The Environment and Trade in the EU and Indigenous People
Apart from the direct fundamental rights avenue, there is the possibility of
reliance on international legal obligations in the context of environmental
protection to qualify trade in goods and services. The protection of the
environment is the legal darkroom from which the majority of indigenous
rights are emerging. [76] This is particularly relevant where the
international obligation has been implemented by a legislative measure
within the EU [77] The linkage of trade and environmental considerations may
create a niche for arguments associated with IP protection for indigenous
people to emerge. [78] Pro-environmental legal obligations may be invoked,
directly or indirectly, to seek to restrict certain IP rights or lead to the
expansion of existing IP protection. This may generate alternative modes of
protecting IP rights or rights associated with IP, in the context of trade.
[79] The EU has been an important arena for the development of enforceable
legal rights in relation to the environment. [80] This development may
provide an additional distinct basis for protection of interests of
indigenous people in a more general sense. [81]
Culture in the EU and Indigenous People
The development of a legal concept of 'culture' is another vein which may be
mined to produce legal arguments calculated to impact on the development of
IP rights. The French objections to the inclusion of film in the GATT
negotiations on the basis of the culture argument was a signal of the
possible implications of the inclusion of culture in the legal construct of
the EU [82] The ECJ accepted in the Cinetheque case [83] an argument based
on culture in order to dilute the application of the Dassonville definition
[84] of measures of equivalent effect to quantitative restrictions in the
context of the free movement of goods. Article 128 of the Treaty on European
Union recognises the need to promote culture, and contemplates co-operation
with third countries and cultural exchanges. The culture of the Member
States which were former colonial powers has inextricable connections with
third countries and indigenous people. 1492, for example, is an important
date in European history. It is not inconceivable that the legal protection
of culture could relate to indigenous people around the globe and might
therefore complement the development of indigenous rights, particularly as
they might impact on IP rights. Thus IP rights might be tailored as
appropriate to reflect indigenous interests.
Public Policy, Public Morality in the EU and Indigenous People
The possibility of a comprehensive definition of public policy or public
morality emerging from a judicial or legislative desire to harmonise the
terms (which occur in a number of contexts in the EU legal regime) might
even be wide enough to allow recognition of the rights of indigenous people
in appropriate circumstances. The ECJ has refused, for example, to impose a
common Euro-standard of public morality. [85] However, the Member States may
be increasingly tempted to establish common standards, particularly in view
of the need to regulate global industries. The nexus between IP and trade in
goods and services is revealed by the fact that public policy and public
morality operate explicitly as restrictions to the free movement of goods
and services [86] and the attainment of IP rights. [87] Names or images
could be denied registration, for example, on the grounds that they were
offensive to indigenous people and thus inconsistent with the dictates of
public policy, and the principles which the EU is bound to adhere to.
Indigenous Rights in the EU and IP: Conclusion
Thus indigenous rights development through the EU may either cut down the
exercise of existing IP rights or give protection to rights which perhaps
ought to have been protected by IP but were not. The protection of
indigenous people may occur, directly or indirectly, through the recognition
of legally enforceable obligations associated with fundamental rights, trade
and the environment, the protection of culture and the development of a
common approach to standards with regard to the interpretation of public
policy and morality. The translation of emerging indigenous momentum into
legal challenges, and the consequent influence on the development of IP
norms, also imply that the general process of harmonisation in the EU will
be found wanting if it fails to accommodate these new forces.
IP and the Digital Age: Kidnapped by Commerce
While the influence of indigenous people is a mere gentle western breeze
rippling through the fields of IP, which will grow gradually but strongly,
the digital age has hit like a tornado. The effects of communications
technology has generated endless debate. Despite the assistance of thinkers
>from Marshall McLuhan [88] to Gates, [89] general contours loom dimly. The
law trundles on, like one of Hannibal’s elephants, steered instead by the
hand of commerce. Cyberspace and the digital age have received plenty of
academic attention. [90] The EU is responding on a number of fronts. [91]
The debate about IP holds some valuable lessons for the development of law
in general, perhaps because of the contiguity of art and commerce.
Copyright, in particular, has been assaulted by doubts. [92] This doubt is
reflected in the spectrum of opinions as to appropriate responses.
Apart from the unique feature of communications, and convergence of the
technologies, the associated dynamism has been the occasion of reassessment
in other areas where the new technologies illuminate existing fault lines,
such as in the areas of character merchandising, [93] unfair competition
[94] and comparative advertising. [95]
The analogue-to-digital movement, the production of works in digital form,
in new dematerialised combinations, with new modes of transmission, renders
borders redundant and facilitates copying. Certain characteristics such as
interactivity pose new problems. [96] It might be argued that a process of
simplification and clarification is needed. The balance between the rights
of IP users, between functionality and fairness, lies at the heart of the
debate. Some seem content with the thrust of the dominant force in IP
development, [97] while others would argue for caution. [98] Some argue that
the entire construct of IP cannot cope conceptually [99] or needs
modification, [1] while others would focus on the need for direction. [2]
Many would focus on particular aspects such as the
geographical/jurisdictional/national problem. [3] A few argue that IP is
under-protected.
The leviathan force of change, particularly in relation to copyright, apart
>from a growing awareness of its significance, [4] is associated with the
protection and exploitation of mass commercial markets. The development of
the arts has always been linked to social dynamics and the dominant societal
forces. The golden age of English art, with the development of manuscript
illumination, jewellery, tapestry and stone carving, was no less
revolutionary in artistic and creative terms than the present era. Likewise,
the role of a cohesive, unifying force (in this case the Church) behind the
endeavour cannot be underestimated. [5] It becomes difficult not to agree
with Laddie that copyright is overprotected, as a result of the commercial
exploitation in the industrial context. [6] The Berne Convention Revision
[7] is significant per se, but a striking testament to the overwhelming
interests determining development in the digital domain and IP in general.
