Jaszi festschrift: Panel 2 – Authorship

Posted on November 18, 2016 by rtushnet
Margaret Chon, What Berne Article 15(4) Tells Us
Decolonization and development: only one country, India, initially
designated an authority to facilitate compulsory licensing and even after Berne
was amended only two dozen countries have taken advantage of the option.  Non implementation of provision on TRIPS and
public health—the story that these development-oriented provisions tell is one
of disconnect, not development; asymmetry, not alignment. 
Anonymity/anonymous authorship.  History in which women couldn’t risk being
known as writers/having a public identity. 
Attention to quilting as quintessential type of anonymous folklore that
is gendered female.  As interesting:
Woolf’s quote towards the end of her life that “anon is dead.” She was
responding to the cult of the romantic author. It was anonymity that appealed
to the nostalgia of modernist British writers for balladeers etc.: prizing
aesthetic of anonymity.  Individuality in
authors and in fragmentation of authorship prevented works from being absorbed
into the public as part of their consciousness as ballads were.
Romantic anonymity: not the same as the traditional pool of
cultural knowledge that is supposedly the opposite of romantic authorship.  Berne tells us that publisher is
representative of published author and the state is the representative of the
unknown author/collective. The latter is pressed into the service of building a
national identity. But that division ignores the dynamism of the anonymous
creator.  Reasons for anonymity: Standing
out from the mass; call attention to author’s shame or risk; to promote a cause;
expressions for political minorities. 
Recent mural by Banksy: will be protected by gov’t of Calais even as it
destroys the surrounding “Calais jungle.” 
Promoting the state undermines local political authorities who might act
as custodians, and erases the need to create further devolution of authority to
create space for dissent.
Christine Farley
Jaszi’s lessons: Authorship should not obscure the need for
cultural commons; authorship has been a contested concept for a long time.
Because of the romantic author, it’s hard to focus on the reality of collective
creativity.
AI as a challenge to the concept of authorship. But has
there ever been the romantic author? In the heyday of Renaissance art, the
artist might not have touched the canvas; Jeff Koons & Andy Warhol; we’ve
always had mechanical aids to authorship as well. 16th Century:
Vermeer & other artists used camera obscura to help them with their art.
Algorithmic art: poetry can now be created by
computers.  Procedurally generating
works: signal and noise are the same thing. 
Visual art likewise.  If art
demands intentionality, that’s not art. But artists have always challenged that
requirement: Dada’s art of chance & others. 
Still, there is someone pulling the strings/causing something to
happen.  Is this new environment
different in the sense of shared autonomy? 
The singularity is near, focused on intelligence/thought (not directly
on art).  A human can take a leap of
faith without following an orchestrated pattern.  A human is capable of subtlety and nuance; AI
research says these are cliches that we will get beyond; there is no last
frontier for the human mind.
New ways of extending authorship metaphor/be on guard for
ways in which that might happen.  If we
have a corporation generating all of the works and can maintain that control
rather than creating a commons of cultural production, this could be a big
problem.
Robert Brauneis, How to Fix Copyright Registration: A Proposal
to Institute Graduated,
Periodic Registration Fees
Jaszi was involved in the §412 report. Provides incentive to
create useful record; also, since statutory damages are exceptional, one ought
to have to act in some exceptional but not difficult way to get them.  Is the CO currently providing information
about ownership etc. in an optimal way? 
No.  The registration records don’t
even always contain names of authors of the registered works, making it
much  more difficult to determine when
the term of © has ended or who holds the power to terminate transfers. 
Why have courts sanctioned this practice? Before electronic
registration, it was expensive and error-prone tedium of typing; afterwards,
still concerns about system capacity. 12 million records of works potentially
still under copyright until 1977 that are not electronically searchable or online
through the CO.  1.2 million renewal
registrations 1950-1992 not electronically searchable/online. Most registered
works are in the public domain but we don’t know easily which ones.  Credit for figures: Zvi Rosen.
Recording documents: Means of submission, paper only; PTO
electronic only.  Per year recordings:
11,000, v. 400,000. Staff of 12 v. 10 for PTO recording division. Average time
from receipt to online cataloging 225 days v. one day.  Fee: $105 plus $35 per additional titles v.
$0 recording costs at PTO. 
Lots of other things to be done: registration system that
has API that would allow integration of registration application into authoring
software like Photoshop, Pro Tools. 
Integration of copyright information into user software (Spotify, Shazam).  Why not enough resources?  Total 2015 budget $48 million, only $28
million from fees.  Library of Congress
has to balance its requests w/other asks, around $600 million, with CO only a
small part.  PTO’s budget is $3 billion,
all from fees. 
Those who benefit more from the PTO pay more. Diachronic
differentiation: PTO changes fees over time. 
