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

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[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).

A Common(s) Language?: The Growing Challenge of Interdisciplinarity in Common Property Studies

A Common(s) Language?: The Growing Challenge of Interdisciplinarity in Common Property Studies

2006

This paper was presented at the IASCP (International Association for the Study of Common Property, now the IASC) conference in Bali in 2006. 

Some of the thoughts I present here have been developed more fully in other papers, which can be found on my academia.edu page at http://independent.academia.edu/anthonymccann

I withdrew from this field following this paper due to personal circumstances, and have only recently (2014) been able to return to these discussions with the focus that I would like.

For another perspective on the IASCP Oaxaca conference, take a look at George Caffentzis’ paper, “A Tale of two Conferences.” http://www.commoner.org.uk/?p=96

Abstract

The field of common property studies is becoming something of an interdisciplinary nexus for the analysis of economic, social, and political realities within communities. Scholars from all over the world have been attracted by the political and, importantly, ethical impetus and promise of the field.  As common property studies becomes home to more and more scholars from an increasing variety of perspectives, it will be suggested that it is no longer helpful to assume that scholars of the commons speak a common language of scholarship, if they ever did.

A key tension is gradually emerging in common property studies. The historical foundations of the field lie within new institutional analysis, economics, and political theory. It is from these areas that the methodological orthodoxies of common property studies have emerged (e.g. comparative case study analysis, game theory, decision theory, among others). Epistemological models of rational choice and bounded rationality thus continue to provide the normative centre of the discipline.

In recent years, however, notions of ‘the commons’ have proved attractive for a variety of scholars either external to the foundation disciplines of common property studies or uncomfortable within them. This has, in turn, led to the introduction or perhaps intrusion of a range of qualitative methodologies and their epistemological counterparts to the field. As a result, the field is now almost unique among disciplines for the range of epistemological and methodological possibilities that are emerging in the study of discourses and practices of ‘the commons’.

However, with a diversity of qualitative scholarship comes a diversity of potential critique. From the challenges of social constructionism (e.g. Berger and Luckmann, 1966), to the so-called “crisis of representation” (Marcus and Fischer, 1986) in anthropology, from critiques of foundationalist reason (e.g. Flax, 1993) to the “decolonization of methodology” (Tuhiwai Smith, 1999), the securities of rational choice and bounded rationality remain open to question, along with the methodologies that have been built upon them. One of the interesting developments in the coming years will be whether such critiques are incorporated into new and helpful imaginings within common property studies or whether they are quite simply policed out of existence by a dominant refusal to acknowledge or address the growing academic diversity of the field.

Prologue: random thoughts on conferences

Conference papers are funny things. I didn’t want to write this one, preferring to wait and simply give a presentation, but writing a paper in advance was part of the deal in submitting an abstract. You go to a conference, you deliver your paper. If you’re lucky, people will remember what you wore. Don’t expect them to remember your name, that’s a rarity at the best of times. If you’re really lucky people will remember that you were entertaining (you hope). If you’re really, really lucky someone might remember a point, a detail, a snippet from your presentation. If you want to get really depressed, you might like to consider the mythic (non-?)statistic that within 5 years of leaving university people tend to forget all but 5% of the information they learned. People are unlikely to remember what was in your paper unless they sit down, read it, work with it, use it for something, or discuss it with someone.

In my first IASCP experience in 1998 I travelled 6,000 miles to present a 20 minute paper. In Vancouver I felt like an intitiate, eager to learn the language, eager to talk the talk. I was not one of you, I felt, but I was eager to become a member of the common property club. I received 5 minutes notice that I had actually only 10 minutes in which to present it. I did what many young, inexperienced academics might do. I rushed it. If there might have been anyone inclined to listen to what I had to say I imagine I spoke too fast to let any of it settle in.

I did get a lot of support from colleagues for my attempts to consider Irish traditional music as a common property resource at this time.

In 2000, in Bloomington, I submitted a written paper in advance, and then decided with two hours to go that I would rather talk about something else. I wanted to present some ideas that were exciting me in my more recent work. Bad idea. I threw together some overheads, drew a cartoon picture of ‘Hector the Vector’ in a bid to soften the presentation, and once again spoke too fast.

This time I was a little more aware that I was not among academic kindreds. I was having a lot of difficulty communicating what I wanted to say because most people simply weren’t used to my language, and I wasn’t used to theirs.

Still, in Bloomington I was excited by work in the field, excited by the increasingly visible interdisciplinarity, excited that Bonnie McCay noted at the plenary that maybe it was time to really start questioning the consequences of the dominant rationalist methodologies. I came away hopeful, and ready to undertake my training as a Jedi.

Over the years, the more I said that I didn’t really want to talk about Irish traditional music as a resource commons the more colleagues pulled away, quietly withdrew their interest in my work. I began to wonder if I was only going to be welcome in this field if I adhered to the doctrines of resource management and institutional analysis. I began to wonder if I would only be really admitted to this community of scholarship on other people’s terms. I hoped not.

In Oaxaca I felt like a heretic. I dared to question the notion of the commons. I dared to question best intentions. I dared to question the central and hardening doctrines of the field. I made some people angry.

It was in Oaxaca that I became really aware that there are some things that people really don’t talk about openly at these conferences. In my experience these conferences seem to be becoming more and more saturated with silences and silencing. It’s to be expected in a young field like this as it develops, but I had hoped it wouldn’t happen.

