Footnotes

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1

See Martha Woodmansee, "The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the 'Author'"; reprinted in Woodmansee, The Author, Art, and the Market, 35-55.

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2

In "Toward a Theory of Copyright: the Metamorphosis of Authorship," Peter Jaszi offers an explanation of the evolution of copyright law in terms of the Romantic theory of authorship, and demonstrates the incoherence of modern copyright doctrine. In order to do this, he analyzes two major constructions that the law appropriated from mid-eighteenth-century literary theory in order to ground the privileges granted by copyright. The first of these is the concept of author as one who independently and by force of genius (or later creativity) creates a totally new cultural production and deserves to have his genius and/or labor protected. This protection of genius and labor forms the initial rationalization for copyright laws, but as the various industries became more involved in copyright cases, it became necessary to separate the "creative individual" and the cultural production attributed to him, and thus was born the second concept, the work. These two concepts have been generally assumed to be "natural" by the law, and thus beyond critique, but as Jaszi shows in his essay, they are not immediately obvious concepts and serve to create a confused and incoherent copyright doctrine.

According to Jaszi, the notion of author began in early England (around the time of Chaucer), and came into more common use in the seventeenth century. It was initially a distinction taken up by writers to denote themselves as masters of the craft and "to distinguish themselves from common writers, and to ground claims of prerogative with respect to bodies of literary production" (469). Being and author implied that one was a superior craftsman, not that one was particularly original. When the English government sought to create laws to prevent the "pirating" of new books after their first publication, the problem of deciding how to give out property rights in the content of new books was resolved in the Statute of Anne (1709) by investing that right in the author of the work, who would then sell his right to a publisher. While the concept of "authorship" had not taken on its full ideological significance by 1710 when it was introduced into English law, it expanded and eventually "the term took on a life of its own as individualistic notions of creativity, originality, and inspiration [from the Enlightenment and Romanticism] were poured into it" (471). This led to a shift in the policy conflict of copyright law from one of publishers versus pirates to "one between the interests of 'authors' and those of 'users'" (471). The law courts, however, read early copyright narrowly, only protecting the author against the unauthorized verbatim reproduction of a text. This combined with the instability of the "authorship" construct itself lead to the development of the work concept in the legal discourse, making a "free-standing abstraction" into "the subject of literary property" rather than the author himself (473).

Turning to Marxist terminology, Jaszi observes that the work concept represents the commodification and objectification of the writer's labor. This develops into so important a concept that courts began to see the nature of the work rather than the writer's labor as the deciding factor regarding the copyrightability of the text. This leads to the alienation of the writer from his labor, and eventually feeds into a divergent jurisprudence. In the 1884 case of Burrow-Giles Lithographic Co. v. Sarony, the U.S. Supreme Court "emphasized the 'author,' with only a general reference to the work" (482). However, by 1903, the Court came to view the work as essential, as shown in the Bleistein v. Donaldson Lithographing Co. case where "the Court played down the significance of the creator's input: even the humblest creative input is ordinarily protected" (483). This fundamental tension between the emphasis on the author and the emphasis on the work manifests itself throughout the various copyright cases after Bleistein, giving rise to a copyright doctrine plagued by an incoherence that is difficult to explain in terms of any underlying ideological structure. In this discourse, the Romantic author can be either central or peripheral, depending upon the judge and case (500).
Ultimately, the conflict in copyright doctrine has changed from "opposition between ownership and access" to one between "the collectivism of the market," where the work is central because of the desire to keep new and better "works" entering the market, and "the prerogatives of the autonomous individual," where the right of the author to absolute control over his text is the motivating force. Thus, according to Jaszi, copyright law is in an inexorable contradiction because of the opposition of Romantic "authorship" and pre-Romantic "collectivity."

Jaszi, Peter. "Toward a Theory of Copyright: the Metamorphosis of Authorship." Duke Law Journal 45.5 (1991) : 455-502.

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3

See Christine MacLeod, "Concepts of Invention and the Patent Controversy in Victorian Britain." MacLeod quotes Isambard Brunel's succinct expression of this view in his 1851 memoirs: "I believe that the most useful and novel inventions and improvements of the present day are mere progressive steps in a highly wrought and highly advanced system, suggested by, and dependent on, other previous steps, their whole value and the means of their application probably dependent on the success of some or many other inventions, some old, some new. I think also that really good improvements are not the result of inspiration; they are not, strictly speaking, inventions, but more or less the results of an observing mind, brought to bear upon circumstances as they arise, with an intimate knowledge of what already has been done, or what might now be done, by means of the present improved state of things, and that in most cases they result from a demand which circumstances happen to create" (147). See also Edith Tilton Penrose, The Economics of the International Patent System, esp. 19-41.

