In his recent essay,  , intellectual property scholar  admits upfront that the title question ‘strikes many readers as improbable, even nonsensical.’  However, the posited question aims to introduce just how an intellectual property system, which is designed to grant sets of exclusive rights, can include elements of gender.   As Burk notes, feminist scholarship over the past few decades has illuminated the ways in which gender plays a role in many theories and practices of law; including criminal law, civil rights, family law, employment law, tax law, and so on.

In some situations, the utilization of feminist scholarship has shed light on overt discrimination or inequality.  In others, feminist commentators have helped to clarify less obvious systemic biases in the law, all of which ‘serve to reinforce stereotypes, or perpetuate oppressive power relationships.’

The influence of feminist scholarship is now beginning to be felt in the field of intellectual property.  Osgoode Hall Law School's Professor Carys Craig works within this context, examining .  And yet, feminist perspectives have been slow coming to the field of patent law; while ‘feminist intellectual property scholarship itself is underdeveloped... feminist patent scholarship is almost unheard of.’  The aim of the essay then is to incite more examination of the patent area of intellectual property ‘where feminist insights have to date been underdeveloped.’

The way in which this task is completed in the essay is through the consideration of the ways in which the patent system might include gender bias.  To discover the existence of such bias within the patent system, Burk examines ‘the objective doctrines of patentability embodied in the legal fiction of the PHOSITA, the Person Having Ordinary Skill in the Art.’  In considering the problem of ‘objectivity’ and ‘objective’ legal standards, through feminist scholarship, Burk suggests that the PHOSITA standard does in fact include the gender characteristics found in other areas of law.  In the close of his essay, he notes that although shifting away from an ‘objective’ standard for patentability would involve substantial changes in patent doctrine, a ‘tug and pull between a new obviousness standard and a new disclosure standard could shift patenting in differing directions.’

Burk’s essay speaks acutely to a systemic problem within intellectual property law, among other fields.  The moral which seems to drive this examination is found in the idea that those who make the law do so according to their own interests and those who are not present are those not represented.  This provides a means to critique issues that exist within intellectual property regimes which may stem from laws which are built according to the interests of those who create them.  In response to the particular manifestation of the moral which drives this essay, Burk has successfully shown that ‘although the conversation in second wave and even third wave feminism might seem to have passed intellectual property by, the tools provided by feminist scholarship are useful in critiquing and evaluating characteristics of intellectual property law that might otherwise go unexamined.’

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In a recent posted on the IP Osgoode website I considered the ruling in ; a case in which the U.S. Supreme Court ruled on the issue of the privacy of employee text messages sent using employer issued equipment.  In the Quon decision, the justices unanimously ruled that the search of the employee's personal messages on his government owned device did not violate his constitutional rights.  In conversations following the blog I noticed that the topic of discussion often shifted, and rather quickly, from the expectation of privacy directly to the violation of privacy, and all with little regard for the grey area involved, the area of harm.

In ’s recent essay, , he urges that closer consideration be paid to the notion of privacy harm as ‘no person need commit a privacy violation for privacy harm to occur (and vice versa).’  In his article he defines both the subjective and objective aspects of privacy harm in order to establish the concept as its own entity, one separate from privacy violations.  He notes that the two categories of harm are distinct and yet related, ‘just as assault is the apprehension of battery, so is the unwanted perception of observation largely an apprehension of information-driven injury.’  The subjective and objective categories can be thought of as the anticipation and consequence of a loss of control over personal information, respectively.

Subjective privacy harms are those experienced from the ‘unwanted perception of observation,’ and can range from singular to ongoing events, from individuals to groups, from mild discomfort to great mental pain and so on and so forth.  An important distinction is that generally, to be considered harmful, the observation must be unwanted, and yet, actual observation does not need to occur to cause harm; ‘perception of observation can be enough.’

Objective privacy harm involves ‘the forced or unanticipated use of information about a person against that person.’  This harm occurs when personal information is used adversely against that person, such as when ‘the government leverages data mining of sensitive personal information to block a citizen from air travel, or a neighbour forms a negative judgment from gossip.’  Another example is when personal information is used to commit identity theft or murder.  In order to constitute harm, use of the personal information must be unanticipated or coerced, and again actual observation does not need to occur for information to be used against a victim.