There are some conversations at these conferences about the limitations of common property studies at all as a framework or about the drawbacks of positivism, or about the inadequacies of rational choice and bounded rationality epistemologies. But those conversations take place in hushed tones, behind closed doors, in corridors, while passing in the street. We shouldn’t have to become courageous in order to simply say what we think at an academic conference. There were times at the last conference when I wondered whether I had stepped back into Catholicism, there was such a strong sense of orthodoxy and such quiet gravity of peer pressure to believe and conform to the central tenets of the faith.

I consider it highly unlikely that 10 minute conference papers will ever allow anyone to effect a significant sea-change in theoretical perspectives in any field, least of all those which rely on the doctrinal unassailability of their orthodox methodologies. Is a 10 minute paper likely to really challenge people to question their, your, my position, to get us to really think about our thinking, to have us come away thinking, ‘Hey, you know, maybe I don’t have to think the way I do’? In a sense, it matters little whether the statistic above can be substantiated or not. Just try to work out how many conference papers you really remember. Not many, I would venture. What I’m inviting you to consider is that conference papers (and by extension, conferences), as a social form, might tend to be deeply conservative mechanisms in the constitution of academic dialogue, the construction of theoretical canons, and the intensification of orthodoxies. In what I have encountered, they would seem to limit the possibilities for truly challenging conversations, indeed they tend to foster conservations more than conversations, really. Papers often provide the content for the championing of consensus or for declarations of heretical leanings. Either way, they often replay the less helpful possibilities of pedagogic encounter, falling into the pattern of what educational theorists might call banking or deposit education, providing information rather than engaging in real dialogue. Do we read papers to our students when we are trying to provoke inquiry, or invite thinking about thinking? I tend not to, at least not always, because I found that when I did it deadened the energy of the room, it established myself as the primary focus of authority while making me less personally present, and it minimised the possibilities for dialogue.

Maybe the really fruitful dialogues happen over coffee or dinner afterwards. If so, then why not organise a conference where informal chat is the main focus? If we are really interested in dialogue then can we reimagine what conferences are all about? Can we question the very idea of conferences and see where it gets us?

A round trip from London to Bali causes around 10 tonnes of CO2 to be dumped in the atmosphere. Merely taking the flight to this conference resulted in me contributing my average annual CO2 emission in one go, equivalent to the CO2 I from car use for a whole year.

All in all, my visit to this conference is costing me somewhere in the region of one thousand pounds, which is one twenty-sixth of my salary, and an exorbitant amount of money for many of the people who live on this planet. I would estimate that I have spent about £3000 over three IASCP conferences for the purpose of presenting three ten-minute papers and having maybe twenty conversations with colleagues.

During the Oaxaca conference in 2004 I got to talking with a local woman who was working as a waitress in one of the restaurants. I was only able to do this because I happened to speak Spanish, having studied it at University. Anyway, she outlined the difficult economic situation in Oaxaca, an area long reliant on textiles and shrouded by political unrest. She spoke enthusiastically about how great it was that the conference was happening, that all these experts were so concerned about her area that they would come to her town to offer their expertise to locals so that the lives of people in Oaxaca would improve.

I didn’t have the heart to tell her that conferences didn’t tend to work like that, or that all of the expertise was just passing through on the way to somewhere else. I couldn’t tell her I was pretty much just another rich tourist like all the other tourists, except that I had a better public relations package.

Introduction

The field of common property studies is becoming something of an interdisciplinary nexus for the analysis of economic, social, and political realities within communities. Scholars from all over the world have been attracted by the political and, importantly, ethical impetus and promise of the field.  As common property studies becomes home to more and more scholars from an increasing variety of perspectives, I would suggest that it is no longer helpful to assume that scholars of the commons speak a common language of scholarship, if they ever did.

The historical foundations of the field of common property studies lie within new institutional analysis, economics, and political theory. It is from these areas that the methodological orthodoxies of common property studies have emerged (e.g. comparative case study analysis, game theory, decision theory, among others). Epistemological models of rational choice and bounded rationality thus continue to provide the normative centre of the discipline.

In recent years, however, notions of ‘the commons’ have proved attractive for a variety of scholars either external to the foundation disciplines of common property studies or uncomfortable within them. This has, in turn, led to the introduction or perhaps intrusion of a range of qualitative methodologies and their epistemological counterparts to the field as new people come in to be part of this community of scholarship. As a result, the field is now almost unique among disciplines for the range of epistemological and methodological possibilities that are emerging in the study of discourses and practices of ‘the commons’.

However, with a diversity of qualitative scholarship comes a diversity of potential critique.

From the challenges of social constructionism (e.g. Berger and Luckmann, 1966), to Marcus and Fischer’s (1986) so-called “crisis of representation” in anthropology, from critiques of foundationalist reason (e.g. Flax, 1993) to Linda Tuhiwai Smith’s indigenous studies project  of the “decolonization of methodology” (Tuhiwai Smith, 1999), the securities of rational choice and bounded rationality remain open to question, along with the methodologies that have been built upon them.

More specific critiques such as those offered by the Green and Shapiro collection The Pathologies of Rational Choice Theory (1994) are also part of the wider discussion, as are books such as the Jeffrey Friedman Collection The Rational Choice Controversy (1996).  But all of these critiques have been for the most part excluded from theoretical discussion in common property studies. They don’t have to be, and I would love to see more open discussion about the ongoing controversies about the limitations of the dominant paradigms in this field.

