On September 23, 2010, the brought together one anthropologist, one political scientist and one socio-legal scholar to discuss the potential for ‘protecting’ the knowledge and heritage of indigenous people under international law and policy. Although this sounds like an opening to a great joke guaranteed to wow at academic cocktail parties, the three panelists, (University of Alberta), (Laurier University) and (91��ɫ) instead treated the audience to an edifying discussion on how indigenous rights, intellectual property and human rights are intersecting and changing the dimensions of international law and policy in the process.

Each panelist took as their starting assumption the idea that culture has become an object of new economic and policy investment, as well as the rhetorical basis for new forms of social struggle and legal claims making.  As a result, new spaces of both possibility and peril are being opened in the international legal arena as new subject positions are formed and new ideas about knowledge, property and rights are being debated.

Catherine Bell discussed the Echo Mask episode and the of the Nuxalk Nation to repatriate an important piece of their heritage. This frustrating case is emblematic of some of the challenges now facing lawyers and policy makers as they attempt to reconcile modern categories of ownership and tangible and intangible property with more complex notions of community ownership and the cultural right to access and control one’s own heritage.

Bringing these issues together in a very different way was political scientist Patricia Goff. Interested in questions of global governance, Goff described the World Intellectual Property Organization as a “quiet giant” in the international policy system.  Recently, WIPO has begun to reach out to “new beneficiaries” in an attempt to find new means to recognize, maintain and protect (TCEs) and to ensure the global intellectual property system retains legitimacy in our culturally pluralistic society.  However, according to Goff, the work of WIPO remains problematic since the very structure of the global economy, and WIPO’s designated role within it, prevents the organization from fully recognizing the link between traditional knowledge, the cultural rights of communities and the importance of recognition.

Finally, IP Osgoode member Rosemary Coombe reminded us that neoliberalism is not monolithic and it does have limits. Many of these limits become opportunities for indigenous groups and communities. As the rigid line between old categories such as ‘tradition’, ‘heritage’, ‘culture’ and ‘economy’ have become blurred, new forms of claim-making in international legal arenas has become possible. New opportunities have also been provided to those seeking recognition through the institutions that at one time excluded them.

By providing a new culturalist rhetoric that grounds political and proprietary claims, neoliberalism has created spaces where intellectual property continually collides with issues of cultural rights, indigenous rights to self-determination and rights to recognition. Thus, questions such as the one given notoriety by Michael Brown—— are turning out to be less about fixed doctrinal legal rules and classic property relations, and more about creating new spaces for political, legal and cultural negotiation.

The post Intersections: Negotiating the Spaces of Intellectual Property Under the Conditions of Neoliberalism 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.

The post Old Issues but New Tricks: China uses the UNESCO Cultural Diversity Convention in a WTO dispute appeared first on IPOsgoode.

"Cultural policies, in brief, are those that regulate what has been called the marketplace of ideas"

-- Paul DiMaggio

It may seem questionable to preface a post on intellectual property with a quotation that addresses cultural policy rather than property. However, what I would like to suggest is that one of the problems in current debates over intellectual property has been precisely too much talk about property and not enough talk about policy. 

Some weeks ago, Graham Dutfield encouraged the readers of this blog to consider a more interdisciplinary approach to the questions and debates surrounding intellectual property (), and in the past few years slowly but surely an interdisciplinary approach to intellectual property has indeed been developing. Anthropologists, communications scholars, political economists and even geographers are now considering questions of intellectual property and its relationship to culture, technology, the economy and the environment. Yet despite this growing interdisciplinarity, property theory and questions of ownership continue to dominate intellectual property discussions; the focus continues to remain on who owns what, who stole what and who controls what.

Given the long and complicated historical relationship that the "marketplace of ideas" has with the conception of individual authorship, it appears only natural to extend questions of property and ownership into our current intellectual property debates. Under the conditions of neoliberalism this ‘natural' relationship between ownership and intellectual property has only increased. Neoliberalism has increased the value of symbolic goods (thus increasing the profit to be made in the "marketplace of ideas"), and cultural goods are now routinely articulated as commodities making property ownership the appropriate frame for any intellectual property discussion. 

Yet it has always been the case, both historically and in the present moment, that the "marketplace of ideas" is, in fact, a place where culture and cultural practices are produced and lived. How these cultural practices are supported, fostered and protected is a not a mere matter of property, but an issue of cultural policy. Intellectual property should be considered not only as a branch of trade and economic policy, but as an important branch of cultural policy that has the ability to "influence barriers to the entry and chances of survival of ideas, values, styles and genres." (DiMaggio) 

Rethinking intellectual property as an issue of cultural policy rather than clinging to debates over property and ownership can give new life to intellectual property rights. For example, community coffee cooperatives in Columbia have begun to protect traditional production practices and provide economic stability for their communities by using geographical indications (one form of intellectual property) to capitalize on popular North American niche markets whose customers are willing to pay a higher price for coffee that promotes community development and socially responsible labour practices. Arguably, this is a creative use of geographical indications that works to support the social and cultural practices of a community. It helps provide a sustainable livelihood, it promotes and protects traditional coffee growing practices in the region, and it provides an opportunity for communities to govern their own economic and cultural practices. In other words, it's good cultural policy.

Intellectual property was not always so detached from progressive cultural policy. At one time intellectual property rights, such as copyright, were committed to balancing the rights of artists, owners, and users of culture rather than focused on sorting out ownership and property claims.  This can once again be the case for our larger intellectual property system, but the frame of the debate needs to be altered to attend to the social functions of culture and cultural goods-not just their ownership and property value.

To read more on the importance of cultural policy and it's relationship to intellectual property, see Paul DiMaggio's article "Cultural Policy Studies: What They are and Why We Need Them." in Journal of Arts Management and Law, 13:1 (1983: Spring) and Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual property and How it Threatens Creativity. (New 91��ɫ: New 91��ɫ Press, 2001).  If you are interested in considering other ways that intellectual property can act as a vehicle for sustaining social and cultural livelihoods please see my co-authored piece with Rosemary J. Coombe, "Intellectual Property, Cultural Heritage and Rights-Based Development: Geographical Indications as Vehicles for Sustainable Livelihoods" forthcoming in, Law in Transition: Human Rights, Development and Restorative Justice, Peer Zumbansen & Ruth Buchanan, eds., Hart Publishing.

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