Calo’s aim in the essay is quite simple and is espoused in his comment that privacy harm is a ‘crucial but under-theorized aspect of an important issue.’  In the essay he aims to discover both the ‘mechanism and scope' of privacy harm in order to attain conceptual clarity.  More than that however, he wishes to discover the boundaries within which privacy harm occurs, which will be useful for ‘scholars, courts and regulators attempting to vindicate and protect privacy and other values.’  The approach which Calo has adopted ‘uncouples’ privacy harm from privacy violation thus creating a limiting principle in order to distinguish the former from other values, as well as create a rule of recognition which helps to identify privacy harm when no other violation is present.

What can be said about The Boundaries of Privacy Harm is apropos when compared to what Calo says in his essay about Daniel Solove, a leading privacy scholar, who rejects that privacy should be reduced to any one or more concepts.  Although Calo ultimately believes that without a ‘limiting principle or rule of recognition we give up the ability to deny that certain harms have anything to do with privacy... which in turn can be useful in protecting privacy,’ he notes that ‘there is no denying the value of the complete, nuanced, and interconnected picture of privacy that Solove’s taxonomy presents.’  In the same way Calo recognizes that his referenced author ‘delivers what he promises’ so too should we recognize that Calo delivers on his aim to provide an understanding of the mechanics and sizing of privacy harm.

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On the morning of July 1^st a common thread rippled throughout my email inbox; the topic related to movie streaming sites, or perhaps better said, a lack thereof.  After a few key strokes I learned that this streaming website deficit was the result of ‘the largest takedown of illegal movie and television websites in a single action by the federal government,’ according to Kevin Suh, executive for the Motion Picture Association of America (MPAA).  Suh, I was learning, was speaking on the joint federal operation aimed to combat movie piracy.

‘’ launched early this month as authorities targeted nine web domains which have allegedly offered users first run movies without consent of the copyright holders.  The seized domains are; tvshack.net, movies-links.tv, filespump.com, now-movies.com, planetmoviez.com, thepiratecity.org, zml.com, and two under the ninjavideo umbrella.  In addition, authorities seized assets from fifteen bank, PayPal, investment, and advertising e-commerce accounts.  Along with these seizures, four residential search warrants were also executed.

The two domains under the popular ninjavideo streaming service (ninjavideo.net and ninjathis.net) were both subjected to a lengthy operation in advance of the seizures.  What the operation revealed was that these sorts of sites attracted a combined 6.7 million users monthly, and served to allow users to watch movies, some of which were in theatres only days before offered on the sites.  While tvshack.net offered ‘Toy Story 3,’ other sites offered links to ‘Jonah Hex,’ ‘Knight and Day,’ and ‘Prince of Persia: The Sands of Time,’ among others.

An attempt to visit the sites now reveals them to either not resolve, or display a announcing that law enforcement agencies have shut the sites down due to trafficking in illegal downloads.  The operation comes as a joint effort between numerous bodies, including the US Immigration and Customs Enforcement (ICE), whose Homeland Security Investigations (HSI) agents seized the 15 bank accounts and other assets, as well as the US Attorney's Office for the Southern District of New 91ÑÇÉ« (SDNY), who seized a majority of the domains.  ICE Assistant Secretary John Morton, who was joined in a by ranking members of major movie studios, entertainment unions and the MPAA, stated that the theft of this kind of intellectual property is a crime that the US government has made a priority to combat.

Morton further stated that the ‘ICE and our partners at the National Intellectual Property Rights Coordination Centre are targeting pirate web sites run by people who have no respect for creativity and innovation.’  He continued, ‘we are dedicated to protecting the jobs, the income and the tax revenue that disappears when organized criminals traffic in stolen movies for their own profit.’

The seizures come on the heel of the Obama administration's to combat intellectual property theft, which was announced by Vice President Joe Biden this past June.  In his speech, Biden stated that the US was going to ‘lead by example’ in cracking down on sites which offer the public the ability to share and download copyrighted materials.  In addition to declaring war on domestic pirate sites, the VP noted that foreign governments would be urged to do the same in their countries.  ‘Piracy hurts, it hurts our economy,’ Biden stated, arguing that a global crackdown was needed to save businesses from going bankrupt.  And while the recent seizure of the domains serves to support the Joint Strategic Plan, it is likely that the focus will extend past pirate websites.  According to the VP, other digital goods and counterfeit products will be targeted as they are seen by the US government as a threat to public health and national security.

