The SAGE Handbook of Intellectual Property
Publication Year: 2015
This Handbook brings together scholars from around the world in addressing the global significance of, controversies over and alternatives to intellectual property (IP) today. It brings together over fifty of the leading authors in this field across the spectrum of academic disciplines, from law, economics, geography, sociology, politics and anthropology. This volume addresses the full spectrum of IP issues including copyright, patent, trademarks and trade secrets, as well as parallel rights and novel applications. In addition to addressing the role of IP in an increasingly information based and globalized economy and culture, it also challenges the utility and viability of IP today and addresses a range of alternative futures.
- Front Matter
- Back Matter
- Subject Index
- Chapter 1: Intellectual Property and the ‘Open’ (Information) Society
- Chapter 2: ‘The Economic Foundations of Intellectual Property’: An Arts and Cultural Economist’s Perspective
- Chapter 3: The Idea of International Intellectual Property
- Chapter 4: Globalization and Intellectual Property
- Chapter 5: TRIPS and Development
- Chapter 6: Déjà Vu in the International Intellectual Property Regime
- Chapter 7: Intellectual Property in Chile: Problems and Conflicts in a Developing Society
- Chapter 8: Musical Property Rights Regimes in Tanzania and Kenya after TRIPS
- Chapter 9: Slow Logo: Brand Citizenship in Global Value Networks
- Chapter 10: Counterfeit Commerce: The Illegal Accumulation and Distribution of Intellectual Property
- Chapter 11: Geographical Indications: The Promise, Perils and Politics of Protecting Place-Based Products
- Chapter 12: The Social Imaginary of Geographical Indicators in Contested Environments: Politicized Heritage and the Racialized Landscapes of South African Rooibos Tea
- Chapter 13: Farmers’ Rights and the Intellectual Property Dynamic in Agriculture
- Chapter 14: The Political Economy of Traditional Knowledge, Trademarks and Copyright in South Africa
- Chapter 15: Author and Cultural Rights: The Cuban Case
- Chapter 16: Communicating Copyright: Discourse and Disagreement in the Digital Age
- Chapter 17: Creativity and Copyright: The International Career of a New Economy
- Chapter 18: Non-Profits in the Commons Economy
- Chapter 19: Copyright and Copyleft in India: Between Global Agendas and Local Interests
- Chapter 20: Treasuring IP: Free Culture, Media Piracy and the International Pirate Party Movement
- Chapter 21: Copyright and Ownership of Fan Created Works: Fanfiction and Beyond
- Chapter 22: Copyright and Film Historiography: The Case of the Orphan Film
- Chapter 23: Dangerous Undertakings: Sacred Texts and Copyright’s Myth of Aesthetic Neutrality
- Chapter 24: Sports Television Broadcasting and the Challenge of Live-Streaming
- Chapter 25: ‘Piracy’ or Parody: Moral Panic in an Age of New Media
- Chapter 26: Intellectual Property and the Construction of Un/Ethical Audiences
- Chapter 27: Copyright Law and Video Games: A Brief History of an Interactive Medium
- Chapter 28: Promoting Progress: A Qualitative Analysis of Creative and Innovative Production
- Chapter 29: Copyright and Industrial Objects: Aesthetic Considerations and Policy Discriminations
- Chapter 30: Copyright Technologies and Clashing Rights
- Chapter 31: Music, Technology and Copyright: The Makings and Shakings of a Global Industry
- Chapter 32: Copyright Trolling and the Policing of Intellectual Property in the Shadow of Law
- Chapter 33: Politics, Law and Discourse: Patents and Innovation in Post-Apartheid South Africa
- Chapter 34: Traditional Knowledge, Intellectual Property and Pharmaceutical Innovation: What’s Left to Discuss?
- Chapter 35: Patentable Subject Matter: A Comparative Jurisdictional Analysis of the Discovery/Invention Dichotomy
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Editorial arrangement © Matthew David and Debora Halbert 2015
Chapter 1 © Anne Barron 2015
Chapter 2 © Sarah Louisa Phythian-Adams 2015
Chapter 3 © Shubha Ghosh 2015
Chapter 4 © Debora Halbert 2015
Chapter 5 © Daniel Gervais 2015
Chapter 6 © Peter K. Yu 2015
Chapter 7 © Salvador Millaleo and Hugo Cadenas 2015
Chapter 8 © Alex Perullo and Andrew J. Eisenberg 2015
Chapter 9 © Margaret Chon 2015
Chapter 10 © Chris Rojek 2015
Chapters 11 and 12 © Rosemary J. Coombe, Sarah Ives and Daniel Huizenga 2015
Chapter 13 © Chidi Oguamanam 2015
Chapter 14 © Colin Darch 2015
Chapter 15 © Lillian Álvarez 2015
Chapter 16 © Lee Edwards, Bethany Klein, David Lee, Giles Moss and Fiona Philip 2015
Chapter 17 © Dave O’Brien 2015
Chapter 18 © Jyh-An Lee 2015
Chapter 19 © Pradip Ninan Thomas 2015
Chapter 20 © Lisa Dobbin and Martin J. Zeilinger 2015
Chapter 21 © Raizel Liebler 2015
Chapter 22 © Claudy Op den Kamp 2015
Chapter 23 © John Tehranian 2015
Chapter 24 © Matthew David, Andrew Kirton and Peter Millward 2015
Chapter 25 © Matthew David and Natasha Whiteman 2015
Chapter 26 © Natasha Whiteman 2015
Chapter 27 © Greg Lastowka 2015
Chapter 28 © Jessica Silbey 2015
Chapter 29 © Uma Suthersanen 2015
Chapter 30 © Ian Brown 2015
Chapter 31 © Andrew Kirton 2015
Chapter 32 © David S. Wall 2015
Chapter 33 © Colin Darch 2015
Chapter 34 © Graham Dutfield 2015
Chapter 35 © Susanna H.S. Leong 2015
Chapter 36 © Jake Dunagan 2015
Chapter 37 © William R. Kramer 2015
Chapter 38 © Matthew Rimmer 2015
Apart from any fair dealing for the purposes of research or private study, or criticism or review, as permitted under the Copyright, Designs and Patents Act, 1988, this publication may be reproduced, stored or transmitted in any form, or by any means, only with the prior permission in writing of the publishers, or in the case of reprographic reproduction, in accordance with the terms of licences issued by the Copyright Licensing Agency. Enquiries concerning reproduction outside those terms should be sent to the publishers.
Library of Congress Control Number: 2014940531
British Library Cataloguing in Publication data
A catalogue record for this book is available from the British Library
Editor: Chris Rojek
Assistant editor: Gemma Shields
Production editor: Shikha Jain
Copyeditor: Rosemary Campbell
Proofreader: Katie Forsythe
Indexer: Matthew David and Debora Halbert
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Cover design: Wendy Scott
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Figures and Tables[Page x]
Notes on the Editors and Contributors[Page xi]The Editors
Matthew David teaches sociology at Durham University. His interests are in sharing and digital media. He is the author of Peer to Peer and the Music Industry: The Criminalization of Sharing (SAGE, 2010), Social Research: An Introduction (2nd Edition, with Carole D. Sutton, SAGE, 2011), Science in Society (Palgrave, 2005), and Knowledge Lost in Information (with David Zeitlyn and Jane Bex, Office of Humanities Press, 1998). He has also recently completed editing (with Peter Millward, SAGE, 2014) a four-volume collection on Researching Society Online. His most recent work in the area of file-sharing, live-streaming and new media has been published in The British Journal of Sociology, The European Journal of Social Theory, Sport in Society and Crime, Media, Culture, as well as in the Oxford Handbook of Internet Studies (Dutton ed., 2013). His research on other aspects of science and technology in society has been published recently in Current Sociology, International Sociology and Sociology Compass.
Debora Halbert is an Associate Professor of Political Science at the University of Hawai’i at Manoa where she teaches futures studies, public policy, and courses in law and society. In addition to being Department Chair for the political science department, Halbert is a faculty affiliate with the Hawaii Research Center for Futures Studies.[Page xii]The Contributors
Lillian Álvarez graduated in Law from the University of Havana in 1985. She has worked as a legal advisor in areas of foreign trade and investment and has 20 years’ experience in the sphere of culture. She has worked as an advisor in the Cuban Ministry of Culture, in the National Center of Author’s Rights and as a professor in the National Center of Higher Education for Culture in which she has given postgraduate courses in different aspects of Rights in Culture. She writes on author’s rights as well as cultural rights, cultural diversity, trade treaties and other issues. Her articles have been published in journals and alternative websites. Her book, Author? Rights: The Debate Today was published in Ciencias Sociales (Social Sciences, 2006), Havana. This book engages an anti-hegemonic view on the issues. She won the Prize of Criticism of Social Sciences in her country. She has collaborated as a professor in the Latin American Program of Education at a Distance in Social Sciences (PLED). She has also participated in the Copy South Project. Currently she works in a network of intellectuals, artists and social fighters, ‘In Defense of Humanity’, collaborating on the subjects of access to knowledge, culture and the environment. As a poet she has published the books: Ni el aire ni el espejo (Neither the air nor the mirror; Editorial Extramuros, 2002); Ya los reyes no existen (The kings no longer exist; Editorial Abril, 2011), and Como un cristal temblando (Like a shimmering crystal; a personal anthology currently in press).
Anne Barron is an Associate Professor (Reader) in the Law Department at the London School of Economics, UK. Her current work centres on the relationships between public spheres, information capitalism and intellectual property rights.
Ian Brown is Associate Director of Oxford University’s Cyber Security Centre and Professor of Information Security and Privacy at the Oxford Internet Institute. His research is focused on information security, privacy-enhancing technologies, and Internet regulation. He is an ACM Distinguished Scientist and BCS Chartered Fellow, and a member of the Information Commissioner’s Technology Reference Panel. Since 1998 Dr Brown has variously been a trustee of Privacy International, the Open Rights Group, the Open Knowledge Foundation and the Foundation for Information Policy Research, and an adviser to Greenpeace, the Refugee Children’s Consortium, Amnesty International and Creative Commons UK. He has consulted for the United Nations, Council of Europe, OECD, US Department of Homeland Security, JP Morgan, Credit Suisse, Allianz, McAfee, BT, the BBC, the European Commission, the Cabinet Office, Ofcom, and the National Audit Office.
Hugo Cadenas is Assistant Professor in the Department of Anthropology at the University of Chile, has a PhD in Sociology at the University Ludwig Maximilian of Munich, Germany, a Master degree in Anthropology and Development at the University of Chile and a Bachelor in Social Anthropology at the same University. His areas of research include sociology of law, theory of social systems, anthropological theory, culture theory and socio-environmental issues. He is currently the editor of the journal of social sciences Revista Mad – Universidad de Chile.[Page xiii]
Margaret Chon has been an active scholar and teacher of intellectual property and critical theory since joining the Seattle University School of Law faculty in 1996. She is currently the Donald & Lynda Horowitz Professor for the Pursuit of Justice, and was formerly Associate Dean for Research. She is the author of over 50 articles, book chapters and review essays on both intellectual property and on race.
Rosemary J. Coombe is the Tier One Canada Research Chair in Law, Communication and Culture at York University in Toronto, where she teaches in the Communication and Culture Joint PhD/MA Programme, the Sociolegal Studies Graduate Programme and the graduate program in Anthropology. She holds a joint PhD. in law and anthropology from Stanford University and publishes widely in anthropology, law and sociolegal studies. . Her work addresses the social and cultural implications of intellectual property, the protection of traditional knowledge and traditional cultural expressions, the politics of cultural heritage and cultural property protections and the intersection of these with international human rights practices. Her forthcoming book, The Knowledge Economy and its Cultures, explores the political work that cultural inscriptions are accomplishing under conditions of neoliberalism. Her scholarship may be found at www.yorku.ca/rcoombehttp://www.yorku.ca/rcoombe
Colin Darch is presently a researcher in the Democratic Governance and Rights Unit in the Faculty of Law at the University of Cape Town. In a career spanning over 40 years he has worked in universities and research centres in Ethiopia, Tanzania, Mozambique, Zimbabwe and Brazil. He holds a doctorate in social and economic analysis from the University of Bradford in the United Kingdom. Apart from his interest in intellectual property issues, Darch has written extensively on access to information, and is the co-author, with Peter G. Underwood, of Freedom of Information in the Developing World: The Citizen, the State and Models of Openness (Oxford: Chandos, 2010).
Lisa Dobbin holds an MA in Communication and Culture, an interdisciplinary program run jointly by York and Ryerson Universities in Toronto. Her writing has been published in a number of outlets and she is an editor of the forthcoming volume, Archives in Visual Art and Theory: Estonia and Beyond (Estonian Academy of Arts, 2015).
Jake Dunagan is Global Foresight Lead at verynice design studio, a social enterprise based in LA and Austin. TX. He is a founder, and remains an affiliate, of the Governance Futures Lab at the Institute for the Future. Jake’s work has been centred on the concept of social invention and especially how institutions, organizations and societies are adapting to the Neurocentric Age, a time of unprecedented capacity to view and modify the mind. He has helped create new political systems design tools and structures of citizen participation, as well as led research in comprehensive cognitive design, judicial foresight, kids’ technologies, and the future of work. Jake also creates visual media, interactive experiences, and public projects that inject alternative visions of the future into the mental ecology of the present.
