The Bellagio Declaration

This document was framed by lawyers, anthropologists, environmentalists, computer experts, literary critics, publishers and activists. Inevitably, each of us would change some word or phrase, or shift some emphasis. Its signatories agree however, to the central themes and spirit of this Declaration and to the urgent sense of concern that motivated it. Institutional affiliations are provided for identification purposes only.

Signatories

Statement of the Bellagio Conference

Cultural Agency/Culural Authority: Politics and Poetics of Intellectual Property in the Post-Colonial Era

March 11, 1993

We, the participants at the Bellagio Conference on intellectual property, come from many nations, professions and disciplines. We are lawyers and literary critics, computer scientists and publishers, teachers and writers, environmentalists and scholars of cultural heritage.

Sharing a common concern about the effects of the international regime of intellectual property law on our communities, on scientific progress and international development, on our environment, on the culture of indigenous peoples. In particular,

Applauding the increasing attention by the world community to such previously ignored issues as preservation of the environment, of cultural heritage, and biodiversity. But,

Convinced that the role of intellectual property in these areas has been neglected for too long, we therefore convened a conference of academics, activists and practitioners diverse in geographical and cultural background as well as professional area of interest.

Discovering that many of the different concerns faced in each of these diverse areas could be traced back to the same oversights and injustices in the current international intellectual property system, we hereby

Declare the following:

First, Intellectual property laws have profound effects on issues as disparate as scientific and artistic progress, biodiversity, access to information, and the cultures of indigenous and tribal peoples. Yet all too often those laws are constructed without taking such effects into account, constructed around a paradigm that is selectively blind to the scientific and artistic contributions of many of the world's cultures and constructed in fora where those who will be most directly affected have no representation.

Second, Many of these problems are built into the basic structure and assumptions of intellectual property. Contemporary intellectual property law is constructed around a notion of the author as an individual, solitary and original creator, and it is for this figure that its protections are reserved. Those who do not fit this model -- custodians of tribal culture and medical knowledge, collectives practicing traditional artistic and musical forms, or peasant cultivators of valuable seed varieties, for example -- are denied intellectual property protection.

Third, a system based on such premises has real negative consequences. Increasingly, traditional knowledge, folklore, genetic material and native medical knowledge flow out of their countries of origin unprotected by intellectual property, while works from developed countries flow in, well protected by international intellectual property agreements, backed by the threat of trade sanctions.

Fourth, In general, systems built around the author paradigm tend to obscure or undervalue the importance of "the public domain," the intellectual and cultural commons from which future works will be constructed. Each intellectual property right, in effect, fences off some portion of the public domain, making it unavailable to future creators. In striking respects, the current situation raises the same concerns raised twenty years ago by the impending privatization of the deep-sea bed. The aggressive expansion of intellectual property rights has the potential to inhibit development and future creation by fencing off "the commons," and yet -- in striking contrast to the reaction over the deep sea bed -- the international community seems unaware of the fact.

Fifth, we deplore these tendencies, deplore them as not merely unjust but unwise, and entreat the international community to reconsider the assumptions on which and the procedures by which the international intellectual property regime is shaped.

In general, we favor increased recognition and protection of the public domain. We call on the international community to expand the public domain through expansive application of concepts of "fair use," compulsory licensing, and narrower initial coverage of property rights in the first place. But since existing author-focused regimes are blind to the interests of non-authorial producers as well as to the importance of the commons, the main exception to this expansion of the public domain should be in favor of those who have been excluded by the authorial biases of current law.

Specifically, we advocate consideration of special regimes, possibly in the form of "neighboring" or "related" rights regimes, for the following areas:

In addition, we support systematic reconsideration of the basis on which new kinds of works related to digital technology, such as computer programs and electronic data bases, are protected under national and international intellectual property regimes. We recognize the economic importance of works falling into these categories, and the significant investments made in their production. Nevertheless, given the importance of the various concerns raised by any such a regime -- concerns about public access, international development and technological innovation -- we believe that choices about how and how much to protect databases should be made with a view to the specific policy objectives such protection is designed to achieve, rather than as a reflexive response to their categorization as "works of authorship."

On a systemic level, we call upon states and non-governmental organizations to move towards democratization of the fora in which the international intellectual property regime is debated and decided.

In conclusion, we declare that in an era in which information is among the most precious of all resources, intellectual property rights cannot be framed by the few to be applied to the many. They cannot be framed on assumptions that disproportionately exclude the contributions of important parts of the world community. They can no longer be constructed without reference to their ecological, cultural and scientific effects. We must reimagine the international regime of intellectual property. It is to that task this Declaration calls its readers.