For More Information on Early Patent.

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4

MacLeod, "Concepts of Invention," esp. 150-53. See also MacLeod, Inventing the Industrial Revolution, esp. chaps. 10 and 11.

For More Information on Early Patent.

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5

On this episode, see Nell Jessup Newton, "Memory and Misrepresentation"; Peter Jaszi and Martha Woodmansee, "The Ethical Reaches of Authorship," esp. 961-63; Rosemary Coombe, The Cultural Life of Intellectual Properties, 199-207.

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6

The venerable age of the medicine wheel,which contributes so much to its cultural value, also weighs against its elibibility for meaningful protection because many of the rights awarded to creators under intellectual property law are limited in duration -- economic rights under copyright, for example, endure for the lifetime of an author plus 70 years.

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7

On the differences between science and lore, see Arun Agrawal, "Dismantling the Divide between Indigenous and Scientific Knowledge."

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8

These are the figures of Manuel F. Balandrin et al, "Natural Plant Chemicals," 1157.

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9

See Steven R. King, "The Source of Our Cures," 19.

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10

See Edward O. Wilson, "Threats to Biodiversity," 116.

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11

Ironically, the information about the properties of the rosy periwinkle that first drew Eli Lilly's researchers to Madagascar did not even come from the indigenous knowledge base of that society. As it turns out, the investigation of the periwinkle began because Filipino and Jamaican folklore suggested that a tea brewed from its leaves could be a remedy for diabetes (see Karen Ann Goldman, "Compensation for Use of Biological Resources," 717 n. 131). If anyone deserves compensation for appropriated bioknowledge in the case of the periwinkle, then it is perhaps the Filipino and Jamaican communities in which this folklore was preserved rather than the people of Madagascar.

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12

See Anne Jeanblanc, "Fighting Cancer on Many Fronts," 42-43. In addition to this article, see discussion in volume 12 of the Fordham Intellectual Property, Media and Entertainment Law Journal in the spring of 2002 on page 753. The symposium panelists Blakeney, Lourie, Salmon and Visser, all well regarded experts in their field, discuss the role of law and policy in protecting traditional folklore, traditional knowledge and genetic resources in great depth and from varying angles.

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13

WIPO, "1967, 1982, 1984," 5.

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14

On the Model Provisions and their limitations, see Christine Farley, "Protecting Folklore of Indigenous Peoples," 44-46. The history of the Model Provisions is addressed, among other topics, by contributors to Peter Seitel, ed., Safeguarding Traditional Cultures: A Global Assessment, the proceedings of a conference convened in connection with the ten-year review of the 1989 UNESCO "Recommendation on the Safeguarding of Traditional Culture and Folklore." Another useful recent status review is the WIPO's Intellectual Property Needs and Expectations of Traditional Knowledge Holders, based on a series of regional conferences and fact-finding missions.

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15

Darel A. Posey and Grant Dutfield report that "a number of African countries, such as Nigeria, have enacted legislation based, at least in part, on the Model Provisions" but do not give specifics (Beyond Intellectual Property, 100).

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16

Article 27(2), which permits states to make limited exclusions from patentability, applies only to inventions that would, if commercialized, threaten public order or morality. The only concessions to less-developed countries on this issue are those found in Articles 65 and 66, which allow such countries four to ten years (depending on their stage of development) to phase in TRIPS-compliant domestic legislation.

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17

Although originally intended to apply to new plant varieties resulting from human manipulation of biological materials, this provision could be viewed as an invitation to enact national laws of a more comprehensive character, applicable to naturally occurring species as well. The problem is that under TRIPS the object of such protection would be plant varieties themselves, and not human knowledge concerning their properties. For more information, see discussion in volume 22 of the Hastings International and Comparative Law Review in 1999 on page 777 regarding the protection of intellectual property and its relationship to plant genetic resources. Using India as a case study, Meetali Jain confronts the issues from the standpoints of equity, justice, and ethics.

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18

Mongane Wally Serote, "One Fundamental Threshold," 3.

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19

Genetic Resources Action International.

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20

See esp. Graham Dutfield's 1,400-entry Annotated Bibliography. See also Tom Greaves, ed., Intellectual Property Rights for Indigenous Peoples; Miges Baumann et al., eds., The Life Industry; and Darel Posey and Graham Dutfield, Beyond Intellectual Property. For an analysis of the effect of patent protection on both developed and developing nations see volume 7 of the Widener Law Symposium of 2001 page 203.