One of the interesting developments in the coming years will be whether such critiques are incorporated into new and helpful imaginings within common property studies or whether they are quite simply policed out of existence by a dominant refusal to acknowledge or address the growing academic diversity of the field.

Return to Oaxaca

This paper in part follows on from my presentation at the Oaxaca conference. In that paper I addressed some of the ways in which my attempts to use resource management models of common property theory left me at a bit of a loss in my research. I found myself being drawn away, again and again, from the experiences of the people I was working with, drawn away from their ways of making sense of the world. I also found myself analytically disempowered, unable to explain many of the aspects of the social situations and expansionary social dynamics that I encountered.

In my Oaxaca paper I explained how it was that I had turned from models of “the commons” to a model of “enclosure” in a bid to come to less partial and more adequate analyses of expansion and commodification. In this way I also hoped to come to more reflective and reflexive understandings of  whatever “the commons” might mean for different people, and particularly for me. I presented a very brief overview of a new theory of commodification that brought me to what might be received as a somewhat counterintuitive understanding. My research has led me to think that many of the social situations we often characterize postively as environments of common property may also be characterized as environments of enclosure. I further suggested that our emphasis on resources, common property, and the commons is seriously misleading, and that we would be better served focusing on the relational implications of enclosure.

As I said in my Oaxaca paper:

“If we simply accept the “given” concept of the commons, with the accompanying architectures of resource management analysis, we will likely perpetuate occlusions with regard to the discursive power of much of our own work as scholars within the field of “common property studies”. The analytic and semantic closures that often accompany highly-commodifying resource management analysis are likely to blind us to many of the participatory implications of the theoretical constructs we deploy. This blindness, in turn, tends to reinforce, never mind foster and facilitate, the assumptions of analytic closure within the highly-commodifying architectures of orthodox methodologies of common property theory.

“If there are indeed such fundamental paradoxes, if not outright contradictions within common property theory, then a total re-evaluation of the field would be called for. It is suggested that the whole focus of the field of common property studies is misplaced, and would be more helpfully turned towards issues of enclosure and commodification. Taking the focus away from resource management and methodological individualism will leave us not only with less misrepresentative analyses but with less limiting theoretical perspectives with which to undertake assessments of our own engagement as discursive participants in the very fields of our inquiry, that, with which to undertake more helpful participatory analysis to supplement and inform other descriptive and explanatory explorations.

“Why is this important? It’s important because of the expansionary dynamic of enclosure, because of the acclerative 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 participatory analysis, and more adequate understandings of power, agency, expansion, and commodification as they relate to discourses of enclosure and the commons.”

In the first response to my Oaxaca paper a respondent characterized what I presented as an “assault on the Commons”.

My work does not constitute an “assault on the commons”, if by that is meant an assault on those people who labour with good intentions on behalf of what they think of as “commons” within contexts of community. This is, however, a critique of discourses of the commons, a critique of how we may make sense of our work in terms of “commons”. Declaring a situation a “commons” doesn’t explain anything, it simply calls for explanation – the declaration is not somehow outside that which requires explanation.

My position is that we need to be more careful about the ways in which we make sense of our work, the ways in which we frame our actions, the ways in which we conceive of our epistemologies precisely because of our good intentions. I think it helps to remain vigilant of the possibility that through common property studies many of us may be ushering in another damaging wave of discourses and practices of ‘development’, repackaged in disciplines that haven’t really been touched by critiques of development discourse. I’m not saying it’s a fact or a truth – you get to work it out for yourself, but I can say that I am personally very wary of the potential for methodological colonization that, for me, remains implicit in many of the epistemologies and methodologies of political theory, institutional economics, game theory, and collective action theory.

How do we account for the people in communities who really don’t like what we do or the ways we do what we do? What can we learn from them? I’m sure they’re there if we were to look. I’m sure I’m not the only one who has ever come across cynicism or at least skepticism with regard to the crusading endeavours of much well-intentioned academic work. I think it would help to seek those people out and listen to what they have to say. We really don’t have to be doing what we do, and even if there are people out there who disagree with our whole project, maybe they have opinions that we would do well to listen to, and maybe even respect, dare I say it.

The same respondent to my paper also noted that there is, as such, no ‘theory of the commons’, and offered that focusing on enclosure rather than the commons is a profoundly disempowering strategy, emphasising victimization rather than positive activity at a community level. I will readily admit that there is no consensus on a ‘theory of the commons’. My Oaxaca paper never suggested that there was. What I did suggest is that the orthodox, dominant architectures of theories (plural) of the commons tend to revolve around conceptualizations of resource management. That’s about as close to a truism as I am ever going to get. Resource management is at the heart of the IASCP mission statement, which you can find on the IASCP website:

The International Association for the Study of Common Property (IASCP), founded in 1989, is a nonprofit Association devoted to understanding and improving institutions for the management of environmental resources that are (or could be) held or used collectively by communities in developing or developed countries (http://www.iascp.org).

