ALLURING PROPOSITIONS

The allure of studying indigenous uses of new technologies lies in the juxtaposition of two seemingly contradictory elements: the past-oriented, romantic notion of indigenous peoples who are somehow in modernity but not of it, set against the future-oriented, equally romantic notion of new technologies as the signifier of a progressive, fast-paced, global modernity. Images of indigenous people using new technology conjure this supposed opposition. Intel, IBM, and Compaq are only a few technology giants who have fed this cultural juxtaposition in their advertisement campaigns.¹⁰

For a contradiction to be imaginable, it must function in a given set of standards and practices: this one says that indigenous people cannot be simultaneously traditional and modern, technologically savvy and politically astute, materially oriented and authentically indigenous. That logic is wrong.

Over the last two decades, indigenous uses of new technologies have been part of the emergence of a global politics of indigeneity, a boom in cultural tourism, and the increased debates over what constitutes—and who owns—intellectual property and cultural knowledge.¹¹

Indigenous communities' integration of digital technologies into cultural tourism ventures, language revitalization programs, cultural heritage projects, and land-management schemes foregrounds the multiple layers of connection between technological innovations, economic sustainability, and cultural production.¹²

In Australia, as in other settler nations, the complex convergence of traditional cultural materials and digital technologies has produced a tangible shift in archiving practices and their attendant assumptions about cultural preservation, distribution, and reproduction.¹³

¹⁴ Readily available digital photos, CDs, DVDs and VHS tapes as well as digital video recorders, digital cameras, scanners, and database software are part of—and at least partially responsible for—institutional and organizational shifts in modes of archiving and remembering. The archive's history, Diana Taylor argues, is tainted by its association with “supposedly enduring materials”—documents, buildings, bones—assumed to be “resistant to change” (2003, 19). Colonial salvage projects and the destruction and erasure of cultural materials and practices they provoked haunt contemporary archiving practices and products.

But not all haunting inspires fear. Indigenous-run museums, heritage projects, and cultural centers are now infused with, and grow out of, explicitly political and economic indigenous practices.¹⁵

As James Clifford suggests:

In Clifford's view, heritage work and the cultural negotiation it entails are part of a wider set of indigenous politics that should not be assumed to privilege tradition at the expense of emergent articulations and collaborations. The ideological and conceptual residue of colonial assemblages that once haunted archiving work are being appropriated by and mixed in (up) with indigenous sets of motivations.¹⁶

As I collaborated with Warumungu community members to produce the Anyinginyi Manuku Apparr book, we used a range of digital recording equipment to collect, store, and archive stories, songs, dances, and photos. Like most Warumungu cultural projects, our book work was a catalyst for traveling. Going to and maneuvering through country is a crucial part of maintaining community and kin relations and their material and social benefits. “People gotta keep moving,” Edith Nakkamarra is fond of telling me. As we traveled, on foot and by Toyota, we traced histories of personal and communal displacement and replacement, loss, and suffering as well as happiness and hope. As stories were told, the community history retraced ancestral dreaming tracks and settler circuits.¹⁷

The intersection and importance of both ancestral territories and settler sites on the landscape marks a refusal by Aboriginal people to neatly divide their lives into traditional (before colonization) and modern (everything after). These mobile and placed narratives are self-conscious reflections on a history of contact: both ancestors and uninvited guests constitute this community's legacy.

After dozens of country trips, a mounting stack of MiniDV tapes, and numerous requests for copies of tapes, I realized that a DVD might be one way to package our growing country catalogue. As I packed up a box with stacks of photos and PAL VHS tapes for return to Tennant Creek, my son Jakob clicked through his Lord of the Rings DVD; the making of portions were his favorite parts. He maneuvered through the menu, past the play movie screen to the appendices, where he scrolled through a list of choices: costume design, script, J. R. R. Tolkien, music, and so forth. It hit me. Perfect—a medium that allows viewers to choose their entry points and path through the data while also personalizing their relation to the data strings. DVD technology could account for the multiple concerns expressed by Warumungu women: monitoring access, preserving cultural knowledge, and reinforcing existing kinship networks.

Aboriginal constituencies—or mobs in Aboriginal English—have been concerned with the sliding line between preservation and innovation, access and excess, loss and longevity in relationship to cultural knowledge and cultural sharing for some time.¹⁸

Although the issues of access and accountability are not new, the scale and scope have shifted. During the 1970s, Aboriginal people collaborated with lawyers, anthropologists, and various government institutions to document their spiritual affiliations to land. They did this for practical reasons: to get some of their land back. The 1976 (Northern Territory) Land Rights Act mandated such documentation, and thus collaboration, to determine ownership of land (Peterson and Langton 1983; Merlan 1998; Povinelli 2002). Proving ownership in Australian legal terms is not a new type of cultural translation for Aboriginal people. But if the land claims process demonstrated anything about Aboriginal modes of ownership, it was that there are multiple constituencies within Aboriginal groupings to whom singular ownership proves hard to determine.¹⁹ The law's standardization has provided some measure of empowerment for those Aboriginal mobs able to prove their claims; others have been dismissed and disavowed by the nation.²⁰²¹

