Jaszi festschrift, Panel 1 – Traditional Knowledge

Intellectual Property and the Public Interest: Toward a Festschrift for Peter A. Jaszi

Boatema Boateng, “Tradition” and the Production of the Other in Intellectual Property Law

Jaszi’s questioning of received wisdom of copyright law is a key influence.  How different cultural forms have been shoehorned into © while others have been denied entry.  A matter of power, as well as overlooked similarities among kinds of knowledge production. It must be more than coincidence that forms still denied protection are produced by global South and by specific subject populations in North and South.  Ghana’s protection under ©: while fabric designs were protected under industrial design, other elements of local culture weren’t protected for a long time.  But in 1860s-70s Britain began to turn interest in Ghana from slave raids to territorial control and resource exploitation (gold). Asanti made adinkra cloth; resisted British control, but Empire claimed elements of Asanti culture through ©.  Britain had no qualms about questions of originality that now dog protection for a range of cultural forms—it simply used © to claim cultural forms for itself.  Reinforces her view that protection distinctions are matters of politics, not philosophy.  It’s easy to assign formal equivalence to positions in debates over protection for traditional cultural forms, especially in UN.  Yet for most ex-colonies, modern nationhood doesn’t translate to modernity in the eyes of outside observers. 

Forms of subjugation changed over time: dominationàideas of underdevelopment.  Most former colonies have gained formal independence, adopting trappings of modern nationhood including legal systems.  But this doesn’t make them fully modern, as you can see from the persistence of the concepts of modernity and of tradition, tribe, etc.  Culture and knowledge of indigenous people defined as folklore, traditional cultural expressions—serves to fix the people who produce this knowledge in a subordinate position to the people of Europe.  Exclusions from IP law exist in US quilts on the basis of gender & categories of art v. craft; it’s clear in quilting that this isn’t traditional knowledge and yet it still raises the same questions of originality/entitlement raised with TK. 

Not all gloom & doom: possible creative use of these categories to push at boundaries of resistance.  Indigenous people do innovate!  But the double standard has facilitated shoehorning of software to © and patent while firmly resisting protection for cultural expressions of global South. Key issues are not only about what’s protected and why but also about whether those who produce have gained full admission to the benefits of humanity.

Lorraine Aragon, The Third Enclosure: In Search of Porous Fences around Traditional Cultural Expressions

Third enclosure: shift from covering material fixations to claiming indigenous elements with blurry boundaries as national property.  Romantic authorship doesn’t seem to be part of this law. Her work began with religion in Indonesia.  Rice fields were reallocated annually; “owners” were the deities and people were the managers.  Most Indonesian traditional artists show little interest in either IP or cultural property claims, while high-level officials support regulation of TCEs.  Jaszi investigated effects on artists; talked to lots of artists and gov’t officials (w/Aragon).  Jaszi wrote final report, 2010. Discusses promises and perils of conventional IP, and what sui generis right would provide.  Mobilizing IP in discussion v. TCEs.  Production (arts) v. product (TCEs).  Conventional IP is robust and tested internationally, but TCE protection isn’t.  IP is a metaphor, and so is culture—it’s a noun of process, not a product: the tending of something—crops or animals (Raymond Williams, keywords).  We tend to use it in anthropology as an adjective rather than as a noun, which seemed too fixed.

From traditional arts to Ethnicity, Inc. Perfect storm of financial pressure to move from natural to cultural resources + human rights and cultural heritage rhetoric.  Yet out of touch w/how art process works, how authority works, how IP works.  Law as politics, like North Carolina’s HB 2 “bathroom bill.”  Giant solution to relatively small problem. Gov’t and media tap into public anxieties—cultural theft, sexual boundaries.  Incapable of being implemented: the Indonesian law has no implementing regulations; NC is not going to check birth certificates at bathroom doors.  Multi-scale politics and aspiration: speaking to issues working at higher or lower levels on political scale.  Cultural theft in Indonesia: the enemy is always Malaysia, accused of stealing many genres (though they’re shared in a long history).  Indonesia: 4^th most populous nation, thousands of ethnic groups, hundreds of islands, lots of hybridity already. Political intervention: expressions are matched w/provinces which are matched w/ethnic groups as if everyone was matched at the border.  A process of fixation.  Invented traditions. 

Dizzyingly different to distinguish between traditional works and new creations based on traditional elements: Jaszi said that old forms were once new forms, and new forms are always based on elements from the past.  Disrupted the narrative of modern innovation v. old static existence.  Invented traditions aren’t not just nostalgic fictions, but often forgotten/unforeseen art trajectories.  Art repertoires as extended minds. 

District officials have attempted to © traditional “chicken eye” pattern.  Optimism: Indonesia has always had plural legal systems, always in dialogue.  We know that Indonesian producers are clever in managing their own knowledge; it’s not democratic or evenly distributed, but it is locally negotiable as top-down is not.  Related or neighboring rights for performers not well-recognized in Indonesia; could be important for some groups.  Other possibilities: certification marks, etc.  We don’t want this law to be an eminent domain, top-down law, where the commons becomes “waste”—traditional arts’ functionality is ignored when it’s not monetized. But Indonesia has many arts entrepreneurs—might want a legal boost, but not legal dynamite.

Ruth Okediji, Traditional Knowledge and the Public Domain

Property rights regulate distribution/use of scarce resources; so when nations agree to grant property rights in intellectual creation, they’re not only encouraging investment but setting baseline for competitive relations among different people. Every property right contracts the interests of others/adjusts the competitive landscape.  A neutral way to express concerns: new rights harm the public domain, a powerful concern w/particular resonance at WIPO. 

“Traditional knowledge”: search for language to anchor claim for protection against piracy—indig. groups have used the same language as “authors”—they claim there’s no such thing as a global commons.  Recognize public domain as important consideration, but it’s clear that early acknowledgements proceed from different premises. Some countries view public domain as a threshold for protection, and others view it as distraction raised by elites from the global North or of little relevance for interests that lie beyond the traditional patent/©/TM fields.  Public domain is thus a lightning rod in int’l negotiations.  Attempt to find common ground often cedes principles for which we are contending. 

Indigenous groups have real concerns.  “Common heritage of mankind” developed global knowledge infrastructure using plant genetic resources and TK.  Int’l institutions have been built around the idea that this belongs to the public and should be freely/methodically exploited by big institutions.  But the idea that public domain only represents the attempt to recontrol or reallocate resources of the global South goes too far.  Need to assert definitions of public domain as part of TKE; remains skeptical that current proposals are actually in furtherance of global South; privatization and prevention of border-crossing will defeat the very purposes for which we value knowledge. Property begets property in a vicious cycle.  The purpose of the public domain isn’t to deny property rights but to establish a zone in which human beings, communities are able to engage in the oldest act of human expression, the creation of knowledge itself.

Fumi Arewa

Nollywood films: the film production quality weren’t to global standard in early days, but that’s changing—Toronto film festival premiere.  Authorship comes in all kinds of places and forms. Nigeria had very little IP enforcement during the emergence of Nollywood: huge global film industry, challenging assumptions about IP.  IP is very important for creative people, but we over and underestimate its importance in various situations, which Jaszi has drawn attention to in his work.  Attitudes have been shaped by external pressure saying that IP rights are really really wonderful.  Nollywood producers were a tough nut to crack on fair use; they thought fair use was bad for filmmakers. Jaszi, in two hours, got them to start thinking about how fair use could be an important part of IP and important for them.  Developing countries need an IP agenda appropriate to their situations, not externally derived, despite reality that much of IP will be TRIPs-derived. She wants to know what IP does for them and for domestic creators.  IP has been externally derived for a long time—a lot of IP laws on the books.  Digital colonialism: take a second look at historical narratives about lawmaking.  During the colonial period, people were upfront about what they think. Legal systems in places like Nigeria were overlapping and didn’t take account of conflicts; they just copied British laws or laws from other colonies.  No consideration of local or public interest in discussions of laws, which are often still on the books.  Countries are starting to look at this overhang of externally derived law, but it can still harm economic development.

