Cross-cultural partnership: Subversion
Cross-cultural partnership. Notes from Cambridge CRASSH conference, "Subversion, Conversion, Development," April 25, 2008
Law is a tool for structuring social interaction. Just as tools can be subverted, so can law and legal forms be used for purposes different from the initial interests motivating them. The cross-cultural partnership attempts to bring instruments of business organization to the field of cultural sharing.
[background and motivations: This project developed from a meeting of digital and indigenous artists, lawyers, educators, and anthropologists, in Lucerne, Maine, to discuss knowledge sharing. The participants came from different experiences, including artists producing artworks with corporations or in digital communities, Wabanaki artists sharing cultural knowledge in their artworks; anthropologists studying Papua New Guinea customs. Many stressed the importance of relationships around the sharing of knowledge. We were looking for legal tools to help facilitate equitable sharing.]
Our chief inspiration early in the project was the Gnu GPL, which takes typical instruments of closure, copyright and license agreements, to enforce the promise of openness, through its innovative "copyleft." Free Software counters the proprietary impulse in software design with the promise of greater freedom of shared, open user-based development. The GPL supports Free Software with a legal license whose copyright restrictions kick in only if one tries to close a development path, withdrawing from the pool. It enforces copyright, but against the usual grain. Often too, the license and practices around it create or reinforce communities of development.
GPL was our inspiration in form, but knowledge, not copyright or "intellectual property" was our subject. Propertization can devalue knowledge by taking it out of context. Copyright or patent are blunt instruments of exclusion, when what we're looking for is entanglement. IP sets knowledge apart, as alienable, when we're looking for embedded treatment.
When we talk about knowledge sharing, we hear a common interest in helping to define the terms on which that knowledge will be used. We may not find any particular common terms. Some interests may lead toward openness and others toward closure, some toward control and others toward unfettered dissemination. Yet most of these positions stem from basic interest in an equitable relationship to and through the shared knowledge.
A legal mechanism of relationship thus presented itself for subversion: the partnership form. As a business form, the partnership takes co-venturers and makes them equal partners in the control and benefit from their joint enterprise, and sets baseline fiduciary duties of partners to one another: duties of loyalty, care, good faith and fair dealing. Starting from the partnership form lets us inherit these duties as a framework for non-business relationships.
We created a partnership toolkit: a preamble, template, and annotated how-to. (Reviewed the template here.) The template is sparse, a set of headings (identification, common aims, prior work, specific duties, outcomes and benefits, management, breach, remedies, choice of law, term and termination, signatures), with an outline of the kinds of considerations that might fit within. Potential partners looking to establish the terms of a knowledge-sharing relationship are invited to work through the template together, discussing the elements that might fill each blank, in the process of working to understand and develop trust in one another.
The template can be used in several ways, including as foundation for a legal document; as framework for conversation; as negotiation tool or bargaining chip. It is as much process as product. If parties walk through the template then throw it away (having decided it is unnecessary or inappropriate), it has served greater purpose than if they sign a blank legal form. For the relationship, not the law, is the end-point here. The sparse template is designed to facilitate discussion and relation-building, recognition of differences, to elicit expression of interests, and to frame them with opportunities for joint gain.
Along with providing forms and structures, the law can contribute experience with the ways relationships can go bad. Each of the partnership defaults comes from that experience, trying to prevent surprise or to encourage parties to specify the terms of their relationship more closely. The typical legal document is an agglomeration of boilerplate provisions, each initially added for a purpose, but together tending to obscure the overall goal. This document strips the case-specific solutions (each tending to favor its own drafter) and leaves the problems as questions for joint consideration.