Graham Dutfield is a law professor at the University of Leeds, where he is Director of the LLM in Intellectual Property Law. His research on intellectual property crosses several disciplines, [Page xiv]including law, history, politics and philosophy. More general scholarly interests include the law, the science and business of creativity and technical innovation from the enlightenment to the present, especially in the life sciences. Other research areas include intellectual property and access to knowledge, human rights, sustainable development, health, agriculture, genetics, biotechnology, traditional knowledge and bioprospecting. His most recent books are Knowledge Management and Intellectual Property (with S. Arapostathis, Edward Elgar, 2013), Intellectual Property and Human Development: Current Trends and Future Scenarios (with T. Wong, Cambridge University Press, 2010), and Intellectual Property Rights and the Life Science Industries: Past, Present and Future, 2nd edition (World Scientific Publishing, 2009).
Lee Edwards is Associate Professor in Communication and PR in the School of Media and Communication, University of Leeds. She is author of Power, Diversity and Public Relations (Routledge, 2014), co-author of Understanding Copyright: Intellectual Property in the Digital Age (SAGE, 2015), and co-editor of Public Relations, Society and Culture: Theoretical and Empirical Explorations (Routledge, 2011). She has published widely on public relations and the operation of power.
Andrew J. Eisenberg received his PhD in ethnomusicology from Columbia University in 2009, and is currently Visiting Assistant Professor of Music at NYU Abu Dhabi. He has carried out extensive research on sound and social relations in Mombasa, Kenya, with the support of Fulbright Hays and the Social Science Research Council; and on the music recording industry in Nairobi, Kenya, under the auspices of the European Research Council-funded ‘Music, Digitisation, Mediation’ research programme. Among his recent publications is the article ‘Hip Hop and Cultural Citizenship on Kenya’s “Swahili Coast”’ (Africa 82:4), which won the 2013 Richard Waterman prize from the Popular Music Section of the Society for Ethnomusicology. He is now completing a monograph based on his research in Mombasa, Kenya, entitled Sound and Citizenship: Islam, Aurality, and Social Belonging on the Kenyan Coast.
Daniel Gervais is a Professor of Law at Vanderbilt Law School where he focuses on international intellectual property law and is the Director of the Vanderbilt Intellectual Property Program. He spent 10 years researching and addressing policy issues on behalf of the World Trade Organization (WTO), the World Intellectual Property Organization (WIPO), the International Confederation of Societies of Authors and Composers (CISAC) and Copyright Clearance Center, Inc. (CCC). He is the author of The TRIPS Agreement: Drafting History and Analysis (Sweet & Maxwell, 2010), a leading guide to the treaty that governs international intellectual property rights. Before joining Vanderbilt Law School in 2008, Professor Gervais was acting dean of the Common Law Section at the University of Ottawa, where he also served as vice-dean for research and received funding for his research from the Social Sciences and Humanities Research Council of Canada and from the Ontario Ministry of Research and Innovation. Before entering the academy, he practised law with Clark Woods and as a partner with the technology law firm BCF in Montreal. He also served as a consultant and legal officer at the WTO, as Head of the Copyright Projects section of the WIPO, and as vice-president of international relations at CCC. In addition, he chaired the sectoral work on culture, communications and information at the Canadian Commission for UNESCO, and was a consultant with the Paris-based Organisation for Economic Cooperation and Development. Professor Gervais is a panellist (domain name) at the WIPO Arbitration and Mediation Centre. He has been a visiting professor at numerous international universities, a visiting scholar at Stanford Law School, and is a visiting lecturer at the University of Amsterdam. In 2012 he was the Gide [Page xv]Loyrette Nouel Visiting Chair at Sciences Po Law School in Paris. He is editor-in-chief of the peer-reviewed Journal of World Intellectual Property and editor of www.tripsagreement.net/.
Shubha Ghosh is the Vials Research Fellow and George Young Bascom Professor of Business Law and Elvehjem-Bascom Professor of Law at the University of Wisconsin. He has authored numerous scholarly articles and book chapters as well as several books in the fields of intellectual property, competition law and policy, international law and legal theory. At UW, Professor Ghosh currently teaches Intellectual Property, the Transactional Intellectual Property Seminar, and rotates among Patent, Copyright, and International Intellectual Property. Professor Ghosh has also worked with the World Intellectual Property Organization on the relationship between traditional knowledge and legal systems. Professor Ghosh’s book Identity and Invention (focusing on human genome patenting and personalized medicine) was published by Cambridge University Press in 2012. He is researching a second book project comparing copyright and patent law in colonial India with developments in copyright and patent law since Independence in 1947. The book project is being considered for publication by Oxford University Press. Professor Ghosh is an author of numerous casebooks and teaching materials, including Transactional Intellectual Property (Lexis-Nexis 2012), now in its second edition.
Daniel Huizenga is a doctoral student in Socio-Legal Studies at York University. His research focuses on indigenous and customary land rights in South Africa, with a particular interest in how discourses of ‘indigenous’ and ‘customary’ are used by advocates, non-governmental organizations and legal practitioners. He received his BA in International Development Studies from Trent University in 2008 and his MA in Socio-Legal Studies from York University in 2010.
Sarah Ives addresses the connections between race, indigeneity, and natural resources in South Africa in her research. Based on 14 months of ethnographic fieldwork in the rural Western Cape between 2009 and 2013, her dissertation, ‘Tea Stories: Cultivating Indigeneity in South Africa’s Western Cape’, explored the political, social and ecological relations in the farming of rooibos tea. Her current project examines race theory, politics and activism in a time of climate change. This research complements her previous work on ethnicity, television and development in South Africa. She received her doctorate in Anthropology from Stanford in 2014 and her Masters degree in Geography from the University of Washington in 2006. In 2014 Sarah will serve as a Postdoctoral Fellow in Stanford’s ‘Thinking Matters’ program in liberal education.
Andrew Kirton is a Lecturer in the Department of Sociology, Social Policy & Criminology at the University of Liverpool. His analyses of the development of ‘anti-file-sharing legislation’ and of conflicts surrounding the circulation of intellectual property online reflect a broad interest in the relationship between culture, media and economy.
Bethany Klein is Senior Lecturer in Media and Communication in the School of Media and Communication, University of Leeds. She is author of As Heard on TV: Popular Music in Advertising (Ashgate, 2009) and co-author of Understanding Copyright: Intellectual Property in the Digital Age (SAGE, 2015).
William R. Kramer has a BS in wildlife biology, an MA in Environmental Policy and a PhD in Political Science (Futures Studies). He has worked as a wildlife biologist for the Smithsonian [Page xvi]Institution and the US Fish and Wildlife Service as Chief of the Branch of Endangered Species Recovery and Consultation. He subsequently taught biology and bioethics. His interests in astrobiology brought him to the University of Hawaii where he completed his dissertation regarding the relationship between bioethics and concepts of the ownership of life in the context of space exploration. As part of that work, he spent two weeks in a Mars simulation habitat in the high desert of Utah, provided mission support for NASA’s Hawaii Space Exploration Analog and Simulation, and lectures at the International Space University in Strasbourg, France and elsewhere on a range of astrobiology and bioethics topics. He lives in Kailua, Hawaii.
Greg Lastowka is a Professor of Law at Rutgers School of Law-Camden and co-director of the Rutgers Institute for Information Policy & Law. He teaches and researches in the areas of intellectual property and Internet law. He is the author of Virtual Justice (Yale University Press, 2010).
David Lee is Lecturer in Cultural Industries and Communication in the School of Media and Communication, University of Leeds. He has published articles on creative labour and cultural policy in such journals as Media, Culture and Society, International Journal of Cultural Policy and Television and New Media.
Jyh-An Lee teaches Copyright, Patent, Intellectual Property Law, and Internet Law in the Faculty of Law at The Chinese University of Hong Kong. He holds a JSD from Stanford Law School and an LLM from Harvard Law School. Dr Lee is currently an advisory committee member for Copyright Amendment in the Taiwan Intellectual Property Office (TIPO) at the Ministry of Economic Affairs, and a member of the advisory board of the European Center for E-Commerce and Internet Law in Vienna. Before starting his academic career, he was a practising lawyer in Taiwan specializing in technology and business transactions.
Susanna H.S. Leong is an Associate Professor at the NUS Business School, National University of Singapore. Susanna received her LLB (Hons) from the National University of Singapore and her LLM (with Merit) from University College London, University of London. She teaches business-related law courses to undergraduate and graduate business students. Her research interests are in intellectual property and technology-related laws. She has published in several international and local academic journals. She is also the author of Intellectual Property Law of Singapore (Academy Publishing, 2013). Susanna is the Vice-Dean, Graduate Studies Office, NUS Business School. She is a Senior Fellow at the Intellectual Property Academy of Singapore. She is a member of the WIPO Domain Name Panel and a member of The Regional Centre for Arbitration, Kuala Lumpur (RCAKL) Panel. She is also a member of the Singapore Copyright Tribunal.
Raizel Liebler is the Head of Faculty Scholarship Initiatives at The John Marshall Law School and is a Berkman Center for Internet & Society at Harvard University Affiliate starting in Fall 2015. Raizel frequently presents and writes about the interaction between new, disruptive technologies and the law, including focusing on intellectual property, copyright, and rights of publicity. Her work has been cited by the California Supreme Court and in the New York Times. She is the founding editor of a well-regarded blog about technology and popular culture at The Learned Fangirl (www.thelearnedfangirl.com/).
Salvador Millaleo is Assistant Professor at the Center of Studies on Informatic Law at the University of Chile. He is a lawyer and possesses a doctorate (DPhil) in Sociology from the [Page xvii]University of Bielefeld, Germany. He was a research fellow at the University of Bielefeld and at the Max Planck Institute for Foreign and International Criminal Law in Freiburg. His research topics currently include sociology of law, Internet regulation and society, cyberpolitics, digital activism, intellectual property and traditional knowledge.
Peter Millward is Senior Lecturer in Sociology at Liverpool John Moores University. He has published widely in the field of the sociology of sport, with particular interests in broadcasting rights, transnational business patterns and fan movements in association football. His most recent monograph is The Global Football League: Transnational Networks, Social Movements and Sport in the New Media Age (Palgrave, 2011).
Giles Moss is Lecturer in Media Policy in the School of Media and Communication, University of Leeds. His research focuses on media policy and the relationship between media and politics. He is co-author of Understanding Copyright: Intellectual Property in the Digital Age (SAGE, 2015) and has published articles in a range of journals including New Media & Society, The Journal of Information Technology & Politics and Political Studies.
Dave O’Brien is a lecturer in Cultural and Creative Industries at City University London. He specializes in cultural value and urban cultural policy issues and has a PhD in Sociology from the University of Liverpool. His most recent book, Cultural Policy, was published by Routledge in 2014. His next book. How Government Works, will be published by Palgrave in 2015.
Chidi Oguamanam obtained his legal training in Ife and Lagos in South Western Nigeria, before completing advanced degrees in law at the University of British Columbia. He is called to the Bar in Nigeria and Canada. With strong legal practice experience, he consults extensively with firms, NGOs, States, and intergovernmental and subnational bodies. He is a professor at the Centre for Law, Technology and Society in the Faculty of Law, University of Ottawa. His interdisciplinary research interests focus on various legal and policy issue linkages to intellectual property law, especially in the areas of biotechnology, biodiversity, genetic resources, pharmaceuticals, agricultural knowledge systems, food security and food systems; public health law and policy; indigenous peoples and indigenous knowledge; and human rights and the global governance of knowledge in development contexts. Widely published in law and interdisciplinary platforms, he is the author of International Law and Indigenous Knowledge (University of Toronto, 2006), Intellectual Property in Global Governance (Routledge, 2012), and co-editor of Innovation and Intellectual Property: Collaborative Dynamics in Africa (University of Cape Town, 2013), and Knowledge and Innovation in Africa: Scenario for the Future (University of Cape Town, 2013).
Claudy Op den Kamp is a PhD candidate at Transtechnology Research, Plymouth University, UK, finalizing a research project investigating the relationship between copyright ownership, digitization of archival film and the construction of film history. She is a graduate of the University of Amsterdam (Film and Television Studies) and the University of East Anglia (Film Archiving). She has worked as Haghefilm Conservation’s Account Manager in Amsterdam and prior to that as a Film Restoration Project Leader at the Nederlands Filmmuseum. Currently, she works as a research assistant at the University of Zurich on a research project for the digitization and restoration of archival film.
Alex Perullo is an Associate Professor of Anthropology and African studies at Bryant University (USA). He has published two books on Tanzanian music: Live from Dar es Salaam: [Page xviii]Popular Music and Tanzania’s Music Economy (2011) and Artistic Rights: Copyright Law for East African Musicians, Artists, Writers, and Other Authors (2012). He has also published articles in academic journals and edited volumes on migration, youth cultures, ageing and popular music in Africa. He is currently working on a book that examines ownership, rights and music in Tanzania, Ghana and the African diaspora.
Fiona Philip is currently a Research Fellow on the AHRC-funded project Pararchive: Open Access Community Storytelling and the Digital Archive in the School of Media and Communication, University of Leeds. She was previously Postdoctoral Research Assistant for the ESRC-funded project Communicating Copyright: An Exploration of Copyright Discourses in the Digital Age.
Sarah Louisa Phythian-Adams researches and lectures in economics at the University of Liverpool. Her research interests are particularly focused on Arts & Cultural Economics and the impact of the creative industries sector, as well as behavioural economics and other applications of economic theory in ‘non-standard’ markets.
