Net Neutrality: No Easy Answers

Comment piece for Media International Australia, June 2006.

Danny Butt, Suma Media Consulting

The concept of “Network Neutrality” has received a great deal of attention in the press recently, mostly due to so-far unsuccessful US telecommunications legislation proposals that required Internet Service Providers (ISPs) to carry any and all Internet traffic equally, rather than being able to prioritise certain traffic or charge differential rates for different kinds of content.

For the proponents of Net Neutrality, there has been and should be a clear separation between the provision of physical network infrastructure and the provision of content. Much as in the telephone system, the ISPs should be treated as “common carriers” which are in the business of providing access to all content on the Internet. In the U.S., for example, legislation until recently required cable television providers to carry all content packages and provide the latest technologies in all areas they served, even if it would be more economically efficient to provide only those content packages with which they had direct relationships. The policy justification for legislating for this openness springs from the limited competition in the telco/ISP/broadband area, meaning that users don’t have true competition due to high switching costs and limited choice.

Net Neutrality proponents wish to see something similar for the Internet: a requirement that all ISPs provide access to all content on the Internet without different charges or reduced performance for content not approved or owned by the ISP itself. They want to see ISPs continue to charge purely on speed and volume rather than providing some services for free/cheap and making others more expensive.

At first glance, the issue seems like a straightforward benefit for consumers, worthy of public policy interventions. But for the ISPs and the providers of network services, different issues are at play that make it less simple. The Internet has transformed from a research network focussed on text and file transfer, to a highly flexible media and communications platform capable of emulating both the phone system and cable television. There are business pressures for ISPs to implement differential provision policies for Internet traffic for two reasons.

Firstly, Quality of Service (QoS) policies are required to prioritise important, time-sensitive traffic over less important traffic, when there are more requests than there is bandwidth available. For example, if you are video-conferencing, where maintenance of a certain data rate is necessary for uninterrupted viewing, under busy traffic conditions ISPs would like to be able to ensure you can see your conference uninterrupted, even if it slows down the person downloading a copy of a software programme next door. Similarly, if you are using Skype or a similar Voice-over-IP application to have an audio conversation, you would like to think that this could work even if you next door neighbour is downloading movies via a peer-to-peer file sharing application, where a few seconds delay is not going to make a difference to their experience. In Australia and New Zealand, a number of ISPs have already undertaken “bandwidth shaping” trials, or limiting the availability of bandwidth to traffic on common “ports” used by peer-to-peer applications.

In these examples, “non-neutral policies” that prioritise some types of traffic over others are an essential part of giving the customer what they want. The problem is that what constitutes benefit for the customer and benefit for the ISP’s bottom line becomes blurred. This is the case when, for example, the ISP is also a telecommunications provider, and the extensive use of VoIP may be cannibalising their phone revenues, and the suppression of this traffic for “QoS purposes” just happens to reduce take up of VoIP. Or the ISP has a relationship with a content producer (e.g. major record labels), in which case preventing peer-to-peer traffic may play a role in encouraging users to download the music content on the ISP’s website.

Differentiating between QoS discrimination for valid or anti-competitive reasons becomes even more difficult when next generation networks offer a “triple play” of voice, Internet, and movies from one provider. In this case, the ability to deliver specialised content services becomes part of the value proposition for the network, and motivates the consumer to purchase these services. Some ISPs argue that without the ability to guarantee certain use patterns they will not be able to fund the new networks and innovative services. For example, they would say, if you were considering signing up with ISP X for voice/Internet/movies, but read a review that their reliability on voice was not 100%, this would inhibit takeup of these new services.

While many small producers and consumer rights advocates (and large web companies who are not reliant on deals with highly branded content industries) have promoted Net Neutrality as equivalent to the deals between cable television networks and content providers, there are more complex interactions between content and infrastructure as intensive interactive traffic becomes the norm. In particular some of the new functionality such as that found in interactive television and gaming relies on a sophisticated relationship between content and hardware.

A useful analogy can be seen in the gaming console market, where the console manufacturers need to innovate at a hardware level as well as negotiate deals with content providers to create a portfolio of available titles [1]. By maintaining licensing control over who can develop titles, console manufacturers are able to capture up to a third of the retail value of each game sold, and this is integral to their profits. This is crucial because price pressure on consoles means that the profit margin on the hardware console is low. For console manufacturers, a suggestion that they should all be able to play each others’ games is infeasible.

The Internet, and the World Wide Web in particular was developed around a separation of traffic protocols, user environment, and content formats. Part of what made the web so ubiquitous was that you could view content on any operating system (Windows, Unix, Mac), via any browser (Netscape, Internet Explorer), over any kind of Internet connection (modem, LAN, wireless). This is what allowed the network to have a sense of neutrality.

However, the shift in the web from a predominantly text-based asynchronous information exchange platform, to sophisticated real-time applications (audio-visual media in particular), have resulted in more diverse, often proprietary platforms that link content, transport, and interface in new ways. Examples include the Windows Media Center, or Apples FairPlay DRM format/iPod hardware/iTunes software. This shift is driven by a combination of user-experience requirements (users expect integration) and an attempt to gain control of the hardware-software environment for areas of growth content to allow multiple revenue streams and brand control, along the lines of the console model. The degree to which this is a prerequisite for network innovation or constitutes anti-competitive behaviour is an policy question whose dimensions are complex and with remedies which are unclear.

A further complicating factor is that the highly branded content (music, movies) that is driving uptake of high-speed data services predominantly comes from offline sources where distributors not only controlled, but usually financed production. This is a very different model from the early Internet, where content was sometimes funded by ecommerce or advertising, but more commonly produced on a non-commercial basis. Or to put it another way, you can’t charge people a premium for much of the text-only internet, but you can for episodes of Desperate Housewives. And if you’re an ISP charging for access to those episodes, you’re probably paying a lot of money for the rights to show them, so you are going to want to prioritise access to those over other video content.

The question of what viable economic models will look like under next-generation networks is central to the Net Neutrality debate. On one hand, it seems unrealistic to expect that the vertically integrated content & distribution model has no place on the Internet – to exclude it by legal means will probably delay the introduction of new, efficient distribution models that users want (see, for example, the role of iTunes in kick-starting the digital music downloads business). But it is also true that the public policy implications of Internet and telephone connectivity are much more substantial than those of a console operator or movie theatre: when people discuss the importance of information-literacy they are not usually talking about access to playing games on an X-Box or being able to watch a Disney film. There is a genuine public need for effective access to email and Internet communications.

Yet in the new Internet networks all these kinds of information are delivered through the same mechanism. A large part of the problem is that people in the US (in particular) assumed that the Internet was public because the protocol for transferring information is public. But the actual physical networks are owned primarily by private entities who interconnect via market transactions and they have many incentives to recoup their investment/seek profit by tying their access offering to what people actually want, i.e. content. Especially when, as Richard Bennett has noted, there is no money to be made in being an ISP without those services, and the Internet backbone providers are almost always telcos who are offsetting their costs with voice services [2].

The business models were different back in the early 1990s when it was primarily research institutions who owned the pipes, but that’s not “neutral” or “public” in the way a government service is public. At least part of the blame for the current predicament can be laid at the feet of the “traditional Internet folks” who avoided government involvement in the Internet like the plague, and believed that a free market was the only way of preserving freedom of expression. A review of the history of other public utilities shows that in a market environment, governments might be the only mechanism that can realistically be subject to effective political influence in the public interest.

In summary, the Net Neutrality issue is not as simple as it might first appear. There could be genuine suppression of innovation from simplistic anti-discrimination legislation, yet imperfect competition is a feature of these networks which requires public policy remedies. The most important activity over the next few years will be clarifying what the most important public benefits of network access are, and developing mechanisms for supporting those benefits. In a rapidly changing network environment, these will need to be more sophisticated than simply arguing for a status quo, or worse, implementing poor legislation that is unresponsive to the business models that will shape the Internet’s future.

Danny Butt is a consultant in new media, culture, and development, and partner at Suma Media Consulting.

[1] For an excellent overview of the value chains in this sector, see Johns J. (2006)”Video games production networks: value capture, power relations and embeddedness.” Journal of Economic Geography 6(2):151-180; doi:10.1093/jeg/lbi001

[2] See comment on Tim Berners-Lee’s weblog: Berners-Lee, T. (2006) “Neutrality of the Net” http ://, Accessed 27th May 2006.

Digital Rights Management and Music in Australasia

Digital Rights Management and Music in Australasia

Danny Butt and Axel Bruns

Preprint of article published in Media and Arts Law Review, 10(4), November 2005

The Contemporary DRM Terrain

Technologists tend to see Digital Rights Management (DRM) as a technological solution, lawyers worry about its relation to copyright law, economists concern themselves with the market issues, and labels – and some musicians – see it as a way to maintain their right to extract revenue from the use of their intellectual property. And for the listeners, who are after all the source of market demand, DRM provides mainly headaches but few tangible benefits. While much of the Digital Rights Management debate concentrates on legal, economic, or technical issues, we focus on the implications of such issues for the user experience, which we believe will be a primary determinant of the success of DRM systems2. We finish with a set of questions and recommendations that are particularly focussed on the Australian environment and its musical production.

DRM emerges from a specific set of problems within the content industries in the wake of technological changes that have radically transformed the range of available content, and the methods for obtaining it. These changes include the shift from analogue to digital technologies in the production, distribution and storage of musical and other content, and the associated increase in the flexibility of content formats which can now be reconfigured, remixed, and redistributed quickly and easily using standard consumer devices. As the INDICARE report on consumer acceptance of DRM noted:

So what have consumers got in the past thirty years, during the evolution from VCRs to portable MP3 players? They have got used to obtaining content conveniently – they do not even have to stand up from their chairs any more – and having other (in many cases cheaper) ways to obtain content than buying it in shops.3

However, for reasons which at least appear commonsensical, content providers do not want their products to be transferable anywhere and reproduced free of charge. They are unhappy with the inability of the law to deny access and discourage copying, even though the history of failed legislative attempts to limit consumer choice and convenience – from the fixed-frequency radio sets of the 1920s to the debate over cassette tapes in the 1960s and 70s or present-day region-encoding schemes for DVDs – already points to the ultimate futility of such efforts. Therefore, content industries are working with technology developers to deploy a range of measures to provide ‘digital enforcement’ of rights protection. As Lawrence Lessig has demonstrated, ‘code is law’, and software is an instrument that constrains and enables behaviour, outside of the legal system we traditionally rely on4. This observation can be further extended to also include some of the hardware measures used to enforce DRM regimes.

A form of ‘vigilante justice’ by IP holders, DRM-related Technological Protection Measures (TPMs) can be seen as an attempt to bypass any legislative “copyright bargains” which have traditionally been struck between the incentives for commercial producers and the public benefits from non-commercial circulation. The network of devices existing under any specific DRM regime becomes a separate jurisdiction in its own right, and raises fundamental questions about the ability of nations such as Australia to legislate in support of the development of their culture and content industries. When Windows computers automatically download ‘Windows Media Player 10’ updates from Microsoft, altering their embedded DRM structures, neither Microsoft nor the users are waiting to consider whether these changes provide any ‘national benefit’ to Australia, or whether indeed they are compatible with the various types of copyright exceptions specified in Australian law. For the end user, the ‘copy’ menu item will simply be greyed out, with little or no ability to appeal this change in order to uphold traditional ‘fair dealing’ or other legislated rights.

Thus, national policy in this field will continue to play ‘catch up’ with processes that are largely outside the control of individual nation-states. The technological DRM systems predominantly in use today overwhelmingly emerge from the United States, and following the signing of the U.S.-Australia Free Trade Agreement we can expect greater harmonisation of Australia’s intellectual property regime with that of the U.S. – although as Young and Collins5 have pointed out, this harmonisation will be selective. Australia has a markedly different economic position in the global music industry from that of the United States, and may have economic interests that are often opposed to the aims of the major U.S. music and technology corporations. Kim Weatherall has noted that through this bilateral trade agreement Australia has committed itself to a detailed 29-page IP framework which has had no formal assessment by relevant government bodies such as the Productivity Commission, and reviews of the FTA either ignored the IP chapter or even suggested negative implications for Australia’s economy.6

Senior Staff Attorney Fred von Lohmann from the Electronic Frontier Foundation uses Jessica Litman’s formulation on how debates over copyright legislation appear from the end user perspective. Overall, it is fair to assume that the public has little incentive to reduce infringement for its own sake. However, ‘taken to the extreme, rampant infringement will result in the collapse of the music, movie and publishing industries, say copyright owners.’ As a lawyer responding to such claims on behalf of the public, ‘you would likely treat this argument with some skepticism. While unlawful copying is (and always has been) a problem, no one is proposing that copyright law be eliminated. Accordingly, copyright-based incentives for continued production of creative works will remain.’7 From the public’s perspective, then, the question associated with Digital Rights Management is not how DRM technologies can be used to stamp out unsanctioned content use completely, but how they can be deployed to ensure such incentives for content producers without infringing on the rights of end users, or criminalising them altogether.