See also discussion in volume 14 St. Thomas Law Review in the winter of 2001 at page 287. In the sixth annual Tribal Sovereignty Symposium Miriam Latorre Quinn presents a general overview of the debate regarding intellectual property and indigenous peoples through the lens of international law.

For further information, see discussion in volume 2 of the Minnesota Intellectual Property Review on page 1 of 2001. Ragavan, head of the center for Intellectual Property Rights Advocacy at the National Law School of India University, Bangalore, argues that the international debate over intellectual property rights will spur the creation of strong IP systems in many developing nations. However, focusing on Western conventions may ultimately be counter productive.

For a hypothesis on the ethos at the heart of this problematic, see volume 23 of the Northwestern School of Law Journal of International Law & Business in the Spring of 2003 at page 589. Shubna Ghosh, Professor of law at the University of Buffalo Law School, argues that the heart of the clash over intellectual property rights is actually a clash of civilizations. The North-South conflict manifests itself in cultural variations and traditions. The question of whether or not an artifact of traditional knowledge should be owned, and who the owner should be, is central to his discussion.

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21

Erica-Irene Daes, "Discrimiation Against Indigenous Peoples," 29.

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22

Hong Yongping, "The Experience of Asia and the Pacific Region."

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23

Barlow enlists Thomas Jefferson in defense of his cause, quoting Jefferson's characterization of information as by nature a public good: "If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction hemself without lessening mine; as he who lights his taper at mine, receives light without darkening me" ("The Economy of Ideas," 85).

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24

Ibid., 86.

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25

Vandana Shiva, Biopiracy, 45. See Footnote 17 in addition to volume 4 of the Yale Human Rights & Development Law Journal in 2001 at page 63. Chetan Gulati characterizes bio-piracy as a tragedy of the commons and calls for the creation of a new international regime to specifically address the issues relating to intellectual property and plant genetic resources. Also note the discussion in volume 13 of the Albany Law Journal of Science and Technology in 2002 on page 123. Michael Woods presents a well-documented case study regarding the bio-piracy of the jasmine rice seed.

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26

As quoted by John F. Burns, "Tradition in India vs. a Patent in the U.S." See also Michael D. Lemonick, "Seeds of Conflict"; and Richard H. Kjeldgaard and David R. Marsh, "Claims Upon Nature."

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27

John Cohrssen and David McIntosh, "Major Problems with the Draft Convention on Biological Diversity." The Convention on Biological Diversity aspires to "conservation, sustainable use, [and] equitable benefit sharing." The Convention's more recent innovations, including their "Strategic Plan" for implementing these goals, are available at www.biodiv.org/sp . While obstacles to fulfillment of the Convention's goals are plentiful, progress has been occurring since the founding of the Convention in 1992. Recently, the Cartagena Protocol on Biosafety, a treaty focused on international trade and use of "any living modified organisms resulting from modern biotechnology," has advanced the aims of the Convention by making countries aware of Biodiversity issues and ensuring that countries have the resources and technology in order to participate in the treaty.

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28

The resurrection of this old idea is generally credited to Garrett Hardin's 1968 article on population ecology, "The Tragedy of the Commons."

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29

See esp. E.P.Thompson, Customs in Common, 107.

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30

Neil Weinstock Netanel, "Copyright and a Democratic Civil Society," 319.

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31

See Peter Jaszi's discussion in "Goodbye to All That, " 611.

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32

Claudia Curuthers, "International Cultural Property," esp. 167-69.

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33

Joseph Henry Vogel, Privatisation as a Conservation Policy, 123.

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34

The disciplinary roots of copyright are explored in Carla Hesse, "Enlightenment Epistemology." The same impulse to discipline by assigning responsibility for texts is explored by Mario Biagioli with regard to the conventions of attribution in contemporary science ("The Instability of Authorship").

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35

World Commission on Environment and Development, Our Common Future , 46. See David Hunter et al., International Environmental Law , esp. chap. 3.

See a summary of the Bruntland Report, also known as Our Common Future.The full text of The Brundtland Report is 400 pages long, and therefore not available online. It can be purchased from Amazon here.

