The project “Ecologies of Dissemination” was developed in ongoing conversation with a large group of thinkers and practitioners. From a shared interest in developing decolonial feminist practices of reuse, we connected across practices, fields, and vocabularies. The conversations happened through emails, video calls and in the margins of other activities. Some were structured in the form of podcasts or organised as public conversations. Many of them found their way into prompts, and you’ll find fragments of transcriptions included as support material.
In this part, we include two edited conversations that allow for more time and space to dive into the law-making practice of Séverine Dusollier, who talks about her work on critical feminist approaches to Intellectual Property and copyright. The second conversation introduces the decolonial practice of poet and translator Jennifer Hayashida who proposes to think of translation as a practice of reuse. She reminds us to treat the claims of a text—and language more generally—with a transhistorical awareness.
Conversation with Séverine Dusollier: Subverting the narrative of property
Eva Weinmayr (EW): Hello. Welcome to this conversation on sharing and practices of reuse. We are here because we wonder how to make the conditions for reuse explicit, without falling back on either conventional copyright and the individual genius, or the colonial gesture of a universalist concept of openness as currently proposed in Open Access or Open Culture. This is part of a collective research around ecologies of dissemination, exploring the tensions between decolonial practices, feminist methodologies and Open Access. My name is Eva Weinmayr…
Femke Snelting (FS): … and mine is Femke Snelting. We’re here with Séverine Dusollier because we have been wanting to speak to her for quite a while. Séverine works on critical approaches to copyright and IP. She has been thinking and writing on and with creative and cultural practices, free licences and commons in particular, and been in conversation with artists and designers, practitioners around Constant—and we include ourselves in that—an association for art and media in Brussels, for many years. Séverine is also a Professor of Law at Sciences Po in Paris and holds a senior chair at the Institut Universitaire de France. Her current research, and we will ask some questions about that, focuses on ecologies of copyright, aiming at considering creators and their practices as part of a cultural and inclusive environment within copyright, in other words, trying to pay attention to the relational aspects of creative practices.
EW: Severine, why did you start working on the idea of inclusivity and exclusivity as a critical approach to IP, and copyright?
Séverine Dusollier (SD): I’ve been working on copyright for over 25 years. I started out with a very classical point of view, that copyright is a right that is granted to creators to protect their works, that is based on property, etc. From the very beginning, I really worked on the limitations of copyright and copyright exceptions, the public domain. I was also involved from a very early stage with Constant on the critique against copyright that emerged at the beginning of the Internet and digital practices, when suddenly everything seemed to be open and possible and feasible. When the practice of copying and sharing was thriving, and its visibility increased, copyright law kept on stating that copying was prohibited. So, there was this tension between what the law said and what the practices were. Therefore, I started to think that exceptions or limitations of copyright carve out some space or tolerances from exclusive rights, and that these practices of sharing and creation based on reuse could also have some cultural meaning. I was not the only one thinking about these issues at the time, where copyright could also be thought of as a cultural environment, taking care of the condition of the creators, the artists, which is, of course, important too. So, my work on the limitations of copyright is not a challenge of copyright itself and of its need for artists and creators; it’s more about how it is built around the concept of property and exclusivity.
EW: Could you say a bit more about the concept of property and exclusivity?
SD: Exclusivity in property was in the beginning not something that I was really paying attention to! For me, being a very classical lawyer, it was part of what the law was about. It was a given, something that could not be criticised. Property is about exclusion. If I own something I can exclude others from “my” thing. As the owner of an apartment, of a house, I can decide who can live with me, and I can expel anyone who comes in without my authorisation. At the time, that was what property was about, and I always thought it was the essence of property. Then, as I became less stupid studying law, I realised that it was not the essence of property, it was just the narrative of property. And narratives are there to be subverted, to be retold, to be changed. It was a strong narrative, of course, and it almost became a mythology, but it was still a tale, so you could change it. And how did I come to inclusivity? It was just by chance. I was working on a big research project, and I wanted to talk about all my different fields in which I had developed research: on copyright exceptions, public domain in copyright, Open Access licences, and all those spaces where the purpose was to share or to make some uses that were not reserved to the author, but were collective. Then, I don’t know when but it was the middle of the night when I realised, oh, actually, it’s the opposite of exclusivity, it must be inclusive. If it’s not exclusive, it had to be inclusive. It just started like that and then I developed it into something that could matter, not just be a word play but could also have normative meaning.
FS: Could you explain to us how this works? What does the shift from exclusivity to inclusivity make possible?
SD: When I started to think about these questions, I challenged the notion that copyright was about property, and I realised it’s not a property. And then I came back to that. I had two different lines of work: first, is copyright about property? What is property about? And can we also reconcile the fact that copyright could be property, but another type of property? So, to come back to traditional property, when we say that property is exclusive, we mean that you can exclude someone, because you’re the owner. You are the one who can decide what to do with your thing and you can exclude anyone from its use. This is true for tangible property, but also for copyright and intellectual property. At the same time exclusivity means that if you are the owner, if you can exclude others, you are the only one enjoying it. This leads to individuality of the right. It cannot be a common. You cannot have exclusivity and common use. There is an ancient saying in property theory, dating back to the seventeenth century, that states le propre n’est pas le commun, meaning, what is proper, is not common. Because if you have property, it’s completely opposed to commons.
When the commons movement started to re-emerge in the 1980s and 1990s, it was seen as a challenge to property, as a sort of subversion. At the same time part of commons scholarship reminded us that there were always commons in property, or systems of property that worked on common use and not on exclusivity. Research on commons at the time was more economic research, sociological research, historical research, while in law it mostly depicted commons as a governance system. It meant that the research was still stuck with this idea of property as exclusive. So, the only way we can change it, as lawyers, is to simply say, property is about exclusivity and commons is something else. Commons is a challenge of property, of law, of the system of law, but it’s not part of property in any way. I was really puzzled by this conundrum, and then I found some scholars who argued that exclusivity is not the essence of property, it’s just some model, just some construction. It was a construction that was important in the modern emergence of property and in the liberal system of law and the liberal system of property in which copyright formed a great part, because copyright was needed to make the individual subject, who was also the one who could get rid of the system from the Ancient Regime. The liberation of the subject is also the transformation of the subject to a liberal, legal subject that could be the proprietor of things.
It was certainly important at some point in time, but today, we see that there are other systems of sharing, of the commons, etc. Therefore, my question was, are those system outside of property and outside of copyright, or can they be a part of it?
My point at the beginning, in the first years of my research, was that there is exclusive property, and then there are other systems that are inclusive properties. And they simply operate in parallel. After some point, I realised that they do not operate in parallel but are part of continuums. We have systems of property that could actually be plural with different modes of enjoying a resource. And yes, you have the mythology of exclusive ownership, which forms only a small part of copyright and property cases. Property gives the owner some power over the resource, and that power can be exercised in many different ways. Sometimes the owner decides to include, and sometimes it is the law that says that the resource should be shared and inclusive. I think I wanted to deconstruct the paradigm of exclusive property to assert that property is just the combination of different models that combine sharing and individuality, exclusivity and inclusivity, etc
Two fascinating scholars were looking at property in a completely different way. Two Sarahs—Sarah Keenan and Sarah Vanuxem—really opened up a new way of looking at how property could be understood and practised. Exclusive properties are very hierarchical; there is one owner who decides who can do what; with inclusive properties it’s more like, OK, let’s share that power, let’s share that thing! But it’s still based on a legal entitlement, it’s still mediated, all these legal entitlements that we decide to have in common in the thing. Those two scholars completely reversed the position by starting from the work, the creation, in copyright (even though they did not write about copyright at all). First Sarah Vanuxem, a French property lawyer, developed a very ecological notion of property in land, when she suggests that all systems of property could be conceived as a milieu: you do not own a thing, you’re not dominating a resource, but you live in it, you inhabit it. Whether you are the owner, whether you are the tenant, whether you are, you know, in any other legal positions, like to a piece of land, she argues they all inhabit the thing and your legal relationship to the thing is just a position as an inhabitant. Her theory helps us understand that you don’t only have rights, but mostly you have liabilities.1 Because, if you have a right to a resource, you are part of it, and then you need to take care of it. This changes the model of property completely!