This is in line with the message behind the Sino-U.S. Agreement, the
lobbying on the Computer Software Directive [8] and the Term Directive. [9]
Some fear that WTO is another trend in this direction. [10]
Kurtz underlines elements of this fear in relation to the NII. [11] Her
fundamental argument is about access and education. She mourns the potential
auto-focus on the economic exploitation of works: 'Information should not be
available only to those who can pay for it'. Classic arguments in relation
to the tension between access and reward become pronounced in relation to
the Internet. [12] As the technologies expand and converge, the general
issues of media ownership, control and competition also converge. The
dangers of over-concentration of power also apply to the application of
commercial leverage in relation to legislative development. Chomsky’s
'propaganda model' might find parallels in the commercially reflexive
development of IP rights. [13] IP therefore seems to be predominantly a tool
of the dominant commercial forces in Western society, largely untouched by
other policy objectives apart from regional integrationism. The case for a
more focused but inclusive approach to the development of IP, bearing in
mind the historical origins of copyright, has been well made out recently by
Power. [14]
Parallel Reform?
The danger of the possibility of future restitution claims associated with
use of indigenous names, and increasing efforts to combat registration or
challenge the continued use of names in an offensive manner, could be very
costly where brand names have been built up. The possibility of boycotts of
goods with offensive names might also be a danger. So it is perhaps wise to
look at the possibility of reform even from the perspective of commercial
pragmatism. While this article will not suggest the exact mechanism of
achieving those reforms, it will indicate some potential similarities that
might render such reform, or at least consideration of the problems, viable.
Potential parallels between the response to indigenous people’s approach to
IP and the response to the challenge of the digital age, are arguably
manifest in the underlying operational conception, the post-national
imperative, the concepts of authorship and of sacredness, the protection of
image and the question of the public domain.
Operational conception
The systems of indigenous knowledge ('IKS') and traditional ecological
knowledge ('TEK'), and their contemporary manifestations in the Western
environmental movement, are characterised by metaphors based on
interconnectedness, classically the web. [15] The web metaphor is somewhat
appropriate to the digital age of interconnected, multi-point access. [16]
The contrast between the language of 'information superhighway' and 'web' is
very revealing of alternative perceptions. Furthermore Kelly argues that
«The realm of the born-all that is nature-and the realm of the made-all that
is humanly constructed-are becoming one. Machines are becoming biological
and the biological is becoming engineered.» [17]
In his neo-biological, bionic world of 'vivisystems' he says that
«Vital, postindustrial paradigms are hidden in every jungly ant hill. The
billion-footed beast of living bugs and weeds, and the aboriginal human
cultures which have extracted meaning from this life, are worth protecting,
if for no other reason than for the postmodern metaphors they still have not
revealed.» [18]
One might see the Australian Aboriginal songlines as a metaphor for the
information channels of the digital age. [19] The similarities between the
underlying metaphors reveal a conceptual proximity that may be useful in the
examination of potential legal solutions in the IP domain.
Post-national
The analysis and evaluation of issues associated with IP in the digital era
and IP in relation to indigenous people share the post-national factor. The
effectiveness of national compartments has been increasingly reduced in the
global village. Thus all solutions to IP problems will have to recognise the
global dynamic. Likewise, the illusory nature and limitations of national
boundaries have long been understood and experienced by indigenous people.
Many artificial boundaries divide and separate them. [20] Thus global,
post-national solutions are relevant to advocates of IP rights in the
context of both the digital age and indigenous people.
Authorship, ownership and originality
The notion of authorship and the revisiting of it in the digital context has
generated lively discussion. [21] The concept of authorship needs some
revisiting, particularly in the context of copyright, but also in relation
to notions such as the person skilled in the art in complex areas in patent
law, such as biotechnology and genetic engineering. [22] Cornish identifies
some of the problems posed by digitisation in relation to copyright, and
questions the viability of the concept of authorship. [23] Harmonisation of
copyright has required a part-fusion of the alternative continental and
common law notions of authorship. Joint authorship and computer-generated
works point to the cracks in the aesthetic, autonomous construct of the
author. Likewise, the individual nature of the concept of authorship, and
the operational difficulties arising from the application of a theory of
rational economic man to indigenous people, combined with the evidentiary
difficulties associated with mystical and transgenerational origins of
knowledge, renders it inappropriate for many indigenous scenarios. [24]
Collective ownership under indigenous law conflicts with some central IP
concepts. [25] Thus a common conceptual approach to the core notion of
authorship and the nexus with ownership may be possible and desirable.
Linked to the question of authorship is the issue of originality and
novelty. Indigenous people may find that commercial interests appropriate
traditional art, designs, movement or knowledge of substances. Like-wise, in
the context of copyright in particular, the new technologies have spawned a
more direct current of more blatantly parasitic-artistic work which requires
re-evaluations of contemporary IP protection, not just in the operational
context but also conceptually. [26] Both areas would benefit from a rethink
of the law.
Concepts of sacredness
The concept and language of sacredness will be relevant to those associated
with IP rights in the digital age [27] in general, and those associated with
IP rights for indigenous people. [28] The Columban copyright dispute was a
dispute about property in a sacred book. [29] Nasr explains the link between
conceptions of sacredness, in the great religious traditions of Hinduism,
Buddhism, Judaism, Christianity and Islam, and conceptions of knowledge and
philosophy. [30] The functioning of a multi-cultural state or a global
market renders certain national legal principles associated with sacredness
out-dated. Even on a crude utilitarian view, the functionality of markets
rather than enlightened pluralism dictates awareness of alternative
religious perspectives and conceptions of sacredness. The fatwa issued
against Salman Rushdic over The Satanic Verses of 1989 emphasises the
problems which may arise, where cultures can clash in the realm of art. [31]
Digital technology accelerates the likelihood of conflict of the secular and
the sacred, and within the idea of the sacred, alternative notions of
sacredness. IP rights may be ineffectual, irrelevant or disregarded in such
clashes.
