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Decolonization and Indigenization

Digital aspects of decolonization and indigenization for GLAMs and open GLAM

Published onSep 06, 2021
Decolonization and Indigenization
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How this area overlaps with open GLAM: In recent years, calls to decolonize GLAM collections have come from various communities wrongfully dispossessed of their cultural heritage and ancestors’ remains, as well as from members of the public, artists, host communities, host institutions, academics, and national governments.1 Many artists challenge the embedded legal, geopolitical, and colonial narratives of heritage collections and data.2 Some works have even been collected by institutions and displayed alongside the heritage they engage with.3 Indeed, there is a steadily growing trend to “decolonize” our GLAMs and heritage management practices taking place both inside and outside of physical and digital institutional spaces.4 Yet to legally restitute many materials, a host country’s legislation and/or institutional policies may require revision. This reform process (and the irony that restitution would be illegal until reform happens) has been the focus of much scholarship and debate.5

There are digital aspects of decolonization, and particularly the effects of IPR, that are equally important to consider during restitution and any necessary reforms to laws and policy to facilitate those goals. Digitization and digital collections management practices can revive and exacerbate issues around material collections related to possession, ownership, control, authorship, commercialization, restitution, repatriation, knowledge production, cultural memory, and even open access. GLAMs and the open GLAM movement must become proactive in acknowledging the histories of collecting, markets, colonial endeavors, pillage, occupation, and other contexts that impact a work’s contemporary location, provenance, and the knowledge generated around it. Otherwise, as sites and sources of authority, GLAMs will not only be complicit, but also will reinforce their continued obfuscation and how they manifest in contemporary contexts, digital environments, and social justice movements.6

Approaching this topic requires asking hard questions, and it is crucial for the right voices to participate, carry weight, and even lead during attempts to answer them. This requires being comfortable with accepting and admitting failure and a willingness to apologize for any missteps. A small sample of these questions includes:

  • Whose knowledge has shaped and informed understandings of culture and heritage?

  • Whose histories, cultures, and ancestors have been curated and preserved (and by whom)?

  • Who has been, and still is, considered an expert in the production, preservation, and reproduction of knowledge and cultural heritage?

  • Whose rules regulate how cultural materials are possessed, owned, restricted, or shared?

  • Whose cultural agendas are advanced by open access and the public domain?

  • Who is the public when we speak about the public domain and the public interest?

  • Who benefits from greater access to the public domain as a result of these systems and their embedded politics?

  • And, finally, how can digital technologies replicate and extend these systems (and their harms) to the media generated around physical collections and associated materials?

Epistemic justice and its relationships to decolonization are intrinsically linked. This is because decolonization centers, values, and respects Indigenous epistemologies and provides frameworks that translate into something that can be operationalized. As sites that collect, interpret, and produce knowledge(s) around cultural heritage, GLAMs are obvious interlocutors to facilitate action, advance goals, and amplify Indigenous voices around decolonization and indigenization.7

12. Decolonization and Indigenization

  • Terminology and its usefulness. Terminology is incredibly important to this area and can impact how communities and their cultural heritage are framed, viewed, represented, and regulated. For example, compare the copyright terminology of “work” to human rights terminology of “cultural manifestation” and how the use of either might impact our perception of a cultural expression and what activities are authorized around it (and by whom).8 Consider also the terminology of “decolonization” compared to “indigenization.”

  • Digitization is not neutral. Digitization is often framed as a neutral act and a desirable method of documenting collections for various purposes. However, an act of digitization automatically triggers property, contract, and intellectual property laws that can extend systems of control, harm, and extraction to digital versions of cultural manifestations and the knowledge or identities they hold.

  • Legal measures and decolonization. National legal measures are often held up as barriers to restitution. This framing conveniently authorizes the (contemporary and historical) laws of the possessor and it provides a procedural shield for those resistant to and decolonization.

  • Problems and creative solutions posed by IPR. As a colonial invention, IPR can replicate and extend harmful systems to digital media produced around cultural manifestations. At the same time, IPR is based in private law rather than public law. GLAMs therefore have more flexibility to explore creative solutions around the restitution of digital media and IPR while they await national lawmakers to resolve legal paths towards the restitution of physical manifestations.

  • Negative and positive aspects of open access. The display of IPR-protected digital media and the release of openly-licensed media may be inappropriate and expose the materials and their communities to harm. Nuanced approaches to access, display, and open licensing must be designed in consultation with communities of origin, who must enjoy full agency and autonomy over outlining the future creation, treatment, and management of digital media and access parameters.

A few notes are helpful to frame decolonization and indigenization for the Declaration draft revision and public consultation process. These relate to the term “decolonization” and its usefulness, the term “indigenization,” and the act of digitization.

12.1. A Note on Decolonization

Decolonization may mean different things to different people, some legitimate and some not – especially when used too broadly.9 At the least, “decolonizing” begins with an acknowledgment of the systemic inequalities spread by colonialism, empire, and wealth extraction related to characteristics such as race, gender, sexuality, class, disability, and nationalism. From there, understandings or interpretations of “decolonization” can vary by discipline or cultural context.

A person’s positionality plays an important role here. This requires an individual to develop an acute awareness of the social and political context that shapes their identity, values, and encounters with the world around them. But it should also extend to developing an acute awareness of any limitations to a person's “expertise,” including their understanding of how expertise develops and what forms it can take.

