In this set of 4 posts- I shall be discussing my dilemmas from the Kacha Badam Controversy. The first post covered my thoughts on the delusion that this whole controversy has produced and the need to revamp its factual narrative. The second post covered my thoughts on the hard case that this factual narrative exposes- something I cannot really grapple with yet. This third post brainstorms thoughts on resolving this ‘hard case’. And finally, the fourth post will, in the backdrop of these three posts, discuss an amazing paper by Prof. Alpana Roy titled- “Copyright: a colonial doctrine in a post-colonial age” and how her thesis has an important role to play in figuring out/ or rather even further complicating this hard case.
PART-3
In this post, I shall discuss thoughts on the hard case, and why it is really hard. I will also discuss my preliminary ideas on resolving its dilemmas. To put things into perspective-
Should we be celebrating Bhuban’s remunerative win (which supposedly is because of Copyright law) or should we be questioning the structural acceptance of a copyright system that is significantly dissonant from the ontological reality of cultural practice in India – a system that has merely been transposed from the west due to the state of law and the global political economy?
The hard case is really hard as one of the major issues that come with a structural challenge to the system- is its ignorance of the years of inequality and identity politics associated with cultural production. We can never crawl back to ground zero. The structure of copyright law, its commodifiability, and dissonance with alternate cultural practices has already produced a skew in visibility- which cannot be discounted. A structural challenge to the system would result in an unequal commons- resolving none of our equality concerns.
In other words, although by allowing sharing, derivation, and remixing to make it compliant with other ethnographic realities, a structural challenge to copyright’s individualistic norms, does help substitute individualistic possessiveness, however, it does little to narrow the privilege gap resulting from the prevailing system. Structurally challenging copyright norms may allow for wider cultural engagement- but they do little in remedying the lack of engagement or the skew in practice that is already persisting. Anyone who has, as a result of the prevailing system, attained a comparative advantage, continues to enjoy the same – given investment capabilities and the political economy of cultural practice. In line with this, how do we ensure that Bhuban gets his due remuneration to survive?
Proponents who believe in revamping the copyright system internally and allowing economic recognition of artists like Bhuban through prevailing norms- as a more practical solution, maybe right to the extent that it allows for these individuals to get recognition and helps balance out the inequalities to some extent. These proponents also believe that property-like rights are the only retributive solution to the issues created by property-like exclusivities themselves. Madhavi Sundar and Anupam Chander convincingly argue, in their paper- The Romance of the Public Domain, that leaving these ignored cultural expressions in the public domain does not help satisfy societal ideals and rather perpetuates inequality by allowing those with the capability to misappropriate (not dispossess, but rather get a better benefit due to access privileges) to freely do it. It denies them a claim to self-determination. They, thus, argue for a property rights-based liability system (no control but an objectively defined fee on every use) to continue in favor of those who have been denied long-standing claims- to be able to re-project a scenario where we start from ground zero. For them, Bhuban getting this remunerative benefit would be a deal worth it from an overall welfarist perspective.
For me, this is something I continue to be unclear about, because fundamentally – using a property-rights-oriented solution to solve problems that are a result of the long-standing prominence of the same system- is paradoxical. As Amy Kapczynski argues, “why should we view a collective despot as an improvement over an individual despot?”
I do agree that Prof. Sundar and Chander only endorse a liability model– where contours of exclusive possession and control do not strictly apply, and rather a fee is to be paid for every use However, even this, as a tool of affirmative action, does reify- principally the same tool of exclusivity. It also ignores how the idea of “originality” of a “work”– the genesis of a “mine” claim in the first place- is a myth- and a result of privileges of access (to showcase). This is applicable to both the claims of individuals and communities. One can never really prove that an expression is theirs and only theirs- and not a result/derivation of someone else’s. Once again- possession results in dispossession (often of the unknown).
Further, a liability rule, in my opinion, does not really address the main issue here- i.e., one of misappropriation of identities. Commodification has most definitely denied many non-commodifiable forms a claim to money- but most importantly it has estranged identities. The liability rules do not really help resolve that aspect.