Indigenous people may have alternative conceptions of sacredness. In the
overall struggle for indigenous rights, the recognition and reclamation of
religious sites is very significant. Many IP disputes associated with
indigenous people arise from the desire to protect sacred things, as in the
Yumbulul case. [32] Apart from guarantees associated with freedom of speech,
the content of material which is regarded as sacred would seem potentially
to impose some restrictions on IP rights, particularly where the use of the
material is calculated to cause offence. The point of solution to both
problems may be in the zone of exclusions from registration or judicial
recognition in relation to IP rights. This requires an approach which is
less Euro-centric and Euro-Christian than hitherto.
Likewise, in relation to the great issues associated with the patentability
of genetic and biotechnological processes, [33] there is a commonality of
interest in ensuring a system which grows in a way that may be broadly
acceptable to society in general. For example, in relation to patents, the
indigenous conceptions of sacredness may be very useful contributions to the
evolution of norms. Indeed, some see the need for a synthesis of approach,
incorporating if not spearheaded by the indigenous approach. From
under-protection to over- protection, it may even be argued that there have
been, or are, deliberate attempts to construct quasi-sacred or
market-rendered sacred names for commercial purposes. The movement from
'Prince' to an unnameable could be seen as the culmination of a process of
attempting to create a secular tetragrammaton. [34]
Protection of image
Indigenous people are concerned about the commercial exploitation of their
images, symbols or names. This may be addressed by the development of a
concept of sacredness, or alternatively by the development of principles
which limit their commercial exploitation. This, however, is not merely a
problem associated with the indigenous sensitivity to the protection of
image. Digitisation and the dematerialisation process, virtual reality, the
development of three-dimensional technology and new editing techniques put
the question of the ownership and treatment of image at the centre of
commercial exploitation of IP, particularly in relation to posthumous use.
This is particularly important in the area of character merchandising.
Inappropriate use of images, names or symbols therefore may be undesirable
>from an IP perspective, for widely differing reasons.
Public domain
The digital era has focused attention on the role of the public domain and
the values and norms that should inform legislative development of new
technology. [35] Genuine access to legal protection for indigenous people is
a crucial issue. Again, the tension between commercial exploitation and
public access is clear. The public access argument clearly parallels
indigenous arguments about community ownership of information.
European Union-Opportunity?
Thus the identification of common problems in ostensibly disparate areas,
like the revealed rocks at low tide, may suggest the desirability of common
solutions in the context of the development of IP within the EU The EU
ultimately revolves around the single market, as the hub on which the other
spokes turn. Harmonisation often requires rationalisation. Harmonisation in
relation to IP is a sub-set of the formation of the single market and occurs
through the various regional and global trade institutions. [36] The
'specific subject-matter saga' [37] was an important conceptual clash of IP
and free movement. As the contours of the landscape are defined by their
gradual reconciliation, the relationship with other forces will become more
immediate. IP will inevitably clash with indigenous rights in the legal
forums of organisations such as the EU, unless a proactive response is made.
The conceptual contiguity of the issues posed by this looming force and the
contemporary reevaluation occasioned by the digital age suggest the
desirability of some lateral thinking.
Some argue that the free movement principles provide a unique opportunity to
solve the multi-dimensional problems associated with the Internet. [38] One
of the emerging candidates, for example, as a guide to piecing the puzzle is
the development of the notion of commercial communications'. [39] One of the
great advantages of the EU is the possibility of development by legal
design. A sensitivity to indigenous issues in the development of these
principles may save a lot of problems in relation to IP The development of a
common idea of public policy and public morality, of novelty and
originality, might enable the influence of an indigenous-sensitive
perspective. Furthermore, what might be termed 'the big stick' approach to
IP may be less effective than its advocates hope, and be replaced by a more
soft and subtle method. [40]
Conclusion
Native Americans were left in no doubt as to utility of the 'white man’s
law':
Conquest gives a title which the Courts of the conqueror cannot deny,
whatever the private and speculative opinions of individuals may be,
respecting the original justice of the claim which has been successfully
asserted. [41]
Indigenous people might argue that commerce now gives an impetus which
lawyers and law-makers will not ignore, whatever the justice of indigenous
claims. While the titanic system of IP steams ahead, different drum-beats
are coming gently across the water. The EU, which is regarded by some as the
empire of empires, [42] might provide the opportunity for a retreat from
insensitivity. Recent studies in the context of the link between trade
liberalisation and the promotion of environmental policy conclude that the
deeper integration of the EU, and the accompanied deeper trade
liberalisation, facilitate environmentally friendly solutions in comparison
with shallower trade organisations, refuting the claim by some that trade
liberalisation is bad for the environment. [43] Indigenous people will have
to be part of the solution, and will have to respond by engaging with the IP
structures and institutions which exist. [44] A more inclusive IP regime
will be more widely accepted and will defuse the arguments which will be put
forward to qualify existing doctrines. Indigenous people know that the cure
often comes from close to where the poison comes from, if not from the
poison itself.
NOTES
[1] Laurens van der Post, The Lost World of the Kalahari, (1962) p. 151.
[2] For a basic introduction to indigenous people see Burger, The GAIA
Atlas of First Peoples - A Future for the Indigenous World (1990): For an
overview of the development of the legal protection of indigenous people see
Sutherland, 'Indigenous Peoples, Emerging New Legal Standards for
Comprehensive Rights' (1997) 27/1 Environmental Policy and Law 13.
[3] Vine Deloria Jr, 'Consolidating Indian Efforts' (Standing Rock Sioux)
in Great Documents in American Indian History (Moquin and Van Doren, eds.,
1995), p. 383. Also see Long, 'Nomads and the Net' (March 1997) The
Geographical 28.
[4] This article uses the 'digital age' as a convenient epithet to refer to
the time rather than the technology.
[5] In the sense that indigenous people are connected to the oldest
traditions of humankind, and the digital revolution is associated with the
newest developments.
[6] The approach taken in this article is intended to be conjectural in the
tradition of critical pluralism as explained by Kari Popper. Popper
emphasised the importance of such an approach from Xenophanes to Einstein,
and the value of the 'woven web of guesses'. See Karl Popper, 'Toleration
and Intellectual Responsibility' in In Search of a Bener World (1994).
