ISHTIP at Penn, part 1

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.)

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