My central point about the dominance of “resource management” discourses in this field can hardly be evaded. Discourses of the commons are primarily discourses of resource management, particularly within Common Property Studies. To speak of “the Commons” is often (most often here) to speak of resources. If you are interested in a developed version of this critique in relation to notions of the “information commons” you can consult my 2005 paper on “Enclosure Without and Within the “Information Commons”,” at http://independent.academia.edu/anthonymccann.

As for framing the concept of the commons in the position of the victim, if I were to take enclosure as the intruding privatization of common resources, or as external encroachments and intrusions into community life, then, yes, to focus on enclosure, as the opposite of the commons, would be to place undue weight on the victimization of the commons. Indeed, historically this is what has tended to happen where enclosure is concerned. However, this is not what I mean by enclosure. The effects of enclosure, for me, can be traced back to dispositional dynamics, and particular characters of interpersonal relationship. Working with undualistic and unfoundational epistemologies, as I do, enclosure is not the opposite of anything, as I do not recognise binary oppositions as an adequate way to make sense of experience (although I do acknowledge that the deployment of binary oppositions can have very powerful consequences for our understandings of experience). Although not discussed here, my understanding of enclosure is based in a broader social theory of hope and gentleness, a social theory in which I aim to come to more adequate understandings of agency, and the possibilities for positive social transformation. My theory of enclosure is not about victimization. Rather, it is through the identification and explanation of the dynamics that I refer to as enclosure that I think we might come to more adequate understandings of the possibilities for empowerment in our lives. My critique of “the commons” and resource management is anything but the normalization of oppressive dynamics and victimization.

Another almost mocking response to my Oaxaca paper, offered in private, was the critique that the very activity I was engaged in, the reading of what they felt was an obscurantist, theoretical paper, was profoundly enclosing, being profoundly audio-ocularcentric (my own phrase, referring to the discursive privileging of sight and sound in a particular context. Being nervous, I spent most of my time reading my paper straight from the page.), and linguistically difficult, which contradicted my work, rendering it pointless.

This critique is well taken, and very insightful. However, it also returns me to a central point in my work, that it’s never all or nothing. Presenting a paper in a highly-commodifying fashion does not “contaminate” my work, or render it irrelevant through contradiction. That’s an all or nothing position, and I don’t work with those. I’m interested in dominances, and if those kinds of presentations become dominant in my experience, and if I ever become blind to the expansionary allure of the more formal strategies of academic methodology, then, yes, I would be concerned. I don’t want to spend my life reading from a page.

I should remain aware, the person suggested, that for many people at the conference English was not their first language, and that my theoretical language was difficult. What I think is helpful to consider here is the extent to which conference and other academic structures foster and facilitate ways of interacting where people often feel left out, excluded, where people often feel like you have not communicated with them in a way which respects them, regardless of the language you speak.

However, most of the people who might read this paper are academics. Theory is our business. When I say theory I mean ‘thinking about my/your/our thinking’. We’re professional thinkers, and if we’re not thinking about our own thinking, if we’re not taking the consequences of our own thinking seriously, if we’re not continually challenging ourselves in our own thinking, questioning the ideas we take for granted, questioning the ideas we are most impassioned to defend, then I think we’re not doing our job. Sometimes complex language is part of that job, because we have been left with legacies of complex language that we are required to address and deconstruct. Maybe.

I once got to sit beside a well-known and elderly scholar at a conference. He asked me what I studied, and, being as I was in the last months of my Ph.D. write-up, I responded with babbling theoretical enthusiasm. In the middle of an epistemological flourish he slowly raised a hand to stop me, uttering the phrase, “Speak to me as if I’m your grandfather.” This has remained one of the most challenging things anyone has ever said to me.

In my work I want to talk less of resources and more of people, what’s important to them and how that changes, how their attitudes change, what subtle plays of influence operate in their lives, and the character of their relationships. I’m interested in “the power of small emotions” as the filmmaker John Cassavetes put it, the feelings of encroachment, the anger of resistance, the anxieties of exclusion, the fear of displacement, the depression of feeling like you don’t matter, the joys of love, and the intensities of belonging and rejection.

I don’t find that discourses of resource management help me much in this regard. Neither do rationalistic assumptions about incentives, cost-benefit analysis, or collective action. As has been said many times before, paradigms work to reveal some things, and conceal others. As the editors of Passionate Politics: Emotions and Social Movements put it:

Emotions are but the entering wedge for many aspects of politics and protest that have been neglected by the structural paradigm of the last thirty years, a whole world of psychological and cultural processes that have been considered too “soft” or too messy for empirical investigation (Goodwin, Jasper, and Polletta, eds. 2000:24)

But my main point is that not only do I feel that resource management discourses are unhelpful, but that allowing them to remain central to my work is to perpetuate and intensify the very commodifying and enclosing dynamics that I seek to counteract. I realise that making that statement involves me in the position that language shapes us as we shape language, but yes, I hold that position, and I believe that words matter, if only because they are often symptomatic of the degree of respect or lack of respect that we have for people, emotions, and the character of our relationships. I maintain that life is a lot more subtle than resource management, and if I were continue to use that very narrow window for making sense of people’s lives, including my own, I believe my research would be profoundly inadequate. If I were to assume that resource management was a good framework to impose upon a situation before I even got there, the likelihood of the inadequacy of my research would be multiplied many times over.

My Oaxaca paper was wordy, it was abstract, and appropriately so, as I was struggling with a maelstrom of ideas that took another year or so to emerge with any great clarity. Still, it said what I wanted it to say, even if it didn’t communicate it very well.