[7] Carmichael, Peppard and Boudreau, Megaresort on My Door-step. Journal
of Travel Research (1996), p. 9.
[8] There are differing academic perspectives with regard to the experience
of indigenous people and trade in indigenous products. See Tickell, 'Nuts,
Bucks, and Survival' (August 1992) The Geographical 10 and Corry, 'The
Rainforest Harvest. Who Reaps the Benefit?' (1993) 23/4 The Ecologist, and
more recently Taylor, 'Saving the Forests for the Trees. Alternative
Products from Woodlands' (1997) 39/1 Environment 6.
[9] Da Silva, 'The Protection of Intellectual Property for Local Indigenous
Communities' [1995] 11 EIPR 546.
[10] McGrath, 'The Patent Provisions in TRIPS: Protecting Reasonable
Remuneration for Services Rendered-or the Latest Development in Western
Colonialism?' [1996] 7 EIPR 398.
[11] UNCTAD, The Role of the Patent System in the Transfer of Technology to
Developing Countries (UN Doc. TD/B/AC 11/19, 1974) and UNCTAD, The Role of
Trademarks in Developing Countries (UN Doc.TD/B/C. 6/AC. 3/3 Rev 1, 1979).
[12] TD/CODE TOT/47, June 20, 1985.
[13] For example see Muchlinski, Multinational Enterprises and the Law
(1995) p. 446.
[14] For a good recent synopsis see Blakeny, 'Protection of Traditional
Medical Knowledge of Indigenous Peoples' [1997] 6 EIPR 298.
[15] Posey, 'Protecting Indigenous Rights to Diversity' (1996) 38/8
Environment 7. This article also presents a good explanation of the
definition of indigenous people, and a review of the international legal
instruments affecting indigenous people. Also, Greaves (ed.), Intellectual
Property Rights for Indigenous Peoples: A Sourcebook, Society for Applied
Anthropology (1994).
[16] See Blakeney, 'Protecting Expressions of Australian Aboriginal
Folklore under Copyright Law' [1995] 9 EIPR 442.
[17] See Posey, n. 15 above, at 37. Cummins v. Bond [1927] 1 Ch. 167 is an
entertaining example of the Chancery Division of the High Court being
unwilling to classify a spirit as the author of copyright in a work dictated
by a spirit medium.
[18] See Posey, ibid., at 8.
[19] Johnson, M., Lore: Capturing Traditional Environmental Knowledge
(1992), p. 4.
[20] The Bellagio Declaration of May l993 recognises this problem; see
Blakeney, n. 14 above, at 299.
[21] Posey, n. 15 above.
[22] For a witty account of the origin of commercial brands in the United
States see Bryson, Made in America (1994). For a defence of the market
mechanism in the evaluation of legal principles see Duxbury, 'Do Markets
Degrade' (1996) 59/3 Modern Law Review 331.
[23] Such as Winnebago and Cherokee in relation to cars, and Braves,
Redskins and Chiefs in relation to football teams.
[24] The court in the 'Crazy Horse' passing-off case (Alain Bernadin et CIE
v. Pavillion Properties [1967] R.P.C. 581) was not concerned about the
generation of goodwill in a name whose use would cause offence to the
individual’s descendants.
[25] Also see with regard to sacred names in general Umberto Eco, The
Search for the Perfect Language (1995).
[26] Fraser, The Golden Bough, A Study in Magic and Religion (1993), p.
263.
[27] Also see Golvan, 'Aboriginal Art and the Protection of Indigenous
Cultural Rights' [1992] 7 EIPR 227.
[28] Some elements in the indigenous world would perceive European academic
endeavour, no matter how supportive, as prompted by a new subtler type of
colonialism. Even if that were true, which the author would dispute, that
fails to see the inherent self-interest that Europe has in developing a
widely acceptable system of IP if it is to function effectively within its
own region, by identifying marginalising processes which it creates.
[29] One of the better illustrations perhaps of the link between force,
colonisation and law is provided in the Institutes of Justinian of 553: 'The
valour of our arms barbarian nations made subject to our sway have learnt to
know. Africa and innumerable other provinces, after so long an interval by
the victories which God has given us restored to our rule and Empire bear
witness to it. All nations now are ruled by laws which we have issued or
complied'. See Tunney, 'Free Movement, Intellectual Property and Aboriginal
Peoples', Proceedings of Aboriginal Peoples Conference, Lakehead University,
Ontario, October 1996. See also Duncan, 'Property as a Public Conversation.
Not a Lock-Can Solioquy; A Role for Intellectual History and Legal History
in Takings Analysis' (1996) 26/4 Environmental Law (North-western School of
Law of Lewis & Clark College) 1095. With regard to the link with culture see
Said, Culture and Imperialism (1994).
[30] See Bartolomé de las Casas, 'Aquí Se Contienen Treinta Proposiciones
Muy Jurídicas', cf. de Vitoria, 'De Indiis et De lure Belli Relectiones',
Culture and Belief in Europe 1450-1600 (Englander, Norman, O’Day and Owens
eds., 1990), pp. 324 and 331.
[31] ibid.,Bernal Diaz, The Conquest of New Spain, trans. and ed. by J. M.
Cohen (1963), p. 307.
[32] For a recent particular study see Kathyrn Holland Braund, Deerskins &
Duffels (1996).
[33] Greenfield, The Return of Cultural Treasures (2nd edn., 1996).
[34] See McGrath, n. 10 above.
[35] See Blakeney, n. 14 above, at 302.
[36] The author would agree with the thrust of Bowrey's argument in favour
of an interdisciplinary approach; see Bowrey, 'Who's Writing Copyright's
History?' [1996] 6 EIPR 322, and the consistent encouragement from jurists
such as Oliver Wendell Holmes for students of law to study disciplines
around their area, while accepting that fools rush in where angels fear to
tread. Ale inherent nature of IP and the dictates of technological dynamism
require some academic speculative risk.
[37] Duncan, see n. 29 above, is a good example of an article in this
genre. It also provides a critique of some fundamental legal concepts, which
parallels indigenous academic analysis.