Matthew Rimmer is an Australian Research Council Future Fellow, an Associate Professor and Associate Director of research at the ANU College of Law, and an Associate Director of the Australian Centre for Intellectual Property in Agriculture. He holds a BA (Hons) and a University Medal in literature, and a LLB (Hons) from the Australian National University. Rimmer received a PhD in law from the University of New South Wales for his dissertation on ‘The Pirate Bazaar: The Social Life of Copyright Law’. He is a member of the ANU Climate Change Institute and a director of the Australian Digital Alliance. Dr Rimmer has published widely on copyright law and information technology, patent law and biotechnology, access to medicines, the plain packaging of tobacco products, clean technologies and traditional knowledge.
Chris Rojek is Professor of Sociology at City University, London. He is the author of many books, the most recent of which are Pop Music, Pop Culture (Polity, 2011), Fame Attack: The Inflation of Celebrity and its Consequences (Bloomsbury, 2012) and Event Power (SAGE, 2013).
Jessica Silbey is a Law Professor at Suffolk University Law School in Boston, teaching in the areas of intellectual property and constitutional law. Professor Silbey’s scholarly interests and [Page xix]expertise is in the cultural analysis of law, exploring the law beyond its doctrine to the contexts and processes in which legal relations develop and become significant for everyday actors. Professor Silbey has published widely in the field of law and film, exploring how film is used as a legal tool and how it becomes an object of legal analysis in light of its history as a cultural object and art form. Her books include The Eureka Myth: Creators, Innovators and Everyday Intellectual Property (Stanford University Press, 2015) and Law and Justice on the Small Screen (Hart Publishing, 2012). Professor Silbey received her BA from Stanford University and her JD and PhD (Comparative Literature) from the University of Michigan. After clerking for Judge Robert E. Keeton in the United States District Court for the District of Massachusetts and Judge Levin Campbell in the United States Court of Appeals for the First Circuit, she practised law in the disputes department of the Boston office of Foley Hoag LLP, focusing on intellectual property, bankruptcy and reproductive rights.
Uma Suthersanen holds a Chair in International Intellectual Property Law at Queen Mary, University of London. She is a Co-Director of Queen Mary Intellectual Property Research Institute, an Executive Committee Member of the British Literary and Artistic Copyright Association (having been the Chairman and Vice-Chairman from 2006–2013); an Executive Committee Member of the Association Littéraire et Artistique International; and a Visiting Fellow of the Intellectual Property Academy of Singapore. She holds an LL.B (Hons) from the National University of Singapore, and an LL.M and Ph.D from Queen Mary, University of London. She edits the European Copyright and Design Reports (Sweet & Maxwell), and is a Founding Editor of the Queen Mary Perspectives in Intellectual Property series (Edward Elgar). She has written extensively on copyright and design laws, and her books include Design Law in the European Union and United States (Sweet & Maxwell, 2010), and Global Intellectual Property Law (Edward Elgar, 2008, with G. Dutfield). She is currently working on the 2nd edition of Global Intellectual Property Law, as well as on a monograph on cultural heritage and intellectual property rights (based on a UK Arts and Humanities Research Council grant, 2010–2012). She is the director of teaching modules in International and Comparative Copyright and Design Laws, and in Global Intellectual Property Law, both in the London and Paris LL.M programmes.
John Tehranian is an academic, attorney and author. He is the Irwin R. Buchalter Professor of Law at Southwestern Law School and has previously served as a tenured Professor of Law at the University of Utah, S.J. Quinney College of Law, and as a Visiting Professor of Law at Loyola Law School. A graduate of Harvard University and Yale Law School, he is the author of dozens of articles and two books, Whitewashed (NYU Press, 2009) and Infringement Nation (Oxford University Press, 2011). He is also a founding partner of One LLP, an intellectual property and entertainment law firm where he has litigated numerous high-profile intellectual property lawsuits, including those involving Madonna, Don Henley, B.B. King, Bettie Page, Jimi Hendrix and Perez Hilton, among others. In 2013, Variety’s ‘Legal Impact Report’ recognized John as one of the world’s top 50 entertainment lawyers. A frequent commentator for the broadcast and print media, he has spoken at numerous international conferences and his work has been widely cited, from testimony before Congress and decisions of the Israeli courts to amicus briefs before the United States Supreme Court and in such leading publications as the Yale Law Journal and Harvard Law Review.
Pradip Ninan Thomas is currently the Acting Head of School, School of Journalism & Communication, University of Queensland, Brisbane. He has written extensively on the [Page xx]political economy of communication, including a three-volume series on the media in India published by SAGE between 2010 and 2012. His latest publication is ‘Public Sector Software and the Revolution: Digital Literacy in Communist Kerala’, Media, Culture & Society 36(2): 258 (2014).
David S. Wall is Professor of Criminology at Durham University where he researches and teaches cybercrime, identity crime, policing and intellectual property crime. He has a sustained track record of funded research in these areas from the EU FP6 and FP7, ESRC, EPSRC, AHRC and other funders, he has also published a wide range of 40+ articles and 10+ books on these subjects which include: Cybercrime and the Culture of Fear: Policing the Reassurance Gap in Cybersecurity (Springer, forthcoming), Policing Cybercrime (Palgrave, 2014), Cybercrime: The Transformation of Crime in the Information Age (Polity, 2007, 2nd edn, 2015), Crime and Deviance in Cyberspace (ed., Ashgate, 2009), Cyberspace Crime (ed., Ashgate, 2003) and Crime and the Internet (ed., Routledge, 2001). He is an Academician of the Academy of Social Sciences (AcSS), a Fellow of the Royal Society of Arts (FRSA) and was a member of the ESRC Grants Assessment Panel 2009–2012. He is the Head of the School of Applied Social Sciences at Durham University and was formerly Head of the School of Law (2005–2007) and Director of the Centre for Criminal Justice (2000–2005) at the University of Leeds.
Natasha Whiteman is Lecturer in Media and Communication at the University of Leicester. She received her PhD from the Institute of Education, University of London. Her research interests include the study of media fandoms and videogame cultures on the Internet and the ethics of contemporary media audiences. She is the author of Undoing Ethics: Rethinking Practice in Online Research (Springer, 2012).
Peter K. Yu holds the Kern Family Chair in Intellectual Property Law and is the founding director of the Intellectual Property Law Center at Drake University Law School. He has served as Wenlan Scholar Chair Professor at Zhongnan University of Economics and Law in Wuhan, China, and as a visiting professor of law at the University of Haifa, the University of Hong Kong, the University of Strasbourg, and Washington and Lee University. Born and raised in Hong Kong, Professor Yu is a leading expert in international intellectual property and communications law. A prolific scholar and an award-winning teacher, he is the author or editor of five books and more than 100 law review articles and book chapters. He serves as the general editor of The WIPO Journal published by the World Intellectual Property Organization (WIPO). Professor Yu has spoken at events organized by WIPO, the International Telecommunication Union, the UN Conference on Trade and Development (UNCTAD), the UN Educational, Scientific and Cultural Organization (UNESCO), the Chinese, US and EU governments and at leading research institutions from around the world. His lectures and presentations have spanned more than 25 countries on six continents, and his publications have appeared in Chinese and English and have been translated into Arabic, French, Hausa, Japanese, Persian, Portuguese, Spanish and Vietnamese.
Martin J. Zeilinger is a media scholar and practitioner whose work focuses on digital remix culture and practices of appropriation. He holds a PhD in Comparative Literature from the University of Toronto, and was the SSHRC Banting Postdoctoral Fellow in Law & Culture at York University from 2011–2013. Currently, he teaches at the University of Toronto and at the Ontario College for Art & Design (OCAD) University, and is a faculty member at the International Summer Institute for the Cultural Study of Law held annually at Osnabrück University, Germany. He is co-editor of Dynamic Fair Dealing (University of Toronto Press, [Page xxi]2014), an interdisciplinary volume on the IP challenges faced by digital practitioners. His work on the interplay between intellectual property law and contemporary cultural practices has also been published in MIT’s Journal for Computer Music (2014), in the Journal of the International Assocation for the Study of Popular Music (2012), and in the books Sampling Media (Oxford University Press, 2014), The Perils of Pedagogy (McGill-Queen’s UP, 2013), and Eyes Everywhere (Routledge, 2012). As part of his curatorial practice in digital media, he is co-director and co-curator of the annual Vector Game+Art Convergence Festival.
Editing a collection of original works on intellectual property by authors from across the world, and from a wide range of academic disciplines, cannot help but to touch upon the practicalities of intellectual property rights, globalization and its limits, as well as upon the tensions that exist between different intellectual points of view regarding supposedly identical content. In bringing this collection to completion, the editors and authors were confronted with a range of issues relating to contracts, continents and content.
A Question of Contracts. Editing a collection of this magnitude creates a number of logistical difficulties, and we are not the first to have experienced them. In this regard, we were pleased to learn that SAGE, the publishers, had created an automated author/editor online ‘portal’ to help us manage the flow of information. Invitations to contribute, replies and acceptances, drafts, reviews, editors comments, new drafts, and final versions would all pass through and be held on this platform, promising to make the editors’, and the authors’, lives much easier. However, there was a problem. It is common knowledge, firstly, that many unfavourable things get buried in the ‘small print’ of contracts, and, secondly, that online ‘click through’ contracts between users and suppliers or online services are particularly notorious for gaining ‘consent’ even whilst the person clicking is very rarely fully ‘informed’. Our portal was configured in such a fashion that we, the editors, were required to invite prospective authors to contribute chapters to the collection on themes we, the editors, were initially required to suggest, but which the authors would be fully able to alter later. Once invited to contribute the author was able to sign up via the portal by clicking the requisite button on the portal. Being a group of the world’s most IP savvy intellectuals it was not surprising that our prospective authors in fact read the terms and conditions of the contracts they were required to assent to in order to ‘click through’ their agreement to participate via the portal. As the portal was structured in such a fashion as to require the editors to invite each author to contribute a chapter on a topic suggested by the editors, the contract was worded to make the author’s contribution a ‘work for hire’, rather than the author’s own copyrightable work. We, the authors and editors, were informed that the wording of the portal’s click through contract could not be altered. This was deemed unacceptable by so many of our prospective contributors that the overall work would have ground to a halt if we had stuck with the portal. This attempted ‘law as code’ was however not the end of the line as we simply abandoned the portal and renegotiated the contract between publisher and authors, giving authors a clearer freedom to re-use their own work and retain control over that work in other formats.
While we as editors had initially sought to alter the contract language that would be issued to the authors, our initial efforts had been met with resistance on the part of SAGE. In fact, without the widespread revolt of so many of our authors, it is unlikely that altering the contract would have been accomplished. SAGE had indicated that it would negotiate with authors on a one-on-one basis, but such a process would have resulted in a wide and unfair distribution of rights. Only through coordinated negotiation were we able to alter the contract fairly for the group as a whole.
For those working in the arena of copyright law and its future implications, the lessons behind these contractual fights are illuminating. SAGE seeks to publish an exclusive Handbook that will cost a substantial amount of money, more money than any individual is likely to pay. The audience for such a work is, by definition, limited to University libraries. SAGE of course [Page xxiii]seeks to recoup the cost of editing and producing the volume, which it does in part by receiving all the contents of the Handbook for free from the authors. The editors in this case waived any advance because it was feared that those costs of production that could be set against any royalties due to the editors (such as in securing rights on images and graphics used, compiling the index etc.) would be more than the advance. We did not wish to end up owing SAGE for the privilege of collaborating on this Handbook. In the end the editors decided to compile the index themselves as the cost (to be deducted by SAGE from any royalties due to the editors) of having this done by someone else would have been most likely greater than the sum of all royalties due to them. As editors, we are entitled to a very small percentage of net sales. An indexer is paid an hourly rate. Needless to say, the political economy of academic publishing and the future of this endeavour where academics produce content for free and are not even extended the opportunity to re-produce their content in other venues where citations and visibility may be enhanced, help to illustrate the complexities and problems with contemporary copyright and contracts.
A Question of Continents. The extension of IPRs in time and space since the end of the Cold War and the rise of the World Trade Organization etc. has meant that the world is an increasingly interconnected and interdependent place (though it was already deeply so anyway). Nonetheless, this global world where everything is connected is not one where everyone is connected equally. Power and voice are distributed unevenly, and perhaps even more so now than when things were less integrated. In the creation of this collection we, the editors, made efforts to ensure that the collection brought together contributors from every continent, and we have been successful in that ambition. The editor’s limitations in terms of accessing content outside the English language meant that there remains much to be said about intellectual property from a number of different perspectives. Though we made certain that translation services were available to authors whose work would require it, there are many scholars whom we simply would not have known to invite because of the language barriers that continue to exist.
We also secured funds to assist prospective contributors who wished to attend the symposium on IP held at the Durham University Institute for Advanced Study/Durham Castle in June/July 2013. Nonetheless, the spread of contributions remains biased towards North America and Western Europe; towards the English language, and from those in relatively affluent academic positions relative to less secure practitioner/activist positions. Nonetheless, this work has brought together contributors from North America, South America, The Caribbean, Europe, Africa, South Asia, East Asia and Australasia, so whilst attentive to biases in reality that are reflected in the composition of this work we also feel that we have been relatively successful in drawing upon the positive potentials of a globalized world to address, at least in part, the limits and problems associated with it.
In many ways, producing a handbook like this was a lesson in withstanding attrition as we sought to balance publication deadlines and exacting standards of quality, with the busy lives and schedules of contributors. More time may have enabled more contributions and we regret these losses. However, our strict attitude to reviewing and of requiring authors to maintain the highest standards of depth and clarity in the work that we were willing to accept also meant that some interesting work was lost along the way. This is also the source of some regret, though the dilution of quality for quantity would have been far more regrettable. We remain grateful for the many authors who were willing and able to meet our deadlines and remain with the project to its completion.
