IP without IP part 3

Session III: At the Boundaries of IP (I): Traditional Knowledge

Rosemary Coombe & Peter Jaszi

Jaszi: If you have a new scheme, who gets the rights? One notion: take traditional understandings of the allocation of authority and apply them in the new legal regime. That’s now formally represented in the WIPO draft guidelines for traditional cultural expression/folklore.

Jaszi told a story about a traditional fishery management scheme where the managers (a local adat council in Indonesia) told him about effective measures used to prevent overfishing by locals. He asked what they did about outsiders, and they thought of it as entirely outside their remit. He now asks whether it makes sense to translate a traditional scheme that was purely internal to legal rights against the rest of the world, which was never part of the tradition one way or another.

On the whole, local adat regulation without any statutory regulation did a pretty good job of protecting the boundary between the secret and the public. His argument applies to public and disclosed traditional cultural expressions, not secret ones.

Coombe: She is engaged in a meta-ethnography regarding marks that designate origin. She rejects the idea of tradition as something that precedes IP. Tradition comes into being through networks of attention, in negotiation with IP and international governmental regimes. It’s called upon to recognize and reify itself in response to larger pressures.

She’s especially interested in how weird versions of IP are deployed in the service of particular values, and positioned in relation to other human rights.

Concerns for gender, class, generational, etc. equity. You can’t expect IP to do everything, but it should be subject to the same analysis as other regimes that govern social accumulation.

Marks certifying sustainability are starting to proliferate. They’re trying to restructure market incentives to achieve social aspirations—linking environmental and equity concerns under the rhetoric of sustainability.

You always have to ask about the regulation of such terms. The Peruvian government is using these marks in a completely cynical way, destroying communities by creating conflicting interests and encouraging modern ceramics. For tequila, the GI used to encourage monoculture, destroying other crops; now they’ve begun GIs for other forms of mezcal and revitalized varieties that had previously been nearly extinct, creating new economic enterprises. There are success stories—including museums for learning about the different histories of agave cultivation. It’s a rural development project—a lot is being built around a fairly thin IP protection.

Gordon: From what she knows of GIs, she thought that they don’t require a particular quality—making something absolutely identical in the wrong place, it’s not allowed to use the name (e.g., feta). She thinks that Coombe’s optimism about the effects of GIs, when done well, is leading her to exaggerate how much sense they make.

Coombe: She disagrees—a GI is a word you use when a product has characteristics that are uniquely tied to the area or the producers.

Dreyfuss: but how do you tell? She thinks (the beverage sometimes known as) champagne tastes the same no matter where it’s from.

Coombe: The ones she’s interested in have extensive quality controls.

(Benkler put up a news story about residents of Lesbos objecting to the use of “lesbian” by a gay rights group.)

Jaszi: the label gets us confused, pushes us to classic European IP categories which may not always have the same meaning in new places.

Coombe: Even the TRIPs definition is very confused.

Sprigman: Doesn’t like the Euro. view, which is an attempt not just to prohibit the use of “roquefort” on Maine cheese but to prevent “roquefort-style.”

Coombe agrees this is nuts, but thinks that GIs can provide development opportunities. One of Sprigman’s examples, in which development in Portugal is opposed to development in South Africa, illustrates her point: we need to assess the equity components by building in distributional considerations.

Dreyfuss: The Europeans don’t believe that cheese from Maine can be roquefort-style—there is a public-regarding function to keeping the word from being more generic.

Sprigman: But different champagnes taste different—it’s a method, not a thing. So what are the French complaining about?

Dreyfuss: They’re afraid the meaning will change, and it will be less good at doing what words are supposed to do. (Comment: the problem is that there’s no necessary connection between the halves of that sentence. Words change meaning all the time, and still do what they’re supposed to do. We have standards for judging when the change in meaning has been harmful instead of just different—many of them provided by George Orwell. If there really aren’t differences between Maine feta and Greek feta, then the GI is a lie, and people will wrongly treat them differently. Fred Schauer’s writings on the meaning of discrimination come to mind.)

Jaszi: In many places, traditional artists are afraid of competition from nearby, semi-mechanized production. That raises strategic questions.

IP may always be a bit of a sideshow—what else will government do to support these practices? That’s often what’s missing—funding, market access, etc.

Coombe: True, but people who come up with non-IP solutions usually offer contractual solutions that look just like GIs.

Biagioli: Interesting that here there is no author at all, for the first time in IP.

My comment: From the discussion, I have the thought, which is far from original, that the argument for GIs is not about information at all. The European rule is designed to keep consumers valuing—or really, not even knowing that they are valuing, just presuming it in the background—the idea of local production, regardless of any effects on tangible or measurable qualities.

Oliar: The goal of GIs is not consumer information, but preserving certain types of production. It doesn’t make any sense from a TM perspective to say that anything made in Scotland is Scotch, or that you can’t advertise “roquefort-style.” If your goal is encouraging sales of products produced by disadvantaged groups, it would be even better to say that no one else can make that particular cheese. (Copyright/patent, not TM.)

Participants talked about this proposition for a while. Framed this way, the argument for GIs sounds a lot like a classic tariff/barrier to trade, whose distributional effects are highly debatable because of the efficiency costs (not to mention the effects on other groups that would like to make the cheese and might have distributional claims of their own).