Irene Calboli, (remotely from Singapore) Geographical Indications, Economic Development, and Cultural Heritage: Good Match or Mismatch?

Asian interest in GIs is serious, going far beyond pressure of EU.  Anti-American, anti-New World in EU version, but also interested in protecting GIs as potential for marketing products internationally. To what extent that potential really exists is up for discussion; it can help or can be useless.  Case by case.

Little farms in France and indigenous people want recognition—a moral rights aspect to GIs.  Understandable, but fundamental issue with value of component inputs, foodstuffs v. products that go through more processing.  There can be excellent spillovers for land, people, sustainable development when consumers can be convinced to pay.  Public interest for consumers: accurate product information; narrative of trace-marks.  We need to tailor GI protection for better and more transparent ways for consumers to know where products are from and how they are made. Local developers won’t be able to cheat if the how is clear.  

AU IP/Gender Panel I: Women's Leadership in Traditional Cultural Production

Panel I: Community Structure and Women’s Leadership in Traditional Cultural Production

Moderator – Margaret Chon, Seattle University School of Law

 

Helen Chuma Okoro, Nigerian Institute of Advanced Legal Studies (and CC Nigeria), Traditional Knowledge, Intellectual Property Protection, and Matriarchal Dominance: The Case of Traditional Textiles in South Western Nigeria

 

Research looked at how to use communal TMs to promote products in Nigeria, esp. textiles. Findings: very difficult to use communal TM to promote textile sector particularly, because of structural organization of sector.  Characteristics of textiles: traditional knowledge; intergenerational in nature.  Good reputation: markets exist for the fabric (adire).  Method of production is natural, organic, by hand. 

 

A market leader, matriarchical structure: mother figure, very influential.  How can that relate to IP? There’s an idea that traditional knowledge is inconsistent with traditional IP.  But traditional textiles are fundamentally produced for commercial purposes, so the idea of noncommercial TK is not relevant; the reputation is what needs protecting.  Everyone wants to benefit from the reputation, so there’s lots of imitation.  Traditional textiles are more expensive to produce; have difficulty competing with copies/synthetic imitations.  Many families therefore may abandon the production.  Need incentive to continue in trade, and IP could provide that.  They understand they do have some kind of property/right, though they don’t call it IP. They do share designs, but against outsiders they won’t share. Maternal line transmits the knowledge.

 

Small, fragmented industry of producers.  Traditional model: result is lots of competition.  Communal methods can work better—protect designs individually by copyright, individual TM, but lack enforcement capacity. Nigerian TM act dates from 1965, substandard. Protection for certification marks but not GIs.

 

Market mother may be able to provide the necessary structure to make sure standards are maintained, work hand in hand with standard organization for certification marks.  If that works, can be transplanted to other sectors.

 

Lorraine Aragon, University of North Carolina, Cut From the Same Cloth? Reimagining Copyright’s Relationship with TCEs and Gender in Indonesia

 

Between 2003-2010, weaver argued w/district headman about his plan to © a textile design. Nela’s argument wasn’t technical/legal but about needs & customs of women.  Widely shared traditions exist across Indonesia; she was defending what women of the region (not the nation, a recent invention) customarily do—share designs/knowledge.  District head predicted econ. benefits to recently created district; drawing on recently enacted law saying state holds © over folklore and people’s cultural products—district’s procedures could be “cut from the same cloth” as national law.

 

Offers ways to rethink authorship and property models in light of gender, in a nonwestern context.

 

Textiles: how do the weavers view claims over their work? In Indonesia, this is women’s gendered domain (also pottery); where other TCEs are more male-controlled.  Convergence of IP and cultural property (CP) models in developing nations—discussed as provincialization of IP (though all IP can be discussed as provincialization).  Other literature calls it indigenization of IP. But that doesn’t work for Indonesia; may not work anywhere that lacks indigenous group membership/enrolled tribes/clear lines of authority/a state eager to appease indigenous groups. There’s no legal category of indigenous people in Indonesia, but over 300 ethnic groups.

 

Reverse anthropology: look at things w/logic of local people.  Materiality studies: the spirit/nature/agency of possessions. 

 

These textiles are handmade, used for ritual purposes/exchanges; regional market, sometimes internal or external. Internal market is shared and guarded, somewhat separate from external markets. Index ancestry & community status; you wouldn’t ordinarily want to make a design from another group.  Some dyes take years to make.  Producers describe themselves as conduits; say they learn the most complex, dangerous designs in dreams. (Conduit description is not limited to women—male producers in male genres say the same thing.) Splitting agency outside the self; carrying on traditions. They do make claims for themselves, but not ownership or origination claims even though they might be adding creativity the west would consider copyrightable.

 

Convergence of IP and CP in Indonesia and several other places. Variable dynamics of this convergence often go unrecognized.  Domestic concerns change response to TRIPs.  Settler states: North America, Australia, New Zealand—different process than in postcolonial states.  Settler states: indigenous groups can advance political goals through IP claims.  Postcolonial: individual producers have weak status—CP promises the actual producers very little, even as others get excited about it.  Idea of culture as property is not of interest to producers, because both IP and CP deny their distributive practices/informal management of system.

 

Indonesian law: state has © in folklore and people’s cultural products owned in common; includes stories, dances, clothes, sculptures, handicrafts, jewelry, traditional weavings, etc. with no time limits on folklore protection—very big state claim.  The design is not unfamiliar in Indonesia: echoes postcolonial eminent domain land law. In history of SE Asia, rulers’ interest was never land/ownership—there was plenty of land. Wanted to control labor. Only when Europeans came in did they look to control land as property.  The idea of private property is crosscultural—legacy of Dutch control.  Indonesia’s government controls oil; rainforests are being cut down; wants to diversify its resources = shift to CP.  Property law is there to remedy waste: idea is that if it’s not owned it’s not being well used—lawyers felt that Indonesians too freely and naively gave away cultural resources to outsiders, so state has to do it for them.

 

Repercussions of law: allegations against Malaysia for cultural theft of batik, beef curry, dances, etc. Accused Robert Wilson of appropriating a Bugis myth for int’l production of I La Galigo, 2004-2005—he asked for local permission but state said that wasn’t enough. Pursued w/tremendous passion b/c IP doesn’t offer them much in conventional form.

 

District leaders then sought to © elements of “their” local culture. Flores example on which paper is based is outstanding because there were no “foreign” cultural thieves at issue. District had been formed from other districts; district head got the idea that he could © the “chicken eye” design and collect royalties from weavers who were now outside the district.

 

Indonesia long defined geographic-political units according to ethnicity and TCEs, part of the nation-building project. In reality, people and TCEs move fluidly across these boundaries.

 

Weavers said: our ancestors didn’t live only in this new district; techniques are transferred through marriage and migration. We all come “from one bamboo clump.”  © will kill the small women entrepreneur—there are so few economic opportunities for women without capital here, but if some women own certain motifs, they lose that.

 

Other women: customary law is weightier and more accepted than state law. © in state was a solution looking for a problem. The language of the © law is not intrinsically gendered; makes all producers of TCE childlike wards of the state.

 

Can IP provincialization be done in a socially progressive way that helps indigenous groups?  It doesn’t work as formulated in Indonesia. Could positive law support women’s customary authority over TCE production?  Unless it does, we can expect them to walk away from it as much as they can.

 

Chon: Three major themes: (1) diversity, (2) hybridity, (3) pluralism.  Take us away from the metaphor of war we’ve worked with in the © field for so long.  Oppositional relation between free expression/exclusive rights—very tired as a metaphor. Hybridity, heterogeneity, multiplicity instead—but conflict and tension are still inherent in those relations. This isn’t shiny new happy world, but instead we have many things to figure out.

 

Okoro’s matriarchal figure: variations/nuances on this figure.  Existence of multiple markets: not just global postindustrial mass markets. We need to be more like antitrust/competition lawyers in looking at the market at issue and its particular needs.  Also: difference in power structures and leadership.  In Nigeria, power shifts to women in ways that the typical IP model doesn’t recognize.