The other scholar, Sarah Keenan, is from the UK. Her book is called Subversive Property.2 It’s not only a book about property; she starts with migrant women and lesbians who seek asylum in the UK and need to prove that they are persecuted because of their sexual orientation. They are told that they have to prove that they are part of and belong to the LGBT community. She denounces the postcolonial idea behind that because what does it mean to belong to an LGBT community as defined in the UK, when you come from a country where communities are something else, and maybe you leave because you are not considered part of a community? Sarah Keenan talks about what it means to have the property of being something. Property might not be about owning something, where you have this vertical relationship of dominance, so it’s not about having, but belonging. You don’t own a thing, but you belong to a thing, and you belong to a community.
That influenced me a lot, because the inclusivity I wanted to develop as a model is not only the fact that the relationship you have to a thing is about including others, instead of excluding them. That is, the relationship you have is about forming community, is about membership, about belonging. I think this is interesting for copyright, because it can mean that it’s not only that you are the author of the thing, and as such the owner of a copyright in a creation, you can decide to exclude or include, you have the power to exclude and decide to whom you will give a licence to do that and that. So copyleft licencing was about being more inclusive than traditional licences, but it’s still the same relationship of allowing or permitting, except that it is an inclusive permission, where no one is excluded in principle. It is a model of property based on belonging and community, which means that my relationship to the work is simply that I’m part of the process that has led to this creation. I may have had a major part in it, so it’s not about all people being equal. It’s simply that you recognise you are part of something, that you belong to a process instead of having a right in something because you create it. That also completely changes how you could authorise the use of the thing.
FS: This makes me think about what Jen Hayashida said in a conversation on translation as a form of reuse. She spoke about commitment as a form of relational authority. The commitment to certain politics of translation, and certain politics of caring for radical Korean poetry in this case, became a reason for having the authority to co-decide what would happen to the work. And I found that really powerful; that it’s through commitment, which is maybe a bit different than belonging, because belonging could be read as identarian, so this would rather happen through conviction and caring for the continuation of the work. That’s indeed a very different relationship than the legal authorship we have now.
SD: What is the interesting thing about property is not whether it’s inclusive or exclusive, but the fact that you own something makes it transferable. You can completely transfer ownership. Even when you give a legal licence, it means that you create a right out of your right that the other can also transfer—not necessarily in a technical sense, but it means it has its autonomous existence. Saying that you belong to something doesn’t create some rights that are autonomous that people can take with them. Belonging means that you are always in a relationship. That’s very different from authorising others to do something and having no control afterwards as to whether they comply with the condition for the authorisation.
As a result, the creation and its use, and its reuse, establish a network, a community of users around it, and it never stops. Then everyone who belongs to that community shares the creation as a practice. The difficulty is to not enter into a form of authoritarianism or a closed community that excludes some people. This is also the paradox and the difficulty; to not be completely naive and think that communities are always good. We know that communities are sometimes really cruel.
EW: When we think of ways that collective practices and inclusivity could receive legal recognition, I wonder about their universal applicability. Thinking of a community-based code of conduct, for example, or mutual liabilities. Or do you see a way to transfer the context-based and situated agreements into a more universal legal recognition?
SD: I’m always a bit sceptical about codes of conduct or governance rules because most of the work on the commons, and most of the legal scholarship on commons is about governance. I was never attracted to that, because governance is about contract. It’s the same as looking at rights. Governance may be important, how you call the different rules that you agree on, but I don’t find them completely satisfying—I don’t know exactly why. Perhaps because the aspect of discussion and negotiation is missing. Governance means you discuss at the beginning, and then that governs the use of a thing, but it’s never dialectic or dynamic. And it can be greatly influenced by the power dynamics of the different roles that people involved have. And the second part of your question was about the legal force of that, right.
EW: Yes, about the relationship of (universal) legal recognition and situated community-based agreements.
SD: That is a question that I get constantly, about legal enforcement and recognition. And I agree, it is important, but at the same time, I think that most of the time it is overestimated. Oh, it must be legally recognised, etc. But copyleft licences, for example, have never been formally recognised by courts. There are a few cases in which a court has agreed about their contractual validity, but the point is that you have different types of norms that are binding for people, norms that are recognised by people and that doesn’t necessarily mean they have to be recognised by law.
I am completely aware that exclusivity is not only the main narrative, but also that the property paradigm influences a lot of rules. I have studied a few cases in tangible property and in copyright that show that even if those cases are about sharing and about collective creation or collective enjoyment of a resource, if some legal question arises at some point, there is a big chance that the court will apply a model of exclusive property right and will not understand and recognise the way people want to do things differently, because the rules are strongly modelled on exclusivity.
But at the same time, we did some tests with scholars and experts in the field of law. We did most litigations with legal experts and judges. We asked them whether they could be convinced by other legal arguments. And in all cases they were convinced that, yes, exclusive property right was the way things were primarily organised, but nothing prevented a judge to apply a different rule if the judge had enough arguments to do so. Of course, it is not easy and it needs good argumentation. There have been some cases where they said no, this goes too far, you cannot do that. Perhaps I’m playing a bit too much with the law, which is still something you must be able to rely on. You can see it’s not as flexible as we want it to be.
FS: How does practice around authored objects change when we put them at the centre as a kind of a web of relations? In what way do we inform each other and make explicit what the limits of reuse are? And who is part of that decision-making? In what way do you envision this as a community practice? What are tools we can think of around such an authorial object seen within its ecology? In your studies and from what you’ve seen, what are the legal or non-legal tools to make those conditions explicit?
SD: Any type of agreement, a licence, a condition that is accepted by participants of a creative process, would have legal value in any case, also indicating that these are the rules that bind those people together as a community and those rules can be recognised by law.
A lot of people think that the law is something that decides for you. But the laws we are applying in our Western societies are strongly influenced by liberal thinking. And liberal thinking is about the autonomy of the subject. It means that a big part of the law is actually recognising some legal autonomy of the subject that can decide on the rules that bind them.
The contract, for instance, is a really important instrument in law that states that two people can agree between each other what their obligations and rights will be. Of course, there are things that you cannot decide on if they are against the law, but they are actually rather limited. So, it shows that there is a lot of flexibility to how you can organise your legal relationship or the norms that will bind you—more flexibility than you would think.
EW: There is something interesting about temporality. A contract is negotiated at the beginning of a process, whereas a licence is attached at the end of the process. A contract is similar to a protocol; it is a document that lays out the steps of the process, when, for example, we talk about sharing practices, distribution and reuse. In situations in which you are working together, the protocol or contract defines the modes of this collaboration at the beginning, you are in dialogue, whereas the licence is more like a stamp attached at the end, when the objects start to wander off to the reader, the reuser.
SD: But all of that is contract! Contract is a very generic term. It’s any private agreement between people and will be recognised by law and enforced by public authorities and the courts. It will govern the life of people but with a recourse to the public nature of law. We call it the private ordering norm, because it’s not the public ordering norm, which is a law, a legal instrument, a legal norm that has been decided by parliaments, etc.; it is a tool that is private and organises the relationship among people from private source and through private negotiation.
