying his own critique of the expansionary commodification of enclosure might leave his arguments, grounded in the celebration of copyright, intellectual property law, and legislative expansion of the American constitution in the name of “democracy”, open to accusations of complicity with, or, at the very least, enthusiastic participation in broader processes of enclosure. This is confirmed, in the same document, when Bollier actually goes as far as to literally naturalize the expansionary dynamic of capitalism by way of a nature metaphor:

“Business, let it be said, is no more a villain than a lion whose metabolism needs gazelles. Companies are in the business of maximizing competitive performance in the market, and use of the commons simply represents an available resource and frequently a path of least resistance. That is why fortifying the commons is not equivalent to attacking the market, which clearly generates many important benefits for our society” (Bollier 2002:3).

If the analogy with parliamentary enclosure is problematic (if not empty), the analogy with “the commons” is equally problematic. Yes, attention is sometimes drawn to a threatened way of life, and, yes, the way of life that is threatened has been identified as uncommodifying social relations. To that extent the positioning of a commons-critique against processes of enclosure has validity. However, as I have just noted, the point is that this tends not to be the primary characterization of “the (information) commons”. What is crucial, and vital to the arguments set forth in this paper, is that conversations about “the commons”, and in particular “the (information) commons”, tend now to be effectively monopolised by those who espouse resource management conceptualizations of “the commons”. For example, at one point David Bollier describes “the commons” as “the collectively owned resources that are fundamental to a democratic commonwealth … valuable resources that the American people collectively own” (2002:2). He suggests that these:

“include resources that we have paid for as taxpayers and resources that we have inherited from previous generations. They are not just an inventory of marketable assets, but social institutions and cultural traditions that define us as Americans and enliven us as human beings – public education, community institutions, democratic values, wildlife and national forests, public spaces in cities and communications media” (2002:3).

Ignoring for a moment the American flag-waving, pretty much anything you can imagine becomes a resource, within the American democratic polity.[v]

This is where the confusion starts. It is simply prevarication to suggest that this resource management discourse is not based on economic principles. It is an attempt to outline a notion of non-marketability without acknowledging that the attempt is taking place firmly within an overarching normative framework of free-market capitalism and orthodox economic discourses.[vi] This allows Bollier, for example, to nestle in paradox (or outright contradiction) by claiming on the one hand that  “… the idea of the commons helps us identify and describe the common values that lie beyond the marketplace” (Bollier 2002b:14), while also stating, in the full garb of political economy, that,

There is a vital political analysis implicit in commons-speak, and this analysis presumes that citizens, not investors, are the primary stakeholders. It also presumes that citizens are not just the owners of these assets, but often the users, and so they ought to be direct participants in how their assets are managed (Bollier 2002a).

Jonathan Tasini, at least, is up-front about it, stating that “(information) commons” activists “have to carve out a more aggressive role in defining the economic rules of the game” (Tasini 2002). The game of resource management discourse is very much an economic one.

Rather than being about uncommodified spaces, uncommodifying, non-capitalist, non-propertized social relations, notions of “the (information) commons” tend to refer to always-already commodified resources, always-already commodifying management of resources, or an always-already commodified space of propertized resources (a classic commodity framework): “What unites these highly disparate commons … is their legal and moral ownership by the American people” (Bollier 2002b:3). The resources become “givens” of the discourse, and the focus shifts from things to the management of things. This is a discussion about a control economy, about who gets to control resources, and how: “A reckoning of what belongs to the American people is a first step to recovering control of common assets and protecting them for public purposes. When we argue for the American commons, we assert the right to public control over public resources …” (Bollier 2002b:14). David Bollier declares it to be the central issue under debate: “One of the great questions of contemporary American political economy is, who shall control the commons?” (2002b:1). Discourses of “the (information) commons” tend mainly to refer to resources (commodities) that are under the threat of an alternative mode of commodification or propertization. To identify the threat of enclosure within “(information) commons” discourses as the threat of even solely economic commodification, then, is to hoist a straw man on a rhetorical petard.

This is, of course, not without consequence. It is no coincidence that, in the past, resource management notions of “the commons” were espoused by those intent on driving the logic of enclosures and capitalism to their best advantage. The possibilities of conceiving of “the commons” in terms of uncommodifying social relations, in terms of the political character of relationships at all, or even in terms of resistance to the dynamics of enclosure, are decidedly limited when resources are the focus of attention.[vii]

As with the analogy with parliamentary enclosure, the analogy with “the commons” gets a little shaky upon closer inspection. When we historicize the dominant model of “the (information) commons” it has tended to be deployed as a privileged discourse by people in favour of enclosure, not those critiquing it.[viii] I would suggest that the use of resource-management models to either counter the expansionary dynamics of enclosure or to characterise “the commons” will tend to lead to inadequate analysis that, in the long-term, will likely exacerbate rather than ameliorate the broader socio-political consequences of enclosure. I would also suggest that the analogies drawn between past and recent examples of “the commons” only really work insofar as capitalism is excluded as a focus of critique, and insofar as the rhetorical promise of uncommodifying social relations is foregrounded to cloak the commodifying presence of resource management frameworks.

With the analytic weaknesses embedded in these particular deployments of analogy, it is no great stretch to establish a rhetorical opposition between enclosure and “the (information) commons”. It takes little effort to state that one is protecting “the commons” and combating enclosure, because both terms operate more or less as free-floating rhetorical implements. This crisis rhetoric allows apologists of “the (information) commons” to appropriate the emotional weight of historical narratives of “enclosure and the commons”, without every really justifying comparisons with those narratives in any rigorous fashion. Rhetorically, they frame it in terms of widespread social changes involving commodification and the spread of market values, but they are a little shy to push the analysis so far that they might have to acknowledge that they might actually be espousing commodification and the spread of market values.

If it is accepted that deployments of the notions of “enclosure” and “the (information) commons” in the literature in question tend to be primarily rhetorical, it will not come as too much of a shock to find that there is considerable shifting of meaning and metaphor within the rhetoric. It can get a little confusing.[ix]

Take, for example, when resource management notions of “the commons” are “mixed” with notions of enclosure. The (information) commons” is often those resources that are both being enclosed, as well as being that which is not enclosure, indeed, the opposite, the ‘necessary Other’ of enclosure:

“The commons” refers to that vaste range of resources that the American people collectively own, but which are rapidly being enclosed: privatized, traded in the market, and abused.” (Bollier 2002b:1).

“… the idea of the commons helps us identify and describe the common values that lie beyond the marketplace” (Bollier 2002b:14).

This raises a problem not dissimilar to the problem of causation raised by Descartes’ separation of mind and body – if “the (information) commons” is separate from enclosure, and fundamentally different, how is it that enclosure happens within “the (information) commons? You can’t have it both ways. This doesn’t make much sense unless we accept that the Othering of enclosure is primarily a rhetorical strategy. It draws attention away from the possibility that how proponents of “the (information) commons” are claiming to protect what they wish to protect isn’t all that different from what they identify as the process of enclosure.

The key to understanding all of this confusion may be that the project of “the (information) commons” is not a project of social or political analysis. Enclosure is left as a vague threat, “the (information) commons” as an unquestioned good. The refusal to analyse the social dynamic of enclosure in sociological or social psychological terms, particularly at the level of social interaction, leaves any analysis flowing from these statements, at best, simply descriptive; somewhere in the middle, politically naïve; and, at worst, rhetorically manipulative.

Enclosure Revisited, Without “the Commons”

Some time ago I would have been very inclined to go along with the persuasive language offered by the public policy apologists of the “(information) commons”.  I, too, have become, in spite of myself, a theorist and critic of enclosure. However, my analysis of “enclosure” differs in significant ways from that offered by apologists of the “(information) commons”, not least because I seek to extricate my analysis of expansionary social dynamics from notions of “the commons”. I have found in my own analysis of the process and practices of enclosure that resource management discourse tends to be both symptomatic of and constitutive of the dynamics of enclosure. This is, of course, quite obvious in the case of the discourses and practices of apologists of parliamentary enclosure. Where it is perhaps not quite as obvious, and where we might indeed think it counterintuitive, is in the discourses and practices of apologists of the “(information) commons”.

Over the last number of years my research has focused on the identification and analysis of expansionary social dynamics. Of particular interest to me have been the increasingly influential discourses and practices of law, copyright, and intellectual property. My doctoral dissertation (http://www.beyondthecommons.com), for example, examined the expansion of the Irish Music Rights Organisation (IMRO) during the period 1995-2000. IMRO administers licences[x] for performing rights[xi] in Ireland. As IMRO representatives intensified their efforts to increase the number of licences contracted with the company, a series of controversies resulted during the second half of the 1990s, allowing for an eruption of suspicion, if not paranoia, about their operations. Representatives of IMRO encountered fierce resistance as certain groups refused to comply with the purported need for IMRO licences, in particular, primary schools, publicans, and supporters of ‘Irish traditional music’ (see McCann, 2001, 2003, forthcoming). In the space of five years, however, the organization went from being one of the most hated in Ireland to being one of the most accepted, with full government support and full legal sanction for their monopoly operations. The representatives of the Irish Music Rights Organisation are now allowed to assert absolute authority to undertake their favoured activities and deploy their favoured strategies in all domains within the Irish state. The hegemonic dynamics of IMRO’s operations effectively sustain ‘the end of debate’; resistance to the foundation of IMRO’s authority is consistently rendered ineffective, politically irrelevant, and, especially now, discursively invisible. I was interested in how this public relations miracle had been achieved.

I read the rapid expansion of the Irish Music Rights Organisation’s authority across the Irish jurisdiction as an example of “enclosure”. Enclosure, as I understand it, is a process that is not helpfully identified with specific historical periods or associated solely with identifiable “movements”. I believe enclosure is more helpfully understood not as one side of a binary opposition in relation to notions of “the commons”, but, rather, as a character or mode of power relations. There is not, then, any a priori assessment of enclosure as positive or negative, with associated tendencies to judgment and blame. Rather, in a Foucauldian move, my focus is on enclosure as a particular mode or character of the exercise of power, with characteristic consequences. I understand enclosure to be a social psychological, and deeply political, process which operates in and through the very particular practices of very particular people in very particular circumstances. I will let it be known at this stage that I am no fan of invisible hand solutions to sociological analysis. Any analysis of enclosure as a characteristic set of power relations is faced with the challenge of achieving what Yelling refers to as “an appropriate set of generalisations”, the derivation of which “is the crux of the matter, and it is on the solution of this problem that any general work on enclosure must depend” (1977:4). The aim of my research, then, has been, in my dissertation of 2002 and since, to identify the features of enclosure as a process[xii], to identify family resemblances across various contexts.[xiii]

From my work (discussed at length in McCann 2003), two elements stand out as characteristic in my analysis of the process, discourses, and practices of enclosure. The first is the experience of commodification. The second is the extension of authority-as-certitude, which could be otherwise understood in the context of this paper as ‘doctrinal expansion.’ Both of these elements I take to be symptomatic and constitutive of enclosure. Thus, for the purposes of this short paper, I will only be directly addressing the first of these, commodification.

Commodification

Commodification is, for me, the first element of enclosure. Commodification (also commoditization) is a popular word among mainly left-wing thinkers, due to Karl Marx’s enthusiasm for the term “commodity” as part of his anti-capitalist arsenal in Das Capital. It surprised me recently that the term “commodification” itself has only become a presence in the academic lexicons since the mid-1970s (see Strasser, ed. 2003). It is interesting that people who write about the process of commodification concern themselves almost exclusively with attempts to quantify or define the qualities of “commodities” (e.g. Appadurai et al. 1986). This seems to me a somewhat counterproductive strategy. To focus on commodities-as-things, to focus on access to, and the exchange, movement, allocation, control, ownership, and protection of commodities in these discussions is ironically to adopt a peculiarly commodifying approach, as I argue below. I would further suggest that to consider commodification as primarily or solely an economic issue, which most scholars do, is further to diminish its usefulness as a concept in analysis by making commodification in apparently non-commercial contexts invisible. I don’t accept that commodification is a primarily or peculiarly economic process, or that it necessarily concerns the abstract exchange and movement of commodities.

In my own work, I understand commodification as a primarily dispositional[xiv] and discursive[xv] process (with very particular political consequences). It arises from a dominance of the expectation that uncertainty can be or should be “eliminated”. In this, I make a key assumption, that uncertainty (affect) is a constant and variable aspect of our experience. If this is the case, and my own experience would suggest to me that it is, then it would follow that the “elimination” of uncertainty can only ever be a rhetorical assertion. Therefore, it would seem, the more we participate in the discursive “elimination” of uncertainty, the more we are likely to become alienated from what is happening. The more our discursive renderings of what happens are suffused with the dispositional expectation that uncertainty can be or should be “eliminated”, the more misrepresentative are likely to be our renderings of our experience and of whatever we might refer to as reality.[xvi] The more we seek to “eliminate” uncertainty, then, the more likely we are to become structurally blind to how we ourselves are participating in our own political realities.