 

Hybridity: both papers talk about TK or CP as it intersects/hybridizes with formal IP categories, particularly TM and ©, and how that affects traditional cultures: Okoro is a more positive story, Aragon more negative. Okoro = fill the needs of a high-end market if it can be connected to that market.  What could be the incentives to allow traditional weavers to continue work? She identifies certification mark; what really jumped out in paper is the idea that these textile production units are family based—going to biological daughters rather than daughters in law. Deeper commitment, as a result, to the production unit than in a typical business unit, which we might want to protect.  Can this deep commitment be translated to a highly decentralized, global market.  But one challenge is there’s no enforcement capacity for small local entrepreneurs and little capacity in the IP enforcement system period.

 

Final challenge: how do you signal the qualities—high quality, handmade, organic, credence attributes—with a relatively shallow right, TM?

 

Aragon: (1) Social norms, or IP without IP.  (2) Second enclosure movement: eminent domain laws have an analogue in use of © for TCE.  Jamie Boyle has identified this dynamic in West.  (3) Facially neutral laws with differential impacts, as in this case study. 

 

Aragon offers a solution from the people: look at what they’re doing creatively and think about how to address that production model.  Indigenization model doesn’t work in the context of Indonesia, v. New Zealand with a vocal minority community and a state eager to appease that community’s legal interests. That goes to hybridity: local circumstances may be very different from dominant models.  Also: these textiles are means of reflecting and indexing one’s place in the world: how do we hang on to the local identity in a globalized, marketized world? Use of IP to assert national sovereign power, vs. Malaysia for example; used as a way for Indonesia to assert its muscle in the world.  How does that work versus industrialized countries that might appropriate and monetize—Robert Wilson?  Power dynamic of Western grabbing & not sharing benefits. 

 

Finally, Q posed is whether and how IP can accommodate communal, local practices.  State-owned model Aragon gave is is clearly not the ideal model, but what is the alternative?

 

Betsy Rosenblatt: she saw distinctions between ingroup and outgroup dominating, and Qs of how we define the ingroup. The ingroup in both cases seemed perfectly capable of governing itself—Q is how they protect selves from intrusion/appropriation by some outside group, whether industrial copiers or the state. But Indonesian state saw the ingroup as the whole state, and wanted to protect against other states.

 

Okoro: the ingroup isn’t working correctly in Nigeria now because it’s very hard to protect from outsiders/globalization.  Need to go beyond the ingroup model, and IP/TM is a way to do that.

 

Aragon: some communities are being flooded w/cheap Chinese (or Indonesian) knockoffs. Bali deals w/it by info: trying to educate the tourist about machine/chemical production v. the real thing used in rituals w/2-year dye made from plants.  There are market conditions where people go to the cheap version b/c that’s what they can afford. SE Asians in general think the gov’t isn’t helping them with import issues/trade issues; they don’t specifically care about IP but about local support/trade laws.

 

Jessica Silbey: Nigeria—concerns over integrity and misuse. What counts as misuse?  Just copying or a particular use?

 

Aruna Ranganathan has been doing ethnographies in India of local craftmakers—experiments to figure out how they market their work differently. They will sell their work for less to people who appreciate authenticity; charge more for people who seem not to care whether it’s an imitation. Using market segmentation to preserve status, but in the reverse of what we’d normally see. Shows what people care about in different communities re: how their work is exchanged and experienced. Seen anything like that kind of price discrimination used to preserve status, identity, or value?

 

Okoro: Economic advantage is the primary concern. There are some textiles with symbolic meaning, but that is not as important here.  Profit means that misuse is knockoff/passing off.

 

Aragon: price discrimination goes on all the time in Indonesian markets, but it’s more what we expect—foreigners/nonrelatives get charged more.  May make indigenous designs with cheap dyes so that local people could afford them.  Indonesians wanted to control their own designs; didn’t care what foreigners did and kept their productions separate; misuse was generally not of great concern, with a few exceptions.

 

Irene Calboli: What do traditional people want? Everything: tradition, control, market access, the ability to set prices—they want what Westerners want; they want respect for their IP but they don’t care about knocking off TMs from the west.  They see the value of the model, but understand that w/in the bigger community they have to play a different game.  How IP can help is difficult—GIs are ways to guarantee geographical region origin, with variation.  If the fake Louis Vuitton helps sell the real ones, the Pier One knockoff may help sell the authentic versions—Pier One is often the first access.  Add to this the problem of corrupt governments.  Also the role of UNESCO certification—batik has this certification; tangible and intangible IP are eligible, and gives some legitimacy.

 

Aragon: that’s why Indonesia says UNESCO gave them the copyright and Malaysia can’t do it.  (Even though Calboli points out that is not what UNESCO did.)

 

Bali is really different from the rest of the country: commodified genre may worry about knockoffs; others say they want more gov’t support for things that are disappearing, but they don’t want access to law because they know that law doesn’t function for them—not looking to sue (or be sued).  Gov’t level and local producer level must be distinguished; semi- or partially-commodified markets either at the regional or int’l level. GIs might be something to think about, but not what they’re thinking about.

 

Okoro: Agrees they want everything, but textile producers want more economic advantage primarily. Just like every creator!  Dignity to some extent, but at this point they’re more worried about economic prospects.

 

Peter Jaszi: To what extent do the modes of regulation discussed interplay with the imperative for preserving space for dynamism in traditional culture?

 

Aragon: Copyright doesn’t seem to be the right measure.  Registered designs were ancient but being claimed by corps/big families. I would look for something grassroots, which isn’t there yet.

 

Okoro: the TM model would allow evolution w/in a controlled environment rather than being overly influenced by economic interests from outside. Just trying to meet demand from outside kills authenticity, but creating incentives to maintain traditional quality allows a different basis for competition.

 

Jaszi: discusses producers’ difficulty negotiating “living wage” price from Pier One—a problem not particularly susceptible to IP, but perhaps to consumer information and some militancy by well-meaning consumers. Even if Pier One is an entry point, right now those outlets are killing rather than sustaining the communities whose goods are being exported.

 

Chon: a problem of information flow rather than IP per se.

AU IP/Gender conference (with a keynote from me)

Reimagining IP/Gender: The Next Ten Years of Feminist Engagement with Intellectual Property Law

 

Presented with the Women and the Law Program

American University Washington College of Law

February 27, 2015

For registration and more information.

 

At the 11th Annual IP/Gender, presenters will address the production of knowledge, commodification, definition, and valuation of women's work, and other areas of feminist and queer inquiry. We hope to spur intellectual property scholars to explore how the tools of deliberately intersectional feminist and queer theory can shed new light on the challenge of creating intellectual property law that fosters social justice.

 

9:30 am - Welcome - Michael Carroll, American University Washington College of Law

 

9:35 - Opening Keynote

Ann Shalleck, American University Washington College of Law - Introduction

Rebecca Tushnet, Georgetown University Law Center- IP, Gender, and Creative Communities

 

10:00 - Panel I

Community Structure and Women’s Leadership in Traditional Cultural Production - Moderator - Margaret Chon, Seattle University School of Law

Helen Chuma Okoro, Nigerian institute of Advanced Legal Studies - Traditional Knowledge, Intellectual Property Protection, and Matriarchal Dominance: The Case of Traditional Textiles in South Western Nigeria

Lorraine Aragon, University of North Carolina - Cut From the Same Cloth? Reimagining Copyright’s Relationship with TCEs and Gender in Indonesia

 

11:00 Coffee 11:15 - Panel II Documenting Communities of Practice - Moderator - Meredith Jacob, American University Washington College of Law

Jhessica Reia, Center for Technology and Society at Fundacao Getulio Vargas (CTS-FGV) - DIY or Die! Gender and Creation in Marginal Music Production

Betsy Rosenblatt, Whittier Law School (and Rebecca Tushnet) - Transformative Works: Young Women’s Voices on Fandom and Fair Use

 

12:30 Lunch

 

1:00 - Lunch Keynote: Kara Swanson, Northeastern University School of Law - IP and Gender: Reflections on Methodology and Accomplishments

 

1:30 Panel III

Gendered Understandings of the Role and Scope of Intellectual Property Law - Moderator - Irene Calboli, Marquette Law School and National University of Singapore