The term licence is linked to authorisation and to property. So, it is still a contract, but a contract that decides what can be done with property. A licence has this supplementary element, but nothing prevents people from setting the conditions of [future] creation by already integrating the terms of reuse in the licence. And that would be a contract and a licence at the same time. The only difference is that the licence can also apply to people who are external to the process of creation. And suddenly, this contractual part extends to other persons who will be bound by the licence and will not be bound by the process of creation. So you would have different contracts. And this is what makes it very difficult. For instance, an open licence contract is still a contract in a very traditional sense, a relationship between person A and person B, and after that person B and person C, and A and C. Having a multilateral contract is a complicated legal instrument. Our liberal modern legal system is still about bilateral legal relationships of contract, and an open licence is based on a chain of contracts. Open licensing is not about sharing, it’s still about authorising someone else to use a work in a bilateral relation. It’s difficult, of course, to completely deconstruct that in law, and I don’t pretend that I want to do that. But I think that we need other types of legal instruments, vocabularies, to try to tackle new forms of commons, new forms of doing things together, particularly today.
Sometimes there are case laws and court decisions where imaginative judges apply different systems and norms, who are inspired by other normative systems or legal cultures. We have to recognise that the modern Western legal system is very powerful everywhere in the world. It’s very colonial, and it’s difficult to come back to previous systems that existed before Western law expanded everywhere in the world. This is why it’s quite difficult to recognise that parallel systems could exist and maybe have more value than our modern private law based on contracts and property.
FS: We’ve been trying to think about different moments in the process to articulate conditions but also what it means to formulate conditions for those you don’t know yet. And this is where the licence often functions. How could you do that without reinforcing this very position of I am the one who owns this work, therefore, I tell you what can be done? I’m just curious how you see the space for working on contracts, as you call them, from the beginning of the process to the end from the perspective of communities that have a strong sense of belonging. When we studied indigenous agreements, for example, it became very clear that there is an assumed understanding of belonging that gives someone the authority to decide. So, how to deal with those transitions between communities in time, communities in belonging or not belonging?
EW: Yes, it is about how another community wants you to engage, or how to engage with works from another point in time. It is not only about contemporary materials, where you could just call someone or write an email and ask… it is also about reusing work that has been done a long time ago.
SD: It’s a difficult question. I think it’s important that we build on the notion that it’s not finished. It’s not sufficient to move from ownership to belonging and assume that then it’s done. It is still a process. Think of the critical questions that we have been gradually asking about the openness of the commons—Open Source or Open Access. Openness is sometimes seen as an open space, open to everyone, and there are some commercial actors that come and grab what they want because it’s open. It’s there for use. That there is a free licence that allows people to take some creation and then republish it, make money out of it, or whatever. The fact that it is open, means that anyone can come and grab what they want.
That does not depart much from the notion of extraction, and extractive property, and this is why the concept of ecology is important. Because if it is inclusive, it’s not only open in the sense that you can take anything you want, it should also be about having to sustain the resource. When applied to intellectual creations that are never depleted, it’s not about sustainability in a tangible way, but about sustaining the practice and making it impossible for someone to extract the thing for their own benefit.
To give you an example, there is the notion of the public domain in copyright: as soon as something is created it is copyrighted. In Europe, and in most countries of the world, something is under copyright for 70 years after the death of the author, and after that it is in the public domain. Then it’s free for anybody to use. That notion has long been celebrated, but there has also been a lot of criticism saying that it may be public, but public in the sense that something is open for everyone does not address the asymmetries of power and other interests. These include indigenous cultures, because they don’t satisfy the modern and Western condition of authorship and are in the public domain. That means that it’s free for everyone to use, to extract and appropriate. And this is a problem, of course, because then it doesn’t recognise other forms of culture. And I shouldn’t even say “other forms”, because then I establish, again, the alterity of the other culture, which is problematic.
It imposes only one mode of legally encapsulating a culture without recognising all modes that are possible. The public domain itself is a very modern and exclusive idea, where because it’s open, it’s just for everyone to take. Actually, most of the open licensing projects were a way for entrepreneurs to take things and not remunerate creators and artists. This is also problematic.
Just to be really clear: the problem of the public domain is twofold. The category of open, maybe the most open as we know it, means it has no limits, and extractive use is perfectly possible. There’s no blockage to that whatsoever. But also, because the category of the public domain is based on that, which does not belong to the modern concept of authorship, it means that some content enters the public domain without ever being protected by copyright, so it’s considered as public domain unwillingly, just a very accidental concept of public domain. One that works towards, again, creating commodities, creative commodities, because all these indigenous cultures can be taken by, for instance, the music industry to create some musical works and recordings without any compensation to the original community that developed that song, that music. This is an extraction of value to the benefit of some under the pretext of the public domain. It completely hides the powers that are there. This is problematic, and the mandates of Open Access are sometimes also a way of making everything open without even consulting the communities that may have an interest in the objects, in the data that are made Open Access. We need to think about what we want to put in Open Access, since we cannot just say, oh, open is always good, because then it’s the same move as saying, oh, copyright is always good.
EW: Recently there has been quite a big revival of what we call “conditional licences”. These licences use the right to exclude in a literal sense. They are technically still open content licences, but they restrict reuse for specific purposes. For instance, you can’t reuse when you create harm or are involved in wars in some way. Or this and that software can’t be used by companies that contribute to climate change. It’s quite interesting, because these licences use their right to exclude in a very literal way. What are your thoughts on this?
SD: It’s interesting because it gives some place for negotiation. It’s not black and white, as in you have the right to use, or you don’t have the right to use. It’s more like you have the right to use, but think, and attend to the conditions of that reuse.
The difficulty with that is that it’s still a contract and at some point you may need to enforce its conditions. If someone uses the object of the licence and is participating in the fossil fuel industry and therefore contributes to the climate change problem, for example. When you realise that, you say, OK, so now I will have to sue Total Energy. How do I do that? I am not completely convinced that it will work. At the same time, I also have some faith that stating the conditions of use is a good step to maybe deter someone from engaging in certain behaviour. I have faith in the normative power of explaining the conditions, which is why I said earlier that, for me, the question of enforceability of those conditions is sometimes overestimated. The fact that you state something already has a normative force, which may be enough. But yes, I do not have a clear opinion. I think these are interesting legal experiments. And I don’t have any idea of how it could work. I don’t think they are the solution, but they could be part of some attempts to experiment. I think it’s interesting, at least, because it is also going a step further than the contract, going into the direction of let’s engage together with what we want, and in what environment we want to put that in practice. I think that is interesting, in a sort of collective way, instead of a licence that says, I decide what condition I impose on you.
FS: It’s been interesting for us too; to look at these as also a critique of the classic free software stance that you should never constrain reuse. So, as long as you provide the sources anything should be possible or you should not try to control use after something has been released. All these experiments are going against that. They say, yes, sometimes there are reasons to not make something 100% open or even think that this would be a possibility. In that way, it has really been helpful to somehow break that mantra.
SD: I think what is interesting with those new types of licences or conditions is that they make us think first before applying Open Access licence. I am part of a research project for which we have just submitted a funding application, which we hope we will get because it will be important. It is a project about restitution of African cultural artefacts that are in museum collections in Europe or elsewhere, but mostly in Europe. Many European governments have agreed that now it’s time for restitution of those objects to their communities of origin.
Beyond that point, which is also disputed, this project will look at the Open Access dimension of such restitutions. One report for the French government a few years ago, which was written by Bénédicte Savoy and Felwine Sarr, pleaded for restitution but proposed that the museum digitise the object and put everything around the object, the data, the metadata, the digital image, etc., in Open Access, and in that way it will be shared, it will be open. It will still be hosted by the museum in a sort of digital manner. And it will be accessible to people in Europe, but also to people in Africa and all over the world. So this Open Access solution would be great—that was the museum’s rationale.
