Michael Carroll, Professor of Law and Director, Program on Information Justice and Intellectual Property, American University Washington College of Law
Justin Hughes, Senior Advisor to the Undersecretary of Commerce for Intellectual Property, Head of United States Delegation to the World Intellectual Property Organization, and Professor of Law at Yeshiva University Cardozo School of Law
In Geneva, working on GRTKF: Genetic resources, traditional knowledge, and folklore—but we don’t use the term folklore any more; now it’s traditional cultural expressions.
1967, last Berne revision; question of folklore came up, resulting in opaque provision arguably providing for some protection. Traditional problem: no author on whom to hang ownership. 1967 revision tried to recognize that this would be conferring a copyright on people who were unknown.
Jamie Boyle: Western IP system focused on rewarding innovation and creativity and thereby undervalued source materials. Indigenous people began claiming a place at the table in discussions. (Terminology: not indigenous people but local culture: Carribean nations, Kenyans say: we don’t have indigenous people, but we do have local culture.)
Following TRIPs, there was a sentiment that rich countries had forced an overly strong one-sided system of strong IP on developing countries. Hughes thinks that TRIPs was a big package, not one-sided, and the overall package brought good and bad. The important thing is not whether the sentiment was right but that it was there and remains with us, triggering calls to rebalance the system. Typically: calls for more exceptions, more compulsory licenses, more tech transfer—weakening of exclusive rights. But in GRTKF it’s the opposite—rebalancing IP means establishing new rights and making them really strong. But it’s not just about wealth, at least for representatives of developing nations (though it may be for rich countries)—recognition, control, and privacy are also concerns of the developing nations. Central government rhetoric is more economic; distinct but allied camps of demandeurs.
IP has never had problems bringing new forms of property into the tent, though often unsuccessfully: sui generis protection for mask works for integrated circuits, database protection (EU, Korea, a handful of other countries). Important: the justification here is completely different. Copyright: need financial incentives to elicit creation of new stuff. TCE and TK: the stuff is already created.
WIPO’s been exploring this for a decade, creating a huge text with multiple proposals. By summer 2010: 18,000 words! Many bracketed, extensive commentary; nearly impossible to make sense of it. How could it take so long to do so little? First, process of international discussion has become more inclusive and thus more difficult. Second, too much political intent and not enough technical expertise. Not enough willingness to reach reasonable results: too much idealism and too much cynicism. Finally, fundamental disagreements that need to be addressed but aren’t.
What do we mean by TCE? Ask traditional folklorists and they’ll say there’s no coherent definition. Gov’t officials are trying to do what folklorists, indigenous people, and anthropologists say they can’t—that’ll go well. Current proposed definition has 50-60 different ideas about what it might be. Lack of discipline/understanding of how to write public international law—“popular tales” and “stories.” Someone inserted “moldings.” Pottery and terra cotta are included. “Folk drama” and “plays, ceremonies, and rituals.” This is why the document bloated. And this is the relatively easy part.
OK, convene experts to clean it up. Working group met in 2010: each country was supposed to send one expert in his/her personal capacity. That should tell you how political the process is—would you really want to pick one expert from each country to fix a global medical/pollution/etc. problem? Also, you need experts in public international law, experts in anthropology, etc.; picking one from each country won’t provide that. US supports the meetings, but they point to a fundamental error in WIPO—the WIPO committee system was supposed to be expert already.
Committee managed to reduce the list to 25 items. Only 2400 words of actual text, approx. size of WIPO Copyright Treaty. Went back to bigger intergovernmental committee. Everyone whose favorite word had gone out came back in. Text grew by 1000 words, but the real problem was that the delegates didn’t seem to see that markers of compromise had been laid down. Maybe they’re too idealistic—insist on perfect result; maybe they’re so cynical they think that the only possibility is continuing conflict and they want to highlight differences between developed/developing countries; maybe some are simply unaware that the proposal was the result of compromise.
Gender: Three groups attend these meetings—Geneva diplomatic corps; government officials; experts. His feeling: gender balance is better with Anglophone and Francophone countries and developed countries.
Who should benefit from protecting TCE and how should the rights be controlled? Easy to say indigenous people should decide, but after that it gets very hard. Developed countries find themselves in position of standing with indigenous peoples against (Hughes said defending) some proposals from developing countries: proposals sometimes put government in charge of controlling, even owning, TCE. But is it clear that central governments are worse than the traditional control mechanisms of indigenous peoples, for example that oppress women or that are matriarchal? The money a country earns often stops at the capital, doesn’t go to the farmers. But the central government might be the most enlightened on human rights. So the challenge is flexibility.
Limitations and exceptions: you want to make sure everyone within the local community can still enjoy their TCE and not be stopped by the elders. One proposal: Free exchange, transmission of TCE within the community—very difficult to capture in law. Another competing idea: maybe rights should extend only to uses outside the membership, or outside the traditional context. US prefers the second idea because the US is a diaspora nation; we want to protect the capacity of our immigrants to enjoy the culture they brought with them. Gender issues arise because immigrant communities may allow women, gay people, young people more power in the immigrant community than perhaps in the country of origin. The US is not sure its message on this is getting through.