Carys Craig, Osgoode Hall Law School, York University - Deconstructing Copyright’s Choreographer: the Power of Performance (and the Performance of Power)

Charles Colman, New York University School of Law - Patents and Perverts

 

2:30 Coffee

 

2:45 Panel IV

Gender and Intellectual Property in the U.S. Federal Courts - Moderator - Christine Farley, American University Washington College of Law

Jessica Silbey, Suffolk University Law School - Intellectual Property Reform Through the Lens of Constitutional Equality

Sandra Park, ACLU Women's Rights Project - A Feminist Challenge to Gene Patents: Association for Molecular Pathology v. Myriad Genetics

 

3:45 - Looking Forward: the Next Ten Years - Peter Jaszi, American University Washington College of Law, Daniela Kraiem, American University Washington College of Law, and community

 

4:30 – Close

November 21st: WIPO Dir. Gen. Gurry at GW Law - Lecture and Live Webcast

The George Washington University Law School Intellectual Property Law Program cordially invites you to attend a lecture by The Honorable Francis Gurry, Director General of the World Intellectual Property Organization

"Intellectual Property Policy in the International Economy" 

The role of intellectual property (IP) in the world we live in today – a digitized, interconnected world – is vastly different from the world in which the IP system has its roots.  The digitized, interconnected world creates vast benefits, but changes have come so fast that the legal infrastructure around IP struggles to keep up.  The role of the World Intellectual Property Organization (WIPO) is to work with its Member States to ensure that the system does keep up, and stays relevant. 

WIPO Director General Francis Gurry will provide an overview of the evolution of intellectual property and how WIPO’s work program identifies policy responses to fast-shifting IP landscape.  The Director General will discuss, inter alia,  WIPO’s recent accomplishments, such as treaties on the rights of audio-visual performers (2012) and access to copyrighted material for the visually impaired (2013), and future activities, such as a proposed design law treaty and protection for traditional knowledge. 

Thursday, November 21st, 6:00 p.m.

The George Washington University Law School

Faculty Conference Center

5th Floor Burns Building

716 20th Street, NW

Washington, DC

Reception to Follow

The lecture will also be live webcast at: http://video.law.gwu.edu:8080/ess/echo/presentation/f8652ca5-4138-41f4-a280-33976f37af90

Navajo Nation claims against Urban Outfitters survive

Navajo Nation v. Urban Outfitters, Inc., --- F.Supp.2d ----, 2013 WL 1294670 (D.N.M.)

The court largely refused to dismiss the Navajo Nation’s claims against Urban Outfitters for using “Navajo” on some of its items.  In this case, the court seemed to treat “identification meaning” the same as “trademark meaning,” allowing the Navajo Nation to claim that recognition of the Navajo as a group was recognition of “Navajo” as a mark.  I’m dubious about this, but understand why it happened here.

The Navajo Nation “is a sovereign Indian Nation with over 300,000 enrolled members,” and “acts through its political subdivision …; its wholly-owned instrumentalities …; its officers, employees, and authorized agents; and its members, the Navajo People.”  (This is one place where I get nervous about applying trademark concepts: if that isn’t naked licensing, what is?)  It alleged that it and its members had been known as “Navajo” since at least 1849, had continuously used the mark in commerce, and had made the mark famous with numerous products, including, among other things, clothing, accessories, blankets, jewelry, foods, tools, decorations, crafts, and retail services.  The Navajo Nation has registered 86 trademarks that include NAVAJO for different classes, including clothing, jewelry, housewares, and accessories, and alleged that many had become incontestable.  (Urban Outfitters argued that the Nation didn’t actually own all 86 marks, and that only 5 were incontestable.)  The Nation also alleged substantial investment in promoting the marks, resulting in over $500 million of sales of NAVAJO-branded goods. 

Further, it alleged, “NAVAJO” was inherently distinctive, and that it wasn’t a generic name for any products, since if you go into a clothing store and ask for a “Navajo” you will be greeted with incomprehension.  (What if you go into a grocery store and ask for a “Swiss”?)  The Nation alleged that, instead of using descriptive words like “geometric” or “southwestern,” Urban Outfitters chose “Navajo” in order “to trade off of the cachet and romanticism associated with the Navajo People, who form the Navajo Nation.”  Futher, UO allegedly falsely advertised a number of its “Navajo” products as “Vintage” and “Handmade,” making an expressly false claim that their goods are made by members of the Navajo Nation.

UO allegedly rolled out a product line of at least 20 items under the “Navajo” and “Navaho” names, echoing Navajo Nation tribal patterns.  Further, UO allegedly “used” the mark in its internal search engine to divert consumers, causing initial interest confusion by returning results.  (The Amazon watch case might be of relevance here.)  The Nation alleged trademark infringement, federal and state dilution, false advertising, violation of the Indian Arts & Crafts Act, and related state-law claims.

On a motion to dismiss, the court refused to consider excerpts from the trademark file histories of some of the marks referenced by the Nation in its complaint.  The Nation didn’t attach an incomplete document to its complaint, but rather UO was cherry-picking portions of the PTO record to contest the facts.  The evidentiary value of the excerpts was subject to reasonable dispute and not suited for judicial notice.  “If Defendants' position were correct, the entire trademark file history of each trademark allegedly infringed would nearly always be permissible to consider on a motion to dismiss in any trademark infringement case, an incredibly cumbersome analysis at the early stages of a case.”  Likewise, the court declined to consider evidence that “Navajo” was used as a generic descriptor of “Indian-styled” prints and designs at this stage of the case.

UO argued that the Nation failed to state a claim because it failed to allege facts showing that UO’s use of the term was as a source identifier instead of descriptively; the Nation cropped the content of the sites (presumably so that UO’s own marks wouldn’t appear).  Dismissal for failure to state a claim is appropriate only in the most extreme trademark cases, and this wasn’t one.

The Nation argued that because their marks were incontestable and fanciful, arbitrary, or suggestive, descriptive fair use was unavailable as a defense.  (I’m pretty sure that the “incontestable” part there doesn’t work, inasmuch as §33(b) is in the statute precisely to establish descriptive fair use as a defense as to incontestable marks.)  As for the fanciful etc. argument, a number of courts have (correctly) concluded that it’s the defendant’s use that must be descriptive, not the plaintiff’s, but the court didn’t resolve the issue because UO didn’t establish that the defense succeeded as a matter of law.

The Nation alleged sufficient facts to show that UO used “Navajo” as a mark, and that it didn’t “sufficiently accompany ‘Navajo’ with such distinguishing marks that a buyer exercising ordinary care would not be deceived into believing they were purchasing an item produced by the Navajo Nation.”  The Nation alleged use on similar goods to the Nation’s own goods, and that the goods compete in many of the same channels of commerce.  UO advertised “Navajo Bracelet” and “Navajo Feather Earring” “without clarifying words or images that ‘Navajo’ did not mean that it was made by a member of the Navajo Nation and was merely descriptive of the style,” and other items were advertised similarly.  When the products involved are similar, a descriptive fair use defense may fail not because likely confusion makes the use nondescriptive, but because confusion shows that a use is de facto use as a mark.  Even as to UO’s sub-brand Anthropologie, where the exhibits only showed statements saying, “We're sorry. This Product is no longer available,” could count as use; “a factual inference could be made that the product is no longer available because all those particular goods had been sold from the site.” 

Here, “Navajo” has a primary meaning referring to the Navajo tribe and its people.  “Navajo” also has a geographic component, but the tribe is the registrant.  As for dictionary definitions of “navajo blanket” and “navajo rug” as “a blanket woven by the Navaho in geometric designs of symbolic meaning,” this definition “demonstrates that, even when used as an adjective, the term conveys information that the source of the rug or blanket is the Navajo tribe or a member thereof.”  Thus, even adjectival use could create likely confusion among consumers.  Some of the items included another company’s brand in the product description, but that wasn’t enough to find, as a matter of law, that the use of another brand would eliminate all alleged confusion.