When the report was released, two UK researchers, Mathilde Pavis and Andrea Wallace, wanted to think more about that Open Access suggestion. How can we as European institutions decide that it will be Open Access without consulting the communities of origin? Because some of those objects may have symbolic or spiritual meaning and their digitisation and complete availability to all may be offensive. Would it not still be a colonial act to decide instead of those people? This project will be about that, about working with museums in Europe, but also with communities in Africa to discuss how we should do it, because it’s not to be against Open Access, but just to organise the access to this digital epistemic record of the object, to decide to look at it seriously. Not only as a representation, since it has an existence of its own. At the end it’s not only a copy or a representation of the object that has been returned. And then it could stay in digital format, but it has a life of its own. How do we organise access to that digital copy, its availability, but also digitisation itself. So, it is less about not applying Open Access at the end, but rather about starting to think whether it should be an Open Access and how we decide together. Maybe at the end, the decision will be to put it in Open Access, but we should at least discuss it. We should have a conversation. And we’ll involve the peoples, all the stakeholders; not only the communities of the region where the object is from, but also the diaspora, because those objects also have meaning for people, for African descendants, people who are in Europe, and may not see those objects again in European institutions, but only in Africa. The world today is complex so it’s important to have this complexity in mind. So that will be a fascinating project.
EW: I hope you’ll get the funding!
FS: We’re keeping our toes and fingers crossed.
SD: When we first thought about that project, I tried to rally some allies in the Open Access movement and went to people who were instrumental in pushing for Open Access. They didn’t get it and wanted to keep the digital copies in Open Access without understanding the issue. And then I realised that those Open Access movements were also very stubborn sometimes and not open to discussion.
FS: It may be changing a bit, but it’s true. When you have been in the trenches for Open Access, it may be very difficult to open up thinking around it, it seems.
EW: I always wondered, because I’ve stumbled across it several times. In the framework of the law, only legal subjects can be recognised as authors. And I wonder, could you briefly explain who would be excluded in this framework, when we say only legal subjects can be recognised as authors?
SD: A legal subject is constructed by the law, it is just a fiction and therefore can be expanded. For the moment, in our legal culture the legal subject is the physical person who is a legal subject as soon as they are born. And then you also have other legal subjects that are just fabrications, such as corporations, companies, associations that have a legal personhood. It doesn’t stop there. You can recognise that animals can be legal subjects. In European systems that doesn’t exist but it may in other countries. In Japan, they have granted legal personhood to robots, which means that it’s not limited to human beings. In some countries that have decided to grant legal personhood to rivers or mountains, which means that the law can be imaginative. I don’t say that it is always a perfect solution. For instance, legal personhood for rivers and mountains, even if it intrigued me at the beginning, I don’t think is a good solution for the ecological issues we have, but in a way it means that we can imagine other legal subjects, which, of course, has to be done by law. So here you have a limit: you cannot have people creating new legal subjects themselves. It must come from legislation or a decision by a court or whatever. Which means that it’s not that easy, but the notion of legal subject is not limited.
EW: In the European legal systems, who would be excluded? I understand that currently rivers are excluded. But in terms of humans…
SD: All humans are legal subjects, from birth, and in some countries even from before birth, which can be also problematic. Beyond humans, individual humans, the notion of collectives may also be an issue. At what point you can have a community and association, a group of people that is recognised as an autonomous legal subject, is disputed in legal systems. So, most of the time, you have to register a group of people as a legal entity to be granted some legal recognition. And you cannot have a group without this legal registration to exceed the status of legal object, or sometimes the interests of the group are recognised by court. So you can have legal standing without being a legal subject, and you can defend your interests. It depends on what you’re looking for, if you want to create a legal identity or being able to defend your legal interest.
EW: I think it was more about who has the right to be an author.
SD: The right to be an author is clear: only humans and individual humans can be. You cannot have an author that is a company, for instance. Once you have an author who has created something, they can transfer it to a legal person, but a legal person cannot be recognised as an author from the beginning of the creation. The author is always a physical person or human. It cannot be an animal, it cannot be an artificial intelligence, it cannot be a robot, it cannot be a company. At least copyright is easy!
FS: You’ve already answered this indirectly, but I know you have something to say about this: when we work as artists, as organisers, as activists, the law often seems like an immutable object. And in many of the things you’ve said this afternoon, you have made clear that it is maybe not as immutable as we might think, that there are many legal processes that are in our hands. Could you maybe explain how law changes? If we think about how copyright operates right now, and we’re trying to think it otherwise because we’re suffering from the way it intervenes in creative practice—how does it change? Like, what happens? We talked about the things that you can do in smaller groups, stating how you want to work and the normativity of a statement, for example, or making conditions explicit. This gives already much more space than we normally think there is. But if you would want to change copyright…
SD: The law is composed of different things: you have rules that are not immutable. They are, at some point, decided on, and then you can change them by way of a new legislative act. For instance, being able to vote at the age of 18 is a rule. So, it is 18, not 19, not 16. So you’d have to change that if you wanted that. But most of the law is not constituted by rules like that. It’s constituted by processes of deciding cases. For instance, the norm of liability says that anyone who causes damage to someone is responsible and has to compensate for the damage. This rule seems very straightforward, but it is just a standard statement. You have a lot of different ways to interpret it: what does it mean to cause damage? You have all these elements that are part of the legal process, where the courts do that work of interpreting. This case law, as it’s called, can change and it does change all the time. This is also a process of changing the law. And then you have all the elements that are not determined, you have new issues popping up. For example, can a work that is created by artificial intelligence be protected by copyright? That is not accounted for in law anywhere in the world, it’s a new question.
With a few norms and a few rules and standards and principles of copyright, we can deal with that question, but we can have different opinions, and then we can say, oh, maybe at the moment it will not be protected by copyright, and maybe we need to have new legislation to decide about that case. The law is in constant change. How do we change copyright? Then we have a lot of things that we had earlier, that the law does not decide on but leaves for the parties or the persons to decide for themselves. A contract just states what the rules are that have to be followed, but the law doesn’t say that, OK, if you write a book and you publish it, the publisher will have to pay you that amount of money. In some countries, it says the authors will transfer the copyright to the publisher and need to be paid to receive a proportionate and fair remuneration. That’s just a standard, but it doesn’t say it has to be 25% or 5%. You have the standard and then the parties decide. How do we change copyright law? First, we experiment with it. And this is what has been done with Open Access and copyleft licences for the last 20 years. I think it’s interesting to recognise that Open Access licences have just been experimenting with the law that recognises that authors enjoy copyright and the power to prohibit or authorise the use of their works.
Copyleft movements have experimented with the authorisation part of copyright in a new way; they have created a new norm, and a new law. This is the first way to change the law. The second is to plead for a legislative change. And then the other is to develop new legal arguments that can be welcomed by the courts, because there is still some uncertainty as to how to interpret the legal standard, or there is a new question for which there is no legal answer. This is what the courts and what we as copyright lawyers are doing all the time. We argue when to use the theories of copyrights or what copyright should be or is about and play with the rules and with what the rules are not ruling. What are the holes in copyright that have to be filled, or sometimes not, but have to maybe be left unexplored to allow for experimentation? There are a lot of ways in which to change copyright law. It is not immutable, and it isn’t complete. Not everything a creator does is regulated by law. A lot of things are still in the shadow of the law in a way.
FS: To slowly wrap up we wanted to come back to CC4r. This “not-licence” that has been around now for a bit longer than four years. And we start to see it in use, in different ways, and it’s interesting to see what is happening to it. It’s slowly spreading, people are in conversation with it. One example we saw is that someone licensed a publication under a Creative Commons licence, but then used the CC4r as a more political statement alongside it, which was interesting for us to see; that they understood it not as a…
SD: …a new licence, but as sort of complementary.
FS: Exactly, and that the conversation to this gesture was part of the work of CC4r. We brought you an excerpt from a report from a publisher that has considered using CC4r for their publications. In the end, they decided not to use it for two reasons: one is that they hoped to find a possibility for a more collective statement or a collective positioning and realised that it was still held to an individual position. And the second trouble they had with the proposition of CC4r is that it would maybe not be enforceable. And this is what made them decide to go for a more conventional Open Access licence, which is Creative Commons…
EW: …which as an Open Access licence gives more protection. Basically, they were afraid that the books would be pirated, and they would lose revenue. It’s about protecting the enforceability of that protection.