A Question of Content. As every social scientist and humanities scholar knows organizing their colleagues is like herding cats. The idea of organizing a collection made up of as many such different disciplines as possible is therefore a task not for the faint hearted. Luckily for us we are not required to adjudicate when two lawyers and an economist take different views on the significance of the same appropriation artist; nor when political scientists and lawyers [Page xxiv]diverge on the question of traditional knowledge and bio-piracy. Ethnographers and sociologists can come to different conclusions as to the benefits of copyright for musicians in different parts of the world, whilst lawyers can disagree amongst themselves over the distinction between invention and discovery in the field of human and plant genetics. These are only some of the tensions that the keen eyed reader will note in this collection and to which we, the editors, have sought to draw some further attention to within our general introduction and section introductions. We are ‘intensely relaxed’ as the saying goes about such diversity in a collection such as this, and positively commend it to our readers. Whether these disciplinary tensions, as well as those that arise out of different geographies and economies, and between the different domains of IP covered in this collection, can be ‘resolved’ within a singular ‘perspective’ on IP in a global world is not something we can seek to answer in a work of this kind. However, we, the editors, are grateful to the contributions of all the authors in this collection, as their insights, complementary and in tension as they might be, have provided us with the inspiration for just such an ambitious next project – one that may try to bring some level of synthesis to the global debate about intellectual property and its future. Watch ‘that’ space.
Bringing together a work of this size the editors could not help but to have incurred a very great number of debts of gratitude. We might best start by thanking Chris Rojek from SAGE for initially working with us on the idea for this work, and in fact for first putting us in contact with one another in 2011. Martine Jonsrud for the early stages of practical editing, then Judi Berger and Gemma Shields for taking on this mountain of logistical headaches, technical and contractual tangles and for getting the whole thing rounded up into something close to a reasonable timescale. Then, thanks also to Shikha Jain and Sushant Nailwal from the SAGE production team and to Michael Ainsley in marketing and the copyeditor too. We would also like to extend a particular thanks to Johanna Schenner and to Ana Portela for their help with translation. Of course the contributors themselves, whose names appear throughout, deserve a special thanks as this work is fundamentally a collection of their talents and efforts. Thank you for the ideas collected here and for those ‘behind the scenes’ that also made things possible. Academic advice and other helpful input came from beyond the contributors alone, and we would particularly like to thank: Ann Bartow, Richard Bruce, Julie Dent, William Gallagher, Chris May, Matthew Petrasek, Laurie Onuizka, Caroline Ncube, Tobias Schonwetter, Martha Woodmansee, Siva Vaidhyanathan and Majid Yar. In 2013 we hosted an IP symposium at Durham University where contributors were invited to present their work in progress. We must thank Durham University’s Institute of Advanced Study for the use of their excellent conference facilities during our 2013 IP symposium, David Held (for lending us a very nice bit of Durham Castle), Durham University’s School of Applied Social Sciences for their financial assistance; and the financial support of the University of Hawaii Department of Political Science for co-sponsoring the symposium. We learned as much about the respective administrative bureaucracies from hosting this symposium as we did about intellectual property itself.
List of Acronyms[Page xxvi]
- A&R Artists and Repertoire
- AAIPT Alliance Against Intellectual Property Theft (UK) – now Alliance for IP
- ABS Access and Benefit Sharing
- A2K Access to Knowledge
- ACA2K African Copyright and Access to Knowledge
- ACB African Centre for Biosafety
- ACE Association des Cinémathèques Européennes
- ACTA Anti-Counterfeiting Trade Agreement
- ACTI Association of Science and Technology Companies – Chile
- ADR Alternative Dispute Resolutions
- AGOA African Growth and Opportunity Act
- AIA (Leahy-Smith) America Invests Act
- ALCS Authors Licensing and Collecting Service – UK
- ARIPO African Regional Intellectual Property Organization
- ARV Anti Retro Viral
- ASCAP American Society of Composers, Authors, and Publishers
- ASEAN Association of Southeast Asian Nations
- ASF Apache Software Foundation
- ASILFA Association Industrial de laboratorios Farmaceuticos - Chile
- AT Antarctic Treaty
- AUTM Association of University Technology Managers
- AYUSH Department of Ayurveda, Yoga, Unani, Siddha and Homeopathy – India
- AZT Azidothymidine
- BASATA National Arts Council – Tanzania
- BBC British Broadcasting Corporation
- BCP Biocultural Community Protocol – South Africa
- BIRPI United International Bureau for the Protection of Intellectual Property
- BMI Broadcast Music, Inc.
- BPI British Recorded Music Industry (formally the British Phonographic Industry)
- BPO Business Process Outsourcing
- BRCA Breast Cancer
- BRELA Business Registration and Licensing Agency – Tanzania
- BRICS Brazil, Russia, India, China, South Africa
- BSD Berkeley System Distribution
- BSF Benefit Sharing Fund
- BSA Business Software Alliance
- C2C Consumers to other Consumers
- CAFC United States Court of Appeals for the Federal Circuit
- CAN Climate Action Network
- CBD Convention on Biological Diversity[Page xxvii]
- CC Creative Commons
- CD Compact Disc
- C-DAC Centre for the Development of Advanced Computing
- CDR Community Design Regulation – EU
- CDU Christian Democratic Union – Germany
- CDPA Counterfeit Drug Prevention Act – USA
- CEAC Copyright Enforcement Advisory Council – India
- CENDA National Center of Author’s Rights – Cuba
- CEO Chief Executive Officer
- CESCR United Nations Committee on Economic, Social and Cultural Rights
- CGIAR Consultative Group on International Agriculture Research Consortium
- CHAMUDATA Tanzanian Music Dance Association
- CHM Common Heritage of Mankind
- CIF Chamber of the Pharmaceutical Industry
- CIPC Companies and Intellectual Property Commission – South Africa
- CIPRO Companies and IP Registration Office – South Africa
- CIS Centre for Internet and Society – India
- CISAC International Confederation of Societies of Authors and Composers
- CJEU Court of Justice of the European Union (also known as ECJ – see below)
- CMO Collective Management Organization – Tanzania
- CMT Cut, Make Trim Factories
- COP Conference of the Parties to the UNFCCC (see below)
- COSOTA Copyright Society of Tanzania
- CRC Copyright Review Commission – South Africa
- CSIR Council for Scientific and Industrial Research – South Africa
- CSO Civil Society Organization
- CSS Content Scramble Systems
- CTEA Sonny Bono Copyright Term Extension Act – USA
- CVS Concurrent Versions System
- DAT Digital Audio Tape
- DALRO Dramatic, Artistic and Literary Rights Organization – South Africa
- DCMS Department for Culture, Media and Sport – UK
- DDOS Digital Denial of Service
- DMCA Digital Millennium Copyright Act – USA
- DOC Controlled Denomination of Origin – Italy
- DRM Digital Rights Management
- DST Department of Science and Technology - South Africa
- DTI Department of Trade and Industry – South Africa
- DVD Digital Versatile Disc
- EAC East African Community
- ECHR European Convention on Human Rights
- ECJ European Court of Justice (also known as CJEU – see above)
- EFF Electronic Frontier Foundation
- EMG Environmental Monitoring Group – South Africa
- EPC European Patent Convention, 1973
- EPL English Premier League
- ETC Group Action Group on Erosion, Technology and Concentration (formerly RAFT – see below)[Page xxviii]
- EU European Union
- EULA End User License Agreements
- FA Football Association
- FAA Federal Aviation Administration – USA
- FACT Federation Against Copyright Theft – UK
- FAO Food and Agricultural Organization
- FBI Federal Bureau of Investigation – USA
- FCA Federal Court of Australia
- FDA Federal Drug Administration – USA
- FDA Foreign Direct Investment
- FERA Federation of European Film Directors
- FIAPF Fédération Internationale des Associations de Producteurs Films
- FIFA Federation of International Football Associations
- FOSS Free and Open Source Software
- FSF Free Software Foundation
- FTA Free Trade Agreement
- FTC Federal Trade Commission – USA
- GAO Government Accountability Office – USA
- GATT General Agreement on Tariffs and Trade
- GDP Gross Domestic Product
- GFHR Global Forum for Health Research
- GI Geographical Indication
- GII Global Information Infrastructure
- GLAM Galleries, Libraries, Archives and Museums –UK
- GNOME GNU Object Model Environment
- GNU GNU is Not Unix
- GPL General Public License
- GPS Global Positioning System
- GVA Gross Value Added
- GWR Great Western Railway – UK
- HADOPI Haute Autorité pour la Diffusion des Œuvres et la Protection des droits d’auteur sur Internet – France
- HD-DVD High Definition Digital Versatile Disc
- ICCPR International Covenant on Civil and Political Rights
- ICESCR International Covenant on Economic, Social and Cultural Rights
- ICT Information and communication technologies
- IDA International Depositary Authorities
- IFPI International Federation of the Phonographic Industry
- IGO International Governmental Organisation
- IIPA International Intellectual Property Alliance
- IK Indigenous Knowledge
- ILC Indigenous and Local Communities
- IMF International Monetary Fund
- IOC International Olympic Committee
- IP Intellectual Property
- IPECEA Intellectual Property Enhanced Criminal Enforcement Act 2007 – South Africa
- IPL Internet Public Library
- IPO Intellectual Property Office – UK[Page xxix]
- IPR Intellectual Property Rights
- IPR-PFRD Intellectual Property Rights from Publicly Financed Research and Development Act – South Africa
- IPRS Indian Performing Rights Society Limited
- ISP Internet Service Provider
- IT Information Technology
- ITO International Trademark Association
- IUCN International Union for the Conservation of Nature
- IUPGRFA International Undertaking on Plant Genetic Resources for Food and Agriculture
- JIPA Japan Intellectual Property Association
- KAMP Kenya Association of Music Producers
- KBE Knowledge Based Economy
- KECOBO Kenya Copyright Board
- KEI Knowledge Ecology International
- LDC Least-Developed Countries
- LOCOG London Organising Committee of the Olympic and Paralympic Games
- LOS United Nations Convention on the Law of the Sea
- MAA Manufacturers Aircraft Association – USA
- MCPS Mechanical-Copyright Protection Society – UK
- MCSK Music Copyright Society of Kenya
- MICO Mark Indicating Conditions of Origin
- MIT Massachusetts Institute of Technology
- MLS Multilateral System
- MPAA Motion Picture Association of America
- MPEG Moving Picture Expert Group
- MSF Médecins Sans Frontières
- MTCT Mother to Child Transmission
- NASA National Space and Aeronautics Administration – USA
- NDA Non-Disclosure Agreement
- NESTA National Endowment for Science Technology and the Arts – UK
- NIPMO National IP Management Office – South Africa
- NII National Information Infrastructure
- NISCAIR National Institute of Science Communication and Information Resources – India
- NIH National Institutes of Health – USA
- NGO Non Governmental Organization
- NPO Nonprofit Organization
- OAPI Organisation Africaine de la propriété intellectuelle
- OAS Organization of American States
- OCIPE Office of Companies and IP Enforcement – South Africa
- OCW OpenCourseWare
- OECD Organization of Economic Cooperation and Development
- OER Open Educational Resources
- OMPI Organisation Mondiale de la propriété intellectuelle (in English WIPO)
- OSD Open Source Definition
- OSDL Open Source Development Labs
- OSI Open Source Initiative
- OSP Online Service Provider[Page xxx]
- OST 1967 Treaty on the Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies
- OSYU Open Source Yoga Unity
- P2P Peer-to-Peer
- PAIPO Pan-African IP Organization
- PBR Plant Breeders’ Rights
- PC Personal Computer
- PCT Patent Cooperation Treaty
- PDO Protected Denomination of Origin – EU
- PGO/I Protected Geographical Indication – EU
- PGR Plant Genetic Resources
- PGRFA Plant Genetic Resources for Food and Agriculture
- PIC Prior Informed Consent
- PIPA Protect Intellectual Property Act – US
- PK Public Knowledge
- PLoS Public Library of Science
- PMA Pharmaceutical Manufacturers’ Association
- PMC PubMed Central
- PPI Pirate Parties International
- PPL Phonographic Performance Limited - India
- PPUK Pirate Party UK
- PRiSK Performers Rights Society of Kenya
- PRS Performing Rights Society – UK
- PSS Public Sector Software
- R&D Research and Development
- RAFI Rural Advancement Foundation International (now ETC Group – see above)
- RCEP Regional Comprehensive Economic Partnership – East Asia and the Australasia
- RIAA Recording Industry Association of America
- SAARC South Asian Association for Regional Cooperation
- SAB South African Breweries
- SABAM Société d’Auteurs Belge – Belgische Auteurs Maatschappij – Belgium
- SACU Southern African Customs Union
- SAFACT South African Federation Against Copyright Theft
- SAI Social Accountability International
- SAIIPL South African Institute of Intellectual Property Law
- SAMRO Southern African Music Rights Organization
- SARC South African Rooibos Council
- SCD Chilean Copyright Society
- SCO Group Santa Cruz Operation Group
- SCRIPT Society for Copyright Regulations of Indian Producers of Films and Television
- SCMS Serial Copy Management System
- SDMI Secure Digital Music Initiative
- SETI Search for extraterrestrial intelligence
- SFLC Software Freedom Law Center
- SOPA Stop On-line Piracy Act – USA[Page xxxi]
- SPACE Society for Promotion of Alternative Computing and Employment
- SRA Solicitors Regulation Authority – England and Wales
- SSCR WIPO Standing Committee on Copyright and Related Rights
- SSRC Social Science Research Council
- TAC Treatment Action Campaign
- TERI The Energy and Resource Institute
- TIA Technology Innovation Agency – South Africa
- TIFA Trade and Investment Framework Agreement – South Africa
- TK Traditional Knowledge
- TKDL Traditional Knowledge Digital Library – India
- TOS Terms of Service
- TPB The Pirate Bay
- TPM Technological Protection Measures
- TPP Trans-Pacific Partnership
- TRIPS Trade Related Aspects of Intellectual Property Agreement
- TTIP Transatlantic Trade and Investment Partnership
- TTO Technology Transfer Office
- TWN Third World Network
- UCC Universal Copyright Convention/Code
- UCT University of Cape Town
- UDHR Universal Declaration of Human Rights
- UGC User Generated Content
- UN United Nations
- UNCTAD United Nations Convention on Technology and Development
- UNDP United Nations Development Programme
- UNEP United Nations Environmental Programme
- UNESCO United Nations Educational, Scientific and Cultural Organization
- UNFCCC United Nations Framework Convention on Climate Change
- UNIDO United Nations Industrial Development Organization
- UNISA University of South Africa
- UPOV Act of the International Union for the Protection of New Varieties of Plants
- USC United States Court (of Appeal)
- USCO United States Copyright Office
- USOC United States Olympic Committee
- USPTO United States Patent and Trademark Office
- USTR United States Trade Representative
- VARA Visual Artists Rights Act – USA
- VCR Video Cassette Recorder
- VfX Visual Effects
- WCT WIPO Copyright Treaty
- WIPO World Intellectual Property Organization (in French OMPI)
- WPPT WIPO Performances and Phonograms Treaty
- WTO World Trade Organization
- WWW World Wide Web
The term ‘intellectual property rights’ is used to refer to forms of legal protection offered to rights holders across a variety of legal regimes. It governs the application and/or exploitation of certain kinds of ideas, or at least the expression or tangible articulation of such ideas. Intellectual property rights exist as a curious balance between the idea of ‘ownership’ and a reluctance to accord such absolute rights in the domain of ideas. Intellectual property rights evolved as limited monopolies granted over innovative ideas and inventions and were designed to strike a balance between private remuneration and the public good. The emergence of an ‘informational’ economy and society that is increasingly global, has brought to the fore the importance of intellectual property rights, even as it has also highlighted the contradictions and tensions within such a set of socio-legal conventions. In this context it is important to note that IP is not ‘real property’, just as ‘real property’ is a social convention, not a natural (physical) attribute (in the way that being warm blooded is a ‘property’ of being a mammal).
