Monday, April 16, 2012

Intellectual Property at the Edge part 1

Jane Ginsburg: emerging concepts of IP rights and limitations; each paper paired with commentary from a different jurisdiction, usually US/EU.
Barton Beebe
Odol case: obscure to Americans; we think of it as a German case that had some influence on Schecter’s thinking about dilution; cited in V’s Secret, but Americans rarely look at it; hasn’t been translated into English except a partial unofficial translation for USTA and a bit by Schecter.  But there’s not much information about the case out there.
One thing that catches the eye: its 8 paragraphs seem to have had a huge influence on Schecter—sets out his big dilution argument in Rational Basis for TM Protection, though he doesn’t yet use the term—uses Odol after setting out his argument, but it’s pretty clear that the key insight came from the case: Where two parties are not competing, there is a way this conduct can still be enjoined, separate from consumer confusion. In Schecter’s time, lots of people were saying competition was obsolete, but reverted to confusion theory. Schecter’s advance: there is a harm to plaintiff separate from source confusion.  “Selling power” comes from Odol, and a couple of other terms.  Bob Bone argues that Schecter was writing as a realist—trying to adjust law to commercial realities rather than larger abstract norms.  Beebe unpersuaded: always saw Schecter as a formalist.
Why do we care?  How is it that this little, under 20-page article became incredibly influential?  Part of the reason: no one can make any sense of what it actually means.  We still don’t know what TM dilution is.  He believes there is such a thing as dilution, though he thinks of it in terms of fashion cycles—something spreads too far and people move on to some new form of uniqueness.  Schecter’s article might not be able to carry the weight of that.  Sara Stadler Nelson has written a reinterpretation: it’s about preserving the link between a mark and a particular good—this means that companies are now engaged in self-dilution.  This is a fair reading of the article, but Schecter also talks about dilution in the context of related goods.  People don’t cite those passages because they are uncomfortable.  Modern dilution by blurring/tarnishment and taking unfair advantage (Europe) come much later than Schecter. 
We can account for its power from its ambiguity and obscurity; Schecter sought to suppress the fact that dilution was misappropriation masquerading as something else. This has effectively allowed dilution to survive and thrive.  The founding document serves as a prophetic text, obscuring the origins.  Modern dilution is based on the Callman treatise (midcentury German writer, obsessed with INS v. AP, glommed on to dilution as the most effective way to protect TM) and people still go back to Schecter. This keeps the doctrine mysterious enough to live.  (RT: Kind of like substantive due process?)
Schecter died young; he was savagely attacked by Felix Cohen in Transcendental Nonsense and the Functional Approach, and Schecter said he’d respond but wasn’t able to. The prophet was never held to account to spell out what he proposed.
Graeme Dinwoodie
This isn’t comparative just for scholarship purposes, but developments in other countries are infused into legal developments in US and EU.
Does experience in EU bear out Beebe’s analysis?  Yes.  When you read a lot of ECJ opinions, a lot seem shallow and unreasoned and hard to follow.  They fail to refer to the roots of a lot of different doctrines in national European law. To the extent there is European law, they should compare and contrast.  But they’re not so bashful about American predecessors.  In all the leading dilution cases, they refer to Schecter and American law, borrowing the terms “blurring” and “tarnishment” and incorporating them into EU law. 
European law does validate the claim that dilution is misappropriation. Dinwoodie is sympathetic to the view that dilution has in the past been successful in the US as a law of unfair competition—counterfeiting and cybersquatting.  Misappropriation is almost explicit—L’Oreal in the ECJ compares to INS v. AP almost perfectly—metaphor of riding coattails/tailing in the wake or slipstream of the plaintiff.  Europeans have three different forms of dilution, though—blurring, tarnishment, and misappropriation.  American law disavowed misappropriation as a separate category—but Schecter didn’t.  American courts and perhaps eventually European courts gravitate to the pragmatic advantages of formalism—relying on mark identity to prove the elements of a dilution case.