FS: The question to you as we are now working towards picking up this this proposal again with a group of people in a few months is how to think through the fact that CC4r is still linking to the responsibility of the individual on the one hand, and on the other hand that it’s not enforceable. You have talked about that a bit already, but maybe you can do that now directly in relation to this experiment…
SD: The question of enforceability was asked early on of Creative Commons licences. For many years, a lot of people said, it will not be enforceable. And then here and there were decisions that said, yes, it’s enforceable. But this was not even the question. It’s enforceable if it is recognised. If it is a legal document that people agree on, it will be enforceable. But again, copyright sometimes is not enforceable. Yes, it is a property right, it is enforceable, but in practice, and particularly in small cases with not a lot of money, they will have a lot of difficulty in finding the pirates, finding the person who has made the copy and who has disappeared or has done it anonymously. It’s not only about the type of rights that you put in the licence or whether you just apply the exclusive copyright. If you don’t give any licence, of course, any copy without an authorisation is a pirate copy. But at the same time, it doesn’t allow for more enforcement because the enforcement is also something of practical reality; you’ll have to find the pirate. Saying that this document will be less enforceable than others, I don’t think is the point. But what I found completely fascinating with CC4r, and I think that was genius, is that the Creative Commons is only applied once the “product” is done—and the use of the term “product” is not innocent here. Once the work is done, only then does the licence determine what you can do with it. CC4r also takes into account a step before, as it first talks about how we do this work together, and then we’ll decide what can be done. It’s more inclusive in the sense that it will consider the collaborative conditions, the collaboration between people. So, maybe yes, if you are a publisher, you are more interested in what I should do with your product, the book. The publisher is probably not as involved in the process of producing that book. Maybe the interest is more in the outcome, for which the Creative Commons seems a most obvious choice.
But I think that, again, those are legal experiments that are interesting, and they will not solve all the issues. A contract has never solved all the issues. For instance, the music industry has fought for years against pirates and peer-to-peer sharing of music, and they weren’t always successful. They have all the money in the world, and they have the exclusive copyright, and they couldn’t really wipe out all the pirates’ websites. There has been a constant fight between the copyright holders and the pirates. Of course, you will never catch all the pirates in the world. So this is a risk. The law is not something that happens automatically and will self-enforce. Enforcement is a process that costs money, that needs courts, that needs defendants who are identifiable, who are reasonable defendants.
I can see why people are less convinced by Creative Commons licences because they have not been experimented with enough. But they will have a life of their own, and then at some point, people will agree to them. It’s a completely new form of licence, it’s not a traditional, typical licence. But I think what is important is that at least it binds people who agree to it, and so it gives some frame to a community of people. And of course, it’s left open to possible pirates, but those will always be outside of the legal force of the law, of the legal force of Creative Commons.
This is the ultimate frontier that you will never reach. We’ve seen this with Eva’s workshop on the Piracy Project at LaCambre in Brussels, the case of a publisher who made a business out of printing Wikipedia articles and made them look like scientific books, selling them for a lot of money. Legally speaking, those people even comply with the Creative Commons licence that governs Wikipedia pages, but it is a completely unethical thing. And yes, those people will never be reachable or will never be accountable before courts. Maybe I’m defeatist here, but I say, what’s the point? Is it not better to just try to reinvent the practice by saying these are the rules that will govern a practice rather than just constantly think of the risk of someone stealing your work?
EW: That’s really beautiful and should probably be the end. But still, when you say that the licence governs the practices of the people who agreed to it, this is not strictly what a licence does. It would then be a different genre. It would be like a protocol, because a protocol is set at the beginning of a process, whereas the licence is sort of stamped onto the process results at the very end when they go out, when they leave the community. This is where it becomes messy, because how can we have such conversations with people we don’t even know? This is why a licence seems so limited but also necessary. This is the conundrum, and I think this is also the point Gary Hall made, when he wondered what we do when “ a future author is convinced that what they’re doing is perfectly acceptable and does not contribute to oppressive arrangements of power and privilege and difference even though for a lot of others it does.”3
SD: Let’s come back to your ecology metaphor. When you try, for instance, to have a garden that is more ecological, you let things grow and you’ll never know what will emerge. So, you practise your garden. Yes, there will be some weeds that may be invasive… it’s part of the practice that something could go wrong if you apply an ecological gardening system, but then you address that at some point. If you want an ecology, you don’t want a perfect system. For me, looking at an Open Access licence or a new copyleft licence as a perfect system is as wrong as thinking that copyright will be the perfect system to avoid piracy or unwanted copies. I think there should be some leaks at some point if you want to do it as a practice and not as a system of authorising and prohibiting. And you are right, when you authorise, you assume that everything that you have not authorised, even if your relation was very broad, is prohibited. But if you take a licence as a practice, then you will see along the way that it’s not about prohibition or authorisation, it’s about how do we do that together.
Maybe the problem will come from people who don’t agree to being part of this together, but how will you force them? We’ll never do that. And no legal instruments will ever be able to do that. We shouldn’t be naive in thinking that there is an ideal system of Open Access licence out there, which is still to be discovered. We’ll never be able to find it. So maybe Creative Commons has served its purpose for many projects and now other licences will serve other purposes. But we’ll never have a perfect system because there is no perfect legal system, no perfect contract system, no governance system that is perfect. I think it’s a good thing that we don’t look for perfection. Things should be a bit messy!
It’s good that practices are experimented with, and practices of creating things together are experimented with. Sometimes it can go wrong. And you will have people who will never comply with the licence, whatever it is.
FS: But what I find hard is how to really shift to the work instead of thinking of the so-called author. The CC4r starts to circulate, people are picking it up, I think out of frustration with what copyleft offers them. It’s one of the rare licence experiments that brings up colonial issues, that very explicitly refers to power structures around authorship. That is really important, as a reminder of the ecosystem around authoring. But does it really shift our thinking about ownership and cultural production?
SD: I see your point. It seems very much a figure of speech to say, let’s move from the artist to the object, but that will not get rid of the power structure around authorship. What is interesting—and this is exactly what you are doing with this CC4r—is that you consider the object of the creation as a process. You embark on the process of creation and the discussion around its legal condition. It’s about always considering it as evolutive and dynamic. That is interesting for me, even if it may not be satisfactory, because at some point, we need to decide, or we need to have some clarity of what we agree on. I am not saying it’s easy, I am not saying it is the solution. I think it is interesting to explore the ways in which we could not get rid of the power dynamics around authorship but at least recognise that they exist and to try to also bring them into the discussion and to see who is entitled to speak. What I like a lot in the CC4r is the preamble which states that this is not “your” work to begin with.
This is completely the reverse of Creative Commons, which states that the authority of this licence comes from the fact that I am the author, and due to copyright law, I’m the one who can decide. I decide to authorise the use of my work, but still, I decide. It’s still a position of power. In the CC4r you state that our decision here is not based on our copyright, which is also the weakest point of the licence in terms of enforceability, because if you don’t speak as a copyright owner then how does the legal system recognise your authority? This is the point about enforceability that I avoided earlier, and maybe I shouldn’t have. At the same time, I think that we should at least try, and I liked the fact that, from the very beginning, you just confront the power of authorship itself by saying that we may be creators, but we don’t agree with that position of authority that copyright gave us. This is not from the position of the authoritative author that we grant you the licence, it’s that we have decided together as a mode of practice. I’m just thinking out loud. So maybe it doesn’t make sense because I find your question very interesting. How do you get rid of this authorship system, which is a power system, while keeping the copyright, which is still a protection of your work, of your subjectivity, etc. That is the biggest conundrum, I think. When we are against this system of authorship, we are mostly accused of being against creators and others, and it’s very difficult to convince people that this challenge of authorship might be beneficial for artists.