I think it helps to be more careful. I think it helps to consider the extent to which we depopulate our theoretical work, draining it of life and emotion. I think it helps to consider the impoverishment that results from, quite simply, focusing on things more than on environments of relationship that extend beyond the economic or the resource-political. I think it helps to be more humble in our theoretical work, less inclined to tell others that the ways we think are automatically better than their own or universally applicable. I think it helps to remember that as academics we often speak with privileged voices and from privileged positions. For many people, what we say matters more because we are professional thinkers. That’s a big responsibility, and it often comes with relatively very little accountability. I think we can do better than we’re doing.

Declaring Difference

Hello, my name’s Anthony.

I work in the field of Common Property Studies.

I don’t align myself with how the mission statement of the IASCP is framed.

I work in the field of Common Property Studies.

I don’t like rational choice or bounded rationality perspectives.

I work in the field of Common Property Studies.

I don’t like institutional analysis.

I work in the field of Common Property Studies.

I don’t find it helpful to talk about what I do in terms of resources.

I work in the field of Common Property Studies.

I do not think like many of you when it comes to epistemologies, methodologies, or maybe even your own basic ways of making sense of the world. That’s okay, but I still work in this field. I am still a contributor to a community of scholarship.

It is possible to think differently, and a number of us in this field do. Please do not assume that because you are a game theorist or a bounded rationalist or an institutional economist that you speaking within a community of consensus. A number of us think very differently, not sharing your fundamental assumptions about what knowledge is or how it is achieved. A number of us do not share your faith in some of the basic principles of empirical science or positivist method. There is difference here, and that’s okay. Not only is it okay, but it’s positively healthy, and one of the great things about this field.

I think it’s really important to face up to the theoretical diversity in the field. And I’m not just talking about theories-about-resources. A glance at the range of theoretical categories in the Digital Library of the Commons would suggest that theories-about-resources is all we have to choose from in common property studies. The point is, though, that there is a greater theoretical diversity already in this field than is reflected in the literature or in the classifications. I’m talking about the closet indigenous studies scholars, interpretative anthropologists, feminists, symbolic interactionists, Foucauldians, poststructuralists, anarchists, postmodernists, and more that are in this field, working within this community of scholarship. I’m talking about those people who have attended IASCP conferences, came, saw, listened, and went home disappointed and disillusioned that there was no place for their understandings here. I’m talking about environmental studies scholars I know who won’t touch this field with a barge pole because they think it’s sewn-up by political theorists and institutional analysts, leaving little or no room for other voices or other theoretical perspectives, least of all critical voices.

I am not looking for emotional revelations, but I would invite you to take a moment to consider how you are responding emotionally to my declaration of difference. I know the last time I declared my difference at this conference I got some little support, but it did make some people feel confused, angry, even betrayed, like somehow I was letting the side down. I’m sorry people felt that way, but I was never a member of a political party, and I’m not going to start now.

I think it’s really important to face up to the growing theoretical diversity of this field. I don’t know if anybody else has felt this way at these conferences, but I know that I simply felt uncomfortable a lot of the time in discussions, having so many problems with the whole framing of discussions that I didn’t know how to speak up without feeling like I was disrupting the production schedule. Speaking from experience, it’s hard to declare difference in the face of good intentions. There is a powerful peer pressure that results from the subtle dominance of unquestioned discourses in any field, and of all the fields I have encountered, this is one that is notably and increasingly saturated with orthodoxies and unquestioned paradigms.

Seeking Common Ground: Live and Let Research

And yet I still want to be a part of this field. For me, the field of Common Property Studies is also one of the most exciting that I have encountered. Normally academics get the luxury of only engaging with competing and conflicting methodologies and epistemologies in textual form, safely bound within books. In many cases, I’m sure, we afford ourselves the extra luxury of simply bypassing those people we disagree with by leaving their work on the library shelves where we found it, or by not citing their work. At IASCP conferences we get an opportunity to engage with competing and conflicting methodologies and epistemologies in personal form, but only if we take care to foster an attitude and an atmosphere in which people feel comfortable acknowledging difference, or feel comfortable making their diverse contributions known.

My position isn’t a prescriptive one; people do what they do, say what they say, and they get to work it out for themselves. I acknowledge there are many ways to talk about “the commons,” and that they involve increasing rhetorical and emotive power. I acknowledge that people train in disciplines where resource management perspectives are doctrine and rule, ground for authority and legitimation for action. I also acknowledge that there may be times when an emphasis on resource management may be very helpful, and when methodologies that emerge from resource management analysis may also be very helpful.

I personally do not think that the dominant concepts, theories, and methodologies here are appropriate for all contexts or analytical questions in thinking about “the commons”, or, more to the point in my work, “enclosure”. And, for the foreseeable future, I choose not to base my analysis of social, political, and economic changes on the concept of “the commons” or on models of resource management.

But I do invite you to consider why you use those frameworks, if you do. Where does that thinking come from? What assumptions about human nature and interaction are built into such thinking? Are you comfortable thinking about the complexities of your own life in those terms? Are other people? Have you considered that there might be other ways to think about all this? Do you still expect me to use resource management theory here even though I have been explicit about not wanting to use it?