Relatively small application fee going in, $280. But as you get more
confident in proceeding, you pay more, $2560 total by issuance.  Maintenance fees at 3.5 years, 7.5 years,
11.5 years, increasing over time to a total of $15160. Also synchronic
differentiation: discounts for small/medium enterprises of 50%, 75% for micro
enterprises.  The result is a 24:1 ratio
between what a micro enterprise pays at issuance versus what a regular
enterprise would pay for a full term patent.
42.5% of patent office budget is maintenance fees.  Substantial percentage of filing, search and
examination fees are 31.3%. 
Differentiation in copyright registration is $55 for standard, $35 for
single work, single claimant who is also the author.  1.5:1 ratio, and so the movie Avatar with $2.8 billion in revenue is
paying 1.5 as much as the author of the Let’s
Go Crazy video of her kid, Stephanie Lenz, with no revenue.
So we should pursue periodic registration fees &
graduated registration fees.  Maintenance
fees are prohibited for non-US works by Berne Convention & TRIPS.  [How many registered works are non-US
works?]  However, periodic fees to maintain
the additional benefits of registration are not: statutory damages and
attorneys’ fees across the life of the ©. 
Since they’re extraordinary, one should have to do something extra to
receive them—and it shouldn’t necessarily be just once.  For US works, ability to file infringement
suit could be added.  We could also
extend the enterprise size differentiation of the PTO.  More radically: that has always correlated
badly with the value of the work. Thought experiment: graduated fees for
graduated statory remedy, attorney’s fee ceilings.  For $0, could give you actual damages.  $50: $200-$10,000; $200 gets more, and $800
gets $750 up to maximum.  [Might have to
integrate that with small claims proposal.]
Graduated fees lead applicants to value their own works and
evaluate their own desire to monetize those works. [Could you change over time
and step up for subsequent infringements if infringement became common/the work
became valuable? As long as there was no retroactive applicability, that could
make sense.]
Is this a political nonstarter? Maintenance fees and SME
discount came in 1985, and 2013 created the micro discount.  Odd crossing of paths: patent got more
formality oriented as copyright entered Berne era.
Marc Perlman, How to Do Things With Romantic Ideology
First mentioned by Umbreit 1938, taken up by Benjamin Kaplan
in 1967, who saw Romantic ideology as still influential.  Jaszi in 1981 followed Kaplan but suggested
that the Romantic fever had broken b/c imitation was widespread in serious
literature.  Litman (1990): romantic
model of authorship was still alive. Influence of poststructuralist literary
theory in 1990s made intertextuality part of critiques of © expansion. 
Most appeals to history advance a causal thesis about how
literary theory influences law.  Called
into question: may be implausible or at least overstated.  I argue that even if the causal thesis is
correct, that wouldn’t itself delegitimize Romantic authorship, which might be
a good/correct idea, like the conservation of energy.  There is no simple relationship between law
and social norms; law is a site of struggle. Customary law: it can be hard to
determine exact contents of norm except in the smallest groups. Literary
imitation and borrowing was affirmed as legit by many in pre-Romantic literary
circles, but there were also constant accusations of plagiarism in pre-Romantic
literature.  Gap between aesthetics in
the books and aesthetics as lived.  Cries
of plagiarism were raised both for literal copying and for tenuous
similarities.
Is Romantic authorship normative in our society today?  Kaplan and Litman thought so, but Jaszi
thought imitation had lost its stigma.
Seeing how differently ancestors thought can unfreeze our
minds, contemplate radical reform. It was the search for such inspiration that
motivated Kaplan.  As things were
different in the past, they probably need not be as they are. But there are
problems w/this view: it is not easy to get from “things have been otherwise”
to “things could be otherwise.”  Have
been = often informal norms. As jurists, when we posit “could be” we usually
posit revision of formal laws.  Difficult
enough to read laws from practices; equally difficult to turn practices into
laws. We need historical interpretations that are highly contextualized.  Trap of exoticism, others.
Anecdote about 15th c. Chinese painter used to
support © minimalism by Lewis Hyde.  In
ancient China creativity was an act of reverence toward earlier generations; to
copy the work of those who came before was respect and not theft. Quotes Shen
Zhou: if my poems and paintings should prove to be some aid to forgers, what is
there for me to grudge about?  From Wen
Fong 1962, used to demonstrate tolerance by painters towards forging of their
own works.  But the full quote is about
signing forgeries; someone asked the master to stop.  “When people beg me for my paintings, do you
suppose they merely want them for enjoyment … they merely want them for making
profit for them.”  Shen Zhou &
colleagues were prominent intellectual/social leaders; as gentleman painters,
they weren’t supposed to accept any fee, and demands were often a nuisance.
They would thus be willing to lend their names to imitations. Not a purely
selfless display, but highly contextualized. He wasn’t supposed to earn money; those
who clamored for his paintings had found a way to profit that he couldn’t
use.  He looks less like a defender of
the commons and more like a sly critic of the venality of his “admirers.”