[38] For a perspective on goods in the European context, see Lisa Jardine,
Worldly Goods (1996).
[39] Thom White Wolf Fassett, 'Where Do We Go From Here?' in Defending
Mother Earth, Native American Perspectives on Environmental Justice (Weaver
ed., 1996), p. 177.
[40] The celebrated decision against Colmcille (later St Columba) was
recorded and translated from Irish as 'To every cow its calf, to every book
its copy'. Indeed, it might be argued from this decision that IP principles
would have grown organically in non-colonised countries.
[41] See Maine, Ancient Law (1890). That unwritten law was not regarded as
law is a convenient doctrine for a coloniser. On the significance of
orality, see Basil H. johnson, 'One Generation from Extinction' in An
Anthology of Canadian Native Literature in English (Moses and Goldic (eds.,
1992). The approach of s. 3 (2) of the Copyright, Designs and Patents Act
1988 to the requirement that copyright does not subsist until recorded, but
thereafter does in literary, dramatic and musical works, might have been a
more sophisticated legal methodology to employ when dealing with indigenous
legal cultures.
[42] One is reminded of York in Richard II: 'If you do wrongfully seize
Hereford's right ... You pluck a thousand dangers on your head ... You lose
a thousand well-disposed hearts, And prick my tender patience to those
thoughts which honour and allegiance cannot think.' Act 2, Scene 1.
[43] See Mails,The Mystic Warriors of the Plains (2nd ed.,1991); Vine
Deloria Jr, God Is Red (2nd edn., 1992); Suzuki and Knudtson, Wisdom of the
Elders: Honoring Sacred Native Visions of Nature (1992). McPherson and Rabb,
eds., Indian from the Inside; A Study in Ethno-Metaphysics (1993); Defending
Mother Earth, Native American Perspectives on Environmental justice, n. 39
above.
[44] See Duncan, n. 29 above.
[45] See Bell and Klein, Radically Speaking: Feminism Reclaimed (1996).
Also Bordo, The Cartesian Masculinazination of Thought', in From Modernism
to Postmodernism (Cahoone ed., 1996), p. 656.
[46] ibid.; Hall, 'Modern China and the Post-Modern West', p. 698.
[47] Capra, The Tao of Physics (1976).
[48] Aschemie, 'Accounting, Time, and African Philosophy, Advances in
Public Interest Accounting' (1996) 6 Critical Perspectives in Accounting
19-33 and Birkin, 'The Ecological Accountant; From the Cogito to Thinking
Like a Mountain' (1996) 7 Critical Perspectives in Accounting, 23 1.
[49] Much native philosophy, for example n. 3 above, necessarily involves a
critique of European philosophy.
[50] C.G. Jung, Jung on the East (Clarke ed., 1995), p. 162.
[51] ibid., p. 163.
[52] See Bronowski, The Ascent of Man (1973).
[53] See Sagan, The Demon-Haunted World; Science as a Candle in the Dark
(1996).
[54] See for example, Gross and Levitt, Higher Superstition: The Academic
Left and Its Quarrels with Science (1994). The exaggerated historical schism
between science and religion begun in earnest by Draper in 1874 is a
different story; see Russell, Inventing the Flat Earth (1991).
[55] See for example Crespi, 'Biotechnology Patenting: The Wicked Animal
Must Defend Itself', [1995] 9 EIPR 431.
[56] See (merely as a basic example of the emergence of this trend) Peat,
Blackfoot Physics (1996).
[57] Indeed, some suggest that the digital age itself, chracterised by
bivalence and traceable to Aristotelian logic, is a way of thinking doomed
to give way to a system characerised by multivalence, to neural networks
instead of digital computers, which is more attributable to Eastern or
Buddhist diinidng, or the schools of thought inspired in this century by
Bertrand Russell and Werner Heisenberg. See Kosko, Fuzzy Thinking, The new
Science of Fuzzy Logic (1994).
[58] Likewise, some of the new mathematics which underlies the new
technologies of the global village that IP has to protect is based on
discoveries by people such as Mandlebrot, building on propositions such as
the Cantor set and the Koch curve (which bear striking resemblances to
indigenous and traditional philosophies and symbols). With regard to the
development and contempory application of these mathematical theories, see
Gleick, Chaos, Making a New Science (1987).
[59] See for example s. 1 (3) of the Patents Act 1977 and s. 3 (3) of the
Trade Marks Acts 1994 in the United Kingdom.
[60] Att.-Gen. v. Guardian Newspapers (No, 2) [1988] 3 WL.R.776; [1988] 3
All E.R. 545, H.L.
[61] See Weatherill and Beaumont, EC Law (2nd edn., 1996), Chap. 26.
[62] One is reminded of the statement from Pudd’nhead Wil-son’s Calendar,
'Consider well the proportion of things, It is better to be a young June-bug
than an old bird of paradise.' Mark Twain, Pudd’nhead Wilson and Other Tales
(1992) p. 42.
[63] In relation to the use of U.S. antitrust in relation the exercise of
IP rights in the area of communications technology, see Daly, 'The Robin
Hood of the Rich' (August 1997) Wired 108.
[64] UN Doc.E/CN.4/Sub.2/1994/Add/April 20, 1994 and see Sutherland, n. 2
above.
[65] Mabo v. State of Queensland (No. 2) (1992) 175 C.L.R. 1.
[66] For example, the Mataatua Declaration, the Julayinbul Statement and
the COICA Statement, Blakeney, n. 14 above,
[67] See Posey n. 15 above.
[68] Costa v. Ente Nazionale per L' Energia Elettrica (ENEL) Case 6/64
[1964] E.C.R. 585; [1964] CMLR 425.
[69] Van Gend en Loos v. Nederlandse Administratie der Belastingen Case
26162 [1963] ECR 1; [1963] CMLR 105.
[70] Nold KG v. Commission Case 4/73 [1974] ECR 491 at 507; [1974] 2 CMLR
338.
[71] See Sutherland, n. 2 above.
