EU, IP, Indigenous People and the Digital Age: Intersecting Circles? (References only)

TITLE: EU, IP, Indigenous People and the Digital Age: Intersecting Circles? AUTHOR: James Tunney PUBLICATION: European Intellectual Property Review DATE: September 1998 SOURCE: EIPR, Vol.20, Issue 9, Sweet & Maxwell Ltd, London URL:
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NOTES

[1] Laurens van der Post, The Lost World of the Kalahari, (1962) p. 151. [2] For a basic introduction to indigenous people see Burger, The GAIA

Atlas of First Peoples - A Future for the Indigenous World (1990): For an overview of the development of the legal protection of indigenous people see Sutherland, 'Indigenous Peoples, Emerging New Legal Standards for Comprehensive Rights' (1997) 27/1 Environmental Policy and Law 13. [3] Vine Deloria Jr, 'Consolidating Indian Efforts' (Standing Rock Sioux) in Great Documents in American Indian History (Moquin and Van Doren, eds., 1995), p. 383. Also see Long, 'Nomads and the Net' (March 1997) The Geographical 28.

[4] This article uses the 'digital age' as a convenient epithet to refer to the time rather than the technology. [5] In the sense that indigenous people are connected to the oldest traditions of humankind, and the digital revolution is associated with the newest developments. [6] The approach taken in this article is intended to be conjectural in the tradition of critical pluralism as explained by Kari Popper. Popper emphasised the importance of such an approach from Xenophanes to Einstein, and the value of the 'woven web of guesses'. See Karl Popper, 'Toleration and Intellectual Responsibility' in In Search of a Bener World (1994). [7] Carmichael, Peppard and Boudreau, Megaresort on My Door-step. Journal of Travel Research (1996), p. 9. [8] There are differing academic perspectives with regard to the experience of indigenous people and trade in indigenous products. See Tickell, 'Nuts, Bucks, and Survival' (August 1992) The Geographical 10 and Corry, 'The Rainforest Harvest. Who Reaps the Benefit?' (1993) 23/4 The Ecologist, and more recently Taylor, 'Saving the Forests for the Trees. Alternative Products from Woodlands' (1997) 39/1 Environment 6. [9] Da Silva, 'The Protection of Intellectual Property for Local Indigenous Communities' [1995] 11 EIPR 546. [10] McGrath, 'The Patent Provisions in TRIPS: Protecting Reasonable Remuneration for Services Rendered-or the Latest Development in Western Colonialism?' [1996] 7 EIPR 398. [11] UNCTAD, The Role of the Patent System in the Transfer of Technology to Developing Countries (UN Doc. TD/B/AC 11/19, 1974) and UNCTAD, The Role of Trademarks in Developing Countries (UN Doc.TD/B/C. 6/AC. 3/3 Rev 1, 1979). [12] TD/CODE TOT/47, June 20, 1985. [13] For example see Muchlinski, Multinational Enterprises and the Law (1995) p. 446. [14] For a good recent synopsis see Blakeny, 'Protection of Traditional Medical Knowledge of Indigenous Peoples' [1997] 6 EIPR 298. [15] Posey, 'Protecting Indigenous Rights to Diversity' (1996) 38/8 Environment 7. This article also presents a good explanation of the definition of indigenous people, and a review of the international legal instruments affecting indigenous people. Also, Greaves (ed.), Intellectual Property Rights for Indigenous Peoples: A Sourcebook, Society for Applied Anthropology (1994). [16] See Blakeney, 'Protecting Expressions of Australian Aboriginal Folklore under Copyright Law' [1995] 9 EIPR 442. [17] See Posey, n. 15 above, at 37. Cummins v. Bond [1927] 1 Ch. 167 is an entertaining example of the Chancery Division of the High Court being