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36

Under a CIR regime, local communities that were the custodians of particular bodies of knowledge would be required to share that knowledge with other like communities so long as it is not sought for commercial purposes, commercial users would be required to pay the local community (if registered) or the state (as trustee, in lieu of such registration) as stipulated royalty on sales, or a nonmonetary equivalent to be determined by local custom, practice, and usage; where more than one community is the custodian of a particular body of knowledge, payments in connection with its commercialization would be shared among them; and firms commercializing local knowledge would be barred from seeking to control it through the exercise of Western intellectual property rights such as patents. See Gurdial Singh Nijar, In Defense of Local Community Knowledge and Biodiversity; the draft Community Intellectual Rights Act, and Manuela Carneiro de Cunha, "the Role of UNESCO in Defense of Traditional Knowledge." The effect of such legislation would be to create for traditional culture a version of a mechanism much discussed but little implemented in connection with conventional intellectual property law: the so-called domaine publique payant. See Christine Farley, "Protecting Folklore of Indigenous Peoples," 49-50.

"The Role of UNESCO in Defense of Traditional Knowledge" is available in its full text. In the article, Professor de Cunha suggests that WIPO and UNESCO are in the unique position of being able to regulate use of traditional knowledge. They must protect this knowledge with a duel goal of ensuring that its bearers earn sufficient profit from it while allowing others to benefit from this information. These aims could be accomplished, she suggests, by putting the information in the public domain; letting UNESCO protect the knowledge against piracy while allowing the holders of this knowledge to earn money from it. This concept is called the "domaine publique payant," or, loosely translated, "public domain payment."

Christine Farley, in her article entitled "Protecting Folklore of Indigenous Peoples: Is Intellectual Property the Answer?" indicates several problems with the application of the current system of Intellectual Property Rights (IPRs) to traditional knowledge (TK) or traditional cultural expressions (TCEs). In the first section of her article, she discusses several problems with the application of current copyright law to indigenous knowledge. Specifically, Farley discusses 1.) the duration of protection on a centuries-old, yet current, art form; 2.) the "originality" standard, where folk art is valued for its conformity to tradition rather than its break from it; 3.) the requirement that the copyrighted item be in a fixed medium, while folklore is almost necessarily orally relayed; 4.) the importance of the rights of the group to which the indigenous artist belongs, and the impossibility of listing the tribe as joint authors; 4.) the impossibility of interpreting "fair use" for works derived from sacred texts or objects; and 5.) the difficulty of fairly awarding damages for these infringements.

The second section of the article describes current international efforts to cover folklore under copyright law and the modifications to copyright law which are necessary in order to make such coverage feasible. She describes the amendment, article 15(4) of the Berne Convention. Another option is the Tunis Model Law on Copyright (1976), which attempts to protect folklore as part of a national cultural heritage, making an exception to the qualification of fixation, but not retroactively applied, meaning that those elements of TK and TCE already in the public domain would remain there, rather than become the property of their traditional creators. Farley mentions the UNESCO and WIPO proposed "Model Provisions," written in 1982; since they are unenforceable, however, little effect has been seen from this proposal since its origin.

Farley suggests in the third section of her article that TK and TCE would probably be better protected by law beyond the traditional copyright paradigm. She offers the idea of "Moral Rights," which, although separate from economic rights, are usually viewed as unalienable and meant to protect the personality of the author from being misrepresented by unauthorized uses of his work. For example, European moral rights protect creative works from defacement. This law is promising but firmly based in the Romantic conception of singular authorship and therefore less appropriate for TK. Farley also suggests that even works in the public domain should be protected in order to maintain respect for the works: "Public domain works can be used as the basis of derivative works so long as the use does not violate the work's essence, cultural value, or reputation." A related concept that may be more beneficial for traditional cultures is the "domaine publique payant" suggested by Professor de Cunha. Farley offers the idea of combining copyright and trademark in "The Law of Unfair Competition," protecting indigenous works from unauthorized use for economic gain. Ultimately, Farley wonders, as does de Cunha, whether copyright or international legislation has yet found an ideal means of protecting TCE.

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37

The TRR approach draws on "basic human rights; the right to self-determination; collective rights; land and territorial rights; religious freedom; the right to development; the right to privacy and prior informed consent; environmental integrity; intellectual property rights; neighboring rights; the right to enter into legal agreements; rights to protection of cultural property, folklore and cultural heritage; the recognition of cultural landscapes; recognition of customary law and practice; and farmers' rights" (Programme for Traditional Resource Rights, "What Are Traditional Resource Rights?"). See also, generally, Darrell A. Posey and Graham Dutfield, Beyond Intellectual Property.