Friendly amendment: it’s more unfair competition than misappropriation.  L’Oreal: arguments made in British court included that British law should implement Paris Convention article 10bis directly; Lord Jacob said that wasn’t up to him and would be a bad idea anyway. This suggests a basis in unfair competition, though the main argument was “unfair advantage.”
Lessons: dangerous allure of formalism in addressing normative questions.  Maybe TM/unfair competition is supposed to regulate morals instead of economics.  Maybe IP should embody a concept of fairness that is more complex than economist. Nor is he sure that the concept of economics is any more detached from moral concepts. Also not clear that you can’t develop more certainty about what’s ok through moral rather than economic judgments.  Beebe is illustrating is that it’s easier to make the case for extended norms if you hide the moral judgments in formal elements; ECJ is unfortunately doing this with TM generally, not just dilution. 
Should we nibble at the edges of what is an adverse effect on the investment function of the mark?  That’s dangerous in the longterm, as the American experience validates. Because of this sleight of hand and political economy considerations, advocates of dilution have never had to defend a conceptual coherent theory of dilution, and that eventually caused the US courts to rebel.  (RT: Though they seem to be submitting now.)
There’s a bit more realism in Schecter than Beebe suggests—one particular dodge is that he describes a series of functions of a mark without asking if there are normative bases for protection of those functions.
Ginsburg: Dressing up misappropriation by other means—similar to fashion design.  Audiovisual performers’ treaty kept foundering on ownership; current text may be one everyone can agree to because nobody really knows what it says, and possibly consciously drafted in order not to say anything.  Traditional knowledge may also have resonance in that concept of “willful nonsense.”
Dev Gangjee: connection between free riding and blurring happens because you have a fuzzy idea of what blurring is supposed to harm. 
RT: has the rebellion been suppressed in the US?
Beebe: too soon to tell.
Dinwoodie: Have to give some deference to Congress; not clear what level will settle back into.
Stefan Bechtold: Odol is decided under a general German tort provision, with only a reference to unfair competition at the end.  Court decided to use the general provision, perhaps because unfair competition requires more proof.
Annette Kur: The route of unfair competition was abandoned in Germany for a long time, because the argument was that there was no competition even if there was unfairness.  Returned to unfair competition in the 1980s.  “Unfair advantage” became attractive when courts allowed use for marks that weren’t famous—found ways to argue that there was still free riding and thus the defendant was placing itself in the position of a competitor.
Dinwoodie: gets back to what counts as unfair competition.  9th Circuit used to say no unfair competition without competition. But 20th century had evolving notion that unfair competition didn’t have to be direct competition—it was about the behavior towards the market.
Rochelle Dreyfuss: search for a theory is always a search for limitations on the rights.
Ginsburg: French have also been willing to take an open-ended tort statute to achieve an apparently fair outcome.
Robin Jacob: did much of a career in TM without hearing about this guy Schecter.  We’ve got into a terrible mess with unfair competition.  Unhelpful concept.  How competitive should an economy be?  Huge cultural difference between common law countries and Continental approach.  American courts rebelled because they believe in competition.  The Victorians managed the industrial revolution and the beginning of the mass market without any of this.  House of Lords accepted copying of trade dress with different word mark.  Sometimes despairs over what’s going on.  “Functions” of TM?  You don’t talk about the functions of land with land law, you just have the rules.  (I’m not sure this is true, as a property teacher who recently taught State v. Shack and Jacques v. Steenburg.)
Beebe: Americans industrialization arguably came when Schecter was writing, but it would be interesting to look at the prehistory.
Kur: Discussion of function is a means to limit TM protection if properly used.
Geographical Indications
Dev Gangjee
Spanish Champagne: labeled as such and exported to the UK. Should this be allowed? Intention was to protect a collective reputation, difficult to plug into a system about preventing deception as to a single source.  Recourse to anti-fraud concepts.  Various attempts to leverage international law behind a basic passing off/misrepresentation theory.  The core is misrepresentation that damages the original entity—this is usually tied to an idea of distinctiveness.  There was no one single entity that had all the goodwill of “champagne,” and therefore hard for an individual trader to have standing.  It was about whether defendant’s product belonged to the same class of products rather than coming from a particular source.  Damage is hard to prove—how do you know X is losing sales instead of Y?