The women I work with were all part of the Warumungu land claims process and continue to seek collaborative projects that maintain their cultural integrity while also strengthening and extending their local power and knowledge. While working on the book project, determining which country sites to include, who would be invited to participate, and how each place and story would be told meant consciously debating the structure of cultural openness. The women's traditional knowledge—of songs, territories, history, flora and fauna, and the like—was open for recording, but there would be limits on its reproduction and reception. Determining the lines between women's business and men's business, family and individual histories, and preexisting community tensions all played a part in refixing lines of accountability.²²

Negotiating what should be made open and how to restrict access to the rest of the material was our starting point. Permission would be required. Delineating the parameters for levels of openness involved determining how to standardize the cultural protocols that already sanction the viewing of territory- and kin-related materials. Early in our work the women decided that the book should be open, that is, available to both local community members and outsiders—tourists, other researchers, government officials, and so on. But after years of work, we had an excess of material, most in digital form.

In the summer of 2003, I suggested the idea of producing a DVD to the main group of women involved in the book project. The idea was well received, although, like many types of cultural translations, a tangible object was necessary to test the concept's logic. In July 2004, after working with my partner Chris Cooney on a prototype, we returned to Tennant Creek with an initial version of the DVD's interface, links, and content to give community members an idea of the proposed product and its capabilities. If the DVD could provide a way to compile distinct paths through culturally sensitive visual and aural materials, it could be used by diverse members of the community and archived for generations to come. Producing a user-friendly, culturally-appropriate DVD would provide community members with various levels of literacy access to these digital materials in a way that promotes cultural preservation and leaves open the possibility for new cultural productions.

SOCIALLY NETWORKED INTERFACE

The DVD's dynamic form is well suited to incorporate and account for Warumungu concerns over viewing practices based on multiple sets of identifiers, such as age, gender, and land affiliations. Chris and I knew the infrastructure, design, and interface needed to address community networks of accountability. One of the women working on the DVD explained viewing stipulations this way: “see, cause we're not supposed to look for other families [country], like I should only look for mine, not others.” Mundane practices such as the ways people organized themselves at meetings or how people avoided one another during the viewing of cultural materials articulated this system of restrictions and served as a guide for the DVD's information architecture. The main interface is not a map or replication of social networks onto digital networks. It is a partial grafting—a selective process whereby cultural standards are reworked within a digital domain.

This partial grafting was already in place. Warumungu social protocols were evident in the organization and use of a shared iMac at the Nyinkka Nyunyu Art and Culture Centre in town. The hard drive on this shared computer is named wumpurrarni (Aboriginal people), the most basic group identifier for Warumungu people. It is further partitioned into two sections: kartti (man) and kirriji (woman). Hundreds of files are placed within each of these categories, with the only unique identifier being the file name. File names are often very long, for example, “jampindrovingatrockhampton”—a conflation of name (Jampin), experience (droving), and place (Rockhampton). The choice of file names reflects community members' attempts to sort information without using mutually exclusive categories or a standard naming convention, either of which could imply singular ownership, which no individual can claim within their extended kin network.

Instead of reproducing this standard file/folder “page interface,”²³

as the DVD's organizational structure, we thought that a filter-inspired interface would allow users to sort and search based on changing criteria. Although DVD technology does not afford dynamic searching, it does allow one to manipulate material through directed choices. Prompted by familiar images and culturally relevant categories, users can then chart a path through the data on the DVD.

The first prototype tested this logic (see Figure 1). Main Menu Screen: Anyinginyi Manuku Apparr image—painted by Edith Nakkamarra and reproduced digitally from the front cover of the first version of the book. Half-circles painted in red ochre—large and small—are surrounded by black and white dots. In the middle, a dash of blue-green forms a circle.

Click in the circle. Audio: Edith explains the design, “We all sit by a fire, nighttime. Talk about the old days, like one mob and then another.”

Click. Enter the next screen: a series of country names, historical events, and family names in Warumungu and English with graphical representations. Click Kunjarra. Next screen. Another set of choices: introduction, Kunjarra stories, Kunjarra songs, women's dance.

(See Figure 2.) Click Kunjarra stories. More choices: dates, personal names, events, place names. Click Protest. Fade in. 31 July 2000: Kunjarra. We see: clear blue sky, auburn-red boulders in the background, several women and children walk about. Nappanangka and Nakkamarra stand in front of a white Toyota Land Cruiser. Watch and listen. For ten minutes the women recount the way they held off miners from their land in 1989. Fade out. Back to the previous screen. Click photos (same day). Choose slide show. Click show all. Watch: Nappanangka and Nakkamarra sit near the old camp that served as their makeshift home for their two-month stand off with miners. Fade out. And on, twenty-one photos to view from that day. Fade back to the previous screen. Choose another entry point.

A series of choices directs user movement. Each prompt has a cultural protocol embedded: gender restrictions, country affiliations, social relations, and the like. Community members direct their own movements through a compilation of differing historical moments. In this way, the interface works off an understood VCR logic—start, play, stop. However, the DVD's format allows users to access multiple points of entry and group existing data in variable presentations. The singularity of the DVD—as one object—masks the multiplicity of cultural work it allows. It can preserve as well as expand knowledge practices. It is part of a cultural mandate to both properly distribute knowledge and maintain its integrity along well-defined (but not unchanging) social networks.

