The Society for Critical Exchange

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 ( and the Intellectual Property Committee of the Conference on College Composition and Communication (, along with the "Opposing Copyright Extension" site put up by Dennis Karjala (

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).



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