|
IPCA
|
|
 |
From the Legal Front: Reports on the IPCA and Legal Issues
 |
 |
 |
 |
 |
 |
 |
In News and Notices, the SCE's newsletter, Peter Jaszi has reported annually on the legal climate in which the IPCA project is situated, as well as on some of the ways that the project's work is having an effect on that climate. Several of these reports (from 1998 and 1997) are excerpted below.
1998 Report
By
renewing the conversation between the law and literary theory that seems
to have broken off in the nineteenth century, we are advocating the
development of more equitable models of intellectual property protection.
The moment for such change may be at hand. In December 1996, the World
Intellectual Property Organization (WIPO) convened a Diplomatic Conference
to consider proposals to update the Berne Convention through the creation
of several supplemental international agreements. On the agenda for
this meeting were a set of proposals relating to the protection of literary
and artistic works in cyberspace. While most of these issues had been
under discussion at preparatory meetings for the best part of a decade,
at what amounts (in the chronological scheme of international diplomacy)
to the last minute, the United States and the European Union pressed
for a significant addition to the work program of the conference.
Beginning
in the Spring of 1996 their representatives had begun to urge that the
delegates should consider and conclude a new treaty guaranteeing international
legal protection for compilations of information -- so-called "databases"
-- in electronic and print media. When the delegates to the WIPO Diplomatic
Conference took up the draft treaty that had been crafted for their
consideration on the basis of the U.S. and EU proposals, the discussion
took an unexpected turn. In addition to policy concerns raised by representatives
of information consumers alarmed about the progressive enclosure of
the "public domain," another class of objections was raised by delegates
of developing countries: Why, they wondered, was the relatively new
issue of data rights before the Diplomatic Convention, while that of
protection for "folkloric" works, which had been discussed intermittently
at the international level for at least two decades, was not? In effect,
the developing countries insisted on "linkage": if the international
intellectual property system was to expand to take in non-original data
compilations, it should be possible for it to embrace traditional cultural
materials as well.
At
the very least, work on new international agreements covering the former
should be coordinated with efforts to provide meaningful protection
for the latter. The Diplomatic Conference ended without any action being
taken on data rights, however the issue remains on the medium-term agenda
of WIPO, and new impetus has been given to the question of how best
to incorporate the cultural heritage of indigenous peoples into the
scheme of international intellectual property. It is this problem which
is now at the forefront of research on intellectual property, and the
SCE is continuing its research in this area with an upcoming conference
on the intersection indigenous and "western" aims. The conference will
be a small, working conference, and will be held in Washington D.C.
in the Spring of 1999.
1997 Report
Perhaps
most significantly, some of the central perceptions of the SCE project
(like the notion that less is sometimes more in the field of intellectual
property) seeming to be proving influential in current debates about
the direction of intellectual property legislation. Among the highly
controversial issues facing the Congress these days are copyright
term extension and the adaptation of copyright laws to the digital
networked information environment. On these issues and others, some
of the most active lobbyists for the interests of not-for-profit institutions
and the larger community of "users" are veterans of the SCE intellectual
project. For more information on the domestic politics of intellectual
property, and about opportunities for grassroots involvement in the
debate, you can consult the websites of the Digital Future Coalition
(http://www.dfc.org)
and the Intellectual Property Committee of the Conference on College
Composition and Communication (http://tempest.english.purdue.edu/cccc-ip/welcome.html),
along with the "Opposing Copyright Extension" site put up by Dennis
Karjala (http://www.public.asu.edu/~dkarjala/).
Many of the same issues are also being debated at the international
level as well. Pam Samuelson's lively account of the recent Diplomatic
Conference of the World Intellectual Property Organization appears
as "Big Media Beaten Back," in the March 1997 issue of Wired magazine.
Other new publications by individuals involved in the project include
a major article on rights in information by Pamela Samuelson and Jerome
Reichman, "Intellectual Property Rights in Data?," Vanderbilt Law
Journal 50.1 (1997), and an article by Peter Jaszi and Martha
Woodmansee drawing on the experience of the 1993 Bellagio Conference
on Cultural Agency/Cultural Authority: "The Ethical Reaches of Authorship,"
in the Fall 1996 issue of the South Atlantic Quarterly. (The
first footnote of the latter article, incidentally, constitutes a
mini-bibliography of the larger project.) Forthcoming publications
related to the project include Martha Woodmansee's "The Cultural Work
of Copyright: Legislating Authorship in Britain, 1837-1842," which
will appear in a book called Law in the Domains of Culture
edited by Austin Sarat, from University of Michigan Press in 1997.
The
project is also beginning to demonstrate real "reach" in the legal
academic literature. Law being a conservative discipline, it has taken
some time for the central premises of the project to be assimilated
into public policy discourse, but this process is now very much underway.
Two recent examples are Niva Elkin-Koren's excellent article, "Copyright
Law and Social Dialogue on the Information Superhighway," Cardozo
Arts and Entertainment Law Journal 13.2 (1995), and an entertaining
piece by David Nimmer entitled "Brains and Other Paraphernalia of
the Digital Age" [Harvard Journal of Law and Technology 10.1
(1996)]. Nimmer is the author of the principal legal treatise in the
copyright field. Also very much worth reading in this connection is
Paul Heald's recent "Reviving the Rhetoric of the Public Interest:
Choir Directors, Copy Machines, and New Arrangements of Public Domain
Music," Duke Law Journal 46.2 (1996). And there is an interesting
"push-back" against claims for the explanatory power of the "author-construct"
in a book review by Mark Lemley entitled "Romantic Authorship and
the Rhetoric of Property," Texas Law Review 75.4 (1997).