Katie Scott

Katie Scott,

“Mapping Plagiarism in a Regime of Privilege”

The charge of plagiarism dispenses with the calendar and substitutes the map.  It takes a moral position in relation to artistic idea, arguably judging it always already an inalienable possession.  The passage of time does not lessen the crime.  Rather plagiarism operates and is identified by forms of mapping: by the process of appropriative tracing or re-tracing of forms and by a mental mapping of point to point correspondences which leads to the recognition of repetition.  However, not all copies are plagiaries; their classification as such is historically contingent.  This paper asks whether, and in what ways the practices of the copy in the visual arts (painting, sculpture and printmaking) and charges of plagiarism were shaped by an increasingly conspicuous and efficacious regime of copy-privilege in France during the ancien régime.  It further considers the extent to which emergent notions of copyright may have been informed by plagiarism: both its discourses and its practices.

Dwijen Rangnekar

Dwijen Rangnekar,

“Re-Making Place: The Social Construction of a Geographical Indication for Feni”

A range of social movements mobilise around and seek to valorise ‘place-based’ imageries. There is, these movements argue, vitality in place. And this constitutes a crucial element of critiques of power/globalisation. As anthropologists remind us, people continue to construct some form of boundaries around place, however permeable and transient those boundaries might be. In the context of global agrifood, socially generated marks indicating conditions of origin have emerged that speak to a different set of moral economies. In this constellation Geographical Indications appears as a remarkable place-based intellectual property. The paper seeks to appreciate GIs as the juridical reification of a placed-based stabilisation of cultural norms. However, rather than idealise GIs, the paper also probes a ‘politics in place’. This is achieved through a fieldwork-based case study of the recently acquired GI for Feni. The paper juxtaposes accounts and observations on Feni distilling with the specifications that constitute the GI. In explaining the social construction of authenticity that sediment in the registered GI, the paper draws attention to the exclusionary effects of this translation of a cultural object into intellectual property. Enabling the GI are the dual rhetoric that animates global and local discourse on GIs: one a rhetoric of hope that is enveloped by a seduction of plenty (exports) and the other a rhetoric of fear that is constitutive of a threat of misappropriation (e.g. Basmati).

Marc Perlman

Marc Perlman,

“Should There Be Property Rights in Folklore? Surveying the Intellectual Landscape of the Debate”

Along with the drive to expand intellectual property rights, a movement is underway to propertize traditional culture (folklore). Both initiatives have provoked counter-arguments. But while criticism of the extension of IP rights has been forcefully articulated, opposition to the propertization of folklore has been comparatively scattered and unfocussed.

In this paper I map the intellectual terrain of the dispute over the ownership of folklore. The opposition takes several forms in various contexts (informal, legal, diplomatic, political, academic). Many legal laypersons reject the idea on a near-visceral level. IP attorneys often see it as incompatible with the principles of copyright. Some anthropologists and legal scholars decry it as hypostatizing the concepts of ‘culture’ or ‘community.’ Diplomats of certain developed nations argue against it as inimical to the principle of freedom of expression. Some industry representatives find it incompatible with their business interests. And even some members of indigenous communities—usually supporters of propertization—see exclusive rights over traditional culture as dangerous.

An adequate cartography of these disparate vectors of protest would have to map passions and interests as well as reasons, locating all in a multidimensional social space. As an initial step toward such a comprehensive visualization, I inventory the arguments that have been given for and against propertizing traditional culture, locating them within their intellectual (rather than social) contexts. The result will be a finding aid to the debate, a display of the many proposals and objections that have been advanced in what has so far been a very diffuse controversy.