Despite significant differences in what is covered by the legal regimes that are generally known as intellectual property and our understanding of real property, the term is designed to draw a direct parallel with those rights accorded to owners of physical forms of property. In other words, using the term intellectual property rights is intended to evoke the commonly understood and at this point virtually ‘natural’ concept of ‘ownership’, at least within capitalist societies. The underlying inherent nature of social relations has evolved over time. For example, it was (is) deemed heretical to question the divine right of rulers in feudal/theocratic societies whose rule was said to be natural, and was said to be a crime against ‘nature’ (and a crime against law) to question gendered roles and identities in patriarchal societies.
By definition, a capitalist society is one where owning property (capital) is, at a fundamental level, taken to be a natural and self-evident right. The end of the cold-war has seen the expansion of capitalism as an ideological and material system. To use Francis Fukuyama’s much commented upon Hegelian thesis, the end of the Cold-War marks the end of ‘History’ (Fukuyama 2006). That capitalism is the final destination of human progress may be less than certain. However, the idea that it is so is certainly largely ‘taken-for-granted’ today. While intellectual property has always been controversial, it is only within the last days of the Cold-War and in the post-Cold War era of totalizing global capitalist reconstruction that the various regimes falling under the general umbrella term of intellectual property have become central to political discussion and have become widely known to the general public. Thus, within the contemporary capitalist frame, the primacy of property rights, and by extension the primacy of intellectual property rights, has expanded both geographically and conceptually. In particular, we have witnessed efforts at extending the global scope, temporal duration and range/depth of what it is that can be covered by intellectual property rights. The purpose of this collection is to describe, map and question the imperial ambitions and the natural self-evidence of such expansion.[Page xxxiv]What Is Intellectual Property?
For most of its history, copyrights, patents, trademarks and trade secrets have been a fairly esoteric dimension of law and policy. Types of intellectual property protection were of use to businesses seeking to defend intangible assets from misappropriation by other businesses (legal or otherwise). Widespread appropriation and copying, however, required access to technologies and levels of development that limited the ability to copy to those who had access to the appropriate reproductive technologies. So, for example, to print unlicensed or unauthorized books, early copyright infringers would need their own printing press. Thus, the relevance of copyright infringement or patent infringement to everyday life was indirect. Whilst monopoly rights may have limited supply and hence increased prices for certain goods to consumers, regulation of the authority to produce a copy was something to be determined between suppliers. The general population may have experienced the effect of IP law (in terms of higher prices and/or new and innovative products produced in response to the incentive of such IP-based monopoly prices or access to cheaper pirated goods), but it was not members of the general public who were ever likely to have legal action taken against them. Not so today in relation to digital content. With virtually every person in the developed world and increasingly in the developing world having access to the means of reproducing a digital copy and using technology to reproduce inventions, the scope of possible infringement for laws designed for a different age increases immensely. Knowledge, of what these laws entail, however, remains less generally known.
Before delving into the conceptual, political and historical dimensions of intellectual property, it is worth identifying and briefly describing the key legal regimes that together are called intellectual property. These include copyright, patents, trademarks, trade secrets, the much newer geographical indications, and a variety of what are called sui generis legal regimes that protect plant genetic resources and some types of data. The following descriptions are general and cannot bring in all the nuances of local protections that may deviate from the international norms that have been established.
Copyright is often claimed to have originated with the 1710 Statute of Anne in England (Rose  and variously discussed in this collection). Much debate (in this volume and elsewhere) addresses the distinctiveness and potential convergence between the Anglo-Saxon conception of copyright and Latin-based legal frameworks that assert the ‘moral rights’ of authors. In part, this emerged as a debate between authors, book publishers and the crown over the length of copyright – should it be perpetual or limited – and to protect publishers from piracy. The law today has expanded considerably from its earliest manifestation as a publisher’s right to copy. Today, copyright is a limited monopoly right that lasts for a minimum of 50 years after the life of the author. However, in many countries, like the United States, the term of protection is the life of the author plus 70 years. Copyright protects expressions, not ideas, and these expressions must be ‘fixed in a tangible form’, meaning that the work must be written down or affixed in some manner (such as a computer’s memory). The owner of the copyright, which can be distinct from the author, acquires the rights over the copy, meaning that they control who can and cannot make authorized copies of the original work. The copyright owner also controls what are called derivative works, works inspired by the initial creative act. They also control the public performance of the work. In some jurisdictions, the author retains what are called ‘moral rights’ in the work, meaning that even after the first sale, their work must continue to have the artistic integrity with which it began.
Copyright is not an absolute monopoly, others can utilize a copyrighted work under the constraints of what in the US is called ‘fair use’ and in the UK is called ‘fair dealing’, but which ultimately provides a small amount of flexibility for others to comment on, criticize or cite the [Page xxxv]original work. Each definition, concept and approach written into copyright law has been tested and challenged and it is safe to say that the boundaries of what constitute a fair use or a public performance changes over time. While you do not need to officially register a copyright for it to come into force (it does the moment something is fixed), registration makes it possible to pursue possible copyright infringement. Copyright infringement is the unauthorized production of a copyrighted work. Infringing behaviour can be either deliberate or unknowing, but in either case is associated with very expensive fines and the possibility of criminal sanctions.
Patents have an earlier starting point – some would argue with the guild system in Italy in the fifteenth century (May & Sell 2006). As patents have evolved today, they protect inventions and offer a more limited timeframe of protection than copyright but with more absolute monopoly control. Where the copyright regime recognizes that future creativity may build upon, reference or interact with other creative work, the underlying assumption behind patentable inventions is that by extending an absolute protection over a new design or invention, the inventor will have the incentive to share that idea with the public. In exchange, the inventor acquires the right to exclude all others from manufacturing, building, or in any other way using or producing the invention without explicit authorization. The term for patent protection is 20 years from the date the patent is filed. Virtually all jurisdictions now use a ‘first to file’ system when determining who is to be assigned the patent, instead of the ‘first to invent’ system that had remained active in the United States until 2011.
A patent protects inventions, business methods and designs, but, more broadly, patents also now protect different aspects of computer programs (they can also receive copyright protection), living organisms, seeds, ways of doing business, and much more. Acquiring a patent is much more rigorous than acquiring a copyright. A patent must be filed with the relevant national office and prior to being awarded it must be assessed to ensure that it meets the criteria of usefulness, novelty and non-obviousness. Each of these key terms has been thoroughly discussed by the courts. Furthermore, while the definition of what constitutes prior art differs across jurisdictions, the invention must not already exist – generally meaning it cannot have been in the public domain and/or already published. Thus, patents are intended to protect new, innovative, and useful items that will, it is hoped, further push science and technological development.
Trademarks are assigned to a company to protect a variety of words, colours, symbols, and even sounds that can be associated with that company’s brand. In its most visible and popular forms, trademarks are internationally recognized brands for major multinational companies and are aggressively protected from all possible dilution of the brand. A trademark is a perpetual form of intellectual property so long as a company is actively using the mark. Trademarks are in part justified as a form of consumer protection – it is argued by most companies with valuable trademarks that the mark identifies a quality of good as well as the health and safety of the product being sold. Producing goods under a trademark without authorization is called counterfeiting and companies spend an enormous amount of time and energy seeking to stop counterfeit goods from entering the market as legitimate products. While there may only be profit margins at stake in the fights over counterfeit handbags, watches, or shoes, the implications for counterfeit pharmaceuticals is more significant, especially if consumers unknowingly purchase counterfeits that have not received the appropriate regulatory approval.
To make things more complex, some consumer goods will have different aspects protected by patents, trademarks and copyrights. Thus, it is safe to say that modern consumer items are a network of intangible property rights that remain associated with the item long after its sale to a prospective customer. In all cases, the laws prohibit the unauthorized production of copies of the original work. In all cases, modern technologies make such unauthorized copying far easier than at any time in the past.[Page xxxvi]
Newer forms of intellectual property have also been developed with commercial protection in mind. Geographical indicators, for example, protect not an individual product, but provide products from a specific region with protection from confusion. The most popular examples include sparkling wine, or Champagne, which can only be called Champagne if it comes from the appropriate region in France. The same is true for a host of other products aligned closely with a region. Such a designation, which is often indicated by a certification by the relevant governing authority, is understood to establish authenticity in the product and ascertain that quality control measures have been met.
Other forms of intellectual property rights, as mentioned earlier, protect specific products or things. The types of intellectual property mentioned here are among the most prominent internationally. While it is difficult to sometimes divide them, each form does offer a different type of protection and lasts for different lengths of time. All that being said, the following section will seek to provide a general overview of the history of intellectual property.Balancing Rights: A Brief History of Intellectual Property and its Digital Present
As numerous scholars have pointed out, even as regimes of intellectual property sought to nail down property rights in intangible ideas and expressions, the innovation and cultural exchange which violated these rights (and which was often called ‘piracy’) were in actuality the keystone to progress. Thus, a balance between ownership and exchange of ideas has always been the key to debates over intellectual property. These debates rage today as the idea of intellectual property becomes one of the driving economic principles of an information age economy and states reconfigure their national laws to better protect not simply the flow of tangible products, but also to ascertain ownership of property rights in the intangibles protected traditionally by intellectual property laws.
Controversies over the appropriate scope and balance of intellectual property have existed since the inception of these property laws. These tensions have always had an international dimension as well, given that nation-states sought to police the transfer of knowledge and technology protected by intellectual property across state lines to those in other countries who had or wanted the relevant technology and know-how. Whether it is looking at the debates surrounding the Statute of Anne, which dates to the early eighteenth century, or to the 1886 Berne and 1883 Paris Conventions which established national treatment rules and international protection of copyrights and patents respectively, there has always been a struggle between those who would like to see broader availability of ideas versus those who want to see ideas more controlled through property regimes; a struggle that has involved multiple actors from states to companies to individuals.
The development of intellectual property regimes in the nineteenth century reflected both philosophical and material differences in opinion. The United States, as a newly liberated colony, sought to evade both the strictures of former royal censors and to escape relative economic backwardness by adopting a ‘relaxed’ attitude to the intellectual property rights of other countries. In fact, early America is notorious as one of the world’s biggest pirates. France, taking an enlightenment attitude to the general advantage of knowledge, similarly took a harder line in deciding when an inventor’s claim warranted monopoly rights. The United Kingdom generally approved of relatively strong IP protection at home, but when faced with a free market abroad was more circumspect. The Dutch and Swiss suspended patent law just at the time when Germany and the United States introduced new forms of corporate legal ownership rights in ideas.[Page xxxvii]
Whilst international conventions sought to balance competing interests (May 2007a), it was differences between nations, as well as between older and emerging sectors (such as between books and film) that meant only a relatively weak global IP regime prevailed up until the late twentieth century (Vaidhyanathan 2001). The post-1945 perception in the United States in particular, was that Japanese and German militarism in the 1930s had been fuelled by overly protectionist IP monopoly holding corporations and cartels (May & Sell 2006: 139). The Cold War also made rapid industrial development/reconstruction (such as in mainland China, Taiwan, Japan and South Korea in particular) a political and military priority. This industrial development was itself based on relatively unchecked access to patented technologies and the reproduction of what might have been copyright and trademark protected goods. Only after the Cold War could the economic demands of IPR (intellectual property rights) holders be brought to the fore (May 2007a). It was only then that a newly global network capitalist society pushed intellectual property to a central position in the regulation of economic and social life.