However, for legislative and technological reasons, it appears increasingly likely that decisions in US entertainment and intellectual property law, which may have previously acted as a marker or guide for local scholars, will increasingly become an integral part of the Australasian legislative framework as well. The DRM systems that are possible or imaginable in the local environment are unlikely to be unique; they will largely be instances of global platforms and protocols. Rather than inventing an ideal DRM system, the challenge will be to forge a shared understanding of local priorities in this global field that is heavily shaped by non-local legal, economic, and technological concerns. Consequently, we summarise both local and non-local issues from the DRM literature and a series of interviews, with the purpose of assessing where the significant ‘points of leverage’ that shape the system might be found.

This paper draws upon 20 semi-structured interviews with musicians, performers, intellectual property experts, broadcasters, economic development agencies, collecting societies, industry bodies, commentators, and academic experts in Australia and New Zealand. The interviews were conducted in-person by Danny Butt between October 2004 and February 2005, with locations provided in the notes. Interviewees were asked for comments on wide-ranging topics including: copying, sampling, and re-use of music; clearances and collection agencies; trends in intellectual property law; alternative rights management systems; DRM systems, and the future of digital music. The aim was not to test particular hypotheses about DRM, or gain a representative consensus on key topics; but rather to gain illustrative perspectives on these issues from a variety of points of view.

The Stakeholders in DRM

Protection against duplication has been the overwhelming driver of DRM adoption, even though DRM can be used for other purposes, such as specifying use rights and tracking royalties. Content providers have posited that strong DRM measures will result in a benefit for consumers as more content is being made available again. This claim is usually justified through a prediction of increased participation in the digital content arena by content providers if they feel more secure. The validity of this claim has yet to be tested, however – indeed, there is a great dearth of independent evidence that increased copyright infringement through filesharing and other exchange systems has had any direct negative impact on the development of new content at all.

However, there appears little if any direct consumer benefit built into DRM systems. In an Australian industry panel on DRM in 2004, Kim Anderson of Southern Star Entertainment suggested that ‘there is almost a complete contradiction between what users and rights-holders want in terms of portability and flexibility.’8[AB1] Currently, consumer electronics manufacturers and computer software developers are doing their utmost to develop users’ expectations of the digital network as an environment to share and transform content – witness, for example, Apple’s ‘Rip. Mix. Burn.’ campaign; in addition, there is also a strong tradition (from filesharing platforms such as the original Napster through to other content and information exchange systems including podcasting, Audioscrobbler, or the Internet CD and movie databases) of users themselves developing the tools to enhance their experience of digital content. Amidst a surfeit of content, users look for new ways to manage and experience that content through a combination of such tools and new hardware devices such as iPods and personal video recorders. As Foxtel CEO Kim Williams put it on the same panel, these devices reduce consumption versus ‘lifestyle conflicts’9.

Compared to the device manufacturers, however, content providers remain in a largely defensive and reactive position, concentrating on legal avenues to limit the power of these new tools and devices rather than on the development of new business models. Their stance is also further complicated since a number of device manufacturers coexist with content providers under the same corporate umbrella – so, for example, Sony Electronics’ line of MP3 players, DVD burners, and personal video recorders can be seen as a direct threat to Sony Music’s revenue streams, while sales of AOL broadband access are driven in good part by the very filesharing practices which Warner Music would prefer to stamp out.10

Thus, the question which we believe will drive the development and acceptance of DRM systems is: “Who can remain close to the customer?” For example, who does the listener turn to when finding music? Historically, this has shifted from the live performer to the venue owner, the radio station, and the music video programme. Currently, demand in digital music is overwhelmingly driven by the computer and device manufacturers, who must balance the needs of labels and the desires of consumers, and consumer initiatives (such as filesharing) themselves, which focus almost entirely on the needs of the end user. As the labels express their desire to regain control of the listener relationship in the online environment, a range of different business models and technical platforms with different and incompatible DRM systems will continue to emerge. However, the success of Apple’s iTunes Music Store shows that users have a clear preference for unobtrusive DRM systems, convenient access, and “ownership” (rather than rental or subscription) of their music purchases.

The challenge for major content companies will be to move back into a position of supplying what the customer wants (and building a sustainable business model around this transaction) instead of preventing customers from getting what they want. In the meantime, however, they will jostle for legislative support (increased penalties for piracy, mandated DRM, outlawing the bypassing of technological protection measures, etc.) to shore up existing business models. Electronics and computer companies try to maintain customer demand through innovative products, on the other hand, while attempting not to alienate too many of the content companies who may refuse to license their material for platforms that do not support complete content company control over the digital content experience. User advocates will attempt to maintain the traditional exemptions associated with copyright in a digital environment even though DRM can be used to undermine them. Users themselves will continue to pursue usage they now see as ‘customary’ in the digital environment: the ability to shift formats of recordings through time and space, in the process making copies for personal use. The interplay between these groups will shape the future success of DRM and alternative licensing schemes, and we suggest that in light of the continuing failure of ‘hard DRM’ approaches to win consumer approval and change end user practices there will – and must – be a move toward more consumer-oriented DRM design and business models.


Drawing from our interviews, we have developed a clear picture of two relatively discrete “music ecologies” at work in digital music, each with their own legal, economic and cultural dynamics. This analysis perhaps reflects other literature in sociology and economics that describes a bimodal nature of informational economies11.

The first is the “industry”, dominated by the five major record companies; their vertical integration with other major media, retail, and hardware / software companies; as well as their articulations into various policy-making bodies. The tightly-integrated ‘distribution-driven ecology’ of the major industry sector is overwhelmingly driving the adoption of Digital Rights Management. Wallis et al. point to a wide range of literature identifying an increasing concentration of ownership in the global industry, and concomitant formal and informal integration within and between different sectors12. Together, Polygram (Netherlands), Sony (Japan), Warner (US), EMI (UK) and BMG (Germany) account consistently for 70-80 percent of global music sales. The mainstream industry is also characterised by a marked disconnect between content providers and audiences – major labels (and even some major acts under contract to them) are seen predominantly as commercial operations which engage in exploitative business practices and command little listener loyalty, if not even engendering outright resistance.

The second ecology is constituted by a much more disorganised set of relationships among mostly (but not exclusively) independent producers, distributors, markets, and audiences. While its share of the market is smaller, it constitutes a much higher number of musicians (employment) and musical products (i.e. intellectual property). The primary drivers in this ecology are production and niche market demand, and while the taste cultures supported by this ecology frequently span the globe, the companies involved often have a much stronger local basis than the majors.13 For smaller economy policy-makers, this ecology therefore also offers the most sustainable national benefit. As Murray Jeffrey from New Zealand’s economic development agency NZ Trade and Enterprise points out:

We’ve got something like 80 or 90 independent record companies in New Zealand. MP3 is a huge opportunity for them. Getting on the radio in the US is not going to happen without a huge investment. It [the digital distribution channel] might be a niche market but in a large export market a niche is more than our national sales.14

This tier of the industry is able to build on a much stronger sense of customer loyalty – to individual artists, but frequently also to labels themselves where they are seen as strong supporters of specific taste cultures.

Industry development and DRM

The development of the ‘music industry’ is not a straightforward proposition. A recent briefing on the needs of the Australian music industry concluded that the majority of the challenges facing the industry could be traced to a lack of integration and cooperation, particularly in terms of communication to key stakeholders (government and community)15. What is rarely explored is that the economic interests of various parts of the industry are not only different, but ultimately opposed. For the local arms of the multinationals, the highest revenue comes from sales which have minimum investment in product development and rely on their cross-media marketing and distribution networks: e.g. overseas ‘hit content.’ For local musicians, a healthy independent scene, particularly at the publishing level, may be the surest path to sustainable development. The same may also be true for regional economic development strategies. These generally have employment and IP generation as their goal, and thus have an incentive to support the producer-driven ecology. As Kate Oakley points out:

Brand development, marketing and the boosting of sales of a local artist, even by a big label, is of no major economic benefit to Queensland’s economy if the State loses the rights on income through intellectual property (IP) on the artist or his or her production.16

One might note that the intellectual property rights of local musicians are important, and DRM can surely benefit them. [AB2]Anti-DRM campaigners are sometimes aligned with anti-copyright movements, but important distinctions must be made. The critique of DRM is not a critique of artists’ rights to make a living from their work. Few anti-DRM campaigners claim that copyright laws should be overturned. Instead, it is noted that existing DRM systems are focussed on the distinctive needs of a few very large companies and exceed the provisions of the law, but that it is very difficult for independent artists, businesses and users to shape DRM systems to their own needs. As Chris Atkins suggests, usage tracking is a potential boon to the independent artist, but the overwhelming emphasis of DRM systems is on protection against casual copying, rather than these more positive DRM features. It is also worth noting that regardless of the success or otherwise of DRM measures in policing copyright, ‘in an industry founded on exploitation, oiled by deceit, riven with theft and fuelled by greed’ (as veteran musician and record label operator Robert Fripp has famously put it17) most musicians continue to receive only a minute share of the revenue from sales of their music, *after* label expenses have been recouped. Where this is the case, most musicians are likely to have only limited interest in supporting standard DRM systems.

Thus, content protection technologies in DRM are *designed for dominant players in the market*. When applied to less popular content, they form a barrier to its discovery, use, and popularity.[AB3] It is interesting to observe in this context that even Microsoft will not pursue technical forms of IP protection in markets where it is not in a dominant position. Scheiner notes that Microsoft’s Steve Ballmer has been quoted as wanting to enable Windows to be pirated in China in the short term, as a way of gaining mind share. He suggests that new entrants in a market always benefit from having their content pirated in the short term18. This is hardly a new approach for Microsoft – its MS-DOS operating system was one of the most pirated software products of the 1970s and 80s, contributing significantly to the current market position for the successor platform Windows – but it does undermine the music industry’s claims that copying (whether in the form of taping, ripping, or filesharing) inevitably ‘kills music’.

This is because, unlike many other commodities, music is highly diverse and not always substitutable: it is the circulation of music which creates the demand for a particular piece of music. For example, I may feel like going out to buy a new CD. Choosing between hip hop artists Eminem and 50 Cent, my preference for one or the other may not be great, and so the price of these CDs may be an influence in my decision. However, this situation differs from the music listener who hears Shania Twain on the radio then decides to buy the CD. They are not going to buy an Eminem CD (or a Britney Spears CD) even if it is a quarter of the cost. This is how circulation of music generates demand. (In the U.S. this is recognised for example in the fact that terrestrial radio stations are not required to pay sound recording royalties to music publishers for broadcasting their songs – instead their doing so is considered to provide a beneficial free service to the music industry.19) As Petrick notes, ‘the introduction of a work that is diverse enough in relation to the other works may create new value by creating previously non-existent (or below price level) demand.’20 The challenge for independents is almost always creating demand, and given the market demand for artists with a track record, it makes sense that the challenge in the short term is building a critical mass of audience support.

However, the economic implications of prematurely controlling copying through heavy-handed Digital Rights Management regimes are not limited to the end listener’s experience and limiting consumer demand. In environments where digital production, sampling and remixing are the norm, DRM can equal a direct loss of licensing revenue opportunities, as effective sampling can rarely be predicted prior to use. As Melbourne electronic musician Andrew Garton notes, ‘If I think about using something as a sample, I copy it, see if it works, and then think about rights issues later. If I can’t copy it, I’ll use something else.’21 The irony is that even artists whose work is based on sampled material may have its re-use compromised by DRM. This was the case for hip-hop group the Beastie Boys, who eventually had to apologise to their fans for the copy-protection applied by label EMI to their CD22.