The work involved in production and the process of merging protocols for distribution, both local Warumungu ones and those attached to the DVD's technological format, is never easy or tension free. Those involved in our project are also simultaneously workers for or collaborators on other projects, including mapping country sites, compiling Warumungu-language books, producing local compact discs (CDs), and so forth. Conflict and collaboration were part of our negotiating process. Individuals and groups have agendas—some overlap, others don't. With or without digital archives, culture work is never clear-cut. Disagreements over access and accountability are not thwarted by this technology. Technological trade-offs are always inflected by social networks, whereby people integrate their own mechanisms for control and change into the technology. Use is not predetermined. Unintended outcomes and uses are standard. Both technology and social protocols shift.

Like other cultural negotiations (human-to-human and human-to-technology), this one was part of an ongoing Warumungu dialogue with others. Rather than see the technology as something that might lead to what anthropologist Eric Michaels called an “electronic invasion” (1994, 81), I suggest that these collaborations are negotiated within a dynamic set of cultural protocols that continually tack back and forth between innovation and preservation. There are many gradients between what is assumed to be open—and how it functions in that capacity—and what may be closed. These women decided, based on their history together, their combined and individual knowledge of country, and their own ritual obligations, how to share and extend knowledge. Others in the community use a similar framework to make their own decisions; neither the system nor the knowledge is static.

New technologies enter into and circulate within indigenous communities in combination with tourists, researchers, government funding agencies, and local community members.²⁴

Seeing these as inherently disruptive denies the capacity of local intellectual property regimes to integrate emerging technologies and rework their attendant social relations. Negotiations over access and appropriateness are based on changing sets of conditions from the most hostile (colonialism) to the seemingly mundane (new technologies). Neither technology nor tradition holds a trump card. Existing and emerging social and technological relations function in dialogue with one another; predicting how the conversation will end is fraught. To be sure, compromise and collaboration will be part of the mix.

SHIFTING MANDATES

One of the challenges we encountered in designing the interface for the DVD was to link this seemingly contradictory mandate—to preserve cultural knowledge and promote cultural innovation/reproduction—with existing social networks as well as the structure of DVD technology. When I previewed the DVD for the group of women who are “bosses” for most of the material included, they expanded their focus to include another constituency: tourists. In July 2003, the Nyinkka Nyunyu Art and Culture Centre opened in Tennant Creek. These same women had been intimately involved with the conception and production of the centre. This new venue for Warumungu cultural products brings with it the possibility of an expanded market for the DVD as well as a place where interested community members can access repatriated objects, digitally stored photos and video, and the digital technologies that allow for their combination. With a resource area for local community members as well as a museum area and gift shop, Nyinkka Nyunyu's function is not only (or merely) tourism. Instead, the copresence of repatriated objects and newly produced ones (like the DVD) points to the already underway processes of cultural remix.

As we met with the community members involved, it became clear that the complex structure of the DVD's interface, although necessary to maintain cultural restrictions internally, was not enough to guarantee that proper social etiquette would be followed by non-Warumungu people who might view the contents. With a tourist audience, local children, and a general Warumungu audience in their view, the stakeholders decided that the initial DVD, like the book on which it is based, should be open for a general audience. Like other cultural knowledge that remains open, available to noninitiated community members and outsiders, the material on the DVD is part of an extensive social network, one that continues to grow and expand as it is reproduced and redistributed. Open does not mean free as in no cost or free as in no restrictions. But open in this case signals an assumption that transgressions or misuse might occur, but it limits the reach of those breaches to only specific sets of knowledge and practices. Thus, the DVD could encourage new partnerships and the extension of social relations along a large, perhaps global, network at least partially defined by community protocols.

To accommodate this new audience and viewing protocol, we reworked the interface with three key identifiers suggested by the women: country, history, and culture. Community members' choice of key words reflects their position within this new tourist market, eight years of planning for Nyinkka Nyunyu, and government-sponsored community projects aimed at preserving culture.²⁵

Country was never in question—it is the main way Warumungu people identify. “Where's your country?” is a standard greeting. That people are related to land, and land to people, is a given, although romantic connotations given to this reciprocal relationship by others distorts both the practicality and spirituality of these relations. Here country functions as a meta-tag; it encompasses a large set of relations built over intersecting networks.

History in this case refers to stories of contact with outsiders. As we were searching for a key word, people latched on to history as a way to distinguish stories told about relations with papulanji (non-Aboriginal people).

Culture, on the other hand, is the categorical referent for local Warumungu activities such as song, dance, and artwork. Culture, specifically gained prominence in local usage during the last ten years in conversation with the national boom in cultural tourism, the rise in popularity of Aboriginal art globally,²⁶

and as preparation for the Nyinkka Nyunyu Art and Culture Centre in town proceeded.

