Decolonizing Copyright: Learning from the Jamaican Street Dance By Larisa K. Mann A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in Jurisprudence and Social Policy in the Graduate Division of the University of California, Berkeley Committee in charge: Professor Kristin Luker, Chair Professor Calvin Morrill Professor Pamela Samuelson Professor Coye Cheshire Fall 2012 This dissertation is licensed under a Creative Commons – Attribution license (CC-BY 3.0) Larisa Mann 2012 Abstract Decolonizing Copyright: Learning from the Jamaican Street Dance By Larisa Kingston Mann Doctor of Philosophy in Jurisprudence and Social Policy University of California, Berkeley Professor Kristin Luker, Chair In this ethnographic study I examine the significance of music-making in Jamaican society in the light of the increasing interpenetration of law and technology with cultural practices. I center the local institution of the “street dance” as the heart of Jamaicans’ musical practices. Grounded in a historical analysis of musicking – the active practice of engaging with music – in Jamaica and in the Jamaican diaspora, this study reveals how Jamaica’s colonial past and present shapes musicking’s cultural, political and economic significance in Jamaican life. Most specifically, Jamaican music-makers’ collaborative and repetitive practices, that draw on and reinforce shared cultural history, contradict current local and international copyright law. Copyright law relies on historically and culturally specific assumptions about the practice of creativity, and requires specific institutional context in order to function. But what relation do those assumptions and institutions have to the interests and traditions of music-makers? And how does that relationship change in the context of increasingly globalized copyright law that is increasingly and intimately enforced through globally networked technology? Through social history and ethnographic data generated by interviews, participant- observation, musical analysis, I reveal how Jamaican musicking practices are creative, productive, and rewarding for individual Jamaicans as well as for communities. I focus especially on the Jamaican poor who dominate Jamaican musical authorship, and who rely on alternate normative systems that shape both their creative practices and their understandings of ownership, control, and the distribution of money deriving from music. I map Jamaican music-makers’ engagement, resistance, and reinterpretation of copyright law concepts, and provide an analysis of music-making that reveals how copyright is informed by colonial assumptions that Jamaican practices can sometimes resist and subvert. Drawing on the impressive cultural contributions of Jamaican music-makers to Jamaican and global music culture, which derives from their specific practices (including those that contradict copyright), I offer a critique of copyright informed by a concern for substantive equality, centered on the needs of the Jamaican poor who dominate music- making and offer a corrective theoretical framework for analyzing policy and music- making in the digital era. 1 Contents Introduction : Jamaican Roots at the Faultlines of Copyright 3 1 Literature Review and Theoretical Framework 26 2 A History of Jamaican Musicking 80 3 The Street Dance: At the Center of Musicking 133 4 Answers, Riddims and Musical Conversation 183 5 Reports from the Jamaican Diaspora: Musicking in Toronto and London 218 6 Conclusion 280 Bibliography 293 Appendix: Methods 333 i Mann, Introduction: Jamaican Roots at the Faultlines of Copyright Acknowledgements I am deeply indebted to the faculty at JSP and my fellow students for providing a stimulating intellectual environment, and to Margo Rodriguez for her patience and good humor with my many logistical questions. I thank former JSPer Mark Massoud for his support and his inspirational work, as well as Joseph Hall at the School of Information. I am deeply grateful to Kendra Salois for her insights and support as part of a many-year, many-city writing group. I could not have done anything like the fieldwork I was privileged to do without the wisdom and skill of Andrea Lewis in Jamaica. My greatest thanks go to my mother, Esther Kingston-Mann who has provided years of intellectual inspiration through her work on land rights and peasant culture, and her meticulous and ethical approach to historical research, and who spent incalculable energy helping me through this process, including reviewing and commenting on more drafts of more chapters than I care to count. Lastly, I wish to thank my committee, especially my Chair, Professor Luker, for the patience and guidance I have benefited from while bringing this project to completion. ii