The same relationship to older European states that led the emergent United States to limit foreign IP rights in the interests of its own economic and cultural development is replicated today in relations between developing countries and wealthier nations. Yet with the change in the global balance of power, the United States, forgetting its own developmental history, is now the most vocal power in asserting the need for all countries to adopt a singular global IP regime under its leadership. The United States is a former poacher most avidly turned gamekeeper in this regard, and the contrast between its historical action and its contemporary advice is paralleled in relations between emerging and established players in a number of domains (such as between economic sectors and even fields within sectors).
As Manuel Castells (2010) observed, the current transformation of society cannot best be characterized as a ‘post-industrial society’ (Bell 1976). The notion that society has moved from the pre-industrial, through the industrial and now to the ‘post’ industrial age is a mistake. That an increasingly small percentage of the world’s population now works in the production of food is due to the sheer intensity of innovation in the agricultural sector, not to the notion that agricultural production has been consigned to the back-room of historical development. That farming employs so few is because it is at the cutting edge of knowledge-intensive (and patent-protected) innovation. Ironically, the service sector is, in part at least, so large an employer because it is so far behind farming in terms of its replacement of people by information-rich (and hence IP-regulated) technologies. Nonetheless, in both these supposedly pre- and post-industrial domains, just as in the ongoing field of industrial manufacture, the global network society manifests the drive to replace knowing people with information-rich property (whether that be a digital recording, a manufacturing process or a genetically modified seed).
Nonetheless, the very network infrastructure, the digital network of networks that has been driven by and which itself promotes the development of today’s global network capitalism; also offers the decommodified copy to be shared, as well as the invitation to come together to resist seed monopolies and prohibitions on generic pharmaceuticals. The rising significance of IPRs in the network society cannot simply be attributed to the rise of immaterial goods, such as digital content, whose sole market value relies upon legal scarcity rather than any ‘natural’ scarcity. This is the domain where conflict has been most open – linked as it is most directly to conflicts between traditional and new media communication. However, the increasing significance of informational content in the ‘value chain’/ ‘profitability’ of industrial, service, agricultural and extractive industries (from iPhones and soya beans to branded coffee and mining operations) is intricately bound up with global trade and labour markets which have weakened the relative value of such assets that are not protected by monopoly controls.
Prior to the digitalization of everything, ‘pirate’ products had to be manufactured, distributed and sold much like the originals – and one still sees this process in place for pirated trademarked [Page xxxviii]‘knock offs’. Law was, as a general rule, designed to provide protection against these commercial efforts. Book publishers without the appropriate rights could be punished for violating the copyright of the publisher who was authorized to produce a work. Companies without the patent to reproduce a specific invention could be stopped from doing so. Knock-off products could be confiscated and destroyed. The illegal use of intellectual property was unauthorized commercial use. Arguments deployed by the rightful owners of intellectual properties suggested that unless protection of these intangibles existed, no one would be willing to put the hard work into innovation only to see others profit from their hard work without having to do any actual work themselves. The debates were about the commercial exploitation of the work.
What has not changed in the last 30 years are the arguments assorted players make, because the tensions between assertions of absolute ownership and efforts to more freely exchange technologies, ideas, inventions and creative work remain the same. However, the pace, scope and type of issues that are at stake have indeed changed. Since the popularization of the personal computer and a method of sharing information based upon copying, there has been a fundamental shift in how one must police the boundaries of intellectual property laws. Instead of seeing possible ‘pirate’ businesses as the primary culprit in terms of intellectual property law, the focus has now shifted to the everyday user as an intellectual property ‘pirate’. This transition in focus is most clear when it comes to copyright and entertainment products. The ease of copying associated with computer programs has meant that people sought to share these products without purchasing them. Under traditional copyright rules, once the first sale has occurred, the person purchasing the product is free to give it away or re-sell it without permission from the copyright owner. Digital technology, however, makes it possible for the individual consumer to become a node in the distribution of copyrighted works, often without commercial intent, that can go well beyond the gift of a book or DVD to a friend. In other words, digital sharing can make anybody into a ‘pirate’, or at least it can make anyone offering access to copies online as much if not more of a threat to copyright holders as were/are the traditional physical copy making counterfeiters which the term ‘pirate’ was once restricted to. Thus, the threat posed by copyright infringement in the information age is not a new industry seeking to create and sell fake copies of products, but individuals who share their copy with everyone for free. Laws like the 1998 No Electronic Theft (NET) Act passed in the United States sought (unsuccessfully) to remedy this situation – the non-commercial sharing of copyrighted products. Since the late 1990s, file-sharing has continued to be a motivating factor behind draconian Internet policy such as the three-strikes and you are out laws now in place in France, South Korea, New Zealand, Taiwan, Ireland and the UK, though there isn’t much evidence that this approach works (Taylor 2013).
The same is true for music, movies, video games and any other product that can be shared via digital means. It is the individual consumer who becomes the most serious threat from an industry perspective, replacing the bootleg producers of old (see Marshall 2005), and ‘traditional’ industrial ‘pirates’ (Johns 2009) trafficking in the hard copy of such products. Certainly, counterfeiters still play a role in helping states construct a discourse of threat and of the need for enhanced laws. This is because tangible goods protected by trademark law, meaning knockoff designer handbags or clothing, auto-parts and medicines, remain tied to physical markets, at least until 3D printing becomes more sophisticated. However, the significance of the digital revolution is that it made everyone into a copyright infringer and has led copyright holders to accuse everyone of therefore being a ‘pirate’. The law has also changed to reflect the interests of business against their worst enemies – their own fans and consumers. Whether such a war against their own former and potential customers does serve those businesses’ best interests is less clear-cut if it alienates rather than contains those that may or may not be willing to pay.[Page xxxix]
It is the abolition of this distinction between producer and consumer that has allowed the term ‘piracy’ to migrate from its original legal meaning, at least in relation to IP, as a term to describe someone engaging in the production of IP infringing copies as a commercial enterprise, to a term loosely attached to anyone engaged in personal copying for private use. There has been a corresponding migration from primarily enforcing IP violations through civil penalties to shifting the focus to criminal penalties for both commercial and non-commercial infringement, though generally speaking criminalizing copyright and trademark theft has occurred whereas patent infringement is still deal with through the civil courts (Manta 2011). Extending criminal sanctions associated with commercial piracy to non-commercial sharing has been a marked feature of the intensification of IP regimes in recent years, even if it also reflects the increased difficulties IP defenders find themselves in when confronted with the ubiquitous free distribution of the very content they wish to sell. Ongoing extension and intensification of IP laws are as much de jure attempts to compensate for the de facto collapse of physical and technical control over the commercial application of ideas as they are manifestations of the increased power of IP-rich corporations and states in the world today.
The history of digital sharing media is one of cat and mouse struggle in the identification of liability and evasion (David 2010, 2013). Napster was closed down because it was said to have engaged in contributory infringement. Its central server was required as the conduit for the transfer of files between users, and when these files were copyright infringing, Napster could not evade responsibility for its direct involvement in the unlawful actions of its users. This led to the development of more distributed forms of software that did not require exchange to pass through the software provider’s own server. Attempts to attribute liability on grounds of actively promoting infringement led to services removing any such promotional claims, or (in some cases) sharing software was itself ‘pirated’ and circulated beyond the control of its own developers. This promoted a targeting of uploaders, and such targeting promoted the development of ‘torrent’ based services where no one uploader can be identified as the liable supplier. Torrent service providers were then targeted. They then relocated servers to less regulated jurisdictions. Subsequent targeting of downloaders has now seen the rise in popularity of streaming – where users stream rather than copy content.
It should also be noted that the term ‘piracy’ is a contested term, both in its application to a range of activities from commercial copying to personal sharing, but also in the way the term has been accepted by those that would reject the whole notion of IP, and yet who see the IP ‘pirate’ label as a legitimate badge of rebel cool. So, for example, the immense international popularity of The Pirate Bay, the radicalization of Kim DotCom from storage locker entrepreneur into anti-IP activist, and the emergence of the Pirate Party in reaction to the overreach of intellectual property laws all suggest an effort to reclaim and rebrand the notion of ‘piracy’ itself.
Trademark and patent law have faced slightly different but equally radical shifts in terms of control versus sharing. The ‘information age’ offers a fundamental shift in consciousness from valuing the material production of a thing to valuing the idea expressed by, or which transcends, the material object. So, for example, the Nike shoe may be fundamentally similar to other athletic shoes but the value is attached to the idea of wearing a Nike shoe. The branding of a product and successfully getting people to form an allegiance with a brand is essential to how the modern economy functions. One does not only buy a product, but the lifestyle and emotional connection to a brand that companies work very hard to create. Corporations have responded to the understanding that it is knowledge within a knowledge economy that is important by seeking to place their employees under restrictive contracts regarding innovation and post-employment opportunities. It becomes difficult to capture the ideas a person might have in their head, but the new regimes of corporate contract law seek to do so.[Page xl]
The rise of global production and distribution chains, combined with the rise of global IPR protection, creates an interesting, and perhaps contradictory, dynamic. Increased freedom to move production to the most cost-effective locations, at the same time as having the freedom to then move the finished product throughout the globe, means that the costs of production are reduced. This is most true of goods that can be mass produced, and IPR-rich goods combine precisely this mix of abstracted information that can be combined with mechanical reproduction (whether that be in recordings, designs or chemical formulations, etc.). In conditions of globalized markets, the highest prices will remain only in those goods where production cost reductions (due to global outsourcing) are offset by the ability to maintain control over distribution by means of IPRs. Cheap and unprotected goods can be mass produced in low-cost locations, but can only then be sold at relatively low prices, in competition with other similar suppliers. Cheaply manufactured goods that are IP protected (whether these are medicinal drugs, handbags, pirated DVDs, or any number of other such things), become all the more attractive as they combine the advantage that they can be cheaply made using the logic of competitive global labour markets, whilst at the same time retaining prices that reflect monopoly control over distribution. However, such an attractive scenario also creates the incentives for non-IPRs holders to engage in forms of counterfeiting, piracy and patent infringement. Whilst IPR holders argue that global markets require globalized enforcement mechanisms to protect their monopoly-based incentives to create, it should also be pointed out that it is precisely this globalized enforcement of monopoly protection of one set of rights, in conditions where other forms of protection, such as over labour conditions and national markets, are being reduced, that makes IP protected goods such attractive (and profitable) targets for infringement. Any extension in duration, geographical reach and/or scope of what can be covered by IPRs must always simultaneously increase the value of such rights and the attractiveness of violating them.
Another curious paradox of global IPRs lies in the dynamic between local and global identities and identifications. The globalization of trade has led to a corresponding demand for protection of trademarks and brands now being made in one place and sold in another, even whilst their ownership may be located somewhere else entirely. A number of chapters in this collection touch on disputes that have arisen concerning local conlicts over global marks and brands. Others touch upon the consequence of worldwide IPRs being claimed by global economic actors on innovations and products with their origins in the traditions and practices of particular communities in more limited geographical areas. Yet, just as global brands and marks reach out to embrace the world in both sales and claims to protection; so it is that marks of distinctive location come to the fore precisely in order to distinguish themselves from what, until recently would not have shared a global space. It is only in a world of ubiquitous global brands that distinctive geographical indicators (GIs) become both relevant and valuable. However, a number of contributors to this collection seek to tease out the contradictions and difficulties of using the global IPR system to protect local and often indigenous communities from forms of predation by more powerful economic actors that also use and have been instrumental in creating that very system of international IPRs. Similarly, when seeking to promote ‘farmers’ rights’ against ‘breeders’ rights’ in sharing seed, it is important to note that ‘farmers’ rights’ are not best equated fully with IPRs, even whilst the claims of indigenous and traditional farmers to being the ‘custodians’ of biodiversity skirts the parallel between custody and property rights. Global movements seeking to protect the rights of local communities are very aware of the contradictions involved in challenging global frameworks with universal rights claims in the name of particular groups and products. Academics and IP researchers need to be equally mindful of the paradoxes and pitfalls, limits and possibilities made plain by the contributors to this collection.
Where once a patent would have lasted only 14 years, the length of two seven-year apprenticeships, that term has been extended to 20 years in most countries. The period of copyright [Page xli]was originally not much longer. Now ongoing IP extensions allow protections to last a good many decades longer. As the value of ideas relative to physical costs of production increase, hence increasing the importance of IP, so extensions of IP further elevate the relative value of informational content. This creates a self-reinforcing spiral, even if it also makes any attempt to evade such IP monopolies all the more economically attractive.