[72] In particular elements of Arts 8, 9, 12, 13, 14, 16 would seem to be
useful possible sources of rights.
[73] See Ford, 'The Morality of Biotechnology Patents: Differing Legal
Obligations in Europe?' [1997] 6 EIPR 315 in relation to IP
[74] COM (95) 567 final.
[75] The greatest objection to these groups being so regarded would seem to
arise from issues such as a lack of homogeneity and the degree of
industrialisation. But it would be mistaken to dismiss groups such as the
Basques, despite these considerations. The legal definition will be the key
and not the presence of groups on BBC wildlife programmes.
[76] See Sutherland, n. 2 above.
[77] See for example The Commission v. France [1990] E.C.R. 1-43371 with
regard to the use of art. 169 enforcement proceedings to ensure compliance
by France with its obligations under Council Regulation 3626/82 of December
3, 1982, which implemented the Convention on International Trade in
Endangered Species of Wild Fauna and Flora ('CITES'), of March 3, 1973.
[78] For an introduction to the EU and international relations, see
McGoldrick, International Relations Law of the European Union (1997).
[79] SeeBlakeney,'The Impact of theTRIPs Agreement in the Asia Pacific
Region' [1996] 10 EIPR 544. Also see Eeckhout, 'The Domestic Legal Status of
the WTO Agreement: Inter-connecting Legal Systems' (1997) 34 Common Market
Law Review 11.
[80] For a description of the development of EU environmental agenda, see
Pocklington, 'The Role of Environmental Action Programmes in the Development
of EU Enviromnental Legislation' (Dec. 1995) Environmental Law and
Management.
[81] For a recent comprehensive article with regard to likely developments
in general, see 'Towards an Environmental Constitutional Law' (April 1997)
European Environmental Law Review 113.
[82] See Puttnam, The Undeclared War. The Struggle to Control the World’s
Film Industry (1997).
[83] Cinetheque v. Federation Nationale de Cinemas Frunfaises Cases 60,
61/84 [1985] ECR 2605; [1986] 1 CMLR 365.
[84] Procureur du Roi v. Dassonville Case 8174 [1974] ECR 837; [1974] 2
CMLR 436.
[85] See R. v. Hennand Darby Case 34/79 [1979] ECR 3795; [1980] 1 CMLR 246.
[86] For example, Art. 36 of the Treaty of Rome in relation to free
movement of goods.
[87] For example Art. 7 (f) of Council Regulation 40/94 of December 20,
1993 [1994] O.J. L11/1. There is also Art. 3 (2)(a) of the Council Directive
89/104 [1989] O.J. L40 in relation to grounds for refusal where a trade mark
covers a sign of high symbolic value, in particular a religious symbol.
[88] Marshall McLuhan, Understanding Media (1964).
[89] Gates, The Road Ahead (1995).
[90] For a review of existing law in the United Kingdom, see Euan Cameron
and Caitriona Hegarty, 'Never Mind the Quality, Feel the Width, A Sceptical
View of Legal Interference with Cyberspace' (1996) 1011 International Review
of Law, Computers & Technology 79.
[91] In relation to proposals on the Information Society, see 'Europe’s Way
in the Information Society', COM (94) 347. Communication on 'Ale
Implications of the Information Society for European Union
Policies-Preparing the Next Steps', COM (96) 395. Green Paper on 'Living and
Working in the Information Society: People First', COM (96) 389.
Communication on 'Standardisation in the Information Society: The European
Approach', COM (96) 359. Proposed Directive on Regulatory Transparency in
the Internal Market for Information Society Initiatives, COM (96) 392.
[92] This article cannot be a survey of all the disputes in IP
[93] Ruijsenaars, 'The WIPO report on Character Merchandising' (1994) 25
International Review of Industrial Property and Copyright Law 532, and
'Legal Aspects of Merchandising: The AIPPI Resolution' [1996] 6 EIPR 331.
[94] See Chen, 'A Proposal for the International Convention for Protection
Against Unfair Competition' [1996] 8 EIPR 450.
[95] Willimsky, 'Comparative Advertising: An Overview' [1996] 12 EIPR 649.
[96] For a coherent analysis see Dixon and Hansen, '’ne Berne Convention
Enters the Digital Age' [1996] 11 EIPR 604.
[97] See Reinbothe, 'The New WIPO Treaties: A First Resume' [1997] 4 EIPR
171.
[98] Vinje, 'A Brave New World of Technical Protection Systems: Will there
Still be Room for Copyright?' [1996] 8 EIPR 431.
[99] Barlow, 'The Economy of Ideas: A Framework for Rethinking Patents and
Copyrights in the Digital Age' (March 1994) Wired, and see Bowrey, n. 36
above.
[1] Christic, 'Reconceptualising Copyright in the Digital Era' [1995] 11
EIPR 525.
[2] Edwards,'Modelling Law Using a Feminist Theoretical Perspective' (1995)
4/1 Law, Computers and Artificial Intelligence 95.
[3] Davison, 'Geographical Restraints on the Distribution of Copyright
Material in a Digital Age: Are they justified' [1996] 9 EIPR 477.
[4] Also see Dworkin, 'The Rise and Rise of Intellectual Property', 1997, 9
London University Law Journal 14.
[5] See Wilson, Anglo-Saxon Art From the Seventh Century to the Norman
Conquest (1983).
[6] Laddic, 'Copyright: Over-strength, Over-regulated, Overrated?' [1996] 5
EIPR 259.
[7] See nn. 97 and 98 above.
[8] Council Directive on the Legal Protection of Computer Programs 91/350
[1991] O.J. L122/42.
[9] Council Directive Harmonising the Term of Protection of Copyright and
Certain Related Rights 93/98 [1993] O.J. L29019.
[10] McGrath, see n. 10 above (lst ser.).
[11] Kurtz, 'Copyright and the National Information Infra-structure in the
US' [1996] 3 EIPR 120.
[12] Branscomb, 'Public and private domains of information:Defining the
legal boundaries' [Dec. 1994] 21/2 American Society for Information Science,
Bulletin.
