WIPIP: IP for the Larger World

Koo, De-Colonising Copyright Law

Is fair use even possible outside the US? If we want to export fair use, what is it we actually want to export? Many US academics many not think it’s the greatest idea—if we had a blank slate to redesign, what would we do?

Issues: © not fit for purpose in developing English-speaking Commonwealth countries—Caribbean, Southeast Asian. Issues with access—sometimes access is only possible through piracy. Single author doesn’t fit well with collaborative creative cultures—reggae music. Indian and African influences on Caribbean music; restricts innovation to current forms. What is considered original creation? Who is considered an author? Like US, law was traditionally imposed, but we continue to impose them on ourselves. Doesn’t reflect needs/lived realities. Cut and paste from UK or from international treaties. Lack of inclusion and lack of influence of these countries—may not even has existed as independent/as republics when these agreements were being negotiated.

TWIL (third world international law) or postcolonial approach? TWIL approach: attempt to destroy international law will seem impossible b/c of link to trade. But this framework is undemocratic and oppressive. How can the reformation take place?

Undemocratic: int’l treaties demonstrate a battle between have and have-not countries

Harms: ignores collective creative cultures, limits access to works, hamstrings innovation and cultural creative processes. Maybe not allowing students to photocopy at will, but maybe allowing museums and libraries to digitize.

Borrowing copyright concepts may simply amount to trading colonizers for imperialists.

Rosenblatt: mix of cultures in Trinidad & Tobago

A: Yes, so what does creation look like? Influence is everywhere; can be accused of infringement from other places?

RT: suggestion to leverage TRIPS?—ability to retaliate for non-IP related trade violations of the US, which are clearly going to feature strongly in the next 4 years—prior TRIPS rulings on online gambling/the US homestyle exception for small businesses allow other countries to retaliate including by suspending their IP laws w/r/t US IP. Why not allow students or libraries to photocopy US works at will?

Digital versus analog: access that is limited to countries that need it will either require strong digital walls or analog copies.

Do you think that designations of origin are better forms of IP? Madhavi Sunder/IP3

Is there a universalist end state? If so, then might want something that could be imperial/ you wouldn’t worry about being accused of infringement from outside.

A: wouldn’t necessarily be worried about a universal system if it worked well. Trinidad & Tobago is tourism-based; any system that allows more sources of investment/development would be good?

Designations of origin—not useful immediately, only if you’re known. Have a GI for a T&T steel band, but have to convince people outside that it’s worthwhile.

Irene Calboli: be provocative, go bold—don’t have to have all the details yet while you’re making the case for reform, rather than trying to mitigate.

Gebru, Cultural Appropriation as Passing Off

No authoritative definition, but common features: power imbalance, lack of understanding, harm of some sort, context matters. First mention of “cultural appropriation” in OMG Dolls case—though court didn’t like it.

Proposed taxonomy has two axes: is the symbol diffused or distinct; is the use noncommercial or commercial? Diffused: place-bound; legally recognized group; shared across different communities. Would only allow legal intervention with a commercial appropriation of a distinct symbol. Diffused and noncommercial: Justin Timberlake’s cornrows. Specific and noncommercial: Kente cloth used by congresspeople after George Floyd’s death. Diffused and commercial: Aunt Jemima. Specific and commercial: Navajo symbols used by Urban Outfitters, litigated by Navajo as TM case.

Passing off theory—extended to GI theories with “Greek Yogurt,” “Champagne,” etc.

Case studies: Jeep Cherokee. Is there collective goodwill? Yes, some signaling happening—trying to communicate meaning. Official name of the source group; distinct group w/place, centralized institutions, legal status. Easy case for framework.

Gucci’s use of turban: sacred product; market value?; other cultures have turbans, so is it unique—harder question.

Q: privileges centralized cultures—which bakes in a certain perspective. Why should we privilege that? The reason a culture is diffuse might be because of previous cultural violence, now immunized. Maybe that’s how it has to be. [The recent book by Carrie Lowry Schuettpelz, The Indian Card: Who Gets to Be Native in America is really good on this point.]