That these terms carry a colonial residue was obvious to both Warumungu and non-Warumungu constituencies involved. But the Warumungu people who chose these terms did so both to speak across audiences—to foreign tourists, locals, and non-Aboriginal Australians—and to speak back to the dominant national assumptions associated with the terms. Their purposeful repurposing indicates a reshuffling of historical relations and a counter-narrative, but not one that rejects indiscriminately. Warumungu residents are involved in an array of culture-making activities in which new technologies, out-of-town collaborators, national and regional funding agencies and various community interests mingle. In each case, these joint ventures are scrutinized and negotiated by different mobs; there is never total inclusion. Power dynamics within the community continue to change and shift, with new community members taking on leadership and liaison roles. Like other communities, the Warumungu community in Tennant Creek is made up of several overlapping and contingent mobs, with a shared, but not the same, history and vision of the future. In each case, just how Warumungu law should be interpreted, preserved, and extended is discussed and debated by insiders as well as outsiders.

Of central concern to all of us involved with the project was what should be done with the closed material, the more personal, restricted, and gender-specific media that would not be a part of the reconceptualized DVD project. The solution is twofold: (1) a series of family-specific DVDs and (2) a community media archive that can be password-protected. The compact size and mobility of a DVD were its alluring qualities—people in extended kin networks could share the disc or make multiple copies for various family members without having to worry about viewing someone else's country. These family discs, as they have come to be called, are part of an emerging genealogical-historical archive. The staff members at Nyinkka Nyunyu have been active in the repatriation of cultural objects, including boomerangs, axes, and stone knives, along with thousands of photos, as part of the centre's visual displays and community resource center.²⁷

The DVD articulates with this local archival logic as a mechanism to both hold and partition data that now resides on the hard drive at Nyinkka Nyunyu and on dozens of CDs made by the centre's staff. Mobility is necessary. Cultural knowledge that remains static for too long can die—its owners are no longer able to access its power.²⁸ As with people moving across country, for knowledge to remain powerful, it needs to travel. In Aboriginal sociospatial systems, “a place,” Francesca Merlan reminds us, “must be learned” (1998, 214).

The idea for the family DVDs incorporates the cultural desire of Warumungu people to physically travel very specific sets of country tracks and remember personal histories, often from different starting points. When people follow dreaming tracks in ritual performances, they do so from a distinct but not wholly unique vantage point. They must consider the possible interlinking tracks—where they cross and with whose country. Newly dreamt sequences may be added; those that are affiliated with people who have passed away may fall into disuse, and so on.²⁹

This same dynamic sociality overlaid by an exclusive, yet not static, set of territorial relations informs the way people interact with images of country on computer screens as well. Viewing strategies incorporate some elements from existing social practices while also altering those same structures. The interface is dynamic.

As the second part of this project then, the media archive will allow people to search, sort, and shuffle various media and create their own cultural objects. This will be an archive whose default is not preservation. Leveraging Apple's iLife suite of tools, users will be able to “rip mix burn,” but within a set of parameters dictated by the community. The archive will be password-protected, each data set tagged with a unique identifier and a range of keywords. The key words will then allow people to sort through the various media to identify relevant data. In addition to key words, a description field will be open ended, allowing community members to add, delete, and edit a string of text. As for now, just how to determine who will have the power to delete is under debate. A possible technological solution would be to manage multiple additions, Wikipedia-like, within the archive for each set of data. In either case, what the community ends up with is a rich, multilayered text for each image.

Community members we worked with decided family groups would be the best way to distribute passwords. Each group will eventually decide who will have access to the images and sounds and what is appropriate to remix. Together, family groups will be able to compile their own historical archive as well as create new cultural products from the many stored digital images (see Figure 3).

No doubt this emergent type of cultural production will be, like all cultural change, a process of give-and-take between overlapping interested parties. It is hard to predict where the lines will be drawn. My initial assumption of a generational divide did not materialize. In fact, it was some of the most elderly members of the community who pushed for the innovative, generative aspects of the archive. Part of the inclusion of new technologies in these ventures is about maintaining control, both technological and social, over how cultural knowledge is catalogued, circulated, and cultivated. A community-located digital archive means that people do not need to travel thousands of kilometers to Canberra or further to access (some) historical documents and photos. It also means that local mobs—through their own decision-making channels—can decide how to grant or deny access to a range of materials.³⁰

The Warumungu social landscape includes objects, people, land, and ancestors that all comingle to produce and distribute knowledge. Not all networks foster the same relations. National and international systems for reckoning what counts as knowledge and property are defined as intellectual property (IP) rights. But these international rights-based systems are part of dominant histories of colonialism, neoliberal markets, and specific corporate alliances. Their assumed global application circumvents other systems. Warumungu cultural protocols concerning authorship, ownership, viewing practices, and knowledge creation are an intellectual property rights systems—a set of standards and limits for the use, redistribution, and reproduction of knowledge in its tangible and intangible forms. But the links between these Warumungu digital dynamics and the national and international legal systems in which they circulate are not stable. Both the commercial version of the DVD and the family versions challenge IP systems that demand a rigid public/private split and an author-centered notion of production. Furthermore, Warumungu conceptual logics defined by a continuum of access rights and layers of accountability complicate current assumptions about the parameters of the cultural commons, the opaqueness of the public domain, and the dynamics of indigenous knowledge-making protocols.