EW: In “Footnotes (Books and Papers Scattered about the Floor)”, the text that I sent you, Katherine McKittrick makes a really beautiful statement about that. She writes that it is important to make the works our own but not to own them.
SD: That is a nice point, really great.
FS: I think that is a nice way to end, but I guess there will be more…
Brussels, 12 November 2023
- Vanuxem, Sarah. Des choses de la nature et de leurs droits. Versailles: Librairie Quae. 2020.↑
- Keenan, Sarah. Subversive Property: Law and the Production of Spaces of Belonging. London: Routledge. 2014.↑
- Hall, Gary. “Experimenting with Copyright Licences”. 20 April 2023.↑
Conversation with Jennifer Hayashida: Translating as a Practice of Reuse
This public conversation with friend and colleague, translator and poet Jen Hayashida took place at the event “First Times Do Not Exist”, we organised at Göteborgs Litteraturhus in autumn 2023. The title is a reference to Mexican author Cristina Rivera Garza’s work on disappropriation, reflecting on the communality of writing and reading in the face of violence. We chose this title because we know, that when we make something we always remake, we always reuse. We base ourselves on the things that have gone through us and the things we make will go through others again. But how do you do that in practice? How do you make the conditions of reuse explicit?
With these question in mind we are talking with Jennifer Hayashida about her experiences and reflections of translating as a practice of reuse. We were curious about the ways she is in dialogue with the texts, the writers or previous translations and translators. What are the forms and practices of seeking consent, of checking in when working on a translation. Or should we say, when reusing? This public interview has been conducted by Eva Weinmayr and Femke Snelting. This transcript also includes questions and contributions by participants Nils Olsson and Ram Krishna Ranjan.
Jen Hayashida (JH): My name is Jen, I’m a translator and a PhD candidate in artistic research at HDK-Valand in Gothenburg. I think it’s important to say that these questions and the conversation today are in many ways a continuation of the conversation that Eva, Femke and I had online, two months ago. Meaning that the questions that came up then are the same questions that animate this discussion today.
To me, it’s important to say that I grew up between languages, that I’ve always been a translator, whether I was conscious of it or not. I’m born in the San Francisco Bay Area, but I grew up outside Stockholm, and I’ve spent my entire life in the borderlands between Swedish and English. I’m also not racialised as Swedish, so I’ve navigated language through the different ways “Asians” are racialised in the US and Sweden.
I’ve always moved between contexts: in California, where my father lived, I had one identity, that of Asian American, fourth-generation Japanese American in a family originally from Hawai’i. In Sweden, I had another racialised identity, which did not at all overlap with the one in the US: I was mixed race in a country that has no word for being mixed race, and to most people I presented as Asian, and then as Asian adoptee, given the fact that Sweden then had high rates of transnational adoption from South Korea. Translating those identities—moving between them and seeing how they talk to each other through me—is how I think about translating language.
A big part of my research has to do with the way that sociopolitical context informs how one engages with language, on what forms of experience one brings to bear in the act of translating. For example, I’ve studied French, but I don’t “know” French, not by any stretch of the imagination. Could I translate a sentence? Of course, but my relationship to French is academic. My relationship to American English is different. It’s a language that I’ve been subjugated by and a language that has socialised me. As a result, when I translate to or from American English, my socialisation into that language is the foundation for the knowledge that I draw upon. The first fifteen or so years of my practice as a translator, I translated only from Swedish to English. After I started at Valand, I began translating together with Andjeas Ejiksson, then my colleague there, and we now translate together in the opposite direction, from American English to Swedish. Swedish has socialised me in other ways, into a different kind of subject: whereas in American English I feel more confident in terms of the rules and how to break them just right, Swedish leaves me feeling more uncertain, muffled.
To me, what’s so interesting about today’s event is this notion of translation as reuse and this idea of there not being an original. Andjeas and I work primarily with two writers: a Korean American poet, Don Mee Choi, who also translates the work of Kim Hyesoon from Korean to American English. We translate Don Mee’s poetry from English to Swedish, but we also translate Don Mee’s English translations of Kim Hyesoon into Swedish, a so-called relay, or indirect, translation: we translate a translation.
I’d say it’s a form of translation that’s not as unusual as people think, but it’s sort of under the radar and seen as somewhat “dirty”. Some scholars and translators actually consider it a contaminated form of translation—for exactly the reasons that you and Femke would probably think it’s great—since it redistributes authorship in ways where it becomes negotiated in a really explicit, procedural way. In our case, this structure came about because Kim Hyesoon was contacted by a Swedish publisher who wanted to publish her work in Swedish. In response, Kim Hyesoon basically said, use the English translation, since she has a very deep artistic and political solidarity with her translator, Don Mee Choi. So this book here, Autobiography of Death, is the American English translation that came out a few years ago from the US publisher New Directions. I can pass it around. Look at the copyright: who owns the copyright?
Femke Snelting (FS): There are two copyrights on this book: Kim Hyesoon has copyright and then Don Mee Choi, the translator, has also copyright.
JH: In Autobiografi av död, the Swedish translation of Don Mee’s American English translation, Andjeas and I have the copyright, so it’s been transferred in three steps. But what’s exciting to me is that, methodologically, we’re dealing with Don Mee’s translation: we’re translating a translation, and there’s a displacement of a displacement. There’s also, like I said, this displacement of the author, or redistribution of authorship. There’s a displacement of the singular. There’s a displacement of the original. And all this is possible because it was the wish of the author, so then there’s a kind of reconsolidation of authorship, I suppose. However, if we had done this on our own and gone rogue and not asked Kim Hyesoon, there would have been a huge ethical problem. But it was her initial request that we operate that way. And to me, that kind of relay, this dirty translation, suggests a poetics. The displacements that take place linguistically, mostly from Korean to American English—what Don Mee had already done—are artistically and politically significant.
Eva Weinmayr (EW): Could you say a bit more about how you understand the moments of displacement and what they do?
JH: There’s the movement from Korean to American English, which necessitates a bunch of linguistic displacements, the big one being a movement from a logographic to an alphabetical system. But then, of course, there’s Don Mee’s presence, or interventions, as a translator: we are reading Don Mee’s reading of Kim Hyesoon, so we as translators are also displaced in some ways by virtue of reading someone else’s translation.
There’s also a further displacement, which has to do with the movement, not simply into Swedish, but into Sweden. How does a work that is a critique of how the South Korean nation-state operates resonate in another state context, that is, in Sweden, where South Korea has a different significance than it does in North America? How does this work get read through the filter of the Swedish welfare state, Sweden’s history with South Korea and the Koreas more generally? How does Swedish understanding—or misunderstanding—of East Asia, East Asian politics, East Asian subjectivity, come in? I guess this is where I also return to my own experiences of growing up “Asian American” in the US and “Asian ‘adoptee’” in Sweden—I mean, how my Asianness is legible in North America versus in Scandinavia.
Translation is also, as Choi writes, a mapping for thinking geopolitically about translation, how various nodes—the US, the Koreas, Sweden—link political and historical circuits that might reveal, or point to, continuous unfoldings, displacements, erasures. Personally, I find that the triangulation inherent to dirty translation is incredibly fruitful, since it makes clear how languages engage with, and pass through, each other.
There’s a desire within world literature to think that you’re accessing the original when you’re reading a translation, but that, to me, is just a fiction. The translation is a new text, recontextualised —not necessarily in the sense of it being localised, domesticated, to its new context, but read against other histories as they are inscribed in the target language. In the case of working with Don Mee Choi and Kim Hyesoon, the workflow and the material objects concretise and make more explicit what, I think, is always happening.