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A short while ago, while sitting in the living room at the home of my nurse friend, I noticed a brand new smart phone sitting on her couch side table.  I picked it up and began to play with it, only to have it furiously snatched from my hands not thirty seconds later.  I soon found out that the smart phone was given to my friend by the hospital at which she works.  I then found out moments later that the phone was snatched from my (not to be trusted) hands in order to prevent me, even inadvertently, from changing any details set by the hospital.  The conversation quickly turned to a quasi-legal discussion, as we made our way to her patio, pondering over who actually owns the device and whether her private information saved in the phone is protected.  At the same time, little did we know, these questions were being pondered by the United States Supreme Court.

On June 17, 2010, the Supreme Court ruled on the issue of privacy of employee text messages sent using employer issued equipment.  In the unanimous decision, on , the justices ruled that the search of a SWAT team officer’s personal messages on his government owned device did not violate his constitutional rights.  The case comes after the City of Ontario, in its role as employer, provided its police officers with pagers that had texting capabilities.  In order to determine whether additional charges accrued by the text service, above the amounts allotted to the officers, was due to personal use, the employer decided to audit.  The audit revealed that Police Sergeant Jeff Quon had sent personal messages, a number of which were sexually explicit in nature.  Quon then sued the City on the grounds that his privacy was violated under the Fourth Amendment of the US Constitution.

The Federal District Court dismissed the suit as the jury found that the audit by the City was to establish usage and not misconduct.  On appeal, the Ninth Circuit Court reversed the original decision stating that the City did in fact violate the employee’s constitutional privacy rights by reading his text messages; and all without sufficient notice or policy articulation that the text messages could be seen by others.  This decision was unanimously overturned by the Supreme Court.  While the Court did not state any broad rules about the privacy of workplace electronic communications it did state that governments are able to check their devices which send communications to ensure that employees are following the rules.  The Court also rejected the argument that the review of the messages violated the Fourth Amendment.

And so, what the decision means for US employers differs, in that the narrow ruling involves a public and not private employer.  As federal privacy rights, such as seen in the US Constitution’s Fourth Amendment, applies to only public employers, this case has little impact on most private employers.  However, as some commentators have noted, California courts have applied state Constitutional rights to private employers before.  In such a situation the most thorough mode of operation might be to clearly alert employees that they may have no expectation of privacy in employer owned equipment.  This sentiment was noted by Justice Kennedy stating that Quon’s experience as a police officer should have prepared him for the fact that his communications might come under legal scrutiny.

And so, what the decision means for employees is equally as vague at the moment.  While the decision indicates the likelihood of similar privacy/technology issues that will arise in the future, the majority opinion of the ruling attempts to avoid addressing the issue, and rather, establishes a basis for future privacy cases.  At the moment then, the impact of the decision on employees may simply be a cautionary tale to use your own cell phone when texting information you do not want your employer to read.  And while I had no intention to send explicit sext messages to my wife, my girlfriend, or any other colleagues, as Quon had allegedly done, perhaps my friend's quick snatching of her employer’s device was as smart as the phone itself.

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The leviathan known as the project may have far reaching consequences for international copyright law, as well as, the potential violation of antitrust law and the terms of international treaties, as a recent Globe and Mail article recently reported.  In light of those warnings, to state that the project (which involves the digitization of tens of millions of books) may cause a ripple effect is likely to be an understatement.

Last month the University of Toronto’s Centre for Innovation Law and Policy held a one day conference to discuss the cross border effects of the book scanning project.  The aim of the conference, titled , was to discuss the proposed settlement reached by Google and the plaintiffs in the lawsuit filed against the project.  The conference further aimed to shift focus away from US law and policy, which has dominated the debate, and on to the implications of the settlement for Canadian authors and readers.

The controversial proposed settlement would establish how writers and publishers are compensated for the use of works, and the ways in which Google will manage and charge for the use of their digital library.  The settlement includes works from Canada, Britain, Australia and the United States, up to 2009, unless the authors have chosen to opt out.  In the Canadian context, readers will have limited access to the digital library.  As copyright is territorial, those foreign works which have US copyright can be scanned in the project.  Alongside restricted access to the digital library there are other ripple effects which Canadians may be subject to in the wake of the settlement.