I have found in my work that the more we tend towards the discursive “elimination” of uncertainty, the more we are likely to engage in discursive strategies of “closure” and “separation” in the way that we make sense of our experience. Closure is here understood as the discursive “elimination” of variables, and separation as the discursive “equation” of difference as separateness.[xvii] A discursive dominance of  “closure” and “separation” within a particular context is what I mean by commodification. As strategies, they both rely on the assumption that we can achieve an exact equivalence between what we say and think about what happens, and what actually happens. In my dissertation of 2002 I outline how the discourses of the Irish Music Rights Organisation are suffused by such assumptions.

As a consequence of thinking that the commodifying strategies of closure and separation are okay ways to make sense of experience, it is often the case that we think “things” (“commodities”, “resources”, etc.) are more important than people and how they treat each other. At the very least, we often naturalize or reify these “things” so that we assume that they maintain an existence independent of ourselves. It is easy then to assume that our reifications (and our responses to them) are natural, and often therefore inevitable and necessary, “the way things are”. Little wonder, then, that I have found various versions of resource management discourse (access, control, allocation, protection, and ownership) have provided crucial structural support for the dynamics of enclosure. In my work I now take a dominance of resource management discourse to be both symptomatic of and constitutive of the commodifying dynamics of enclosure.[xviii] I say “commodifying” instead of “commodified” to underline that commodification as I understand it is a dispositional and discursive process in which we engage and participate.

Karl Marx suggested that a key characteristic of “commodity relations” was that social relations between people come to assume, it would seem, “the fantastic form of a relation between things” (Kamenka, ed. 1983:446-447). When resource management models become the central concern of a discourse, as happens in the dynamics of enclosure, it is very easy to see how people’s lives can become formalistically reduced to involving little more than the exchange, transaction, and circulation of things/ resources/units/commodities. This frequently allows for the erasure, in C. Wright Mills’ terms (1959), of both biography and history. This is an obvious way in which uncertainty (affect) can be “eliminated”, the experiential and affectual aspects of social life excluded from analysis. All too easily the internal dynamics of a posited resource system become subject to analytic closure, whereby social, political, and cultural variables get left out of analysis in favour of the aesthetically-charged complexities of resource flow. In addition, resource management models are premised on the assumption that our experience is always-already commodified. The very construction of any resources as resources often involves discursive practices of commodification, as I understand the process. When this is the case, resource management discourses leave it very difficult for those of us concerned about the accelerative commodification of everyday life to explain the intensifications and encroachments of commodification. Such concern tends to be not only rendered politically irrelevant, but politically invisible. Such concern is further sidelined when commodification is corralled as solely an economic concern.

It has already been suggested both that discourses of “the (information) commons” tend to be dominated by resource management models of “the commons”. It has also been suggested that a discursive dominance of resource management models tends to be symptomatic and constitutive of commodification and the process and practices of enclosure. If this is the case, then it makes sense that any dominance of resource management models in a particular discourse serves as an invitation to further investigation. A dominance of resource management models may be indicative not only of commodifying discourse, but of the extensions of absolute authorities and the presence of doctrine, and of the accelerative and intensifying impetus of enclosing dynamics. This is not necessarily so, but is worth checking for. It is also worth checking whether the discursive dominance of resource management notions foster and facilitate the profoundly impactful structural blindnesses to the implications of our own participation that also tend to be symptomatic of enclosure.

It is not inevitable that resource management models be used to speak of “the (information) commons”. My critique of commodification and enclosure is also, then, a critique of the use of resource management discourse as an analytic framework for the study and critique of enclosure. This brings me to an interesting place, for, as it happens, resource management models have become the dominant models both for the study of enclosure and for the promotion of notions of “the commons” or “the (information) commons”. I would suggest that this is not a coincidence, but rather a deepening of the enclosing dynamics that are and have been at work in these discourses, as new orthodoxies take root and old ones are given new life through the novelties of renaming. Foucault (1972) cautioned against academic circularity, noting that our scholarly discourses and practices may well be systematically forming the objects of which we speak. In and through the “discursive feedback” identified here, I would suggest that we can systematically participate in the dynamics that we critique.

An Enclosing Commons?

“There is much about the ‘information revolution’ that is just business as usual (if the technologies are new, the social visions that they generate tend to be surprisingly conservative)”

Robins and Webster, 1999.

Bollier has subtly equated the “narrative of market enclosure” with the “narrative of the commons”: “It is important to speak of market enclosure because it reframes the economic narrative of the market. What the market considers incidental externalities (toxic waste, species extinction, safety hazards), the narrative of the commons regards as an assault on the community” (Bollier 2002:49). In a way, as I have suggested, I agree with Bollier in this. Narratives of “the (information) commons” may indeed be read as narratives of enclosure, but not necessarily in the ways Bollier intends. Championing “the (information) commons” tends to implicate people in a series of discourses that have long been implicated in the expansionary social practices of enclosure (where enclosure might be variously understood in terms of commodification, private and collectivist propertization, marketization, globalization, and the propagation of expansionary doctrine).

Take the issue of technology for example. Discourses of “the (information) commons” tend to be always-already couched within progress doctrines of technoboosterism, technoromanticism, and technodoctrine (see MacKenzie and Wajcman, eds., 1999; Robins and Webster 1999; Coyne 1999). I take this to be more than a little ironic, given other analysis that suggests that “The development of … new Enclosures is being massively facilitated by the introduction of information and communications technologies” (Robins and Webster 1999:7). Heightened levels of self-awareness with regard to participation in the dynamics of enclosure is hardly to be expected in the midst of technological enthusiasm. As Langdon Winner has written: “.. the sheer dynamism of technical and economic activity in the computer industry evidently leaves its members little time to ponder the historical significance of their own activity” (1989:84). The social implications of increasingly technologized relations are hardly likely to get a lot of airtime when the use and future development of technology serve as the sine qua non of “(information) commons” discourses.

A similar structure is at play with regard to intellectual property issues. For example, it is not the legislative enclosure of the expansionary discourses and practices of intellectual property that are challenged. No, rather, the legal-literary doctrines of Anglo-American law, copyright, patent law, and intellectual property rights are acknowledged as necessary and beneficial. This is despite long-standing scholarly recognition of the role of intellectual property in commodification and expansionary enclosure. For many, the analysis of “corporate enclosure” specifically concerns resources, intellectual property, and “the commons” (see, again, Goldsmith et al. 1992; Brush 1996; Gudeman 1996; Shiva et al. 1997; Frow 1997; May 2000). The term “enclosure”, in this sense, refers to more recent developments concerning the appropriation of genetic resources and scientific or indigenous knowledge by opportunistic researchers in and through the application of intellectual property rights. This new understanding of the term “enclosure” speaks to major ethical issues that have arisen in the last twenty or thirty years. “Advances” in scientific research and development have ushered in a situation where “more and more, the traditional lifestyles, knowledge, and biogenetic resources of indigenous, traditional, and local peoples have been deemed by governments, corporations, and others to be of some commercial value, and, therefore, to be property that can be bought and sold” (Posey and Dutfield 1996:1).  Although at one point David Bollier, for example, seems to align himself with such analysis, asserting that “… copyright imperialism has blossomed into brazen rapaciousness” (Bollier 2002:123), the analogy with imperialism, the apparent alignment with broad critiques of the discourses and practices of intellectual property, is misleading. To extend the analogy in line with Bollier’s own stated position elsewhere, the principles and politics of imperialism are not problematic but rather it’s the aggressive application of them that is. A subtler, more regulated imperialism is fine. As Frederick Emrich writes on info-commons.org:

“To sound a call in support of the information commons does not mean calling for the end of intellectual property. Commercial uses of information serve a vital role in ensuring that new ideas are produced. So long as commercial uses of information are balanced with effective public access to information, there is good reason to see the information commons and information commerce as mutually beneficial aspects of one system of managing ideas” (Info-commons 2002).

Apologists of “the (information) commons” also tend to support optimistic assumptions of Anglo-American neo-liberal consensus with regard to the benefits of the free market, the free flow of resources, our roles and duties as consumers, the existence of a ‘public sphere’, and the promise of mainly American versions of democracy. Many of these notions are often silent partners in “(information) commons” debates, but they are no less powerful for the silence. This reminds me of a critique that James Brook and Iain Boal levelled against the “corporate libertarianism” of groups such as Computer Professionals for Social Responsibility and the Electronic Freedom Foundation who, they suggest, “see no essential contradiction between social progress and corporate profits. While they are energetic defenders of on-line “privacy” and “open access” to information, their advocacy of civil rights in cyberspace is tempered by their industry affiliations; for example, they rarely challenge the assumptions that more computerization is necessarily a good thing and that “the free market” needs to be protected from “big government” (Brook and Boal, eds. 1995:xi).” A similar critique, I would suggest, can be levelled against many proponents of “the (information) commons”.

The case for “the (information) commons” offered by David Bollier and others runs as follows:

  • The process of enclosure is driven by market concerns, that is, with concerns of people who explicitly privilege economic criteria as the most important elements of discussion.
  • The process of protecting “the (information) commons” is identified with “non-market” concerns, that is, with concerns of people who do not privilege economic criteria as the most important elements of discussion.
  • American legislative development and more equitable governance within American public-policy regulation are identified as the primary means whereby the protection of the information commons will occur.

This argument overlooks a number of key issues, however. Among them, it ignores the interdependence of legal and economic concerns within Anglo-American Common Law. This has very direct implications for “(information) commons” discourse. For example, it’s okay for apologists of the “commons” or “information commons” to talk about “enclosure” as commodification, privatization, marketization, or the encroachment of economic values, but to talk about enclosure as propertization would draw attention to a central confusion within their rhetoric – that the notion of the “commons” they are working with is based on a commodifying, marketized, economic, property framework. This is also why their claims about legislative enclosure ring a little hollow – property is also a legal concept. Economic and legislative enclosure has always-already taken place within their discourse of “the (information) commons”.

The place of American democratic governance in the discourse is also in question. American constitutional principles (e.g. First Amendment rights) and the principles of (American) “democracy” are identified as the discursive basis for justifications with regard to the protection of the “information commons”. Nevertheless, proponents of these discourses tend to ignore the many ways in which political structures and practices in the United States, in particular those underpinned by neo-liberal rhetorics of “democracy”, are suffused by free-market ideologies, and very much implicated in the enclosures of corporate expansion worldwide. This is of particular concern in the current political climate, given critique of “… the contemporary expansion of American imperial rule through the mechanisms of economic, political, and cultural domination often concealed behind a façade of democratic structures and discourses” (Boggs 2003:2). An increasingly coherent body of theory is often allowed to assume the unquestionable positivity of classic anti-enclosure “commons” rhetoric, sounding like globally oriented concern while also declaring support of the central principles of an historically expansionary American polity. Would that the separation of doctrines of democracy and corporate economics were so easy.

Simply declaring the existence or the desired existence of an “(information) commons” does not suddenly sweep away the political baggage that comes along with each of these issues. But it is not uncommon, consistent with the wonderful dynamics that any condition of hegemony tends to imply, that such issues are often conveniently swept under the carpet, shrouded in the mists of denial, or immunised against criticism by the blinding light of the best of intentions. Discourses of “the (information) commons” allow people to purport that they are focusing attention on the fundamental political implications of new technologies, intellectual property laws, free market economics, and American democracy without ever really taking any of those implications seriously enough to challenge them at base.

Conclusion

Insofar as “(information) commons” models monopolize discussion about notions of both enclosure and the commons, they also potentially diminish the power of these notions to provide a focus for truly radical political critique. It would seem that their notion of “enclosure” is little more than rhetorical posturing, presenting a threat to “the commons” that must be countered, while also working from a position, that cannot be acknowledged, that they are part and parcel of the threat they identify. Hence their earnestness in countering the identified threat can hardly be taken seriously. The “information commons” tends to be primarily a rhetorical play, one that muddies the waters of political analysis while at the same time suggesting that paddling around in there actually makes the waters clearer.