unwilling to classify a spirit as the author of copyright in a work dictated by a spirit medium. [18] See Posey, ibid., at 8. [19] Johnson, M., Lore: Capturing Traditional Environmental Knowledge (1992), p. 4. [20] The Bellagio Declaration of May l993 recognises this problem; see Blakeney, n. 14 above, at 299. [21] Posey, n. 15 above. [22] For a witty account of the origin of commercial brands in the United States see Bryson, Made in America (1994). For a defence of the market mechanism in the evaluation of legal principles see Duxbury, 'Do Markets Degrade' (1996) 59/3 Modern Law Review 331. [23] Such as Winnebago and Cherokee in relation to cars, and Braves, Redskins and Chiefs in relation to football teams. [24] The court in the 'Crazy Horse' passing-off case (Alain Bernadin et CIE v. Pavillion Properties [1967] R.P.C. 581) was not concerned about the generation of goodwill in a name whose use would cause offence to the individuals descendants. [25] Also see with regard to sacred names in general Umberto Eco, The Search for the Perfect Language (1995). [26] Fraser, The Golden Bough, A Study in Magic and Religion (1993), p. 263. [27] Also see Golvan, 'Aboriginal Art and the Protection of Indigenous Cultural Rights' [1992] 7 EIPR 227. [28] Some elements in the indigenous world would perceive European academic endeavour, no matter how supportive, as prompted by a new subtler type of colonialism. Even if that were true, which the author would dispute, that fails to see the inherent self-interest that Europe has in developing a widely acceptable system of IP if it is to function effectively within its own region, by identifying marginalising processes which it creates. [29] One of the better illustrations perhaps of the link between force, colonisation and law is provided in the Institutes of Justinian of 553: 'The valour of our arms barbarian nations made subject to our sway have learnt to know. Africa and innumerable other provinces, after so long an interval by the victories which God has given us restored to our rule and Empire bear witness to it. All nations now are ruled by laws which we have issued or complied'. See Tunney, 'Free Movement, Intellectual Property and Aboriginal Peoples', Proceedings of Aboriginal Peoples Conference, Lakehead University, Ontario, October 1996. See also Duncan, 'Property as a Public Conversation. Not a Lock-Can Solioquy; A Role for Intellectual History and Legal History in Takings Analysis' (1996) 26/4 Environmental Law (North-western School of Law of Lewis & Clark College) 1095. With regard to the link with culture see Said, Culture and Imperialism (1994). [30] See Bartolomé de las Casas, 'Aquí Se Contienen Treinta Proposiciones Muy Jurídicas', cf. de Vitoria, 'De Indiis et De lure Belli Relectiones', Culture and Belief in Europe 1450-1600 (Englander, Norman, ODay and Owens eds., 1990), pp. 324 and 331. [31] ibid.,Bernal Diaz, The Conquest of New Spain, trans. and ed. by J. M. Cohen (1963), p. 307. [32] For a recent particular study see Kathyrn Holland Braund, Deerskins & Duffels (1996).