[13] Chomsky, Necessary Illusions, Thought Control in Democratic Societies
(1989).
[14] Power, 'Digitisation of Serials and Publications' [1997] 8 EIPR 447.
[15] For example, Capra, The Web of Life (1997).
[16] Although the competing web metaphors might remind one of the Greek
myth of Minerva and Arachne. Of course the web metaphor might be used as a
negative one, as Swift did in his essay on the spider and the fly. For a
synopsis of Swift, 'A Tale of a Tub. Written for the Universal Improvement
of Mankind, To Which is Added An Account of Battle Between the Ancient and
Modern Books in St James Library' (1704) see Stephen jay Gould, Dinosaurs in
a Haystack. Reflections on Natural History (1996) p. 76.
[17] Kelly, Out of Control, The New Biology of Machines (1994), p. 2.
[18] ibid., p. 4.
[19] Chatwin, The Songlines (1987).
[20] In relation to Africa, see Thomas Pakenham,the Scramble for Africa:
White Man’s Conquest of the Dark Continent from 1876 to 1912 (1991) and
Romain Yakemtchouk, 'Les Frontienes Africanes' (1970) 74 Revue Générale de
Droit International Public 27 and Ratner, 'Drawing a Better Line: Uti
Possidetis and the Borders of New States' (Oct 1996) 90/4 American Journal
of International Law 590.
[21] Olswang, 'Accessright: An Evolutionary Path for Copyright into the
Digital Era' [1995] 5 EIPR 21 8. Also see Christie, n. 1 above (2nd ser.),
and Bowrey, n. 36 above.
[22] For example in the case of Genentech’s Patent (1989) RPC147.
[23] Cornish, 'Authors and the Law' (1995) Modern Law Review 1. See also
Wright, 'Authorship of Computer Generated Works; A Legal Pandora’s Box'
(Oct. 1996) Business Law Review 252. Bowrey, n. 36 above, and Vinje, n. 98
above.
[24] See Posey, n. 15 above (1st ser.).
[25] See Golvan at n. 27 above, and also Golvan, 'Aboriginal Art and
Copyright: The case for Johnny, Bulun Bulun' [1989] EIPR 346.
[26] The practice of sampling is perhaps the best example of the
technological and related artistic-social operational challenge, which may
bring a conceptual challenge and which might have occasioned the call for a
conceptual solution.
[27] See Lane, The Living Tree, Art.
[28] For example Lees, 'Melanesia’s Sacred Inheritance', in Indigenous
People and Protected Areas (Kemf ed., 1993) Brown, The Sacred Pipe (1953).
[29] See n. 40 above.
[30] Seyyed Hossein Nasr, KnowIedge and the Sacred (1989). This in turn
informs the debate about the philosophical fault lines underpinning the IP
system.
[31] The efforts to form a group of eight developing Muslim countries to
counterbalance the hegemony of the G7 (G8) countries and their economic
values, may further emphasise the appropriateness of indusive notions of
sacredness, not confined to one dominant religion. Likewise the recall by
Nike of shoes with symbols which could have caused offence to Muslims is
consistent with the need to marry sensitivity and commercial pragmatism; see
The Independent, June 25, 1997.
[32] Viimbulul v. Reserve Bank of Australia (1991) 21 IPR 4 at 81.
[33] Which may be said to be one of the debates associated with the digital
age, if not directly with digital technology.
[34] Although Madonna might be a much more formidable iconoclast, her name
was Madonna Ciccone and therefore does not really fall into this category;
see Andersen, Madonna (1991).
[35] Also see Phillips, Opinion, 'The Diminishing Domain: Threat to the
Public Domain' [1996] 8 EIPR 1996, and Norman, Opinion, 'The Electronic
Environment: The Librarian’s View' [1996] 2 EIPR 71.
[36] See Gendreau, 'Copyright Harmonisation in the European Union and in
North America' [1995] 10 EIPR 489. This refers to the role of IP in the
NAFTA context. The indigenous people of America are becoming better
organised and the pressure for an indigenous perspective to inform the
trade-related aspects of IP will become acute in the decade to come.
[37] See n. 61 above.
[38] John F. Mogg, writing from the experience derived from a European
Commission perspective in the preface to Hance, Business and the Law on the
Internet (1996).
[39] See Miskin and Vahrenwaid, 'Commercial Communications in the Internal
Market-At What Price?' [1996] 11 EIPR 621.
[40] De Koning, 'Why the Coercion-based GATT Approach is not the only
answer to International Piracy in the Asia-Pacific Region' [1997] 2 EIPR 59.
[41] Chief Justice John Marshall, Yohnson v. Mclntosh 8 Wheat. 543 (1823).
[42] See Margaret Thatcher’s speech at the College of Europe, Bruges,
September 20, 1988.
[43] Steinberg, 'Trade-Environment Negotiations in the EU, NAFTA and WTO:
Regional Trajectories of Rule Development' (1997) 91 American Journal of
International Law 231.
[44] Practical responses might include, for example, the establishment of a
collecting society for copyright works of indigenous people, a review of
possible legal remedies in the EU, an electronic journal on the subject of
indigenous people and IP, a scholarship system for indigenous students to
study IP law and a comprehensive attempt to record traditional indigenous
knowledge by and for the benefit of indigenous people which would assist in
an evidentiary context in IP disputes.
European Intellectual Property Review
Vol.20, Issue 9, September 1998
Sweet & Maxwell Ltd
London
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Subject: first submission
Date: Fri, 16 Oct 1998 01:18:10 -0700
From: "Prof. Anil Gupta" <anilg@iimahd.ernet.in>
To: public-admin-and-management@mailbase.ac.uk
CC: indknow@u.washington.edu
The following is the editorial of current issue of Honey Bee newsletter
9(3)1998 june -sep which may be of interest to this list also
Will appreciate any comments, suggestions and criticism--anil
Knowledge Network among grassroots innovators: emerging applications
of Information Technology
One reason why many grassroots innovations can not be scaled up is the
lack of appreciative peer group which can critique these innovations,
suggest improvements and spur these innovators to try out new designs.