With discourses of the “(information) commons” a rhetoric of social critique has been made synonymous with the promotional rhetoric of a positive cause. There are three key points to be made here. The first is that the rhetoric of social critique rarely rises above description and emotive response– this is what is happening, it’s getting worse, and we don’t like it. The second is that those who find themselves going along with the rhetoric of social critique can easily find themselves becoming co-opted into the promotion of positive values that they may not share. The third point to be made is that the rhetorical shift of focus from critique to espousing a positive response to critique tends to allow people who espouse the rhetoric of promotion to remain immune from a critique similar to that which they have undertaken themselves – “we are working against enclosure by protecting the information commons therefore we cannot be involved in enclosure”. While this may have rhetorical force as a declaration, it is of little analytic use. Not only this, but it tends to actively limit the future possibilities of sustained, helpful social and political analysis by placing the consequences of one’s own participation beyond debate. This is a classic dynamic in the discursive maintenance of absolute authorities and hegemonic environments.

What seems to be of greatest concern within “(information) commons” discourse isn’t so much that commodification, privatization, marketization, or the spread of economic values is happening, but that it is happening coercively: “A discussion of the commons and enclosure helps bring into sharp focus a dramatic but largely unexamined phenomenon of contemporary American society: the forced privatization and marketization of large swaths of shared wealth and social life” (Bollier 2002b:2).

What’s of greater concern to me is “enclosure” (commodification, privatization, marketization, the spread of economic values etc.) that happens not due to coercion, but on account of acquiescence and (often enthusiastic) participation. Coercive enclosure is easy to identify, and likely to be met with, one would hope, high-profile resistance. It’s the creeping commodification of everyday life that I would think is of greatest concern, and this tends to happen because either we don’t realise that resistance is even an option or we don’t care to resist. When it comes to the creeping commodifications of technological, political, economic, and legislative enclosure, it would seem that the apologists of “the (information) commons” don’t care to resist. That makes them profoundly and actively complicit in the expansionary dynamics of enclosure, if and when we consider enclosure to be a broader social process than Bollier and his colleagues present it as being.

The championing of an “information commons” (or even a “public domain”) might be interpreted as a series of concerted efforts to carve out a space of what Marcuse (1965) might have referred to as “repressive tolerance”: “within a repressive society, even progressive movements threaten to turn into their opposite to the degree to which they accept the rules of the game.”[xix] It would seem to be a decent enough first step as a defensive measure, but the rhetoric tends to freeze beyond the aspiration of an efficiently utopian “(information) commons”, and, at any rate, appearances can be deceptive. Such efforts tend to succeed admirably in inverse proportion to the challenge they offer to the hegemonic assumptions upon which they are built and in which they nestle, or, to ground it a little more in day to day realities, in inverse proportion to the radically political challenges that people offer themselves or others. “Success”, then, is not necessarily to be welcomed. Be careful what you wish for.

If there are indeed such fundamental paradoxes, if not outright contradictions within “(information) commons” theory, then a re-evaluation of “information commons” developments is called for. I would suggest that the enthusiasm with which notions of the “information commons” have been greeted is misplaced. It would be more helpful, I would suggest, to keep an eye to the critique, concentrating on the implications of enclosure and commodification for the ways in which we relate to each other. Taking the focus away from resource management will leave us not only with less misrepresentative analyses. We will have less limiting theoretical perspectives with which to undertake assessments of our own engagement as discursive participants in the very fields of our inquiry, that is, with which to undertake more helpful participatory analysis to supplement and inform other descriptive and explanatory explorations.

Why is this important? We do well to focus again on the critique offered by apologists of the “information commons”. It’s important because of the expansionary dynamic of enclosure, because of the accelerative dynamics of commodification. If we aren’t more aware of how we may or may not be helping with relation to such expansion and commodification, then we are likely to contribute to a long-term worsening of the enclosing dynamics we are often seeking to ameliorate, even if our short term intentions may frequently seem to be realized. The more appropriate, sensitive, fluid, dynamic, and flexible the methodologies we employ and deploy, the more appropriate, sensitive, fluid, dynamic, and flexible will be our participation as scholars and activists. This paper, then, is an invitation to less partial renderings of what happens, more analysis of the consequences of our own participation, and more adequate understandings of power, agency, expansion, and commodification as they relate to discourses of the “information commons”.

Enclosing characters of social change don’t happen by way of humungous invisible hands that sweep us into an inevitable further stage of commodifying existence. Enclosure happens when people interact with people, when attitudes have consequences, as they only ever do, when the smallest rhetorical layerings of absolutism, domination, oppression, coercion, and violence are anointed with stealth and blessed with the silent pull of gravity on account of their banal humanity. What in the long term will be a pretty big deal is often in the short term left unnoticed. Such ways of thinking are not better or Darwinistically superior. For those of us who are uneasy about them they can be simply different, but the consequences of that difference are where the possibilities of critique and transformation lie. Whether or not such ideas become more influential depends on politics, on how energetic, persuasive, or coercive people become with regard to their propagation, with how acquiescent or participatory we become with regard to their acceptance. Enclosure tends to be a process in which we ourselves often engage and participate, often regardless of or on account of our oppositional rhetoric. As such, our greatest contribution in our encounters with the dynamics of enclosure may well be to consider that there is nothing more political, personal, or relevant than the character of our own attitude. This would implicate us in the continual clarification of our own priorities of importance with regard to what we value, and evaluation of the dissonances between our values and what we find ourselves being expected to concede to, or, often, what we find ourselves conceding to.

Bibliography

Robert C. Allen. 1992. Enclosure and the Yeoman. Oxford: Clarendon Press

Nancy Allmang, Rosa Liu, and Susan Sanders. 2005. “Building an Information Commons at the

National Institute of Standards and Technology Library: A Case Study.”
http://libres.curtin.edu.au/libres15n1/Allmang_Liu_2005_01_31.htm, accessed 25th August, 2005.

Arjun Appadurai, ed. 1986. The Social Life of Things: Commodities in Cultural Perspective. Cambridge: Cambridge University Press.

Howard Besser (2002) “Commodification of Culture Harms Creators.” http://www.info-commons.org/arch/1/besser.html, accessed November 11, 2005.

Iain Boal. Forthcoming. The Long Theft: Episodes in the History of Enclosure. San Francisco: City Lights.

Carl Boggs, ed. 2003. Masters of War: Militarism and Blowback in the Era of American Empire. New Y: Routledge.

David Bollier. 2002. Silent Theft: The Private Plunder of Our Common Wealth. New York: Routledge. http://www.silenttheft.com/, accessed 25th August, 2005.
—. 2002a. “Why We Must Talk about the Information Commons.” Information Commons 1
http://www.info-commons.org/arch/1/bollier.html, accessed 25th August, 2005.
—. 2002b. “Reclaiming the Commons.” Boston Review Summer. http://www.bostonreview.net/BR27.3/bollier.html, accessed 25th August, 2005.

James Boyle. 1997. Shamans, Software, and Spleens: Law and the Construction of the Information Society. Cambridge: Harvard University Press.

—. 2001. “The Second Enclosure Movement and the Construction of the Public Domain.” Preliminary discussion draft produced for the Conference on the Public Domain at Duke Law School, Nov. 9-11. http://www.law.duke.edu/pd/papers/boyle.pdf, accessed 25th August, 2005.

James Brook and Iain Boal, eds. 1995. Resisting the Virtual Life. San Francisco: City Lights.

Stephen B. Brush. 1996. “Is Common Heritage Outmoded?” In Valuing Local Knowledge: Indigenous People and Intellectual Property Rights. Stephen B. Brush and Doreen Stabinsky, eds. pp. 143-164. Washington, DC: Island Press.

William C. Carroll. 1994. “”The Nursery of Beggary”: Enclosure, Vagrancy, and Sedition in the Tudor-Stuart Period.” In Enclosure Acts: Sexuality, Property, and Culture in Early Modern England. Richard Burt and John Michael Archer, eds. Pp. 34-47. Ithaca: Cornell University Press.

Allison Cowgill, Joan Beam, and Lindsey Wess.  2001. “Implementing an information commons in a university library.” The Journal of Academic Librarianship 27:432-439.

Richard Coyne. 1999. Technoromanticism: Digital Narrative, Holism and the Romance of the Real. Cambridge: MIT Press.

Curran, R. (1994) “Music Rights group boosts royalty revenue by over £1m.” Irish Independent August 27

John Dewey. 1929. The Quest for Certainty: A Study of the Relation of Knowledge and Action. New York: Minton, Balch and Company.

Lee Felsenstein. 1993. “The Commons of Information.” Dr. Dobb’s Journal May. http://opencollector.org/history/homebrew/commons.html, accessed 25th August, 2005.

Jane Flax. 1992. “The End of Innocence.” In Feminists Theorize the Political. Judith Butler and Joan Scott, eds.  pp. 445-463. London:Routledge.

Michel Foucault. 1972. The Archaeology of Knowledge. London: Tavistock Publications.

John Frow. 1997. Time and Commodity Culture: Essays in Cultural Theory and Postmodernity. Oxford: Clarendon Press.

Edward Goldsmith, Nicholas Hildyard and Patrick McCully, eds. 1992. Whose Common Future? Vol. 22. Sturminster Newton, Dorset: The Ecologist.

Stephen Gudeman. 1996. “Sketches, Qualms, and Other Thoughts on Intellectual Property Rights.” In Valuing Local Knowledge: Indigenous People and Intellectual Property Rights. Stephen B. Brush and Doreen Stabinsky, eds. pp. 102-121. Washington, DC: Island Press.

IMRO. 2000. Membership Newsletter (March). Dublin: Irish Music Rights Organisation.

Information Commons. http://www.info-commons.org

Adam Jaworski and Nikolas Coupland, eds. 1999. The Discourse Reader. London: Routledge.

Lawrence Lessig. 2001. The Future of Ideas: The Fate of the Commons in a Connected World. New York: Random House.

Georg Lukács. 1972.  History and Class Consciousness. Cambridge: MIT Press.

P. M. Lyons. 1999. The Irish Music Rights Organisation – Revenues, Costs and Distributions. Dublin: Irish Music Rights Organisation.

Nancy Kranich, 2004. “The information commons: a public policy report.” Free Expression Policy Project. http://www.fepproject.org/policyreports/infocommons.II.html, accessed August 25, 2005.

Donald MacKenzie and Judy Wajcman, eds. 1999. The Social Shaping of Technology. Maidenhead: Open University Press.

Herbert Marcuse. 1965. “Repressive Tolerance.” In A Critique of Pure Tolerance. Robert Paul Wolff, Barrington Moore, Jr., and Herbert Marcuse. pp.81-117. Boston: Beacon Press.

Eugene Kamenka, ed.  1983. The Portable Karl Marx. New York: Penguin Books.

Christopher May. 2000. A Global Political Economy of Intellectual Property Rights: The new enclosures? London: Routledge.

Anthony McCann. 2001. “All That is Not Given is Lost: Irish Traditional Music, Copyright, and Common Property.” Ethnomusicology 45(1):89-106.
—. 2003. Beyond the Commons: The Expansion of the Irish Music Rights Organisation, the Elimination of Uncertainty, and the Politics of Enclosure. Warrenpoint: Anthony McCann.
http://www.beyondthecommons.org, accessed August 25, 2005

—. Forthcoming. “Opportunities of Resistance: Irish Traditional Music and the Irish Music Rights Organisation 1995-2000.” In Global Soundings. Jon Cruz and Timothy Cooley, eds. Publisher TBA.

Donald N. McCloskey. 1994. Knowledge and Persuasion in Economics. Cambridge: Cambridge University Press.

Midnight Notes Collective. 1990. The New Enclosures. New York and Boston: Autonomedia and Midnight Notes.

C. Wright Mills. 1959. The Sociological Imagination. London: Oxford University Press.

Sara Mills. 2003. Discourse. London: Routledge.

G. E. Mingay. 1968. Enclosure and the Small Farmer in the Age of the Industrial Revolution. London: Macmillan Press.

Raymond Murphy. 1988. Social Closure: The Theory of Monopolization and Exclusion. Oxford: Clarendon Press.

Jeanette M. Neeson. 1993. Commoners: common right, enclosure and social change in England, 1700-1820. Cambridge: Cambridge University Press.

Elinor Ostrom. —. 1990. Governing the Commons: The Evolution of Institutions for Collective Action. Cambridge: Cambridge University Press.

F. David Peat. 2002. From Certainty to Uncertainty: The Story of Science and Ideas in the Twentieth Century. Washington DC: National Academies Press. http://www.nap.edu/catalog/10248.html, accessed August 25, 2005.

Pauline E. Peters. 1987. “Embedded Systems and Rooted Models: The Grazing Lands of Botswana and the ‘Commons’ Debate.” In The Question of the Commons: The Culture and Ecology of Communal Resources. Bonnie J. McCay and James M. Acheson, eds. pp. 171-194. Tucson: University of Arizona Press.