[33] Greenfield, The Return of Cultural Treasures (2nd edn., 1996). [34] See McGrath, n. 10 above. [35] See Blakeney, n. 14 above, at 302. [36] The author would agree with the thrust of Bowrey's argument in favour of an interdisciplinary approach; see Bowrey, 'Who's Writing Copyright's History?' [1996] 6 EIPR 322, and the consistent encouragement from jurists such as Oliver Wendell Holmes for students of law to study disciplines around their area, while accepting that fools rush in where angels fear to tread. Ale inherent nature of IP and the dictates of technological dynamism require some academic speculative risk. [37] Duncan, see n. 29 above, is a good example of an article in this genre. It also provides a critique of some fundamental legal concepts, which parallels indigenous academic analysis. [38] For a perspective on goods in the European context, see Lisa Jardine, Worldly Goods (1996). [39] Thom White Wolf Fassett, 'Where Do We Go From Here?' in Defending Mother Earth, Native American Perspectives on Environmental Justice (Weaver ed., 1996), p. 177. [40] The celebrated decision against Colmcille (later St Columba) was recorded and translated from Irish as 'To every cow its calf, to every book its copy'. Indeed, it might be argued from this decision that IP principles would have grown organically in non-colonised countries. [41] See Maine, Ancient Law (1890). That unwritten law was not regarded as law is a convenient doctrine for a coloniser. On the significance of orality, see Basil H. johnson, 'One Generation from Extinction' in An Anthology of Canadian Native Literature in English (Moses and Goldic (eds., 1992). The approach of s. 3 (2) of the Copyright, Designs and Patents Act 1988 to the requirement that copyright does not subsist until recorded, but thereafter does in literary, dramatic and musical works, might have been a more sophisticated legal methodology to employ when dealing with indigenous legal cultures. [42] One is reminded of York in Richard II: 'If you do wrongfully seize Hereford's right ... You pluck a thousand dangers on your head ... You lose a thousand well-disposed hearts, And prick my tender patience to those thoughts which honour and allegiance cannot think.' Act 2, Scene 1. [43] See Mails,The Mystic Warriors of the Plains (2nd ed.,1991); Vine Deloria Jr, God Is Red (2nd edn., 1992); Suzuki and Knudtson, Wisdom of the Elders: Honoring Sacred Native Visions of Nature (1992). McPherson and Rabb, eds., Indian from the Inside; A Study in Ethno-Metaphysics (1993); Defending Mother Earth, Native American Perspectives on Environmental justice, n. 39 above. [44] See Duncan, n. 29 above. [45] See Bell and Klein, Radically Speaking: Feminism Reclaimed (1996). Also Bordo, The Cartesian Masculinazination of Thought', in From Modernism to Postmodernism (Cahoone ed., 1996), p. 656. [46] ibid.; Hall, 'Modern China and the Post-Modern West', p. 698. [47] Capra, The Tao of Physics (1976). [48] Aschemie, 'Accounting, Time, and African Philosophy, Advances in Public Interest Accounting' (1996) 6 Critical Perspectives in Accounting

19-33 and Birkin, 'The Ecological Accountant; From the Cogito to Thinking Like a Mountain' (1996) 7 Critical Perspectives in Accounting, 23 1. [49] Much native philosophy, for example n. 3 above, necessarily involves a critique of European philosophy. [50] C.G. Jung, Jung on the East (Clarke ed., 1995), p. 162. [51] ibid., p. 163. [52] See Bronowski, The Ascent of Man (1973). [53] See Sagan, The Demon-Haunted World; Science as a Candle in the Dark (1996). [54] See for example, Gross and Levitt, Higher Superstition: The Academic Left and Its Quarrels with Science (1994). The exaggerated historical schism between science and religion begun in earnest by Draper in 1874 is a different story; see Russell, Inventing the Flat Earth (1991). [55] See for example Crespi, 'Biotechnology Patenting: The Wicked Animal Must Defend Itself', [1995] 9 EIPR 431. [56] See (merely as a basic example of the emergence of this trend) Peat, Blackfoot Physics (1996). [57] Indeed, some suggest that the digital age itself, chracterised by bivalence and traceable to Aristotelian logic, is a way of thinking doomed to give way to a system characerised by multivalence, to neural networks instead of digital computers, which is more attributable to Eastern or Buddhist diinidng, or the schools of thought inspired in this century by Bertrand Russell and Werner Heisenberg. See Kosko, Fuzzy Thinking, The new Science of Fuzzy Logic (1994). [58] Likewise, some of the new mathematics which underlies the new technologies of the global village that IP has to protect is based on discoveries by people such as Mandlebrot, building on propositions such as the Cantor set and the Koch curve (which bear striking resemblances to indigenous and traditional philosophies and symbols). With regard to the development and contempory application of these mathematical theories, see Gleick, Chaos, Making a New Science (1987). [59] See for example s. 1 (3) of the Patents Act 1977 and s. 3 (3) of the Trade Marks Acts 1994 in the United Kingdom. [60] Att.-Gen. v. Guardian Newspapers (No, 2) [1988] 3 WL.R.776; [1988] 3 All E.R. 545, H.L. [61] See Weatherill and Beaumont, EC Law (2nd edn., 1996), Chap. 26. [62] One is reminded of the statement from Puddnhead Wil-sons Calendar, 'Consider well the proportion of things, It is better to be a young June-bug than an old bird of paradise.' Mark Twain, Puddnhead Wilson and Other Tales (1992) p. 42. [63] In relation to the use of U.S. antitrust in relation the exercise of IP rights in the area of communications technology, see Daly, 'The Robin Hood of the Rich' (August 1997) Wired 108. [64] UN Doc.E/CN.4/Sub.2/1994/Add/April 20, 1994 and see Sutherland, n. 2 above. [65] Mabo v. State of Queensland (No. 2) (1992) 175 C.L.R. 1. [66] For example, the Mataatua Declaration, the Julayinbul Statement and the COICA Statement, Blakeney, n. 14 above, [67] See Posey n. 15 above. [68] Costa v. Ente Nazionale per L' Energia Elettrica (ENEL) Case 6/64 [1964] E.C.R. 585; [1964] CMLR 425. [69] Van Gend en Loos v. Nederlandse Administratie der Belastingen Case 26162 [1963] ECR 1; [1963] CMLR 105.

