Jane Ginsburg: emerging concepts of IP rights and
limitations; each paper paired with commentary from a different jurisdiction,
usually US/EU.
Dilution
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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