Now more than ever, intellectual property is the subject of global regulation. With little to no public debate, the post-Cold-War reformulation of the General Agreement on Tariffs and Trade (GATT) became the instrument for the neo-liberalization of international trade, culminating in the creation of the World Trade Organization (WTO) in 1994/5. Central to the negotiations surrounding the replacement of GATT by the WTO was the formulation and implementation of the Trade Related Aspects of Intellectual Property Agreement (TRIPS) to govern IP as a trade-related issue. TRIPS, as a founding element of the WTO, required all signatories to the new organization to sign protection of foreign IP into their domestic legislation. Where the bulk of neo-liberal rules for international trade sought to decrease trade barriers, eliminate tariffs and open markets to foreign trade, TRIPS intended to impose a uniform standard of monopoly protection over intellectual-property-related goods and used the threat of trade sanctions to discourage recalcitrant nations from infringing the intellectual property of other nations.
TRIPS required all signatory countries to adapt their domestic law to its minimum standards. Some argue that TRIPS includes sufficient flexibilities for developing countries, and of course developing countries and the least developed countries were given additional time to conform with the law (Gervais 2008; Musungu 2006; Richards 2004). The initial concerns over TRIPS from a development perspective have been widely discussed (Drahos 2003; Gervais 2007). Furthermore, concerns about forum shopping between the WIPO (the World Intellectual Property Organization that currently manages the Berne and Paris treaties amongst many others, as well as negotiating new multilateral agreements) and the WTO that initially appeared have given way to an understanding of how these two organizations work together to enforce contemporary law. The advent of the development agenda at WIPO can be seen as a multilateral effort to rethink the implications of TRIPS and align the goals of WIPO with the development goals of the UN, or at least reframe the global enforcement of intellectual property rights within the needs for technology transfer and economic development recognized as essential by much of the global South (De Beer 2009; May 2007b; Netanel 2009; Sell 2011; Suthersanen 2008; Yu 2009).
Despite efforts to reconfigure the global debate along lines more sympathetic to development and perhaps more open to flexibility, more contemporary bilateral TRIPs-plus agreements as well as plurilateral efforts to enhance intellectual property protection suggest that ongoing enhancement of intellectual property will remain a significant part of the political process (El-Said 2005; Yu this volume). The position of the chapters in this volume take into consideration this history and the contemporary state of negotiations regarding TRIPS, as well as the emerging negotiations over ACTA (the Anti-Counterfeiting Trade Agreement) and the TPP (the Trans-Pacific Partnership Agreement) (see Carrier 2013).
This general overview should highlight that while the debates surrounding issues of intellectual property are not new, the political, social and technological context within which these debates are made remain very relevant and continue to evolve. Issues of human rights, social justice, development and the future of innovation are part of the discussion that must be had. It is to these subjects that this handbook will turn. Many chapters in the collection hinge around the question of ‘balancing’ rights. The language of intellectual property rights brings together the concepts of property and rights in a fashion that has led to many divergent interpretations. At least within a capitalist society the notion of property tends to be viewed as a primary, and perhaps even a natural right; the very foundation stone upon which ‘liberty’ depends. Yet, of [Page xlii]course, the very notion of personal property rights as a foundation of freedom against tyranny, in particular the tyranny of the state, is paradoxical, as property is only ever a right granted in law, and traditionally law was made by the state. However, the rise of international multilateral and bilateral IPR treaties in recent years has led to the suggestion that IPRs (along with property rights more generally) have become rights ‘beyond’ the traditional state, and rights that transcend other rights typically (or traditionally) upheld at the level of the nation-state. The question then arises as to whether global IPRs can be, are and/or should be balanced against other rights, and where such balancing should take place. Chapters in this collection address this question on a number of fronts and at a number of levels. Should, is and how can the right to freedom of speech and expression be balanced against copyright in the case of music fans sharing ‘their’ favourite music? What then of the balance between rights to privacy and the right to know what Internet users are sharing if that content might infringe copyright? How can patent rights be balanced against development rights, the right to access life-saving medicines and rights in relation to climate change and climate change inhibiting technology transfer? Can these rights be traded, and if so should such ‘trading’ be left to the rights holders themselves, to national legislators, or to global forums?Scope of the Project
Compiling a handbook on intellectual property today is a significantly different task than it would have been even 15 years ago. Today there is a global, widespread, interdisciplinary and complex debate about the issues emerging from intellectual property protection. Where an earlier volume would have focused primarily upon the conceptualization of intellectual property from a law and economics perspective, the scope of analysis available for understanding intellectual property today is far more vast and wide ranging.
Given the changing dimensions of the problems and practices associated with global intellectual property law, a handbook on IP serves several key purposes at this time. First, it provides original contributions on the contemporary debates surrounding issues of intellectual property law. Second, it helps the reader understand the complexities and nuances of the interaction between forms of intellectual property and its applications that have gone beyond the conventional dimensions of copyright, patents and trademarks. Thus, contributors to this volume also focus on geographical indicators, farmer’s rights, licensing for web-streaming, digital norms for file-sharing, and the expansion of rights into new areas of coverage, from patents for environmental technologies to discussions of the role intellectual property might play in space exploration and in governing brain science and innovation. Third, the handbook makes clear that issues of intellectual property remain central to concerns over technology transfer, economic development and efforts to achieve the United Nations millennium Development goals. Fourth, these chapters build upon the vast literature that has set the stage for our understanding of intellectual property in the information age. Thus, we see the contributions in this volume as not only helping to summarize the historical evolution of the intellectual property debate but also as pointing out the new areas of interest regarding intellectual property as well as highlighting the changes in policy that need to be made in order to balance competing interests in this area of law.
Whilst most treatments of issues associated with intellectual property are primarily legal and are thus limited by the frameworks imposed by a legal paradigm, this handbook expands outside the law to understand issues of intellectual property from a variety of diverse disciplinary perspectives, including political science, sociology, philosophy, economics, archival, media and film studies, international relations, history, anthropology and public policy. What is appealing [Page xliii]about taking a multidisciplinary approach to the subject matter is that intellectual property can be interrogated using a variety of conventional and emerging/alternative methods of analysis. Additionally, while doctrinal legal analysis is a critical element of our understanding of the evolution of copyright, patent, trademark, and other forms of law, research investigating user attitudes, technical affordances as well as political and economic relations require other methodological approaches as well.
We also see these contributions as addressing a broad range of concerns about the impact of contemporary and future intellectual property laws across a wide range of geographic regions, levels of development and potential new formulations of intellectual property. The shift in focus from the Cold War narrative of East versus West dominated by the US/Soviet struggle for ideological dominance has given way to a far more complex dialogue that articulates the multiple voices of the Global South. North–South issues emerge from the metanarrative of capitalism versus communism, to debate appropriate methods and types of development, the importance of technology transfer, and a sophisticated and comprehensive critique of global intellectual property rules as promulgated by the nations of the developed world.
That being said, the chapters in this volume demonstrate that even a narrative of North–South rebalancing cannot fully encapsulate the complexity of approaches and attitudes to international intellectual property law. What we have learned in the years since the passage of TRIPS is that far more nuanced and often regionally specific approaches must be taken. The chapters in this volume, many from the Global South, represent a range of views (some critical, others accepting) of the role intellectual property can (and should) play for countries seeking further economic development.
The chapters in this collection span the globe. Contributors are included from Europe, North America, the Caribbean, South America, Australia, Africa, South Asia and East Asia. Whilst a number of contributions take a global approach to particular aspects of IP, others address general or specific aspects of IP in relation to particular geographical areas and countries. Some chapters adopt a comparative approach to mapping particular IP disputes, whilst others combine historical archival research with contemporary data collection in particular countries. Nonetheless, and despite our efforts to include voices from all across the world, we recognize the limitations of a volume such as this.
The balance of contributions is not equal. Western Europe and North America are disproportionately represented in the collection. Chapters from Chile and Cuba were to be joined by others from Brazil and elsewhere in Latin America, but issues of language and time deterred these contributors. It should however be noted that a great many other chapters do address South American IP specifics within chapters discussing wider and parallel particulars. Similarly, the one excellent and wide-ranging chapter concerning IP in India was to have been joined by others, but this did not come to fruition. Likewise, the presence of excellent chapters by authors from Taiwan and Singapore, as well as coverage in another chapter about IP issues in Japan, does not overcome the largest single omission in the collection, that whilst a number of chapters do address China’s position in the world today, there is no chapter devoted solely to intellectual property rights issues in the world’s most populous country. Regarding Africa, whilst three chapters are devoted solely to specific countries, and a significant number of other chapters address in detail African case studies and examples, it is certainly also true that more could have been said.
It is difficult to underestimate the significance of the requirement that all contributions be in English in the ultimate construction of this volume. The global scope of the handbook was limited to those who could write in English (even if only to the level sufficient to engage with the editors about getting their work translated, which was available and used). In an ideal world non-English speakers would not experience any disadvantage. Despite our best efforts this was [Page xliv]not fully achieved. The final production of the work in English may explain why a number of non-English first language speakers were not persuaded to contribute. There are of course numerous areas that we would like to cover but are absent. Emerging issues such as the implications of 3D printing on copyright and patent law, the implications of nanotechnology, and patent trolling are among these.
We see this volume as moving the debate forward regarding issues of intellectual property. It should be noted that the intellectual property policy space is full – meaning that laws and policies have been promulgated worldwide and thus policy recommendations must by necessity focus on increasingly technical and detailed areas. Furthermore, a wide and ongoing debate about the depth, scope and impact of these laws means that the framework for understanding intellectual property has been well established, meaning that the contributors in this volume have all made an effort not to repeat what has already been discussed, but rather to push forward the dialogue on IP.
The debate has moved forward considerably since early critiques of intellectual property in an information age were made. Where the foundational literature by such important scholars as Jessica Litman (2006), Susan Sell (1998, 2003), Siva Vaidhyanathan (2001), Lawrence Lessig (2002, 2005, 2006), Christopher May (2000), Debora Halbert (1999) and others critiqued the expanding role copyright was playing and warned of the future implications for creativity, there are now more case studies, empirical evidence, and of course more opinions in general, than there were 20 years ago. Furthermore, in the aftermath of TRIPS, with the emergence of the counter-globalization movement and the efforts on the part of content industries to personalize the enforcement of intellectual property laws, a growing resistance to the expansion of intellectual property has emerged (David 2010; Halbert 2005). Finally, as many of the chapters in this volume will suggest, it is not possible to understand the application of copyright as universally problematic for the global South and universally beneficial for the global North (though of course this allocation of costs and benefits does prevail).
The study of intellectual property, as it has evolved outside of doctrinal legal analysis into the many disciplines discussed here, remains critical or at the least suspicious of the underlying justifications for strong protection. These chapters demonstrate that scholars approaching this topic remain sensitive to who benefits and who loses within the contemporary political economy structuring the law. In fact, a significant theme that runs through the entire collection is the effort to offer a critique of the status quo and avenues for improvement, whether these are minor repairs or substantive overhauls of the policy space. We see this volume as providing an opportunity for voices that may not get a hearing in the Congressional debates or international forums tasked with formulating the law – since many of the authors writing here represent the unorganized public, file-sharers, creative entities not acting within the copyright industry, indigenous peoples, or others marginalized in the contemporary political economy.Volume Outline
The volume is thematically divided into 11 parts, each with an introduction that situates its chapters within the larger themes of the section. That being said, there were many thematic configurations that could have been used. In many cases chapters could have been fitted together in alternative topical configurations. We chose not to divide all the chapters solely by type of legal regime, though some sections do so, in part because many of the issues raised by contributors cut across a range of types of intellectual property. The same can be said for an effort to organize the collection along geographical lines. Rather, we have chosen a topical [Page xlv]approach that, at times, cuts across geographical and IP regimes, because underlying much of the scholarship here is a broader global approach, even whilst the politics at issue lies in the fact that ‘one size fits all’ global policies don’t ‘fit’ and/or have radically divergent effects in difference places.
Part I introduces four chapters that use different political and economic frameworks to discuss the concept of intellectual property as an economic and political tool. These chapters take up the economic history, philosophical linkages, theoretical positions, and political contexts of intellectual property from a variety of perspectives. Part I does not claim ideological consistency. It embraces a multitude of views that speak to the multiple ways intellectual property can be ideologically situated. For example, where Chapter 1 introduces the reader to the political economy of intellectual property, Chapter 2 provides an economic analysis of the subject from the position of mainstream economic theory. Chapter 3 offers a historical contextualization of intellectual property within the classical liberal traditions of Locke, Hegel and Rawls, and the way these thinkers allow IP to be established as an international regime as understood through international relations theory, alongside Chapter 4 which offers an argument depicting the increasing globalization of the concept of IP that is distinct from its understanding as a tool of country-based international relations. The themes that emerge in these chapters are reflected throughout the volume; themes of social justice, the expansion of intellectual property as a political assertion of property rights in the information age, the tension between different positions on how much IP should exist, who benefits from its application, and how we strike a balance between too much and too little protection. Authors throughout the volume begin from different starting points on the legitimacy and future value of a system of intellectual property protection. The chapters in this first part introduce key and classical perspectives, both supportive and critical of intellectual property, as it has been conceived historically and how it is used today.
Part II deals with one of the most central issues facing the application of intellectual property in the world today – its relationship to future economic development, especially for countries in the global South. Given how substantially the debate on issues of international intellectual property protection and development has evolved since its first iterations in the 1990s, the chapters in this part seek to make a far more nuanced and complex set of arguments about the role of intellectual property for economic development. Despite decades of criticism, the Trade Related Aspects of Intellectual Property Agreement (TRIPS) administered by the WTO has proven to be both a cost and a benefit to the Global South. The TRIPS regime as one that is multilateral in scope, instead of targeted bilateral agreements or the more recent country-club-type agreements, leaves room for developing countries to assert their rights, but remains a regime that serves the interests of some stakeholders (like the pharmaceutical industry) far more than others (such as many countries throughout the global South). That being said, the authors in this section argue that TRIPS (and WIPO as well), can be used to support development and the creation of country-specific development projects.