Thus, plaintiffs phrased argument in terms of passing off/unfair competition.  Creative response to these problems: the court’s approach extends the concept of passing off.  How do you define the class of producers?  How do you define the product itself? How do you fix the geographical boundaries? Do you have to look at the characteristics of the product?  Court channels all this through the eyes of the consumer: ask what they think when they hear “champagne.”
Registration system is different: layers of negotiations about who represents producers’ interests.  Passing off approach bypasses this—once the product is defined by expectations, you know the protected class of producers.  Early cases: anyone within the region is entitled to make a case; later cases switch and say you don’t need geography—once you define the product, whether by geography or recipe/specifications, then competitors can sue.
Do consumers need to know/understand specifics of the product? Do they need to know that champagne undergoes double fermentation?  Justice Laddie says no. If they think it has special qualities, they need know nothing more.
Communicative model: what does the sign mean?  Does someone else’s use affect that meaning in some wrongful way?  Thus consumer understanding is a predicate: if the audience hasn’t heard of the product or thinks it’s generic, that’s it. Registration based system is fundamentally different though starting from the same unfair competition paradigm.  Registration system sets up different institutions—starts to regulate how the product is produced in specific ways. A product focused model to which the sign is appended.  Much disagreement between US/Australia and EU is “it looks like a TM, but you’re not protecting it that way,” but the question is whether a sign ought to be reserved to someone, the way the Olympic symbols are.
Gervais’s paper focuses on the differences between TMs and GIs; tries to show commonality on many counts. That’s valid—they have similar origins—but European regime spun off and didn’t give an account of why it did so.
Daniel Gervais
We agree on much; question is what the case teaches us.  His reaction to the case: why does part of the world think that these are not TMs?  Some argue that TMs are merely symbols, and GIs are symbols squared—symbols not about the product itself, but symbols about the symbol that the product itself is—the product is a symbol of the terroir.
Different division of labor.  Common law: Protection against false information that very often isn’t a matter for IP law—consumer protection.  GI regimes, sui generis, give GIs higher status than regular TMs.  French wine system: gov’t authorities monitor and enforce the GI, creating a conflation of roles that make them allegedly more valuable.  But this shaping is exaggerated.  True that there is government supervision as compared to rights coming from use in TM.  Gov’t backed quality control argument is unconvincing because TMs do the same things. Goodwill results from rational use of the mark by the owner; if the TM owner licenses without control, there’s a risk of damage or even loss.
Does make a difference in that GI typically forces producers to codify their practices—why is this Champagne?  But certification marks do the same thing.  People say: you can’t by contract make champagne in California—but he’s not convinced that’s a big difference from TM.
Argument: GIs have greater cultural/economic value. But both contain info designed to appeal/change consumer decisions—informational and magnetic.  TMs are deeply culturally embedded: Andy Warhol’s Campbell’s Soup Cans.  Gruyere v. Apple computers: which is more iconic?  GIs may be older, rooted in the land: but the value doesn’t stem from that but from the reputation acquired by exploiting that link, and that’s what TMs do too.
Spanish Champagne case teaches that there is such a thing as collective goodwill.  Traders share the ability to enforce a collective mark; expansion of passing off that is significant.
So what happened to Spanish Champagne?  The irony: it is now cava, which sells for more in France than ever before: as good as champagne and cheaper.
Ginsburg: any civilians who want to make the case for the civil law GI/GI as a regulatory matter instead of TM rationales.
Kur: for that you need the French.   Attitude: it’s not about the communication to the public; the limelight is on those who produce, honoring the terroir and those connected to it.  Cultural differences; also a war about the past.  A feeling in French and other countries: something has been taken away.  The names of the grapes have been stolen; must keep this from happening.  If we would look to the future, certification marks would work perfectly well.  No need for sui generis protection. Same thing with traditional knowledge.