Beyond such well-known celebrity cases in the commercial arena, wider cultural and economic issues are at play. Sampling, remixing, and other forms of creative content reuse and reappropriation (or even de-propriation, as one group has called the practice23) have now become part and parcel of the growing trend towards grassroots and vernacular creative practices which have emerged especially in reaction to the rise of digital media production and distribution technologies. Commentators such as Leadbeater24 and Howkins25 point to the fact that Western economies are swiftly developing into creative economies which are based in good part on DIY cultural practices and the growing cultural participation of previously passive audiences as active ‘pro-am’ content producers26. The creative community acts as both user and producer of content, and increasingly combines both practices in the act of what can be termed ‘produsing’27 – the collaborative creation of new content based on existing material from other sources. Such content has significant potential both from a cultural point of view, as it enables a wide swathe of society to be active cultural participants rather than merely passive recipients of content, and from a narrower economic perspective as this increased cultural production is also likely to spawn new commercially viable content, content genres, and content producers.

However, current intellectual property provisions, already significantly extending traditional copyright terms beyond the life of the author and now reinforced through hard DRM measures, significantly stifle this trend towards more ‘pandemic’ DIY creative practices. They make it difficult for grassroots creatives to draw on existing content, as they do not have the legal resources necessary to negotiate clearances. As a partial response to this crisis, recent years have seen the successful introduction of the Creative Commons project28 – not as a way of eradicating intellectual property (as is sometimes claimed by its detractors), but as a means of specifying copyright-style usage limitations which are more conducive to widespread creative practice while maintaining the moral and (where required) economic rights of authors. The Creative Commons system, which is based on a set of clearly formulated content licences, reintroduces certainty about user (including re-user, i.e. remixer) rights and limitations for each piece of content to which its licences are applied, and thereby significantly reduces transaction costs for content use while increasing the potential for creative reuse and collaboration.

Currently, creative commons licences are attached to content mainly in the form of visible or invisible metadata (for example as part of Website metadata structures or through the embedding of CC licence logos and links in pages or text files which accompany licenced content). There is nothing which would prevent the application of DRM frameworks and technologies to CC-licenced content, however – deployed in this fashion, DRM tools could therefore be used to specifically permit and even encourage further uses of licenced content rather than mainly preventing them.

Copyright Exceptions and Fair Use

In addition to such new approaches, countries with developed intellectual property policy frameworks tend to retain various exceptions or exclusions from the unique license to exploit intellectual property. The exemptions recognise that fundamental conflicts exist between the property rights of the rights holder and the rights of freedom of expression and privacy of the user, as well as dividing the ‘bundle of rights’ between the product owner and IP owner29. A second rationale accounts for the “public good” nature of creative works in an economic sense. In the former British Commonwealth, these consist of various exemptions (‘fair dealing’), mostly for the purposes of “research and private study” or “criticism, review and news reporting”. Uses outside of these areas cannot be considered fair dealing, no matter how ‘fair’ they are. The right to engage in fair dealing is considered a right of the user, and the Commonwealth system is focussed on the balance between user and authorial rights.30

In the United States, a less settled doctrine of ‘fair use’ provides for the ‘public good’ nature of creative works more directly – rather than granting rights, fair use is assessed in terms of whether it promotes overall the ‘Progress of Science and useful Arts’. The beneficial aspects are expressed in economic terms by Paul Petrick: ‘music has potential positive externalities that a copyright holder cannot assess nor recoup when selling it; fair use provides a means to subsidize uses that create sizeable value.’31 Thus many of the most interesting legal cases relating to DRM have taken place under U.S. law, as activities such as peer-to-peer (P2P) file sharing are illegal per se in the Commonwealth, regardless of whether they advance the cause of music or not. In fact, digital music players such as Apple’s iPod have almost no legal use in Australasia, even though the devices themselves are not illegal and everyone buys them to engage in illegal activity – listening to CDs they have bought in another format.

Many of the exceptions to both copyright and fair use rights take the specific situation of use and consumption into account. However, this is rarely the case for Digital Rights Management systems, which concentrate on allowable uses predetermined only by the content owner32 – DRM systems development at present remains driven mainly by what is possible from a technological point of view, not by what is required or desirable from a cultural, social, or moral perspective. While there has been some work done on so-called “symmetric” Rights Expression Languages (RELs) that can provide context sensitivity and can enable requests for special exemption, these are faced with many problems, not the least of which is a lack of a key institution to resource handling of these requests. In the analogue world, consumer requests for exemptions are essentially granted *until* a claim against them is made in a court by the content provider. DRM takes precisely the opposite approach, meaning that the courts never get to decide (unless for example cases are brought to determine whether certain DRM regimes undermine basic civil liberties).


While industry associations talk up the perils of piracy, the average user’s resistance to DRM is often for more mundane reasons, and these raise a number of significant legal and policy issues.

Music with DRM is a product that might be called ‘usage-impaired’33. From the consumer or user’s point of view, use restrictions may prevent them from private copying or backing up; using content on various devices such as MP3 players (despite there being no legal way to purchase many artists’ music in a digital format that is not bound to a physical carrier medium such as CDs or DVDs); and using it in different locations (some copy-protected CDs will not play on certain makes of car stereo or computers), not to mention an overall reduced ease-of-use for accessing content. Slowinski notes that DRM tends to create time-consuming workarounds for non-infringing uses of content, and this particularly affects not-for-profit organisations such as educational institutions and libraries34.

As DRM systems are further interwoven with so-called ‘trusted computing’ platforms, such problems are likely to be further exacerbated. Trusted computing is the latest in a series of exchanges in a technological arms race between hardware manufacturers (acting in concert with copyright industries) and independent users (seeking to circumvent any usage restrictions introduced through hardware or software measures); it aims to introduce hardware measures which either prevent unsanctioned content uses altogether or at the very least make such use more easily traceable through unique machine identifiers. While in theory hardware-based measures to this effect will be more difficult to overcome than software-based protections, it is likely that they will only delay rather than completely prevent circumvention; as the history of region encoding in DVDs has shown. In fact, hardware manufacturers themselves are often complicit in the development of circumvention measures since insurmountable usage limitations impact negatively on sales. Too heavy-handed approaches to trusted computing are also likely to speed the exodus of users from proprietary platforms towards open source operating systems.

This illustrates the intertwining of business, cultural, and social issues in DRM. The business rules established by software and hardware vendors for content protection can affect consumer rights and use practices in ways which are as relevant to consumer protection law as they are to copyright law. For example, the usage rules associated with rights-managed content are rarely transparent. The widespread use of complex ‘click-through’ or ‘shrink-wrap’ licenses – where users are asked to agree to extensive terms and conditions before using digital products – creates uncertainty at the purchase level about fitness-for-purpose.

A deeper concern is privacy. For DRM to work, data associated with identity and authentication must usually be provided to the vendor. However it is difficult for the user (or governments) to monitor how this information will be used and protected. Many consumer groups such as the European Consumer Organisation (BEUC) are concerned about the impossibility of anonymous access to content under DRM regimes. Under this scenario, it is unlikely that users will trust a number of smaller providers with their data. There is a clear role for third-party authentication schemes or government intervention in this context – however, this brings with it the danger of excluding better platforms for rights and identity management.

A final issue is whether the desire to protect content through DRM technologies (and the associated legal support) is cost-effective or worthwhile. Technology commentator Mark Pesce claims that users will always find ways to bypass overly restrictive rights management systems, and this has been proven in the history of digital media technologies. Instead, he advocates for the commercial potential of such systems – suggesting that the iTunes model proves that users will happily pay for content if it is delivered at the right price in the most convenient format35. Far from trying to squash Bittorrent, content providers could see it as a massive *investment* by users in the distribution of content.

Working with users

The standard music industry anti-copying slogan ‘stealing kills music’ is demonstrably wrong in its overly generalising approach, and is therefore widely dismissed by users – copying does not necessarily equate to stealing, while as a form of additional exposure for artists copying can even help *increase* sales. However, amongst the majors, DRM is currently viewed as a means of preventing or at least severely inconveniencing uses of music that are often seen by a majority of users as customary and acceptable. For example, from the listener’s perspective, duplicating CDs for private use in one’s car does not impact on sales since one does not expect to buy multiple copies of the same CD. However, this experience is not reflected in the rhetoric of industry bodies such as the Australian Federation Against Copyright Theft. Their executive director, Adrienne Pecotic, suggests, somewhat implausibly:

“Consumers are not entitled to replacement goods if they break their crystal glasses or stain their new clothes. Once a right exists to create an unprotected copy of a DVD film, that film is then exposed to unrestricted copying, whether a single copy for personal use or 10,000 copies for sale around the world.”36

Quite apart from the common industry hyperbole which sees any one copy as inevitably spinning out of control to become part of a major counterfeit trade, this metaphor is also flawed in that DRM-protected CDs or DVDs should be likened more accurately to crystal glasses which are only able to hold one type of beverage, or clothes which can be worn only at specific hours of the day. DRM-protected CDs or DVDs constitute a product whose uses are so severely restricted that it can be regarded as inherently defective. As a result, the listener experience with DRM is as a strategy that seems greedy. In buying CDs listeners purchase a licence to access intellectual property, and CDs cost twenty times their manufacturing cost due to such intellectual property considerations. But when listeners want to shift this intellectual property to another format for convenience, they are forced to buy the licence again as if a CD was a purely physical product.

However, rather than just making consumers buy things twice because one can, it is possible to use tools developed for DRM for other ways of stimulating the music economy. For example, watermarking of tracks can establish a relationship between a digital audio file and a specific user who may have paid for it. Other users who access this file can be directed to a Website where they are encouraged to buy other tracks, albums, or merchandise. It would be possible for the original user to get a cut on these transactions, providing an encouragement for them to share the track in a way that generates revenue for the artist. At least in the second tier of the music industry, there often exists a strong loyalty between artists (and sometimes labels) and listeners, and such constructive approaches to using DRM may well prove successful where the more standard cease-and-desist belligerence of the mainstream music industry only engenders further animosity and resistance. Another business model could involve tracks that contain advertising, which can be removed on payment. Or unauthorised tracks may even just remind the user of their obligations, relying on a moral incentive.

While the potential models obviously rely on technological solutions, the overwhelming focus on content protection in the industry must be seen in the context of a *lack* of investment in innovative and user-friendly approaches. For the oligopolistic major labels, who make little investment in their own brands for consumer purposes, there is little to fear from consumer backlash against their DRM tactics. Listeners just won’t buy digital music, rather than not buying from BMG or Sony in particular. This represents a great opportunity for independent or artist-run labels who establish stronger presence in consumer consciousness. They may also significantly *profit* from the use of filesharing and other (technically copyright-infringing) technologies as a form of word-of-mouth marketing – it is worth noting in this context that despite claims to the contrary there is little evidence to suggest that filesharing has had any statistically significant effects on music sales.37

According to CEO Donald Katz ‘the realm of piracy will diminish most profoundly when the consumer perceives a great product at great prices from good people with well-meaning aspirations’38 and Condry notes that his students reinforce this point when asked ‘Is there some music you would always pay for?’:

Most students said yes. They mentioned indie artists, or artists from their hometown, whom they know ‘need the money’. Some students identified major groups ‘with a solid track record of good albums’. Other students mentioned entire genres of music, notably, jazz and classical music, because ‘they stand the test of time’, and because they are not adequately supported by major record companies.39

Ultimately, then, instead of a continuing, costly, but futile DRM arms race between IP holders and IP users, it would seem more effective to develop a more consensual and cooperative approach to deploying DRM systems. This would include fair pricing and fair usage limitations and a form of DRM policing that is based less on litigation than on encouragement for users to activate the desire to pay for content mentioned by Condry’s students above. It would harness existing user-driven content exchange spaces as means of promoting new content, rather than dismissing them simply as a realm of piracy – in essence, this approach appeals more to users’ ethics rather than their fear of legal retribution.

It is not inconceivable that a deepening split between the sectors will result from this, even leading to the emergence of at least two clearly distinct DRM regimes – one that serves the major label interests, and one more suited to smaller, independent artists or those from smaller economies. While the generally diffused nature of the second tier might hinder effective cooperation on developing new DRM approaches (at least in comparison with the concentrated efforts of the first tier), governments – especially those outside the US – could play an important role in helping the second tier coordinate its efforts. As noted above, the independent and often locally based sector of the music industry is an important contributor to national and regional economies in many countries, and should be supported in areas where its growth is at odds with transnational mainstream music industry interests.

