Intellectual Property and Traditional Knowledge

Stephen R. Munzer and Kal Raustiala have posted The Uneasy Case for Intellectual Property Rights in Traditional Knowledge (Cardozo Arts & Entertainment Law Journal, Vol. 27, pp. 37-97, 2009) on SSRN. Here is the abstract:

Should traditional knowledge - -the understanding or skill possessed by indigenous peoples pertaining to their culture and folklore and their use of native plants for medicinal purposes - receive protection as intellectual property? This Article examines nine major arguments from the moral, political and legal philosophy of property for intellectual property rights and contends that, as applied to traditional knowledge (TK), they justify at most a modest package of rights under domestic and international law. The arguments involve desert based on labor; firstness; stewardship; stability; moral right of the community; incentives to innovate; incentives to commercialize; unjust enrichment, misappropriation and restitution; and infringement and dilution. These arguments do, however, support “defensive” protection for TK: that is, halting the use of TK by nonindigenous actors in obtaining patents and copyrights. These arguments also support the dissemination of TK on the internet and via other digital media and the selective use of trademarks. The force of these conclusions resides in the importance of a vibrant public domain, and the absence of any plausible limiting principle that would allow more robust rights in TK for indigenous groups without permitting equally robust rights for nonindigenous groups.

Discussion on the Need for Social and Cultural Theory

An exciting discussion is taking place this week at the University of Chicago Law School Blog "Beyond Economic Analysis of Intellectual Property: The Need For Social and Cultural Theory?" many of the same issues that occur in the intersection between commerce and heritage in the antiquities or art trade also exist when other intellectual property is bought and sold or subjected to legal regulation. The conversation began with a post by Hadhavi Sunder, who makes some excellent arguments that Intellectual Property needs to move beyond its traditional economic justifications.

Over the course of the last century intellectual property has grown exponentially, but its march into all corners of our lives and to the most destitute corners of the world has paradoxically exposed the fragility of its economic foundations while amplifying its social and cultural effects. Today intellectual property laws bear considerably upon central features of human flourishing, from the developing world’s access to food, textbooks, and essential medicines, to the ability of citizens everywhere to democratically participate in political and cultural discourse.

Despite these real world changes, intellectual property scholars insist on explaining this field through the narrow lens of a particular economic vision.Intellectual property is understood solely as a tool to solve an economic "public goods" problem: nonrivalrous and nonexcludable goods such as music and scientific knowledge will be too easy to copy and share—thus wiping out any incentive to create them in the first place—without a monopoly right in the creations for a limited period of time.

These are some heady concepts, and I think these are some excellent ideas. I've tried to construct the argument elsewhere that in the context of antiquities we need to value the broader cultural value of antiquities in constructing and formulating heritage policy.

Other posts in the series this week include:

• IP: Social and Cultural Theory (Rob Merges)
• IP: Social and Cultural Theory (Madhavi Sunder)
• Does Economics Describe or Perform IP? (Mario Biagioli)
• IP: Cultural Theory and Economics Analysis (Omri Ben-Shahar)
• IP: Social and Cultural Theory (Rochelle Dreyfuss)

The Pirate Party

Frank Pasquale of concurring opinions has a fascinating post on Rick Falkvinge, head of the Swedish Pirate Party.

You might be forgiven if you thought a Pirate Party was a bit comical, but it seems their positions are surprisingly thoughtful. They advocate a reform of copyright law, arguing copyright laws today "restrict the very thing they are supposed to promote." I think that's exactly right in some cases, as copyright protection should not provide an endless revenue stream. Mickey Mouse should not dictate the life of a right. It should reward creators for their original creations, not create endless monopolies. As they argue "a five years copyright term for commercial use is more than enough". They also advocate a respect for the right to privacy, and tie in such advocacy to recent European history, "We Europeans should know better. It is not twenty years since the fall of the Berlin Wall, and there are plenty of other horrific example sof surveillance-gone-wrong in Europe's modern history."

Falkvinge spoke in July about "Copyright Regime vs. Civil Liberties" at Stanford University. It sounds cutting-edge, and it would be great to get him to come to Aberdeen as a part of our visiting scholars program. From what I can gather, he argues copyright first came about as censorship and a way to preserve the stationer's guild in England after the advent of the printing press.

As Pasquale writes:

[H]e admitted that certain works that cost a huge sum wouldn't be produced if their makers had no hope of financial return, so he favored some copyright protection for commercial uses of those works. However, Falkvinge said the threat to privacy posed by modern copyright enforcement techniques was too great to allow any legal monitoring of personal use of works.

I will make a bold and unsupportable prediction that copyright and privacy issues will become increasingly contentious, and a major political issue as the generations which grew up with the internet mature and become a political force. Pasquale has written before on copyright and civil disobedience via an AALS panel. One argument seemed particularly compelling:

Larry Solum presented an impressive application of rival philosophical views to the issue of principle-driven disobedience of copyright laws. After canvassing the shortcomings of utilitaran and deontological approaches, he presented his own virtue theory, essentially arguing that we should seek congruence between societal norms and laws. He also noted how far our DRM-loaded, anticircumvention-obsessed predicament diverges from that happier state of affairs.

It's some really fascinating stuff, and the convergence between jurisprudence and copyright laws is interesting: Rawls and piracy or the morality of cartelization, seem very interesting and move the argument beyond mere utilititarian and economic justifications for the current state of affairs.

Catching Up

• Frank Pasquale of Concurring Opinions talks about how the difference between viewing a digital reproduction on the internet is much less effective than viewing a photograph in person, and perhaps this is a good argument for strong IP protection of works of art.
  
• Michael Lewis in Commentary magazine talks about efforts by the Prussian Cultural Heritage Foundation to compile a stolen art database of works taken from Prussia. Many of them are now in Russia, where they were removed after WWII.
  
• Stephen Farrell of the NY Times reports on Baghdad hiring dozens of artists to paint murals on concrete barriers in the city.
  
• Bradley Hope of the New York Sun reported on a ceremony to return an ancient Egyptian vessel which appeared in a Christie's auction last year.
• David Gill on looting matters compares archaeologists to animal rights activists; one would hope that not too many archaeologists take their ideas too far as some animal rights activists have done.