Within heritage management practices, postcolonial and decolonial theories are generally used to deconstruct the ordering of collections built upon systems of personal ownership, exclusion, and oppression, both historic and ongoing.10 Because of colonization’s enduring effects, different groups may identify with decolonial rather than postcolonial theories based on their lived experiences or extant relationships to colonization.11 These theories might also overlap due to intersecting unique or shared circumstances in certain environments or by certain perpetrators. For example, Linda Tuhiwai Smith discusses these theories with respect to how research is undertaken by, with, or on Indigenous peoples and peoples from previously or currently colonized areas and their respective relationships postcolonial and decolonial movements.12 Roopika Risam has examined how these theories translate to postcolonial digital worlds when considering the sustained power imbalances evident in digital humanities and heritage management, including the types of scholarship and knowledge generated around them.13

"Decolonising Methodologies, 20 years on: An interview with Professor Linda Tuhiwai Smith

With respect to GLAMs, decolonization has been used to broadly describe sector-wide approaches to make collections more representative of their histories and knowledge(s) contexts, which can include disclosing how the heritage was obtained in the first place. But put into practice, decolonization is highly contextual and may be more narrowly applied by those who actively engage in it.14 For this reason, there has been mounting criticism towards the overuse of “decolonization” and the movement’s popularity as becoming a catchall for a number of long overdue provocations.

In their seminal paper “Decolonization is Not a Metaphor,” Eve Tuck and K. Wayne Yang examine decolonization in the context of settler colonialism in the US and argue that decolonization must result in the repatriation of Indigenous land and life; it is not a metaphor for various acts taken to improve our societies and schools.15 The authors criticize the ease with which the language of decolonization has been superficially adopted into education and the social sciences, supplanting the ways we talk about social justice, critical methodologies, and approaches that decenter status-quo (colonial) perspectives.16 They go on to argue “when metaphor invades colonization, it kills the very possibility of decolonization; it recenters whiteness, it resettles theory, it extends innocence to the settler, it entertains a settler future,” and, in doing so, it results in “yet another form of settler appropriation.”17 Although Tuck and Yang examine this metaphor against a specific colonization context, this critique can be loosely applied to many histories of colonization, forced occupation, and enslavement and subsequent efforts to repatriate land and life.18

Many GLAMs steward vast collections from these individual and colonial conquests obtained through decades or centuries of systematic knowledge, capital, and wealth extraction. Today, these collections are huge drivers for international tourism, research funding awards, creative industries, and economic stimulation. Meanwhile, the countries and communities associated with them lack access to their material and digital cultural heritage, and sometimes even the resources necessary to establish their own cultural institutions and digital collections to compete in and shape the development of material and digital GLAM spaces.19 In this sense, the actual restitution of material and digital property, intellectual property, and land is key to decolonization goals. Discussed below, this includes a pressing need to investigate both formal or informal types of reparation and contributive or restorative justice measures.

For these reasons, it is important to consider place and positionality, and specifically whether decolonization can occur within, let alone be led by, the cultures historically responsible for colonization, heritage, and wealth extraction. If not, then isn’t what we are describing a process of restitution and making narratives plural or more historically accurate? Put another way, Sumaya Kassim and Puawai Cairns have asked, how might you even “decolonize” an institution that is itself an intellectual product of colonization and the so-called Enlightenment?20 And why would we want to (or what would that even look like)? Might we instead ensure these institutions confront that colonial past and provide the crucial context for how we encounter those spaces, and others, that persist around us?21 What risks do we create by allowing “decolonization” to become co-opted?

Imagining a Museum of British Colonialism

Our critical and reflexive interrogation of these practices, how they are described, and what meanings they take on is therefore crucial. Rather than decolonization, terms like abolition, equity, anti-colonial, anti-imperialist, anti-racist, anti-sexist, anti-capitalist, anti-ableist, or anti-hegemonic may be more appropriate for a given intervention – or even just opting for using descriptive language to convey the valuable efforts taken to make collections management and displays more truthful. These efforts may be informed by decolonial theories and praxis. But accurate terminology and acute positionality awareness during this framing is crucial, particularly when restitution does not actually occur. Otherwise, these efforts result in what Tuck and Yang call “moves to innocence,” which allow those (re)enforcing the status-quo to reconcile their guilt and avoid the change, exposure to risk, and accountability that accompanies more uncomfortable processes.22

12.2. A Note on Indigenization

Restitution may not occur for various valid reasons, such as if the manifestation remains in temporary or permanent custodial care at the request of the descendants or community of origin. Rather than to “decolonize” approaches around these manifestations, GLAMs might make space for the “indigenization” of practices and treatment of the manifestations remaining in situ, including the digital manifestations.

Indigenization requires relinquishing authority and recognizing the sovereignty and autonomy of Indigenous communities and individuals in designing processes for the future care of cultural manifestations. Like decolonization, indigenization is also highly contextual, and should be led and developed only by the relevant communities. To illustrate, Puawai Cairns has written on indigenization in a Māori context, or what Moana Jackson calls “reMāorification.” For Cairns, this requires flipping the power dynamic to create “sovereign spaces, where Māori can be Māori, tell Māori stories with all their complications and contradictions, Māori storytellers and historians telling stories to Māori, inclusively and without apology.”23 The process retracts the status quo from, and results in greater recognition of, Indigenous epistemologies and governance systems in heritage management. Indigenization also extends to data sovereignty (which can be particularly relevant to open science, government, and policy development)24 and integrating Indigenous ontologies for cataloging, naming conventions, or metadata schema.25

Ngā Kākano: Decolonising and Indigenising Museums (Mon 7 Dec)

Given the discussion below, it is imperative to extend these systems to processes for access, material heritage management, digitization, IPR management, open access, and even when (re)defining open access parameters.