UO argued that the Nation itself acknowledged that “Navajo Style” for goods would be fair use, relying on a license agreement submitted to the PTO in connection with one trademark, but that evidence wouldn’t be considered on a motion to dismiss.  In addition, UO argued that the Nation failed to show either trademark use or bad faith as to Free People because “Navajo” was a descriptor of “vintage, pre-owned items originally from artisans who identify as Navajo Indians.” But UO’s affidavit was less than a model of clarity; it averred that the items were “believed to” be made by self-identified Navajo artisans; this again wasn’t suitable for resolution on a motion to dismiss. The allegations of use in, for example, “Vintage Handmade Navajo Necklace,” were sufficient to state a claim of confusion over origin. 

In addition, UO argued that a user’s collection of items she wanted, labeled “Navajo Beauty” and displayed on the Free People site, wasn’t trademark use by UO.  The Nation acknowledged that its claims didn’t encompass acts of UO’s customers.  The court noted that the Tenth Circuit recognizes claims based on initial interest confusion, “the unauthorized use of trademarks to divert internet traffic, thereby capitalizing on a trademark holder's goodwill.”  The court found it “unclear” whether UO was responsible for using “Navajo Beauty” to describe a collection, since the page says the collection was created by “indiehippiepixie.” However, the Nation sufficiently alleged that UO used “Navajo” to divert internet traffic.  Thus, the court didn’t decide whether there was infringement based on advertising the “Palmedo Blanket Bag” (part of indiehippiepixie’s collection) without “development of the factual record concerning how Defendants allegedly used ‘Navajo’ in their internal search engines to divert customers to products like the Palmedo Blanket Bag.”

Finally, the court couldn’t find nominative fair use as a matter of law.  And we get a new-to-me reformulation of the doctrine: “whether (1) the product is readily identifiable without use of the mark, (2) defendant used more of the mark than necessary, or (3) defendant falsely suggested he was sponsored or endorsed by the mark's holder.”  Assuming the doctrine’s validity in the Tenth Circuit, whether “Navajo” was the only word reasonably available to describe the designs of the products at issue was a fact question; the Nation alleged that “geometric” or “southwestern” would also work.  The Nation therefore successfully alleged claims of source confusion as well as sponsorship or endorsement confusion.

Of course, the court also rejected UO’s contention that Navajo was generic for clothing and accessories, given the pleadings, despite what indiehippiepixie might have thought.

Turning to dilution, the court rejected UO’s argument that the Nation failed to allege fame for the relevant goods.  The Nation represented to the PTO that its first use of the mark in connection with clothing such as shirts and jackets was in 1995 and 2005; it didn’t allege particular facts showing the extent and geographic reach of sales, advertising, and publicity. However, the Nation alleged that it and its people had been known by “Navajo” since 1849; it had continuously used the NAVAJO trademark in commerce; it had marketed and retailed clothing, jewelry, and house wares since 1941; and it had registered the NAVAJO trademark in 1943.  This was a significant duration, despite the Nation’s failure to allege many non-conclusory facts about geographic reach. It did allege that it had invested “substantial capital in promoting and protecting” the NAVAJO trademark, resulting in more than $500 million in sales of NAVAJO-branded goods, and that the NAVAJO marks were prominently featured on a number of its websites. Moreover, it alleged 86 registrations with a NAVAJO component (despite the factual dispute over how many marks the named plaintiffs actually owned). Combined with general allegations that the mark was broadly recognized by the general public as a mark for Indian-styled and Indian-produced goods, this was enough to survive a motion to dismiss.

In combination with the complaint as a whole, the allegation that UO’s use of Navajo in retailing its 23 “Navajo” products and its marketing of its “Navajo Collection” made it likely that consumers would incorrectly believe that the “Navajo” mark is an indistinct term was sufficient to allege dilution by blurring. Evidence that other fashion marketers already do that was not relevant on a motion to dismiss.

The court did agree that plaintiffs failed to allege dilution by tarnishment based on two theories, though a quality-based claim survived. The “Navajo Print Fabric Wrapped Flask” was not sufficiently unwholesome to constitute tarnishment, given that the Fire Rock Navajo Casino registered trademark includes “shot glasses” among its goods. Although the Nation bans the sale and consumption of alcohol within its borders, it admitted that there was an exception for alcohol in dining areas of a Navajo Nation Gaming Enterprise facility and that it had registered the mark for shot glasses.  Thus, as a matter of law, use on a flask wasn’t sufficiently unwholesome or unsavory to support a tarnishment claim.

In addition, the court rejected the argument that UO’s use of “Navaho” was scandalous because the official spelling uses a j.  There was no authority that misspelling is scandalous.  Indeed, the Nation’s own complaint noted that “Navaho” is a long-thought acceptable spelling, and the Nation relied on Webster’s dictionary in its briefs, which also used the terms interchangeably.

The Nation did preserve a theory that UO’s products were of significantly lower quality than the Nation’s own products, diluting the marks.  UO argued that these allegations were conclusory and that the complaint itself showed that consumers rated the products highly, with an average rating of 4.5 out of 5 stars.  The court wasn’t willing to find that the star ratings were conclusive as to quality. While the allegations of lower relative quality were “somewhat conclusory,” they were enough to create a factual issue.

The Indian Arts and Crafts Act: The IACA “is a ‘truth-in-advertising law designed to prevent products from being marketed as ‘Indian made,’ when the products are not, in fact, made by Indians as defined in the Act.”  It creates a cause of action against a defendant who sells a good in a manner that falsely suggests that it’s Indian-produced or the product of a particular Indian, Indian group, or Indian tribe.  “[T]he question for the trier of fact is what the entire sales package, including advertising, labeling, and place of sale, suggested to the average consumer.”  An art or craft work is a handcraft—“an object created with the help of only such devices as allow the manual skill of the maker to condition the shape and design of each individual product.”

The court refused to dismiss the IACA claims:

Plaintiffs allege that Defendants have displayed for marketing and retailing items such as “Navajo Bracelet,” “Navajo Glove,” “Vintage Men's Woolrich Navajo Jacket,” and “Navajo Feather Earring.” Plaintiffs contend that the products are in a traditional Indian style, and composed of Indian motifs and Indian designs, but are without identifier terms or labels; that the manner of marketing the goods falsely suggests the products are Indian products of the Navajo Nation, when in fact they are not Indian made; and that a consumer may find the products using search terms like “Indian,” “Native American,” “tribal,” or “Navajo.”

This was enough to allege a cause of action under the IACA.  Clothing and clothing accessories could be arts or crafts within the meaning of the IACA, even if the clothing was contemporary apparel.  The regulations specify that both traditional and modern apparel could qualify.

UO argued that the Nation made contrary representations to the PTO in registering “Navajo Jeans” for “clothing, namely, tops, vests, shirts, sport shorts, polo shirts, golf shirts, jackets, T-shirts, sweat shirts.”  In response to an examiner’s refusal to register the mark because registration could violate the IACA, the Nation successfully argued that “[t]he goods offered under the Mark are not art works, crafts, or handcrafts within these definitions contained in the Regulations [for the IACA].” The court wasn’t willing to find judicial estoppel based on the limited record before it, and it wasn’t clear whether judicial estoppel would apply because the IACA’s regulations might have changed after the Nation made its representation to the PTO. Anyway, it wasn’t clear whether the Nation’s statement about “goods” referred to particular types of clothing, or contemporary clothing generally. (This is an interesting issue, and the Nation does seem to have a problem here. If it wants freedom to make “Navajo”-branded garments anywhere and in any quantities, as a trademark owner normally does, isn’t that inconsistent with the IACA’s goal of supporting Native American artisans?  For what it’s worth, I don’t think the change in regulation text makes a difference—I read the old and new versions of the regulation and I don’t think that the statements about apparel represented a change in the law.) 

