March 03, 2004

The Algonquian morpheme auction

Well-intentioned people who want to extend the legal concept of property rights to traditional culture, whether linguistic or otherwise, should consider the possibility of unintended consequences along the lines that Bill Poser and the Watley Review suggest.

I wrote about this in a presentation that I gave at Exploration 2000. I've reproduced the relevant section below -- not a lot (that I know of) has changed in the intervening three years. [Sorry about the stale links -- that's the web for you...]

UNESCO/WIPO proposal for sui generis folklore rights

The World Intellectual Property Organization (WIPO) has proposed a number of new forms of intellectual property, to cover cases that are omitted or given what is felt to be inadequate coverage under existing laws.

Two of these are especially relevant to language documentation. One proposal suggests special protection for databases, and another proposal suggests special protection for expressions of folklore.

The database proposal has been very severely criticized in the U.S., by individuals and organizations from many political and cultural viewpoints. The folklore proposal has been largely ignored, though many of the same objections apply.

Speaking for myself, I am sympathetic to the criticisms of the proposed sui generis database rights, and feel the same way about the proposed folklore rights. It is certainly true that standard copyright does not protect folklore, because it is not an individual "work of authorship", is often not "fixed in a tangible medium of expression", and so on. However, it is quite possible that the proposed cure would be worse than the condition it aims to help.

In evaluating things like the WIPO database and folklore protection proposals, one can see them in two ways: as attempts to protect people's work and people's rights -- a sort of human rights inititiative -- or alternatively, as an attempt to convert common ground into commercially exploitable property -- a sort of modern version of the enclosure movement. To the extent that the second view is correct -- and there will be many capable lawyers and deal-makers working hard to use any new laws in that way -- the results may be the opposite of what some supporters of these initiatives have in mind.

It is worth reading the proposals carefully, and thinking about what consequences they might have in actual practice.

Could Disney or Sony buy the exclusive rights to a body of folklore, in perpetuity? Yes, if sui generis folklore protection is a form of property, then it can be bought and sold; and in any case, licensing is to be at the sole discretion of "the competent authorities", who are free to negotiate exclusive arrangements. Could dissident works be suppressed or destroyed on the grounds that they are an "illicit exploitation" because they are "outside the traditional or customary context of folklore" and "without authorization by a competent authority"? Absolutely. Note that the WIPO model provisions specify that "an utilization, even by members of the community where the expression has been developed and maintained, requires authorization if it is made outside such a context and with gainful intent." (say, at a political fund-raiser...) In fact, a community member would be subject to "penal sanctions" if the relevant governmental minister determines that his or her "expressions of folklore" are "distorted in any direct or indirect manner prejudicial to the cultural interests of the community concerned." In other words, the minister of culture could put someone in jail for composing an irreverent folksong.

Reading the WIPO model provisions, my personal reaction is to see helpful-sounding principles with a staggering potential for tyranny in practice.

There are also some difficult conceptual issues. The fact that ethnic groups do not exactly coincide with national boundaries will make it hard to figure out which government would get to authorize activities and collect the tariffs for which body of folklore. For instance, would a Chicago polka band need get clearance from and pay royalties to the Polish government?. And there are also questions about how far back in history the ownership of such cultural property should go. According to this article, three Maori tribes are threatening suit against Lego for producing a game that includes characters with Polynesian names and story lines allegedly similar to traditional stories from Easter Island. Since the Easter Island culture is related to that of the New Zealand Maori roughly as Polish culture is to Russian, this case is roughly comparable to one in which a Russian nationalist organization sued the estate of Lawrence Welk over polka royalties. To sort all this out -- if it really is to be sorted out -- will involve a massive transfer of resources to the world's lawyers.

See Report on Australian Indigenous Cultural and Intellectual Property Rights for a more sympathetic perspective on the use of the law of property in this area.

The Hague Conference on Private International Law's Proposed Convention

It's worth noting in this connection that The Hague Conference on Private International Law's proposed Convention on Jurisdiction and Foreign Judgments in Civil and Commercial Matters would interact with local sui generis intellectual property rights in potentially pernicious ways. The cited Convention (see this link for more details) provides a set of rules about jurisdiction for cross-border litigation, covering nearly all civil and commercial litigation. Within this framework, each member country agrees to enforce the judgments and injunctive orders of courts in other member countries, without any requirements to harmonize the laws involved.

49 countries have signed, including the U.S., Canada, France, Germany, China, Croatia, and Egypt. The fact that the Hague Convention covers sui generis intellectual property regimes creates many opportunities for legal mischief. As James Love writes in a recent article on the topic:

For example, if Cuba enacted a sui generis regime and declared that the Cuban "beat" was intellectual property, it could get a judgment in Cuba against US record companies that were engaged in cultural "piracy," and demand for example, 5 percent of the revenues from global sales of music that use the Cuban beat. Other countries could do the same thing. These judgments would be enforceable globally, under the Convention. So too would bio-piracy judgments against US and European biotechnology and pharmaceutical companies, for "stealing" traditional knowledge, or exploiting without benefit sharing a variety of biological and genetic resources. The motion picture industry could be hit with new sui generis IPR liabilities by countries that give rights in history. Countries like China, which is a member of the Hague Conference, could use this to limit who could actually make films about China. The Hague convention would instantly create a legal framework to legitimatize all of these new IPR claims, and it would not even matter if the "infringing" party did business in the country at all, since the judgments would be enforceable globally, in any Hague member country, and the claims could be based upon shares to global (rather than local) revenues of products.

Love points out that the direction of legal action will not by any means only be from the less developed world against the U.S., Europe and Japan. In fact, developed countries (and the multinational companies based there) have more money and lawyers to devote to the process, and also better access to the courts where the outcomes will be decided, so that their sui generis extensions of intellectual property are likely to turn out to be more valuable:

Some would consider this [international enforcement of sui generis IPR] a positive feature of the Convention, because it would give the developing countries opportunities to "tax" the rich countries, under new and controversial IPR regimes. But of course, the rich countries could and will also enforce their own regimes, including, for example, the European Union sui generis regime on database protection. The US and EU would probably modify their sui generis regimes on pharmaceutical registration data to make it illegal for developing countries to rely upon those data for registration of generic products in poor countries, an approach already included in the new US-Jordan "Free Trade" agreement. And in general, would one would observe is a new dynamic of everyone trying to create their own "rights" in everything, until the public domain shrinks if not disappears altogether.

The ultimate outcome of all of this is uncertain, and depends on larger and more important issues than the IPR status of language documentation materials. The uncertainties should not prevent us from going forward with language document projects. It seems unlikely that sui generis property rights will be successfully attached to words, inflections, syntactic structures, or the forms of everyday discourse. Whatever the outcome, linguists' best protection against such problems is to be solidly based in the speech communities in question, which is a good idea in any event.

Posted by Mark Liberman at March 3, 2004 02:06 PM