12.3. Digitization is Not Neutral

As Mathilde Pavis and I have argued with respect to the restitution and management of African cultural heritage, even the seemingly simple act of digitization is not neutral.26 Any decision to digitize, and how, is a cultural and curatorial prerogative that should be made by communities of origin. A host community’s act of digitization may be legally supported by (a contested) ownership of the material heritage, but the digitization process can produce further harm during the appropriation of the manifestation and by extending further ownership and control over the digital surrogate. Such materials, in addition to related documentation or archival materials, might embody a spirit, personhood, or life. For these reasons, digitization and other forms of research can be particularly harmful in the context of ceremonial or funerary objects and ancestral remains.27

Even for the purposes of preservation, digitization can replicate the decisions and value systems around material collections management and curation, but with even greater reach and harm once made available online. Nathan Sentance has written about the act of collection and cultural preservation as being paternalistic, with a static and exclusive meaning.28 This paternalism is replicated via digitization, and it poses further harm when extended to the documentation, collections data, and associated materials maintained in the archives, which might contain cataloging systems or offensive opinions that are relied upon as authoritative or even embedded in the digital file name or metadata.

To counter this, and to expand our contemporary notions of stewardship and narrative agency, T-Kay Sangwand argues for taking a contributive justice approach in the form of postcustodial partnerships between global south and north institutions, organizations, and community archives. Participatory partnerships provide a starting point for discussing and reimaging the archival frameworks, assumptions, and values informing preservation.29 Within this, institutions must have an acute awareness of how power imbalances may be replicated by such partnerships. For this, the discussion in Power Inequities is important to revisit to avoid reproducing current models with short-term goals of digitizing for digital access, retaining rights and conditioning partnerships upon them, and extracting commercial profit (from the collections and communities of origin), rather than long-term goals for capacity-building, open-compliant access, and supporting more sustainable digitization programs for all partners involved.30

Digitization results in both new property and intellectual property. An act of digitization produces new media to be controlled and/or exploited via the ownership recognized by both property and intellectual property law. Both paternalism and colonialism are ingrained in acts of creating, propertizing, and “protecting” the digital version of a work through access or IPR barriers, and in how users respect or interpret those claims and boundaries in digital environments. Josh Harle cites even our use of colonial language when describing the act of “capturing” an object, or referring to the heritage depicted as a “subject” as perpetuating these fictions.31 (As an aside, the same critique applies to terminology used to refer to someone as a “stakeholder” or “pioneer,” or to frame acts as “groundbreaking.”) Morehshin Allahyari argues that digitization itself is a form of neocolonialism.32 Allahyari uses the term “digital colonialism” to describe the ways digital technologies are used to reproduce colonial power relations around cultural sites and artifacts by enabling the owner to restrict access to data through property and intellectual property based systems.33

Talking Digital Colonialism With Morehshin Allahyari

Digitization has even been recommended (and rightfully challenged) as a replacement for restitution when digital reproductions are offered instead of the material heritage itself. Sarah Bond has written about the inadequacy of digitization as a form of, or proxy for, repatriation.34 There are so many layers to unpick here, alone. First, “digital repatriation” implies something is being returned when, in fact, the new digital manifestation has been created and shaped by the community in possession, raising a number of the issues discussed above and in Power Imbalances. What, exactly, then is being returned? Second, the act of “digital repatriation” legitimizes the very legal systems that support the possessor’s ownership of the material heritage in addition to supporting any property rights and IPR in digital media sent in place of the physical heritage. It is both a concession and new loss without actual physical repatriation. Finally, the community of origin will be bound by any IPR or additional contract-based restrictions imposed on their own reuse and dissemination. These too derive from the legal system of the possessor and will be transplanted into the systems of care and management around the “repatriated” digital media, but also will impact how the communities of origin can access, reuse, commercialize, and develop new narratives around it.

The application of IPR thus adds another layer of neocolonialism for us to consider,35 particularly through the functions of ownership, authorship, and economic commercialization. What is even less discussed is the role IPR might play when the power imbalances these functions can carry are reversed in favor of the community of origin, and even within the jurisdiction of the host institution. This role is revisited below.

Legal measures relevant to GLAM decolonization relate to international treaties on cultural property, human rights, and intellectual property, as well as national law.

The laws related to material and digital heritage are uniquely connected here. This is because the laws justifying the possession of material heritage and its physical location during digitization will also determine which IPR laws apply and how the digital media may be commercialized, accessed, or disseminated online.

With respect to legal obligations around restitution, no general treaty or equivalent measure provides an enforceable route for descendants and communities of origin to recover the cultural manifestations or ancestral remains taken during periods of colonization, violence, or forced occupation. Property-based instruments regulating looted heritage are narrow, like the 1954 Hague Convention, which applies during the event of an armed conflict, or the 1970 UNESCO Convention, which applies to the illicit import, export, and transfer of cultural property occurring after 1970.36 Countries must be signatory and enact domestic legislation or recognize the treaties’ self-executory nature to be bound by their terms. Who may bring a legal claim is also narrowly construed.

In some countries, national legislation creates restitution obligations around specific categories, like Nazi looted art or ancestral remains. While these acts recognize actions by international claimants, the burden generally falls on the requestor to produce reliable evidence to support restitution, which can be difficult given the circumstances surrounding the dispossession.

At the same time, constitutional law or national legislation might expressly prohibit the alienation of publicly owned property or the deaccessioning of works.37 Such laws require statutory amendments or entirely new legislation to circumnavigate.38 While the defense that restitution is “not legal” may thus be factually accurate, it seriously calls into question why such laws are not reformed more expediently and why compromises like an “extended loan” are legal (and under whose law?). There are both contemporary and historical aspects of what is, and once was, “legal” that must be challenged and reexamined in light of these realities.