Many would automatically consider a variety of conflicting epistemologies in an academic field to be methodologically unworkable. However, I would like to suggest that it may be possible to flout academic convention and adopt a working assumption that certain methodologies might be helpful for some analytic tasks and inappropriate for others, providing claims to universality are suspended. The real problem is that many epistemologies and methodologies of a positivist bent within political theory are often applied with a universalist attitude.

In this paper I was going to present a tentative typology of methodological approaches in common property studies. I think such a typology would go some way towards the cause of more helpful and dialogic analysis of social, political, and economic change within commons regimes, within the communities in which such regimes operate, and within the communities of common property scholarship. I continue to work on that project, but I feel that the epistemological principles upon which I base such a project are best left for a more extended exposition in written form. I’m happy to continue that thread of thought with anyone in conversation.

One of things I would have suggested with such a typology is that “resource management” epistemologies and methodologies are more likely to be helpful for the purposes of description rather than explanation. Where description is presumed to substitute for explanation we get ourselves into very unhelpful water, making it very likely that we might get swept away with the currents of good intentions.

I don’t know. I hold out hope that there is a grounding of resonances to work from here, one that emerges from a respect for the human, emotional realities of everyday life. In this field I am reminded very forcefully that academic work is always and primarily an issue of relationship. This makes this field rare, as academic fields go. It also makes the work of those in Common Property Studies all the more important. This nexus of academic approaches is a wonderful opportunity for interdisciplinary engagement, a wonderful opportunity for people to dare to talk across methodologies, to dare to critique each other without our methodologies and epistemologies hardening into ideological positions that must be defended against incursions.

I’m guessing that most of us are in the field of Common Property Studies because we’re curious. We’ve noticed social, political, and economic changes and we’d like to work out what’s going on. I’m guessing that a lot of us are in the field of Common Property Studies because we noticed that the social, political, and economic changes we are interested in have real effects on real people in real communities, and those changes are not always for the better. I’m guessing that many of us believe that more adequate analysis can lead to more adequate responses to the social, political, and economic changes in communities, and that somehow the differences that we make can be positive differences, that we can somehow contribute beneficially to the lives of those we work with. I’m guessing that many of us are in this field because, quite simply, we care. I believe that the more we care, the more careful it helps to be. Best intentions aren’t enough, and compassion and care don’t necessarily lead to long-term beneficial consequences. The histories of colonization and empire offer enough lessons in that regard, and I would suggest that many of our discourses and methodologies are likely still tinged with the architectures of empire, oppression, and violence. I think it helps to take that issue seriously, to not deny the historical realities of the ways we tend to think, to not gloss over the horrible histories of much academic work, to not efface the questionables of any so-called development work.

I believe that it helps to always be working for more adequate and representative ways of making sense of our experience, of the ‘realities’ we encounter. I believe it helps to work towards a greater respect for other people’s ways of making sense of their lives, and that includes other academics ways of making sense of theirs. Communities of scholarship such as ours offer us opportunities to do so.

References 

Peter Berger and Thomas Luckmann. 1966. The Social Construction of Reality. New York: Anchor Books.

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

Jeffrey Friedman, ed. 1996. The Rational Choice Controversy: Economic Models of Politics Reconsidered. New Haven: Yale University Press.

Jeff Goodwin, James M. Jasper, and Francesca Polletta, eds. 2000. Passionate Politics: Emotions and Social Movements. Chicago: The University of Chicago Press.

Donald P. Green and Ian Shapiro. 1994. The Pathologies of Rational Choice Theory. New Haven: Yale University Press.

George E. Marcus and Michael Fischer. 1986. Anthropology as Cultural Critique. Chicago: University of Chicago Press.

Anthony McCann. 2005. “Enclosure Without and Within the “Information Commons”.” Information and Communications Technology Law 14(3):217-240.

Linda Tuhiwai Smith. 1999. Decolonizing Methodologies: Research and Indigenous Peoples. London: Zed Books.

 

Genesis of the Cultural Climate Framework

The Cultural Climate Framework has its origins in my work in the field of ethnomusicology. Between 1996 and 2002 I undertook ethnographic fieldwork to ascertain the systematic social and ethical dynamics in the informal contexts and communities of Irish traditional music. Key to this work was evaluation of the relational implications of increased acquiescence among Irish musicians to the discourses, values, and practices of copyright and intellectual property.

Interdisciplinary theoretical analysis in ethnomusicology, anthropology, sociology, institutional economics, and social psychology led me to develop a general systematic theory for specific practices of ‘enclosure’, that is, an expansionary social dynamic driven by the ‘elimination’ of uncertainty, involving the acclelerative and intensifying commodification of everyday life (see McCann, 2001, 2002, 2005, 2012). ‘Enclosure’ became, in effect, shorthand to speak of unhelpful dynamics of excessive institutionalisation, bureaucratization, or administration within organisations.

In postdoctoral research I built on this ethnographic and theoretical work, turning to sociolinguistic register theory (see, e.g., Halliday 1978; Butler 1999, and many others), affect theory (see, e.g., Brennan 2004, Ahmed 2010, Grossberg 2010 and others), and cultural history (especially Raymond Williams’ work on ‘structures of feeling‘) in order to develop the general framework.