An effective, non-adversarial DRM system, perhaps with ties to collection societies which focus on distributing royalties fairly to artists rather than mainly benefiting the major labels, could sustain local music industries, support widespread DIY cultural production, and halt the current trend to criminalise music users for customary small-scale infringements. Government policy could support such developments, and in the process would also help avoid the emergence of a global DRM monopoly controlled by the major music labels and hardware manufacturers. By contrast, the emergence of this monopoly would provide its operators, which also happen to be the major players in the global music industry, with a means to lock non-compliant content producers out of the market altogether. An interesting policy proposition by Weiser suggests that governments may have a role in supporting ‘competitive platforms’ as part of their innovation policy, whenever there is a chance of a platform monopoly stifling innovation40.

Further alternatives

Pesce mentioned above the self-education of users as a distinctive trait of the contemporary digital environment. Many users have also taught themselves how to, for example, disable region-encoding on their DVD players, block pop-up ads on their Web browser, or check for spyware on their computer – with such success, in fact, that pop-up blockers have now been included as standard features in Internet Explorer and other browsers, and that region encoding can be said to have soundly failed in its mission to maintain geographically separate markets for DVDs. Users do this because they feel they have a right to use the products they have purchased in whatever ways they see fit, and to bypass licensing restrictions that are seen as out of step with their understanding of property. Cory Doctorow[AB4] contrasts the ‘private laws’ (such as region encoding) that have sprung up in the digital environment with the copy protection attached to a book, which can be taken anywhere and sold or given away after use. It is the kind of ‘objectness’ associated with the book or the CD that perhaps provides the model for how we expect our digital content to behave.

However, in the digital environment the competing standards of possible file types, DRM systems and operating systems further complicates the market for content. This interoperability is one of the key challenges facing content providers today, and the work of Europe’s High Level Group on DRM reiterated its importance41. Interoperability between devices and platforms is needed to allow customary uses such as time and space shifting, but also to reduce the risk of customers losing access to their purchases if software and hardware become obsolete, a significant barrier to trust in e-content. Unfortunately, manufacturers and content owners have short-term incentives to create proprietary DRM systems that do not interoperate with others (maintaining barriers to entry and protection of incumbent market positions).

This is due to a phenomenon called suboptimisation, where the individual interests of actors in some imperfect markets result in a less beneficial outcome than would otherwise be possible. In this case, DRM might reduce total market and social good, but industries will still pursue it. ‘This is due to the fact that price discrimination [available through DRM] increases the ability of a producer to appropriate a larger proportion of the surplus created. Thus, it is possible that while total surplus might decline, a producer’s profits might increase’42. However, through incentives to collaborate, a larger overall surplus may be able to be obtained. But as Bremer and Buhse point out, another reason for the lack of common DRM standards is that the requirements are very different at different points of the value chain, and so the different stakeholders have conflicting views on what would constitute a viable DRM system43.

William Fisher makes the strongest argument for a system that will overcome the economic issues of suboptimisation that come from privatised public goods44. He shows that a levy system could be devised that would fairly compensate artists while reducing transaction costs for music listeners. However, while his scheme benefits many in the digital music ecology, it does not benefit the long term strategic dominance of the major players, which greatly reduces the likelihood that it will be taken up in the current political and economic environment. Nevertheless, Fisher includes a role for DRM systems in tracking usage, which could be of great benefit to independent artists, labels, and collecting societies. What seems more likely, however, is that usage tracking mechanisms are employed to determine compensation among the rights holders and distribution partners, without recourse to public good requirements.

This is an area where collecting societies have been trying to position themselves as well placed to manage the process of collection and distribution. However, whenever collection societies attempt to position themselves as intermediaries, there is a swift response from the industry. In Australia, the Australasian Performing Right Associaton (APRA), representing songwriters and publishers, has called for a Canadian-style levy on blank CDs, DVDs and digital music players to compensate artists for the effects of copying. However, the Australian Record Industry Association tends to view such solutions as both unnecessary and a legitimation of copying it sees as simply illegal.45.


Wallis et al. believe that the shift of copyright revenues from physical distribution to intellectual property rights will benefit IPR owners, with the “danger that the revenue distribution of IPRs will only be safe for the most successful artists and largest record companies, and that barriers to entry will be erected against smaller companies and less known entrepreneurs.”46 With the majors controlling 80% of the revenues flowing through the collecting agency system, there is a strong economic incentive for them to gradually withdraw from this system in favour of their own arrangements. It appears that DRM is likely to bring a massive transformation in the entire infrastructure of music circulation.

The interplay of technical and legal barriers to use through DRM leaves the consumer with digital music systems that:

a) prevent consumptive uses which should be allowable under fair use/dealing provisions,

b) lack workable provisions to exercise legal exemptions,

c) have contractual restrictions on legal exemptions that would otherwise be available47,

d) are not usable on many free operating systems, and

e) require tightly integrated hardware and software (“trusted computing”), leading to “digital lock up” – a reduction in user choice of technology.

While there are no simple solutions to these troubling issues, we can note three broad strategies that must be addressed to achieve a viable future for digital music.

The first is a review of copyright law, in light of the fact that in light of the fact that copyright developed in very different social and technological situations, with differently commodified relations between producers and consumers than we have today. Copyright law defines the rights of rights holders of a work, but not the rights of users. There is a need for “enforceable consumer rights” that are not infringed by DRM, click-wrap licenses etc.

The second is to address the low level of consumer and consumer-advocate involvement in discussions with respect to Digital Rights Management. While this burden primarily falls to technology and content companies who must take user rights more seriously, there is also an important role for government and academic bodies in brokering discussions across the domains of business, policy, artistic creation, and end users. It will be the through the formation of shared understanding – as opposed to defensive tactics – that the prospect of successful Digital Rights Management will emerge.

The third and final strategy falls to governments: it points to the need to support alternative platforms for rights-managed digital content. This would ideally be directed to the needs of local or independent producers for the purposes of supporting creative and economic development. But even more importantly, it will mean that a monopoly situation is avoided and more control is retained over policy-making for cultural and economic objectives. A monopoly DRM environment truly functions as private law, and the laws governing the social and economic future of our creative sector are too important to outsource to overseas technology and entertainment companies.

1 * Corresponding Author. Danny Butt was employed by QUT for this project, which received funding from a Queensland University of Technology Strategic Initiatives Grant.

2 INDICARE, Digital Rights Management and Consumer Acceptability. A Multi-Disciplinary Discussion of Consumer Concerns and Expectations. (2004) <> at 20th January 2005.

3 Ibid 73.

4 Lawrence Lessing, Code and Other Laws of Cyberspace (1999).

5 Sherman Young and Steve Collins, ‘Fair Enough? Copyright and the Australia – United States Free Trade Agreement’ (2004) (Paper presented at the Mobile Boundaries / Rigid Worlds : The Contemporary Paradox, Macquarie University, Sydney, 28th September).

6 Kimberlee Weatherall, ‘Locked In – Australia Gets a Bad Intellectual Property Deal’ (2004) 20 (4) Policy 18-24.

7 Fred von Lohmann, Fair Use and Digital Rights Management: Preliminary Thoughts on the (Irreconcilable?) Tension Between Them (2002) Electronic Frontier Foundation at November 20 2004.

8 See Danny Butt, Report on Digital Rights Management and Cooperation Seminar (2004) Association for Progressive Communications <> at 29 October 2004.

9 Ibid.

10 See, eg, Frank Rose, ‘The Civil War inside Sony’ (2003) 11 (2) Wired. <> at 28 April 2005.

11 See, eg, Otomar J. Bartos, ‘ Postmodernism, postindustrialism, and the future’ (1996) 37 (2) The Sociological Quarterly 307-326; Saskia Sassen, The Global City: New York London and Tokyo Updated Edition (2000) [1991]

12 Wallis, Roger, Charles Baden-Fuller, Martin Kretschmer, and George Michael Klimis. ‘Contested Collective Administration of Intellectual Property Rights in Music The Challenge to the Principles of Reciprocity and Solidarity’ (1999) 14 (1) European Journal of Communication, 6.

13 A similar ‘major’/’minor’ dichotomy also became highly visible in the recent conflicts over Webcasting royalty frameworks in the United States – see, eg, Axel Bruns, Fight for Survival: The RIAA’s Sustained Attack on Streaming Media (2004) M/C Journal <> at 28 April 2005.

14 Interview with Murray Jeffrey, New Zealand Trade and Enterprise (Auckland, 19 October 2004).

15 Allen Consulting, An Integrated Approach for the Australian Contemporary Music Industry (2004) <> at November 2 2004.

16 Abraham Ninan, Kate Oakley and Greg Hearn, Queensland Music Industry Trends: Independence Day?, ISBN: 1 74107 056 2 (2004) 29.

17 Robert Fripp, DGM’s Founding Aims and Mission Statement (1997) <> at 28 April 2005.

18 Bruce Schneier, Secrets And Lies: Digital Security In A Networked World (2000), 252-3.

19 Webcasters tried unsuccessfully to use this exemption to argue for a corresponding exemption for online music transmissions during the bitter Webcast royalty disputes of 2002 – See, eg, Stephen H. Wildstrom Royalties: A Royal Pain for Net Radio (2002) <> at 28 April 2005.

20 Paul Petrick, Why DRM Should be Cause for Concern: An Economic and Legal Analysis of the Effect of Digital Technology on the Music Industry, Berkman Center for Internet & Society at Harvard Law School Research Publication No. 2004-09. (2004), 20.

21 Interview with Andrew Garton, (Melbourne, December 7 2004).

22 Cory Doctorow, ‘New Beasties disc has DRM’ (2004) <> at 23 March 2005.

23 Snafu, ‘Wu-ming: 54: Re:inter:view’, 2 _ØYES make-world-paper_ (November 2002) 4. <> at 6 October 2005.

24 Charles Leadbeater, Living on thin air: the new economy (2000).

25 John Howkins, The Creative Economy: How People Make Money from Ideas (2001).

26 Charles Leadbeater, ‘Open Innovation and the Creative Industries’ (2004) (Lecture at Creative Industries Research and Application Centre, Queensland University of Technology, Brisbane, 2 March).

27 Axel Bruns, Gatewatching: Collaborative Online News Production (2005).


29 Interview with Brian Fitzgerald, Faculty of Law, Queensland University of Technology (Brisbane, March 6 2005). The language of “user rights” has caused some controversy, but support can be found in, eg, the Copyright and Contract review of the Copyright Law Review Committee, available at <>. We are grateful to an anonymous reviewer for this suggestion.

30 Associated with the intellectual property provisions of the Australia-US Free Trade Agreement, the Australian Government is currently engaged in a review of the fair dealing provisions in Australian copyright law. See for example the issues paper Fair Use and Other Copyright Exceptions: An examination of fair use, fair dealing and other exceptions in the Digital Age (2005) <> at October 6 2005.

31 Petrick, above n 20, 11.

32 Tim Jackson, Comments on the Informal Consultation of the Final Report of the High Level Group on DRM of the European Commission, DG Information Society (2004) <> at March 20 2005.

33 INDICARE, above n 1, 24.

34 F. Hill Slowinski, What consumers want in Digital Rights Management (DRM). Making content as widely available as possible in ways that satisfy consumer preferences. (2003) <> at March 25 2005.

35 Interview with Mark Pesce, (Sydney, 15th February 2005).

36 Adam Turner, ‘Do you copy?’ (2004) <> at September 16 2004

37 See, eg, Suw Charman, Listen to the Flip Side (2004) <,3605,1265840,00.html/> at 28 April 2005.

38 David Becker, An Ear for Downloads (2004) <> at April 20 2004.

39 Ian Condry, ‘Cultures of music piracy An ethnographic comparison of the US and Japan’ 7 (3) International journal of Cultural Studies 347.

40 Philip J. Weiser, ‘The Internet, Innovation, And Intellectual Property Policy’ (2003) 103 Columbia Law Review 534-614.