Darrell Posey and Graham Dutfield. 1996. Beyond Intellectual Property: Toward Traditional Resource Rights for Indigenous Peoples and Local Communities. Ottawa: International Development Research Centre.

Edward S. Reed. 1996. Philosophy and the Mirror of Nature. Princeton: Princeton University Press.

Kevin Robins and Frank Webster. 1999. Times of the Technoculture: From the Information Society to the Virtual Life. London: Routledge.

Richard Rorty. 1979. Philosophy and the Mirror of Nature. Princeton: Princeton University Press.

Vandana Shiva, A. H. Jafri, G. Bedi, and R. Holla-Bhar. 1997. The Enclosure and Recovery of the Commons: Biodiversity, Indigenous Knowledge and Intellectual Property Rights. New Delhi: Research Foundation for Science, Technology and Ecology.

James R. Siemon. 1994. “Landlord Not King: Agrarian Change and Interarticulation.” In Enclosure Acts: Sexuality, Property, and Culture in Early Modern England. R. Burt and J. M. Archer, eds. Pp. 17-33. Ithaca: Cornell University Press.

Georg Simmel. 1978. The Philosophy of Money. D. Frisby, ed. T. Bottomore, D. Frisby, and K. Mengelberg, transl. London: Routledge.

David Sinacore-Guinn. 1993. Collective Administration of Copyright and Neighbouring Rights: International Practices, Procedures, and Organizations. Boston: Little, Brown and Company.

Gilbert Slater. 1907. The English Peasantry and the Enclosure of Common Fields. New York: Augustus M. Kelley.

Susan Strasser, ed. 2003. Commodifying Everything: Relationships of the Market. London: Routledge.

Jonathan Tasini. 2002. “Creators and the Information Commons.” Information Commons 1.
http://www.info-commons.org/arch/1/tasini.html, accessed 25th August, 2005.

Joan Thirsk. 1958. Tudor Enclosures. Leicester: University of Leicester.Titmuss

E. P. Thompson. 1968. The Making of the English Working Class. Harmondsworth: Penguin Books.
—. 1993. Customs in Common. New York: The New Press.

Michael Turner. 1984. Enclosures in Britain 1750-1830. London: Macmillan Press.

Siva Vaidhyanathan. 2004. The Anarchist in the Library.  New York: Basic Books.

Langdon Winner. 1989. “Mythinformation”. In Computers in the Human Context. Tom Forester, ed. pp. 82-96. Cambridge: MIT Press.

WIPO. 1997. Introduction to Intellectual Property Theory and Practice. London: Kluwer Law International.

J. A. Yelling. 1977. Common Field and Enclosure in England 1450-1850. London: Macmillan.


[i] This is reflected in book titles such as The Enclosure and Recovery of the Commons: Biodiversity, Indigenous Knowledge and Intellectual Property Rights (Shiva et al. 1997), or A Global Political Economy of Intellectual Property Rights: the new enclosures? (May 2000).

[ii] “… Luddism, the real Luddism, was not the cry of the empty gut against innovations which inexplicably (at least to the victims) threw people out of work. It was an answer from many ordinary working people to changes imposed from above which had repercussions on their whole way of life, notably through the ‘mobilisation’ of women’s and children’s labour in place of that of skilled men. Luddism was above all else an attempt by working people to exert some control over changes that were felt to be fundamentally against their interests and mode of life. It was a protest, in the days before the existence of any organised trade union movement, against new modes of accountancy, employment patterns, work rhythms, and industrial discipline” (Robins and Webster 1999:46).

[iv] Apologists of parliamentary enclosure almost invariably criticised “the commons”, “common rights” or “common property” as negatives. The privileged criterion was often the maximisation of utility, such that “[Enclosers] deplored the insubordination of commoners, the unimprovability of their pastures, and the brake on production represented by shared property” (Neeson 1993:7).

[v] In passing, most of the “collectively-owned resources” that Bollier mentions I might potentially identify as environments of enclosure, depending on the particulars of circumstance.

[vi] Bollier at one point suggests, without a shred of irony that: “The idea that human beings share a moral and civic inheritance that cannot be alienated, commodified, or sold is part of an American tradition that has its roots in the Declaration of Independence” (Bollier 2002b:16).

[vii] Nevertheless, resource management notions of “the commons” have provided a shining beacon for many people during anxious times, a clear focus for active and purposeful attitudes in the face of crisis. Visit reclaimthecommons.net, for example, and you will find “a movement of people who “want to teach and demonstrate sustainable, life-affirming alternatives to biotechnology and corporate power in general” (http://www.reclaimthecommons.net/article.php?list=type&type=6). The Global Commons Institute (gci.org.uk) declares that its mission is “to globally shrink and share future greenhouse gas emissions to avert dangerous rates of global climate change”. The Chaordic Commons (http://www.chaordic.org) seeks “to develop, disseminate and implement new concepts of organization that result in more equitable sharing of power and wealth, improved health, and greater compatability with the human spirit and biosphere”. The Caribou Commons Project (http://www.cariboucommons.com) is “an international effort to permanently protect the calving grounds of the Porcupine caribou herd, located in Alaska’s Artic National Wildlife Refuge.” The “Cultural Commons” project of the Center for Arts and Culture in Washington DC (http://www.culturalcommons.org), the title referring to a “think tank that seeks to inform and improve the decisions that affect our cultural life”.

[viii] Little wonder, then, that many of the “(information) commons” apologists characterize their ”commons” within victimizing frameworks, whereby a static, threatened, feminized pool of resources “(information) commons” is under threat from a dynamic, aggressive, masculinist process of enclosure. This, again, is a classic rhetorical position taken by people in favour of enclosure (and by colonizers ad empire builders, as it happens).

[ix] Sometimes “the (information) commons” is not enclosure; sometimes “the (information) commons” is the opposite of enclosure; sometimes “the (information) commons” works with enclosure; sometimes “the (information) commons” is enclosure.

[x] Enforcement of the property right of copyright can be exercised by other persons by licence or assignment (WIPO 1997:5). When the representatives of the Irish Music Rights Organisation identify that a premises requires an IMRO license the proprietor is approached, and asked to sign a standard public performance contract. The licence granted by IMRO permits the licensee “to perform copyright music from the IMRO repertoire on the premises, in return for paying royalties to IMRO according to the applicable tariff” (Lyons 1999:7). IMRO agents are granted a right of free entry, for monitoring purposes, to any premises which has been licensed.

Licensing constituted the primary activity of the Irish Music Rights Organisation during the period 1995-2000, for “the licensing of works is how collectives earn their money” (Sinacore-Guinn 1993:30). In 1999 licensing revenue for the Irish Music Rights Organisation came to IR£17,418,077. In 2000, the figure had risen to IR£19,457,780 (IMRO 2000:6). The performance royalty licensing rates vary greatly from premises to premises. They take account of the type and frequency of ‘performances’, the nature of the venue and other variable conditions. Royalties are paid annually and, in advance. This blanket licence[x] runs from year to year, until such time as the licence is cancelled. Most music users will not attempt to contact licensing collectives. Often they will only enter into a licensing agreement upon threat of litigation (Sinacore-Guinn 1993:36). As a result, collectives actively identify and pursue all potential music users:

It is an unfortunate fact of life that respect for the rights of creators is not the norm. A significant number of users avoid or even actively resist a collective’s efforts to control the use of its repertoire of works. It is up to the collective to assert its rights and the rights of its affiliated rights owners in a way that will cause compliance (Sinacore-Guinn 1993:39).

Strong-arm, coercive tactics, including litigation, are generally avoided, as they are costly and generate bad public relations. Nevertheless, licensing is the most debated and litigated area of collective administration worldwide (Sinacore-Guinn 1993). In 1993 the Irish Music Rights Organisation paid out more than IR£47,000 in legal expenses (Curran 1994). By 1999 IMRO’s legal, collection and professional fees came to IR£476,258, a rise from IR£413,453 the previous year. If someone refuses to pay for an IMRO licence when approached, then the organisation takes recourse to the Circuit Court. If a licensing agreement has been contracted but royalties are not paid, then the ‘music user’ is sued by the Irish Music Rights Organisation as a commercial debtor. The use of debt-collection agencies is standard practice for IMRO as the last attempt at resolution before more substantial coercion. The use of persuasion is preferable for the organisation, so significant efforts are made to convince users of the necessity for proper licensing. Often a performing rights society will undertake cultural activities, programs, and sponsorships in order to encourage the creation of new works, educate people as to the nature of creative rights, and garner support for those rights. The Irish Music Rights Organisation is very active in this regard. Such activities also perform the obvious functions of brand recognition and public relations.

[xi] According to the Irish Copyright and Related Rights Act, 2000, “copyright is a property right whereby, subject to this Act, the owner of the copyright in any work may undertake or authorise other persons in relation to that work to undertake certain acts in the State, being acts which are designated by this Act as acts restricted by copyright in a work of that description” (17.1). Copyright, then, is a set of prescriptions on the actions of others in relation to a “literary or artistic work” which control what can or cannot be done by other people in relation to that “work”. According to the Copyright and Related Rights Act, 2000 (4.37), the owner of a copyright has the exclusive right to undertake, or authorise others to undertake, all or any of the “acts restricted by copyright”. A person is understood to infringe the copyright in a work if they undertake or authorise another to undertake any of these acts without the licence of the copyright owner. The acts restricted by copyright are as follows:

(a) to copy the work;

(b) to make the work available to the public;

(c) to make an adaptation of the work or to undertake either (a) or (b) in relation to an adaptation.

The “performing right”, although not specifically mentioned in the Copyright and Related Rights Act, is generally understood to pertain to (b), making a work available to the public. If the act of copying is the first act which requires authorization, then the second is the act of public performance: “The right to control this act of public performance is of interest not only to the owners of copyright in works originally designed for public performance. It is of interest also to the owners of copyright, and to persons authorized by them, when others may wish to arrange the public performance of works originally intended to be used by being reproduced and published” (WIPO 1997:155). This ‘performance’ is often assumed (without much discussion) to be at least analogous to copying. This includes performing, showing or playing a copy of the work in public; broadcasting a copy of the work in public; including a copy of the work in a cable programme service; issuing copies of the work to the public; renting copies of the work; or, lending copies of the work without the payment of remuneration to the owner of the copyright in the work. Performing rights are statutory, that is, they exist solely and exclusively by virtue of the laws that create and recognize them (Sinacore-Guinn 1993:14).

[xii] A developed theoretical perspective on the commodifying and expansionary qualities of the process of enclosure did not exist, at least not exactly. What did exist were various sociological critiques of political processes that seem to affect us in our everyday lives. In developing the tone and colour of my own understanding of the concept of “enclosure” I drew on the spirit of Tönnies and his critique of gesellschaft, and on Marx’s critiques of objectification, alienation, and commodity relations. I kept in mind Lukács’ critiques of reification and totalization, and Simmel’s critique of the relational implications of abstraction and reification as found within works such as The Philosophy of Money (1978). I also drew upon the spirit of Weber’s extended critique of rationalization, and his typologies of authority, in particular his analyses of legal, institutional, and bureaucratic relationship structures (I am indebted here to the Weberian work of Raymond Murphy (1988) on ‘social closure’). I also consider this work to be resonant with much counter-enlightenment critique, among which I would include certain strands of postmodernisms, poststructuralisms, feminisms, critical theory and the Frankfurt School, and Holocaust Studies. I think it’s also hard to underestimate the influence of the spirit of Michel Foucault in the thinking outlined here. While in a general fashion Foucault’s work allowed me to consider that I never needed permission to think for myself, more particularly I find his work on disciplinary power provides me with a kindred critique.

[xiii] Understanding the characteristic features of enclosure in this way, I am as happy to identify practices of enclosure at work in Hitler’s Germany, an abusive relationship, a gambling casino, or the corporate logic of an organisation, as I am to identify them in the historical narratives of parliamentary enclosures in eighteenth-century England.

[xiv] I understand “disposition” as a consistency of relationship to uncertainty (for more on this see McCann 2003).

[xv] While acknowledging that there is a broad literature available concerning the notion of “discourse” (see, for example, Jaworski and Coupland, eds. 1999; Mills 2003), in simple terms, my approach to discursive analysis involves asking the following questions:

  • What do people, including myself, say and think about what happens?
  • What actually happens?
  • How might we increase the discrepancies between what we say happens and what actually happens, and thereby come to more misrepresentative renderings of our experience?
  • How might we reduce the discrepancies between what we say happens and what actually happens, and thereby come to less partial renderings of our experience?