How these laws recognize and categorize claimants also results in exclusion. As Lubna El-Gendi has argued, the international legal regime that recognizes the rights holders of repatriation claims relies on the myth of the modern nation-state and geographical borders, rather than a given community’s connections to the heritage.39 This can have particular consequences for communities in countries where borders have been redrawn, as well as for diaspora, nomadic, and migrant communities. Even within a given jurisdiction, statutory line-drawing can legitimize or de-legitimize claimants based on, for example, a process that requires a community to apply to that legal system to secure formal recognition for eligibility, or even around “evidence” (and what that excludes) to establish a linear ancestral descent to the cultural manifestations.40

For digitization purposes, the rights of vulnerable communities to access and control current and future manifestations are crucial for a critical open GLAM practice. As discussed below, a number of countries recognize special legislative protections for certain cultural manifestations and how they may be used. But cross-border tensions can arise when national legislation in one country recognizes and protects those rights and the culture in ways the country where the manifestation remains in situ does not.

In Human Rights, we discussed the special protections afforded to minorities, migrants, and Indigenous peoples to maintain, control, protect, and develop their own cultural heritage and its future manifestations. These are recognized in Articles 27 UDHR and 15 ICESCR (and expanded on in General Comment No. 21), and the 2001 UN Declaration on the Rights of Indigenous Peoples (UNDRIP).41 As a refresher, UNDRIP acknowledges a broad scope of rights and sets minimum standards that should be considered by states during legal reform.42 For open GLAM, the most relevant rights and obligations include:

  • Article 11 recognizes the “right to practice and revitalize cultural traditions and customs,” including the “right to maintain, protect and develop the past, present and future manifestations of their cultures,” and it obligates states to “provide redress through effective mechanisms, which may include restitution, developed in conjunction with indigenous peoples, with respect to their cultural, intellectual, religious and spiritual property taken without their free, prior and informed consent or in violation of their laws traditions and customs.”

  • Article 12 recognizes the “right to the use and control of their ceremonial objects” and the “right to the repatriation of their human remains,” and it obligates states to “enable the access and/or repatriation of ceremonial objects and human remains in their possession through fair, transparent and effective mechanisms developed in conjunction with indigenous peoples concerned.”

  • Article 13 recognizes the right to “revitalize, use, develop and transmit to future generations their histories, languages, oral traditions, philosophies, writing systems and literatures, and to designate and retain their own names for communities, places and persons,” and it obligates states to “take effective measures to ensure that this right is protected and also ensure that indigenous peoples can understand and be understood in political, legal, and administrative proceedings.”

  • Article 31 recognizes “the right to maintain, control, protect and develop their cultural heritage, traditional knowledge and traditional cultural expressions, as well as the manifestations of their sciences, technologies and cultures, including human and genetic resources, seeds, medicines, knowledge of the properties of fauna and flora, oral traditions, literatures, designs, sports and traditional games and visual and performing arts. They also have the right to maintain, control, protect and develop their intellectual property over such cultural heritage, traditional knowledge, and traditional cultural expressions,” and it obligates states to “take effective measures to recognize and protect the exercise of these rights” in conjunction with Indigenous peoples.

Other international and national measures recognize protections for traditional knowledge and traditional cultural expressions, including their documentation.43 These measures might limit, contextualize, or re-define parameters of IPR, as discussed below and in Intangible Cultural Heritage.

Against this backdrop, we’ll move on to the complicated dynamics around the continued possession of these cultural manifestations in relation to digitization, IPR, and open access. Even when GLAMs continue stewardship with consent, digitization may have already occurred, as well as analog reproduction and other forms of research, such as genetic sequencing. How these associated materials and any IPR will be returned is not often discussed during restitution and decolonization initiatives. The implications for this are discussed below, beginning with IPR and digitization.

12.5. IPR Aspects

IPR can pose both problems and creative solutions to the (appropriate) management of Indigenous cultural manifestations and their digital counterparts. Let’s begin with the problems.

Copyright is a colonial invention. The first national copyright law, the 1710 Statute of Anne, is a legacy of British imperialism.44 It was built upon Western theories of property and land exclusivity, which were expanded and transplanted via the British empire’s expansion and the trade agreements formed.45 Alpana Roy, Kathy Bowrey and Jane Anderson have written about the problematic aspects this colonial foundation raises, beginning with the legal process (and fiction) of turning something into property in order to legislate it and establish ownership over it, to the power imbalances of participating in a regime that requires diplomacy and established governments in order to negotiate bilateral or multilateral agreements based on reciprocity and the sharing or protection of that property.46 This foundation has also affected what could or could not be turned into “property” and resulted in the treatment of Othered knowledges or cultures as raw or natural resources.47 The legal systems that determine whether and under what circumstances IPR will arise in material and digital cultural heritage (or not) are thus descendants of colonial logic, histories, and legislation, which have been transplanted into national laws worldwide and harmonized through various international conventions and treaties.48

This means that upon digitization, IPR, authorship, and access parameters will similarly be defined by the host community’s national laws, rather than the legal, conceptual, or value systems of the communities of origin.49 While less obvious than other forms of cultural appropriation,50 digitization is still appropriation. Digitization directly appropriates the underlying value or information a work contains, and when IPR is claimed, a new “author” is assigned to its digital surrogate.51 National laws might even prohibit the waiver of these rights or require perpetual attribution to that new author. Those laws enable the rights holder to mediate access and reuse, but they also might modify or overwrite the rights in connection with the manifestation and its attribution.52 They will also determine the scope and period of protection, including when the media will pass into the public domain and be available for everyone to use.

