International Society for the History and Theory of Intellectual Property (ISHTIP) Program 2015
Center for Technology, Innovation, and Competition (Penn Law) and the Cinema Studies Program (Penn Arts and Sciences)
Early Career, Panel 1 | Peter Jaszi (American University), Moderator
Megan Rae Blakely (University of Glasgow) | Intellectual Property and Intangible Culture Heritage in Celtic-derived Cultures
Intangible side of IP: owning rights. We think of developing countries as having culture and developed as having knowledge, but that is a false binary. Intangible cultural heritage: there’s a quote saying the UK has none to protect.
Tangification: the process of tangible propertization of ICH—ossified and stuck, prevented from evolving and being practiced.
1970 World Heritage Convention: European focused, monuments etc. Berne/TRIPS: conventional IP. 2003 ICH Convention: response to 1970 convention, used language of safeguarding rather than propertizing and protecting. 2003 definition was very broad: practices, expressions, knowledge, skills, instruments, objects, artefacts, cultural spaces, etc. ICH is constantly recreated by the practicing community and must be allowed to evolve. Festivals, performing arts, social practices, etc. Would have to alter it to protect it with IP, which is our default way of protecting things. US, UK and Ireland are not signatories to 2003 convention, which imposes obligation to list/index ICH; promote awareness, education, and int’l participation; urgent safeguarding of ICH at risk of dying out.
ICH provides identity and continuity; continuous recreation. Tangification comes out of IGH, with fixation and ossification and closed-list definitions. Tangification is prerequisite to propertization—necessary but not sufficient for propertization. Likewise propertization is necessary but not sufficient for commodification, and commodification is necessary but not sufficient to become a commodity/lose cultural meaning.
Don’t need propertization even w/tangification and value. Tartan: repurposed to represent clans. Now there’s a registry for tartan, run by gov’t, taken back from clans. Wales: Eisteddfod, a language, dance, singing festival—Welsh was removed from courts in 1500s; not until last century was Welsh brought back into legal system and education. Ireland: tourism promotion—when does it become commercial cultural branding? What it means to be Irish as a tourism/government priority as opposed to community practices of ICH.
Recognize power of legal categorization on diverse forms of ICH; create level playing field.
Fiona Macmillan: ICH is often understood as resistance to power; lists of ICH are almost entirely used by developing countries. There is often an interest in tourism. As IP scholars, we always think of commodification through propertization. But tourism is through another mechanism.
Xan Sarah Chacko (University of California, Davis) | Protective Pictures: The Role of the Image in Plant Patents
What counts as patentable material has changed with the law, science, and technology. Images have gone from color photos to electrophoresis images of specific gene markers that allegedly produce the result. Tracks changes in illustration: shift from pure description to explication of the underlying innovation in the images. How do patent visuals fit into longer history of representation in scientific discourse?
1930 Plant Patent Act: 17 years of exclusivity for new varieties of asexually propagated plants. Images of plants provide proof of uniqueness: patentability is based on novelty; inventors didn’t have to show method of production, only the novel features. Examining procedure: They were supposed to be artistic/competent, not mechanical drawings, and faithfully represent the appearance of the plant and disclose its distinctive characteristics capable of visual description. Drawings strictly adhered to because they formed the claim. Most plant patents in this period were roses: image was crucial to show novelty. US breeders created fewer new varieties after 1930 compared to before, looking at horticultural societies’ registration systems which were used to make priority claims. Rise of color photography: color had to be depicted if color was claimed as part of the plant.
1970: Plant Variety Protection Act: Visualization of disease resistance is shown by a table. Visualization as comparison: shows size of seeds, for example. Photograph takes on value, but not objectivity. Optical consistency alleviates the burden of objectivity; the main objective is to have matching, not naïve realism.
1980: Diamond v. Chakrabarty: Tomato plants exhibiting continuous light tolerance—method; plant; gene may all be controlled—genotypic information is part of the patent, showing sequences of genetic markers. New kinds of representation. But even in 2012, we have older forms of representation with images of a cherry including a cut-open cherry, calling back to the tradition of still lives. Romantic reference? Most of the pages of the application for the cherry are filled w/DNA code.
Q: how were drawings used to establish scope of claim and full disclosure of the claim through the image?
A: In the first act, the disclosure is the image—even in the text, they can’t tell you how they produced this particular variety—it could have been found in a field. 1970s: post-genomic world it is the genes that are referenced, even if the attribute is color, height, etc.
Silbey: what do the outtakes and drafts look like before the patent is filed?
Henrique Carvalho (Birkbeck, University of London) | Drahos’s Ontological Skepticism: Ontological skepticism = reluctance to believe in existence of IP objects. Cariou v. Prince: most interesting part of litigation for him was Prince’s deposition, which at times read as an Abbott & Costello Who’s On First routine. (Note that there are copyright claims around that routine!) Prince claims it’s a painting, not a scanned photograph. He painted the features “on” the photograph. He rephotographed images: a “real” photograph, not an image I torn out of the magazine. He claims it wasn’t a photo of a photo, but a photo of a page. Lawyer and artist use the same word in different senses. Of course Prince is a prankster, but the gap between them is deeper. Carve reality up differently.