41 See for example the overview comments on the website of the EU’s High Level Group at <> at October 5 2005.

42 Petrick, above n 20, 28.

43 Oliver Bremer and Willms Buhse, ‘Standardization in DRM – Trends and Recommendations’ (2003) 2770 (November 2003) Lecture Notes in Computer Science 334 – 343

44 William W. Fisher, Promises to keep: technology, law, and the future of entertainment (2004).

45 Julian Lee, Click at your own risk. (2004) <> at 3 August 2004.

46 Wallis et al, above n 12, 8.

47 INDICARE, above n 2, 70

Local Knowledge: Place and New Media Practice

I grew up selling Local Knowledge, though I didn’t think much about it at the time. Local Knowledge was the brand name for the surfboards made by my stepfather’s surf shop on Australia’s Gold Coast.

Surfers – compared to most other white settlers who aren’t farmers – have detailed relationships with physical places and locations. “Local knowledge” refers to the insider information that surfers use to know under what conditions a particular surf break might be good, or how to surf a particular wave most effectively. While some local knowledge can be shared, a certain amount is tacit, experiential, and cannot be codified – remaining obstinately located around a particular environment and the people in it. Local Knowledge is reified in the doctrine of ‘localism’, that suggests special rights to the best waves for those who surf particular breaks regularly.

There is a class dimension at work in surfing’s localism: cosmopolitans who travel regularly see localism as small minded and against the spirit of surfing; while those who grow up around the best breaks (which tend not to be in major cities) rail against magazines, surf reports and webcams that increasingly provide information about particular surf locations, making them destinations for the “blow-ins” from somewhere else. It is true that even among the surfing community’s “locals” there are occasional, romantic nods to the “connection with the land” that Aboriginal peoples have. But in non-urban areas, settler culture commonly views indigenous culture as something existing in the past, that has “been lost”. To recognise indigenous culture as being contemporary and viable would call one’s own localness into question. So ironically, it is the urban cosmopolitans – unencumbered by non-negotiable attachments to a place – who are more open to the reality of ongoing indigenous relationships to and guardianship of land.


Abie and Wok Wright were born and raised in Newcastle, Australia, which is my home town. They also promote Local Knowledge – it’s the name of the hip-hop group they formed with Joel Wenitong in 2002. However, the “localness” of their knowledge is somewhat different. “Newcastle” was named after the English coal town by a British lieutenant who discovered coal while searching for escaped convicts in the early 19th Century. The Wright brothers, however, describe themselves in interviews as being from Awabakal country, a broader group of nations/peoples centred for thousands of years around Awaba, a lake also known as Lake Macquarie. While the rise of hip-hop is often characterised as a function of U.S. consumerism and inauthenticity, for Local Knowledge hip hop values articulate their anti-colonial cultural politics: keeping it real, name-checking your roots, and representing for your community all come naturally in both hip-hop and indigenous struggles for self-determination.

My experience of these competing versions of Local Knowledge leads me to reflect on the incommensurability of indigenous and settler versions of knowledge of the land, and how these echo in the activities of indigenous new media practitioners. There are at least three axes where this incommensurability is visible. These axes may also be described as “aporia” in the deconstructive sense – they are contradictory impulses that are not necessarily resolvable because they are constituted by the disjuncture between colonial and colonised cultures[i].

The first is the role of cartography and the map: the turning of land into data through surveying, mapping and renaming is the most basic function of the colonial process. In many colonial projects, the surveyor was hated and feared more than the soldier. The removal of surveying pegs, the refusal to be mapped is an important thread of anti-colonial activity from Ireland to New Zealand. This places the role of new media and its data-centricity in question. As Solomon Benjamin’s fascinating studies of land tenure in Bangalore have shown[ii], the systematisation of land information routinely results in a centralisation of control and a loss of local self-determination. Land becomes appropriable at a distance. A common theme among settler encounters with indigenous culture is to discover that the land is more full of story than we knew. The formation of objective, storyless data via, for example, GPS – even for the purposes of developing narrative media practices through ‘locative’ works – is difficult to reconcile with the non-transferable yet profoundly social relationship with land that is characteristic of indigenous epistemology.

The second is that of time. To claim affiliation to a space of land via a property right, or to activate the concept of sovereignty itself is an act of history-making. But as David Ellerman notes, this historical dimension is usually suppressed in Western economic and political theory:

Economics has focused on the transfers in the market and almost completely neglected the question of the initiation and termination of property in normal production and consumption.[iii]

Part of the silence around the initiation of property is that the actual, often grisly stories of property initiation raise questions about the legitimacy of that property. The reality of indigenous relationships to land, if connected to the history of property in specific locations, always raises an uncomfortable anteriority for a culture that views property as transferable, as James Clifford notes:

[The] historical, tangled sense of changing places doesn’t capture the identity of ancestors with a mountain, for as long as anyone remembers and plausibly far beyond that. Old myths and genealogies change, connect, and reach out, but always in relation to this enduring spatial nexus. […] Thus indigenous identities must always transcend colonial interruptions… claiming: we were here before all that, we are still here, we will make a future here.[iv]

Homi Bhabha has discussed the colonial moment as generating a “time-lag” which destabilises the ground from which a singular history or theory of place is possible. The perspective of the colonised puts both our contemporary theorisation of property and our understanding of property in times past. As Gregor McLennan puts it, “we cannot easily ‘readily reperiodise and re-name the object of enquiry” to fit our revised inclinations in the new media environment[v]. The “new” remains unhelpfully bound to different, competing histories of the past.

The third axis relates to the concept and function of knowledge itself. Historical knowledge is constantly reinterpreted and relocated to become useful for the work of the present. In settler culture knowledge is instrumental – it is useful because it can do things, here and now. In indigenous epistemologies knowledge is commonly viewed as what Maori call a taonga tuku iho, a gift from the ancestors to the present. The ultimate social good is not the transfer of knowledge as it is under modernist theories of information diffusion, nor is the maximum extraction of capital value as under capitalism. More important is who the knowledge is transferred to and whether their use of that knowledge will help maintain the entire knowledge system.

Poet and librarian Robert Sullivan notes, when considering the digitisation of cultural material, important questions for indigenous maintainers of knowledge are:

“How do we send a message that strengthens the holistic context of each cultural item and collection? How do we ensure that both indigenous and non-indigenous peoples receive the message? How do we digitize material taking into account its metaphysical as well as its digital life?”[vi]

Bridging these three contrary impulses would require “new media” where the technologically-augmented experience of location is inseparable from a philosophy of land and belonging. These are distinctive and important questions for new media practice. I don’t seek to romanticise the distinctions between indigenous and non-indigenous approaches to land and knowledge, or to suggest that indigneous knowledge systems can or should be adopted by non-indigenous cultures. For indigenous peoples, the recovery and maintenance of their cultural systems is quite simply a lot of extra work they do as part of their survival. But it is empirically the case that the cultural meaning of place and location is more sophisticated in indigenous culture than non-indigenous culture – indigenous practitioners are far more likely to be able to deploy a range of strategies for “reading the country” that emerge from a variety of world-views; and to be able to critically reflect on the effects of these understandings[vii]. Such systems make us aware that our vision for information technologies is limited by epistemological biases that we have developed experientially within colonial capitalism.

To understand some of these limitations it is instructive to look at the way new media theory is invested in settler culture and its relationships with land. In these relationships I mean more that the homologies Virginia Eubanks identified between the “mythographies” of new media development and the frontier values of “Conquest, Flexibility, Democracy, and Individuality” in the white settlers of the Western United States, though those are important[viii]. Instead I suggest that our very ways of thinking new media are inevitably invested in colonial epistemology.

For example, Lev Manovich, in his classic book The Language of New Media, identifies four distinctive properties for digital media products:

  1. Discrete representation on different scales. Manovich imagines a fractal structure, where individual objects can be recombined at will into different contexts while retaining their individuality.
  2. Numeric representation. Media can be described formally (mathematically or numerically), and subject to algorithmic manipulations.
  3. Automation. Many media manipulations can occur automatically and human intentionality can be removed from the creative process.
  4. Variability. New media objects (such as Web sites) are not something fixed once and for all but can exist in different (potentially infinite) versions. [ix]

Of course, these properties are clearly associated with the values of European modernism, but it is also interesting to consider the first two in relation to the development of “freehold title” – where divisibility and aggregation are important components of property under the industrial system. However, these first three characteristics – valorised in Manovich’s conception – are unhelpful under value systems where no person or media object is imaginable outside of specific social relationships, as these characteristics suppress the particularity of the subjective social context that produces them. As David Turnbull puts it, in a culture that prefers the abstract over the concrete (because the abstract is without annoying limitations to circulation), knowledge has to be presented as unbiased and undistorted, “without a place or knower.”[x] In a discussion of high-energy physics, Sharon Traweek describes this as “an extreme culture of objectivity; a culture of no culture, which longs passionately for a world without loose ends, without temperament, gender, nationalism, or other sources of disorder – for a world outside human space and time.”[xi]

By contrast, the new media artists and commentators who are producing the work I find most fascinating (such as those covered in the essays by Rachel O’Reilly and Candice Hopkins in this issue) create new media projects that are organised around experience-centred rather than system-centred claims to aesthetic value – they are not telling the story of an abstract “global” but are reflexively embedded in their own location and understanding. Works created by indigenous artists assert a different frame of reference for the role of the digital within their practice, highlighting the “alternative modernities” that have simultaneously existed outside European thinking, while forging political sensibilities in relation to colonisation and racial prejudice.

Cheryl L’Hirondelle notes that “the current lack of attention being paid by programmers to Indigenous communities around the world represents a missed opportunity, because our languages are eloquent, concept and process-based, and fully capable of describing various complicated technological dynamics.”[xii] The aim of the PRNMS Working Group on Place, Ground, and Practice is to bring these world-views – often relegated to the “cultural” as opposed to fully “contemporary” – into the mainstream of new media practice. For myself these “cultural futures”, as Eric Michaels terms themxiii, open new directions for critical practice among both indigenous and non-indigenous new media practitioners alike. These directions are not founded on the basis of shared values (though these are always being sought), but on what is different and distinctive. They are about encountering stories on our travels that emerge from and remain tied to specific locations, stories that – though they travel far and wide – have a home.


i I use the term ‘aporia’, from the Greek translatable as “impasse”, in the sense specifically associated with philosophical deconstruction, where an indeterminacy or gap is perceivable in the fault lines in a concept. For a definitive treatment of the aporetic effects of colonisation in philosophy, literature, and history see Spivak, G. C., A Critique of Postcolonial Reason: Toward a History of the Vanishing Present. Harvard University Press, Cambridge, Mass.

ii See S. Benjamin: “Governance, economic settings and poverty in Bangalore”, Environment and Urbanization No.12: 35-56 (2000), and especially his recent work presented at the Incommunicado conference, Amsterdam, June 2005 and Contested Commons, Trespassing Publics, Delhi, January 2005.

iii D. Ellerman, “Introduction to Property Theory”, Social Science Research Network <> (2004). Accessed 20th November 2004.

iv J. Clifford, “Indigenous Articulations” The Contemporary Pacific Vol. 13, No. 2, 468-492 (2001) p.482

v G. McLennan, “Sociology, Eurocentrism and Postcolonial Theory” European Journal of Social Theory, Vol. 6, No.1, (2003) 69-86 p.74.

vi R. Sullivan, “Indigenous Cultural and Intellectual Property Rights – A Digital Library Context” D-Lib Magazine Vol. 8, No.5, (May 2002) <> Accessed April 15 2005.

vii For an excellent example of this encounter between different knowledge systems, see Benterrak, K., Muecke, S. & Roe, P. 1984, Reading the Country: An Introduction to Nomadology, Fremantle Arts Centre Press, Fremantle, W.A.

viii V. Eubanks, ‘The Mythography of the “New” Frontier’, <> Accessed May 2, 2002.

ix L. Manovich, The Language of New Media, (Cambrdige, Mass., MIT Press, 2001)

x D. Turnbull, Masons, tricksters and cartographers : comparative studies in the sociology of scientific and indigenous knowledge (Harwood Academic, Australia, 2000)

xi S. Traweek, Beamtimes and Lifetimes: The World of High Energy Physics. (Cambridge, Harvard University Press, 1988) p.162

xii C, L’Hirondelle “Sub-rosa”, in Horizon Zero Issue 17 [“Tell – Aboriginal Story in Digital Media”] <> (2004) Accessed 20th September 2005.

xiii Michaels, E. Bad Aboriginal Art: Tradition, Media and Technological Horizons, (Minnesota, University of Minnesota Press 1994).