As discussed in Human Rights the idea of the “public domain” remains a source of tension in this area. There are a number of reasons for this, many of which are explained in the presentation below by Terri Janke on Indigenous Cultural and Intellectual Property (ICIP) and its management.53 The term ICIP stems from UNDRIP and responds to many of the hesitations around the “traditional” in traditional knowledge and traditional cultural expressions as failing to represent the knowledge and expressions as living, developing, and shared practices occurring in contemporary contexts, including digital content and spaces.54 The term also challenges various functions of intellectual property related to individual authorship, subject matter, materiality, ownership, assignment, terms of protection, place, commercialization, and exclusion. Recent work by Brigitte Vézina and Alexis Muscat and by Mehtab Khan also details the limits of the intellectual property regime for protecting cultural manifestations from exploitation and appropriation, even when well-intended or seemingly benign to the reuser.55

FIRST STEPS: ENGAGING WITH FIRST PEOPLE’SCULTURAL EXPRESSION AND KNOWLEDGE - Dr Terri Janke

In fact, many have written about the false binary of the public domain versus in-copyright when applied to ICIP,56 the difficulties with using IPR concepts like “originality,” “authorship,” and “innovation” for ICIP,57 the rights and responsibilities around ICIP arising with increased globalization and top-down international norms,58 and how to reconcile and enhance the current system through localized approaches, existing tools, and increased national protections.59

Approached from another angle, the IPR regime can offer some creative routes to digital heritage management. While material restitution relies on structural changes in international public law or national legal reform, IPR and contract-based heritage management are more malleable because of their basis in private law.60 In fact, GLAMs are (legally) well-equipped to explore more nuanced approaches in consultation with the relevant Indigenous peoples at a community level. GLAMs already agree to IPR transfers, like waiver, assignment, and licensing, during contractual negotiations with commercial parties, donors or photographers, and they frequently recognize non-IPR related restrictions that impact where and how a work is displayed and the conditions under which it may be reproduced, commercialized, licensed, or loaned.

As Mathilde Pavis and I have argued elsewhere, these same IPR transfers and contract-based practices can provide flexible and creative measures for the more equitable management of digital media, cultural manifestations, and the research undertaken around them.61 Where IPR exists or arises, any rights (and the digital media) can be repatriated to the community of origin prior to restitution of the material heritage.62 If permitted, copies of the media may remain with the institution; if appropriate, the IPR might be managed by the institution with any economic benefits flowing to the communities, rather than the GLAM.63 Contractual agreements can be used to fill gaps around appropriate access and reuse, rather than simply viewing physical and/or digital materials as falling within the “public domain.” These agreements might outline the purposes and formats for any future reproduction, research, and access parameters, including prohibitions or limitations on any such acts. Communities will thus enjoy full autonomy in devising any management strategies to the cultural manifestations and associated materials, both physical and digital. During restitution initiatives, all such materials should be considered relevant to return. And this could extend to a total withdrawal of such materials from the institution’s physical and digital collections at the community of origin’s request.

These approaches require care, consultation, and free and informed consent. A number of initiatives practicing these aspects are included at the conclusion of this section.

12.6. Open Access Aspects

Similar to IPR, open access has positive and negative aspects for ICIP.

Following on from the discussion above, the public domain and open access are components of a copyright system founded on colonial logic. Materials in the public domain are available for anyone to use without restriction (and of course, that’s only true in theory – which is the point of this resource). Once digitized, open access, or even just digital access, can perpetuate violences against culture.64 For example, the digitization, display, and dissemination of sacred culture and knowledge or ancestral remains online can expose descendants to spiritual or cultural harms despite whether they are released via open licenses and tools for any reuse or displayed with a GLAM copyright notice.65 (Moreover, consider the acute and neocolonial harm caused by displaying and claiming copyright to, and thus the ability to commercialize, a photograph of someone’s ancestor.) In this way, open GLAM goals can violate the rights of Indigenous peoples and vulnerable communities to maintain, control, protect and develop their own cultural heritage guaranteed by UNDRIP and other human rights around self-determination.66

In addition, the waiver of legitimate IPR in digital media can subvert the ability of those communities to commercialize their own cultural manifestations in the same ways Western institutions have been doing for decades.67 For example, the Benin bronzes have been trafficked to various countries and owners following the violent raid and injustice by British forces against the Kingdom of Benin.68 Numerous photographs of the 3D bronzes that satisfy national standards for copyright protection can be found online. Some are released with copyright notifications and some via open tools like CC0.

In this case, open raises a few issues. First, the open status of these images means they are more frequently reused and credited to the host GLAMs. The more clicks they receive, the more search engine algorithms will prioritize their return and reinforce the host GLAM’s authority. Second, the Edo State and Nigerian Governments and the Benin Royal Family have called for the 160+ GLAMs who hold the bronzes to return them. Nigeria is building a new Benin Royal Museum scheduled to be completed by 2023. Upon their return, the Museum might digitize and commercially exploit the works, which would be their right and valid under international and national copyright laws.69 But that market has been undercut by the availability of high-quality open access images made available online by Western institutions. For the others that claim copyright and license or merchandise the images, both historical and current revenue has flown to the host institutions and/or the rights holders rather than the Museum and community of origin.

This example can be applied to a breadth of materials held by GLAMs worldwide. Such content is unable to be recalled and has already been incorporated into new cultural goods and products. The application of CC0, open licenses like CC-BY and CC BY-SA, closed licenses like CC BY-NC and others, or even copyright, in general, should be reexamined in light of decolonial and postcolonial GLAM interventions and community- and government-led initiatives for the restitution of cultural heritage and associated materials.

At the same time, expanded digital access to GLAM collections can aid restitution.70 As Susan Douglas and Melanie Hayes have argued, the lack of access to the data held among GLAM collections, namely archival materials, can obstruct repatriation processes or forestall them altogether, especially when legal and administrative systems and standards of evidence differ across borders.71 Securing access to digitized collections and data is crucial to building a case and requesting returns.

