IPRs 3.0 Intellectual Property Rights

Before examining intellectual property in depth it is necessary to establish the evolutionary nature of the legal process that in Law is called precedent and in economics, path dependency. I will also outline the standard economic rationale for intellectual property rights.

Legal Precedent & Path Dependency

Law, in all Nation-States, is made at four levels: international, statutory, regulatory and case. International law is made by Nation-States and International Organizations through the treaty-making process.

Statutory law is made by domestic legislators in parliaments, legislatures, congresses, etc. Regulatory is made by bureaucrats – domestic and international - interpreting and implementing a statute or treaty. Case law is made by judges – domestic and international - interpreting and enforcing international, statutory and/or regulatory law.

Complicating matters, however, is that when judges make Law it is by setting a precedent. In the Anglosphere this body of precedents is called the Common Law. If a similar case was resolved in the past, a current court is bound to follow the reasoning of that prior decision under the principle of stare decisis. The process is called casuistry or case-based reasoning.

If, however, a current case is different a judge may set a precedent binding future courts in similar cases. Often such precedents compel legislators and bureaucrats to change statutory and regulatory law. This is especially true with respect to intellectual property rights like copyright.

Rapidly changing technology, among other things, increasingly brings novel cases before the lower courts forcing legislators and bureaucrats to keep up or allow casuistry to run its course. The problem is that a court decision in a specific case can, for better or worse, establish ‘path-dependency’ for emerging techno-economic regimes (David 1990), e.g., in biotechnology, software, etc. This reflects the more general psychological Law of Primacy: That which comes first affects all that comes after. In Law it is called precedent; in Economics it is called path dependency. For example, having adopted 110 volt electrical systems in North America all electrical devices must subsequently be so designed. Plug in a 110 device into a 220 volt circuit used in Europe and the device blows up.

Furthermore, precedent established in one jurisdiction may spill-over into others. As will be seen this is especially true of IPR precedents set by courts in the United States. These have great influence in other Common Law countries including Canada. The sheer scale of the American economy insures that case law is greater in volume if not better thought out than in smaller jurisdictions.

Rationale

While economics is poor at prediction, i.e., ex ante or before the fact, it is good at ex poste or after the fact rationalization, e.g., it cannot accurately predict a Depression but can explain it well after the fact. Thus intellectual property rights (IPRs) have evolved over the course of centuries (Chartrand 2011) but as economist Paul David: observed, they have not been created “by any rational, consistent, social welfare-maximizing public agency” (David 1992). The resulting regime is “a Panda’s thumb”, i.e., “a striking example of evolutionary improvisation yielding an appendage that is inelegant yet serviceable” (David 1992). Paralleling development of IPRs is the evolution of multilateral and national cultural property rights (CPRs) discussed below (Chartrand 2009).

In economic theory, IPRs today are justified by market failure, e.g., when market price does not reflect all benefits to consumers and all costs to producers as in the case of pollution. These are known as external costs and benefits, i.e., external to market price.

IPRs, in this view, are created by the State as a protection of, and incentive to, the production of new knowledge which otherwise could be used freely by others (the so-called free-rider problem). After all knowledge is a public good. In return, the State expects creators to make new knowledge available and that a market will be created in which it can be bought and sold. But while the State wishes to encourage creativity, it does not want to foster harmful market power. Accordingly, it builds in limitations to the rights granted to creators. Such limitations embrace both Time and Space. They are also granted only with full disclosure of the new knowledge, and only for:

a fixed period of time, i.e., either a specified number of years and/or the life of the creator plus a fixed number of years; and,

fixation in material form, i.e., it is not ideas but rather their fixation or expression in material form (a matrix) that receives protection.

Eventually, however, all intellectual property (all knowledge) enters the public domain where it may be used by anyone without charge or limitation. In other words a public good first transformed by law into private property transforms back into a public good. Growth of the public domain is, in fact, the historical justification of the short-run monopoly granted to creators of intellectual property.

Even while IPRs are in force, however, there are exceptions such as ‘free use’, ‘fair use’ or ‘fair dealing’ under copyright. Similarly, national statutes and international conventions permit certain types of research using patented products and processes. And, the Nation-State retains the sovereign right to waive all IPRs in “situations of national emergency or other circumstances of extreme urgency” (WTO/TRIPS 1994, Article 31b), e.g., following the anthrax terrorist attacks in 2001 the U.S. government threatened to revoke Bayer’s pharmaceutical patent on the drug Cipro (BBC News October 24, 2001).

Industrial Property

Traditionally, intellectual property breaks out into two classes: industrial property and literary & artistic works. Industrial property includes patents, registered industrial designs and trademarks (inclusive of marks of origin). These were the subject of the first multilateral IPR agreement: the Paris Convention for the Protection of Industrial Property of 1883. Literary & artistic works were the subject of the second multilateral agreement: the Berne Convention for the Protection of Literary & Artistic Works of 1883. Protection of literary & artistic works under Common Law is called copyright; under the Civil Code, ‘rights of the author’. As will be seen, they are not the same.