Danny Butt is chair of the Working Group on Place, Ground, and Practice for the Pacific Rim New Media Summit, ISEA2006, and coordinator of the Cultural Futures organisational group. A version of this piece will appear in a special issue of the journal Leonardo focussed on the summit.

Cultural Futures recap

Cultural Futures: Place ground and practice in Asia-Pacific New Media Arts. Hoani Waititi, Auckland, December 1-5 2005.

This piece (1000-word limit, so a little sketchy) appears in Visit magazine, published by the Govett Brewster Art Gallery, New Plymouth, NZ. For more information on Cultural futures, visit the symposium website.

“Sarai” in a number of Indian languages means “a place for travellers to rest”, or “meeting place”. It was fitting that The Sarai New Media Lab in Delhi and the co-initiators, Raqs Media Collective, were the first artists approached to participate in Cultural Futures, a marae-based event designed to foster international dialogue on the role of place and location in the new media arts environment. The Sarai Lab is also one of the few places I’ve been where the spirit of inquiry is underpinned both philosophically and practically by a spirit of manaakitanga or hospitality I have experienced here. Recognising this would have been impossible without the opportunities for connection and collaboration that new media provides. Even though technology is often associated with globalisation and homogeneity – this encounter seemed to only show more clearly how unusual our various homes were, even when we collaborated in “neutral” spaces like art galleries and the Internet. A simple way to test whether this recognition meant anything would be to bring Sarai to the marae.

The critical literature of postmodernity has emphasised the importance of context over the autonomy of singular works or authors/artists: the way material is presented to us, the environment we are in and the cultural norms at work makes a significant difference to both our experience and behaviour. But this knowledge hasn’t always allowed us to renovate the way we organise our day-to-day work in the cultural sector: our meetings, presentations, and conferences are in marked contrast to the affective richness of the material we’re organising. Too often, the physical environment and formats for interaction are defaults – we sit in lecture theatres and meeting rooms because that’s the way we’ve always done it, the way everyone does it.

In contrast to these “default zones” the marae – accompanied by the relevant tikanga – is a sophisticated physical, intellectual, and spiritual infrastructure for conversation. This holistic environment that self-consciously supports large group interaction in ways that professional facilitators like myself could only dream of creating in another context. Conversations are more intimate and less defensive when you’ve just spent the night sleeping in the same room; when you’ve been formally introduced; when you are in the embrace of an ancestor; when you know who is responsible for maintaining the environment you’re in.

An informal series of talks by Charles Koroneho, Albert Refiti and Kiritapu Allan on the first night of Cultural Futures highlighted the importance of the wharenui as a structure that integrates cosmological, sociological, economic, and technological narratives of its particular location. The wharenui is a house of knowledge: an information environment. After the lights were dimmed in the evening, about a dozen faces remained visible in the luminous glow from their laptops. The wireless signals transferring data from Hoani Waititi across the world became part of the informational breath of the house: in, out. People emailing photos home to the Philippines or Australia, to more mundane informational tasks like moderating email discussions in Delhi or sending a budget back to California. A traceroute on the packets of information as they flowed in and out would be a whakapapa of the manuhiri, grounding the connections between the visitors and their homelands. Far from being placeless, the conscious experience of being in a specific environment becomes a part of the experience of communications technologies – as it always has for diaspora who send resources and experiences back to distant homelands.

The presentations and discussions of the artists at Cultural Futures showed that they are, like all of us in the Asia Pacific, negotiating the complex flows of culture in the wake of colonisation and migration. In New Zealand we’ve become used to thinking about cultural politics in the national discourses of biculturalism or multiculturalism – but through international conversation and artistic practices we find out that being a “New Zealander” an “Australian” or an “Indian” matters little, except for where our passports can take us. Instead, in Aotearoa we can trace the routes of a Pacific culture that allows the Philippines to seem closer than Australia. Or triangulating experiences in Canada and India makes clear that the British Empire has left us all a shared experience of colonisation that cannot be lost or compartmentalised into our national identity.

No connection is one way street – the post-symposium workshops began planning a number of residencies and activities to foster further regional cooperation. New Zealand, with its diverse collection of Pacific, Asian and European cultures, is a good place to think about Asia Pacific networks. Sometimes, it felt that it was the foreign visitors who recognised this most clearly- as indicated by the high proportion of overseas visitors among the participants. To take advantage of our location requires a shift in our imagination from the more well-worn (and well-funded) Europe-U.S. relations. We can be a small, inconveniently-located settler society from an Empire in decline, fearful for the future, echoing Don Brash in a wish for the OECD-leading economic dominance of the 1950s. Or we can see ourselves as both central to a developing international interest in indigenous and postcolonial issues, and proximate to Asian economies that are exponentially increasing in power. It is a choice between who we have been and who we can become, or as Teresia Teaiwa frames it – between a static “Pacific identity” and a transformative “Pacific identification”. The global movement of people and cultural practices can never result in homogeneity: we can meet and learn from each other best when we know where we’re from but are unafraid to become something else. Looking around the whare after finishing her presentation, Lisa Reihana quipped that “the cultural future is good looking people from overseas” – a nice reminder of the romance that has always been present in the cross-cultural encounter.

Interview with DB from Contested Commons/Trespassing Publics Conference, Sarai-CSDS, Delhi

Danny Butt, Independent Consultant In Conversation with Anand Taneja, Sarai-CSDS , January 2005. See the conference website for a downloadable copy of the excellent book that this appears in.

AT: You grew up in Australia and moved to New Zealand; your work focuses a lot on Indigenous conceptions and what these can say to Western academia and Western modes of thinking about identity and about property, among other things. Could you map that trajectory for us, in more detail?

DB: I’m from Newcastle, on the east coast of Australia. I spent my first nine years there. Meaghan Morris, the renowned Australian cultural studies scholar, is also from that region, and so is the Marxist theorist McKenzie Wark, who is attending this conference – I would feel honoured to have a place in this tradition!

My teenage years were spent on Australia’s Gold Coast, a kind of tourist resort modelled on Miami Beach. It’s interesting, I think, to grow up in a place where there is no sense of authenticity available to you in your immediate environment. So when I moved from Australia to New Zealand, one of the things I was thinking about a lot was how to make sense of the difference between those two spaces.

On the one hand they’re very similar, because I can move to New Zealand without any trouble, I can operate culturally there, even though there are these nationalistic discourses that proclaim difference through sporting teams, cultural jokes, etc. But what is extremely different is New Zealand being settled by Maori/Polynesian peoples, and Australia having Indigenous people with a very different social structure and relationship to the land for many tens of thousands of years.

This seemed a significant difference to me, and it led me to wonder why no one told me about those differences when I was growing up; why as a white settler, I was not expected to engage with Indigenous people. I had no idea at all who they were as people rather than as figures of history, not that I was even given much of that. There was a single class at school on those issues, and it was for Aboriginal students.

I learned some of it through Australian cultural studies, but I was discovering it on my own, I had dropped out of the academy to play punk rock music in Sydney, and it was the music community that eventually took me to New Zealand. So there were a lot of factors, but it was the move and the constant shuttling between Australia and New Zealand that led me to think about the relationship between these two white settler colonies – which brought up for me the question of what happened, historically, in each of these places.

What I’ve discovered through my engagement and work with Indigenous peoples, their political struggles, and their ways of life is a real sense of place and location, and I think these have a lot to offer Western thought, essentially…The struggle of Indigenous people for their rights has focused around issues like the natural environment, cultural rights; their issues address the blind spots in Western political theory that are nevertheless popular areas of political and social tension. One of the things I noticed when I started working in the academy was how few Australian and New Zealand scholars took this work seriously, how few familiarised themselves with Indigenous people, their cultures and aspirations, as something to be learnt from, rather than something to be studied and that knowledge trafficked back out to European academia, which has been the dominant anthropological mode. That encounter has led me to much deeper questions – about cultural practice, about the limits of language, about how we learn from each other, our engagements with each other – that are very central to the whole information society and economy debates, for example, and debates on cultural industries, cultural economies…My work in relation to Indigenous issues has been very useful for framing those questions in my own thinking. In general, most such discussions have been framed within what seems to me to be a useful but very limited set of political discourses within Western political theory. The struggle of Indigenous peoples is one of the most important struggles emerging…it talks about cultural processes and rights outside of the sphere of nation states. That’s very important. I grew up in an ideology of cultural nationalism; and the more I learn about the world, the idea of the nation-state defining the boundaries of cultural and social practices seems to me to be a pernicious force in so many ways that I can’t believe no one ever told me.

AT: At this conference, you gave a critique of “disembodied knowledge”, and of the Western conception of property that is largely about the transfer of property. Is there a tension here, of these ideas in relation to ideas about the global free flow of information that’s also being discussed at the conference?

DB: The global free flow of information versus embodied knowledge…? Yes, that’s a tension, and I think Rosemary Coombe’s work addresses that tension quite well. She makes the point that the assertion of Indigeneity into global forums, or the assertion of intellectual property rights over Indigenous knowledge, are absolutely defensive mechanisms. They’re not necessarily things that Indigenous groups feel they need to do, they don’t want to sit around in international forums advocating for their rights, but they’ve been subjected to those global flows and are seeking to divert them.

It’s also a tension for people who have very strong connections to particular locations, to do this defensive work in the global information sphere, seeking to protect the rights of others in analogous situations. It’s a productive tension, also an unavoidable one that we need to think through.

If we are going to be critical of the flows of global institutionalised capital and what it’s doing to the world, we need to have a very clear understanding of our own investment in that process, and how we are located in relation to that process, and how that location constrains our ability to think “the global”. Otherwise our critique maps itself onto the same territory as global information capital; it has no base, it gets caught into a logic of assimilation. You see this sometimes at conferences on intellectual property – it moves into a game of words, where people promote their competing visions of the “global”, each claiming to be more able to accommodate a wider variety of situations, attempting to find synthesis across disparate areas. And there are limitations to that.

If we look at the movements that actually inspire people towards political action, they’re embodied; they’re about things that we feel in ourselves. There’s no such thing as knowledge that isn’t embodied. The information economies discussion, for example, or the globalisation discussion as it’s articulated through Western political theory, is embodied in a particular way, unselfconsciously, that prevents access of people into that discussion.

We were talking at the conference about the free software movement and the threat it poses to information exploitation. However, the empirical studies of the free software movement show that 98% of the respondents to the studies are male! To me, that’s not a marginal statistic. It is something that makes a point about the ability of the free software movement’s claims to liberate the entire world – we’re missing half of the world, there. But we can have a language that says, “Well, in time we’ll eventually be able to include the missing; we’ll work on our deficiencies, and improve them.” If we don’t do this, if we assume that this lack of representation is some accident of history, we can’t renovate it into the global movement it could be.

It’s the same issue with global modernity and development capitalism, which says, “Well, eventually the developing world will gain part of this bounty.” In fact, if we look at it, global capital is constituted on this divisioning, this subalternisation of the rural developing world. And I’d say the same thing about some of the rhetorics of global capitalism and the information economy. They are constituted in what they exclude from that discussion. That’s the lesson one learns from feminist theory, where an analysis of these kinds of exclusions has been repeated for a long time.

AT: Some of your research that I’ve read seems to have an angry punk rock energy…What are the Maori saying to the punk rocker, in your work?

DB: Usually, “Chill out and relax…!”

AT: You’ve been in the music publishing industry, which also deals with embodying property, in a sense. Now you’re looking at both embodiment and property from a different angle. What are the Maori telling the punk rocker, in this regard…?

DB: The encounter with Indigenous knowledge provides me with a number of things that are important to me. One is a way of imagining another world in a very embodied and concrete manner…as much as I always attempt to deconstruct a romantic figuring of the Indigenous as primitive or non-modern, I don’t want to disavow the romantic aspect of it in my own desire to learn more about other knowledge systems. Peter Linebaugh’s presentation at the conference brought that out: the romance of a particular historical narrative. It’s about the engagement with the ‘other’ that has driven a lot of my own work and that of many people in various fields.