[xvi] Following this line of thought has, of course, profound implications for the analysis and critique of many scientific methodologies that are still deployed in a classic Baconian or Newtonian mode, which are often explicitly founded on aspirations to the “elimination” of uncertainty and the drive towards the certitude of verifiable knowledge. Scholars such as John Dewey (1929), Richard Rorty (1979), Jane Flax (1992), Donald N. McCloskey (1994), Edward S. Reed (1996), and F. David Peat (2002), among others, have drawn attention to this “quest for certainty” insofar as it underpins the dominant trends of European and American philosophical thought.

[xvii] In my dissertation I present ‘framing’ as the coupling of these strategies (McCann 2003: Ch 9).

[xviii] It seems helpful to suggest that there might be degrees of commodification, depending on the circumstances. For example, the more formal, rigid, or rule-bound the situation in which you find yourself, the more commodifying the environment. Or, the more unquestioned and unchallengeable authorities, roles, positions, icons, or symbols in your experience, the more commodifying may be your environment.

All That Is Not Given Is Lost: Irish Traditional Music, Copyright, and Common Property

Ethnomusicology  2001, Vol. 45, No. 1

Irish music in a traditional idiom finds itself in the best of times and the worst of times. On the one hand Irish traditional music has become a global phenomenon, lending its symbolic and commercial weight, replete with what Irish cultural historian Luke Gibbons calls, “the communal Prozac of the heritage industry” (1996:172), to anything from Riverdance™ to Xena,™ Warrior Princess and its ethereal glances of uilleann pipe inciden­tals. Commercially speaking, the music has never been as popular, a boon for those determined to make a living playing the music that they live by. On the other hand we find that the embedded cultural practices and val­ues that have supported the transmission and life of the music are being threatened as a result of the very embeddedness, their being taken for grant­ed, that has guaranteed their lack of articulation thus far.

The aim of this paper is twofold. Firstly, I feel it necessary to clarify the nature of the social relationships that are inextricably bound up with Irish traditional musical practice, in partial answer to Luke Gibbons’ com­ment that, “though much valuable work has been done on Irish society from the point of view of economic development, political mobilization, and administrative structures, very little has focused on culture as a set of ma­terial practices informing and constituting the social environment” (1996:10). To do this, I shall address issues of gift and commodity, ultimately concluding that grass‑roots Irish traditional music transmission rests upon an as‑yet‑unarticulated system of gift or sharing. And secondly, I believe that it is crucial that we clarify the power relations and the dynamic processes that frame those social relationships. For this purpose, I shall use certain aspects of Common Property Theory, still a very young field, with a view to highlighting the actors and signposting directions. As Michael Goldman has written,

“The commons‑a material and symbolic reality, always changing, never purely local or global, traditional or modern, and always reflect­ing the vibrant colors of its ecological, political, cultural, scientific and social character‑is not at all disappearing into the dustbin of history. To the contrary, we find that the commons are increasingly becoming a site for robust and tangible struggles . . .” (1998:14).

At the UNESCO/WIPO World Forum on the Protection of Folklore in Phuket, Thailand (April 1997), it was admitted that: “The participants were of the view that at present there is no international standard of protection for folklore and that the copyright regime is not adequate to ensure such protection” (WIPO 1997). As has been elaborated in a number of sources (McCann 1998; Mills 1996; Seeger 1996; Weiner 1987), the musical prac­tices that support traditional music transmission abide by models of creativ­ity, collaboration, and participation that together add up to the antithesis of the text‑based, individualist, and essentially capitalist nature of intellec­tual property regimes. All problems relating to copyright and neighboring rights in traditional musics can ultimately be traced back to these issues. Hence the need to develop a sui generis system of protection for traditional culture and traditional musical expression, one that grows from the nature of traditional systems as they are, rather than one imposed on them as the way they should be. The challenge we face is to attempt to reconcile these two apparently irreconcilable world views in practical terms.

The Irish Context

The last three years have seen a growing but notoriously vague aware­ness in the Irish traditional music scene of a conflict of interest that involves publicans, amateur practitioners of traditional music and song, and the performance royalties collection agency, the Irish Music Rights Organiza­tion (IMRO). This growing awareness has led to a national newspaper arti­cle proclaiming “Save the Session” (Vallely 1997). At the same time, there has arisen a public debate clouded in ambiguity and a lack of direction due to a lack of a shared lexicon or conceptual consensus and the complica­tions of the philosophical basis of copyright legislation.

A very small percentage of traditional musicians are members of the Irish Music Rights Organization (IMRO). IMRO claims the right to police traditional compositions despite being originally formed to serve the needs of commercial songwriters. IMRO claims that it only has the best interests of musicians at heart, and within its own circle of logic this is undoubted­ly true. IMRO was formed to champion the cause of commercial compos­ers and songwriters, and feels duty‑bound to extend its reach on the assump­tion that all musical practice is commodity exchange, an assumption founded on the epistemologies of neo‑classical economics.1 To diffuse grow­ing hostility among traditional musicians, and in the shadow of a develop­ing Copyright Bill in the Irish parliament, IMRO recently signed an agreement (1999)2 with the largest voluntary music body in Irish traditional music, Comhaltas Ceoltóiri Éireann, both parties claiming, as a result of the agreement, that the “copyright‑free status of traditional music” has been secured. This does not, however, mean that the fundamental philosophi­cal issues at the heart of the conflict have been resolved, and they will most likely surface again in another form.

As Irish traditional music has increasingly entered the commercial are­na, collectors of traditional songs and tunes, and performers of traditional tunes3 are personally claiming copyright on works presumed to be in the “public domain,”4 Increasingly, however, many new compositions in tra­ditional idioms are assumed to be in the “public domain,” even though the composers can often be sourced, and many of whom are still alive. Usual­ly this is the result of laziness or an unwillingness to source the tune or song. The reluctance of traditional composers to copyright their tunes, thus leav­ing their work vulnerable to piracy, stems from a complex web of social relationships, and a recognition of a “tradition” that incorporates past, present and future generations, and is often simply a case of offering a tune up to the possibility of future anonymity.

A recent study by Carlos Salazar entitled A Sentimental Economy: Commodity and Community in Rural Ireland (1996) states, “We have seen that the farming communities of the west of Ireland are deeply inte­grated into the world market economy, and they undoubtedly participate in the individualistic and profit‑maximizing ethos that characterizes all cap­italist societies, but they still have a substantial sphere of noncommodity transactions” (1996:126). I would argue in no uncertain terms that the same can be said of Irish traditional music and the musicians that practice it. I would go further to suggest that the noncommodity aspect of Irish musi­cal practice, with both its amateur and participatory aspects, is the lifeblood, the “cultural glue” that holds the whole system together.

The Session

Undoubtedly the most popular form of Irish traditional musical activi­ty in public places5 is the “session.”6 Involving at least three people who play jigs, reels, hornpipes, planxties, and so on in heterophonic union, with the odd solo thrown in, this musical practice takes place for the most part in pubs,7 a typical “third space,”8 the site of an obvious cultural lubricant, and also in houses, although those gatherings have more the character of private parties. It has become an extremely widespread phenomenon, al­lowing at best (deliberate moral overtones) the shepherded involvement of younger or less experienced players by older and respected musicians, and is the site of most musical transmission.9 It is the site of focus for a complex system of codes and etiquettes,10 humiliations and value reinforce­ments that are distilled from the wider context of the Irish traditional scene. Many musicians involved in sessions are also professionals,11 many of them full‑time, a number of them most likely members of IMRO, but once embraced by the aura of the session, the hierarchies are of a “traditional” not a commercial nature. As is evident by the paraphrasing below, a por­tion of C. A. Gregory’s analysis of Papua New Guinea is equally applicable to a discussion of the session:

The gift economy of [the Irish instrumental session] has not been destroyed by [commercialism] but has effloresced. The labor‑time devoted to the produc­tion and exchange of things as gifts has risen rather than fallen, a change that has occurred simultaneously with the introduction of [paid sessions, commer­cial recording, and regular concert opportunities]. To understand this process, it is necessary to abandon the concept of dualism which classifies this part of the economy (e.g. urban sector) as “modern,” and that part (e.g. rural sector) as “traditional.” The fact of the matter is that the whole economy is “modern.” The gift exchange practiced in [Irish instrumental session culture] is not a pre­colonial relic but a contemporary response to contemporary conditions …. Economic activity is not a natural form of activity. It is a social act and its meaning must be understood with reference to the social relationships between people in historically specific settings. The essence of the [Irish musical] econ­omy today is ambiguity. A [tune] is now a gift, now a commodity, depending upon the social context of the transaction …. It is because of this ambiguity that the concept of dualism, with its clearly defined traditional sector, must be abandoned. (1982:115)

One of the top traditional musicians in the commercial scene has com­mented to me that there is no greater thrill than hearing one of her own tunes at a session with no‑one knowing who composed it (personal inter­view, 1997). Authorship takes a back seat as a designation of respect and cultural .capital rather than ownership. As another celebrated performer commented to me: “I mean, like, nobody owns the stuff. You can’t own this stuff’ (personal interview, 1999). But “the tune”12 in this situation has been placed in that site of ambiguity mentioned above. For IMRO the tune undoubtedly walks, talks and quacks like a commodity. For the musicians engaged in the session the tune cannot be separated out from the social and historical context of the non‑commodified musical moment, in a pro­cess of forging and acts of personal courage, where “Talent is tested. The self is risked and accomplished. Human power is restrained and focused to make the self a gift to the other, the past a gift to the future. Past and present, internal and external collapse into union” (Glassie 1995:146). There is also the widespread practice, as Gregory has identified in general terms, of de‑commodification, of tunes having been written as commercial, com­modified money‑making “works” with the cow‑bell of copyright draped around their neck, only to be transformed in the context of the session into gifts to be distributed freely among musicians in a context of tradition and community.13

The session conforms readily to the idea of a “gift cycle”: “In a gift cycle the gift is given without contract or agreement about return. And yet it does return; a circulation is set up and can be counted upon”(Hyde 1983:114). The gift is the risk of self, the tunes, the songs, the chat, the shared expe­rience, the history of personal endeavor. As another musician commented: “The music doesn’t belong to anybody, so if somebody’s trying to learn it and you can help them, it’s not yours, so it’s not like you can hold back, because it’s not yours anyway. There have been people who have come to the sessions who have been rude, and I’ve had differences with them. But if somebody is sincere and it seems like they’re trying to tap into the spirit of the music then you have to stretch your hand out to them” (per­sonal interview, 1998).14

Intellectual Property and Commodification

At this stage in history it is almost impossible to separate intellectual property from its role as an instrument of commodification within capital­ist systems (Bettig 1996). In fact, the development of capitalism and intel­lectual property have been concurrent (Rose 1993, Woodmansee and Jas­zi 1994). The appearance in the eighteenth century of things of the mind as transferable articles of property matured simultaneously with the capi­talist system (Jaszi 1992). It could be argued that the application of intel­lectual property in any circumstance assumes the a priori application of capitalism, where the production and distribution of goods depend on in­vested private cultural capital and profit‑making. If this is the case, then unlimited participation in a capitalist system, which seeks by its nature the furthermost penetration of the market, and the unbounded acceptance of intellectual property as a legal solution, impose an unnecessarily individu­alist vision. Ecologist Vandana Shiva has written:

The first restriction of Intellectual Property Rights is the shift from common rights to private rights. This excludes all kinds of knowledge, ideas, and inno­vations that take place in the “intellectual commons” . . . The second restric­tion of Intellectual Property Rights is that they are recognized only when knowl­edge and innovation generate profits, not when they meet social needs …. This immediately excludes all sectors that produce and innovate outside the indus­trial mode of organization of production. Profits and capital accumulation are recognized as the only ends to which creativity should be put. (1993:115)

Recognition that intellectual property is not going to go away15 makes it tempting to just accept that intellectual property is the lesser evil. But unchanged application of intellectual property rights carries profound implications, as Stephen Gudeman rightly points out:

In my view, the use of intellectual property rights on an international scale to compensate nonmarket economies not only raises problematic issues but pre­sents a paradox. Some people would use the legal and monetary entitlements afforded by intellectual property rights to protect and foster the local knowl­edge and innovations of a folk in order to secure global equity and help them preserve community identity. But if intellectual property rights is a property and component of Western capitalism, then abetting its acceptance elsewhere must lead to economic transformation or adoption of the market form ex­actly among those people whom it is said to protect. (1996:104)

Common Property Studies

In The Ecologist magazine of July/August 1992 (Goldsmith et al. 1992), one reads:

Despite its ubiquity, the commons is hard to define. It provides sustenance, security and independence, yet (in what many Westerners feel to be a para­dox) typically does not produce commodities …. Systems of common rights, far from evolving in isolation, often owe their very existence to interaction and struggle between communities and the outside world. It is arguably only in reaction to invasion, dispossession or other threats to accustomed security of access that the concept of common rights emerges.

