Can a fashion retailer take a photograph of a celebrity, print it on a t-shirt and sell it without the celebrity’s approval? Yes, but sometimes no – not when the retailer has previously gone out of its way to draw a connection between its products and that celebrity, in this case Robyn Fenty, aka Rihanna. How did this begin?
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By Keri Johnston and Marion Heathcote
Intellectual property rights (IPRs) and the regimes of protection and enforcement surrounding them have often been the subject of debate, a debate fuelled in the past year by the increased emphasis on free-trade negotiations and multi-lateral treaties including the now-rejected Anti-Counterfeiting Trade Agreement (ACTA) and its Goliath cousin, the Trans-Pacific Partnership Agreement (TPPA). The significant media coverage afforded to these treaties, however, risks thrusting certain perspectives of IPR protection and enforcement into the spotlight, while eclipsing alternative, but equally crucial voices that are perhaps in greater need of legitimate dialogue to safeguard their own collection of intangible rights. Caught in the vortex of inadequate recognition and ineffective protection, are the communal intellectual property rights of indigenous communities, centred on traditional knowledge (TK), traditional cultural expressions (TCE), expressions of folklore (EoF), and genetic resources (GR).
The fundamental incompatibility between current intellectual property rights regimes and the rights of indigenous peoples stems largely from the lack of understanding of the driving forces that have led to the development of traditional knowledge, traditional cultural expressions, expressions of folklore, and genetic resources – that of the protection of whole indigenous cultures through the preservation of the traditional knowledge acquired by these communities as a whole.
The issues are complex. Professor James Anaya’s 2014 keynote speech at the 26th Session of the Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore at WIPO highlighted the differences governing the intangible rights of indigenous peoples generally, and why these world views have so often been left out of the current mainframe of intellectual property rights. Whereas, the majority view of IPRs tends to focus on the rights of the individual and their protection as such, indigenous cultures are inherently built over centuries and across generations on communal understandings and organic exchanges of knowledge, making it practically impossible to ascribe the ownership of a certain set of IPRs to one or a few individuals.
Apache Dancers at the exhibit ‘Dignity – Tribes in Transition’. United States Mission Geneva Photo: Eric Bridiers. CC-BY-ND-2.0 via US Mission Geneva Flickr.
As Professor Anaya articulates and the other contemplate, the similarities between the inadequacies of the protection of tangible rights of indigenous peoples (e.g. indigenous land rights) and that of their intangible rights protection (including intellectual property rights) tend to stem from a common source – the failure to acknowledge the “inherent logic of indigenous peoples’ world views”.
Perhaps the solutions lie not just in finding ways to include indigenous intellectual property rights in current IPR regimes, but through the facilitation of an entire paradigm shift to capture the nuances of these issues both effectively and precisely. How, for instance, can indigenous IPRs be valued commercially, and how may adequate compensation models be developed in exchange for the commercial use of these rights? A key to increasing the recognition of the inherent value of indigenous IPRs within their traditional cultural settings may lie in developing methods to properly value this worth in tangible terms. What seems necessary is a model to adequately measure the significance of indigenous IPRs, starting at the source (the indigenous community), and finding ways of translating this value into benefit systems that can be returned to the communities from which the IPRs were sourced. Hence recognition is attributed to the crucial part these IPRs play within the cultures from which they are derived.
The strength of intellectual property law lies in its ability to meet the demands of a frenetically changing world, thus affording it vast amounts of power in shaping the law of the future; but this brings with it the challenge – can that power be harnessed to adequately protect rights of the past? Even if the answer is in the affirmative, it does not necessarily follow that the purpose of intellectual property rights protection should be to reduce IPRs to protectable commodities solely for the purpose of commercial exploitation. Protection of IPRs might be secured for any number of reasons, including the recognition of the right for ownership of those rights to be retained within the community. IPRs thus have the capacity to function both as shields and swords. Such weaponry however brings with it obligations: “With great power, comes great responsibility.”
Keri Johnston and Marion Heathcote are the guest editors of the Journal of Intellectual Property Law & Practice special issue on “The Quest for ‘Real’ Protection for Indigenous Intangible Property Rights”. The authors would like to thank Mekhala Chaubal, student-at-law, for her assistance. It is reassuring to know that a new generation of lawyers is willing and able. Keri AF Johnston is managing partner of Johnston Law in Toronto and Marion Heathcote is a partner with Davies Collison Cave in Sydney.
The Journal of Intellectual Property Law & Practice (JIPLP) is a peer-reviewed journal dedicated to intellectual property law and practice. Published monthly, coverage includes the full range of substantive IP topics, practice-related matters such as litigation, enforcement, drafting and transactions, plus relevant aspects of related subjects such as competition and world trade law.
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By Darren Meale
The fact that the Internet is so hard to police — and that no single authority is in a position to dictate what it should and should not contain — should be cause for celebration for anyone with an interest in the freedom of speech, expression, and the sharing of ideas. But the Internet has two faces. For every positive exercise of those and other freedoms, there’s an act of fraud, counterfeiting, and copyright infringement. How is the law — in particular the English legal system — attempting to stem the tide of the last problem (online infringement) and take pirates down?