UNCOMMON INTERESTS

Indigenous knowledge systems are often defined by communal ownership, while Western systems are usually anchored to individual ownership. This individual/communal view often masquerades as the inherent differences between indigenous peoples and the West. But indigenous concerns do not align neatly with any one agenda. In fact, attempts by the U.S. recording industry to define file sharing as “online shoplifting”³¹

—especially in the prominent peer-to-peer (p2p) file-sharing debates³²—resemble the highly visible agendas of some indigenous leaders to protect their cultural heritage from the same types of stealing.

The 2003 Indigenous Position Paper for the World Summit on the Information Society (WSIS) states for example, that, “Our collective knowledge is not merely a commodity to be traded like any other in the market place. We strongly object to the notion that it constitutes a raw material or commercial resource for the knowledge-based economy of the Information Society.” Like some of their corporate counterparts, international indigenous representatives want to limit the circulation of particular ideas, (tech) knowledge, and cultural materials. In fact, they “strongly reject the application of the public domain concept to any aspect related to our cultures and identities” and further “reject the application of IPR (intellectual property rights) regimes to assert patents, copyrights, or trademark monopolies for products, data, or processes derived or originating from our traditional knowledge or our cultural expressions” (WSIS 2003).

The particular concerns articulated by indigenous leaders form an odd synergy with corporate giants, such as the computer software and recording industries, in their bids to excise certain types of digital materials from the public domain, crack down on the virtual theft of property, and redefine dominant intellectual property regimes. Both want to reroute the neoliberal marketplace in which information circulates as a commodity. And both use culture, creativity, and discrete knowledge claims to make their cases. But the common interests between indigenous leaders and their representational bodies and corporations do not suggest shared motivations. There may be some. But attempts by both to limit and redefine property, culture, and the public domain underscore their discrepant economic and political locations within the global market. Both are caught up in what legal scholar James Boyle sees as “a conceptual scheme that portrays ‘intellectual property’ as a monopoly, and ‘the public domain’ as its conceptual opposite—a realm of vaguely defined ‘freedom’” (2003, 8). That is, each must lodge concerns about their cultural and intellectual property within a narrative defined by exclusionary endpoints.

From UN documents to national legislation, in courtrooms and in cyberspace, culture is quickly becoming the interface for maneuvering through and mobilizing support for both indigenous and corporate economic and political rights.³³

But what happens when cultural property and traditional knowledge become the basis for social justice and economic redress? In his study of efforts to protect native heritage through intellectual property rights, particularly copyright laws, Michael Brown asserts that, “novel forms of cultural copyright come with substantial risks. If we turn culture into property, its uses will be defined and directed by law, the instrument by which states impose order on an untidy world.” Brown's warning against embracing “totalizing solutions to complex social problems” (2003, 8) foregrounds both the contingency and the specificity of connections between culture and property. If culture is standardized and subject to strict legal conditions of use, the result may be less room to maneuver, create, and repackage culture.

Assessing the range of interests and stakes involved in redefining intellectual property, Rosemary Coombe argues that however contested the concept of culture is in anthropological circles, in international law it is “performing an ever-greater amount of complex ideological work” (2003, 273). Part of this ideological work is being done at the level of production: new cultural objects that embody/contain intellectual property—digital archives, DVDs, CDs, Web sites—are quickly becoming the site for redefining notions of property, ownership, and the public.³⁴

The rapid availability and ease of distribution (legal and illegal) of copyrighted works and the exploitation of indigenous cultural artifacts find company in these ideological maneuvers. States that may want to reconcile with their indigenous populations and appease corporate fears can use the rhetoric of preserving culture, cultural rights, and cultural creativity as a way to legislate more rigid standards for digital technological practices. In his examination of national attempts to address historical injustices, Elazar Barkan suggests that:

International debates, forged from various local concerns, have aligned cultural property with human rights, morality, and economic justice. Australia is no exception. In 2000, the Australian Parliament passed two amendments to the 1968 Copyright Act: the Copyright Amendment (Digital Agenda) Act 2000 and the Copyright Amendment (Moral Rights) Act 2000. The Digital Agenda Act extended the 1968 Copyright Act to “take account of technological developments such as the Internet and Pay TV.” The “most significant change” to the existing legislation is the “creation of a new right of communication to the public.” Essentially this gives copyright owners “the right to control how their work is electronically transmitted to the public or made available online.” (DCITA 2004). There are exceptions to this amendment for educational purposes and for institutions such as archives and museums. What the amendment does, however, is allow copyright owners to pursue the producers of Web sites or broadcasts who post or transmit their copyrighted materials without their permission.³⁵

Linked to the Digital Agenda Act, the Moral Rights Act “wants to ensure that the original creators of works are recognized and have some control over their work whether or not they are also the copyright owners.” The Act includes “the right of a creator of a work or maker of a film to: (1) be acknowledged as the creator of the work or film (right of attribution); and (2) object to derogatory treatment of the work or film (right of integrity).” (DCITA 2004). Although this legislation is not specific to indigenous materials, it is at least partially a response to high-profile legal cases launched by indigenous people over the unauthorized reproduction of cultural property, such as clan designs, songs, and territorial images.³⁶

Yet the emphasis on original creators and individual works limits Aboriginal claims that may emphasize a range of producers and/or nonsingular or accumulated works.