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Discussion: Contemporary intellectual property law is constructed around a notion of the author as an individual, solitary and original creator, and it is for this figure that its protections are reserved.[1] The "author" in the modern sense is the sole creator of unique works of art, the originality of which warrants their protection under laws of intellectual property -- particularly those of "copyright" and "authors' rights." The notion, however, is neither natural nor inevitable. Rather, it arose at a specific time and place -- eighteenth-century Europe -- in connection with a particular information technology -- print. Nevertheless, it remains the dominant paradigm in our global, multicultural, post-colonial electronic age, a paradigm that stretches beyond copyright to influence all types of intellectual property rights. We must recognize that there is a politics to "authorship;" as presently understood, it is a gate through which one must pass in order to be given property rights, a gate that shuts out a disproportionate number of non-Western, traditional, collaborative, or folkloric modes of production.

Although intellectual property rules are defended as economically necessary, kneejerk reliance on "authorship" may in fact destructively undervalue important contributions to art, science, and culture. Examples are legion. Drugs drawn from the rainforest or from indigenous pharmacopeias do not economically support the protection of either. Traditional patterns and dances can be taken without permission or recompense, perhaps diminishing the chance that the culture that originated them will survive. Exclusively authorship-focused systems also run the risk of cherishing the ownership of ideas over their circulation, the purses of the potential audience over their minds.[2] There is no guarantee that the current system of intellectual property maximizes free speech and informed democratic debate, and much evidence that it does not.

In general, systems built around the author paradigm tend to obscure the importance of "the public domain," the intellectual and cultural commons from which future works will be constructed. The assumption of these systems is that one must reward creators in order to ensure new production. Yet the "reward" has its costs. Each intellectual property right, in effect, fences off some portion of the public domain, making it unavailable to future creators. If one is concerned about promoting future production of books, ideas, inventions, and works of art, then one must be just as careful in one's protection of a vigorous and diverse public domain, a "commons" of scientific, literary, and artistic raw material, as one is in one's protection of the author's rights and incentives. Recently, there has been a dangerous international tendency to suppress the former concern and to concentrate only on the latter.

The process has taken place with remarkably little recognition or outcry, in marked contrast to similar situations in the past. During the late sixties and early seventies, the members of the General Assembly of the United Nations showed great prescience in enunciating the concept of the "common heritage of mankind." They declared that the resources of outer space and the deep seabed must be available to all, that they should not be entirely consumed by the first nations to have the technological capacity to do so. In striking respects, the current situation with respect to intellectual property rights is similar. Certainly the same distributional and developmental issues are raised. For example, under the current regime, corporations from nations with the most advanced technology may manage to secure patents on the majority of rainforest-derived drugs before an indigenous drug industry develops. The aggressive expansion of intellectual property rights also has the potential to inhibit future creation by fencing off "the commons." Despite these similarities, the international community has been comparatively silent on the issue. One reason for this silence may be the perception that intellectual property rights are not a "zero-sum game," that, unlike rights to manganese nodules or oil, they are potentially of infinite extent and thus that future producers are always left enough raw material out of which to create their own works. But this perception is more a by-product of faith in the author vision than the result of a careful analysis of literary, artistic, and scientific production. Patents given on commonly used lines of computer code may impede the production of future programs. Extensive copyright and publicity rights may allow public figures to control access to vital information about themselves. Patents on new "landraces" (i.e. seed types) based on indigenous varieties may actually inhibit the maintenance of genetic diversity and local cross-breeding. The blandishments of the international information industries notwithstanding, more intellectual property rights may actually mean less innovation, less heterogeneity in culture and environment and a less informed world of public debate.

The international community must move towards a just world order of intellectual property rights, and in what follows we appeal to national governments and international organizations to consider specific measures toward that objective. At the same time, we acknowledge our local responsibilities, and those of the constituencies we represent: to resist, where necessary, unjust extensions of intellectual property regimes.

Our analysis indicates three overlapping areas of neglect in an overly author-centered vision of intellectual property: neglect of unacknowledged sources and non-authorial modes of scientific and cultural production, neglect of the interests of the "audience" (readers, consumers and other end-users), and neglect of the importance of conserving the public domain for the benefit of innovators and consumers alike. Measures designed to counteract these tendencies do not fall neatly into a simple choice to have "more" or "fewer" intellectual property rights. Indeed, one of our criticisms of contemporary discourse about intellectual property is its simplistic binary format. We favor a move away from the author vision in two directions; first towards recognition of a limited number of new protections for cultural heritage, folkloric productions, and biological "know-how." Second, and in general, we favor an increased recognition and protection of the public domain by means of expansive "fair use protections," compulsory licensing, and narrower initial coverage of property rights in the first place.