[70] Nold KG v. Commission Case 4/73 [1974] ECR 491 at 507; [1974] 2 CMLR 338. [71] See Sutherland, n. 2 above. [72] In particular elements of Arts 8, 9, 12, 13, 14, 16 would seem to be useful possible sources of rights. [73] See Ford, 'The Morality of Biotechnology Patents: Differing Legal Obligations in Europe?' [1997] 6 EIPR 315 in relation to IP [74] COM (95) 567 final. [75] The greatest objection to these groups being so regarded would seem to arise from issues such as a lack of homogeneity and the degree of industrialisation. But it would be mistaken to dismiss groups such as the Basques, despite these considerations. The legal definition will be the key and not the presence of groups on BBC wildlife programmes. [76] See Sutherland, n. 2 above. [77] See for example The Commission v. France [1990] E.C.R. 1-43371 with regard to the use of art. 169 enforcement proceedings to ensure compliance by France with its obligations under Council Regulation 3626/82 of December 3, 1982, which implemented the Convention on International Trade in Endangered Species of Wild Fauna and Flora ('CITES'), of March 3, 1973. [78] For an introduction to the EU and international relations, see McGoldrick, International Relations Law of the European Union (1997). [79] SeeBlakeney,'The Impact of theTRIPs Agreement in the Asia Pacific Region' [1996] 10 EIPR 544. Also see Eeckhout, 'The Domestic Legal Status of the WTO Agreement: Inter-connecting Legal Systems' (1997) 34 Common Market Law Review 11. [80] For a description of the development of EU environmental agenda, see Pocklington, 'The Role of Environmental Action Programmes in the Development of EU Enviromnental Legislation' (Dec. 1995) Environmental Law and Management. [81] For a recent comprehensive article with regard to likely developments in general, see 'Towards an Environmental Constitutional Law' (April 1997) European Environmental Law Review 113. [82] See Puttnam, The Undeclared War. The Struggle to Control the Worlds Film Industry (1997). [83] Cinetheque v. Federation Nationale de Cinemas Frunfaises Cases 60, 61/84 [1985] ECR 2605; [1986] 1 CMLR 365. [84] Procureur du Roi v. Dassonville Case 8174 [1974] ECR 837; [1974] 2 CMLR 436. [85] See R. v. Hennand Darby Case 34/79 [1979] ECR 3795; [1980] 1 CMLR 246. [86] For example, Art. 36 of the Treaty of Rome in relation to free movement of goods. [87] For example Art. 7 (f) of Council Regulation 40/94 of December 20, 1993 [1994] O.J. L11/1. There is also Art. 3 (2)(a) of the Council Directive 89/104 [1989] O.J. L40 in relation to grounds for refusal where a trade mark covers a sign of high symbolic value, in particular a religious symbol. [88] Marshall McLuhan, Understanding Media (1964). [89] Gates, The Road Ahead (1995). [90] For a review of existing law in the United Kingdom, see Euan Cameron and Caitriona Hegarty, 'Never Mind the Quality, Feel the Width, A Sceptical View of Legal Interference with Cyberspace' (1996) 1011 International Review of Law, Computers & Technology 79. [91] In relation to proposals on the Information Society, see 'Europes Way