In the years following these amendments, Aboriginal activists and lobbyists scrutinized the moral rights agenda. After several years of talks, on 19 May 2003 the federal government committed itself to amending the original 1968 Copyright Act again, this time with “Indigenous communal moral rights” (ICMR) in mind. In a joint statement by the Attorney General and the Minister for Indigenous Affairs, indigenous communities were promised “new protection for creative works”.³⁷

Seven months later, the first draft version of the Copyright Amendment (Indigenous Communal Moral Rights) Bill 2003 was sent to reviewers. The ICMR amendment proposed to use copyright legislation to protect the “traditional culture and wisdom” of Indigenous communities.³⁸ Attorney General and former Immigration and Indigenous Affairs Minister Phillip Ruddock, suggests that, “the protection of Indigenous culture depends upon strong and effective copyright laws” (2003).

Even with these declarations, the amendment's efficacy is questionable. After reviewing the draft version, legal scholar Jane Anderson finds that “it is difficult to imagine any circumstance arising where remedy [by indigenous communities] could be attained for infringement.” Further, she argues that in the context of a national indigenous rights agenda, the draft Bill erects more barriers than it breaks down. The five formal requirements for a claim to be filed are imprecise enough to make one wonder just how a community could fulfill them all?—(1) there must be a work, (2) the work must draw on traditions and customs of the community, (3) an agreement must already have been entered into between the community and the creator of the work, (4) there must be acknowledgement of the indigenous community's association with the work, and (5) interested parties in the work must have consented to the rights arising. In each case, the onus is still (as it has been without legislation) on indigenous communities to get agreements up front and to define their work in either familiar author-centric terms or vague traditional ones. Effectively, if the ICMR is passed, the government strategically avoids engaging with the extent of copyright issues brought forth by indigenous communities—nothing seems to have changed.³⁹

Taken together, these amendments signal a shift in Australia's legal understanding of intellectual and cultural property. The slipperiness of the legal jargon, which aims at balancing “the increased rights of copyright owners and the public interest in access to information,” and the situations to which it will be applied will tell a more detailed story. For now, lawmakers and some Aboriginal groups hope that the new protocols will educate the public to the communal nature of Aboriginal cultural materials and the moral necessity of consultation prior to use. These agendas may also have the unintended consequence of further entrenching the view of traditional Aboriginal culture as that which is ancient, nonmodern, and certainly not for sale. Or it may be that artists and cultural producers who defy the dominant cultural logic of their communities are legally restricted from expressing their aboriginality. Some may be too modern and others not traditional enough. Or legal restrictions may actually keep Aboriginal-owned and produced products out of commercial circulation by curtailing partnerships between nonlocal companies and Aboriginal communities. None of these scenarios can be addressed through stricter, or more vague, copyright laws.

Yet many nations, prompted by corporate fears over intellectual property theft as well as indigenous concerns over misappropriate use and distribution of cultural property, have sought solace in stronger copyright laws and more rigid claims concerning the reuse of some intellectual property. But the protection promised by these new legal regimes has not been realized by indigenous communities.⁴⁰

Instead, the rhetoric of communal rights merges with another international movement challenging the reach of intellectual property rights: the cultural commons.

THE COMMONS REMIXED

Michael Brown argues that “the economic injustice associated with the imitation of indigenous music and art” is derived not from the “taking” of material. Instead, it is the “appropriators' social capital” that “leaves them better positioned than their indigenous counterparts to reap financial reward” (2003, 236). Markets are not as blind as they are made out to be. The proposed amendment in Australia maintains the social imbalance between Aboriginal and non-Aboriginal cultural producers within the legal guise of equity. And others have an interest in perpetuating inequity through moral agendas as well. For example, where the public domain and the digital merge for the recording, computer software, and book-publishing industries, there may be profit loss.⁴¹

In this scenario, those who download, share, rip, grab, or otherwise take copyrighted digital information are misusing the technology and exploiting protected information. Expanding copyright law, then, means less chance for cultural innovation and sharing of the infamous “rip.mix.burn.” sort promoted by Apple. But in the Apple version, consumers are empowered to be creators, to rip information and images from the Web, mix them with others using their iLife tools, and burn a copy with their DVD/CD super drives standard on many Apple computers. Here Apple promotes creation as a rotating set of collaborations, but these are virtual alliances where responsibility and respect are not always part of the code. Other systems of responsible sampling and respectful remix are erased from each of these snapshots. One is either a pirate or a purchaser.