Doris Estelle Long

Doris Estelle Long,

The Continuation of the Geographic Boundaries of Empire in the New Digital Order”

Current battles over the nature and scope of protection afforded creative and innovative activities in the “new digital order” have strong resonances with historic battles over the territorial boundaries that formed the basis for the 19th Century Empires whose views of land and power continue to dominate intellectual property debates today.  Despite the evolving needs of the digital order, the processes of Empire, including its emphasis on territoriality as a rights modality, and its determination that its civilizing message is good for all comers, remains a powerful, and inhibitory force in the development of a rational, socially just and forward-looking intellectual property regime.  One of the most critical and under-examined aspects of these processes is the adverse impact of territorial imperatives on current efforts to protect indigenous innovation, including mistaken reliance on geographically delimited indicators to protect indigenous crafts and territorially delimited trademarks in a digital marketplace.  Unless we uncover the mistaken reliance on old notions of land and power contained in the Empire based systems of the 19th and 20th Centuries, we will continue to replicate the same mistakes as we craft new regimes for trademarks and geographic indicators for the new digital order.  Like the Empire builders of old, we will continue to impose our vision of the civilizing concepts in intellectual property use and protection, based on outmoded traditions derived from old notions of territory.

Orly Lobel

Orly Lobel,

“Innovation’s Edge: Talent Wants to be Free and Flowing”

The field of Employment IP (EIP) restrictions is a dynamic area of policy and has recently spurred heated debate. No state enforces contractual agreements to prevent post-employment mobility and competition without restriction, but while most states enforce non-compete agreements, a small but rising number of states, most notably California, void most or all such contractual agreements. This paper presents a theoretical model and empirical and experimental evidence that widespread EIP controls may have inadvertent counterproductive effects of lowering employee performance, impeding growth and innovation, and thereby preventing the rise of thriving agglomeration economies. It presents the following model and evidence for its support: The Dyadic-Dynamic Model (DDM):

Time 0 (During employment relationship):

1. EIP controls may encourage firms to invest in their managers’ human capital.

2. EIP controls may discourage employees to invest in their own human capital.

3. The absence of non-competes encourages compensation forms that are performance-based.

The Dynamic Aspect: Time 1 (Post-employment):

4. EIP controls may prevent loss of valuable employees and misappropriation of proprietary information.

5. EIP controls may reduce efficient employee-firm fit, “new blood,” entrepreneurship, social capital, network density, and positive knowledge spillovers.

6. EIP controls may lead to brain drain, with patterned flows of capital and talent from high to low control regions.

The paper is part of a work in progress examining employment, intellectual property and innovation, Innovation’s Edge (under contract with Yale UP).

Jeongoh Kim

Jeongoh Kim,

“Cultural Geographies of Intellectual Property: Turnpikes and Copyrights”

In this interdisciplinary essay, I combine literary and cultural-studies approaches to the relationship between road-making and copyright in the context of the new turnpikes. The enclosure of lands and the construction of turnpikes and canals not only broadened opportunities for travel and navigation but also accelerated the dissemination of commodities of all sorts. These geographical developments expanded, sometimes beyond the point of recognition, familiar notions of place that were framed by a parish or estate or even a metropolis. By poising the Foucauldian and economic views of the implications of the turnpikes, I argue that the turnpike road system fragmented geography while simultaneously reshaping this fragmented geography into a more organized network of improved roads. Highlighting the spread of turnpikes and canals and the laws of copyright in the late eighteenth and early nineteenth century that defined how literature could be owned and exchanged, I aim to contribute to the history and theory of copyright in the intersection of geography and literature. In a telling phrase which chimes through “the great thoroughfare of the Brain,” Daniel Defoe establishes a sense of the place that locates authors within specific circuits of information, particularly within the turnpike road system as the medium and outcome, the precondition and embodiment, of the modern production of space. Crusoe’s voyage beyond the island of Juan Fernandez enfolds a return to the present Britain to reconfigure Defoe’s sense of the cultural geographies of intellectual property.

