Re-thinking intellectual property rights
(P26)
Location J
Date and Time 8th December, 2008 at 13:30

Convenor

Antje Linkenbach (Universität Erfurt) antje.linkenbach@uni-erfurt.de
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Short Abstract

The panel intends to re-think the issue of IPR by critically reflecting on concepts derived from modern legal frameworks. Scholars are invited to discuss adequacy and implications of concepts like property, ownership, protection, compensation relating to local communities, knowledge and resources.

Long Abstract

Scholars from various disciplines have contributed to the debate on IPR discussing issues of bio-prospecting, patenting and commoditization of local knowledge and biological resources. Critical voices draw attention to the conflicting agendas of the actors involved (traditional communities, private and public users of biological resources, states, transnational alliances) and highlight the contested areas of debate (ownership, access, compensation, conservation). Discussions focus on legal and ethical aspects.

However, the current debate limits the scope of reflection by bracketing context and using concepts restrictively. Traditional knowledge and biological “resources” of nonwestern communities are discussed referring to the concepts of “property” and “ownership” – applying modern legal frameworks. Criticizing appropriation by outsiders turns into an (often patronizing) debate about “protection” and “compensation” according to (inter)national legal specifications. Even by acknowledging the rights of traditional communities, the IPR regime is a tool to control decision making processes, concealing structures of power and hegemony.

The panel intends to open up the debate by reflecting existing concepts and their implications while searching for alternatives. Scholars are invited to discuss the following questions theoretically, starting from particular social contexts: Can biological resources and knowledge of traditional communities be seen as property or are concepts of stewardship, unique gift, public good more adequate? Can we assume cultural knowledge to be bounded and exclusive? Should local knowledge be “protected”, are IPR the adequate means? What do the notions of “protection” and “compensation” imply? How are we to conceive the connection between the right to knowledge and resources and the right to self-determination?

This panel is closed to new paper proposals.

Papers

Culture and Property in the Waitangi Tribunal

Author: Hal Levine hal.levine@vuw.ac.nz

Short Abstract

The Waitangi tribunal has adopted a cultural strategy towards claims in its attempts to advance biculturalism in New Zealand. This paper examines how the concept of culture has served as a powerful rhetorical device for the tribunal. It focuses on current developments in Wai 262, the intellectual property claim.

Abstract

When the Waitangi tribunal finds an item of property or other aspect of a claimant's way of life to be a treaty protected taonga it recommends that government act to protect that taonga. This approach has enabled Maori groups to successfully advance claims that they have rights additional to those of ordinary citizenship to a variety of specific resources and less tangible things. Ten years ago I said that this "cultural strategy the tribunal adopted would, if taken up effectively incorporate Maori culture into the public domain and give its interpreters considerable power (as "partners" in a bicultural state) to frame governmental policy." (Levine 1997). Culture and Property in the Waitangi Tribunal, examines the situation today as the cultural approach is being applied to intellectual property claims. The paper particularly looks at parallels between anthropology and the Waitangi tribunal as organizations with a interest in ownership and control of the concept of culture.

Let's Abandon Intellectual Property Rights

Author: Owen Morgan (University of Auckland) o.morgan@auckland.ac.nz

Short Abstract

IPRs should be consigned to a subsidiary role in protecting the interests of Māori. Sui generis legislation can be developed by identifying cultural elements that Māori wish to protect; drafting sui generis legislation from a Māori perspective; allowing IPR’s to co-exist with the new regime to provide parallel protection for Māori

Abstract

The intellectual property regime provides a problematic form of protection for indigenous peoples. Intellectual property rights (IPRs) are a Eurocentric construct increasingly important in protecting the European and United States entertainment and information technology industries. Even the primary justification for IPRs - the economic incentive theory - has little relevance for indigenous people. IPRs, which are essentially commercially oriented and protective of individual interests, are not well suited to protect the interests of peoples who may a non-commercial and community orientation.

In New Zealand, the debate has involved discussion of how IPRs can be used to satisfy Māori demands. Some progress has been made, as witness the safeguards under the Trade Marks Act. However, this paper proposes an alternative solution that would consign IPRs to a subsidiary role. It does, however, recognise the primacy of the rule of law.

(i) Identify elements in Māori culture that Māori wish to protect. This paper will report on the outcome of preliminary focus groups.

(ii) Develop sui generis legislation drafted from the perspective of Māori.

(iii) Allow IPR's to co-exist with the new sui generis regime to provide parallel protection for Māori.

The proposal mimics the protection recently given, with the overwhelming support of the Parliament, to the economic interests of overseas owners of events such as the Rugby World Cup. Such legislation is a model for similar sui generis legislation that could easily be enacted to protect Māori.

"Like a Second Skin": A Step Towards a Sui Generis Protection of Intangible Cultural Property in Fiji

Author: Guido Carlo Pigliasco (University of Hawaii) guido@hawaii.edu

Short Abstract

My paper examines the emergence of issues of ownership and of (mis)appropriation of intangible cultural heritage at different local, regional and international levels with Fiji’s National Inventory Project and Traditional Knowledge and Expressions, of Culture Bill; the ‘Pacific Model Law’; and the Convention for the Safeguarding of the Intangible Cultural Heritage adopted by UNESCO.