Conventionally, informal gatherings of farmers particularly those who
had experimented with new ideas helped in providing such peer groups.
But the frequency of such meetings was not very high. In many places
such meetings seldom took place. The isolation of innovators from one
another continues in large parts of the world. Those who can read , can
access new innovations through local language newsletters triggered by
Honey Bee. But the combined circulation of all these newsletters in six
languages may not be more than ten thousand. Assuming that each issue of
the newsletter is read by 5 or 6 people, the readership of Honey Bee
network may be about 50-60,000 only.
The asymmetry in access to information among those who have access to
modern computer based information networks such as the internet, and
those who do not, is extremely high. We have been thinking about this
problem for some time. We invite comments from readers on the ideas that
we have evolved in the last few years so that our search for solutions
gets sharpened.
a) Creating internet and intranet kiosks which are accessible to
rural
people so that they can access information on local innovation or
related information on local ecological knowledge, indigenous knowledge,
information about local experts, availability of local varieties of
crops, trees, fruits and vegetables, recipes of uncultivated crops etc.
Solar powered or battery operated systems could democratise the access
to these knowledge bases. Local language interfaces for email has
already been developed by CDAC. One could also have either touch screen
or speech recognition softwares embedded in these kiosks so that
farmers could construct messages using pre-coded buttons about crops,
pests, or diseases, problems or solutions. Idea is that not knowing
reading and writing should not pose any difficulty in communicating
through such innovations kiosks or Shodh kendras.
Or farmers could also talk into the recording system of the kisok so
that receiver in the same language can listen to the observation of the
sender innovator. For farmers in other places with different language,
these files are translated through mediating node and then sent onwards.
Important issue is to see whether textual, oral or picture messages can
be transmitted easily so that mutual learning among innovators and
others can take place.
b) creating multi-media data bases so that barriers of language,
literacy, and localism can be overcome. Farmers do not have to learn
only from local people, nor do they have to learn in textual form and
>from those who speak their language. Multimedia technology can help
people get closer to reality . Farmers’ response to Honey Bee Multi
Media Data Base (HB MMDB) of innovations shown among about 40 villages
through which we walked during Shodh Yatra and later at Honey Bee
network meeting in Madurai, has been spectacular. It seems to enhance
their pride in their own knowledge when they see pictures of other
innovators, hear their sound, and see their innovations in action
through video clips. Mobile exhibitions of MMDBs is one way to overcome
spatial constraints in connecting innovators with each other.
c) the farmers who want to explore non chemical alternatives for
agriculture in any part of the world cannot often rely on the existing
private or public sector information dissemination systems which are
biased in favour of high chemical intensive technologies. Access to such
information in real time is even more difficult. Information Kiosks may
provide such a possibility through village based nodes. When there is a
real crisis in agriculture, and if only alternative available at short
notice is a chemical one, then that is what will be tried by most
people, even if they realised the possible environmental externalities.
The point is that there should be normal notice boards on innovations in
different areas frequented by women as well as men separately if that be
necessary. This will ensure that those who have not overcome the fear of
computers will at least read the paper notices and get bugged by the
innovative spirit.
d) data bases of innovations with the name and addresses of the
innovators and communicators can be kept at different nodes of Knowledge
Network so that local farmers, artisans and other women and men can get
inspired by the creativity of others and also get challenged to try
their own experiments.
e) Growers of organic grain, oil and fruit and vegetable crops
may not
be able to afford advertising on popular media but they can certainly
broadcast their product range on electronic discussion groups in various
languages. Similarly, the farmers who conserve local biodiversity in
agricultural field as well as in wild may like to have seed exchange
programme managed by themselves and the electronic exchange boards may
help.
f) an electronic auction market of innovations may be set up so
that
those willing to license the right to manufacture or scale up any
innovation given on the bulletin boards may bid and the innovators may
decide with in specified period whether they want to license their
innovation to the highest bidder or not. The linkage between
innovations, investor and entrepreneur may be forged.
g) closed membership discussion group may be set up in local
language
so that specific innovations may be taken up for collective improvement
in design and scope given the willingness of innovators as well a s
his/her peers to engage in such collaborative learning exercises.
h) A system like INSTAR for quick registration and grant of
innovation
patents ( similar to utility patents with lower inventive threshold),
shorter in duration ( say about 8-10 years) and lesser number of claims
( say only 5-7) may be established electronically. Any body can file
claims as well as opposition on electronic boards through appropriate
local bodies. One can also explore collective management of industrial
property in individual names through networks like honey Bee and SRISTI.
Some of these ideas and HB MMDB were presented to the Prime
Minister’s Task Force on IT and the response was very encouraging.
Several colleagues felt that there was no reason why thousands of
innovations available in Honey Bee data base should not have generated
thousand of enterprises or new products. But that may happen in not too
distant a future if a national empowered coporation like GIAN (Gujarat
Grassroots Innovation Augmentation Network) comes up.
I) The patent offices will also be obliged to refer to the local
knowledge data bases so that no patents are issued on disclosed
traditional as well as contemporary community or individual innovations,
knowledge and practices.
There may be many other ways in which Information Technology can be used
to connect innovators with potential investors, volunteer scientists
desirous of working with creative farmers, and entrepreneurs. Similarly,
patent data bases can be searched by farmers to know the state of art
in any field so that farmers’ innovations go beyond what is already
known. We look forward to hear from you so that IT revolution reduces
the distance between haves and have nots and does not increase it
Creating a Knowledge Network for sustainable technologies and
institutions is a realistic possibility. The equestion is, will you like
to be a part of such a network?
------
--
Prof Anil K Gupta
Professor, Indian Institute of Management
Ahmedabad 380015, India
and
Coordinator SRISTI and Editor, Honey Bee
anilg@iimahd.ernet.in
http://www.iimahd.ernet.in/~anilg/
http://csf.colorado.edu/sristi/
fax 91 79 6427896
phone (o) 91 79 6407241
--
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