Stavroula Karapapa & Maurizio Borghi

Stavroula Karapapa & Maurizio Borghi,

Invisible Geographies: Copyright and the Unexplored Land of Non-Display Uses”

In this paper, we review the concept of “use” in copyright law. With the advent of mass digitisation projects, such as the Google Book Search, a peculiar shift has occurred in the way that digital copies are dealt with. While technology has so far mainly affected the way by which works are reproduced and distributed, mass digitisation purely affects the way by which the works are used. Works are turned into machine-readable data and are automatically processed without them being displayed to the public. In the Google Book Settlement Agreement, this new kind of use is referred to as “non-display uses” of digital works. In our view, these uses define a new, invisible territory in the conceptual geography of copyright; they occupy a space that challenges the traditional contours of the copyright doctrine since they are neither private nor public: they do neither belong to the “public sphere” of exploiting works, nor to the “private sphere” where the use of works may be realised. The paper aims to provide some guidance in defining the legal boundaries of this unexplored territory. To this end, we argue that neither positive law nor utilitarian arguments provide any guidance. Answers, however, may be sought at the level of rights. We therefore examine mass digitisation under the prism of copyright principles as rooted in personality rights and this enables an analogy to be made with data protection law. Sensitive data and works as data share analogies which are worth exploring. The principles applicable in data protection will eventually help in identifying which uses fall within the scope of author’s rights – irrespective of whether they involve the display of the work or not – and those which may be legitimately left outside the author’s control.

Debora Halbert

Debora Halbert,

“Exporting Authenticity:  The Construction of National Cultural Identity”

In this paper I investigate the narrative construction of national identity made through arguments about cultural preservation and cultural property.  The narrative is much more complex than simply demonstrating that American cultural hegemony with the help of intellectual property laws has created a global homogenized culture.  Instead, the corporatized global culture produced under the auspices of the culture industry must be understood within a nation-state project aimed at articulating cultural authenticity in the post-colonial world.

Even as states seek to shore up their borders and establish an authentic sense of identity, cultural diasporas scatter people across the globe.  Furthermore, in the age of modern travel, global nomads ignore the boundaries of the nation-state to fuse cultural traditions as they seek moments of personal authenticity and ways of escaping the globalized dominance of corporate culture.  These counter-trends not only challenge the nationalization of authentic culture but also highlight how diasporatic movements facilitate cultural flows and, I argue, are key to cultural development.

To examine the issues raised by nationalized culture, cultural fluidity, intellectual property, and authenticity I will first sketch out the commodification of culture embraced by American culture industries and their impact within a globalized setting.  Second, examine the complexities of the postcolonial landscape through the concepts of cultural authenticity, traditional culture, and the role of the nation-state.  Third, investigate the impact of diasporatic movements on cultural communication and an effort to find or experience authenticity, a concept that itself is highly problematic from a theoretical point of view.

Sara Bannerman

Sara Bannerman,

“’We are all developing countries’: Canada and International Copyright History”

Canada’s history with international copyright is a story of conflict: of struggle against British Imperial copyright, conflict with the international copyright system, and eventual engagement with the international copyright community. This paper outlines the path of Canadian international copyright history between 1886 and 1971, arguing that Canada’s international copyright history has been, in part, a product of the norms, institutions and policies of Canadian foreign relations, and that Canada’s history with the Berne Convention can be viewed as the struggle of a British colony to find a place within the international system – a struggle to project an image of Canada that accommodated the desire to be engaged in a community of the most powerful nations while also reflecting the reality of a country that was a net copyright importer with a relatively small creative industry. This paper asks what the role of a middle power like Canada is today, when developing countries and NGOs challenge key international copyright norms, and in the face of attempts to reform the international copyright system. Drawing on the work of Escobar, Shanin, and others who question the discourse and categorizations of development, I argue that international copyright history challenges the traditional geographies and categorizations of the international intellectual property landscape today and the boundaries between “developed” and “developing”, or “north” and “south”.

International Society for the History and Theory of Intellectual Property (ISHTIP)