Dreyfuss: collective action problem: no one trader can stay on the hand production system if others start using machines to make the “same” thing.  (Can’t the government come in and allow that in a GI system?)  Do we need to proliferate rights, or is it better to use several simple classifications and see what fits into each one?  Fashion might also do well with a certification mark.
Gangjee: there are reasons for protection that flow from the GI as sign and reasons from the GI as product.  Commodity fetishization: taking it out of the commodity paradigm (RT: in the service of commodification!) because, even if the consumer doesn’t know/value the process of production, we care how the product is made.
Ginsburg: abuse of GIs as labor protection.
Dreyfuss: instead of abuse you could call that a justification.
Kathy Strandburg: a number of papers get at a central IP problem: a lack of ability to deal with collaborative or collective means of innovating and producing.  Paired with that: part of the difficulty is trouble distinguishing between a group’s desire to protect its own innovation/lifeworld and anticompetitive motivations—and often both are present.
Susy Frankel: New Zealand champagne case—most of the opinion is concerned with distinguishing New Zealand from Australia in terms of sophistication of consumers.  Case relies on ridiculous survey evidence.  As it turns out, the supplier involved was one of the few suppliers of wine to NZ that supplied NZ directly instead of via Australia—competition between two jurisdictions is a trade issue.
Gervais: One GI function is to capture perceived quality and increase prices. The cost of production is the same between Champagne and the other side of the fence. But the price differential per acre is 300x.  On the wrong side of the fence you have a much lower profit margin.  Other GI discourse: this is our national identity on sale.  They’re not incompatible but we need to separate the two and ask whether they both need to be there for a GI to exist.
Robin Jacob: The question of who is damaged: procedurally, they were worried about that. Actually brought in Spanish Champagne case as a sort of class action.  Only later was that requirement abandoned.  Recent case about “vodkat,” with lower alcohol content/lower duty.  People were fooled.  Principle: People who are lying should be stopped.  Though Spanish Champagne obviously doesn’t come from France, so the deception has to be subtler.
Reclaiming names has become very significant.  In the EU, 90% of feta cheese was made at one point outside Greece.  Parmesan: 6% of the turnover goes to protecting the name “parmesan.”  Sometimes these are rather artificial.  Some of the areas of designation are actually huge, e.g., the area around Parma designated for ham.  In the end, people like knowing silly things like where something comes from, so he thinks it’s a fine right.
Silke von Lewinski: Emotional identification can also link up with other topics of this workshop. Very similar in traditional knowledge—commercial interest, but also interest in self-identification.  Authors’ rights too.
Design Protection
Scott Hemphill & Jeannie Suk
Suk: Different means that designers explored in the 1930s—alternatives to legislation.  Fashion Originators Guild tried to deal with copying.  Designers would refuse to sell to retailers who were also selling copies.  In the US, fashion was generally just copied from Europeans, but American design was just getting started.  Commitment to originality was an affirmation of American design and American creativity.  (Shades of Mark Twain looking out for Charles Dickens’ interests in securing American copyright, to limit publishers’ ability to make European works cheaper than American ones.)  Designers would register a design, warranting that it was original; the guild would accept the word of the designer on originality. Each dress would be embossed with a label.  Secret shoppers would go around the country looking for violations, and the guild ran trial-type procedures on copying.  Industry felt it was effective in curbing copying.
Originally had to be dresses above $16.75. But because the system was effective, lower priced designers couldn’t copy and had to design their own.  So they wanted to register their own designs.  High-end designers didn’t want to have to deal with protection for every garment. Finally the Guild, which was committed to originality, accepted protection for all original designs down to $6.75, creating a lot of new eligible designers. This then invited the scrutiny that led to the demise of the Guild.