But very concretely, Maori epistemology brings in a textual relationship that allows me to feel grounded and in place where I am – perversely, this happens by undermining any latent feelings of “rights” over the land where I live. In the two countries where I have lived, Indigenous empistemologies provide examples of social relationships that rely on situated knowledge. The fantasy of white liberal egalitarianism that I was brought up on completely lacked that sense of location, of subjectivity…the history I was given was literally science fiction.

And the Indigenous political struggle is a very important one. It is anti-colonial, an interdisciplinary political activity that is not limited to spheres of economics, or racism, or issues of environment – it brings all of these things in together. That seems to me to be very important for the Euro-US left, consumed with single-issues, to come to terms with.

The other thing is that my engagement with the Indigenous people where I am gives me a very strong sense of history, and of the importance of time and the value of time. James Clifford tells a story of an Indigenous woman from Alaska, who said that what was happening since the Russians came was just a storm that would eventually pass. She wasn’t even worried about the US occupation! This is a long-term perspective of cultural survival that is very humbling for someone like me, who grew up believing not only that you can change the world if you try hard enough, but that would be a good thing. Far from true.

So I don’t know if I would consider myself a punk rocker these days! That moment and that politicisation were very important. Of the people that I know who are working in the Western epistemological tradition, a lot of the ones that I really like have this sense of being involved in something – whether it’s civil rights, or punk rock, or hip hop, or some politically charged social movement. That’s the work I’m interested in.

The question I turn over a lot is, “What do I bring that is useful, into an Indigenous environment?” It’s a vexed question. For the Maori, most of their engagement with white culture has had very negative effects. Why would my input be any different? It’s a very different space to negotiate, and one in which I am not always sure I’m doing the right thing. But I go into those spaces and try to be honest about what I’m doing, and try and make sure my work is being evaluated by people with expertise. James Ritchie, who has done a lot of work supporting Maori aspirations in New Zealand, had two rules: one, don’t do anything unless asked; and two, always have a guide.

They’re good rules and surprisingly easy to forget.

Indigenous groups are very significantly affected by global flows of capital, but those flows of capital are the source of my culture. I’ve worked in the largest advertising agency in New Zealand, for instance. I’ve been given all of the tools to understand how these flows of capital work, how these inequalities are generated. Luckily I’ve also been given a sensibility, somehow, and I’m trying to use that understanding in response to the aspirations of people who are most excluded from these global flows. The sensibility is about shared languages, building trust and shared senses of what is important.

AT: Could you clarify the comment you made about Malcolm X during one of the conference sessions?

DB: If you take Peter Linebaugh’s story of the commons in English history: I’ve heard that story many times, including good, critical versions. But the concepts themselves seem to be articulated and put forward as solutions. It’s not clear to me at all how advocating for a return to the commons is a solution in the contemporary environment.

However, if you look at these stories through the lens of Malcolm X, for example, think about what he would find interesting in the stories, then suddenly they become vibrant again. That’s what I think Linebaugh’s doing.

And I think Indigenous epistemology is something like that. If we look at issues of globalisation through various Indigenous epistemologies, or through the perspective of the developing world, or through the perspective of Public Enemy or hip hop – these are frames that we can use to open up new questions of cultural material.

AT: What are you taking back from this conference?

DB: I’ll take back a great deal of pleasure about returning to Sarai, for one thing. I always feel, from the first time I came here, and also keeping track via the various publications and the Reader- list, that this a space where numerous diverse practices are being brought together in very interesting ways, with a real openness and generosity. So the discussions here are always very stimulating. I always go back thinking new things I hadn’t thought about before. Seeing the range of practices people are involved in here, and how Sarai considers what’s important about their work: I think that’s the key thing.

I learn most from people who frame what’s important in a certain way that affects my own thinking about it. When I come into meetings like this conference, my set of priorities feels like it’s being transformed, in ways I can’t describe. It’s a crucial process, one that is often unfairly contrasted to more ‘pragmatic’ concerns. The day my priorities stop being transformed through these relationships with others, is when I’ll fall over…

And I see this as the big question for me: how do we put in place structures that allow us to continually have our ways of thinking and our ways of life and our priorities transformed through relationships with others?

Hopefully, that’s what the networks that are starting to emerge will achieve.

Biculturalism as Multiculturalism

Biculturalism as Multiculturalism (in monocultural New Zealand)
Talk given at “Biculturalism or Multiculturalism?” conference, hosted by the School of Culture, Literature and Society at the University of Canterbury,
1-3 September 2005

[This is a rough paper, not designed to be published, so excuse poor grammar and lack of references]

Tena koutou katoa.

Nau te raurau
Naku te raurau
Ka ki te kete

If only biculturalism was that simple.

It’s mixed feelings flying back into Christchurch. Like a kea, I feel a bit cheeky and insolent and likely to peck off someone’s roofracks. As with Tze Ming Mok, my formative experience here is having four white supremacists in the central square grabbing me by the ATM machine and yelling “WE HATE GOOKS! Do you hate GOOKS!!??!!” before throwing me to the ground. While I escaped physically unharmed, it’s been difficult to muster much enthusiasm for the city since then, and I’ve never lived here. But I greatly appreciate the opportunity to speak here. I looked through my schedule recently and realised that all of my presentations on cultural politics have happened overseas, but so much of their source is here. My respects and thanks to Ngai Tahu, the whanaunga of my dear friends up in Tairawhiti. Although 13 years ago I moved from Australia to New Zealand, it is the other place we sometimes stand, Aotearoa, that taught me what it is to stand and to speak, in the particular place where I am, in the presence of the ancestors. So on the one hand, being in Aotearoa also makes me less inclined to write papers. But then on the other, I don’t trust myself at all, and feel that it’s important to be precise, and writing perhaps makes this more possible. Anyway, my oratory is not particularly good, but it’s something I’m working on. It was a real treat to hear Ghassan Hage talk again yesterday. In my dreams, I present like Ghassan, with phrases just floating in the air like butterflies. Instead, I always talk like I pack my luggage, trying to squeeze too much in, a bit flustered having to repack to get through security.

I believe that the Avon is properly called Ötäkaro – “place of a game”. That seems appropriate if we think of “game” in the hip-hop sense, as a field of contest where language, power, and reputations are made and lost. Leaving the academic sector for me was the feeling that “the game need a makeover”, as Chicago rapper Common puts it. But as Teresia Teaiwa has pointed out, the real makeover of the academic game can only happen kanohi ki te kanohi, in gatherings such as this, however full of aporias and miscommunications.

When I first saw the title of the conference “Biculturalism or Multiculturalism?”, I was a bit annoyed and confused. Obviously, as we all know, these discourses are rhetorical figures employed by the monoculture to inoculate itself against transformation by the priorities of another culture – to recognise, tame, and domesticate difference. That was a given, but it wasn’t all of it. At first I thought that part of the problem was with the “or”. I don’t like the word “or”. It seemed to me the question was a bit like: “Should I take my children to the park or spend more time with my family?” And of course, my main experiences of having biculturalism contrasted to multiculturalism have been about white people saying they prefer the latter to the former.

As a sometime copyeditor, a good rule of thumb to make sentences clearer is to put the subject in the sentence. I realised that the problem with these terms is that there is an implicit subject being addressed. Who or what exactly is the person with the issue that needs to be addressed in this discourse? Well, we know very clearly what the problem in Aotearoa is that biculturalism and multiculturalism address. The problem is… white people. White people and our cultural supremacism. So we could reframe the question as “Decolonisation or Anti-racism?” That makes a lot more sense, and sounds more like a conference my crew would want to attend.

Not that white people are the entire problem. But the same way that feminism realised that the problem is men, and that there is an undeniable truth in that, anti-colonial activists realise that when you take the white guys out of the room, a lot of the problems go away.

[At home, whenever I leave the house I can hear the sighs of relief from halfway up the street. They’re like, ‘whew, hopefully he’ll be gone until the next time we need a funding application edited.’]

So we’ve identified that white monoculture is a problem. The question is how do we get white people to realise that we’re a problem? Indigenous people aren’t so good on this issue, so the job falls to us. Even though indigenous peoples know 99% of what you need to know about colonisation, that particular part of it’s not their strong suit. Because indigenous people have never had to work out how to be a problem. They know they’re a problem. Every day some white person tells them they’re a problem. My political upbringing was within the white Australian left, and though we grew up with an official policy of multiculturalism, whenever specific demands are made to relinquish control in response to indigenous issues, we always seemed to respond with the problems such a change raised. Employing indigenous staff? “Hmm, that could be a problem”.

European culture claims to be interested in rationality and progress, so I think there’s an idea floating around that it will learn from its mistakes if they’re politely pointed out. But even if we could, cultural power is one of those things that can be put on the table and divided up without giving anything away. It’s like Jesus with the loaves. We can put it out on the table, look like we’ve handed over some, then we go off to the next town with a full basket of bread. It’s incredible. So for me the deconstruction of cultural power is a psychic, emotional and affective question more than a rational one.

So we situate Pakeha as the source of all these culturalisms. And we Pakeha all prefer multiculturalism to biculturalism. Now that instantly makes me suspicious. But when you think about it, who wouldn’t prefer multi- to bi-? More is obviously better. I don’t know if you’ve seen that advert for disposable razors where the white guy says “Wow, not two, or three but FOUR blades”, and shakes his head in disbelief at the miracle of modern progress. That’s sort of like multiculturalism. It’s like, not just two restaurants, but a whole lot of different restaurants, with all sorts of interesting food. Wow, I bet back in those bicultural days, if they saw this they’d wish they got on the multicultural tip early. As documentary maker Suchi Kothari noted, New Zealanders’ quest for the perfect coffee suppresses the racist injustices suffered by those who brought such foods to New Zealand.

Multiculturalism is not that specific in its demands on Pakeha. If any particular culture makes us feel uncomfortable, we can always choose another one next time, and still claim to be multicultural. Mutliculturalism is a discourse of pluralism. And more importantly, it is a fantasy whereby all ethnic others can be subdued under the rule of institutional law, and incorporated into the self. But when it comes to practically applying multiculturalism, we run into problems. Most of all, we run into problems of language and epistemology. There is limit to number of languages we can learn, how “multicultural” we can be, unless we decide to reify cultural otherness into identity, and decide that there are general ethics of interaction that we can develop around culture. Very dangerous. So even though “multiculturalism” sounds pragmatic, it has a tough time cutting through the stuck-ness of Pakeha psychology. Multiculturalism affirms the potential diversity of the self, presuming the possibility of translation, and the understanding of others within Pakeha consciousness. And scholarship in the wake of colonialism has rigorously critiqued this. As Dipesh Chakrabarty points out,

“there was a time – before scholarship itself became globalized- when the process of translating diverse forms, practices, and understandings of life into universalist political-theoretical categories of deeply European origin seemed to most social scientists an unproblematic proposition. [but]…what translation produces out of seeming ‘incommensurabilities’ is neither an absence of relationship between dominant and dominating forms of knowledge nor equivalents that successfully mediate between the differences, but precisely the partly opaque relationship we call ‘difference’. To write narratives and analyses that produce this difference – and not transparency – in the relation between non-Western histories and European thought and its analytical categories is what I seek to both propose and illustrate.”

Why would I join with Chakrabarty in writing to produce difference? Isn’t the great need for us all to come together? Particularly when, as many here have already noted, governmental biculturalism outlines the distinction between Maori and Pakeha only in order to disavow it in instrumentalising both under capitalism? So the standard Pakeha response to assertions of alterity, as we’ve already heard in the conference, is to remind us of the complexities, how it’s not as simple as coloniser and colonised, of the imbrication of culture talk in colonial history of the nation, and other such anti-essentialist argument. This is all technically true, but it suppresses a meta-truth, which is that there is a vast gulf between Maori and Pakeha ways of talking about the supposed biculturalism or space of interculturalism. I put this aporia forward as a divide not only to be “recognised” in the space of theory or policy – though it should be – but, firstly and most importantly, as a crisis in our subjectivity that must be staged within our own practices, whether our practices are theory, policy, or institution building. In other words, we need a bicultural approach to biculturalism, where biculturalism can never be located in ourselves, but is always found outward in the practice of intercultural engagement.