In fact, collections data from various sources can be used to build databases of these cultural manifestations among GLAMs. Two initiatives doing just this are the Open Restitution Project – Africa, led by Chao Tayiana and Molemo Moiloa, and the International Inventories Programme, led by various institutional, cultural, and academic colleagues in Kenya and Germany.72 Both initiatives seek to build networks that lead to greater access to manifestations, knowledge exchange, and representation. Tayiana also highlights how many border-related legal measures of host countries increase access burdens and the already prohibitive costs associated with visiting GLAMs, namely through visa-related fees and administration. Digital technologies are thus facilitating and accelerating this work, and particularly through the pressures that greater collections transparency and awareness can bring. This transparency can be extended, with care, to metadata, which Temi Odumosu writes “could be rethought as a cataloging space with the potential to alter historical imbalances of power.”73

Meanwhile, there are inequities around who has access to digital cultural heritage online and who open access benefits.74 There are various ways host GLAMs, funders, and governments might explore reparations and/or contributive or restorative justice to reduce technology barriers. This is mostly beyond the scope of this resource. (But it should absolutely be a part of this discussion.)

Ultimately, we need to take a more holistic and critical approach to open GLAM in this area and specifically because of the IPR aspects involved. This includes normalizing that there is no entitlement to a shared culture and recognizing the impossibility of “common interests” being appropriate to shape the management of certain materials. And rather than pushing the narrative of a cultural commons, we should allow for, and readily accept, the enclosure and loss of access to certain heritage and information, and even its destruction,75 especially when considered against the violent legacy of colonization.76 The cosmopolitanism that advances the necessity for maintaining encyclopedic collections and their preservation for the benefit of a narrow understanding of “knowledge” should not be casually transplanted to digital spaces and open access.

This is not to say that the manifestations should never be digitized, stored, commercialized, or networked. Only that these decisions should remain with their respective communities. Any refusal, subsequent exclusion, or requests for Indigenization by that community are justified and should not be seen as controversial. In the long tradition of imposing permissions over the reuse of cultural heritage that the open GLAM movement vehemently resists, this is one area where those impositions can, and should, persist.

Episode 41: Digitization is not neutral by Museopunks

GLAMs can be proactive when it comes to restitution, IPR repatriation and the appropriate management of material and digital cultural heritage – and, in fact, many already have. But lawmakers and policymakers also have an important role to play in facilitating, funding, and expediting this work. This might include developing international, multilateral, or bilateral agreements on digitization and IPR to better protect cultural manifestations in the public domain, sensitive materials, and ancestral remains.77 Agreements should also explore technology transfers, reparations, and postcustodial collaborations to aid communities of origin and their GLAMs in the development of their own digital cultural heritage creation, management, commercialization, and knowledge production.78

12.7. Initiatives and Other Considerations for the Declaration

Are you working on any of the above topics? What else does open GLAM need to reconsider, keep thinking about, or expand to include?

Help us collect good practice around IPR, digital management and decolonization. Suggest resources, guidelines, protocols, and other declarations useful for discussion to develop this list further. We especially encourage submissions that improve representation of community-led projects, initiatives across the G-L-A-M sector, geographic representation, and so on.

Some examples include:

  • The Aboriginal and Torres Strait Islander Library, Information and Resource Networks (ATSILIRN) Protocols for Libraries, Archives and Information Services.79 Written in 1995 and revised in 2005, the ATSILIRN Protocols are good practice guidelines which “need to be interpreted and applied in the context of each organisation’s mission, collections and client community” with respect to handling the materials of, and interacting with, Aboriginal and Torres Strait Islander peoples.80 The protocols cover a number of topics including intellectual property, accessibility and use, copying and repatriation of records, and the digital environment.

  • The Anti-Capitalist Software License.81 The Anti-Capitalist Software license “exists to release software that empower individuals, collectives, worker-owned cooperatives, and nonprofits, while denying usage to those that exploit labor for profit.” It actively resists an open source status by prohibiting any reuse that aids or entrenches established powers and by allowing permitted users to release their own works and source code however they like, rather than under the same terms. Other licenses with similar goals include the Non-Violent Public License, the CoopCycle License, the Cooperative Software License, the Peer Production License, and the ACAB license.

  • Auckland Museum and Cultural Permissions Policy.82 As a bicultural institution, the Auckland Museum embeds Māori and Moana Pacific values into the guiding frameworks for all collections, digitization, and IPR management.83 Using the “open as a rule, closed by exception” approach, the staff and communities developed filters for levels of openness to protect sensitive materials and designed a cultural permissions policy that treats access and reuse as separate from IPR frameworks.84

  • CARE Principles.85 The CARE Principles for Indigenous Data Governance are meant to complement the FAIR Principles and other open data movements that are inadequate for Indigenous peoples exercising their rights and interests in self-determination and data sovereignty and replicate power inequities. The Principles encourage data stewards to #BeFAIRandCARE, focusing on the Collective Benefit to Indigenous peoples, their Authority to Control data, the Responsibility of those working with Indigenous data, and considerations of Ethics (CARE) that should guide data governance.86

  • ENRICH.87 ENRICH (Equity for Indigenous Research and Innovation Co-ordinating Hub) is an international network collective that “centers Indigenous rights to develop, control and govern Indigenous data” and “responds to the challenges of accelerated production and use of data across government, scientific and innovation platforms which can exacerbate the appropriation of Indigenous knowledge and the alienation of Indigenous peoples from digitally enabled future.” Led by Jane Anderson and Maui Hudson, the interdisciplinary initiative brings together Indigenous rights, law, policy, and data science to both inform and reform ethical research practices, new policies, and relationships between Indigenous communities and wider society.

  • The First Nations Principles of OCAP.88 Developed by the First Nations Information Governance Center in Canada, the OCAP Principles provide a set of standards for how First Nations data should be collected, protected, used, or shared during research with First Nations. Focusing on Ownership, Control, Access, and Possession, the principles recognize the community rights and interests of First Nations peoples as the stewards of their own data and information.89 They also emulate First Nations commitments to use and share information in a way that maximizes the benefit to a community, while minimizing harm, and allow for unique interpretations to facilitate a community’s or region’s right to self-determination, preservation and development of their culture.90

  • Imagining the Holy.91 Imagining the Holy is a research project by Yazan Kopty that connects thousands of images of occupied historic Palestine from the National Geographic Society archive with Palestinian community elders, heritage experts, and researchers to add new layers of Indigenous narratives and knowledges to the photographs. The entire collection of photographs is bound up in copyright. However, the goal is to provide digital access (for now, via Instagram) and Indigenize the archive with contributions of postcolonial and diverse narratives.92 Access to the National Geographic digital archive is currently subscription-based. At some point, copyright in the photographs will expire. (What then?)