I have found it useful, in assessing traditional music as it intersects with issues of intellectual property, to turn to Common Property16 Studies. It is widely believed, though not entirely true, that Common Property Studies has primarily developed in response to the 1968 publication of Garrett Har­din’s article, “The Tragedy of the Commons,” which described the collapse of an unmanaged commons comprised of self‑interested individuals. This literature17 generally distinguishes four property regimes: open access, common property resources, private property, and state property. The two that most concern us here are open access and common property. “Open access is the absence of well‑defined property rights. Access to the resource is unregulated and is free and open to everyone” (Feeny et al. 1998:79).18 Common Property Resources (CPRs) fulfill two criteria. The first is that of non‑excludability, which is well‑illustrated in Douglas Noonan’s example of the Internet, where “excluding users from the Internet is technically impossible or prohibitively expensive” (1998:189). We have only to think of Mark Slobin’s comment that, “A music can suddenly move beyond all its natural boundaries and take on a new existence, as if it has fallen into the fourth dimension” (1993:20).19 The second criterion is that of subtractabil­ity or rivalrous consumption, “the source of the potential divergence between individual and collective rationality” where “each user is capable of subtracting from the welfare of other users” (Feeny et al. 1998:78).20 As Noonan describes it in relation to the Internet, “Too many users can over­load different links in the network chain, reducing the value of other trans­missions congested at that point” (1998:189). Musically speaking we have a number of areas for comparison here.

Firstly, there is the question of musical sound acting in support of a particular value system, within a particular value system. To what extent is the actual musical sound bound up with the values of the community from which it comes? To what extent do the “participatory discrepancies” (Keil and Feld 1994) or the “fuzzy edges” disclose a sonically ordered world­view? The further the music moves from its origin, the less likely that these “extras” will be passed on in transmission. Does it matter? I believe it does.

Secondly, modifying Sahlins’ concept of “kinship distance (1972), the further that music moves from its register of origin, the more likely, it seems, it is to be commodified. This has certainly happened in Irish traditional music, something which certainly changes, if not radically reduces the social value of the music. The question of individuals copyrighting tunes that have been held in common for time immemorial is another site for rivalrous consumption. As Bish writes, “the existence of valuable unowned resources provides an incentive for individuals to try to capture the resource before other potential users can do so”(1998:66). It will be interesting, in further research, to see to what extent Irish traditional music fits the criteria for CPRs,21 and to what extent common property theory can be enriched by studies of traditional transmission.

Where Common Property theory is most useful in the context of copy­right and traditional music is in the identification of the process of “enclo­sure.” We have already seen how a central element of Irish traditional mu­sic is based on an idea of gift, which supports what could be seen as a characteristically non‑commodified common property resource. It would not be too difficult to then see the commodifying processes of neo‑classical eco­nomics, commercialism in music, and of the conceptually‑bound and con­ceptually‑driven agency of the Irish Music Rights Organization as an exam­ple of enclosure in a musical context. In The Ecologist we read, “Enclosure cordons off those aspects of the environment that are deemed “useful” to the encloser . . . . Instead of being a source of multiple benefits, the environ­ment becomes a one‑dimensional asset to be exploited for a single purpose­that purpose reflecting the interests of the encloser, and the priorities of the wider political economy in which the encloser operates” (Goldsmith et al. 1992). Music becomes product, musician becomes producer in the capital­ist process of commodity production.22 Again, Goldsmith at al. write:

Enclosure claims that its own social frame, its language, is a universal norm, an all‑embracing matrix which can assimilate all others. Whatever may be “lost in translation” is supposedly insignificant, undeveloped or inferior to what is gained …. Because they hold themselves to be speaking a universal language, the modern enclosers who work for development agencies and governments feel no qualms in presuming to speak for the enclosed. They assume reflex­ively that they understand their predicament as well as or better than the en­closed do themselves. It is this tacit assumption that legitimizes enclosure in the encloser’s mind‑and it is an assumption that cannot be countered simply by transferring the visible trappings of power from one group to another.

So what are some of the lessons that can be learned from interpreting the practices of Irish traditional music as a common property resource? The threat of the “Tragedy of the (unmanaged) Commons” is undoubtedly a real one. What warning signs are there? John Baden has written that,

Tragedy strikes when self‑interest and social interest diverge . . . a common‑pool resource is a resource for which there are multiple owners (or a number of people who have nonexclusive rights to use the resource) and where one or a set of users can have adverse effects upon the interests of other users. In the situation where there is no agency with the power to coordinate or to ration use, action which is individually rational can be collectively disastrous. This is the central point of the “tragedy of the commons.” (1998:51‑52)

Need we be mindful of the commercially motivated actions of profes­sional Irish “traditional” musicians and the potentially harmful effects of their activity in a time of “communal Prozac”? What Noonan has written of the Internet strikes a number of pertinent echoes when applied to tra­ditional music in an Irish context,

. . . for the Internet to continue creating new value, it must remain robust and functional‑and not fall victim to its commons status. Up to now, the pressures on the Internet infrastructure have been relatively light, but the staggering growth in use leads‑to justifiable concern about “managing the commons.” The Inter­net currently has ingredients for tragedy: open access, rivalrous use, and rising value and decreasing costs of access to users. Limiting access to the Internet is highly problematic because of its abstract, global nature, and open access is in­tegral to the Internet’s character. Infinitesimal marginal costs of use make me­tering use difficult; charging access fees, for instance, is often more costly than the access itself. If nothing changes, some might reasonably expect the Internet to eventually crash …. Avoiding this requires addressing problems of overuse (appropriation) and undermaintenance (provision).” (Noonan 1998:190)

All That Is Not Given Is Lost

The Common Property paradigm clearly enunciates some of the pres­sures that are being brought to bear on the continued practice of Irish
tra­ditional music in its amateur and non‑commodified forms. It also invites us to properly address the underlying complexities in those areas where Slobin’s (1983) “subcultures,” “intercultures,” and “supercultures” intersect, challenging us to dispense with false dualisms:

Our studies . . . do not present themselves as essentially anti‑modern or solely dependent on either private property or community‑controlled commons for their survival. They demand that their worlds be recognized as situated with­in multiple (albeit contradictory) linkages that can be empowering while also running the risk of being exploitative. (Goldman 1998:13)

If the continued commodification of Irish traditional music is allowed to go unchecked, or is even allowed the force of law through the imposition of intellectual property and neighboring rights upon amateur and inherently non‑commodified musicking contexts, then a very precious, and ultimate­ly humanizing domain of gift will be diminished. One of the reasons that processes such as these have gone without opposition or even without clarification for so long is that the value systems are deeply embedded in cultural practice (Bourdieu 1977; Foucault 1990, 1995): “These communi­ties are ruled by a set of rights and obligations that do not have to be ex­plicitly manifest in each particular interaction, since they are taken for grant­ed” (Salazar 1996:151). Silence against political processes that are in no way benign invites dehumanization and suppresses individual responsibility to past, present and future. As Glassie writes, “Silence is not harmless. It brings disengagement. As surely as the evil tongue, silence threatens the destruc­tion of the self and the community” (Glassie 1995:35). This is a question of music as community, community as music, the consolidation of person­al participation. In Glassie’s words, “True communities are built not of dewy affection or ideological purity but of engagement” (Glassie 1995:282).

So, where to from here? Michael Goldman outlines the pessimistic view in Common Property Studies,

On the one hand, we know that capitalism can’t stop. It is a kind of malignan­cy which will keep on devouring new resources even as it undermines the very body . . . upon which it depends. Codes of conduct and voluntary restraint are laughably (or lamentably) inadequate to protect common property resources from capitalist confiscation, because that appropriation allows the cancer to spread for a while longer. This is why the stakes keep rising and the subject of the commons, whether in its local or global form, is now so hotly debated. (Goldman 1998:xiv)

The contexts for musical practice that are untouched by the hand of either competitions, tourism‑oriented showcases, or commercial perfor­mance are becoming few in number. We can seek to re‑evaluate the role of intellectual property as it impacts on Irish traditional music by coming to an understanding, in future work, of what I identify as the “Cultural Commons,” in an attempt to wrest our approaches away from the goods­-based, economic analysis that has until now dominated CPR literature.

We need to be careful not to prescribe cultural activity. We need to assert the contemporary validity of traditional practices as a contemporary response to contemporary conditions. In the words of sociologist Craig Jackson Calhoun, “I shall ask that we go still further beyond the Enlighten­ment’s historicist opposition of tradition to modernity and see tradition as grounded less in the historical past than in everyday social, practice” (1983:888). We need to carefully examine the registers of social interac­tion within which traditional practices occur, for it is here that the keys to transmission will be found. We need to explore the effect of gift, and the effect on gift of market relations. We need to be aware of the human di­mension of intellectual property application, the human dimension of in­dividualist possessiveness, the distancing effects of increasing profession­alization, the drive to convert folklore into spectacle, the change that all of these effect upon relationships, upon community, and ultimately upon the transmission process:

. . . a circulation of gift nourishes those parts of our spirit that are not entirely personal, parts that derive from nature, the group, the race, or the gods. Fur­thermore, although these wider spirits are a part of us, they are not “ours”; they are endowments bestowed upon us. To feed them by giving away the increase they have brought us is to accept that our participation in them brings with it an obligation to preserve their vitality. When, on the other hand, we reverse the direction of the increase‑when we profit on exchange or convert “one man’s gift to another man’s capital”‑we nourish that part of our being (or our group) which is distinct and separate from others. Negative reciprocity strengthens the spirits‑constructive or destructive‑of individualism and clan­nishness. (Hyde 1983:38)

It is crucial that the legal system, informed by consultative scholarship, recognizes the wealth, the breadth, and, most importantly, the social na­ture of traditional musics and transmission, and that it invites a fair, accu­rate, and proportioned representation of the music and its cultural context. The challenge is to effect a paradigm shift from the dominant folklore‑as­materials to folklore‑as‑practice. The challenge is to find ways to support traditional practices, by legal means, in education and in community action. To quote Calhoun,

During times when the existing order seems deeply threatened. . . such com­munities may find that they can be traditional only by being radical. (Calhoun 1983:911) 

Notes

1. Copyright is the foundation upon which the Music Business rests (Frith, ed. 1993).

2. See the press release at http://www.imro.ie/Old News/1999/comh.html.
Also http://www.imro.ie/Old_News/1999/Comhaltas2.htm1.

3. At the present time in Ireland a musician is allowed to garner 100% performance or mechanical royalties for the fixation of an “arrangement” of a traditional tune. However, there is no definition available that clarifies exactly what a “traditional” tune is. Most people assume that traditional means that the tune was composed by someone, but that no one knows who, that it is an anonymous composition. This equating of “anonymous” with “traditional” is the position of the Irish Music Rights Organization. Many people, assuming that traditional is a marker of genre, think that anything that sounds “traditional” is therefore anonymous and that they can get full royalties.

4. “Public domain” is a concept that stems from the construction of copyright, and is that space that is left over after all else has been parsed out. Anything that is not in copyright is regarded as “public domain,” effectively infinity minus copyright. However, “public domain” is synonymous with uninhibited exploitation of the music or song, and it reinforces the anon­ymous/authored dichotomy. Not only is a piece that sounds traditional often assumed to be of unknown origin, but it is therefore assumed to be open to all for free and unbridled ex­ploitation. In musical practice ‘public domain’ is inadequate, logically enough, as copyright, the foil of “public domain,” has also proved so. In real terms, traditional Irish musical prac­tice has not been open access, bounded as it is by customary norms that regulate and control the entry requirements for community participation, the repertoire content, and the internal hierarchical dynamics, among other things. Participation in the resource‑as‑community is earned by personal face‑to‑face investment of time and self in negotiation with others. For a further discussion of “public domain” see Litman (1990), Frow (1997), and Boyle (1996).

5. “In effect, public spaces help provide the glue for genuine community. Not only do they provide a form of refuge for community members and link them together in informal, relaxed settings, but the public spaces, if carefully situated, physically and symbolically link people together. When public spaces function effectively, they overlap and reinforce the patterns of interaction that occur in the broader community and help define community boundaries”(Freie 1998:59).