Given the holdings above, the New Mexico Unfair Practices Act claims also survived, with a certification to the state supreme court.  UO argued that the Nation lacked standing because it wasn’t a buyer of UO’s goods.  However, the case law simply suggested that a seller of goods couldn’t sue the buyer of its goods under the NMUPA.  Here, the Nation alleged that false representations were made to the consuming public, so the lawsuit served the statute’s consumer protection goals, albeit indirectly.  The statute said that “any person” injured could sue, and many other states with similarly broad language allow business competitor standing, though there’s no clear consensus.  Given the limited briefing on the issue of whether a competitor would need to allege a public interest component and whether, if there is one, the Nation sufficiently alleged it, the court was inclined to certify the issue to the New Mexico Supreme Court, and so the court stayed its standing ruling until it received supplemental briefing.

The state law trademark infringement and dilution claims also survived, though the Nation would have to amend the complaint to allege fame in New Mexico.

Critical Legal Studies and Intellectual Property at Cardozo

Cardozo Arts & Entertainment Law Journal Spring Symposium

Critical Legal Studies & the Politicization of Intellectual Property and Information Law

Panel I: Critical Legal Theory in IP & Info Law Scholarship

Peter Goodrich, Professor of Law and Director of Law and Humanities, Benjamin N. Cardozo School of Law

CLS keeps returning in different guises.  A degree of necrophilia or transmutation.  New generation.  Moved from practice to theory to aesthetics. Move into the institutions.  Studying the image and the virtual.  Law relating to the image from Romans: if an artist paints on my palette, who owns the image?  The artist because of the power of the image.  Virtual means that authorship is in the origin, and also comes from vis/force and virtus/angel.  The immaterial; the movement to what cannot be materialized directly.

Rebecca Tushnet, Professor of Law, Georgetown University Law Center

What I think of as my critical scholarship: First Amendment and copyright.  I’ve written about transformative fair use and the way it can assist in shrinking conceptions of fair use inflected by the First Amendment; if the paradigm of fair use is the little guy angrily speaking truth to power, that fits into a First Amendment narrative but doesn’t protect many of the spaces in copyright that are also important to free speech, like the freedom to make private performances, various educational copying limitations, multiple copies for classroom use, etc. I suggest that pure copying can also serve First Amendment purposes, in access, in self-constitution, in communicating important messages to other people, as distributing the Bible does.  Because pure copying does serve free speech purposes, the conflict can never be fully reconciled.

Copyright’s treatment of images—here I really do move from theory to aesthetics: a diagnosis rather than a prescription. 

My other work: Organization for Transformative Works. What is it?  Created to push back against commercialization of so called “user-generated content,” which is to say creative works made by people who love existing works; nonprofit; under US law.

Terminology: Organization: legitimacy versus the incredible diversity and non-organization of actual fans. Transformative: adopts the legal language of fair use, setting up authorial claims as equal or not subordinate to the claims of other authors. Works: for works, not for workers, even though conditions of production and communities of practice are vital to the actual creation of fanworks; separately, the idea of the work (instead of the story, movie, etc.) has important consequences for how creative activity is understood as implicated in but also apart from the so called ordinary operations of the economy—the making of chairs, cars, etc.  Work gives dignity to fans who are often culturally disadvantaged, mocked for consuming the very things produced to be attractive and consumable.  And of course consumption here means intellectual activity—watching, listening, thinking, and creating new things in response.

So what are we doing?  Example: DMCA anticircumvention exemption hearings. Participated in order to explain what fan vidders do. Necessary claims to authorial genius (taken out of community)—example of Closer, a Star Trek vid that went viralsome years back. Have to identify works that are intelligible to outsiders and understandable as aesthetically and politically “good”—well done, legible critical message. We don’t believe that quality in that sense is important to fair use, but strategically we don’t get any exemption if we don’t convince outsiders that there are a substantial number of fair uses.

Second kind of quality: technical quality. Do you need to have good quality footage to make your critical uses?  Can’t you just film the screen or use screen capture software?  Use of technical quality forces us further into defending a particular aesthetic and also subjects us to someone else’s determinations about how good our messages need to be to deserve an exemption.  Copyright Office disavows quality judgments, but is still making them in deciding that some people but not all people need more than screen capture to do their artistic or educational work.

Sonia Katyal, Joseph M. McLaughlin Professor of Law, Fordham University School of Law

Equality and access in digital contexts. Parallels worthy of exploration.  Structural critique of IP deeply informed by CLS.  Art. I, sec. 8: exchange—to promote progress, law provides exclusive rights. Private right for public good is key framing issue.  Do IP rights always have to promote the public good?  Extending copyright eventually doesn’t seem to do that. The question of how we construct the public good/social welfare is similar to CLS approaches to goods beyond economic efficiency: expression, freedom as a good in itself. Social relationships and dynamic entitlements about allowing access to others instead of pure exclusion right. Influenced by Lessig, Litman, Vaidhyanathan: critical information studies movement. Scholars steeped in other areas of scholarship before IP—Lessig was constitutional law, Vaidhyanathan from library science—far beyond economic efficiency model embraced by others.

Emergence of cultural critique of IP.  The power of the image; the power of subversion, parody, satire in recoding established works.  Intersection between CLS focus on minority rights and distributive justice and the way in which fair use scholars focused on the right of minorities to recode works—rap and jazz and creativity beyond the control of copyright.  Tushnet on women recoding texts through slash, gender parody, etc.  Scholarship unpacking the romance of authorial control and the way in which audiences can recode works.  Questions like: who’s served by IP control? Who’s being excluded and why?  Ann Bartow: areas of creativity, particularly women’s creativity, completely unrecognized by copyright law.  Some success in that critical approach.  Infamous Gay Olympic cases coexist with more modern cases defending gay activists’ rights to parody websites (Fallwell.com).  Critical approach to copyright asks how entitlements are distributed and their effects on disenfranchised groups; use fair use to restore some rights.

Third: indigenous groups; traditional knowledge; new ways to define and manage intangible resources. Social relations to property: strong rights of exclusion give way to more malleable group rights/collective knowledge.

Open source: parallels to CLS’s institutional critique.  Nomos & Narrative: the same rhetoric can be seen in activism/disobedience by groups like Downhill Battle, which organized the Grey Album protest.  Have forced malleability.

Q: Cariou v. Prince.

RT: Transformative within context, even if not understood as new meaning/message by outsiders.  AndyWarhol Foundation brief is fantastic on this.

Katyal: We live in a different world for uses of imagery. It was easier to tell who was David and who Goliath, commercial/noncommercial.  We have structures suggesting clear boundaries but the reality is that when fair use expands it expands for both commercial and noncommercial entities.  Well-financed artists can come along and appropriate work of less well-financed artists. Distributive consequences among artists.  Art production as a system makes it hard to tell when things are commercial.

Goodrich: scholarship can give us facts: who is doing what to whom?  CLS is vibrant/never faded in international law.  Assertion of identities in oppressive contexts—all the way through to the Arab Spring.

Katyal: one big parallel is unmaking or recoding the idea of sovereignty.  CLS was useful to pierce the sovereignty of a work; authorial control is indeterminate; audiences/third parties have power to interpret. Internationally, that’s similar. Piercing private and public sovereignty; fluidity in ability to reinterpret.

RT: power flows. Internationally: USTR goes to WIPO and gets anticircumvention language, then goes to Congress and says we have international obligations.  Fluidity is not a clear win for anyone.  It can be exploited especially by those with lobbyists; documentarians didn’t know that their fair use rights had been given up in a foreign country. Power is slippery: Ultraviolet/streaming media as the future; control will be moved so that again you as individual will only be hailed as a consumer of video, on demand, but not as a creator or an owner.

My thoughts listening to Katyal: 2009 DMCA hearings: Vividly recall question from Copyright Office panel: couldn’t we give an exception just for women and racial minorities?  Put liberal commitments (diversity, property/control) into tension. 

Q: Maria Pallante said that the author’s interest is the social interest.

Katyal: Doesn’t think that’s so.  Copyright law can’t be authorial control only.  Constitutional principles: First Amendment concerns over preliminary injunctions.

RT: work is valuable only because of the audience—the farmer and the railroad are both “responsible” for the railroad’s sparks that set the crops on fire. We learn that in law school, but copyright tries to make us forget that. Responsibility doesn’t mean a natural allocation of rights or responsibilities; it has to be a choice.