  • Indigenous Archives Collective.93 The Indigenous Collections Archive is an online collective that “showcases and connects information on innovative projects that are working with Indigenous knowledge sources” in the GLAM sector.94 The website documents various examples of decolonising practices, community archives, education and training. It highlights work by Indigenous people contributing to the field, aims to build dialogue on both good and bad practice, and focuses on examples of self-determination when managing collections and IPR.

  • The Indigenous Digital Archive.95 The Indigenous Digital Archive aggregates and makes available more than 500,000 archival documents about US government Indian boarding schools in the 19th and 20th centuries to users who create an account. The ongoing project is a collaboration among the Museum of Indian Arts & Culture, the New Mexico State Library Tribunal Libraries Program, and the Indian Pueblo Cultural Center.96 The website is in development and has a statement on “Respectful Online Access” with a Code of Conduct forthcoming.97

  • Indigitization (Tools for Digitizing and Sustaining Indigenous Knowledge).98 Indigitization is a collaboration among Indigenous communities and organizations, the Irving K. Barber Learning Centre, the Museum of Anthropology, Northern BC Archives (UNBC), X̱wi7x̱wa Library, and the Centre for Teaching, Learning and Technology (CTLT) to build postcustodial strategies and capacity in Indigenous information management, conservation, and digitization of Indigenous knowledge.99 The initiative’s Indigitization Toolkit provides resources for digitization projects in Indigenous communities and includes sections on planning a project, legacy media formats, text and visual records, managing digital information, and language revitalization.100

  • Local Contexts.101 Local Contexts is an initiative to support Native, First Nations, Aboriginal, and Indigenous communities in the management of their intellectual property and cultural heritage in digital environments through specially designed labels and licenses around traditional knowledge, environmental data and genetic resources.102 Founded by Jane Anderson and Kim Christian in 2010, the project has designed reciprocal curation workflows along with labels and licenses for use by Indigenous peoples and communities that address a diversity of needs around intellectual property and digital content management.103

  • Mukurtu CMS.104 Mukurtu (MOOK-oo-too) is a content management system platform with built-in localized frameworks for Indigenous peoples and communities to preserve and control access to and reuse of their digital content according to their needs.105 It developed from a 2007 collaboration among Warumungu community members, Kim Christen, and Craig Dietrich to produce the Mukurto Wumpurrani-kari Archive.106 The free and open source software facilitates selective sharing according to local protocols, metadata fields, parameters set by the Local Contexts labels and licenses, and Creative Commons licenses, where appropriate.107

  • Native-Land.ca.108 Native-Land.ca is a web-based resource created in 2015 by Victor Temprano (and now a part of Native Land Digital) to draw attention to the importance of land and territories and the histories of colonization that have systematically dispossessed Indigenous peoples of their land.109 Users can search by address to learn about the Indigenous territories, languages, and treaties in that area. The project’s mission is to increase territory awareness and improve the way people understand the histories of their countries and peoples.110

  • Nara Document on Authenticity (International Council on Monuments and Sites).111 Developed in 1994, the Nara Document on Authenticity seeks to expand the scope with which “authenticity” is viewed during conservation practices. This includes resisting homogenization and balancing the agency of the relevant communities around the knowledge(s), information, and various authenticity judgments that are associated with their cultural heritage and its conservation.112

  • Natural History Collections.113 Subhadra Das and Miranda Lowe have written about the whitewashing, racism, and coloniality embedded in natural history collections using collections examples and data from London’s Natural History Museum. In their paper, they outline ways in which “staff working in contemporary natural history collections can actively counteract racism by considering, embracing and implementing a decolonial approach.”114

  • Palestine Open Maps.115 Developed by Ahmad Barclay, Majd Al-shihabi, Hanan Yazigi, Morad Taleeb, Henry Zaccak, and Bassam Barham, Palestine Open Maps is a platform that uses maps and data to retrace the transformation of human and natural geography in Palestine. The maps are sourced from the public domain digital collections of the National Library of Israel, the National Library of Australia, and the David Rumsey Map Collection.116 The platform uses geocoding to combine the maps with other available data sources (e.g., the 1945 Village Statistics, historic photography, oral histories, present day maps and data), enabling users to search for locations and apply various filters to learn about “present and erased localities.”117

  • Plateau Peoples’ Web Portal.118 As described on the website, “The Plateau Peoples' Web Portal is a collaboration between the Spokane Tribe of Indians, the Confederated Tribes Of The Colville Reservation, the Confederated Tribes of the Umatilla Indian Reservation, the Coeur d'Alene Tribe of Indians, the Confederated Tribes of Warm Springs, the Confederated Tribes and Bands of the Yakama Nation, The Confederated Salish and Kootenai Tribes of the Flathead Reservation, the Nez Perce Tribe, the Center for Digital Scholarship and Curation and Native American Programs at Washington State University.”119 The Portal aggregates cultural materials from multiple repositories that have been chosen and curated by tribal representatives.120 The responsibilities of all parties involved are outlined in a “Statement of Commitment.” The Portal incorporates a number of the projects references above (e.g., Mukurtu and Local Contexts). Users can create an account to browse the educational site, which communicates rights information of materials on an item-by-item basis.