What then?  Romantic
ideology thesis is a polemical weapon.  Weapons
are inherently disloyal tools, don’t care about uses to which they’re put.
Historical examples can also turn against their masters. The only sure way to
prevent betrayal is to avoid historical examples entirely.  Scholar asks what is; jurist asks what ought
to be. Scholar has no special expertise in ought, but may enable jurist to
liberate her imagination.

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ABA amicus in Lee v. Tam

Posted on November 18, 2016 by rtushnet
The ABA’s
amicus in Lee v. Tam in favor of neither party is largely strong (though I don’t agree with everything
therein) but does contain one argument that is unworthy of the ABA’s trademark
experts:
The theory that otherwise valid
marks become unprotectable because they are unregistrable also cannot be
reconciled with Section 43(c) of Act, 15 U.S.C. § 1125(c) (2012), which protects
the distinctiveness of famous marks against likely dilution. Under that
statute, whether or not a mark is registered is merely one of four nonexclusive
factors used to determine whether a mark is sufficiently famous to qualify for
protection. See 15 U.S.C. § 1125(c)(2). The nonexistence of a registration
therefore does not preclude actions brought under that statute.
This is a classic fallacy of the excluded middle.  It is completely consistent with §43(c) that
dilution protection could be available for a registrable but unregistered mark but not for an unregistrable mark.  The ABA takes the position that unregistrable only sometimes means invalid and unprotectable; I strongly doubt that it wants invalid marks to be given dilution
protection—but on their theory that registration isn’t dispositive to dilution,
such marks should be eligible.  (Actually, the ABA’s position that invalid marks ought to get some “protection” under the common law and §43(a) implies that maybe the ABA does want dilution to be potentially available.  However, that “protection” has historically been not a prohibition on use but an obligation on the second-comer to sufficiently distinguish itself from another’s generic, functional, or abandoned use, which is a confusion-based remedy that has no obvious purchase on dilution.  Even the remedy suggested by the court of appeals in Belmora to implement Bayer’s §43(a) right based on its Mexican rights was supposed to respect the defendant’s rights to use its registered mark in the US.)

The difficulty with the ABA’s theory overall, though it is
not an insurmountable one, is that there is no statutory guide for which
unregistrable marks ought to be considered “invalid” and thus entirely
unprotectable versus which should be merely
unregistrable and protectable under §43(a). 
History may provide some guidance, but it’s actually pretty wobbly on a
lot of the categories of unregistrable marks. 
This is one of the points I make in my forthcoming
article on registration.

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Jaszi festschrift, Panel 1 – Traditional Knowledge

Posted on November 18, 2016 by rtushnet
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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Jaszi festschrift, Panel 1 – Traditional Knowledge

Posted on November 18, 2016 by rtushnet
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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Peter Jaszi lecture, Confessions of a recovering auteurist