One potential ripple effect is found in the argument that class action lawsuits are not the way in which the future of the world’s copyright rules should be decided.  Imagine the issue of orphaned works.  As Jonathan Band mentioned at the conference, there are about 21 million books within the project for which it is uncertain who holds the copyright.  In such cases the project is able to scan, make available snippets and twenty percent previews, and sell the books, all without the approval of the rights holder.  The US Department of Justice has argued that this is a breach of copyright, stating the project runs the risk of turning copyright law on its head by altering the specific ‘delineation of exclusive rights to authors.’  One solution to this dispute, from the project perspective, begins with placing proceeds from the sales of the orphaned works into a trust which will then either go to rights holders should they be found or to charities at a later date.  At that time the rights holders may decide what they wish to do with their copyright, such as, opt out of the project.

The idea of orphaned works also speaks to the issue of antitrust according to conference speaker James Grimmelmann.  The settlement deals with orphaned works through an opt out system.  In other words, the settlement presumes consent from those authors who cannot be found and thus cannot opt out of the project.  Moreover, the settlement is non-exclusive in that whoever can find rights holders and get permission can offer a service similar to the project.  However, in practice, the rights holders cannot be tracked down, which makes the project exclusive in a way.  Grimmelmann states that the settlement creates a ‘de facto exclusive resource through the use of the court’s judgement power.’  In response, proponents of the project may argue that the settlement provides an incentive for rights holders to come forward, claim their books, opt out, and open the market for competitors.

The puts Canada and other countries involved in an unusual position, questioning whether the ripple effects discussed above have the potential to tsunami.  And yet, discussion of the potential effects should not ignore the potential benefits.  Lateef Mtima, a speaker at the conference, points out that amongst other benefits access to a digital library of this scope may support the purpose of copyright to incentivize the production of works and allow for a wide distribution that exposes others to works which can fuel their own creations.

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Lord Justice Jacob, sitting for the England and Wales Court of Appeal, recently stated in his ruling that he was obligated to award L’Oreal (the cosmetics giant behind ‘Because You’re Worth It!’) victory in the high profile trademark infringement case against the perfume producer, Bellure.  The decision, however, does not come lightly.

The case was initiated in 2006 when L’Oreal sued Bellure for selling perfume which was packaged in bottles similar to that of its own trademarked product.  In an early instance of this case, the High Court ruled in favour of L’Oreal.  On appeal, however, the court referred a number of questions to the European Court of Justice for review.

The issue the Court of Appeal was asked to consider was whether the list of trademarked L’Oreal perfumes, which Bellure provided to its retailers to show customers which Bellure perfume was similar to which L'Oreal perfume, constituted infringement.  Following The European Court of Justice, it was held that Bellure was breaking the laws set out by the European Union on misleading and comparative advertising, despite whether potential customers were confused by the similarities or not and despite whether L’Oreal had actually suffered any monetary loss.

Lord Justice Jacob, as mentioned above, did not agree with the ECJ, but was obligated to uphold its ruling.  He added to the opinion that his ‘own strong predilection, free from the opinion of the ECJ, would be to hold that trade mark law did not prevent traders from making honest statements about their products where those products are themselves lawful.’

And so, in the wake of the upheld decision we are left pondering whether trademark law actually prevents us from telling the truth.  As Lord Justice Jacob asks, ‘even though their perfumes are lawful and do smell like the corresponding famous brands, does trade mark law nonetheless muzzle the defendants so that they cannot say so?’

One reason Lord Justice Jacob posed this question was due to the fact that the decision harms those who lack the means to pay for the more expensive and recognizable product.  ‘The ECJ decision in this case means that poor consumers are the losers.’  He continued, ‘only the poor would dream of buying [Bellure] products.  The real thing is beyond their wildest dreams.  Yet they are denied their right to receive information which would give them a little bit of pleasure; the ability to buy a product for a euro or so which they know smells like a famous perfume.’

Another reason he questioned the ruling was due to the anti-competitive nature and its potential to hinder an ability to compete honestly.  ‘If a trader cannot (when it is truly the case) say: ‘my goods are the same as Brand X (a famous registered mark) but half the price,’ I think there is a real danger that important areas of trade will not be open to proper competition.’

