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: 4th
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.  

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