Posted on November 18, 2016 by rtushnet
This was a lecture given in honor of Prof. Jaszi’s retirement from teaching, before a festschrift for his work.
New
Librarian of Congress said that she’d have the CO serve the interests of
authors—assumption that authors are ©’s beneficiaries.  Metaphor of authorship/idea that authors’
interests are at the heart of © protection: familiar discourse; can overwhelm
more nuanced discussions of © policy. One strong trope: The inspired geniuses
of cultural production often turn out to be really poor businesspeople: easily
led astray, don’t bother about money; too busy/distracted by the demands of art
itself to look after themselves and their poor, destitute families.  Specialness, high degree of entitlement plus
intense vulnerability: recipe for some kind of protective legal entitlement.
The problem is that often the real circumstances don’t
measure up to the archetype, though occasionally they do.  VC Andrews: passed away having founded an
extremely popular literary genre; left no manuscripts, but representatives of
estate surreptitiously hired a ghostwriter to continue the tradition. IRS tried
to get them to pay a lot of money, resulting in a great tax case. This is
authorship as it is lived, rather than the romantic vision.
Connections between authorship and public interest in
IP.  Authorship rhetoric is persistent and
ubiquitious.  Exchange of conceptual DNA:
celebration of author-genius that was so profound in literary culture jumped
over to © and took hold; dead in literary world but lives on in ©.  Inspired authorship as a way to explain, for
example, the history of American cinema: bodies of work that bore the
individual stamp of an author.  Epic v.
Killian Shows: auteur theory in court; D accused of infringing rights in DW
Griffith’s Birth of a Nation. Our client had only one viable defense, that the
renewal in this case hadn’t been validly filed. There was a renewal, but in
somebody else’s name.  We had to show
that Griffith was the author and thus the only one with the right to
renew.  Our job was literally to take the
premises of cinematic auteur theory and translate them into legal theory.  WFH doctrine under 1909 Act: © belonged to
whoever was in control, and if Griffith was in control there was no one else
who had a right to renew.
Won that case, but had an experience that caused him to
doubt: Killian—relationship b/t derivative work and source following renewal of
© in derivative work.  SCt in Stewart v.
Abend rejected the theory that one work was as good as the other: the
derivative work had as much right to exist as the source work; they should
enjoy autonomous and independent lives. 
Eventually we were taught that the derivative work was a secondary
contribution, subservient to and legally subject to the higher claims of the
author of the original work.  Began to
see concept of authorship as containing ideas of hierarchy: earlier have
greater claims than later; closer to source material = better claims than those
who worked primarily on secondary cultural materials.  Became worrying to him.  Led him to reader response theory, destablizizing
supremacy of author.
If they mention authorship in policy discussions, reach for
your wallet—and count your fingers. Element of flimflam, sometimes very
pronounced, along with sincere/profound influence on discourse.  The idea that © was supposed to provide
revenue for author, children, and grandchildren, so life extension justified
increased term. This is actuarial nonsense, but also historically just wrong.  No discussion of it in Berne etc.; just
inserted by WIPO guide to Berne Convention in 1976.  That’s the first assertion of the claim that
life + 50 was supposed to be for two generations.  Because it “fits” our general naïve belief in
the idea of authorial entitlement and vulnerability, it went over. 
We all contribute to the grip of authorial genius, not just
maximalists but minimalists.  When we,
the latter, make arguments for limits we tend to go back to constitutionalism:
© was supposed to encourage authors.  We
implicitly validate the authorship construct: something about what a special
class of people does is particularly important. 
We can argue about implications of that special importance—great deal of
protection or only a little encouragement, but we concede the proposition.  Yet: Copyright doesn’t always take authorship
seriously.  When you actually look at
doctrine, issues like the unprotectability of authors’ style, a truism of ©, or
how issues of collaboration are handled in ©, you immediately see a
misfit.  Lack of clear connection b/t
conclusions to which a sincere and thoroughgoing conviction of importance of
authorship would lead v. the conclusions we have actually arrived at. 
Manichean conflict b/t irreconcilable ideological visions:
(1) elevates creative process and unique invididuals responsible for it and (2)
asserts the paramount value of public access, openness, etc.
Real life “authors” have strong fairness claims.  Not metaphorical authors, but Wordsworth and
Coleridge but people who labor from day to day to make creative work to sell:
something more real/acute than is comfortable for theorists to
acknowledge.  1994: strong congressional
push to repeal §412 on requiring timely registration for eligibility for
statutory damages/fees; professional commission w/lots of industry &
academic representation deadlocked and its failure to endorse probably
contributed to the proposal’s demise.  We
have enough incentives to registration to provide the basis for a comprehensive
if not complete record of American creativity—and that was Jaszi’s argument:
though eliminating §412 might benefit small authors taken by surprise by the
fact that their earlier failure to act might subsequently bar them from
collecting reasonable compensation for infringement in later years, the
interests of the system, especially in having a database for business and
research purposes, justified turning away from those interests.  He is proud of preserving §412, but also has
some regret that it wasn’t possible to accommodate the real interests of
individual creators who are sometimes taken by surprise by the persistence of
this last real formality for US works. 
Even though the critique of authorship has made it easy, comfortable,
and respectable to take a hard line in some copyright policy situation, to
reject the trend towards mystification in favor of policy giving more weight to
collective interest of public at large, there is a real costs.
We have a related proposal now for a small claims
court.  Once again, finds self in
position of wondering whether the benefit is worth the cost. Cost here:
expedited processing may be inimical to flourishing and continued growth of the
idea of user rights, especially fair use. 