FS: You spoke about the solidarity politics of the authors and translators in this working relation. Is there any way you can check in or make explicit what the limits of dirtiness are? To make these limits explicit may be important in other environments or working relationships. To know what is OK and what not.
JH: I can only point to this particular instance , to the working relationships we have with these two people, with a sort of continuous process of consent. It’s funny, though, since I’ve never thought about it that way. When I’m translating—and again, we’re primarily talking about living authors—a lot of the work involves emailing them and asking questions about word choices. I realise now that this can also be seen as continuously affirming whether something is OK with them.
In our case, we have not had direct contact with Kim Hyesoon about word choices, for example, but not because she was disinterested. She just knew that the person who most engaged with the work translationally was Don Mee, who therefore was the gatekeeper in some ways, while being a very non-gatekeeping person. She sometimes describes the process of translating Kim Hyesoon as “being in a state of trance”, so when we asked her questions about word choices, it wasn’t always easy for her to reach back and recall how decisions had been made. We would discuss choices with her, but it was rarely a question of right or wrong. She’d primarily encourage us to see the circuits of her reasoning to try to see how we might engage in, or enact, similar circuits in Swedish.
What prompted this question about checking in on limits, is that for the first time in my life I’m now working with a dead writer, Sara Lidman, whose language is wild, whose poetics involve multiple disruptions of how the Swedish language operates. Being loyal to or mimicking those disruptions without this person’s consent is, to me, ethically tricky. Not because I think I’m necessarily overstepping my bounds, but there’s obviously an artistic value to having a dialogue and being able to work out solutions together. Not having that kind of dialogue with this writer means that I’ve had to turn to people who are very engaged with and loyal to her project. She wrote specifically about Västerbotten in northern Sweden, and consulting with writers and scholars who are committed to her depictions of Västerbotten also involves a dispersal in some ways. Because I’m reading the work, on my own but also through them, their readings become part of my reading. Here the negotiations of those limits are very much subject to these other people’s ethics and what they would consider the limits of decision-making, which in turn involves their conceptions of what translation even is. Is it a transfer? Is it a decanting? Or is it a more artistically feral process? The limit to be checked is in that sense determined by what you believe translation should, or could, be in the first place.
EW: One of our questions was when reuse is happening, when text is transferred from one language, from one nation-state, from one context to another, what do we have to watch out for? What issues or elements in to pay attention to when you enter into a process of reuse, in this case through translation? You used the word “loyalty”, which seems really interesting in this context.
FS: And I would also at some point like to come back to “being in trans” as a way to somehow be ready for reuse. What it means to “be in trans” and how do you become in trans? [Editor’s note: Femke misheard Jen’s remark as “being in a state of trans”. She asked her question out of excitement about what a “state of trans” might open up as an imaginary. As Jen was referring to “a state of trance”, she responds to this question accordingly later in this conversation.]
JH: What to watch out for? I think it’s a temporal question, which is also at the heart of your title for this event, “First Times Do Not Exist”. Because this notion that you’re the first person entering the story is incredibly relevant now: do you call something a defence, or do you call it an attack? What is the translator’s position in relation to the text? If the translator imagines that they are the first person there, as a kind of settler, then that makes me suspicious. The same is true of the author, obviously. If the author has a stake in their writing, where they want to be able to claim that they are the first person on the scene, then that to me is something that puts me on alert. As a translator, I think it’s imperative to be mindful of the fact that you’re never the first person on the scene, to treat the language and the claims of the text with that kind of transhistorical awareness.
EW: How do you select what you translate? You just mentioned that you’re in the privileged position not to have to make a living from translation. I am asking because translation is also giving visibility within a context in which the text may not have been written.
JH: Right now, I’m in the fortunate position of being able to select what translations I take on, but I’m very aware of how precarious that position is. For every book that’s translated, there are probably a hundred books that aren’t. And the selection process, whereby books get translated, is determined by a largely North American and Western European literary capitalist structure that makes decisions based on largely imperial and colonial desires. There is an apparatus that makes things possible, but that apparatus is also like “the first person on the scene”. That apparatus, to me, is predetermined by deeply violent and racist and classist claims to exceptionalism. Yes, the act of translation makes something possible, but there’s a stronger machine that is the publishing industry, and that machine doesn’t always make the most ethical or politically imaginative decisions.
I talked to a friend of mine who works in publishing in North America, about the ways in which translation is also about reproduction, reproducing the fantasies of others. In Sweden, for example, I think about half of the literature published is translated from other languages. To me, that’s deeply interesting, because in the US it’s 4%. There’s also the data around who translates in the US: a survey of the American Literary Translators Association found that it’s overwhelmingly white. As a result, I often wonder whose desires make an imprint on the market, but also on the works in translation.
FS: So can we go back to the…
JH: …trance question?
FS: Yes. As we are trying to figure out practices of reuse, I thought, “being in trans” is maybe a state of being that would be helpful for enacting reuse in a reasonable or ethical way.
JH: My take on what it means—and I want to be very clear that it’s entirely speculative but knowing just a little bit about the relationship between Don Mee and Kim Hyesoon—I’d say is that they have a shared history, and that this history opens up to a kind of trance-like state in translation. It’s a shared history that has to do with a relationship to, and suspicion of, the South Korean state apparatus, as well as a deep commitment to feminist experimental South Korean poetry. I think that’s the place of trance for Don Mee, but it’s definitely not outside capital, not outside empire, not outside language, or outside the regime of English, because a lot of Don Mee’s poetics has to do with disrupting the normative functionality of American English.
I also think it has to do with memory and being in memory, corporeally, and being in memory with Kim Hyesoon’s poetry. It’s how Don Mee talks about it, both in terms of what she is able and unable to remember. It does seem to have to do with where they meet up experientially, but also genealogically, and their shared commitments to anti-imperial, feminist and what Don Mee terms anti-neo-colonial violence, and I think the trance is situated in that sort of oppositional labour. I guess that is the proposition of the work, in the opposition, in the trance.
FS: It also resonates with loyalty. You spoke about commitment and loyalty. What is that loyalty for you?
JH: Kindness? Kindness is a big part of it. I feel like I’m talking to my kids. But yes, there’s an interview between Don Mee and Kim Hyesoon in the back of Autobiography of Death, in which they talk about when they first met and were translating for a feminist organisation in South Korea. These were women who had experienced various forms of violence as a result of militarism and colonialism, and they were both transcribing and translating testimonials into English. And I think that kind of loyalty, mobilising your knowledge or experience in an anti-neo-colonial way, that’s a form of loyalty that I’m deeply committed to, something I’ve witnessed and learned from in their relationship.
I think the other kind of loyalty that’s interesting to me—and this comes up in my teaching but also in my working relationship with Andjeas—is that I think we do the hardest work, that demands the greatest loyalty, when we come up against not-knowing. If I had to create a hierarchy, English is my first language, Swedish is my sort-of second language. Andjeas is very much a Swedish speaker: he has no lack of confidence with the Swedish language, but English is not his first language. We meet in our respective linguistic strengths and weaknesses. And I think it’s in the weaknesses where we do the most interesting work. I think that, for us, it’s been a productive way of working, to acknowledge weakness as a place to linger, as opposed to a place to get away from.
I also think—and this is just my opinion—that it’s sometimes easy to be seduced by the target language, by the imagined reader of the translation. But being loyal to the poetics of the text, depending on what it is, that’s what’s at stake: being able to discern how the text operates and what its commitments are and then being loyal to that. At the same time, when I teach, I’m also a proponent of disloyalty, so it depends on what text you’re working with, what reader you have in mind, how you can toggle between various interpretations of loyalty.
EW: What would then disloyalty mean?
JH: It goes back to that other question about a text that makes claims around being the first. I think there are ways in which you as a translator, in your word choices, can signal that the claims being made are not necessarily robust. When the translation would be in active dialogue with the original—the text that purports to be—to make clear that the translation is simply a documentation of a process of examination, as opposed to producing another thing that’s supposed to represent the original.
