Our very own Osgoode professors and feminist scholars, and presented a thought-provoking keynote entitled, “Copyright and the Moral Arts of Appropriation: Feminist and Postcolonial Perspectives”, at the Conference hosted by the of the University of Toronto on November 11, 2011. Linking the overarching conference themes of how appropriation affects different feminisms to the intellectual property rights of postcolonial societies, the presentation provided an intriguing insight into the conflicted worlds of economic rights, technology, knowledge-sharing and cultural preservation.

Speaking on the ideas developed in their paper “” (co-authored with Joseph Turcotte), both Professors Coombe and Craig explored the concept of digital appropriation with respect to developing societies, especially highlighting the impacts of the economics-based property rights management model of the contemporary global intellectual property regime on local communities. The concept of the ‘cultural commons’ here, they argued, was being eroded by the narrow application of intellectual property rights, which confined ownership to one or a few, effectively reducing the scope of societal development by the exclusion of crucial perspectives, especially those of women.

While Craig proposed that the WWW and emerging technologies could be used to enable the public to contribute to the creation of more egalitarian intellectual property rights, Coombe suggested that the very idea of ‘public’ needed an overhaul to include diverse voices, as the term was historically entrenched in gender and social inequalities. Both authors concluded that that “a more inclusive notion of stewardship” is necessary, and that intellectual property rights will only work favorably in postcolonial societies if they work symbiotically, not parasitically, with the communities they wish to benefit from.

Professor Coombe’s approach further involved a critique of North American public domain policies as “too individualistic with their emphasis on public freedoms,” and cited the incompatibility of intellectual property rights derived from these ideas with postcolonial societies. Intellectual property, she said, was more of an enclosure to these societies, and because of this, the notion of the ‘public domain’ itself became “a modern bourgeois term,” that restricted cultural development instead of freeing cultures. According to Coombe, current intellectual property concepts only supported the continued dispossession of local communities, effectively becoming a tool for recolonization. Citing the role of women in farming communities in the developing world, Coombe emphasized the importance of vernacular property rights, including knowledge of land use and agriculture that was passed down orally, “through networks of women’s trust.”

She also argued that with moves such as the patenting of seeds, or preventing cross-breeding of seeds, intellectual property rights were doing more than just preventing innovation in agricultural development— they were denying communities the means to propagate their own intangible wealth of social history, effectively debilitating the already-damaged fabric of postcolonial societies. The answer, according to Coombe, is to broaden the existing perception of private goods and the public domain, and to ensure that intellectual property rights are not just involved in protecting tangible expression, but that a novel “postcolonial ethic of stewardship” can give the intangible contribution of distinctive groups their due.

Professor Craig also drew on a relational theory of copyright law and suggested that, in order to be legitimate, a system of copyright must provide access to various cultural landscapes and must be modified to create spaces where the process of authorship enables “ongoing social dialogue as part of cultural conversation, which then helps shape communities.” The current practice of using copyright law to put forward proprietary claims is a form of Lockean possessive individualism, argued Craig, and only propagates the marginalization of the same groups that have suffered due to exclusion historically. This effectively creates the same problems in intellectual property rights as faced by real property management regimes, because copyright law "wants to believe that expression is created in a vacuum," rather than being a complex interplay of various influences. The solution, according to Craig, lies in open-access initiatives like the (A2K) movement, which is built on collaborative knowledge sharing across cultures. Craig also pointed out that feminism and open-access complemented each other perfectly, since both were concerned with “prioritizing the marginalized and countering private appropriation,” and were “optimistic about technology’s capacity to destabilize the existing power structure.”

Tied into one of the conference’s main concerns of how appropriation could be used in a positive context, the keynote focused on advocating for a more nuanced approach that preserved the uniqueness of postcolonial societies and the “need to protect the ‘we’ with more humility.” It provided a worthy segue into the conference’s second and final day, where many of the questions raised by Professors Coombe and Craig were discussed and debated, and created the background for further dialogue on feminism and the politics of appropriation.

The post Appropriately Approaching Appropriation: Osgoode Professors On Feminist Alternatives To Postcolonial Intellectual Property Issues appeared first on IPOsgoode.

This past December the World Trade Organization appellate body ruled against China in a dispute with the United States. The US initiated the dispute in 2007 to address three concerns: 1) China was prohibiting foreign businesses from importing publications, music, DVDs and other audiovisual products; 2) China was prohibiting foreign businesses from distributing reading materials and music electronically; and 3) China was imposing burdensome requirements on certain products before they could be distributed.  In short, the US alleged that China was using a state administered “content review” mechanism to prevent the distribution of foreign goods. China defended itself against these allegations by arguing that the goods in question, such as finished audio-visual products, are cultural goods, which have a significant impact on public morals. Thus, China should be allowed to impose a high level of protection on these goods and determine the way in which they enter into the country (if at all).

In its defense against the allegations, China attempted to establish a clear link between cultural goods and social, cultural, moral and political life. This is not the first time the WTO Dispute Settlement Body has seen a country attempt to establish a link between the protection of its cultural goods and its cultural life.  In 1998, Canada attempted to draw on this connection in a dispute with the US that resulted in a very high-profile loss (the split-run magazine decision).  This is the first time, however, that a country drew on the UNESCO Universal Declaration on Cultural Diversity (the Declaration) and the new legally binding Convention on the Protection and Promotion of the Diversity of Cultural Expressions (the Convention) in order to do so.

By referencing Article 8 of the Declaration, which asserts that cultural goods are “vectors of identity, values and meaning” and by referring to the Convention to emphasize the influence of cultural goods on societal values, China put into action the political discourse of cultural diversity, which governments in other countries have been slow to do in the international legal arena.

What is interesting about China’s use of the Declaration and Convention is that they do not use them to defend against the accusation that they are violating existing trade agreements, but rather they use them to establish that cultural goods not only have commercial value but also cultural value. Getting the WTO to even acknowledge this argument is no small feat. As practitioners and scholars working in the area of diversity and policy issues have pointed out, the Convention is unlikely to ever act as a recognized defense against liberalized trade rights—a view clearly supported by the WTO appellate body and all three third parties who noted that the Convention may not be interpreted as “modifying rights and obligations of the Parties under any other treaties to which they are parties” (the Convention, Article 20 (2))—however, by entering the argument into public record China has taken a step towards using the Convention and Declaration to define the relationship between cultural diversity and cultural goods.

Much like the 20 year debate surrounding the Draft Declaration on Indigenous Peoples helped to create a set of minimal normative standards in regard to the treatment of indigenous peoples long before the final Declaration was adopted, the way in which the Declaration and the Convention become used across multiple fields of practice, including trade negotiations, will impact the way in which cultural diversity norms, standards and models come to be defined.

The fact that this WTO decision was yet another ‘big win’ for the US is perhaps the least significant part of this decision. This decision is an important moment that deserves attention from civil society groups, policy activists, intellectual property lawyers and anyone interested in the emerging international cultural policy framework. Such a decision can influence the direction policy will take, how diversity is defined and what diversity will look like in the future.

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