Counterintuitively, the fact that this research originated with a non-organisational focus is what makes it so well suited to the analysis of culture change in organisational dynamics. If the theoretical tools used to analyse culture change in organisations are forged in the empirical analysis of organisations, then the results will likely be primarily descriptive in character. Description tends to be of limited operational efficacy in the necessarily comparative analysis of cultural climate and of little guidance in trying to understand our own participation in the enactment of culture change.

Because all organisations rely on a subsystem of substantially informal human relationships and interactions, any effective model of culture change in organisations needs to be based on principles that are also inclusive of governing dynamics of attitude, behaviour, and social interaction in explicitly non-organisational culture. Indeed, I would argue that the spectrum of less formal qualities of relationship in an organisation are the very heart of possibility in culture change. You cannot construct a clear roadmap for culture change when they are excluded, or even marginalised, in the model being used.

http://www.anthonymccann.com

Associated Reading

Roger D. Abrahams. 2005. Everyday Life: A Poetics of Vernacular Practices. University of Pennsylvania Press.

David Abrams. 1996. The Spell of the Sensuous. New York: Vintage Books.

Asif Agha. 2000. “Register”. Journal of Linguistic Anthropology 9(1-2): 216-219
—. 2005. “Voice, Footing, Enregisterment.” Journal of Linguistic Anthropology 15(1): 38-59

Sara Ahmed. 2010. “Happy Objects.” In The Affect Theory Reader. Melissa Gregg and Gregory J. Seigworth, eds. 29-51. Durham, NC: Duke University Press.

Richard Bauman and Charles Briggs. 1990. “Poetics and Performance As Critical Perspectives on Language and Social Life.” The Annual Review of Anthropology 19: 59-88.

Teresa Brennan. 2004. The Transmission of Affect. Ithaca, NY: Cornell University Press.

Lance St. John Butler. 1999. Registering the Difference: Reading literature through register. Manchester and New York.

Jenny Cheshire and Allan Bell. 2003. “Register and style.” In International Encyclopedia of Linguistics Vol 3. William Frawley, ed. 454-459. Oxford: Oxford University Press.

Todd Cronan. 2012. “The Aesthetic Politics of Affect.” Radical Philosophy 172: 51-53. URL: http://nonsite.org/review/radically-private-and-pretty-uncoded (accessed Dec 2012)

Jean Debernardi. 1995. Book Review: Sociolinguistic Perspectives on Register. Douglas Biber and Edward Finegan, eds. New York: Oxford University Press, 1994. 385 pp. Journal of Linguistic Anthropology 5(1): 97-99.

Anind K. Dey. 2001. “Understanding and Using Context.” Personal and Ubiquitous Computing 5:4–7

Roy Dilley, ed. 1999. The Problem of Context. Oxford: Berghahn Books.

Peter Fawcett. 1997. Translation and Language. Linguistic Theories Explained. Manchester: St Jerome Publishing.

Kathleen Ferrara, Hans Brunner, and Greg Whittemore.1991. “Interactive Written Discourse as an Emergent Register.” Written Communication 8(1): 8-34.

Anita Fetzer. 2004. Recontextualizing context: grammaticality meets appropriateness. Amsterdam: John Benjamins Publishing Company.

Mohsen Ghadessy, ed. 1988. Registers of Written English: Situational Factors and Linguistic Features. London and New York: Pinter Publishers.
—.  1993. Register Analysis: Theory and Practice. London and New York: Pinter Publishers.

Charles Goodwin and Alessandro Duranti, eds. 1992. Rethinking Context: Language as an Interactive Phenomenon. Cambridge: Cambridge University Press.

Melissa Gregg and Gregory J. Seigworth, eds. 2010. The Affect Theory Reader. Durham, NC: Duke University Press.

Lawrence Grossberg. 2010. “Affect’s Future.” In The Affect Theory Reader. Melissa Gregg and Gregory J. Seigworth, eds. 309-338. Durham, NC: Duke University Press.

Tomie Hahn. 2007. Sensational Knowledge: Embodying Culture Through Japanese Dance. Middletown: Wesleyan University Press.

Michael A. K. Halliday. 1978. Language as social semiotic: The social interpretation of language and meaning. London, New York: Edward Arnold.

David Howes. 2003. Sensual Relations: Engaging the Senses in Culture and Social Theory. Ann Arbor: University of Michigan Press.

Brian Massumi. 2002. Parables for the Virtual: Movement, Affect, Sensation. Durham, NC: Duke University Press.

Lilia Savova. 2005. “Register.” In New Encyclopedia of Linguistics, Vol. 2. Philipp Strazny, ed. 898-899. New York: Taylor & Francis.

Ben-Ami Scharfstein. 1989. The Dilemma of Context. New York: NYU Press.

Eve Kosofsky Sedgwick. 2003. Touching Feeling: Affect, Pedagogy, Performativity. Durham, NC: Duke University Press.

Kathleen Stewart. 2007. Ordinary Affects. Durham, NC: Duke University Press.

Paul Stoller. 1989. The Taste of Ethnographic Things: The Senses in Anthropology. Philadelphia: University of Pennsylvania Press.
—. 1997. Sensuous Scholarship. Philadelphia: University of Pennsylvania Press.

Marilyn Strathern. 1987. “Out Of Context: The persuasive fictions of anthropology.” Current Anthropology 28: 251–281.

Nigel Thrift. 2008. Non-Representational Theory: Space, Politics, Affect. London: Routledge.