6. See Fairbairn (1993).

7. See Malcolm (1998).

8. “Third Spaces, as discussed by Oldenburg (1989), are simply the informal gathering places for people beyond the family and work. They include cafes, pubs, corner stores, pool halls, coffee shops, barbershops, parks, and other hangouts. They are oriented primarily for conversation and free play. They have been typically modest, inexpensive and small, where people met spontaneously to entertain each other without hidden agendas or clearly defined purposes” (Freie 1998:50).

9. The following description of musical practice from Green and Pickering’s article “The Cartography of the Vernacular Milieu” (1987) could easily have been written about the “ses­sion”; . . . performance occurs in small groups and . . . is rooted in shared, immediate, ev­eryday experience. Within the group it can be said that ‘all members know each other, are aware of their common membership, share the same values, have a certain structure of rela­tionships that is stable over time, and interact to achieve some purpose.’ Members of such groups today are of course more articulated and orientated to other external social and cul­tural frameworks of reference than ever before, and this must not be forgotten. Conversely, the decline of the family and community in social life has augmented the value of their sym­bolic celebration. So far as the group’s own dynamics are concerned, the cultural and aes­thetic mode we are discussing differs from mass communication in the following major ways. It is generally two‑way and participatory; it is usually confined to amateur performance, and where professionalism is involved it is generally at a low economic level; it is situation‑specific and contextually local as a communicative event and process, and therefore its impact is only on those involved who at the time of the event . . . bear a low relation to industrial and busi­ness structures; it involves little technological equipment and little division of labor; and as we have already indicated, it gives very low priority to the extraction of surplus value from the labor of its performance. That labor is unproductive in terms of market structures and relations, and thus holds a valid potentiality, at least, of subverting or reversing the alienation of the commodity form” (4).

10. “It’s a painfully familiar scenario: newly returned from one of the music’s distant hot spots, afire with enthusiasm over the brilliant playing you heard there, you make your way to your local session venue on the usual night, determined to give the listeners a serenading they won’t soon forget. But how quickly your mood changes! Within the first ten minutes it be­comes clear that something is amiss. Is it the quality of the playing? Possibly. But that’s only part of the problem. The rest lies in the nature of the session itself. It’s not flowing, it’s not breathing, it has no inner logic or natural momentum. It isn’t bringing out the best in the musicians, nor is it particularly pleasing the listeners.

“This is the moment when you realize that the seeming offhandedness and impromptu grace of a good session are no accident, and that a sense of how to conduct one‑and how to conduct yourself at one‑is not something you’re born with after all, your Irish surname notwithstanding. The fact is, these things must be learned, either by example or by outright instruction”(Foy 1999:10).

11. For a brief discussion of the ambiguities thrown up by professional and amateur sta­tus see Ruth Finnegan (1989).

12. A “tune” here is to be seen as a “complex of features,” a term more commonly used to speak of words, as composite representations of five classes of information: graphic, pho­nological, orthographic, semantic, and syntactic (Gibson and Levin 1975:194). Within the tune, and the word, I would also identify social context and self‑knowledge as feature‑variables, among many others.

13. In fact, to talk of the domain of gift in the context of the writings of Mauss, Sahlins, Strathern, and many more, is to assume the presence of reciprocation. I am attracted, how­ever, in the Irish context, to an article by social anthropologist James Woodburn entitled, “‘Sharing is not a form of exchange’: an analysis of property‑sharing in immediate return hunter­gatherer societies” (1998). In this article Woodburn outlines the sharing practices of the Hadza, which can be transposed fairly successfully into the Irish context. Sharing, as John Price has written, is “the most universal form of human economic behaviour, distinct from and more fundamental than reciprocity” (Cited in Woodburn 1998:50). For Woodburn,

[T]o treat this type of sharing as a form of exchange or reciprocity seriously distorts our understanding of what is going on …. My argument is that to treat such sharing as a form of exchange or reciprocity is inappropriate when donation is obligatory and is discon­nected from the right to receive. To describe such sharing as exchange or reciprocity does not accord with local ideology or local practice among the Hadza and most other hunter-gathering societies with immediate return systems. (1998:50)

Although space does not allow me to elaborate on this point, I hold that the Irish context of musical transmission works very much along the lines of “sharing” as opposed to “reciproca­tion.” An indepth analysis of the ceiling practices in Glassie (1995) would bear this out.

“Sharing here is, as we have seen, not a form of exchange. We must correct our models. Some societies operate with both ideologies and practices which repudiate reciproca­tion. It makes no sense to construct analyses of human social life which are based implicitly or explicitly on the notion of a universal necessity to reciprocate. Of course in day-to-day interaction Hadza do at times reciprocate. They show affection to those who show affection to them. They help those who help them. They are friendly to those who are friendly to them. But in their use of food and of other property, the expected be­havior is nonreciprocal sharing.” (Woodburn 1998: 61)

14. It is also a context that fits into Appadurai’s description of a “tournament of value”: “Tournaments of value are complex periodic events that are removed in some culturally well-defined way from the routines of economic life. Participation in them is likely to be both a privilege of those in power and an instrument of status contests between them. The cur­rency of such tournaments is also likely to be set apart through well-understood cultural dia­critics. Finally, what is at issue in such tournaments is not just status, rank, fame, or reputation of actors, but the disposition of the central tokens of value in the society in question. Finally, though such tournaments of value occur in special times and places, their forms and outcomes are always consequential for the more mundane realities of power and value in ordinary life” (Appadurai 1988:21).

15. “The institution of copyright is of course deeply rooted in our economic system and much of our economy does in turn depend on intellectual property. But, no less important, copyright is deeply rooted in our conception of ourselves as individuals with at least a mod­est grade of singularity, some degree of personality. And it is associated with our sense of privacy and our conviction, at least in theory, that it is essential to limit the power of the state. We are not ready, I think, to give up the sense of who we are” (Rose 1994:142).

16. In dealing with the concept of property I would follow C. M. Hann in saying that, “I argue that the focus on property must not be restricted to the formal legal codes which play a major role in our own society, but must be broadened to include the institutional and cul­tural contexts within which such codes operate. The concept of property has greater salience in capitalist society, but it can never be disembedded from these contexts. There is no anach­ronism in studying property relations in other forms of society where the economic and le­gal systems are very different. If we adopt a broad analytic concept of property in terms of the distribution of social entitlements, then it can be investigated anywhere in time and space” (Hann 1998:7).

17. “For the most part the conceptual analysis of the commons (also described as com­mon property resources, common pool resources and CPRs) has concentrated on the univer­sal principles, conditions or rules that characterise successful regimes and institutions (Ostrom 1990; Bromley 1993; Wade 1987; McGinnis and Ostrom 1993). In the process the analysis has largely circumvented the implications of internal differentiation or asymmetry including the plurality of beliefs, norms and interests involved in interactions between resource users, the effects of complex variations in culture and society, as well as wider aspects of social, polit­ical and economic conflict relating to the commons”(Prakash 1998:168). The vast majority of the literature in this field can be accessed via the International Association for the Study of Common Property, based at the Workshop in Political Theory and Policy Analysis at Indiana University, http://www.indiana.edu/‑iascp. I am grateful to participants of the workshop for their assistance in this work.

18. Already we can see that the description of an open access system pretty much con­forms to the general understanding of the free-for-all concept that embraces the public domain. As has been stated in the literature on the commons, “Many of the misunderstandings found in the literature may be traced to the assumption that common property is the same as open access” (Feeny et al. 1998:79).

19. I would like to make it clear at this point that for me the resource in question may not be “tunes” or “musical works” but the musicking, the amateur, non-commodified musical practice. Speaking of music in terms of a “resource” at all may not be appropriate.

20. “Hence, we define common-property resources as a class of resources for which exclusion is difficult and joint use involves subtractabillty” (Berkes et al. 1989:91).

21. It has been suggested to me that Public Goods might be a better model to use for these purposes.

22. Interestingly, C. A. Gregory (1982) comments that Political Economy, and not neo­classical Economics, is the only field in which we can properly analyze concepts of Gift and Commodity, while Jacques Attali (1985) comments that Political Economy is inadequate when dealing with music.

References and Other Relevant Bibliography

Appadurai, Arjun, ed. 1988. The Social Life of Things: Commodities in Cultural Perspective. Cambridge: Cambridge University Press.

Arensberg, Conrad M., and Solon T. Kimball. 1968. Family and Community in Ireland. Cam­bridge, MA: Harvard University Press.

Attali, Jacques. 1985. Noise: The Political Economy of Music. Minneapolis and London: Uni­versity of Minnesota Press.

Baden, John A. 1998. “A New Primer for the Management of Common Pool Resources and Public Goods.” In Managing the Commons, edited by John A. Baden and Douglas S. Noonan, 51‑62. Bloomington: Indiana University Press.

Baden, John A., and Douglas S. Noonan, eds. 1998. Managing the Commons. Bloomington: Indiana University Press.

Bettig, Ronald V. 1996. Copyrighting Culture: The Political Economy of Intellectual Proper­ty. Boulder, CO: Westview Press.

Bish, Robert L. 1998. “Environmental Resource Management: Public or Private?” In Manag­ing the Commons, edited by John A. Baden and Douglas S. Noonan, 65‑75. Blooming­ton: Indiana University Press.

Blaukopf, Kurt. 1990. “Legal Policies for the Safeguarding of Traditional Music: Are They Uto­pian?” The World of Music 32(1):125‑33.

Boyle, James. 1996. Shamans, Software, and Spleens: Law and the Construction of the In­formation Society. Cambridge, MA: Harvard University Press.
. 1997. “A Sense of Belonging.” Times Literary Supplement, July 4.

Bourdieu, Pierre. 1977. Outline of a Theory of Practice. Cambridge: Cambridge University Press.

Brush, Stephen B. 1996. “Is Common Heritage Outmoded?” In Valuing Local Knowledge: Indigenous People and Intellectual Property Rights, edited by Stephen B. Brush and Doreen Stabinsky, 143‑64. Washington, D.C.: Island Press.

Calhoun, Craig Jackson. 1983. “The Radicalism of Tradition: Community Strength or Venera­ble Disguise and Borrowed Language?”American Journal of Sociology 88(5):886‑914.

Carrier, James G. 1998. “Property and Social Relations in Melanesian Anthropology.” In Prop­erty Relations: Renewing the Anthropological Tradition, edited by C. M. Hann, 85‑103. Cambridge: Cambridge University Press.

Chused, Richard, ed. 1998. A Copyright Anthology: The Technology Frontier. Cincinnati, OH: Anderson Publishing.

Collins, John. 1993. “The Problem of Oral Copyright: The Case of Ghana.” In Music and Copyright, edited by Simon Frith, 146‑58. Edinburgh: Edinburgh University Press.

Coombe, Rosemary J. 1998. The Cultural Life of Intellectual Properties: Authorship, Appro­priation, and the Law. Durham and London: Duke University Press.

Fabbri, Franco. 1993. “Copyright: The Dark Side of the Music Business.” In Music and Copy­right, edited by Simon Frith, 159‑63. Edinburgh: Edinburgh University Press.

Fairbairn, Hazel. 1993. Group Playing in Traditional Irish Music: Interaction and Hetero­phony in the Session. Ph.D. dissertation, University of Cambridge.

Feeny, David, Fikret Berkes, Bonnie J. McKay, and James M. Acheson. 1998. “The Tragedy of the Commons: Twenty‑Two Years Later.” In Managing the Commons, edited by John A. Baden and Douglas S. Noonan, 76‑94. Bloomington: Indiana University Press.

Finnegan, Ruth. 1989. The Hidden Musicians: Music‑making in an English Town. Cambridge: Cambridge University Press.

Flitner, Michael. 1998. “Biodiversity: Of Local Commons and Global Commodities.” In Priva­tizing Nature: Political Struggles for the Global Commons, edited by Michael Goldman, 144‑66. London: Pluto Press.

Foucault, Michel. 1990. The History of Sexuality: An Introduction. New York: Vintage Books.
. 1995. Discipline and Punish: The Birth of the Prison. New York: Vintage Books.

Foy, Barry. 1999. Field Guide to the Irish Traditional Session: A Guide to Enjoying Irish Traditional Music in its Natural Habitat. Niwot, CO: Roberts Rineharts.

Freie, John F. 1998. Counterfeit Community: The Exploitation of Our Longings for Connect­edness. New York and Oxford: Rowman and Littlefield.

Frith, Simon, ed. 1993a. Music and Copyright. Edinburgh: Edinburgh University Press.
. 1993b. “Music and Morality.” In Music and Copyright, edited by Simon Frith, 1‑21. Edinburgh: Edinburgh University Press.