Rosemary Coombe provides another interesting angle to this hard case in her paper- Ethnographic Explorations of Intellectual property– more so from an anthropological perspective. She maps arguments of the latter school of thought which say that even collective ownership dispossesses and reifies western liberal thoughts in culture impeding cultural engagement and ignoring ethnographic realities. She says that the whole idea of ownership in the binary of the individual and collective ought to be challenged from a hybridized perspective- and needs to be looked at by examining the actual reality of how culture is practiced, rather than requiring to mold cultural practices to fit in. She endorses the need for the decolonization of identities, as well as legal norms, by suggesting a more personhood-oriented solution to the aspect of reparations, as against one guarded within economical concerns- as was the case with the liability system. She argues for a system of benefit sharing to recognize the “cultural rights ” of people practicing alternate cultures rather than centering on a solution from an economic point of view. The idea is to endorse the personhood, identities, and development of these diasporic, hidden individuals and communities. Her focus is on ensuring that these identities are not dispossessed as against cultural outputs not being dispossessed. – given we can never be sure of what was the genesis of the cultural output in reality.
For me, as brewing thoughts, a few methods of resolving this hard case without resorting to a binary could include – primarily – decommodifying culture and making expressions inalienable, especially in favor of corporates who seek to capitalize and earn profits out of the most commodifiable and marketable identities/expressions. (see part 1) This potentially could resolve a huge hierarchical concern, at an institutional level, in respect of the ability to capitalize/market and showcase culture. However, I do agree that it does little on the aspect of the performer’s individual economic standing and capability to promote or be visible.
Another area that could be considered, as a part of future inquiry, could be getting rid of the idea of authorship of a work, and treating all expressions as performances- given we can never really figure out whether one is the “originator” of the content, but we can always associate the identity of the performer- with a particular performance. This avoids impeding downstream creation, especially in communities that depend on it, as well as ensures that if the performance, as a whole, is utilized as against merely the content within the performance (musical and literary “work” in current copyright framings), there is some remunerative benefit accruing to the previous performer for the associated identity thereto. So essentially, Bhuban cannot claim exclusivity over Kacha Badam, but if someone uses his performance of Kacha Badam substantially (Ann Bartow standard), he would have a remunerative claim (see here for a study on compensation systems) for the use of the cultural identity associated with his expression. This identity cannot be alienated from him in favor of any corporate entity.
Coupled with this, maybe limiting this remunerative claim to only those performers who are a part of the “traditional knowledge”/ alternate culture herd- i.e., ones that have been denied a claim to be able to be visible for long, could serve the reparative goal sought by the primary school of thought. However, I have my doubts about the practicality and the acceptance of this, especially in light of the strong globally intuitive resistance to affirmative action policies in support of concerns of reparative equality, sometimes co-related to substantive equality.
Finally, another interesting area to build scholarly agendas on the side of equality in cultural policy and tools of affirmative action in respect thereof could be algorithmic support on the internet. By using tools of an affirmative bias in favor of performances/identities which have effectively been rendered invisible for the longest, a slow transformation could potentially take shape. Such cooperative responsibility from tech platforms could effectively help significantly revamp identity politics, and allow them to capitalize on scale benefits that come with it. As has been argued by Monson et al, it most definitely is technically possible to code algorithms that promote exposure to diverse content and highlight alternate perspectives- something which favorably happened in Bhuban’s case.
I do however acknowledge that these proposed solutions do not really resolve much, given hierarchies exist even within alternate contested identities. They do not have any sort of an enormous potential to resolve long-standing hierarchies which exist both due to copyright and beyond copyright concerns. But the intent of these posts is to have people engage in alternate cultural policy framings, without giving in to the binary of the internalist and structural critiques of the law in the context of this hard case. There is a need for social justice scholars to stop romanticizing either side of this hard case. In any case, we cannot afford to be celebrating the delusion produced by this Kacha Badam instance.
In the next and the final post I shall, in the backdrop of this discussion, write my thoughts on Prof. Alpana Roy’s paper (more on the structural critiquing side) titled- Copyright: A colonial doctrine in a post-colonial age.
Part 1- here
Part 2-here
Part 4- here
IP Musings 
3 thoughts on “Resolving the ‘Hard Case’? You can try the best you can!”