To stage this crisis effectively requires knowledge of both biculturalisms. One would be the Pakeha Biculturalism that is mobilised in New Zealand via Canada (the comparison is instructive in its rhetorical similarity within radically different historical contexts) – the idea that institutions can somehow be renovated to include Maori culture. The second biculturalism has a role as cover for Maori interventions into state and institutional resource distribution in reparation, or to suppot Maori development. This is the part that makes Pakeha nervous. Because we know we’re going to be asked to do something by people that know us better than we know them.

[Men understand this. It’s like when you’re watching some TV and your partner says “Honey, we have to talk.” As Dave Chappelle puts it, a man’s response to “we need to talk” is “Damn!” Because “we need to talk” always means it’s something I’ve gotta do!]

We’ve talked a lot about the problems of ‘respect’ the past few days, but biculturalism does not ask for respect. It says: Maori are here, and this is who they are. The time for rhetorical accommodation is over. Here are the things that can be done: learn the reo, learn tikanga, employ Maori staff, cite their books. Develop an understanding of Maori consciousness. Tell a story of New Zealand’s cultural development where Nga Tamatoa can play at least as important a role as Michael King or Janet Frame. These are all possible to do. These are all equivalent to things Maori have also done to learn the ways of the Pakeha.

I want to express solidarity with Chris Prentice’s desire to offer theory as a way of disrupting the instrumental logic of cultural nationalism. There are too few people undertaking this work. But I depart from her in my reading of the history of New Zealand’s Pakeha-Maori interactions – in particular, the grouping of James Ritchie and his one-time student Michael King.

In his book “Becoming Bicultural”, James Ritchie says – “I have a theme which is also a thesis. It is this. The tide has turned. We face a future in which Maori people will assert their rightful place in this society, with or without non-Maori help. They are fashioning a thoroughly modern, totally viable Maori lifestyle in which the rest of us may participate, if we wish. Between their world and the majority culture we also must fashion the bicultural world of inter-connections and common pathways and understandings, but [and this is the critical piece that Prentice omitted] we will not be successful in this until the Maori world is respected, is resourced, is in good health and strength, and is in a true state of equity.”

While some of this language is now dated, and that overall recognition of a need for cultural equity in any real biculturalism is what led Ritchie to work toward supporting tino rangatiratanga and mana motuhake as core principles. In the end, it didn’t get him that many good book deals, and had its own set of problems, but it is certainly a different position than King’s interpretation of Maori culture back out to a predominantly Pakeha audience of “New Zealanders”. To group them both as conversion narratives misses a great deal of the difference in their approaches. Certainly, Ritchie never thought of himself as indigenous or native in the King sense. I am insistent on this point because I think that Ritchie, along with others such as Dame Joan Metge, offer Pakeha a New Zealand pre-history to the development of what Sandoval calls “differential consciousness”, or an ability to recognise the limits our lived identities create to our actions, and an ability to self-consciously transform that identity when required by the identification of cultural power by others.

The colonial relationship that has a great deal of currency and transformative power for both Maori and Pakeha – and the decolonisation of the imagination may also be the best way we can achieve something like a differential consciousness, an intercultural ethics we would want for a critical multicultural perspective. The sucess of this interaction is an empirical question. After Larissa Behrendt, as I’ve mentioned previously, if we are to work in this space of engagement, we should see our relationship with indigenous epistemology and people as the benchmark for the quality of our work?

The question of consciousness and responsibility to the other returns us, then, to the question of the subject, and as Ghassan Hage mentioned yesterday, the question of intimacy with the other – what Spivak calls the “impossible intimacy of the ethical.” This occurs under structures of violence and inequality that are not of our own choosing. If biculturalisms to some degree set the institutional scene for exchanges to take place, in my view the guides for our subjective orientations toward these intimate exchanges is to be found in feminist theory, and particularly the more psychoanalytically inflected versions such as Luce Irigaray. This is because feminist work has done a lot of refiguring of the “bi” in “bicultural”. As Spivak notes, “Irigaray has rewritten the fecundity of the caress as the figuring of the prepropriative into an appropriation” which is both possible and impossible. What is it to learn the agency of the caress? That is a serious question. It happens, once again, kanohi ki te kanohi, rather than in the text – although the text may shift our imagination in order to open our bodies toward the engagement.

Irigaray says “The loved one’s face radiates the secret that the lover touches. It says the hidden without exhausting it in meaning… A giving of form to matter that precedes any articulation in a language”

As Spivak closes:

“The generalization of a bicameral universal (the clitoris in the mucous of the lips that figures so strongly in Irigaray’s work), or even two universals, to provide the impossible differed/deferred grounding of the ethics of sexual difference in the fecund caress seems to respond to the call of the larger critique of humanism with which postcoloniality must negotiate, even as it negotiates daily with the political and cultural legacy of the European enlightenment.”

In the various calls for a return to universal values then, Irigaray’s work suggests a method for generating intimacy between two universals working both independently and unthinkable without the other. The figure also suggests that to development of this kind of intimacy relies on development of the Maori universals and the reduction of asymmetries of power. I suggest that in our current, colonial asymmetric context there are two specific ways this intimacy can be fostered: firstly, when the colonised asserts their equality, it must be accepted with the suspension of difference. Secondly, when we assert the systems and structures under which our action takes place, it must always be with a mind for the irreducible difference of the other. This is how we can build intimacy as a space for our own transformation. In other words, love.

Ghassan suggested that the effusive love for the other was only possible through distance. This is a type of masculine, romantic love which the colonial history knows well – loving the other who we are killing. At home, “smoothing the pillow of a dying race” as it was described here. But in feminist work, we are imagining a different kind of love – one that emerges and grows over time, that survives the bumps in the road on our lines toward utopias that are both individual and partly shared. Sandoval calls this the physics of love: the practice of differential consciousness, to allow Pakeha imaginations and priorities to be transformed by the Maori renaissance, is the practice of Love as a social movement.

Notes on Visiting Sarai, Delhi, Dec. 2003

“The high-tech is an epistemological constraint I want to escape. That’s the secret of hybridisation. The biggest hybridisation is of course the sexual encounter which you want to escape and at the same time are seduced by. Yes, epistemologic constraints seduce me because they are outside of me, while at the same time I want to escape them. This is how the game of hybridisation in my life goes on.” – Gayatri Chakravorty Spivak in interview with Geert Lovink

“Freedom… is an inherently diverse concept, which requires consideration of processes, as well as substantive opportunities.” – Amartya Sen, _Development as Freedom_

The concept of ‘manaaki’, often translated as hospitality or generosity, is central to Maori culture. Welcoming, hosting, and feeding visitors is fundamental to the mana or status of the marae (meeting house and environs) and its people. The most imposing whakairo (carvings) or spectacular tukutuku panelling count for little without the ‘ringa wera’ (‘hot hands’) of the aunties in the kitchen – or the men putting down the hangi – who magically provide for what are sometimes large and unpredictable numbers of visitors at special occasions.

For Pakeha/Europeans, there are often three stages to the experience of manaakitanga in the Maori context. The first is an overwhelming sense of amazement and gratitude. Secondly, it’s hard not to notice the contrast between that generosity and the severe *lack* of generosity evident in white representations of Maori culture. Thirdly, white culture reveals itself as somewhat bizarrely constructed of various exclusions and barriers in spite of its professed ‘openness’. [We might suggest that the West has led development of ‘technologies of freedom’ that exceed its cultural capacity to productively use them.]

There are two effects of manaaki that are equally significant. The first is the ‘ethic of care’ which is directly embodied in manaakitanga. It simply reiterates: people are worthwhile and their well-being should be paid attention to. I’m reminded of a recent presentation by Meaghan Morris, who noted that her main concern as chair of an academic department was the *physical* well-being of her staff, who were working themselves to death to meet institutional demands. This is not in her job description. It is a sad indictment of our institutional forms that these basic processes are so often neglected.

The second effect is more subtle, but important: manaaki diffracts the “neutral”, unmarked, authoritative positioning that is embedded in colonial language and culture. For there to be good hosts (tangata whenua – “people of the land”), there have to be good guests (manuhiri) – and one has no choice but to be clear on one’s role in any particular situation. These roles are however not attached to particular people immovably: under marae protocol, once the manuhiri are welcomed onto the marae and share a meal, they take on the role of tangata whenua and are expected to assume the responsibility of manaaki toward any other visitors who will arrive. Therefore, roles are always *relational*, and no-one speaks from an unsitutated position (there are also other aspects to Maori tikanga that contribute to this that remain outside the scope of this piece). The logic will be familiar to anyone associated with contemporary theories of cultural identity in the wake of Marxism.

The combined impact of feeling cared for and understanding one’s role contributes to a subjectivity where social structure and individual agency are not opposed in the same way as the ideology of European individualism. [This holistic sensibility is embodied in the formal Maori greeting “Tena koe” – which literally translates as “That’s you”. At that point of being greeted, one is recognised as a person – “one becomes who one already is” – one speaks from the position that we have no choice but to be who we are.]

I outline (and oversimplify) these processes for a reason, which is to account for the distinctive nature of conversations I have when attending hui/conferences etc. in a Maori context compared to European institutions. The wide-ranging conversations routinely integrate discussion about theoretical/ontological frameworks and real-life motivations, desires and possibilities – compared to the bounded, disciplinary dialogues that constitute much of Pakeha cultural life.

The Sarai New Media Initiative in Delhi ( is the first non-New Zealand environment I’ve encountered which facilitates dialogue in a similarly rewarding way. “Sarai” in a number of Indian languages means “a place for travellers to rest”, or “meeting place” – perhaps like a mobile marae. The twin themes of generosity and freedom of movement that the Sarai concept implies, articulated through a distinctly Indian elegance of thought, create a poetic theoretical language and a political approach which is best described as “beautiful”. Sarai’s activities apply this sensibility to the very real materialities of Delhi’s location on global circuits of capitalist exchange. They traffic, with exquisite reflexivity, between “home” and the international flows of money and information in which they are implicated. This situated perspective has the effect of “marking” other new media initiatives which (particularly in Europe and the US) attempt to make the “global” their home in some abstract way.

An example will help. The Cybermohalla project bears a passing resemblance to telecentre projects which have been a staple of ICTs-for-community-development. Computers are made available in a poor basti in Delhi, loaded with open-source tools, and young people far outside traditional educational structures participate in the labs discovering new forms of media production. But in a typical Sarai inversion, the goal is not to “train” or “educate”, but to open an opportunity for the creativity of the participants to emerge, and then travel on a broader circuit. The source of value is located in the participants rather than the facilitators, and Sarai document and disseminate the (often gripping) stories in book and web form. It is a kaupapa of exchange and circulation, rather than transmission. Against the Protestant logic of instrumentalism, where outcomes are foreclosed before exchange begins (“we” must help “them”), we are asked: “Before coming here, had you thought of a place like this?”. Agency is continually decentered, questioned. Those who seek to change must prepare to be changed themselves (Spivak), to allow the narratives of the Other to overlay and transform the narrative of the Self.

This logic – a “narrative upon narrative” that Sarai call “rescension” – operates across all their projects: art, media theory, software development. They are fluent in the language of Empire having been subjected to it all their lives. But they also draw upon languages and resources Europeans do not and cannot know. You get the feeling that their popularity in the North trades on this exoticism a little, but then novelty is the frontier currency of new media theory, and reputation capital is fleeting, so everyone makes the most of it. In any case, it makes far more sense than being a new market for European theory, which is more common. It’s all part of the mode of circulation. Like many historical trading ports, Sarai is a place of exchange, diversity, and openness.

All I really want to say about Sarai is this: Sarai is the significant centre for new media’s future. It’s a node that can potentially connect Europe’s new media initiatives to the massive social movements in Europe’s Asia-Pacific colonies (an articulation which desperately needs to be made if European conceptions of media are to remain relevant).

I know I could take to Sarai the people from whom I learn – artists in the Tino Rangatiratanga (Maori Sovereignty) movement in Aotearoa, the activists behind the Indonesian Internet Xchange, the development communications publishers in Penang – confident that they will feel welcomed, cared for, loved. This is due to Sarai’s processes as much as the substantive content of their activities. Or more precisely, the values of the Sarai continually reverberate through the organisation itself.

[I visited Sarai as a guest of UNESCO for the colloquium “Old Pathways New Travellers: New Media Arts and Electronic Music in the Asia Pacific”. I am grateful to Chaz Doherty (Tuuhoe) for discussions on manaakitanga – however the misrepresentation of the concept I present here is my own responsibility.]