Q: about biopiracy.
A: He’s just dealing with TCE. With biopiracy, a key conflict is that some developing nations want patents to be invalidated if they’re based on material for which there was not free, prior and adequate consent given for it to be used. Others agree with developed nations, because there are global health crises that need addressing (and, though Hughes didn’t make it explicit, the idea is that the incentive to research them would be harmed if the resulting patents were at risk).
TCE is not so much about big corporations stealing stuff from indigenous groups (even the Lion King song was from a specific composer who himself used traditional rhythms etc.) as about generations of sketchy anthropological practices. Repatriation of art is another issue, but WIPO isn’t going to engage with that.
Q: will rights help without resources?
A: no, won’t change exodus of young people to cities; slow decline of indigenous communities. Some people see GIs as a way to reverse cultural change, and he’s written a lot about that. You can do some things to empower communities, but not all. Can certainly create protection for secret cultural expressions.
Q: Your description of copyright as incentive is loaded, given that Western creators have noncopyright incentives to create too, right? E.g., open source. Also, what about protecting creative spaces, rather than protecting individual artists? That is, what’s at stake is not just persons but processes, conditions under which works are created.
A: GIs sometimes do protect creative spaces, and sometimes don’t. Many of the most successful GIs have destroyed traditional knowledge—GI creates demand; supply ramps up to meet it, tossing TK out the window. Port production is a classic example—traditional methods are gone and production is industrialized. If a Botswanan GI takes off: Instead of being made by a Botswanan, you will find stuff made by a machine in Botswana.
On the first point, could say that incentives are the official ideology; but he also believes there’s a wide range of creative activity that doesn’t require the incentive, without invalidating the incentive argument. Poetry has never paid for anyone to support themselves. Mainly written by rich gentry until very recently. Open source software is written by people with good jobs: the landed gentry of the modern technological era. But incentives are necessary for films that cost $50 million and drugs that cost $250 million. We can’t tell where the incentives are needed or will be needed. If you don’t need incentives, then don’t use them—write open source. Most of software industry is not open source (100,000 commercial programmers in India); large corporations like open source.
Q: how to distinguish between adaptation and copying of the TCE?
A: comfortable with the necessity of line-drawing to implement a “copying not ok, adaptation ok” rule. Hard decisions, yes, but can develop judges who can do this, especially protecting against slavish copying for commercial purposes. In the US, that might be extremely beneficial for Native American communities, where the current protection is TM-like. The issues are what can insiders do v. outsiders. Picasso was tremendously influenced by African art. Would we want him to have to have taken a license to do what he did?
Q: how do you draw lines between TCE and copyrightable work?
A: we acknowledge that TCE is evolving, not hermetically sealed, but then we confront the question of how to protect today’s versions—copyright is time limited. Who chooses what regime? Excellent question, no particular insight on it.
Margaret Chon, Associate Dean for Research, Seattle University School of Law
Bita Amani, Associate Professor of Law, Queen's University Faculty of Law, Canada
Restitution, Repatriation and Resistance: Reframing the Biopiracy Dialogue Towards Women’s Work
What states should do when faced with competing demands for rights—human rights v. property rights. Corrective justice for a state to its internal communities who were historically disenfranchised by the state on which they’re now made to rely for rights and reparations.
Move from sacredness of life created to scarcity of life invented and commoditized. Disvaluing of women’s work looms large. What women do with plants depends on their relationships within larger structures. Women as gatherers, farmers, keepers of traditional knowledge, adapters of varieties. She would treat all contested instances as cultural expression—even what’s conventionally called biopiracy—as a way to emphasize cultural construction, as well as freedom of expression rights. Instead of exclusion, focus on right to enjoyment: a moral and material interest, without tying that to exclusive rights of the dominant property regime.
Difficulty articulating rights impels a shift to focusing on remedies instead. Unjust enrichment as the appropriate approach. You don’t have to figure out who owns what; can recognize stewardship as a grounds for awarding relief. Disgorgement of profits discourages misbehavior, instead of breach of contract theories which encourage efficient breach.
Jillian De Gezelle, Executive Director, Remedia
Q’eqchi Maya Reproductive Ethnomedicine and the Accelerated Loss of Women’s Traditional Knowledge in Southern Belize
Q’eqchi midwives were dying out when she went to do her research. Male traditional healers were still available. Women’s reproductive health was traditionally the province of women, but now men are taking their place even though they feel it’s not culturally appropriate; lack of women is the cause. Loss of traditional knowledge is greatest among women, who desire better education/resulting greater job opportunities. Remedia is documenting women’s traditional knowledge to reverse the fragmentation of grandmothers’ and great-grandmothers’ knowledge.
Many traditional plants for reproductive uses—her work provides some evidence that some of the plants mimic human estrogens, accounting for their efficacy. One species killed breast cancer cells.
Causes of trouble: Immigration has disrupted traditional networks of education; Belize ministry of health has strongly discouraged traditional midwifery so women are afraid to teach new healers even though it’s not illegal; women lack confidence and devalue their own competence, especially when others do as well; women are tied to domestic obligations and can’t travel widely.