In general, industrial property involves utilitarian goods and services but while:

… copyright is expressed in terms of property, it is not directly analogous to industrial property (patents, trademarks and industrial designs), where the major concern is with the circulation of goods that have economic value apart from their intellectual content. As it deals with purely intellectual matter, copyright can never interfere with a person’s physical well-being. (Keyes & Brunet 1977, 3)

It is important to note, however, that the American tradition blurs this distinction between industrial property and copyright especially since the grant of software copyright. As will be seen, American influence on the multilateral IPR regime in this regard has been profound.

Statutory

Statutory law is made by the legislative branch of government. It establishes specific rights that the State defines and enforces through the policing power and the courts. Thus there are individual statutes treating copyright, patents, registered industrial designs or design patents in the U.S. as well as trademarks and marks of origin.

Each statutory right is limited in time and must be fixed in a material matrix. Furthermore, the subject must be original or novel. That is an IPR does not protect ideas but rather their original expression fixed in a tangible material form called a ‘matrix’. A matrix is a “supporting or enclosing structure” (OED matrix, n I). A tangible material form is something that, traditionally, could be seen, touched or otherwise perceived by a human being and, furthermore, has some permanence.

The law, being inherently conservative, traditionally concluded that if the matrix was not perceptible then it was not possible to assess other requirements for protection, e.g., originality, non-obviousness, usefulness, etc. For example, ephemeral displays on computer screens, prior to 1988, received no protection in Canada. An electron might be a part of the physical world but if a lawyer could not see, touch or otherwise perceive it then it had no legal standing as a matrix (Keyes & Brunet 1977, 129).

In effect, over time, the use of instrumentation to extend the reach and grasp of the human senses has been accepted by the Courts. The implication is that there is no longer any microscopic (or macroscopic) legal limit to intellectual property being fixed in material form, only a technical one.

Each statutory right consists in fact of a bundle of individual rights that can be transferred to another person, natural or legal, in whole or in part. In all cases a transfer of rights in whole is called an ‘assignment’. Transfer of some but not all rights is called a ‘licence’.

For each of the four statutory rights the bundle includes a license for a limited time and/or a specified geographical area, to make, sell, use, sub-license or export/import. Such a licence remains valid as long as the licensee fulfills its obligations and operates within the bounds set by the license agreement.

The actual statutory right and its bundle vary according to national legislation. Excepting copyright which, as will be seen, recognize copyright in foreign works under the Berne Convention of 1886, to be valid a patent, registered industrial design or trademark must be registered in each individual Nation-State. Given that it take at least $20,000 to register a patent in a single country one can appreciate the cost involved in obtaining an effective global patent. If, however, a right originating in a foreign country is registered in another country, the second country by international treaty extends what is called ‘national treatment’. This means, for example, that a foreign patented invention when successfully registered is treated the same as a domestic one. The rights granted in the one jurisdiction are not, however, necessarily the same as in another.

A statutory form of IPR that has not gained international recognition is ‘scientific property’. It was conceptually developed by Professor J. Barthelemy in France after the First World War. The concept is that if a person, by his intellectual activity, has produced benefits which otherwise would be impossible, justice requires that he obtain a part of these benefits. Scientific property requires that "every new discovery or invention of whatever nature, confers upon its author ... the right to demand a royalty from all those who draw an industrial profit therefrom" (Ladas 1929, 553). The idea was considered by the League of Nations but went no further.

Patent

What today are called patents but more properly patents of invention evolved out of the Mediaeval and Renaissance practice of the Sovereign – king, queen, duke, etc. depending on the jurisdiction - issuing Letters Patent. This was a legal instrument in the form of an open letter granting an exclusive right or rather privilege to a Natural Person or a body corporate or corporation, i.e., a Legal Person. They were issued under the royal prerogative and constituted legislation without the consent of Parliament and notwithstanding or non obstante Common Law. They included charters of incorporation for cities like the Corporation of the City of London, trade and craft guilds as well as to individuals.

The gild franchises of the merchants and manufacturers gave to them a ‘collective lordship’ similar to the private lordship of the barons, for their gilds were erected into governments with their popular assemblies, their legislatures, their courts, their executives, and even with authority to enforce fines and imprisonment of violators of their rules. Their most important sovereign privilege granted by the King was that of binding all the members by a majority vote so that they could act as a unit. These merchants’ and manufacturers’ gilds, at the height of their power, were not only legalized closed shops but also legalized governments.

(Commons 1924, 225)

For our purposes, i.e., a survey of intellectual property, letters patent included both patents of invention and printing patents or copyright for specific works or classes of works such as the statutes of the realm and to license musical and theatre companies. Over time the grant of such monopoly privileges became a significant source of revenue for the Sovereign beyond the control of Parliament.