Intangibles are abstract objects. But they “exist.” Hard to measure, control, evaluate—hard to believe in? Peter Drahos was not the first to express skepticism, but did so in articulate and detailed way. Stakes his skepticism in Philosophy of IP by explaining that property rights entail relations between two people and between a person and an object. But in IP abstract objects are a convenient legal fiction, expanding the commodity production possibilities of capitalism.
Drahos asks: by recognizing IP rights, is the law forced to recognize “spooky” entities, universals, Plato’s eternal forms. Gives two alternatives: either only particulars exist and universals are just convenient fictions/mental projections (the Stoic alternative). Or abstract objects exist and aren’t reducible to particulars.
Stoics: they would have us say that universals don’t exist but are still real/subsist in particulars. But that’s hard to understand. This is a difficulty with the Stoic position.
Type/token: artifacts could be tokens—pieces of paper marked with ink; while type is the abstact object, a particular novel. Two different concrete objects are still the “same novel.” Nothing spooky about these types. If we say John and Paul are wearing the same tie, we don’t mean that a piece of cloth holds their necks together. We don’t need to believe there is a platonic tie somewhere in another realm of existence to make the type/token distinction. Types don’t have a specific spatial/temporal location; but they don’t have to be “elsewhere.” They have multiple tokens/are repeatable. And they may have some spatiotemporal properties: date of creation. Types can share material predicates w/their tokens, such as “being made of silk.”
Drahos dismisses a philosophical approach because it doesn’t connect existential concerns over abstract objects to questions about power. Drahos implicitly still sides w/the realists/denies abstract objects exist. Suspension of disbelief has material consequences in decisions on infringement, in which judges/YouTube algorithms are called on to determine whether an item is plaintiff’s work. Abstract objects serve as the basis of identity judgments. Using fictional entities = judgments are actually pragmatic/based on convention. But abstractness comes in degrees: it could be not-concrete, or it could be vague. Identity criteria used in making judgments are key. Drahos says: Identity conditions of abstract objects are themselves matters of conventional judgments. But: We need not deny the existence of abstract objects, nor to say that without law all there is are physical objects, to reach this conclusion.
Mike Madison: what seems to matter in your framing is pragmatics of legal constructions of objects w/in legal systems v. constructions of objects in art worlds, tech worlds, etc. That’s where the interesting stuff will be—Kevin Collins has written about the type/token distinction. Practical payoff will be most interesting/usable for this community of scholars.
Omri Rachum-Twaig (Tel Aviv University) | Genre Theory and Copyright Law: The Common Building Blocks of Creativity
Genre as speech act: semantics, syntax, and pragmatics: a system of rules underlying creative activity or works of authorship. Institutional approach to genre: shared social conventions. Analogical approach: genre as biological species or family resemblance—can evolve over time.
Genre theory refers to common building blocks of text (including music, visual arts, any type of meaningful object); genre theory sees these building blocks as basis for creative activity. One perspective: author’s—give the necessary tools and constraints for authors to create to begin with. (Cognitive psych understanding of genre.) Also as meaning making tool from audience’s perspective. Allows audience to extract meaning out of creative products and to attach value ot them. Both ideas and expression can be building blocks for development and creation of genres.
Case study: detective story. Edgar Allan Poe v. Arthur Conan Doyle. Very well documented development of genre, still existing and growing; has two central and dominant “first” authors who are chronologically proximate. Similarities b/t Poe’s Dupin & Doyle’s Holmes: dualities—detective and companion; detective combines imagination of poet/mind of mathematician; no interest in intimate relationships; heavy pipe smoker, enjoys long strolls at night, connected to prefect of police; uses logical deduction. Similarities exist both at high and low levels of abstraction—the Locked Room Mystery appears in both detectives’ stories: Murders in the Rue Morgue: murder in upper floor apartment, locked room; window shut closed after murderer fled; in Poe the murderer is orangutan from Southeast Asia accompanied by a French sailor and in Doyle it’s an Aboriginal “little black man” from Southeast Asia accompanied by a former British Marine soldier. Given today’s copyright, he thinks this would be copyright infringement. Cf. Salinger. (I don’t agree—if you look at all the movie cases, these similarities are unlikely to be enough, though it might make it past a motion to dismiss.)
Implications: mismatch b/t legal norm and creativity—genre theory supports the use of expression as common building blocks. Help rethink normative justification for derivative works; challenges conceptual separation between derivative works and reproductions. (I think we should reserve derivative works for translation into new mediums, for much this reason.)
Q: market dynamics: massive increase in pulp detective novels, for example. The sensation novel is a branch. Very popular translated (French) author (sp?) into English. There’s a question of how publishers work, how these works are being marketed, how the contracts are worded. Underpinning the typology is economic relations that produce/reproduce genre characteristics. Copyright suppresses that discussion through fetishization of originality.
A: Agrees there were precedents but Poe and Doyle were well known and very close in their stories. Looking for inner reasons/processes of author when s/he chooses, consciously or unconsciously, to use specific types of previous knowledge whether idea or expression. (But that’s not distinct from economics. Dickens got paid by the word; Dumas by the line—and now you know something about why their distinctive styles are the way they are. Today, publishers happily tell their good authors which types of books are selling and get them to write those types of books—I know of many examples.)