What remains is for the court to determine damages, and yet, what will linger is the clear expression found in the case in taking unfair advantage of another’s trademark.  Not only does this clear expression now allow for trademark holders to have stronger powers to defend against 'free riding' competitors, but moreover, this ruling may change the way that lawful copy cat products are promoted in their respective markets.

The case is available at the following websites; and

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In their recent article, Copyright as Tort, authors Avihay Dorfman and Assaf Jacob argue towards a more comprehensive tort based analysis for copyright law than has been offered so far.  The authors argue very matter of factly ‘that copyright law is tort law, too’ and in the end believe that copyright protection should ultimately include a selection among differing regimes of tort liability.

In the beginning the authors consider the relationship between tangible property and torts, establishing that torts are just as important to property as rights.  In acknowledging, say, a duty not to trespass, or a duty against carelessly damaging others' property, these tort duties render the abstract idea of non interference more practical and concretize the idea of ownership.

Having established the importance of tort law in this discussion the authors outline the types of tort regimes, noting that the trespass or strict liability regime (liability is built upon intentional conduct and fault is inessential) has been the most consistently applied in protecting property rights.  This reasoning, argue the authors, has been extended to intellectual property in general and copyright more specifically.  The courts have stated that those who commit copyright infringement engage in tort doing of the strict liability sort, and ‘any infringer, whether innocent or intentional, is liable.’  In other words, the intention to infringe is not essential in copyright law, and so, the defence of an absence of knowledge or intention to infringe has been denied; although concern of the harshness of the strict liability principle has at least been identified.

While the courts have identified the harshness of the strict liability regime the authors contend that ‘copyright law should not be confined to strict liability, but may also incorporate... absolute and/or negligence liability regime[s].’  The authors make this contention from a ‘market’ perspective, noting that so long as a market exists, the law will ‘null all incentives of bypassing it.’  In other words, when the market is real and inexpensive, it is the first best option, and will reflect the true value of transactions that occur.  However, scenarios exist in which the market is not a real option; perhaps from being too expensive, or internal market failure, or imposed externalities.  In such scenarios, use of the market may ‘lead to suboptimal level of use of works by society,’ or may impose restrictions that are too severe on an individual’s ability and freedom to pursue her affairs.  The authors write that this is all too common in many areas of copyright law and thus suggest an alternative regime of ‘accidental liability.’

The accident regime, which consists of absolute and negligence liability, assumes that the market is not a viable option, for whatever reasons, while also aiming to promote productive activities.  Imagine in this method the infliction of damage to others property - negligence law would require action that was taken in a reasonable manner, while absolute law would require the entire risk of the materialized accident regardless of reasonable care.  In order to decide which approach to accident law should be pursued in certain instances there are several considerations, including the demands for justice.

An interesting element of the authors contention is that in copyright law, the accident regime would be relatively easy to navigate as ‘the paradigm of conflicting uses is different than that of real property.’  In this is the idea that accidental use of someone’s work does not conflict with other uses and so the actual copyright owner has not been hindered from use.  Here we can imagine the accidental incorporation of a song into a film; the song will still be protected, others will not be able to use the song, and the accidental infringer will not be able to use the song for a different purpose.  According to the authors' approach then, the accidental use could be permitted upon absolute liability (which would result from the paying of damages) or negligence liability (which would result from proving the song was used reasonably).

The authors believe that the questions which surround the selection of desired protection for creative works should be pursued from a tort law perspective, largely because, and as they have attempted to show, the normative structure of copyright law is also that of tort law.

Jacob, Assaf and Dorfman, Avihay, Copyright as Tort (May, 03 2010), Theoretical Inquiries in Law, 2010, is available .

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On April 26 of this year the European Copyright Code, which is the product of an academic endeavour between notable copyright scholars across the European Union, was introduced via the Wittem Project Group website ().  The Group is of the mind that the drafted Code may serve as a representation for the harmonization and unification of copyright law in the European realm.  The draft takes the form of a legislative instrument while concentrating on the key elements of codifying copyright, including: i) the subject matter of copyright, ii) authorship and ownership, iii) moral rights, iv) economic rights, and v) limitations.

The aim is ‘to promote transparency and consistency in European copyright law’ which is argued to be lacking in this realm and which ‘the voice of academia’ can help to remedy although ‘all too often remain[ing] unheard.’  The purpose and method are clearly and explicitly outlined in the Code’s introduction, and the body of the work reads equally as impressive; the provisions themselves read like reminders of the fundamental tenets of copyright.  And yet, while reading we cannot help but wonder whether these provisions have the ability to meet the lofty task of harmonizing copyright law in this realm.