That being said, Part II also provides insight from the perspective of the global South by raising the controversies and complexities of TRIPS’s application to Chile, Kenya and Tanzania. While dealing with different local industries and levels of analysis, these chapters help clarify the costs and benefits of TRIPS from the perspective of countries in the global South. The final analysis is of course far more complex than a sweeping generalization of the net advantages or disadvantages of TRIPS. Other factors must be weighed, as the authors in this section clarify. These factors include the level of development, the political structure in place, the economic interests, either local or transnational, that have a stake in the application of the law, and the methods through which TRIPS is introduced and applied in the country under consideration. [Page xlvi]As with the first part, the theme of development and its relationship to IP recur beyond the chapters in Part II and are taken up by other authors throughout this volume.
Part III, ‘Branding the World’, provides additional insight into how intellectual property interacts with economic development. This part, however, takes up different regimes of intellectual property and thus broadens the conversation to include trademarks, counterfeiting, geographical indicators and farmer’s rights. While the bulk of intellectual property scholarship on the global South and development focuses on patents and copyrights, the chapters in this part examine new intellectual property regimes and innovative uses of intellectual property within the context of the global South and indigenous economic development. These chapters also take up the question of authenticity as it plays out in establishing brands, whether indigenous or those of popular commodities, and protecting the authentic against those who might seek to offer parallel goods at a cheaper price. While notions of the authentic must be interrogated in the context of indigenous communities, these same ideas of authenticity are essential to the existence of top branded products targeted by counterfeiters for sale and appropriation. Thus, the chapters in this part grapple with a range of themes from the creative use of intellectual property regimes to assert forms of indigenous ownership through geographic indications or brands to the notion of authenticity itself. No IP regime offers a panacea for dealing with the significant structural issues facing indigenous communities and poor farmers in the global South, but the creative use of intellectual property may also help establish a foundation for future economic development.
Part IV, ‘Between Economy and Culture’, raises yet another issue that recurs throughout many chapters of this volume – how culture interacts with economic considerations and public policy. These chapters span a range of countries, from Cuba to South Africa, and levels of analysis, from the individual to the country specific. That being said, the chapters in this part grapple with the difficult intersection of intellectual property with cultural creativity. The chapters raise the question of what happens when creativity and culture become a commodity and they grapple with the ways the state can frame public policy to develop meaningful cultural policy. While the UK and the US tend to embrace culture as a commodity and frame intellectual property to benefit the individual property owner, Cuba has balanced author’s rights, cultural rights and property rights differently. There is a critique to be made of such commodification, a critique seen in Darch’s chapter on South Africa, a developing country that has followed the US path towards the commodification of culture. Finally, the emphasis on cultural commodification raises the question of the user and/or cultural producer. Within the sphere of commodity culture, people are framed as consumers of culture and as such cannot participate in culture absent their purchase power.
Part V, on the commons, introduces an important approach to what exists outside the law of intellectual property. A vibrant intellectual commons, or public domain, is understood to be a necessity for future innovation. The approaches taken to articulating the value of the commons in this part are many. They include understanding the emergence of a non-profit infrastructure for protecting and enhancing the public domain, describing the efforts by India to promote access to the commons either through protection of traditional knowledge (a concept that recurs throughout this work) or education and applying open source technologies throughout the sub-continent, as well as the emerging political movement for better and more rigorous open access as manifested through the international Pirate Party.
Part VI, ‘Creative Copying’, addresses the increased significance of intellectual property law for regulating the relationship between producers and consumers, rather than just relations between producers, a theme noted already in this introduction, and which recurs throughout this collection. This is most acutely observed in the changing relationship between creative authors and fans of their work. Whilst ‘fans’ (by any number of other names) have always engaged in [Page xlvii]forms of replication, imitation and modification, the digital age has made such practices more visible to other fans, wider audiences and to the authors of ‘original’ works (and their publishers, distributors and broadcasters). What can, with one hand, threaten the position of the author in relation to their work, may also, with the other hand, offer new scope to expand and deepen audience attachment to ‘the work’.
Coming from the exact opposite direction is the problem of orphan works. Here, extensions of copyright duration have only added to the problems associated with works where (due to age) it is uncertain whether any remaining copyright holders exist. This uncertainty means that creative uses of older works are deterred as long as potential new users remain unwilling to use orphan works for fear of future infringement claims they cannot anticipate the magnitude of. Recent court cases over alleged ‘appropriation’/’parody’ by one author/artist relative to another again highlight the problematic relationship between creativity and copying, as well as between property rights and culture. Part VI of this collection brings together three authors, whose accounts of fanfiction, orphan works and appropriation/parody, show how creative copying is central to innovation. As such, IP law must be as much about protecting the scope to re-work content as it is about protecting author rights to control existing content.
Part VII, ‘Audiences and Sharing’, follows on directly from the themes addressed in Part VI. Just as fans of literary and other fictional works have always felt some sense of ‘ownership’ over the narratives and characters they enjoy, so music and sports fans have a deep identification (and sense of ‘ownership’) in relation to artists and athletes. The rise of file-sharing in relation to the music industry has given music fans new scope to circulate content beyond the control of traditional copyright holding record companies. Music file-sharing has transformed since 1999 through ever more distributed forms of network sharing, from central-server-based models, through peer-to-peer sharing, to torrent-based (peers-to-peer) sharing and more recently to streaming-based forms. These shifts have been in large part a direct response to legal efforts to target specific actors – from the central server of the software provider, to the uploader and then to the downloader. Every attempt to target one legal bottleneck in the network has led to that nexus being technically bypassed.
File-sharing really became significant from 1999 in music, whilst in sport things were delayed by a decade. What is most valuable in sport is live, fast and visual – three things that required a massively greater level of compression and broadband internet capacity than was available at the turn of the millennium. Today copyright infringing sports streaming extends the problems experienced in the music industry as ‘timeless time’ means live events, recurrently streamed, are hard to close down relative to downloadable recordings; yet, in contrast, legal digital sports broadcasters have not yet suffered anything like the collapse in sales experienced by record companies. Technical and cultural networks do not always pull in the same direction. Attention to how audiences construct their ethical stances therefore becomes important. It is not sufficient simply to describe fans that infringe copyright as ethically deficient. They hold alternative moral frameworks, that neither law, nor technology, has been successful in either containing or reforming.
The boundary between ‘creative’ works protected by copyright, and ‘functional’ innovations protected by patent is itself not clear cut, and this is addressed in Part VIII, ‘Creative Origins and Limitations’. Trade-related IPRs, in particular trademarks and trade secrets, occupy a separate space (discussed in earlier parts), but there is also a domain of crossover between utility and aesthetic valuation. Within this domain, design patents and copyright over functional codes co-exist within a field where the very notion of ‘innovation’ is itself contested. The history of IP in relation to video games is instructive here. At its inception the generic character of geometric shapes, actions, genres and narratives meant there was nothing in computer games that was open to IP protection. There was also no financial reward to protect either. The combination of greater [Page xlviii]graphical and narrative sophistication as well as expanding commercial markets changed that; but the shift from arcade machines to the home PC saw one commercial model collapse. Then came an ongoing battle over control, by both law and format. A significant contradiction has been that as games became more sophisticated, and hence warranted claims to IP protection, so this sophistication of ‘play’ has opened up the possibility of user generated content giving rise to IPR claims by users themselves, even in relation to the creators of the games they play.
Whilst narrative elements may warrant IP claims, rules do not. Whilst it is debatable who should be allowed to claim property rights in innovative products, another question is whether ownership incentivizes differently between the arts and the sciences, and whether such incentives are financial or moral in nature. Whilst the current ideological climate favours the view that money is the prime motivator for innovations of every kind, and whilst this is said to warrant a particular framing of IP law in relation to useful and creative arts, research suggests an interesting similarity between artists and scientists in that IPRs function mainly as a means of securing recognition rather than riches. Whilst earning an income by some means or another is important, IPRs are rarely the best means of securing income for creative workers. The creation of a separate domain of IP law to relate to industrial designs is a peculiar state of affairs. Some states don’t make the distinction between art and design, whilst other, even neighbouring, states make a great deal of it. The legal and philosophical foundations used for making the distinction, where it is made, are also highly divergent and even contradictory.
Part IX focuses on themes of regulating innovative technology. Elevating IPRs to the status of human rights may confer upon them a status of rights that cannot be traded against other rights. Simply asserting that intellectual property rights are property rights like any other (which is a problematic suggestion in itself) does not set such property rights above other rights, at least in principle. As such, the assertion that a copyright or patent claim is a right on a par with rights conferred by ownership of physical objects would not then invalidate any other rights that might interfere with the full exercise and/or protection of such ownership and control. A range of other rights impinge upon and limit the exercise of intellectual property rights, as is also true of any other property rights, but this is even more true of IPRs, which have, since their inception been time limited and otherwise contained in order to achieve a balance between the rights and interests of holders and the rights and interests of the wider society.
Rights to life, health, welfare and development may come into conflict with the enforcement of patent rights, and these themes have been touched upon in earlier sections and are addressed more again in Parts X and XI. In Part IX it is rights to freedom of expression and rights to privacy that are explored relative to intellectual property rights. Attempts to regulate the infringement of copyrighted content, such as music, have expressly targeted individual users, and attempts to identify infringement has involved en masse surveillance of user behaviour, often in breach of Internet users’ rights to privacy. The extent to which such practices have been deemed lawful or unlawful has ebbed and flowed and is different in different jurisdictions. Whilst the chapters in this part highlight the relentless pressure to extend the law in favour of IPRs relative to users’ other rights, these chapters also show the relative failure of such lobby tactics in creating a unified and/or effective enforcement of IP relative to other rights.
While questions of patent law have threaded through the collection, Part X, ‘Parameters of Patent’, focuses in more specific detail on this significant area of law. On the one hand, a very large number of the most significant technical and scientific advances of the last 200 years were never subject to intellectual property claims or protection. On the other hand, some of the most profitable innovations of the same period have been patented, but could be said to have drawn upon a prior body of knowledge that was not controlled by IPRs. In addition, many argue that the less advanced states and economies have always had to infringe the IPRs or more powerful countries in order to develop.[Page xlix]
The chapters in Part X adopt a number of different approaches to the position of patent within the global economy, and in relation to both economic and scientific development. How far can and does the patent system adapt to/fail in addressing the needs of developing societies in relation to accessing medicines and other patented products? How far have Western pharmaceutical and other companies engaged in ‘biopiracy’ (a term that inverts the ‘piracy’ label often aimed by IP holders at less advantaged actors) when using the IPR-free flora and culture of other parts of the world as foundations upon which to develop their then patented products? How can the very distinction between discovery and invention be defined in the first place? The question of what can be patented, what should be defined as a common heritage of humankind, and who should be allowed to own or prevent ownership by others are the common themes addressed by the chapters in this part.
The final part, ‘Patenting the Future?’, is based upon the understanding that intellectual property rights are always future oriented. The claim that innovation, and hence the future benefit of all members of society, requires that creators be given the right to profit from their innovation so as to motivate them to innovate, may only be accepted on a time-limited basis, but this again makes IPRs a form of property rights that is particularly time and hence future oriented. The chapters in the final part of this collection bring new perspectives on the future – the future of intellectual property and the future that may come into existence if we continue to extend IPRs in the fashion that we have up until now.
As IPRs extend in both time and depth of application, so it is that innovations along a number of frontiers of science and technology will confront human beings with paradoxical outcomes of their own ‘success’. As neuroscience increasingly unearths the ways and means by which our brains work, how will we come to terms with the patent claims that will arise out of technologies that enhance human creative activities formally ‘black-boxed’ (at least over the last 200 years) under the obscure umbrella of ‘romantic genius’? How might advances in space exploration lead us to question the very conceptions of ‘life’ and ‘discovery/invention’ that have until now been deployed to regulate our earth-bound frameworks over IPRs and who should be allowed to claim them? Given the role played by IPRs in promoting many of the technologies that have contributed to man-made climate change, how should IPRs be managed in relation to promoting sustainable development and climate-change-limiting technology transfer in the future?Conclusion
While issues of copyright, patent and trademark have long and illustrious histories, fraught with legal battles that often span the many continents, it has only been with the information age and the challenge of digital reproduction that intellectual property has come to be a household term. While the foundational writings of the digital age established the scope of the problem – a heightened tension between practices of ownership and practices of sharing – the last 50 or so years have not seen any resolution to the myriad controversies that the various concepts of intellectual property create. Global networks of trade and communication combine and contradict. Global trade has led to and been further facilitated by the construction of global IP regimes, whilst global communication networks have facilitated and been facilitated by the creation of a ‘global commons’ within the ‘global village’ (McLuhan 1964) – a universal space in which it is taken for granted that all knowledge and information should be freely shared. Yet ‘global culture’, circulated across and beyond the control of any national borders and/or legal regulations, is the very oxygen that carries and promotes the self-same brands, patented technologies and creative works that, in the whirlwind of global flows, are said to be under threat. [Page l]Global flows are what, on the one hand, threaten to suspend the writ of IP law, yet, on the other, see it reaching the zenith of its significance and force. If anything, the scope, depth, disciplinary diversity and international dimensions of the scholarship on intellectual property only continue to expand. 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