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A Critical Guide to Intellectual Property

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A Critical Guide to Intellectual Property A CRITICAL GUIDE TO INTELLECTUAL PROPERTY A CRITICAL GUIDE TO INTELLECTUAL PROPERTY Edited by Mat Callahan and Jim Rogers A Critical Guide to Intellectual Property was first published in 2017 by Zed Books Ltd, The Foundry, 17 Oval Way, London SE11 5RR, UK. www.zedbooks.net Editorial Copyright © Mat Callahan and Jim Rogers 2017 Copyright in this Collection © Zed Books 2017 The rights of Mat Callahan and Jim Rogers to be identified as the editors of this work has been asserted by them in accordance with the Copyright, Designs and Patents Act, 1988 Typeset in Plantin and Kievit by Swales & Willis Ltd, Exeter, Devon Index by [email protected] Cover design by Andrew Brash All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical, photocopying or otherwise, without the prior permission of Zed Books Ltd. A catalogue record for this book is available from the British Library ISBN 978-1-78699-114-0 (hb) ISBN 978-1-78699-113-3 (pb) ISBN 978-1-78699-115-7 (pdf) ISBN 978-1-78699-116-4 (epub) ISBN 978-1-78699-117-1 (mobi) CONTENTS Acknowledgments | vii List of abbreviations | viii 1 Why intellectual property? Why now? . 1 Mat Callahan and Jim Rogers 2 Running through the jungle: my introduction to intellectual property . 14 Mat Callahan SECTION ONE: HISTORICAL CONTEXT AND CONCEPTUAL FRAMEWORKS . 31 3 Intellectual property rights and their diffusion around the world: towards a global history . 33 Colin Darch 4 The political economy of intellectual property . 56 Michael Perelman 5 I am because I own vs. I am because we are . 70 Mat Callahan SECTION TWO: TERRAINS OF CONFLICT AND TERMS OF ENGAGEMENT . 97 6 Owning up to owning traditional knowledge of medicinal plants . 99 Josef A. Brinckmann 7 Using human rights to move beyond reformism to radicalism: A2K for schools, libraries and archives . 117 Caroline B. Ncube 8 Meet the new boss, same as the old boss: copyright and continuity in the contemporary music economy . 144 Jim Rogers 9 Free software and open source movements from digital rebellion to Aaron Swartz: responses to government and corporate attempts at suppression and enclosure . 166 Paul McKimmy (with a coda by Bob Jolliffe) SECTION THREE: LAW, POLICY AND JURISDICTION . 197 10 Rethinking the World Intellectual Property Organization . 199 Debora J. Halbert 11 What is intellectual property? . 217 Blayne Haggart 12 Piracy, states and the legitimation of authority . 238 Mat Callahan 13 Summary and concluding remarks . 257 Mat Callahan and Jim Rogers About the editors and contributors | 267 Index | 269 ACKNOWLEDGMENTS Earlier versions of “Running Through the Jungle, My Introduction to Intellectual Property,” and “The Political Economy of Intellectual Property,” first appeared in Socialism and Democracy, #64 (Volume 28, no. 1) March, 2014. See http://sdonline.org/back-issues/#64. ABBREVIATIONS A2K Access to Knowledge A2M Access to Medicines A&R Artist and Repertoire ABS Access and Benefit Sharing ACTA Anti-Counterfeiting Trade Agreement ANC African National Congress ASCAP American Society for Composers, Authors and Publishers ASKJustice African Scholars for Knowledge Justice AYUSH Ministry of Ayurveda, Yoga and Naturopathy, Unani, Siddha and Homoeopathy (India) BABS Bioprospecting, Access and Benefit Sharing BIRPI United International Bureaux for the Protection of Intellectual Property BMI Broadcast Music Inc. CBD Convention on Biological Diversity CFAA Computer Fraud and Abuse Act (1986) CIPO Canadian Intellectual Property Office CISAC International Confederation of Authors and Composers Societies CISPA Cyber Intelligence Sharing and Protection Act CSIR Council of Scientific and Industrial Research (India) DEA Department of Environment Affairs (South Africa) DMCA Digital Millennium Copyright Act DRM Digital Rights Management EFF Electronic Frontiers Foundation EOP Executive Office of the President FFF Fight for the Future FOSS Free and Open Source Software FOSSFA Free and Open Source Foundation for Africa FSF Free Software Foundation FWF FairWild Foundation FWS FairWild Standard GATT General Agreement on Tariffs and Trade abbreviations | ix GDP Gross Domestic Product GI Geographical Indication GIK Ghanaian Indigenous Knowledge GLAM Galleries, Libraries, Archives and Museums GPL General Public License GRs Genetic Resources ICESCR International Covenant on Economic, Social and Cultural Rights IDLO International Development Law Organization IEK Indigenous Ecological Knowledge IFPI International Federation of Phonographic Industries IGC Intergovernmental Committee on Intellectual Property and Genetic Resources, Traditional Knowledge and Folklore (WIPO) IK Indigenous Knowledge (local or traditional) INDECOPI