In order to determine its ability to achieve such a task we can turn to P. Bernt Hugenholtz's coauthored book, from the Information Law Series, titled Harmonizing European Copyright Law: The Challenges of Better Lawmaking. The authors note that the task is a difficult one which has not always been handled with the greatest care and thus suggest the following areas in which to improve: i) identifying the issues, ii) formulating the correct policy for dealing with them, and iii) articulating that policy in the manner best able to facilitate its consistent implementation.  Within these areas, existing copyright law is described according to the principal elements that copyright law on the national level shares with other legal rights, and the focus rests on protected subject matter, beneficiaries, extent of exclusive rights, terms of protection, and limitations.

An important principal issue analyzed here is that of harmonization from the viewpoint of member states of European copyright law and their responsibilities under differing international instruments, such as the Berne Convention, Rome Convention, TRIPs and WIPO agreements.  Whether the Code has the ability to comprehensively harmonize European copyright law is beyond the scope of this introductory passage.  However, at a brief glance, the Code does take into consideration a number of the suggestions proposed by Hugenholtz and his coauthors.  A notable of which is accounting for the existing substantive international norms such as the Berne Convention and the TRIPs agreement, as well as, the commitments made by individual member states of the EU.  Those interested in analyzing the ability of the European Copyright Code to harmonize European copyright law should consider doing so in relation to the suggestions outlined by Hugenholtz and his coauthors.

Harmonizing European Copyright Law: The Challenges of Better Lawmaking by P. Bernt Hugenholtz is available online ()

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‘That is why there is no hope for the vagrant as he stands before the magistrate.  Even if, through his stammerings, he should utter a cry to pierce the soul, neither the magistrate nor the public will hear it.  His cry is mute.’  In this passage from her essay, Human Personality, Simone Weil writes that affliction, when seen vaguely from a distance, is often confused with simple suffering, which has the effect of inspiring in the generous feelings of pity.  However, up close, the reveal of affliction produces shock of horror, the likes of which causes people to shiver and recoil.  To truly listen to someone in such a state is to put oneself in that desolate place, which is an act that is ‘more difficult than suicide for a happy child.’  This is why the afflicted are not heard and why the vagrant stands muted in front of the magistrate who keeps an elegant flow of witticisms.

Simone Weil was passionately concerned with justice, and believed the meaning of justice has been lost and replaced by a vacuous notion of rights, which ‘makes us forget the value of life.’  Justice, she writes, consists in seeing that no harm is done, and produces the cry ‘why am I being hurt?’  This is an infallible cry even though it is often unheard.  The cry we hear more often refers to rights and asks ‘why does she have more than I?’  Weil believed that we must learn to distinguish between the two cries, and address the first cry with the indispensable spirit of justice.

The goal of this study is to explore whether Simone Weil’s notion that a focus on the concept of rights impedes our understanding of issues of justice, and specifically, in the intellectual property realm.  In order to do so, this study will utilize the Weil essay, Human Personality, as a framework within which to examine the concept of justice in light of intellectual property regimes.  Although she never discussed intellectual property explicitly, she did discuss the idea of tangible property, writing in opposition to the idea of a natural right.  In terms of justice, she argued that we often confuse this concept with rights when the latter speaks only the notion of property.  This is so because the language of rights is deeply rooted in property, and although it may be valid in its own region, different language is needed in order to sustain inspiration when addressing true injustice.

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The Romance of the Public Domain, as Anupam Chander and Madhavi Sunder see it, is the presumption that the public domain is a landscape where everyone has equal access to reap the riches found therein.  This ‘romance of the commons’ is the belief that because resources are open to all by the law that the resources will be equally exploited by all.  However, ‘scholars obscure the distributional consequences of the commons,’ because in practice, differing circumstances render some able to exploit the commons better than others.  The authors work with the definition that the public domain involves ‘resources for which legal rights to access and use for free (or for nominal sums) are held broadly,’ and moreover, the term is used interchangeably with the term ‘commons’ based on the admittedly spacious definition.