Hemphill: Lesson: debates recently were presaged in the 1930s.  Nature of the problem: this was an enormous system; at least once upon a time this was a huge deal to designers—it’s not that they didn’t care.  Guild ultimately had 100,000s of designs registered, with a big apparatus and litigation.  Solutions: later history of the Guild gives some sense of the contours of self-help. This may well have been the largest private IP system ever implemented.
What happened next? As the price point lowered, retailers started to oppose the program, and they started to fight the “red cards” issued by the Guild.  A set of cases in which this private imitation of law met real law, mostly in the form of antitrust.  A flurry of litigation, most importantly in Boston & NY which created a circuit split and ended up in the SCt.
Private litigation brought by Filene’s: illegal boycott.  First Circuit easily rejected the antitrust claim: doesn’t increase prices or curtail production.  We didn’t see a price rise, they’re just trying to make a living.  (How is the system described not a system of price maintenance?)
Government litigation in NY: Second Circuit opinion written by Learned Hand, not his first engagement with fashion IP—Cheney Bros. v. Doris Silk, when fabric patterns weren’t protected by copyright and he said they couldn’t be protected by misappropriation via INS v. AP.  This for him was a re-do of Cheney Bros., seeking protection for that which copyright did not protect.  Hand’s proviso in the opinion—some types of boycott would avoid condemnation: If the item was copied before publication or acquired otherwise tortiously.  Modified FTC decree to allow such boycotts.  Permissible means, provided the end can be shown to be valid.
SCt ignores all that.  A boycott is a boycott.  But the SCt also doesn’t modify the Second Circuit’s reformation of the decree; just ignores it.
Hints for self-help: maybe would have done better if they’d backed away from copyright.  You can’t do an end run through a boycott if you have explicitly been denied some existing form of IP.  (RT: If only that were true for DRM.)  If they’d backed off from originality and focused only on registration, maybe better. There was a silk registry system that took basically that route.  Second, maybe we should focus on prerelease protection.  Designers still do complain about this kind of copying.  Third, maybe there was something to be done without retailers.  Retailers were initially on their side and then soured as the shape of the problem changed/price point went down.  Silk registry recruited downstream manufacturers instead of retailers—a more useful gatekeeper.  Another gatekeeper: labor.  Getting together with workers who agreed to strike if the manufacturer resorted to copying—this lasted through the 50s, though wasn’t as massive as the Guild.
Annette Kur
Comparative analysis of Europe before and after harmonization.  Sweden might be interesting because it had a sort of self-help system/business council.  Germany: had debate over whether it could be protected under copyright, with majority opinion being no because of functionality; then Supreme Court decision said it should be, but the high threshold made that impractical. Unfair competition instead, for protection of fashion novelties—two consecutive seasons’ worth of protection.  Totally different from other types of unfair competition—didn’t require consumer confusion.  Italy: tried to launch a copyright type of system without registration, whereas Germany proposed to implement unregistered design protection for only a very short period.
What good has it done?  Unregistered design protection is the only feature of law targeted to fashion; very long grace period; possibility of different registration date and publication—people register lots of fabric designs and then don’t use them.  Not much data: seems to be hardly any registration of fashion design, and litigation is difficult to track, much less sub-litigation activity.  A related issue: aesthetic functionality.
Ginsburg: private system developed in response to a real need and worked for a while. When it was limited to snob factor, it worked; mass market broke down.  Why if the EU comes up with an actual specific right no one is taking advantage of it?
Kur: doesn’t know you can say that.  Preliminary injunctions wouldn’t be reported; can’t see the unregistered stuff. 
Jacob: Plaintiff who won would publicize it!  (I think there might be a disparagement problem with that in some Continental jurisdictions.)
Dreyfuss: You argue that success shows it was needed; but why isn’t a story about creating value through enforcement rather than protecting it.  Why is there a causal inference?
Suk: designers perceived need.
Dreyfuss: right, but might perceive need to make fashion more valuable.
Hemphill: there’s a large economic stake.
