As debates about cultural property evolve in tandem with broader social and political issues and events, Merryman’s model of two ways of thinking about cultural property has splintered into many more (Merryman 1986; Bauer 2008). The constituents or claimants of cultural property have expanded from an initial dialogue between the national and the international to include many more grass-roots constituencies (from Indigenous communities through to the descendants of Jewish families systematically dispossessed during World War Two). In turn, following cultural theory and property theory more broadly, cultural property is no longer understood to be simply material culture, things we have collective rights in, but rather is perceived as the rights in relation to an assemblage of subjects, objects, processes and practices (Strathern 1999). The form of cultural property has also expanded away from antiquities, monuments and museum pieces, to include digital technologies, immaterial practices, medicinal knowledge, dance, music, sport and so on.
The emergence of new stakeholders, new territories, new sovereignties and new legal regimes is both produced by and produces new forms of cultural property. It also produces provocations and ambivalences: provocations in the sense that there are real challenges to liberal conceptualizations of the individual and property, and ambivalences in the sense that the state is no longer perceived as the primary site for cultural regulation. Thinking through these provocations and ambivalences, George Marcus observes that the claims of Indigenous peoples, for instance, are provocative because they ‘define a form of cultural property that does not respect the nation-state but instead stands for the exclusive Other that operates within and across the boundaries of nation-states’ (Marcus 1998: 233). This might also be understood as a politics of refusal (Simpson 2014) or as a form of counter-heritage (Byrne 2014). As a result of active disruptions to the traditional status quo of cultural property many of its new forms are experimental – cultural property regimes and discourses are being extended to intellectual property, to traditional knowledge, to pharmaceutical knowledge and even to the human body. Other forms of cultural property emerge from long-standing intersections and tensions between processes of marketization and commodification, and understandings of the public, the commons, national and universal heritage. In this section our contributors explore the intersections between cultural property discourses, the material world and the multiple relationships that shape and are shaped by these engagements.
Sita Reddy unpacks debates around the claiming of yoga as cultural property by India as a nation-state. Reddy highlights the ways in which yoga is in fact an ‘invented tradition’ that comes into being as a recognizable form of cultural property in the moments it becomes global. In this moment of recognition a very particular form of twentieth-century neoliberal nationalism is simultaneously mobilized and Reddy details this response as well as its consequences. The twentieth-century history of yoga as a form of fitness and lifestyle philosophy, both outside and within India, underscores the imaginary of yoga as an ethnically, spiritually and nationally delineated practice. By complicating the usual binary between culturally invested community engagement and corporate engagement, Reddy invites us to appreciate the ways in which new forms of cultural property also serve older ambitions, for instance in support of neoliberal nationalism. Here Reddy points to the paradox of both making and undoing cultural property at the same time. Yoga, because of its global distribution, can no longer function as cultural property of the state; it merely serves as a prop to reinforce a national imaginary that is cloaked in a variety of deliberate exclusions and omissions.
In a twist that layers past national politics and history with emergent ideas of property and collective memory, Lee Douglas explores the ways in which post-Franco Spain is coming to terms with its troubled history through emerging forms of restitution and historical memory that result in the recognition of new kinds of evidence of the past, from skeletal remains through to oral history and family documents. The efforts of citizen-scientists to presence the disappeared of Franco’s regime is a political movement that exposes the complicity of the archive in state projects of oppression. Forensic anthropologists, alongside artists, historians and family members, labour to make this past, focusing attention on bodily remains of ancestors and oral histories in order to establish new articulations of cultural property from within the state but not of the state. In this emergent form an active critique of the state as the responsible authority is legitimately leveraged, since it is through the violence of the state towards its people that this new kind of cultural property has emerged.
Jane Anderson and Maria Montenegro’s piece explores the ways in which the digitization of cultural property has created a new mode of social interaction and new protocols and collaborative frameworks for governing the circulation of digital media. Focusing on two instances of negotiation and collaboration – the Zuni reworking of the 1923 Shalako film held at the American Museum of Natural History and the Local Contexts project (an initiative to build new licences and labels for traditional knowledge within digital archiving platforms) – Anderson and Montenegro highlight how the digital circulation of cultural property encodes new forms of entitlement and sovereignty over cultural property, but in ways that are very different from the usual interventions into intellectual and cultural property rights. Local Contexts is in fact a hack of Creative Commons, itself a hack of intellectual property. Local Contexts insists that cultural property become an idiom within intellectual property – that attention be paid to the perpetual and enduring collective rights that are inscribed within digitized and digital culture. Both intellectual property law and Creative Commons focus on the rights of individual authors to maintain copyright or to give it up. Local Contexts recalibrates this domain to the “third space” of cultural property (see the Introduction to this volume). In the emergent domain of negotiated rights and permissions, cultural exchange is encapsulated by the notion of protocols and the development of meaningful practices of collaboration must also attend to the legal legacies of ownership that are being perpetuated in the transition to the digital.