National Institute for the Defence of Free Competition and Protection of Intellectual Property (Peru) IP Intellectual Property IPRs Intellectual Property Rights ISPs Internet Service Providers JSTOR Journal Storage JTB Justified True Belief KBD Kaapse Bossiedokters (Cape Bush Doctors – South Africa) LDC Least Developed Countries MAPs Medicinal and Aromatic Plants MDGs Millennium Development Goals (United Nations) MIT Massachusetts Institute of Technology MNCs Multinational Corporations MPAA Motion Picture Association of America NBA National Biodiversity Authority (India) NCAB National Commission against Biopiracy (Peru) NGO Non-Governmental Organization NHP Natural Health Product OA Open Access OER Open Educational Resources OPL Open Content License OSI Open Source Initiative PACs Political Action Committees PACER Public Access to Court Electronic Records x | abbreviations PCT Patent Cooperation Treaty (WIPO) PDO Protected Designation of Origin PIPA Protect Intellectual Property Act PPI Pirate Parties International PRS Performing Rights Society (PRS for Music) RIAA Recording Industry Association of America ROARMAP Registry of Open Access Repository Mandates and Policies RPM Revolutions Per Minute SASA South African Schools Act SCBD Secretariat of the Convention on Biological Diversity SDGs Sustainable Development Goals (United Nations) SOPA Stop Online Piracy Act SSB State Sustainability Board (India) SUISA SUISse Auteurs (Swiss co-operative society for authors and publishers) TCEs Traditional Cultural Expressions TCO Total Cost of Ownership TEK Traditional Ecological Knowledge THMP Traditional Herbal Medicinal Product TK Traditional Knowledge TKDL Traditional Knowledge Digital Library (India) TMK Traditional Medical Knowledge TPP Trans-Pacific Partnership TRIPS Trade Related Aspects of Intellectual Property Rights TTIP Transatlantic Trade and Investment Partnership UEBT Union for Ethical Bio-Trade UN United Nations UNCTAD United Nations Conference on Trade and Development UNESCO United Nations Educational, Scientific and Cultural Organization UNIDO United Nations Industrial Development Organization USPTO United States Patent and Trademark Office USTR United States Trade Representative VSS Voluntary Sustainability Standard WHO World Health Organization WIPO World Intellectual Property Organization WSIS World Summit on the Information Society WTO World Trade Organization 1 | WHY INTELLECTUAL PROPERTY? WHY NOW? Mat Callahan and Jim Rogers Introduction Considering the grave dangers facing humanity today, it might appear that intellectual property (IP), though loudly controversial, is at best a tempest in a teapot, at worst a diversionary tactic designed to focus attention away from more serious issues. Compared to environmental disaster, deepening social inequality, rampant state surveillance and war without end, dispute over copyright, patent and trademark seems trivial. Though, in recent years, media attention has increasingly focused on digital piracy, genetically modified foods, the patenting of the human genome, and other IP-related matters of obvious importance, IP remains an enigma. That capitalism is in a crisis of epic proportions is beyond doubt. What role IP plays in this crisis, however, is anything but clear. It must first be acknowledged that a great deal of legal obfuscation has to be cut through even to begin exploring the matter. IP has been above all shrouded in a fog of mystification precisely to keep out the rabble and protect the authority of lawyers. Yet laws are made and laws can be unmade, the underlying principle is justice, and justice is determined through political struggle, which is never confined to a courtroom. Indeed, the legal aspects of IP, while certainly worthy of informed debate, are by no means the most important in figuring out IP’s place in current affairs. Far more relevant are the forces deployed on battlefields throughout the world. First among these forces are of course the major industries dependent on IP for their profits. The most important are the pharmaceutical and agricultural industries in terms of patent and trademark, the film, music and publishing industries in terms of copyright. Most of the attention paid to IP has, until recently, been a result of these industries’ propaganda efforts. Only in the last two decades has such propaganda been met and superseded by opposition 2 | one from two other, sometimes separate, sometimes overlapping, areas, that is, social movements and “piracy.” Regarding social movements, these have formed in two distinct sectors which are, nevertheless, inseparable due to their emergence in response to the legal and political regimes organized by IP law and international treaty. These movements, furthermore, are responsible for making IP a
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