The authors write in response to the apparent divide between intellectual property and the public domain; between privatization and the second ‘enclosure movement’ which seeks to protect a commons of information against private property.  In fact, the authors write that ‘intellectual property and the public domain are paired together in a perpetual dance,’ in which ‘innovation captured as private property depends upon the existence of a rich public domain.’  Here they reference Carol Rose who reminds us of the first ‘enclosure movement’ in which open roadways allowed for free unfettered trade and enlarging the potential markets that private property can exploit.  The authors are certainly not anticommons, but they do believe that the focus of public domain literature on the easy appropriation, and the free speech and access to, information by ‘commoners’ fails to address disparities in the ability to exercise these apparent freedoms.

Intellectual property and the public domain, the authors argue, are made for each other; and the public domain often functions in service of privatization.  The authors wish to show that as the transportation system facilitated the first ‘enclosure movement,’ the commons preserved by Trade Related Intellectual Property Rights (TRIPS) facilitates the current ‘enclosure movement.’  This is so, in that, TRIPS require all member states to agree to both standards of protection for intellectual property rights and the allowance of foreign access and ownership, through the treatment of foreigners as equal to the citizens of the state; a combination which severely imbalances the transfer of ownership of intellectual products from the developing to the developed world.  TRIPS in effect have upset the balance of the global public domain.

Before TRIPS both the East and West benefited from each others' invention and expression; the West benefited in the East’s unprotected knowledge (example of the neem tree), and the East benefited in the West’s weak intellectual property laws in protecting property across borders (example of computer software and films).  TRIPS changed this with strict mandates for minimum standards for intellectual property; which leaves the developing world under threat of loss of trade privileges for the use of firmly protected intellectual products, making them 'fair followers' instead of 'free riders.'  The developed world however is left free to exploit the resources and efforts of the developing world where the global commons of intellectual products remains intact.  In essence, the public domain in genetic resources and traditional knowledge remains post-TRIPS and is bound to be exploited asymmetrically.  In response the authors offer four equality minded strategies to reorder exploitation and address the inegalitarian commons;

Inalienable Rules - suggest defeating attempts to propertize in order to avoid unequal exploitation of a commons.  An example is Traditional Knowledge Databases (TKDs) through which countries categorize their innovation heritage, and offer the collection to patent offices worldwide, in order to improve the body of information on prior art, and thereby prevent propertization.

Property Rules - suggest declaring genetic resources and traditional knowledge the property of defined communities.  An example is through sui generis genetic resource and traditional knowledge statutes, as seen with Costa Rica in 1991.  In this case the government created a non profit organization to work with the pharmaceutical giant Merck which agreed on the right to sampling while paying the non profit a certain sum plus royalties.

Liability Rules - suggest permitting outsiders to utilize a communities genetic resources and traditional knowledge but only in exchange for objectively determined fees.  A middle ground is found in that local communities would be paid for resources, contrary to the current global commons approach, but those communities could not withhold access to the resource, contrary to the property approach.

Affirmative Support Programs - suggest finding ways to supply the disempowered with the capital and skill to be able to exploit on an equal playing field with the empowered.  An equality minded commons will be possible only when we address the developing nations underlying unequal capacity to realize opportunities in the commons.  The authors argue that this is done through international efforts, such as through the World Bank and European Union, to fund programs that build capacity in science and technology, and notably in agriculture.

Alluded to in this final strategy is the idea that the issues of the inequitable commons may not even be the sort which can be remedied solely in the language of economic bargaining, as the above methods typically propose.  The authors believe that this is a suggestion worthy of further exploration, leaving the thought to be pondered in the close of the article.  The idea that the issues being examined may be deeper seeded are in the statement that 'poverty affects the ability of individuals to exploit property, intellectual property, and every other legal entitlement.  The unequal tilt in the public domains exploitation follows naturally from the dynamics of production and commerce in a world characterized by deep inequality.’  This concept has been espoused by other authors, such as Michael H Davis in his article Some Realism about Indigenism, who argues that wealth and poverty need to be examined more closely as they are central and perhaps even overriding in the debate.  I leave then with the thought to ponder by Davis that ‘the poverty of the third world and indigenism is certainly due to many factors.  But TRIPS and IP generally play a role in that impoverishment by ensuring that for every step forward out of poverty, economic tribute must be paid... [and] this is a futile trip up a ladder that is constantly being lowered.’

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