Where the first point is concerned, we recognize the importance of incentives for cultural conservation, in the form of grants of exclusive rights. Indeed, such grants may be essential to provide recognition to the contributions of those groups and individuals who the present system tends to exclude. But we do not propose to address this problem of exclusion merely by expanding the "authorship" construct, with all its legal and ideological associations. We advocate consideration of alternative regimes -- perhaps based on expansion of the system of "neighboring" or "related" rights. By this terminology we refer to legal regimes like those which, in some countries, protect the interests of performers, of broadcasters, and sound recording producers. These laws, although they participate in some of the assumptions and contain some of the features of traditional copyright or "authors' rights" laws, are not justified on the grounds that they extend protection to "works of authorship." Rather, they exist to recognize the special economic and/or cultural contributions of groups whose activities fall outside the traditional definition of "authorship."

Specifically, we advocate consideration of new regimes, possibly in the form of "neighboring" or "related" rights, in the following areas:

In each case, this consideration should entail inquiry into the appropriate individual, group, or state entity in whom intellectual property rights should be vested, into the duration and intensity of those rights, and into the means by which reasonable public access to the categories of works in question would be assured, including such devices as "fair use" privileges and systems of compulsory licensing.

The same considerations should be borne in mind as the international community enters into a systematic reconsideration of the basis on which new kinds of works related to digital technology, such as computer programs and electronic databases, are protected under national and international intellectual property regimes. We recognize the economic importance of works falling into these categories, and the significant investments made in their production. Nevertheless, given the importance of the various concerns raised by such a regime -- concerns about public access, international development and technological innovation -- we believe that choices about how and how much to protect databases should be made with a view to the specific policy objectives such protection is designed to achieve, rather than as a reflexive response to their categorization as "works of authorship."

Moreover, whether intellectual property protection takes the form of traditional copyright or authors' rights regimes, or of new ones in the nature of "neighboring rights," it is critical that its elaboration be undertaken with a commitment to the preservation of the "public domain" as a cultural and intellectual commons from which all people, from all nations, are free to draw. In an effort to redress unfairness in the existing global scheme of intellectual property, it is important that we do not err in the direction of uncritically and unqualifiedly increasing the level of protection available for all forms of cultural production.

We are acutely aware of the importance of access to information for cultural, economic and educational development, and we support new measures on the part of international organizations to promote access to new information technologies in developing countries. At the same time, we recognize that it is critical to support more traditional forms of information distribution, such as book publishing, in those countries, through initiatives to make capital available and to encourage the licensing of copyrights on reasonable terms.

Likewise, the international intellectual property community can and should do more to recognize the special situation of the countries of Eastern Europe and the former Soviet Union, by extending to them for a limited term (under multilateral and bilateral agreements) a special regime identical or similar to that applicable to developing countries under the Appendix provisions of the 1971 Act of the Berne Convention.

In conclusion, we would suggest that -- at least historically -- laws of intellectual property, as well as laws of neighboring and related rights, have been designed by a few individuals and applied to many. The goal of a just world order of intellectual property may be best advanced by addressing the process by which intellectual property laws are made and revised, to provide more representation for interests other than those of governments and information industries -- through the inclusion of more non-governmental organizations and community groups in the dialogue. For a long time, intellectual property has escaped attention in international discussions of justice, self-determination, economic development and human rights, reflecting a shared perception of the marginality of intellectual property issues which has ceased to be accurate -- if it ever was. The advent of the information society, the collaborative networks typical of production on the electronic frontier, the increasing importance of intellectual property rights to corporate balance-sheets and national balances of payment, the global circulation and commodification of culture -- all of these events conspire to thrust upon us the need to imagine and simultaneously to build a world intellectual property system that is both just and wise.

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Notes

1. There are different ways to explain the nature and protection of authors' rights, which are based on various historical and cultural differences. We honor those differences, and we attempt to find common language to express our concerns and aspirations for the international intellectual property system.

2. The way of thinking which this exclusive idea of "authorship" supports also has consequences beyond the realm of law. To a greater or lesser extent, we tend to enact this exclusive understanding of the "author" in our practices: for example, as scholars, scientists, teachers, writers and business-people. That effect however, is beyond the immediate scope of this declaration.

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