  • Protocols for Using First Nations Cultural and Intellectual Property in the Arts.121 In 2019, Meriam/Wuthathi lawyer Terri Janke and her company published the Protocols for Using First Nations Cultural and Intellectual Property in the Arts.122 The document sets out concepts, principles, and protocols for understanding and respecting Indigenous Cultural and Intellectual Property (ICIP), and it includes case studies of implementation across the arts sectors. In 2021, Janke published “True Tracks: Respecting Indigenous knowledge and culture,” a book that expands further on work undertaken over the course of her career advocating for Indigenous peoples’ rights and control over ICIP.123

  • Qatar Digital Library.124 The Qatar Digital Library has a “Copyright & Ethical Terms of Reuse” policy that puts users on notice of considering how their reuse of cultural materials might harm the originating communities. It also highlights that while the library may be the legal owner of any IPR, or the materials may be in the public domain, it recognises and considers the broader rights and interests associated with the materials, which are held by the traditional custodians. The policy requires obtaining informed consent from all parties involved (e.g., Qatar Digital Library, the host institution, contributing third parties, and the traditional custodian) prior to any reuse for commercial purposes.125

  • RedCSur - Por una Política Común de Archivos.126 Red Conceptualismos del Sur (RedCSur) is a network of artists, activists, and researchers located in Central and South American countries and Spain.127 The members have developed what is intended to be a common and binding policy for the management of public and private archives “that is committed to cognitive justice, epistemological solidarity and that broadens the political and institutional imagination.”128

  • Right of Reply.129 The right of reply refers to the right to defend oneself against public criticism in the same venue where it was published, which some countries formally recognise in national legislation or constitutional law.130 For example, a federal judge in Brazil ordered the government to publish on its websites a reply from the Kinja (Waimiri-Atriari) people made in response to racist statements in presidential official communications around a 450-mile power line project planned to cut through the Waimiri-Atroari Indigenous Reserve.131 Nathan Sentance has written about the right of reply as a practice that should be embedded in GLAM collections management to “rectify the distortions of history and lack of First Nations voices.”132 The Indigenous Archives Collective has also written a position statement endorsing the right of reply with respect to GLAMs.133

  • Statement of Principles relating to Australian Indigenous Knowledge and the Archives.134 The project Trust and Technology: Building an Archival System for Indigenous Oral Memory has written a “Statement of Principles relating to Australian Indigenous Knowledge and the Archives.”135 Building on a number of international and national statements and protocols, the document sets out principles for recognizing Indigenous rights and knowledge in archival records and sources, and for adopting holistic, community-based approaches to Indigenous archiving, addressing errors or limitations in the record, and the need for inclusive practices across the profession.

  • Surfacing Knowledge Project.136 In consultation with Indigenous communities, the Surfacing Knowledge Project at York University Library approached linked open data as a way for First Nations, Inuit, and Métis communities to “identify self-determined names, places, and relationships in their collections—as widely as possible to the extent desired by the communities” with semantic potential.137 The project goals also include modeling processes and strategies to develop good practice on embedding Indigenous agency and autonomy in knowledge and collections management, including how collections and linked open data are integrated into third-party platforms like Wikidata.138

  • Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore.139 In 2010, the African Regional Intellectual Property Organization (ARIPO) published the Swakopmund Protocol on the Protection of Traditional Knowledge and Expressions of Folklore. Its purpose is to protect traditional knowledge holders and custodians in African countries against the infringement of their rights, as well as to protect expressions of folklore against misappropriation, misuse and unlawful exploitation. The protocol and the guidance written around it provide GLAMs with useful frameworks for respecting nationally recognized rights held by traditional custodians in the relevant physical and digital collections.140

  • Tandanya – Adelaide Declaration.141 In 2019, the International Council on Archives Expert Matters Indigenous Group presented the Tandanya – Adelaide Declaration calling on “jurisdictional archives around the world to acknowledge and adopt the themes and commitments of the Declaration for immediate action.”142 The Declaration outlines five areas knowledge authorities, property and ownership, recognition and identity, research and access, and self determination where traditional archival principles must be remodelled and reimagined.

  • The United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).143 As discussed above and in Human Rights, UNDRIP is a non-binding resolution passed by the United Nations in 2007. It sets out minimum standards for the rights of Indigenous peoples related to survival, dignity, and self-determination that can be voluntarily aligned to by GLAMs and the wider heritage sector.

  • Whose Knowledge.144 Whose Knowledge is a grassroots, “global campaign to center the knowledge of marginalized communities (the majority of the world) on the internet.”145 The website has a number of resources, guides, and reports on decolonizing the internet’s languages, transformative practices for building community knowledge, and adding and making that knowledge more visible using Wikipedia.146

Considerations for the Declaration include:

  • Well-resourced GLAMs and other heritage organizations and funders can undertake collaboration efforts to address technology and financial deficits which center and support localized knowledge(s) and expertise;

  • Recognizing that expertise flows both ways, making space for participation or even resistance and outright rejection of the dominant discourse(s) and knowledge(s);

  • Exploring agreements around IPR repatriation alongside other forms of reparation;

  • GLAMs regarded by national law as the legal owners of non-transferrable or unwaivable rights in repatriated materials (physical and digital) should co-develop, with the relevant communities, guidelines for the ethical use of such IPR;147

  • Seeking permissions from the communities of origin prior to digitization, whenever possible, and reconsidering whether existing digital media are appropriate for online display. Permissions should be obtained even if the materials are part of the public domain according to international or national laws;148

  • Extending the principles of dignity and respect to any analogue and digital materials;

  • Ensuring communities of origin enjoy full autonomy in devising any access strategies to cultural objects and associated materials both physical and digital;

  • Defining gradated access parameters, including appropriate physical access, for whom, and for what purposes, as well as parameters for wider online access to and reuse of digital materials and IPR;

  • What else? Tell us during the public consultation!

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