I feel like I’m getting snared into my own language. I think a bad translation is really interesting. What is a bad translation? Everyone in this room, I think, would have a different definition of what that is. When we claim to aspire to a good translation, I think we should be open to the fact that that means different things to all of us. To me, a good translation is a translation in which you can sense that it’s a translation. You don’t necessarily stumble, but you become aware of the fact that the footing has shifted. For many people, that’s a terrible translation. But to me, the translation could be seen as a contaminated artefact: it was already contaminated when it arrived as the original. Andjeas writes about this in our translators’ note for Autobiografi av död, that the translation can be seen as a ruin, and we argue that the original was a ruin all along. When reading, you’re walking through the ruin of a ruin. I think that a good translation tells you that it’s a ruin and that the thing was never whole to begin with.
Not to domesticate the text is, to us, very important, because it’s a way of signalling that this is a translation, and we’re not going to pretend that it’s not. We’re not going to domesticate it. We’re not going to be loyal to readerly expectations and we’re not going to try to obscure the fact that it’s a translation, because to us that disclosure holds a political and poetic purpose. It’s the same thing with Knappt krig, the translation of Don Mee’s Hardly War. There are ways in which Don Mee mobilises American English to signal that there’s Korean behind the English. She refers to it as a fraying of the language, which I’ve since understood also comes from Gayatri Spivak. And that fraying gets to stay. It’s not just that it gets to stay, but it has a poetic and political purpose. And that’s where my own frayed relationship to Swedish gets put to use, because I still don’t always hear what’s right or wrong. To the greatest extent possible, Andjeas and I have had to work with my ninth-grade Swedish in order to try to be loyal with Don Mee’s fraying, which sometimes makes it sound like it’s a bad translation. There are elements that are incorrect, wobbly, edges that we haven’t smoothed out.
EW: Before we open up the conversation to the floor I wanted to ask one more question. When you flipped through the books checking who has the copyright for which translation, that’s a question about holding rights. How do you feel about holding the copyright for your translation?
JH: I once translated a blockbuster from Swedish to English. And this book was sold to nearly 30 different countries. Obviously it wasn’t a book of poetry, it was a novel. I worked with a literary agency, and that work was for money. When you do that kind of money work as a translator, the agency ends up with the copyright and you give up all rights to audio, film, everything. You give it all to the agency and the agency, in turn, keeps selling it.
I think that what’s interesting about being a translator to English, in that situation, is that I had no claims to the work whatsoever, which obviously has financial implications. There’s been a big discussion among North American and Western European translators in particular, about having the translator’s name on the cover of the book, which to me is a way of skirting past the fact that the translator still rarely has any legal or financial claims to the translation after the work of translation is done.
At the same time, I’m used to having that kind of abject role. And I don’t mean that in a victimised way, but most of the time I translate poetry, so I’ll hold the copyright, but it’s such a devalued form of writing, so I hold the copyright to something that very few people want. It’s a terrible thing to say about poetry and is not at all about my own feeling or position, but it’s how the market operates. I feel a sense of tenderness towards poetry, because I have the copyright to something that in some ways exists on the margins of the market, in a state of chronic but perhaps also fruitful precarity.
So to me, copyright signals so many different things in terms of what it is that it safeguards. I don’t know whether the answer, when it comes to this kind of work, is that there is no copyright.
I don’t know if that’s the question or if it is who takes care of poetry… Copyright as a way of taking responsibility versus claiming ownership, I guess is what I’m saying, tending to something versus capitalising on it. Depending on what copyright is attached to—which also has to do with who the author is—whose rights are being safeguarded through copyright and who is assuming responsibility.
EW: So interesting that you bring rights and responsibilities together in this context. What would it mean to take responsibility for this “dirty translation”? Is it a sort of custodianship, or control over its use? Do you feel protective about it? And wouldn’t this possibly be counteracting your dirty translation chain?
JH: I mean, protection and control—I’ve been in enough psychotherapy to pretend that I understand the difference between the two. I think this goes back to the consent question, where we are in continuous dialogue. I would never claim to control this translation, because nearly every decision that Andjeas and I make about its distribution or dissemination, how it will exist in the world, is in dialogue with Don Mee. It’s like we are her ambassadors—to use a weird diplomatic analogy—in Sweden. But yeah, being a custodian also implies that she’s not capable of taking care of it on her own, which she is.
This is a deeply problematic thing to say, but in some ways the fact that we have the Swedish copyright and she has the copyright in English, there’s a kind of solidarity in that. But it’s such a deeply problematic framework. I understand that it’s like a dirty kind of solidarity in a way, but again, I think my way of considering copyright in this particular scenario has to do with the abject status of poetry.
If she was Knausgård and I was his translator, I think there would be different ways in which the already inscribed hierarchies of mainstream literature would completely undermine what I’m saying right now. Because that huge machine of mainstream literary capital means that, of course, the translator is not in solidarity with the author through copyright.
But this much more horizontal relationship in our project means that holding copyright signifies something a little bit otherwise than it normally would. I’m just interested in this idea from the vantage point of dealing with a genre that is not at the centre in the first place. I just think that it does something to the meaning of copyright.
Nils Olsson: I’m trying to imagine someone deciding to not work within a given form of circulation of literature. Because no copyright could perhaps be an alternative to conventional forms of distribution?
JH: I don’t know… Don Mee debuted as a Korean American writer, not writing in her first language, linguistically and geographically displaced by war. I’m oversimplifying, and she is not here to speak for herself, but she debuts in a North American literary market when she’s in her late forties. With her second book, Hardly War, and then her third book, DMZ Colony, she becomes widely recognised through a number of prestigious awards. She wins a MacArthur Fellowship, which is one of the most prestigious awards you can get in the United States. To me, no copyright for someone like that isn’t really an option. I think there’s an ethics attached to the fact that she’s a person of colour who works with small presses. If she would not have a legal claim to her own work in the face of an apparatus that eats everything, would, to me, be ethically problematic.
I think that the demand to interrogate the meaning of copyright needs to be very specific, depending on the person and work at hand. It’s easy to make sweeping claims for a utopian alternative where there is no such thing. And [the issue is] that a claim like that implies that there’s no prehistory, which transcends the question of copyright, which has to do with colonialism, empire, racial capitalism. I think that those issues predate—I’m obviously no legal scholar—copyright. And that mechanism [of copyright] is certainly a symptom of something, but its undoing is not necessarily going to solve a fundamental problem. Copyright isn’t the first problem on the scene, I guess.
Ram Krishna Ranjan (RKR): I understand and appreciate the dilemma, which you articulated really well. With regards to copyright, I also think that we should link it to the project of colonialism. Copyright is very much an extension of the colonisation of time and space. Now we are at a point when people in marginal spaces are responding and reclaiming time and space. So, the turn towards dismantling time and space and imagining a utopian other time for the copyright to be challenged is a bit unresolved. It produces a legitimate concern when people on the margins can, finally, claim or partake in the fruits of copyright, if we are thinking of dismantling it altogether. And this is why your point about the meaning of copyright to be specific is very important; what is the material and who is it attached to?
JH: I think that work of specification is in and of itself an oppositional work. Because that’s not a work that the colonial apparatus, or the imperial apparatus does, right? It doesn’t specify in that way; it specifies other positions.
RKR: I’m also thinking of postcolonial states and societies. Often, the legal framework around ideas of property and copyright is still informed by colonial practices. The struggle for people in marginal spaces fighting copyright is that they are fighting the frameworks laid down by the postcolonial state, while at the same time they have to rely on the state to protect them from injustices. So, it’s a bind that they are constantly navigating and struggling with. Therefore, the choice is, I’m going to oppose copyright, but only to an extent, because I also know that if I dismantle the framework, I will be paying the price more than anybody else.
Gothenburg, October 2023