Q: What about using Citizens United to help rights of free speech in IP?

RT: Deven Desai has a good article on this for trademark. I am dubious that it will work because though the logic is very strong I don’t believe that courts will adhere to logic when it comes to IP rights, any more than they did in Eldred and Golan.  “Copyright” proved a stopping point.

IP & Gender at AU

I missed Chris Sprigman's talk yesterday because I was on a plane, but AU makes webcasts available!  Another one of note looks to be Copy Culture, Media Piracy, and Shadow Libraries, described as:

Joe Karaganis, a researcher at Columbia University’s American Assembly, and Bodó Balázs, a professor at Budapest University of Technology and Economics and Fellow at Harvard University’s Berkman Center for Internet and Society, will discuss their ongoing research on culture and media piracy in the U.S. and Europe.
Karaganis will discuss a recent comparative study, "Copy Culture in the US and Germany," which maps digital media practices and attitudes toward copyright enforcement in the two countries.
Balázs will discuss his ongoing research on the complex system of rules and governance mechanisms in piratical P2P file-sharing “darknets,” including communal enforcement of intellectual property –like regimes within such communities.

Today we had a roundtable discussion of IP-less spaces and gender.

Peter Jaszi: mapping connections between areas of gender studies and IP scholarship, leading in some years to a larger, more formal gathering.  Today is a mapping day.

Lorraine Aragon: just as the law is starting to look at negative spaces of IP, we find law moving in to colonize them.  Her background is in things like Indonesian art—post-TRIPS cultural property thinking is increasing.  Gender frame: communities of practice in places like Indonesia are gendered.  So you can look at how promotion of circulation is done v. sequestration of knowledge: the cultural ecology.

Chris Sprigman: writes on negative spaces of IP.  Looking at more communities within that negative space; connections between gender/social class/history and the rules of how creativity works in particular communities. 

Me: I talked about Viviana Zelizer and fandom as interprenetrated commercial/noncommercial space: certain kinds of market relations meld with a gift economy.

Libby Smigel: Dance Heritage Coalition—dance history and dance criticism.  Our connection to law came through fair use best practices for dance libraries/archives.  The dance field wasn’t terribly clear on what kind of IP/copyright really applied to it or didn’t.

Vicki Jackson: longtime participant; has written on quilting as one of these communities.

Sean Pager: norms within filesharing communities: there will actually be takedowns in those communities if you put up the wrong kind of material.  (I am desperate to know more, which is why I like the paper by Balázs above.)

Michael Carroll: anthropologists like to measure the gap between what people say and what they do; gender plays an important role in that gap.  (Though see this report on P2P practices in the US and Germany, which are generally similar across men and women.) 

Daniela Kraiem: women’s paid and unpaid care work.  Spaces that are part of the informal economy but make up what’s most important to people—art, family, care obligations.  Spaces generally based on intergenerational reciprocity rather than on bargain or exchange—long-term relationships, family and communities of practice similarly.

Christine Haight Farley: interested in trademark and gender.  Taking an online design course and the biggest conversation among 5000 course members is about IP. 

Sprigman: we’re at the beginning of investigating the negative space.  Communities that have been looked at: fashion, food, open source software, roller derby, comedy, magicians, tattoos, but even there none of the articles represent a complete view of any industry: fashion is enormous and ever-changing.  Some areas remain untouched: furniture, an important US industry, existing on the borderline of IP, with some design patent/TM action but mostly no IP protection.  Emeco just sued Restoration Hardware for knocking off the Navy chair; he doesn’t think it’s a good suit.  North Carolina, where the industry is centered, is open to researchers.  Food—much more work to be done.  Cookbooks serve a lot of functions, only some of which have to do with cooking: signalling social class/taste/gender.

Within communities of pirates, more work to be done.  Furthernet: watching their IP norms.  Within jamband community, there are robust norms (Mark Schultz has a paper).  Are there conversations among musical communities about whether that model can be exported?

Also different perspectives.  His centers in law & economics.  That’s a reasonably useful lens, but to be a real area of scholarship, this needs to attract scholars who think differently and use a variety of tools.  How IP without IP interfaces with IP generally: Why has fashion gone so little noticed for so long?  Something about law: IP lawyers are interested in places where IP is, not where it isn’t.  But IP isn’t really for people who love termination of transfers; people who practice it tend to admire the creative spirit and the people who use it for a living.  They think IP is the handmaiden of creativity: sometimes it is and sometimes it isn’t.  If we break the supposed iron link between IP and creativity and recognize the true elasticity of that link, we need that kind of anthropological scholarship.

Jaszi: what’s the range of methodologies available?  Formal survey research; less clearly bounded information collection.

Sprigman: most formal—used Bureau of Labor Statistics to study fashion prices over time.  Price at the top turns out not to be meaningfully disciplined by the presence of low-end knockoffs.  Whatever is going on with knockoffs, there’s little elasticity.  That’s very formal data collection/analysis.  So too the Von Hippel etc. survey of French chefs—qualitative data backed up with quantitative survey of consequences of norm violation.  Narrow but defensible conclusion about copying and attribution in that defined community.  Then there is qualitative empirical work. Comedian study is relatively formal: we had a script for the interviews, though we could stray.  Experimental studies also offer another option—his work on valuation of IP. Would love to start testing norms about copying/appropriation/credit.  Many norms that we have documented in scholarship could be tested in the lab.  Historical studies, sociological studies of institutions—all needs to be done. 

Carroll: participant-observer/longitudinal studies—gaps often get revealed over time.

Sprigman: Ashley Mears’ book on Pricing Beauty is a great example of this.  Embedded herself as a fashion model.  Great work on how agencies and models think.

Me: recognize that as scholars we are also norm entrepreneurs intervening in these very fields—my DMCA advocacy, Sprigman testifying before Congress, AU promoting fair use principles.  Scholars should do that when their work has practical applications, but it’s a tension we need to recognize—we don’t leave the fields we study untouched.

Smigel: in the dance field, people worry about influence (that is, one choreographer on another), but they haven’t come together to talk about underlying questions.

Aragon: anthropologists already accept that law itself is partly constructing what it purports to regulate.  At the same time, with globalization and confusions about how the world has changed, we have gotten so busy looking at global connections that we aren’t doing sustained microanalytic examination of norms.  Innovation as a concept: creativity works as a more open concept than innovation.  Indonesia—an ethnomusicologist has looked at when music is at the same level of change, Americans emphasize its newness but Indonesians emphasize its continuities with the past, because that’s their source of authority.  IP thrives on newness, but the undercurrent is that nothing is really novel.  Magic studies: exposure more of a threat than copying. Also shows up in cross-cultural studies. 

 

Smigel: Recurrent theme from choreographers: I want my process saved more than I want the outcome/a videotape. Often a very organic process that changes from work to work; doesn’t seem copyrightable, but they feel it’s the signature part of what makes them an important artist.

Carroll: what would preservation look like?

Smigel: conundrum.  We have 3000 hours of a rehearsal tape for one artist, including water breaks; not simple.  We embedded an archivist to watch the creation of a work; we believe it’s the first embedded archivist. There were moments where pieces of the work emerged because of smells in the studio that day.  They didn’t come in with a fully formed work but rather incorporated all sorts of things, including contributions from participants.  Differs by artist, location, collaboration. A lot of contemporary dance is now collaborative, falling out of simple single-author copyright scheme.

Jaszi: possible to derive some findings about unarticulated norms that relate to, e.g., contributions of dancers v. contributions of choreographer?  Almost all of these investigations don’t focus on geographic specificity, but maybe we should be more attentive to that even with constructed nongeographic communities (e.g. online) which may be different from place-based communities.  Culture of hip-hop in a particular city, for example: thick accounts of creativity in a particular place and time.

Jamal Thompson: it depends. Seattle’s filmmakers have a shared history/psychology (we’re not LA and Vancouver overtook us and the weather’s horrible), but that’s very different from the hip-hop community’s or the performing arts community’s.

My thoughts: design v. serendipity; both affect online and offline spaces.  Some cities invest in having an “arts” industry, successfully and unsuccessfully.  Norms of attribution on Tumblr, for example; not necessarily intentional even though we assume that online design is always deliberate.  User communities react to affordances but not necessarily in predictable ways.