in the Information Society', COM (94) 347. Communication on 'Ale Implications of the Information Society for European Union Policies-Preparing the Next Steps', COM (96) 395. Green Paper on 'Living and Working in the Information Society: People First', COM (96) 389. Communication on 'Standardisation in the Information Society: The European Approach', COM (96) 359. Proposed Directive on Regulatory Transparency in the Internal Market for Information Society Initiatives, COM (96) 392. [92] This article cannot be a survey of all the disputes in IP [93] Ruijsenaars, 'The WIPO report on Character Merchandising' (1994) 25 International Review of Industrial Property and Copyright Law 532, and 'Legal Aspects of Merchandising: The AIPPI Resolution' [1996] 6 EIPR 331. [94] See Chen, 'A Proposal for the International Convention for Protection Against Unfair Competition' [1996] 8 EIPR 450. [95] Willimsky, 'Comparative Advertising: An Overview' [1996] 12 EIPR 649. [96] For a coherent analysis see Dixon and Hansen, 'ne Berne Convention Enters the Digital Age' [1996] 11 EIPR 604. [97] See Reinbothe, 'The New WIPO Treaties: A First Resume' [1997] 4 EIPR 171. [98] Vinje, 'A Brave New World of Technical Protection Systems: Will there Still be Room for Copyright?' [1996] 8 EIPR 431. [99] Barlow, 'The Economy of Ideas: A Framework for Rethinking Patents and Copyrights in the Digital Age' (March 1994) Wired, and see Bowrey, n. 36 above. [1] Christic, 'Reconceptualising Copyright in the Digital Era' [1995] 11 EIPR 525. [2] Edwards,'Modelling Law Using a Feminist Theoretical Perspective' (1995) 4/1 Law, Computers and Artificial Intelligence 95. [3] Davison, 'Geographical Restraints on the Distribution of Copyright Material in a Digital Age: Are they justified' [1996] 9 EIPR 477. [4] Also see Dworkin, 'The Rise and Rise of Intellectual Property', 1997, 9 London University Law Journal 14. [5] See Wilson, Anglo-Saxon Art From the Seventh Century to the Norman Conquest (1983). [6] Laddic, 'Copyright: Over-strength, Over-regulated, Overrated?' [1996] 5 EIPR 259. [7] See nn. 97 and 98 above. [8] Council Directive on the Legal Protection of Computer Programs 91/350 [1991] O.J. L122/42. [9] Council Directive Harmonising the Term of Protection of Copyright and Certain Related Rights 93/98 [1993] O.J. L29019. [10] McGrath, see n. 10 above (lst ser.). [11] Kurtz, 'Copyright and the National Information Infra-structure in the US' [1996] 3 EIPR 120. [12] Branscomb, 'Public and private domains of information:Defining the legal boundaries' [Dec. 1994] 21/2 American Society for Information Science, Bulletin. [13] Chomsky, Necessary Illusions, Thought Control in Democratic Societies (1989). [14] Power, 'Digitisation of Serials and Publications' [1997] 8 EIPR 447. [15] For example, Capra, The Web of Life (1997). [16] Although the competing web metaphors might remind one of the Greek myth of Minerva and Arachne. Of course the web metaphor might be used as a negative one, as Swift did in his essay on the spider and the fly. For a synopsis of Swift, 'A Tale of a Tub. Written for the Universal Improvement