A: yes, it is a present day snapshot of what consumers think right now.

Q: then just be very transparent about that.

Buccafusco: Gucci seems like a pretty expressive company, so what’s the difference between Justin Timberlake’s dreadlocks and Gucci’s turbans? Is it just that Gucci is monetizing directly and Timberlake indirectly? Plus, there seems like there’d be a lot of food in your regulatable quadrant. Are you just reinventing GIs?

A: food might be too diffuse.

Rosenblatt: are you concerned at all with transformation? Also, what is a culture that can be appropriated? Subaltern subcultures like punks, some organized and some less so, can get appropriated.

Buccafusco, Masur, & Whalen, Measuring the Value of Distinctive Brands: Evidence from the Bordeaux Wine Market

Distinctive here means different from other marks, not well-known. Everyone agrees that branding is important. Chasse-Spleen: easier to find. Suggestive or arbitrary or fanciful but not in the “jumble of letters” sense. Question: to what extent do distinctive brand names help generate price premiums?

In many markets, we don’t see much congestion around the semantic core, and TM law keeps firms from clustering. But! The market for Bordeaux wines comes from the 18^th century, when TM law wasn’t doing much work. More than 5000 unique wineries, 150 million gallons of wine, largely homogenous products: red blends of Cabernet and Merlot. Most branding choices more than a century ago. Median price is $15/bottle, but some bottles sell for $1000s/bottle. 28% of producers share a virtually identical name w/at least one other producer. 150 with LaCroix in their name, including 6 Chateau LaCroix alone.

H1: distinctively named wines will command higher prices. H2: even after controlling for wine quality. H3: price differential for distinctive names will be higher for high-quality wineries than for low-quality wineries. Scrubbed la, de, des, chateau and computed pairwise similarity scores b/t each wine name and every other wine name. Measured similarity by nearest ten neighbors.

H1 supported: highly similar wines: $13.44 expected price. Highly dissimilar: over $27.

H2: assume a rating of 90, a median good score. 21.68 versus 25.02, so the price premium persists, about 15%

H3: low rating wines, difference is $2.21; high rating, difference is $9.59 both about 200% price difference

We don’t detect meaningful distance costs, that is, being too unique—but there aren’t any Chateau XZMOXO or the like in our datasets, so we might not see that.

We detect no price benefit for low priced wines that might have gotten a boost from similarity to high-priced neighbors. “Chateau LaTour Margot” not so good.

Why don’t they switch? Tradition? A lot are owned by multinationals, so why not?

Congestion is a problem, and TM should continue to push brands away from linguistic core

We also don’t have enough variation in quality data to identify effects of investments in quality on differently named types.

Fromer: Is it possible that having a similar name decreases incentives?

A: Even among the high end there are lots of very similar names. Very hard to tell; not making causal claims.

Calboli: are there registrations?

A: probably not. Certainly not in 18^th century.

Calboli: Would like to know whether logos help distinguish—crests of specific noblemen.

A: trying to pull, but there aren’t pictures in many circumstances.

Calboli: how often are there overlaps on a given menu? Distribution might differ.

A: Yes and no.

Q: does any law govern name changes? Champagne region has weird rules I know.

A: probably; also a ton of social pressure.

Calboli & Izyumenko, Role Models Matter: Surveying Gender Gap in Intellectual Property Teaching in Institutions of Higher Education

Inquiry will span US, Europe, Asia (where numbers of women are lower, especially in higher positions). Data collection and surveys.

Questions about data collection?

Mazzurco: extending the tenure clock as an issue: Women have to extend their tenure clock b/c if they take leave, they can’t write while they’re on parental leave b/c they’re taking care of a newborn; men often don’t take leave or if they do, they are able to write while they are on leave so it’s an extra benefit for them.

A: that may also affect pay.

Q: you should also ask the same questions of men to learn about whether there are differences in treatment/responses/perceptions.