Gervais: struck by comparison between fashion guild and Stationers Company.  Stationers sought state copyright regime when their monopoly broke down.  Treatment of foreign works: Stationers had anti-foreign element at least in outcome.  How would you address foreign designs?
Lionel Bently: In the UK, fashion designs were protected in the late 18th Century.  Familiar story about geographical migration of production—fabric moved from London to cheaper places in the north, and the London industry dug its heels in, seeking protection to manage that process and keep some advantage over cheaper sources. To what extent is there a geographical dimension?
Hemphill: we haven’t seen a geographic element, though a parallel story of people using cheaper labor/labor unions in NY interested in design protection as a way of rescuing/preserving existing corporate forms.
Von Lewinski: Chinese story.  Told of a city that had a sui generis right against copying designs of others, with private dispute resolution; there’s a WIPO report on this.  (Boatema Boateng has discussed a similar system in Ghana.)
Stacey Dogan: explaining the breakdown when the system went to lower-valued designs: is there a notice and transaction cost problem?  If the designs were easily identifiable as high fashion, maybe retailers were less concerned.  But when it became harder to ID what’s protected, that wasn’t worth it for retailers getting notice of copies.  Would expect abuse of system, at least at the C&D level, with the European design right.
Bently: this is basically all he did when he was starting out in practice: drafting claims or defenses in unregistered design right cases.  With an unregistered design, you ID your design as only that which the defendant has copied, because there’s no prior specification.  So there is plenty of action below the court level.  To his mind, most of it is abusive—litigation is very expensive and defending these cases is difficult.  Usually the seller just defaults.
Hemphill: expanding the unregistered design right at least hasn’t spread to full copyright.  It seems really unfair that other articles have life plus 70.
Bently: ECJ case last year says you have to give full copyright to design, if you call it copyright; but originality requirements may mean you have to give it copyright!
Ginsburg: any way to get info on statistics/claims?
Kur: No.  Need an investigation into threats.
Hemphill: maybe talk to individual retailers. 
Suk: our conversations with LVMH etc. suggest they think C&Ds are constant.
Joe Liu: distinguish between different kinds of self-help; collective v. individual.  Collective action to create an IP right v. collective action to enforce it. Your story has elements of both. Norms can also create an IP-like right—comedy routines, plagiarism in academia. Generally understood to be fine because not absolutist.  More formal way: lobby to get statute, which is also usually fine because it should in theory reflect political values. It’s the in-between nature of the guild that may give it trouble.  What kinds of rights do we allow people to create?
Hemphill: they say they aren’t creating—they’re enforcing the right recognized in INS v. AP
Ginsburg: DRM requires there be at the root a copyrighted work. (This was in response to my point, I think, though Joe Liu’s paper notes that traditional protection of works appears in astonishingly few anticircumvention cases.)
Bechtold: why did it work, even for a while, here and not in other industries: mass market v. small factor?  Retailer v. workers?  How heterogenous are the players?  How geographically concentrated?
Jacob: what about retailers who sold only copies?
Suk: they weren’t part of the deal.  That was part of the First Circuit’s point: there were other markets.  (But copiers couldn’t compete in the high end market.)
Jacob: we had a British case suggesting there was no copyright in dress designs, then reversed course in the 60s/70s.  This led to a ton of actions.  Plaintiff would claim to have been completely original; defendant would always claim to have based its design on the public domain; the real question was not who was lying but who was lying the most.
Traditional Knowledge
Susy Frankel
Focus on minority indigineous peoples in larger countries: mechanisms to create recognition of their systems of knowledge/value by other systems, including traditional/dominant IP. Discussion about TK has moved from saying IP doesn’t accommodate to saying that it can in certain circumstances; in some jurisdictions it does. Now we are asking about effects of TK protection on global marketplace.