Remedia is developing a women’s traditional plant garden, for use in traditional treatments, research, conservation, and educating a new generation.
Avoid bias: look for practices of knowledge in hidden realms. Focus research on areas of knowledge most in danger of being lost/disappearing most rapidly.
What was once women’s knowledge is now men’s knowledge: IP is a version of that. Ethnobotanists feel we don’t have the tools and knowhow to deal with IP—if we publish species names, that may enable biopiracy. New thinking: publish specifics to establish prior art. This is confusing and ethnobotanists are looking for ideas to preserve and revitalize TK.
Nadia De Leon, Adjunct Professor, Western Kentucky University
Protecting and Commercializing Fluid Tradition: Molas as Women's Global Folk Art
Molas are made exclusively by Kuna women; have become commercialized through tourism. Materials have been updated for modern conditions. Results in change in gender roles and change in Panamanian policy for folk art.
As a result of independence struggle, the Kuna committed to send their children to Panamanian schools and the government committed to protect the traditions and ways of life of the Kuna. The Kuna have autonomy and representation in the central congress; health care provided by the central government.
Kuna cosmology considers women the bearers of original knowledge; control family finances, but not positions of religious or political power. Inheritance is matrilineal; marriage is matrilocal. Four gender roles: men, women, biological women who are men and biological men who are women, defined not by sexual orientation but by obligation/roles fulfilled.
Mola means blouse; now hung on walls but originally made for wearing. Techniques are derived from trade; components come from other countries (needles, scissors, thread, etc.)—emergent tradition that continuously evolves. Making a mola is a sacred duty for self and others in family who can’t make for themselves.
Panamanian government has used mola as general symbol of Panamanianness—used designs in businesses, government, etc. Argument that this is appropriative, but some Kuna also use mola to identify themselves as Panamanian.
Mola income has changed a subsistence economy towards a cash economy. Women-run cooperative producing molas has become quite powerful; sells molas that are incorporated into lots of other products.
Panama prohibited the import of imitation molas (mass produced, printed). Kuna General Congress also prohibited teaching mola making to non-Kuna women. Exclusive and perpetual IP rights for TCE, not just molas—drawing, history.
Q: Justin Hughes cautioned about industrial production taking over. Is that a risk?
A: there have been a lot of changes over time; pieces created for sale are very different than those created for themselves—use colors they’d never use for themselves. Collectives have encouraged return to geometric designs because outsiders see them as more “authentic,” but she hasn’t heard of a move to greater industrialization. Hard to make these other than by hand, especially in the region of production. May have 30 women sitting together stitching one little piece at a time for Christmas decorations, but that’s it.
PANEL 4 Gender Perspectives on the Future of Traditional Cultural Expression Scholarship
Christine Haight Farley, Associate Dean for Faculty and Academic Affairs and Professor of Law, American University Washington College of Law
Dorothy Noyes, Associate Professor of English, Comparative Studies, & Anthropology
Ohio State University
Major takeaway of feminist movement: personal is political. Intimate personal relationships can be more oppressive than power at a distance, but proposals to protect TCE ignore close-in power—privileges senior men, local elites, first possible claimant; means accepting their definitions of the boundaries of the community. Prior consent of the community allows lots of slippages; benefits certain actors. Consider how Western actors negotiate in war—US visits the Pashtun male elder—means handing over more power to the senior men.
WIPO gives too much attention to identity maintenance as the point of folklore—for women, can be about transmission of knowledge; can use archaic forms to say things otherwise unsayable. Lullabies; often coded. Habermasian version of Western society tends to privilege visibility. For weak actors, visibility is vulnerability. May want it, but it’s fraught with economic and political dangers. Weapons of weak work only because they’re seen as trivial or ignored. Many women’s traditions need not to be owned but disowned, claimed but disclaimed. Many women’s oral traditions are different from men’s and men may not know this; may not need to know this.
Women are being told: don’t go to university; we need you to stay home and keep weaving. Nobody in Peru can afford to eat quinoa any more now that Westerners are all eating it. Disciplining of women’s folklore as it becomes visible as an economic asset—happening now to make it more palatable for circulation; traditions are no longer available for covert expression or other kinds of performative work. Public male authority can coincide with covert female influence in some traditions. Making the covert visible can raise resentment, anxiety—backfire when outsiders make gender into a category.
Review strategies of disowning: compare strategies like microcredit oriented towards women to see how this works best. Collaborate with communities involved to define the conditions of the lifeworld that enable or impede traditional forms. Consider the risk of preserving hollow forms: you need the extended family structures, the free time, the other conditions to really preserve the TCEs. Otherwise you build a maquiladora and a museum of culture right next door; this is not success.
Instead of talking about how to arm the vulnerable, think about disarming the predators. We are focusing on the supply of exotic cultural goods; we’re naturalizing the demand. We need at least as much to do the ethnography of insatiable Western demand, as we’ve done for racism. Consumer demand is in many ways gendered—who’s taking all that hoodia?
We are in a moment of cultural warming. North likes to believe it can import from South things it’s without—health, culture, closeness to nature, sex. The intensity of our demand risks creating cultural desertification.
And then I had to go--thanks for another great conference!