Abstract

The flow of new legal ideas associated with traditional knowledge and cultural expressions (TKEC) in an era of cross-national ideologies of culture, tradition and authenticity represents a real challenge for the modern ethnographer, in terms of following their agency, architecture and effects. Multiple ideas, voices, agendas, and interests produce contemporary engaged ethnographic practices. A few centuries ago, indigenous songs, dances, performances, rituals and ideas did not need any intellectual property protection, for people maintained 'physical control' over their identity and cultural heritage. The issue of ownership of cultural property is becoming a prime moral issue in legal anthropological parlance, a condition sine qua non to understand the sociocultural evolution of TKEC. The combination of the two notions, cultural heritage and cultural property, is particularly relevant to the reification of identity in the case of intangible, immaterial TKEC ownership. Pacific islanders had their concept of 'intellectual property' for centuries. Several landmark cases recognize a pre-existing system of law among indigenous peoples inseparable from the concept of 'identity'. These cases also suggest that neglected non-western epistemologies may provide us with new concepts and modes of organizing and protecting the appropriation, misrepresentation and misuse of their cultural heritage. Collaboration with the stakeholders, and legal anthropological research points to an intensification of the meta-locale, cross-border interactions and growing interdependence between local, national and transnational actors through a de-localizing process in which social spaces, borders and customs lose some of their previously overriding influence.

Appropriation of plant related knowledge under the EPC – an illustration with a European patent on the processing of Teff flour

Author: Abeba Gebreselassie (Arhus University,Denmark) abge@asb.dk

Short Abstract

The paper wants to show the existence of the possibility of getting a patent on an outsourced plant related knowledge, which exists for long time in another country. To illustrate such possibility, a European patent granted on the process of Teff flour, which is an Ethiopian resource will be discussed.

Abstract

States are dependent on each other for plant genetic resources. A company’s knowledge as to the actual or potential use of the resource can be a decisive factor to start negotiating on access. In a more general statement, a company will be more interested to access a plant genetic resource if the company knew the uses and method on how to use the plant genetic resources. Teff is an Ethiopian plant genetic resource with many identified uses such as, being gluten free; it can be used for the preparation of food for people who are gluten intolerance. Besides, there is an ‘Ethiopian way’ or a ‘traditional way’ of processing Teff flour, and the flour can be used among others for baking flat bread like pancake.

In 2004, the Ethiopian government and the Netherlands Company, Health and Performance Food International B.V. signed the Agreement on access to and benefit sharing from Teff plant genetic resources. In 2007, the European Patent Office granted a patent on the processing of Teff flour to the Netherlands Company (EP 1646287B1). The company claims to invent a new method to process Teff flour. This paper examines as to whether the company’s claim is an invention which is different from the Ethiopian way of processing Teff flour or whether it is a ‘misappropriation’ of Teff plant related knowledge. This discussion indicates that the patentability requirements supported by practical factors may allow a patentee to misappropriate plant related knowledge, especially, when the knowledge is outsourced from another country such as Ethiopia.

"Compensation" and "Self-determination": A Contradiction?

Author: Antje Linkenbach (Universität Erfurt) antje.linkenbach@uni-erfurt.de

Short Abstract

The paper wants to focus on the issue of compensation. It will critically discuss models of compensation applied by industries, supposed to benefit the indigenous groups. It will further reflect on the implications of the notion of compensation and its relation to the right of self-determination.

Abstract

Ownership of indigenous and traditional knowledge is formally acknowledged in the Code of Ethics of the International Society of Ethnobiology. The Code states that these groups "must be fairly and adequately compensated for their contribution to ethnobiological research activities and outcomes involving their knowledge". The need for compensation and sharing of benefits was enforced in the United Nations Convention on Biodiversity. Especially the pharmaceutical industry has pioneered approaches to compensation and benefit-sharing. The paper will critically evaluate these approaches under the following main questions: who decides about forms of compensation, who are the beneficiaries, whose interests are guiding the compensation schemes?

The paper will further reflect on contexts and implications of the notion of compensation; this includes looking at the semantics of the term and asking about meaning and use of compensation in different social fields (law, labour, risk management). Does the concept a priori exclude equal participation of the two sides in negotiations? The concept of compensation will then be confronted with the concept of right, in particular the right of self-determination. Indigenous people clearly link control over their knowledge to land rights and self-determination and the question is whether a hegemonic notion of compensation might clash with the idea of self-determination as having control over one's life and resources and being able to freely decide about and pursue one's own economic, social and cultural developments.

The Impossibility of Invention: Designer Fashion , Copyright, and Cultural Appropriations

Author: Catherine West-Newman (University of Auckland) l.westnewman@auckland.ac.nz

Short Abstract

In the postmodern bluring of ‘original’ designer fashion, street style, and ‘ethnic dress’ can fashion designers claim legal ownership of their work through copyrighting fashion designs or are their works always style elements in the public domain?

Abstract

It is customary in European cultures to identify works of art and design as creations that spring from the imagination of named individuals, and are therefore taken to constitute their own personal property. This assumption grounds a claim to ownership of copyright in law, the capacity to control the terms and conditions under which the image or object may be reproduced. In an increasingly extensive global fashion market there are issues here of authenticity, originality, and ownership in an industry which demonstrates increasing economic significance. In this paper I argue that the distinctions between 'original' designer fashion, street style, and 'ethnic dress' are irretrievably blurred in the 'original' garments of designer fashion. I look at what it means to claim ownership of fashion when themed collections and individual designs are in fact assemblages of diverse elements of (often) unnamed origin drawn from a style vocabulary of multiple sources and influences. I question whether, in the postmodern, self-conscious discourse of fashion as an irrational and self-referential recycling of image and message in the free play of consumer style, fashion designs are inevitably and always in the public domain? If they are indeed a communal resource, freely available for emulation, adaptation, mutation, and appropriation then they share the nature of those artefacts of non-European cultures that are commonly understood as collective representations that exist outside the protections provided by copyright laws. Finally I explore the implications of these propositions for the possibility of claiming legal protection for 'ownership' of individual designs.