Authorship isn’t the same as cultural production, but both
are more widely distributed than ever. 
Mystifying concept of authorship v. cultural production as more inclusive,
descriptive, and even useful category.  Creators’
real problems often don’t have to do with piracy—usually business issues like
getting better contracts, even better deals from landlords. Don’t fetishize IP
as the heart of their concerns.  Indonesia:
talked to a lot of practitioners of traditional arts—puppeteers, carvers,
singers, etc.  They wanted space to show
off art; they identified problems w/schooling in the arts & failure to
teach about difference b/t traditional and Western music; younger people were
too enamored of Western culture to do the slow, difficult work of learning the
old forms. Somewhere at the very bottom of that list, a few people said that
they might benefit from IP even though they weren’t sure it had meaning for
them or what it is.  These were
struggling custodians of great and important traditions; they had far more
urgent things to think about.  Remixers,
fanfic writers, vidders, are important cultural contributors but they don’t
recognize themselves in the romantic genius conception.  Perhaps it’s time to focus more on the needs
of systems of cultural production and less on the requirements of authorship as
classically understood.  There are many
ways to talk about ©; shouldn’t just fall back on author-talk as a way of avoiding
what’s at stake.  Interests of users,
w/recognition that users are also makers, participants in systems of cultural
production, even if not all are people who would be recognized or want to be
recognized under rubric of authorship w/a capital A.  Authorship, real authorship, is not the gift
of the few but the fate of the many. 
Cultural participation and citizenship are linked; meaningful work may
become ever more scarce, and the question is whether we can grasp the
options/alternatives offered to us all as culture-makers by new creative tools
provided by tech.

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Unclear on the concept? publisher boilerplate + CC license

Posted on November 17, 2016 by rtushnet

I can read these sentences in a way that makes them consistent … but not easily.

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Reading list: Free Innovation by Eric von Hippel

Posted on November 17, 2016 by rtushnet
E von Hippel, 2017. Free
Innovation. Cambridge MA: MIT Press
Abstract:     
In this book I integrate new theory
and new research findings into the framework of a “free innovation paradigm.”
Free innovation involves innovations developed and given away by consumers as a
“free good,” with resulting improvements in social welfare. I explain that free
innovation is an inherently simple, transaction-free, grassroots innovation
process engaged in by tens of millions of people in the household sector of
national economies. Unlike producer innovation, free innovation does not
require intellectual property rights to function. Indeed, from the perspective
of participants, free innovation is fundamentally not about money – it is about
human flourishing.

I spell out the economics of free
innovation relative to producer innovation, and its major economic impacts.
These are currently not measured and so hidden from view. I also develop and
explore major implications of free innovation for innovation theory,
policymaking, and practice.

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Tamicus: IP profs’ amicus brief in Lee v. Tam with Christine Farley

Posted on November 17, 2016 by rtushnet

Hot off the presses.  Read it here.  Thanks to all who commented and signed on.

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Mark McKenna reviews Registering Disagreement

Posted on November 16, 2016 by rtushnet

At Jotwell, here.  Thanks for the kind review!

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Announcing my upcoming move to Harvard

Posted on November 15, 2016 by rtushnet

Beginning next academic year, I will be joining the faculty of Harvard Law as the inaugural Frank Stanton Professor of First Amendment Law. I’ll miss the wonderful students, staff and faculty of Georgetown, but I’m incredibly excited for this new set of opportunities.

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