of Mankind, To Which is Added An Account of Battle Between the Ancient and Modern Books in St James Library' (1704) see Stephen jay Gould, Dinosaurs in a Haystack. Reflections on Natural History (1996) p. 76. [17] Kelly, Out of Control, The New Biology of Machines (1994), p. 2. [18] ibid., p. 4. [19] Chatwin, The Songlines (1987). [20] In relation to Africa, see Thomas Pakenham,the Scramble for Africa: White Mans Conquest of the Dark Continent from 1876 to 1912 (1991) and Romain Yakemtchouk, 'Les Frontienes Africanes' (1970) 74 Revue Générale de Droit International Public 27 and Ratner, 'Drawing a Better Line: Uti Possidetis and the Borders of New States' (Oct 1996) 90/4 American Journal of International Law 590. [21] Olswang, 'Accessright: An Evolutionary Path for Copyright into the Digital Era' [1995] 5 EIPR 21 8. Also see Christie, n. 1 above (2nd ser.), and Bowrey, n. 36 above. [22] For example in the case of Genentechs Patent (1989) RPC147. [23] Cornish, 'Authors and the Law' (1995) Modern Law Review 1. See also Wright, 'Authorship of Computer Generated Works; A Legal Pandoras Box' (Oct. 1996) Business Law Review 252. Bowrey, n. 36 above, and Vinje, n. 98 above. [24] See Posey, n. 15 above (1st ser.). [25] See Golvan at n. 27 above, and also Golvan, 'Aboriginal Art and Copyright: The case for Johnny, Bulun Bulun' [1989] EIPR 346. [26] The practice of sampling is perhaps the best example of the technological and related artistic-social operational challenge, which may bring a conceptual challenge and which might have occasioned the call for a conceptual solution. [27] See Lane, The Living Tree, Art. [28] For example Lees, 'Melanesias Sacred Inheritance', in Indigenous People and Protected Areas (Kemf ed., 1993) Brown, The Sacred Pipe (1953). [29] See n. 40 above. [30] Seyyed Hossein Nasr, KnowIedge and the Sacred (1989). This in turn informs the debate about the philosophical fault lines underpinning the IP system. [31] The efforts to form a group of eight developing Muslim countries to counterbalance the hegemony of the G7 (G8) countries and their economic values, may further emphasise the appropriateness of indusive notions of sacredness, not confined to one dominant religion. Likewise the recall by Nike of shoes with symbols which could have caused offence to Muslims is consistent with the need to marry sensitivity and commercial pragmatism; see The Independent, June 25, 1997. [32] Viimbulul v. Reserve Bank of Australia (1991) 21 IPR 4 at 81. [33] Which may be said to be one of the debates associated with the digital age, if not directly with digital technology. [34] Although Madonna might be a much more formidable iconoclast, her name was Madonna Ciccone and therefore does not really fall into this category; see Andersen, Madonna (1991). [35] Also see Phillips, Opinion, 'The Diminishing Domain: Threat to the Public Domain' [1996] 8 EIPR 1996, and Norman, Opinion, 'The Electronic Environment: The Librarians View' [1996] 2 EIPR 71. [36] See Gendreau, 'Copyright Harmonisation in the European Union and in North America' [1995] 10 EIPR 489. This refers to the role of IP in the

NAFTA context. The indigenous people of America are becoming better organised and the pressure for an indigenous perspective to inform the trade-related aspects of IP will become acute in the decade to come. [37] See n. 61 above. [38] John F. Mogg, writing from the experience derived from a European Commission perspective in the preface to Hance, Business and the Law on the Internet (1996). [39] See Miskin and Vahrenwaid, 'Commercial Communications in the Internal Market-At What Price?' [1996] 11 EIPR 621. [40] De Koning, 'Why the Coercion-based GATT Approach is not the only answer to International Piracy in the Asia-Pacific Region' [1997] 2 EIPR 59. [41] Chief Justice John Marshall, Yohnson v. Mclntosh 8 Wheat. 543 (1823). [42] See Margaret Thatchers speech at the College of Europe, Bruges, September 20, 1988. [43] Steinberg, 'Trade-Environment Negotiations in the EU, NAFTA and WTO: Regional Trajectories of Rule Development' (1997) 91 American Journal of International Law 231. [44] Practical responses might include, for example, the establishment of a collecting society for copyright works of indigenous people, a review of possible legal remedies in the EU, an electronic journal on the subject of indigenous people and IP, a scholarship system for indigenous students to study IP law and a comprehensive attempt to record traditional indigenous knowledge by and for the benefit of indigenous people which would assist in an evidentiary context in IP disputes.

European Intellectual Property Review Vol.20, Issue 9, September 1998 Sweet & Maxwell Ltd London