Kraiem: feminist legal method: asking the other question: where are the others in this story?  A lot to be done in this space simply by doing that.  Then there’s consciousness raising.  Belongs to a heavily female online forum with very strong pro-copyright beliefs, but then they freely share and comment on unpublished excerpts with the expectation that it’s copyright that lets them do that.  Then there’s explicit norm violation in order to push/change the norm: Pussy Riot etc. Self-conscious decision to violate norms.

Sprigman: was fashion/food outside IP because of neglect of the creative output of women?  Doesn’t have a great answer for that yet.  But even if we answered yes, there’d still be a normative question: is the right answer “now give me mine” or something else?

Kraiem: a 2-tiered world. 

Sprigman: politically, the idea that it was discriminatory (intentional or unconscious) would increase the likelihood that copyright would extend to fashion.

 

Jaszi: returns to the point that our findings are politically useful to some groups—a real possibility that work may have direct consequences in ongoing doctrinal contests.

Thompson: men aren’t opposed to pioneering/tweaking—open source looks like that, but literature v. code has a gender mapping.  (Of course historically literature was seen as the province of men!)

Kraiem: increased formality draws more male commentary.  A full chapter/work would draw more male attention.  The informal, constant back and forth draws almost no male attention.

Sprigman: in open source, often you get little bits of code meant to do something very specific; the whole task is componentized.  It’s not the level of formality, but the clarity of the expectations—an idea about how to make this routine run better/use fewer processor resources.

Jaszi: how different communities are constituted, who participates, and to what extent the characterization of communities as gendered is operative.

Smigel: Martha Graham warned people that if she watched their dances she’d appropriate what she found useful and make it better in her own work.  Has seen how a dancer can learn and remember a routine.  That was pre-copyright of dance—1930s/40s, when only narrative was copyrightable.  Postmodern/experimental: Merce Cunningham, Judson Church group.  Now, a choreographer bristles at being labeled Judson Church: we were all doing different things! They seem to feel much more investment in individuality/breaking away from Graham.  Now: Julia Rhodes/Lucky Plush, much more indicative of current mashup generation in seeing that almost everything in her toolbox comes from some predecessor, and she footnotes these in her programs, including jazz hands of Bob Fosse, contractions from Martha Graham/William Shatner in Star Trek, Beyonce’s Single Ladies.  Some people go to another culture and bring back ideas and never credit; Rhodes’ great lament is that the dancers she works with don’t know dance history.  Her website: stealthisdance.com: self-deprecating look at what she thinks we all do. 

Post-Graham, it was a period of male dominance.  Male choreographers appealed to IP, TM too to establish distinctiveness/control.  Suspicion among dance community that materials will be stolen occasioned more than once accusations that a female choreographer who had access to public records at NYPL had access to moves that very few people had seen performed live and used them without attribution for commercial benefit.

RT: different subgroups: there are some fan groups that are mainly self-identified women, and some that are mainly self-identified men.  Star Wars fan films v. fan video/fan fiction.

Carroll: what are people willing to reveal to the community?  Fear of copying may matter—if you rely on the community to enforce; if the community doesn’t have a history and can’t recognize a ripoff, that makes norm based enforcement harder.

 

Elizabeth Jackson: dance may also have been late to copyrightability because it was female (non-narrative: of course non-narrativity has also been associated with femaleness).  What do we make of dance norms now that dance has been assimilated into IP law?

Vicki Jackson: Gee’s Bend in Alabama, remote and inaccessible; quilting generally genders female; domestic/gift economy.  Passed-down patterns and the norms seemed to work. Then there were interventions that were very male: the first intervention, civil rights workers/Freedom quilting bee who came & saw these quilts and put them to work making patterns that were more classical quilting to be sold at dep’t stores, no longer messy/utilitarian.  But the underground, abstract art continued.  Recently, another male monetizer: promised that money would return to the community; this intervention has shaken up the community.  The old quilts were now hanging in galleries and art museums, valued in the $100,000s.  Young granddaughters are doing derivative works, selling them under the auspices of this monetizer.  Creates conflict/crossroads.  In the past, they’d been told to quilt Amish-like quilts and it’s not clear that money will come back, but notions of what their craft was have been disrupted.  It’s the IP that’s valuable now—the sanitized prints/designs, mass produced, not the imperfect/slightly smelly version actually covering a bed in the quilter’s house.

Sprigman: crystallizes the style so that it becomes abstracted from the quilt.  The style becomes a thing apart from the quilt; are quiltmakers now creating examples of the style rather than quilts—does it change the way they understand what they’re doing? 

Jackson: maybe—the first intervention led them to have a “day job” creating the Amish-style quilts, but now that Gee’s Bend has become a mass merchandised style, there are ripoffs.

(Reminds me of conflicts in fandom over things like Fifty Shades of Grey and pulling-to-publish.)

Aragon: Indonesia: shift occurs in commodification in which the men become the designers and the women apply the hot wax, when women formerly did design too.  Women control knowledge on dyes—age-related/post-menopausal; passed down within families.

Sprigman: this empirical work requires investment in studying, but the payoff is great.  Traditional knowledge scholarship is implicated/exciting—there’s a lot of IP without IP around the world.  Too simple to say “we should protect this as a domain of no IP” but there are consequences to bringing culture work into the formal legal system, and some are pretty serious.  Communicative function of creativity and monetization may conflict—commoditization may interfere with people’s ability to make meanings, even in intimate relations.

Smigel: has inspired her to think beyond dance: consider yoga, commercialized Pilates, other movement systems: traditional values but also commodified.

Jaszi: give us a research wish list.

RT: kids.  What are kids learning about IP, credit, etc.  What do they believe and what do they do?

Jaszi: intergenerational transmission—sometimes it’s kids teaching younger kids (playground games and verses, with norms of their own about the values of fidelity and innovation), and sometimes it’s adults.

Product v. process: if we just ask about IP/products we may not see how things are made, which is key information.

Sprigman: big variation in US v. European treatment of design protection.  That deserves study in terms of its effects on business practices.

Discussion of hairstyles: no protection, generally, but Jacob says that some places do try to protect their process.  Farley: compare hair braiding, and the labor involved in braiding. 

Aragon: context dependence of innovation: something looks innovative to you because it’s from a different culture, but others in that culture recognize it as a variant or a standard move.  Compare things like Zumba where traditional moves are packaged and licensed—some of these programs can be offensive, as when they bring out the “talking stick” disconnected from its Native American roots.

Farley: Zumba’s story is that it was created by accident: Latin dance moves used for exercise; monetized with an IP lawyer early on in the story. 

Carroll: need ethnographic studies about what kinds of copying are ok.  Why is it ok for two people at a cocktail party to show up in the same car but not for two women to wear the same dress (even by coincidence)?  Sprigman: “Who Wore It Better?” features when stars wear the same outfits—it’s not just about who’s better looking.  Avoiding copying is a way of deferring direct competition.  Farley: not necessarily gendered; except that men don’t worry about wearing the same shirt. 

Thompson: presentation matters—look at the Apple example. 

Jaszi: that’s a limitation of the work on food so far; it’s focused on recipes and not on presentation.  (I wonder if that’s a lawyerly discomfort with the non-replicable which can’t really be copied and thus can’t really be protected by IP, though we are often willing to pretend it can be.  And there’s a gender connection back to the specificity/materiality of the body.)

Farley: increasing number of cases about restaurant décor (TM) and style.

Carroll: empirical research shows that how something tastes is influenced by its presentation.  Wine: wine you think is more expensive tastes better; GIs told to people affect taste; glasses affect taste.

Jaszi: that moves us towards the process side of the process/product scale.

Farley: Hooters case: sued a Fla. restaurant; judge held no infringement because the Hooters outfit was functional.

Jaszi: Fields that are ghettoized/involuntarily gendered female.  Writing instruction as an example.  Responsible for transmission of norms about plagiarism, academic honesty, good and bad writing practice.  Interesting opportunities for study.