Frow, John. 1997. Time and Commodity Culture: Essays in Cultural Theory and Postmo­dernity. Oxford: Clarendon Press.

Gibbons, Luke. 1996. Transformations in Irish Culture. Critical Conditions: Field Day Essays and Monographs, edited by Seamus Deane. Cork: Cork University Press.

Gibson, Eleanor J., and Harry Levin. 1975. The Psychology of Reading. Cambridge, Massachu­setts: MIT Press.

Glassie, Henry. 1995. Passing the Time in Ballymenone. Bloomington: Indiana University Press.

Goehr, Lydia. 1992. The Imaginary Museum of Musical Works. Oxford: Oxford University Press.

Goldman, Michael, ed. 1998. Privatizing Nature: Political Struggles for the Global Commons, Transnational Institute Series. London: Pluto Press in association with Transnational In­stitute (TNI).

Goldsmith, Edward, Nicholas Hildyard, Peter Bunyard, and Patrick McCully, eds. 1992.”Whose Common Future?” isuue of The Ecologist. 22, July/August.

Gonner, E. C. K. 1912. Common Land and Inclosure. London: Macmillan.

Green, Tony and Michael Pickering. 1987. “Towards a Cartography of the Vernacular Milieu.” In Everyday Culture: Popular Song and the Vernacular Milieu (Popular Music in Britain), edited by Michael Pickering and Tony Green, 1‑38. Milton Keynes: Open Uni­versity Press.

Gregory, C.A. 1982. Gifts and Commodities. Studies in Political Economy, edited by John Eatwell. London and New York: Academic Press.

Gudeman, Stephen. 1996. “Sketches, Qualms, and Other Thoughts on Intellectual Property Rights.” In Valuing Local Knowledge: Indigenous People and Intellectual Property Rights, edited by Stephen B. Brush and Doreen Stabinsky. Washington, D.C.: Island Press.

Hann, C. M., ed. 1998. Property Relations: Renewing the Anthropological Tradition. Cam­bridge: Cambridge University Press.

Hardin, Garrett. 1968. “The Tragedy of the Commons. “Science 162:1243‑48.

Honko, Lauri. 1982. “UNESCO Work on the Safeguarding of Folklore.” Nordic Institute of Folklore Newsletter 10 (1‑2):1‑5.
. 1983. “Protecting Folklore as Intellectual Property.” Nordic Institute of Folklore News­letter 11(1):1‑8.
. 1984a. “Do We Need an International Treaty for the Protection of Folklore?” Nordic Institute of Folklore Newsletter 12:1‑5.
. 1984b. “The Unesco Process of Folklore Protection. Working Document.” Nordic Institute of Folklore Newsletter 12:5‑29.
. 1989. “The Final Text of the Recommendation for the Safeguarding of Folklore.” Nor­dic Institute of Folklore Newsletter 17(2‑3):3‑13.
. 1990. “Recommendation on the Safeguarding of Traditional Culture and Folklore Adopt­ed by Unesco.” Nordic Institute of Folklore Newsletter 18(1):3‑8.

Hunt, Harriett Fran. 1966. African Folklore: The Role of Copyright ” African Law Studies. New York: African Law Association in America.

Hyde, Lewis. 1983. The Gift: Imagination and the Erotic Life of Property. New York: Vin­tage Books.

Inglis, Julian T., ed. 1993. Traditional Ecological Knowledge: Concepts and Cases, Ottawa, Ontario: Canadian Museum of Nature, International Program on Traditional Ecological Knowledge and International Development Research Centre.

Jabbour, Alan. 1982. “Folklore Protection and National Patrimony: Developments and Dilem­mas in the Legal Protection of Folklore.” Copyright Bulletin (Paris: UNESCO) 17:10‑14.

Jaszi, Peter. 1991. “Towards a Theory of Copyright: The Metamorphoses of ‘Authorship’.” Duke Law Journal 52:455‑502.
. 1992. “On the Author Effect: Contemporary Copyright and Collective Creativity.” Cardoxo Arts and Entertainment Law journal 10:293.

Keil, Charles, and Steven Feld. 1994. Music Grooves: Essays and Dialogues. Chicago: Uni­versity of Chicago Press.

Kimiecik, Kathryn. 1992. “Heritage, Folklore, Cultural Conservation, & Policy or What Ever Happened to Child Ballads? Part L”New York Folk Lore Newsletter Winter 1992:6, 10.
. 1993. “UNESCO & the Global Conservation Culture or, I Found the Child Ballads! Part 11.” New York Folk Lore Newsletter Spring 1993:6‑7.

Klarman, Barbara Friedman. 1965. “Copyright and Folk Music‑A Perplexing Problem.” Bul­letin of the Copyright Society of U.S.A. ( New York), June 1965:277‑92.

Kollock, Peter. 1998. “The Economies of Online Cooperation: Gifts and Public Goods in Cy­berspace.” In Communities in Cyberspace, edited by Marc Smith and Peter Kollock. London: Routledge.

Litman, Jessica. 1990. “The Public Domain.” Emory Law Journal 39: 965‑977, 995‑1012, 1019‑1023.

Macfarlane, Alan. 1998. “The Mystery of Property: Inheritance and Industrialization in England and Japan.” In Property Relations: Renewing the Anthropological Tradition, edited by C. M. Hann, 104‑123. Cambridge: Cambridge University Press.

Macpherson, C. B. 1985. The Political Theory of Possessive Individualism: Hobbes to Locke. Oxford, New York: Oxford University Press.

Malcolm, Elizabeth. 1998. “The Rise of the Pub: A Study in the Disciplining of Popular Cul­ture.” In Irish Popular Culture 1650‑1850, edited by James S. Donnelly and Kerby Miller. Dublin: Irish Academic Press.

Maim, Krister. 1993. “Music on the Move: Traditions and Mass Media.” Ethnomusicology 37:339‑52.
. 1988. “Copyright and the Protection of Intellectual Property in Traditional Music: A Summary of International Efforts.” Music Media Multiculture‑Today and Tomorrow 3:24‑29.

Manuel, Peter. 1991. “The Cassette Industry and Popular Music in North India.” Popular Music 10(2):189‑204.

Mauss, Marcel. 1974. The Gift. London: Routledge and Kegan Paul.

McCann, Anthony. 1998. “Irish Traditional Music and Copyright: an Issue of Common Prop­erty?” Paper presented at Crossing Boundaries, the seventh annual conference of the International Association for the Study of Common Property, Vancouver, British Colum­bia, June 10‑14, 1998. http://www.indiana.edu/‑iascp/Final/mccann.pdf

McGinnis, Michael, and Elinor Ostrom. 1996. “Design Principles for Local and Global Com­mons.” In The International Political Economy and International Institutions, edited by Oran R. Young, 465‑93. Cheltenham, UX: Edward Elgar Publishing.

McGraith, Donal. 1990. “Anti‑copyright and Cassette Culture.” In Sound by Artists, edited by Dan Lander and Micah Lexier, 73‑87. Ontario, Canada: The Coach House Press and Walter Phillips Gallery.

McKean, Margaret, and Elinor Ostrom. 1995. “Common‑property Regimes in the Forest: Just a Relic From the Past.” Unasylva 46:3‑15.

Merges, Robert P. 1996. “Contracting into Liability Rules: Intellectual Property Rights and Collective Rights Organizations.” California Law Review 84(5):1293‑1393.

Mills, Sherylle. 1996. “Indigenous Music and the Law: An Analysis of National and International Legislation.” Yearbook for Traditional Music 28:57‑86.

Mitsui, Toru. 1993. “Copyright and Music in Japan: A Forced Grafting and its Consequences.” In Music and Copyright, edited by Simon Frith, 125‑45. Edinburgh: Edinburgh Univer­sity Press.

Nguiffo, Samuel‑Alain. 1998. “In Defence of the Commons: Forest Battles in Southern Came­roon.” In Privatizing Nature: Political Struggles for the Global Commons, edited by Michael Goldman, 102‑19. London: Pluto Press.

Niedzielska, Marie. 1980. “The Intellectual Property Aspects of Folklore Protection.” Copy­right November 1980:339‑46.

O hAllmhurain, Gearoid.1998. A Pocket History of Irish Traditional Music. Dublin: The O’Brien Press.

Ostrom, Elinor. 1990. Governing The Commons: The Evolution of Institutions for Collec­tive Action. Cambridge: Cambridge University Press.

Phillips, Jeremy, and Alison Firth. 1995. Introduction to Intellectual Property Law. 3rd ed. London, Dublin, and Edinburgh: Butterworths.

Prakash, Sanjeev. 1998. “Fairness, Social Capital and the Commons: The Societal Foundations of Collective Action in the Himalaya.” In Privatizing Nature: Political Struggles for the Global Commons, edited by Michael Goldman. London: Pluto Press.

Puri, Kamal. 1998. “Preservation and Conservation of Expressions of Folklore.” Copyright Bulletin 32(4). Paris: UNESCO.

Rose, Mark. 1993. Authors and Owners: The Invention of Copyright. Cambridge, MA: Har­vard University Press.

Sahlins, Marshall. 1972. Stone Age Economics. London: Tavistock Publications.

Salazar, Carlos. 1996. A Sentimental Economy: Commodity and Community in Rural Ire­land Vol. 2. 6 vols. New Directions in Anthropology, ed. Jacqueline Waldren. Providence and Oxford: Berghahn Books.

Schrift, Alan D., ed. 1997. The Logic of The Gift. New York and London: Routledge.

Seeger, Anthony. 1992. “Ethnomusicology and Music Law.” Ethnomusicology 36:345‑59.
. 1996. “Ethnomusicologists, Archives, Professional Organizations, and the Shifting Ethics of Intellectual Property.” Yearbook for Traditional Music 28:87‑105.

Seeger, Mike, and John Cohen, eds.1964. New Lost City Ramblers Song Book. New York: Oak Publications.

Shiva, Vandana. 1993. “Biodiversity and Intellectual Property Rights.” In The Case Against “Free Trade” San Francisco: Earth Island Press, 115.

Slobin, Mark. 1993. Subcultural Sounds: Micromusics of the West. Hanover and London: Wesleyan University Press.

Strathern, Marilyn. 1999. “What is Intellectual Property After?” In Actor Network Theory and After, edited by. John Law and John Hassard. Oxford: Blackwell.

Titmuss, Richard M. 1972. 7`he Gift Relationship: From Human Blood to Social Policy. New York: Vintage Books.

UNESCO. 1989. Recommendation on the Safeguarding of Traditional Culture and Folklore. Paris: UNESCO, http://www.unesco.org/webworld/com/compendium/5414.html.

Vallely, Fintan. 1997. “Save The Session.” The Irish Times February 1997: 4, 12.

Waldron, Jeremy. 1990. The Right to Private Property. Oxford: Clarendon.

Wales, Tony. 1973. “Copyright and the EFDSS (Part 2).” English Dance and Song 35, Au­tumn:3.

Wallis, Roger, and Krister Maim. 1984. Big Sounds from Small Peoples: The Music Industry in Small Countries. London: Constable.

Weiner, Janice G. 1987. “Protection of Folklore: A Political and Legal Challenge.” IIC : Inter­national Review of Industrial Property and Copyright Law 18 (1):56‑92.

Whiteley, Sheila. 1997. “‘The Sound of Silence’: Academic Freedom and Copyright.” Popular Music 16(1):220‑22.

Wily, Liz. 1998. “The Legal and the Political in Modern Common Property Management.” Paper presented at Crossing Boundaries, the seventh annual conference of the International Association for the Study of Common Property, Vancouver, British Columbia, June 10­14, 1998.

WIPO. 1997. Introductory Seminar on Copyright and Neighboring Rights. Geneva, Octo­her 8 to 10, 1997. Geneva: World Intellectual Property Organization, WIPO/CR/GE/97/ 7.

Woodburn, James. 1998. “‘Sharing is Not A Form of Exchange’: An Analysis of Property‑shar­ing in Immediate‑return Hunter‑gatherer Societies.” In Property Relations: Renewing the Anthropological Tradition, edited by C. M. Hann, 48‑63. Cambridge: Cambridge Uni­versity Press.

Woodmansee, Martha. 1984. “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’.” Eighteenth‑Century Studies 17(4):425‑48.

Woodmansee, Martha, and Peter jaszi, eds. 1994. The Construction of Authorship: Textual Appropriation in Law and Literature. Durham and London: Duke University Press.

Ziff, Bruce, and Pratima V. Rao, eds. 1997. Borrowed Power: Essays on Cultural Appropria­tion. New Brunswick, New Jersey: Rutgers University Press.