Anna Trosborg, ed. 1997. “Text Typology: Register, Genre and Text Type.” In Text Typology and Translation. Benjamins Translation Library 26: 3-24. Amsterdam/Philadelphia: John Benjamins.

Jean Ure and Jeffrey Ellis. “Register in Descriptive Linguistics and Linguistic Sociology.” In Issues in Sociolinguistics. Oscar Uribe-Villegas, ed. The Hague, Paris, New York: Mouton Publishers, 1977. 197-243.

Teun A. van Dijk. 2009. Society and Discourse: how social contexts influence text and talk. Cambridge: Cambridge University Press.

Raymond Williams. 1977. Marxism and Literature. Oxford: Oxford University Press
—. 1979. Politics and Letters. New York: Schoken Books.

 

 

 

 

 

 

 

 

Cultural priming, the “adjacent probable”, and changing the cultural equation

Within any particular culture, prolonged participation in the cultural climate has a tendency to prime people to reproduce the dynamics of that climate (either in that culture or upon having moved to another). When a cultural climate is dominated by the dynamics of enclosure this is one of the primary contributing factors in the acclerative intensification of enclosure. While it is possible to overcome this priming to a greater or lesser extent, for the most part in cultural priming people turn towards what I call “the adjacent probable.”

I have developed the term “adjacent probable” from the term “adjacent possible” in the work of Stuart Kauffman, a biologist and complex systems researcher. As reported by Stephen Johnson (2010), Kauffman’s work on evolution and self- organisation gave rise to the notion of “the adjacent possible”. This concept speaks to the way that biological developments can only happen within their specific conditions of possibility: “The adjacent possible is a kind of shadow future, hovering on the edge of the present state of things, a map of all the ways in which the present can reinvent itself. Yet it is not an infinite space, or a totally open playing field …. What the adjacent possible tells us is that at any moment the world is capable of extraordinary things, but only certain changes can happen.”(Johnson 2010, p. 30-31).

In the context of my Cultural Climate Framework, the adjacent probable tells us is that at any moment we are capable of many things, but we tend to reach for architectures and dynamics of thinking, feeling, and doing that are already dominant in the cultural climate we inhabit. The adjacent probable refers to our default responses in a particular situation, both tacit and explicit, that are both symptomatic of and constitutive of the dominant expectations in the cultural climate.

Importantly, the gravities of the adjacent probable within enclosing organisational environments are much stronger on account of the high directivity of the corresponding cultural climate. In the context of culture change interventions within cultural climates of organisational enclosure, this strong tendency to default to the adjacent probable leads to what I call “cultural feedback”. This is when we systematically reinforce and recreate the enclosing dynamics we are seeking to change, despite (or often because of) our best intentions. What seems like a good and very fresh idea at the time often ends up having very similar consequences to the thing you are trying to avoid. The “adjacent probables” of goal-driven and profit-driven organisational or institutional practice are what take their toll on employee engagement, organisational direction, and the health of the organisation’s future. They strain the social contract by limiting the expectations and quality of the social contract. If defaulting to the adjacent probable runs the risk of doubling us back into the dynamics of enclosure, the need for helpful culture change interventions invites us to challenge the priming logics of the cultural climate within the situation and within ourselves and to reach for the “adjacent unlikely” that will change the cultural equation.

Reference

Stephen Johnson. 2010. Where Good Ideas Come From: the natural history of innovation. London: Allen Lane.

http://www.anthonymccann.com

Cultural Climate and Culture Change

Cultural climate is the key driver of behaviour and expectations within organisations.

The most important dimension of an organizational culture might be characterised as its “cultural climate”, or, in shorthand, the personality of an organization. The cultures of organizations differ in the way that each person has a different personality, that is, a dynamic pattern of variation in attitude, behaviour, and social interaction that tends to be consistent over long periods. The better you understand the personality of your organization, the better you will be able to respond to the challenges it faces.

To speak of “a cultural climate”, then, is to speak of the dispositional quality of a particular organisational culture, considered in comparison to other organisational cultures or to other times or places within the same organisation. In colloquial terms, the cultural climate of an organisation here means, “what has tended to happen, what tends to happen, and what will tend to happen in a particular organisation (specified by location(s) over a designated time).

“Culture change” is the process of actively intervening to change the cultural climate of an organisation, and supporting that process by way of due diligence, due patience, and due care. To effect a dispositional shift in the cultural climate of an organisation takes time. It also takes sensitive leadership. Until the cultural climate, the personality, of the organisation changes, nothing substantially changes.

The notion of change can be thrown around meaninglessly so that change becomes a welcome, unconditional good, and eternally necessary. Sometimes the term is used as if change is something other than that which ordinarily happens – change becomes rare and difficult to achieve, making it the sacred preserve of the creative few. In the other extreme, change can be considered ever-present, constant flux inescapable; life becomes so saturated with change and impermanence that little we can do truly makes a difference. Change becomes more meaningful when it is thought of as ordinary, possible, and available in everything we do.

Culture change is one of the more radical approaches you can choose to change your organization. Culture change involves identifying, evaluating, and actively changing the personality or personality traits of your organisation so that they better suit the aims, aspirations, and potential of your company, and so they better support the potential and possibilities of everyone in the organisation. At its best, organisational culture change positively affects productivity, innovation, sustainability, and emotional health simultaneously.

http://www.anthonymccann.com