A Politics of Gentleness: towards a critical vernacular ecology

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

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

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

A Politics of Gentleness: towards a critical vernacular ecology

The (slightly edited) transcription follows below:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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Humanising Music and Copyright

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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