Attacks are being made on two main fronts in the UK. The first is via section 97A of the Copyright, Designs and Patents Act 1988. This permits a court to order a service provider — which could be an ISP, a search engine, or a social networking website — to block its users from accessing infringing material. To take ISPs as an example: when there are perhaps millions of infringing users in the UK using the internet access services of only six major ISPs, it’s going to be much easier to pursue those intermediaries than it is the individuals.
Although section 97A has been around since 2003, the first real attempt to use it wasn’t until 2011. The film industry brought a test case against the UK’s largest ISP, BT, seeking a court-ordered block of an infringing service called NewzBin2. BT heavily resisted the attempt, but every ground it raised was dismissed by the High Court and a block was ordered. This year it was the turn of the music industry, which sought blocks from BT and the remaining five major UK ISPs against the celebrity poster-boy of internet piracy: The Pirate Bay (TPB). With none of the ISPs willing to defend such an obviously dubious service, the High Court easily found TPB to be infringing copyright in February of this year. With little to distinguish TPB from NewzBin2, the ISPs then largely gave up the fight and dropped any opposition to a block. This was then ordered in May.
While section 97A has been making waves since its first appearance last year, the second front has been bobbing along in calm waters. Key provisions of the Digital Economy Act 2010 impose obligations upon ISPs to notify their subscribers, once those ISPs have been informed by copyright owners that those subscribers are suspected of infringing copyright, mostly likely via peer-to-peer file sharing (via sites such as TPB). Repeat offenders are put on what is effectively a “naughty list” and copyright owners can use those lists to pick juicy targets for taking further action. Two major ISPs tried to knock the Act out by launching judicial review proceedings, complaining that it offended European and human rights laws. They failed overall, but their actions have delayed the introduction of the Act’s notification regime. A final draft of the Initial Obligations Code (the Code), which sets out the details of the regime’s operation, has now been prepared by Ofcom (the UK’s communications regulator) and was put out for a consultation which ended in July. But there is a lot of work to be done before the regime begins. For example, an independent appeals body is to be created to deal with subscribers who wish to appeal an allegation of infringement. Accordingly, the Government does not expect the first notification letter to be sent until 2014. In the immediate term the Code will not provide for any real sanctions against subscribers beyond receipt of the letter, and accordingly can be criticised as lacking teeth.
While introducing the Digital Economy Act is probably better than doing nothing, the Newzbin2 and TPB cases suggest that section 97A is the far more effective weapon against piracy. Service providers may now be more motivated to assist copyright owners to police their services, if the alternative is to face the cost and bother of a section 97A application that the odds are they’ll lose. There is no direct connection, but in response to industry pressure Google (which may be the next target for a section 97A application) has recently agreed to demote websites from its search results where it has repeatedly received reports of those sites hosting infringing material. It’s a start, but it won’t remove them from its listings altogether.
The UK can’t, of course, solve this problem alone. A number of jurisdictions now have bespoke anti-file-sharing laws in place. These include France (HADOPI); Spain (Ley Sinde); South Korea and New Zealand. Others are in development. As well as being legally challenging, these sorts of measures are also proving politically controversial. Proposed legislation in the USA — SOPA (Stop Online Piracy Act) and PIPA (PROTECT IP Act) — met with huge public opposition earlier this year and are being reconsidered, but may still come to pass in some form. Before leaving power, President Sarkozy of France hailed HADOPI as hugely successful. The new government in France is reported to be less enthusiastic about the law and its multi-million Euro yearly cost.
It’s worth finishing with a note on circumvention. Very few, if any, of the measures discussed above are foolproof. Many (website blocks for example) are fairly straightforward to get around. Although a large proportion of casually infringing Internet users may not know how, a Google search for “How do I get around The Pirate Bay block?” reveals plenty of results, including several videos on Google’s own YouTube. Ironically, when I clicked on the first video in the list, I was presented with an advert for one of 20th Century Fox’s soon to be released (and no doubt, pirated) movies. Evidently, there’s still a lot of work to be done.
Darren Meale is a Senior Associate and Solicitor-Advocate at SNR Denton, specialising in intellectual property litigation and advice. He has particular expertise and interest in digital rights issues, including the way in which the Internet and new digital technologies interact with and potentially infringe intellectual property rights. His recent paper, ‘Avast, ye file sharers! The Pirate Bay is sunk’, has been made freely available for a limited time by the Journal of Intellectual Property Law and Practice.
JIPLP is a peer-reviewed monthly journal. It is specifically designed for IP lawyers, patent attorneys and trade mark attorneys both in private practice and working in industry. It is also an essential source of reference for academics specialising in IP, members of the judiciary, officials in IP registries and regulatory bodies, and institutional libraries. Subject-matter covered is of global interest, with a particular focus upon IP law and practice in Europe and the US.
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Image credit: Pirate button on computer keyboard. Photo by Sitade, iStockphoto.