It is clear that recent U.S. legislation expanding copyright terms and limiting the reuse capabilities of digital technologies benefit media conglomerates.⁴²

For many critics, market-driven protectionism is winning. To counteract this presumptive victory, the commons is offered as an alternative.⁴³ Where the market is built on exclusion, the commons is seen as inclusive. Working against the prevalent economic notion of the tragedy of the commons⁴⁴—overuse and depletion of shared resources—advocates have redefined the commons as a place where innovation thrives because it is fueled by information, a “nonrivalrous resource.” Information can be endlessly shared without losing its value.⁴⁵ As perhaps the most vocal champion of this position, cyber lawyer Lawrence Lessig promotes the Internet as the “innovation commons” and uses it as an example of a space where cultural remix produces knowledge, innovative ideas, and democratic disobedience.

Focusing on this cultural commons, in his latest book, Free Culture, Lessig argues that “free cultures are cultures that leave a great deal open for others to build upon.” Free culture is opposed to “permission culture—a culture in which creators get to create only with the permission of the powerful, or of creators from the past” (2004a, xiv). “Ours” he says, meaning the United States, “was a free culture. It is becoming less so” (30). Arguing against the extension of copyright laws and legal control over emerging digital technologies, Lessig wants a return to a more balanced version of copyright within intellectual property law. While Lessig concentrates on U.S. and European histories of copyright, the multiplicity of local regimes are out of his view. Yet what he clearly documents is the global diffusion of American property values. That is, the hegemony of U.S. intellectual property regimes downplays the fact that local intellectual property systems function in conversation with, and in contradistinction to, these newly implemented regimes.⁴⁶

In their critique of the current “romance of the public domain,” legal scholars⁴⁷

suggest that the prevalent commons talk, especially among the advocates of a digital commons, ignores the multiple disparities between those assumed to make up the commons. Mainly they are “concerned that the increasingly binary tenor of current intellectual property debates in which we must choose either intellectual property or the public domain obscures other important interests, options, critiques, and claims for justice” (1334).⁴⁸ In this sense, the free-culture/permission-culture binary misses the seepage between the two.⁴⁹ American intellectual property regimes overlap with these other social systems, but misrepresent the not-wholly individual nature of knowledge allocation and distribution within indigenous knowledge systems.

Romantic notions of sharing aside, indigenous knowledge networks are often built on a type of “demand sharing,”⁵⁰

where knowledge is distributed and created within systems of accountability. In these networks, past producers must be acknowledged and accounted for. The option of free doesn't exist in either of Lessig's scenarios: where “one can use it without the permission of anyone else” or where “the permission one needs is granted neutrally” (my italics 2001, 12).

In the Warumungu system of information circulation and production, there is both cost (some form of payment/permission) and sets of restrictions that are biased (i.e. not neutral)—that is, they are applied differently according to multiple criteria. Elders and knowledge owners who restrict and grant permission provide a framework for younger generations and others to produce cultural products as well as preserve older ones. “Creators of the past” are not necessarily restrictive or hoarders of power. Their influence is not always oppressive, it can be liberating as well. New visions and versions of tradition are continually produced through this past-present dialogue. Lessig is partially concerned with what he calls “cultural lock-down”—where knowledge sharing in the public domain is seriously curtailed by overzealous laws that limit how technology can be used.⁵¹

When this happens, the majority of creators are locked out—only a few have the key (that is, the corporations that hold copyright). In this scenario, remix culture is vital because it makes possible the spread of counter-hegemonic ideas and ideally leaves open the space for innovation and inclusion.

As much as it's hard to disagree with Lessig that this type of remix is part of political disobedience and cultural production, his image of the commons takes much for granted. Individual creators are privileged even as they build on knowledge sets from the past and work from biased (not neutral) technologies, knowledge practices, and economic structures. The rhetoric of freedom—free of restrictions—replays the structure of enclosure, open for some closed for others. Should we perpetuate the logic that race, gender, and class aren't part of the digital commons? That somehow technologies and the infrastructures of design—the code—do not work to secure and structure moral and political positions? That innovation is not socially and politically inscribed? Or, that those who are “functionally absent” should relinquish their place in this commons?⁵²

That there should be limits on, and dialogues about, digital rights, technological control, and the circulation of information is certain. But the cultural commons solution buys into a mutated colonial logic that once produced the museum of mankind ideal of cultural collection; innovation and preservation for some, erasure for others. Instead of reproducing this either-or debate (public/private, commons/enclosure, pirates/purchasers), we should ask where the lines of this commons are drawn and by whom.⁵³

Revamping legal structures maintains U.S. versions of property and progress as universal. Instead, as Ted Striphas suggests in his study of changing copyright laws and e-books, we need to do the “messier work of mapping more fully the contemporary context and devising strategies for intervention specific to it” (p. 22).