In a similar vein, Shannon Faulkhead, John Bradley and Brent McKee explore the ways in which animations have come to mediate and make tangible Aboriginal language, allowing for a re-articulation through wide circulation of digital media of Aboriginal rights and sovereignties over cultural tradition, and therefore land. The dynamic objectification of storytelling through animation permits a greater visibility and circulation for Aboriginal language, and the discourse of cultural property leverages this visibility into a project of cultural revitalization with very specific activations of community agency. These animations also upend some of the binaries inherent within cultural property discourses. Put together collaboratively they reflect both Aboriginal knowledge and Euro-American visual culture. They reference the property protocols of both Aboriginal law and Western intellectual property, presenting us with an intercultural property artefact.
Marama Muru Lanning examines the tensions between corporate interest and cultural property surrounding the national allocation of different rights and entitlements to water in Aotearoa New Zealand. Maori investments in economic hydroelectric ventures signal the ways in which culture and economy are linked in contemporary cultural property claims. Fundamentally, Muru Lanning’s work joins that of other Maori theorists who ask what a Maori national economy, or a Maori business world would look like (Spiller et al. 2010). These questions have been framed by Jean and John Comaroff as ‘Ethnicity, Inc’ (2009). The Comaroffs are interested in the ways in which ethnicity has become a new form of neoliberal instrumentalism, structuring new kinds of corporate engagement. However, they focus on the ways in which ethnicity is coopted into commodity flows and neoliberal frameworks. Muru Lanning focuses on the ways in which taonga (Maori cultural treasures) flow into these new structures and demand new forms of engagement. What does an economy look like when the river itself is a stakeholder? Muru Lanning’s work joins a wave of new property theorists who critique the market from the vantage point of nature itself – assigning sovereignty to rivers, forests and the animal world (Kohn 2013). This is now a global movement, most famously supported by Ecuador including the Rights of Nature in its new constitution (Republic of Ecuador 2008).
In thinking about new and experimental forms of cultural property Douglas, Anderson and Montenegro, and Faulkhead, Bradley and McKee’s contributions focus on the ways in which unexpected or novel forms of cultural property provide lucid articulations of historical memory and injustice as well as materializing cultural claims within new national frameworks. By contrast, Lanning’s and Reddy’s contributions focus on the ways in which ancient forms – Maori relations to waterways, and the system and practice of yoga – are being reforged as resources, highlighting in both cases the impossibility of purifying processes of cultural production and commodification. The emergence of new and experimental forms of cultural property demonstrate that the future for cultural property is intimately entangled in global markets, the boundaries of the state, but also a vital point of critique that privileges not just the collective over the individual or corporation but also the material and immaterial forms of property, demanding an engagement with the non-human as well as human world. We hope that this will gain traction in the age of the anthropocene, which is making clear the stakes of our relationship to the environment.
Bauer, Alex. 2008. “New Ways of Thinking about Cultural Property: A Critical Appraisal of the Antiquities Trade Debate.” Fordham International Law Journal 31(3): 690–724.
Byrne, Denis. 2014. Counterheritage: Critical Perspectives on Heritage Conservation in Asia. New York: Routledge.
Comaroff, John L., and Jean Comaroff. 2009. Ethnicity, Inc. Chicago: University of Chicago Press. http://www.loc.gov/catdir/toc/ecip0828/2008040972.html.
Kohn, Eduardo. 2013. How Forests Think: Toward an Anthropology Beyond the Human. Berkeley: University of California Press.
Marcus, George. 1998. “Censorship in the Heart of Difference: Cultural Property, Indigenous Peoples’ Movements and Challenges to Western Liberal Thought.” In Robert Post (ed.), Censorship and Silencing: Practices of Cultural Recognition. Los Angeles: Getty Research Institute.
Merryman, John. 1986. “Two Ways of Thinking about Cultural Property.” American Journal of International Law 80(4): 831–853.
Republic of Ecuador. 2008. The Constitution of Ecuador. https://www.constituteproject.org/constitution/Ecuador_2008.pdf
Simpson, Audra. 2014. Mohawk Interruptus: Political Life Across the Borders of Settler States. Durham, NC: Duke University Press.
Spiller, Chellie, Ljiljana Erakovic, Manuka Henare, and Edwina Pio. 2010. “Relational Well-Being and Wealth: Māori Businesses and an Ethic of Care.” Journal of Business Ethics 98(1): 153–169.
Strathern, Marilyn. 1999. Property, Substance, and Effect: Anthropological Essays on Persons and Things. London; New Brunswick, NJ: Athlone Press.