Her story: Te Rauparaha’s haka, Ka Mate Ka Mate.  Absorbed into the colonizer’s culture as well.  Te Rauparaha beat the British in a few scraps; was involved in several wars.  Formal IP law up until last 15-20 years, was British law with “New Zealand” find/replaced.  NZ is now developing its own tweaks.  But this isn’t entirely true for Maori. British law was NZ law, but governors could make special ordinances, and there was an early one to protect a dictionary of the Maori language.
The haka is the performance, not the chant.  Ka Mate Ka Mate used by the All Blacks rugby team.  NZ children learn haka, though not necessarily Ka Mate Ka Mate.  Historically haka were shared in a social way, and also part of the tourist culture.  It was formalization of the tourist experience that raised the question of whether this was “New Zealand” or more limited.  Maori accept the All Blacks use, but are concerned with commercialization and misuse.
Waitangi Tribunal: in a short period, NZ law changed from treating the treaty with the Maori as a nullity to a document with constitutional status.  The tribunal was created by that treaty.  It’s a commission of inquiry investigating claims made under the treaty.  Its power is one of recommendation to government to settle treaty claims; gov’t mostly adopts recommendations, though not the one to recognize ownership of the foreshore and the seabed in Maori. 
Tribunal has ruled: if you can find a guardian of the haka etc., that guardian can prevent commercial exploitation; but any NZer should be able to object to derogatory treatment.
Claim of ownership over haka come from one tribe, descendants of Te Rauparaha.  But who owns the goodwill in the haka as publicized by the All Blacks?  Now the trust who owns the tribe’s assets has registered several Ka Mate marks, but has a truce with the All Blacks.
Registering TM = recognition that there will be commercial use.  Tradition of sharing makes commercialization seem acceptable—but other people commercializing it is different. 
Interface between systems rather than rights solutions: for example, not registering offensive marks.  Rights: a picture of Queen Elizabeth with Maori tattoos (moko)—a commentary on colonization, but also raises TK issues.  A picture of a rugby player in Maori skirt holding a Maori head instead of a ball.  Is that derogatory treatment?
Silke von Lewinski
Europe hasn’t had debates over TK/TCE, and discourse has been imported from WIPO. 
WIPO’s mandate is not just traditional IP but “all other rights resulting from intellectual activity” in the industrial, literary, artistic, scientific field. But experts generally start from IP perspective.
Why does the author create? To express herself, perhaps to gain money, to entertain.  TCEs in contrast usually have a different function (the community believes in holism, everything is connected), namely of reaffirming links within the community.  Some songs instruct, for example, on where to find water.  Identity and heritage.  Limited times therefore don’t make sense—as with TM law.
RT: I think it’s toxic to set up a dualism between copyright creativity and TK.  Conventional academic practices of citation, or literary or musical genres, or performances of songs, or blogging, are part of identifying with a community.  (You can express yourself and create links at the same time; in fact you almost always do both, and I’m not so sure about the almost.  Expressing yourself is not just about making something unique and different and disconnected from the community out of which you come.  And if we talk about the difference between copyright (for expression!) and TK (for connection!) in this way, then we lose important facets about both.)
Von Lewinski: it’s about being part of a marginalized community.
RT: Tori Amos does an album of cover songs by men about women—that’s communicating about and within a marginalized community.
Frankel: NZ is not doing exactly the same thing as WIPO framework.
Ginsburg: is there something different about attribution and TK?
Von Lewinski: the creator is never protected as such even if identifiable in the TK framework; the rightholder is the person/group with the responsibility of caring for this TK.
Strandburg: question of whether you can ID creations with individuals is not just a TK debate.  Quality control: the group says it wants to control the quality for its own reasons, not just for the results on communication with other groups.  Connected to GI discussion as well as to what physicians do (which she’s going to talk about).
Frankel: there are instructions about what to do and not do with the flag.  Maybe that’s analogous.
Ted Sichelman: we try too often to classify by object (is this a song) than by function.  We should do the opposite and allocate rights to functions.  (I’m pretty sure I’m persuaded by Mark McKenna to disagree with this, at least on a first pass, since rights claimants are very eager to explain how their thing performs infinite functions.)

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