In this case, concerns expressed by indigenous representatives include not just protection, but also the possibility of equitable collaborations. The goal is not to shut indigenous cultural products out of the public domain or the market but to maintain their integrity within several coexisting domains. The Warumungu DVD is a commercial product, a kin-based archive, and a platform for cultural innovation. It was produced both out of and in spite of ongoing structural inequalities. As Rosemary Coombe argues, “The demand of indigenous peoples and traditional communities is not simply for compensation […] but for authorial recognition as peoples, partners, and participants in the preservation of cultural diversity to serve longer-term objectives for greater distributional justice” (2003b, 7).⁵⁴

Market spaces are not inherently anti-indigenous, and indigenous peoples are not naturally antimarket. But the artificial and romantic division of indigeneity and commercialism erases the concerns indigenous communities have over negotiating with and at least partially determining the contours of these (information and commodity) markets. Michael Brown suggests that, “From an indigenous rights perspective, the public domain is the problem, not the solution, because it defines traditional knowledge as a freely available resource” (2003, 237). Legislation that extends copyright and expands the rights of creators is only a partial answer to some indigenous claims. While some forms of cultural property may be protected, others will never stand up to the test of originality or singularity mandated by the law. The problem may be that opposing notions of the public domain—who and what counts and in what ways—have been too easily divided into either open and closed, only one or the other. Warumungu systems of knowledge distribution, reproduction, and generation, however, rely on a continuum between open and closed, where responsibility, recognition, and regulation increase but are never total. Interdependent, and shifting, sets of knowledge practices produce a sociospatial landscape that is continually refracted through acts of negotiation.

The public domain is not the problem because it assumes knowledge to be free; it is the problem because it cannot assume knowledge to be otherwise. Our impoverished understanding of the public domain comes from its genealogy; its cultural and historical baggage is hard to jettison. Rational, autonomous subjects, calmly debating and discussing the common good is an historical conceit; the public domain has always been a exclusionary proposition, a space to define who does not count: women, people of color, primitives, and the like. Sampling the archives of the modern ends up replaying the same sound track. We need a new catalogue.

CREATIVE CATALOGS

This new catalogue could be produced at the intersection of digital technologies and indigenous initiatives. The production of the Warumungu DVD and the emerging archive, when taken seriously as viable cultural productions, challenges the notion of the public domain as the primary space for cultural reproduction and the creator as the primary agent in cultural creativity. Instead, these objects are predicated on their multiplicity, or their ability to continually reproduce. They circulate within overlapping domains of sociality. These cultural objects, I have been suggesting, offer a way to rethink the spatiality of knowledge in relation to cross-cutting systems of accountability. Neither a generalized notion of the public domain nor an unmarked commons can account for the cultural dynamics of these interconnected networks. New technologies and old cultural protocols merge and produce dynamic local solutions to variously global issues. The DVD's digital storage capacities allowed Warumungu concerns about preservation and access to be accounted for and at least partially integrated. This newly produced digital artifact cannot be accounted for in a cultural commons where technology and information are viewed as neutral. It is, in fact, a testament to the inherent sociality of technology.

The association of the digital age with a digital divide—technological misappropriation and neocolonial agendas—denies the managed mergers of digital technologies and indigenous agendas across social, commercial, and political domains. Like indigenous agendas, the digital implies a multiplicity of strategies, technologies, and tools. Issues of access, audience, and the potential circulation of cultural materials and knowledge cut many ways. The Internet, digital archives, and DVDs all invoke divergent answers and questions. In some cases, indigenous communities, or parts of them, may want to restrict access; in others, they may want to create their own products or collaborate with outsiders to encourage the circulation of some cultural products over others. As with human-to-human collaborations, digital partnerships continue to challenge and change the intercultural landscape.

The intersection of digital technologies and indigenous initiatives offers many scenarios; that is, “specific repertoires of cultural imaginings”.⁵⁵

Cultural repertoires are dynamic; they are continually being reshuffled. The DVD's various incarnations, and the digital archive it postures to, rely on digital technology to preserve and reproduce cultural knowledge within extended networks that both include and exclude insiders and outsiders. Distribution is limited and enhanced. Knowledge preservation is the basis for selective viewing practices at the same time as it encourages new linkages. Remix happens and is both challenged and controlled by changing cultural protocols built from a traditional but not unchangeable set of standards.

Histories and ongoing legacies of colonialism cannot be jettisoned for the wish of a global commons. Neither the expansion nor the reduction of copyright law can deal with the sociality of information encouraged by indigenous protocols. Calling for a commons where culture is generalized around first-world notions of public/private accountability denies the multiplicity of both the objects/ideas under culture's umbrella and the social modalities in which they circulate. Empowering local communities to invigorate their own local information regimes means recognizing that information, in fact, does not want to be free. Nor can it.

In the 1970s, Aboriginal organizations in Australia emerged as a site for self-determination politics. Although not an unqualified success, these organizations do serve to merge local information/knowledge regimes with commercial and noncommercial Aboriginal ventures.⁵⁶

Many, if not all organizations, in fact, already have structures for, and strategies aimed at, working with businesses, researchers, and other outsiders. Researchers sign contracts to “give back” or “return” information gathered. Companies work within locally negotiated agendas for sustainability. Governments must negotiate for the use of indigenous-owned land.⁵⁷ In these emergent systems, power discrepancies cannot be ignored. Instead, the potential circulation of digital information within overlapping commercial/cultural spaces pushes us to recognize both the persistence of inequitable resource distribution and the limits of legal solutions. Cultural and intellectual property are managed and mediated within social relations and produced through histories of ongoing political tensions. If we detach digital culture from its material and social networks, then the possibility for community content management and cultural redistribution along the open-closed continuum loses its multiplicity; it becomes an either-or decision instead of a string of if-then propositions.