Mann, Introduction: Jamaican Roots at the Faultlines of Copyright Introduction Jamaican Roots at the Faultlines of Copyright Current debates over the relationship of copyright and music have reached a fever pitch. Lawsuits, public protests, bitter arguments, campaigns for the redefinition, limitation or abolition of copyright fly back and forth between corporate entities in the creative industries, government bodies, fans, musicians, journalists and the public. Meanwhile millions of people worldwide continue to engage with music in ways that many copyright owners call illegal. Many of these practices are informed by a spectrum of creativity often called “remix culture”1 by lawyers, legal scholars and media scholars who often discuss them as part of a new, digital era of creativity.2 But are they so new? The practices that inspired the current discourse of “remix culture” are historically specific and developed out of black diasporic culture such as hip-hop.3 Although hip- hop draws on African American oral traditions, it was hip-hop artists’ specific technological engagement with recordings (as elements in the composition and performance process) that triggered a wave of legal cases and public discussion of music and copyright. This history informs current concerns about the scope, definition and efficacy of copyright in relation to music-making.4 We can trace the practice of using recordings as raw material for live 1 See, for example Lawrence Lessig, Remix: Making Art and Commerce Thrive in the Hybrid Economy (London: Penguin Press, 2008); Kembrew McLeod and Rudolf Kuenzli, Cutting Across Media: Appropriation Art, Interventionist Collage, and Copyright Law (Durham, NC: Duke University Press, 2011), 4–5, 67; Lori A. Morea, “The Future of Music in a Digital Age: The Ongoing Conflict Between Copyright Law and Peer-to-Peer Technology, The,” Campbell Law Review 28 (2005): 195–250; Matthew Rimmer, Digital Copyright and the Consumer Revolution: Hands Off My IPod (Cheltenham, U.K.; Northampton, MA: Edward Elgar Publishing, 2007), 261; Aram Sinnreich, Mashed Up: Music, Technology, and the Rise of Configurable Culture (Amherst, MA: University of Massachusetts Press, 2010); Ruth Towse, Creativity, Incentive, and Reward: An Economic Analysis of Copyright and Culture in the Information Age (Cheltenham, U.K.; Northampton, MA: Edward Elgar, 2001). 2 Damien S. O’Brien and Brian F. Fitzgerald, “Mashups, Remixes and Copyright Law,” Internet Law Bulletin 9, no. 2 (2006): 17–19 “We now inhabit a ‘remix culture,’ a culture which is dominated by amateur creators –-creators who are no longer willing to be merely passive receptors of content.”; Patricia R. Zimmermann, “Just Say No: Negativland’s ‘No Business’,” Cultural Studies 20, no. 2 (2006): 316–322. Zimmerman describes, “A high stakes civil war rages on your laptop. It pits the ever-expanding proprietary commercial music industry empire against the file sharing, grassroots freedom fighters who transform old sounds into new ideas.”; See also Sinnreich, Mashed Up. 3 Horace Anderson, “‘Criminal Minded?’ Mixtape DJs, the Piracy Paradox, and Lessons for the Recording Industry,” Tennessee Law Review 76, no. 1 (2008); Candace G. Hines, “Black Musical Traditions and Copyright Law: Historical Tensions,” Michigan Journal of Race and Law 10 (2005): 463–494; Stacy F. McDonald, “Copyright for Sale: How the Commodification of Intellectual Property Distorts the Social Bargain Implicit in the Copyright Clause,” Howard Law Journal 50, no. 2 (2007): 541–574; David D. Troutt, “I Own Therefore I Am: Copyright, Personality, and Soul Music in the Digital Commons,” Fordham Intellectual Property, Media & Entertainment Law Journal 20 (2010): 373–419; See Olufunmilayo B. Arewa, “From JC Bach to Hip Hop: Musical Borrowing, Copyright and Cultural Context,” The North Carolina Law Review 84 (2006): 547–642 for contextualizing hip-hop in a Western artistic tradition that also involves creative reuse. However, this does not explain why those earlier traditions failed to trigger widespread lawsuits or legal controversy. 4 I do not argue that hip-hop is central to understanding copyright’s limitations because of essential characteristics of black culture. Instead I suggest that the particular historical moments that led to the rise of hip-hop also created the legal regime that would be in contrast to it. The explosion of law journal articles that address the troubled relationship of hip-hop to copyright, rather than testifying to Hip-Hop’s uniqueness, instead exemplifies to the 1 Mann, Introduction: Jamaican Roots at the Faultlines of Copyright performance, historically, to Jamaica.5 Below I argue that Jamaica’s particular history and current reality as a site of colonial inequality can help us