Traditional Resource Rights (TRR) describe the "bundle of rights" assigned to the protection and conservation of traditional resources. These rights have their origin in Intellectual Property Rights, in which compensation and protection are provided to those deemed by the law to be authors, creators, or inventors. Traditional resources include any animal, plant, or other object that possesses ceremonial, heritage, or aesthetic qualities of a particular indigenous group and does not belong to a particular individual. TRRs protect indigenous knowledge and local resources by ensuring control over land territories and resources before access and transfer of the indigenous people's resources are threatened.

The Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous People was formed in 1993 after a six-day conference.. Pursuant to this declaration, several indigenous "statements" were created. These statements are a collection of moral imperatives affirming that indigenous people have the right to form and execute their own policies to protect indigenous intellectual and cultural property. Specifically, the statements include the Draft Declaration on the Rights of Indigenous Peoples, the Suva Statement, the Sabah Statement, the COICA Statement, and the Inuit Tapirisat of Canada Principles.

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38

According to one recent account, "In return for plant and insect extracts and other samples, Merck gave INBio a $1.14 million research and sampling budget, undisclosed royalties on any new drugs that emerge, and technical assistance and training for Costa Rican scientists. In turn, INBio agreed to donate 10 percent of the upfront paytment and half of any royalties they receive to conservation efforts in Costa Rica" (Mary Parlange, "Eco-nomics"). The Merck-INBio agreement has been criticized for failing to take into account the interests of indigenous peoples within Costa Rica as well as the collective national interest in ecological conservation, and for promoting secrecy and exclusivity rather than information sharing.

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39

See Peter Jaszi and Martha Woodmansee, "The Ethical Reaches of Authorship," 967-68. For a somewhat jaundiced view of Shaman's later fortunes, see "Ethnobotany: Shaman Loses Its Magic," 77. "The Ethical Reaches of Authorship," expresses many of the same concerns as does this collaboratory. The Convention on Biodiversity, founded in 1992, calls upon signatory countries to "share in a fair and equitable way the results of research and development and the benefits arising from the commercial and other utilization of genetic resources." This measure attempts to protect the cultures that offer plant or other natural resources from false patenting by (predominantly Western) companies, but still does not sufficiently cover the protection needs of indigenous bioknowledge. The Mataatua Declaration and the Bellagio Declaration are two measures that attempt to strike at the discourse underlying the law, and thus more effectively alter the law itself. The central elements of

the 1993 'Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples,' issued by an assembly of over 150 delegates from fourteen countries, calls on indigenous peoples to 'define for themselves their own intellectual and cultural property,' and on states to develop in full co-operation with indigenous peoples an additional cultural and intellectual property rights regime incorporating the following:

• collective (as well as individual) ownership and origin

• retroactive coverage of historical as well as contemporary works

• protection against debasement of culturally significant items

• co-operative rather than competitive framework

• first beneficiaries to be the direct descendants of the traditional

• Guardians of that knowledge

• multi-generational coverage span.

The Bellagio Declaration had as its goal not only a system for the protection of TK and TCE, but also a revision of the doctrine of solitary authorship allowing for protection of collective and cultural works in general. An appendix to "The Ethical Reaches of Authorship" includes the full text of the Bellagio Declaration.

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40

This plant, Trichopus zeylanicus, found in the tropical forests of southwestern India, is collected by the Kani tribal people. Writing for Science (March 12, 1999) Pallava Bagala reports that scientists at the Tropical Botanic Garden and Research Institute (TBGRI) in Trivandrum, Kerala, having isolated and tested the ingredient, incorporated it into a compound, which they named "Jeevani," giver of life. The tonic is now being manufactured by the Aryavaidya Pharmacy Coimbtore Ltd., a major Ayuvedic drug company. Quoting Graham Dutfield, Bagala writes that "the process marks perhaps the first time that cash benefits have gone directly to the source of the knowledge of traditional medicines. 'It is a replicable model because of its simplicity,' Dutfield says about a chain of events that began well before the international biodiversity treaty was signed. TBGRI scientists learned of the tonic, which is claimed to bolster the immune system and provide additional energy, while on a jungle expedition with the Kani in 1987. A few years later, they returned to collect samples of the plant, known locally as arogyapacha, and began laboratory studies of its potency. In November 1995, an agreement was struck for the institute and the tribal community to share a license fee and 2 percent of net profits. Another agent from the same plant is undergoing clinical tests for possible use as a stamina-building supplement for athletes" (Bagala, "Indian Deal Generates Payments").

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