In England patents of invention began as import patents granted to foreigners bringing new working knowledge to the kingdom (David 2001, 7). Thus the first known English patent was granted by Henry VI to Flemish-born John of Utynam in 1449 for a method of making stained glass not previously known in England but required for the windows of Eton College. Only gradually was such protection extended to domestic inventors (UK Patent Office, 2004).

Under Elizabeth I grants of monopoly privilege proliferated and both Parliament and the Courts began to object. In 1602 a court case known as the Case of Monopolies (Darcy v. Allen) became the first monopoly case brought before a Common Law court. Darcy had been granted a monopoly on playing cards by Elizabeth I but rather than employing English printers he imported cards from France. The Court determined that such patents were null and void being against Common Law and the Commonwealth. (Commons 1924).

It was, however, under Elizabeth’s successor James I that in 1624 the English monarchy was formally stripped of the prerogative to grant domestic industrial monopolies except for new inventions as well as printing and performing rights patents. Known as the Statute of Monopolies (21 Jac. I, c.3 An Act concerning Monopolies and Dispensations with Penal Laws and the forfeitures thereof) it declared all domestic industrial monopolies illegal except for “any manner of new manufactures within this Realm to the true and first inventor” but such patents of invention could not be “contrary to the law nor mischievous to the State by raising prices of commodities at home or hurt of trade”. As well the Stationers’ Company of London’s perpetual copyright as well as printing and performing patents were also exempted.

For other sectors of the economy, however,

The next hundred years, until the Act of Settlement in 1700, was substantially the struggle of farmers and business men to become members of the Commonwealth, whereby they might have courts of law willing and able to convert their customary bargains into a common law of property and liberty. The court which abolished the power of the gilds began to take over the work of the gilds. Their private jurisdiction became a public jurisdiction. And the very customs which the gilds endeavored to enforce within their ranks became the customs which the courts enforced for the nation. The monopoly, the closed shop, and the private jurisdiction were gone, but the economics and ethics remained….

(Commons 1924, 230)

With respect to the exceptions noted above, in the case of patents of invention it was only with the Patent Law Amendment Act of 1852 that Common Law displaced the royal prerogative. Until then patents were handled by law officers of the Crown. In the case of printing patents and perpetual Stationers’ copyright it was 21 years after the Statute of Queen Anne came into force in 1710. In the case of stage plays and theatres it was not until the 1737 and the Stage Licensing Act. However, theatre licensing actually remained under the Lord Chamberlain the highest official of the royal household until 1968. As with other sectors when the Common Law courts assumed jurisdiction they tended to adopt the customary business practices and ethics of copyright and performing rights that evolved during an age of monopoly.

While it took England until 1852 to formalize the patent system, the first U.S. patent act: “An act to promote the Progress of Useful Arts” - was passed in 1790. Its legal status was based, however, on Article 1, Section 8, Clause 8 of the 1787 Constitution of the United States which states: “Congress shall have power ... to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” As will be seen the early development of the U.S. patent system was, and continues, to have profound effect on the development of the multilateral IPR regime

Today, patents of invention are granted for new and useful compositions of matter (e.g., chemical compounds, foods, and medicinal products), machines, manufactured products and industrial processes as well as to improvements to existing ones. In some jurisdictions, patents can also be granted to new plant and animal forms developed through genetic engineering. Through case law and amendment, U.S. patents have, over time, evolved into three types: patents of invention, design patents and plant patents. In all cases, registration is required and fees must be paid. To be patentable, an invention, design or plant must be novel, useful and, non-obvious “to one of ordinary skill in the art.” Originally, under American law, algorithms, a.k.a., Google, and living things, a.k.a. the Harvard mouse, were not subject to patent protection. Case law changed that.

A description must be deposited, in writing and drawings, sufficiently detailed to allow one of ordinary skill in the art to replicate the invention. This insures that new knowledge enters the public domain while the rights of the inventor are protected. In the case of microorganisms, description can take the form of a deposit of a sample with an authorized depository. Patent protection is for a fixed period of time (in the U.S., currently 20 years from the date of filing) after which it enters the public domain. In general, these terms and conditions hold in all countries with the notable exception of duration. In most other countries the term of a patent begins only after it has been granted, not when filed. In industries such as pharmaceutical this effectively reduces duration by as much a six or seven years requiring extensive testing before the patent is granted. Patents cannot be renewed.

Interestingly, a patent can only be granted to a Natural Person including employees, not to a Legal Person or corporation. In most cases, however, by contract all economic rights are assigned to the employer. Paternity, what is known as a moral right, remains with the individual.

The bundle of right involved in a patent include its breadth, duration and scope. Patent breadth means the extent to which a given patent covers the field to which it pertains. In other words, it means the minimum size of improvements that another inventor has to make in order to obtain an independent, non-infringing patent.

Duration or length refers to how long monopoly protection is enforced by the State. Usually a patent has a 20 year duration. However, when the term begins varies. For example, it begins on application in the United States but on grant of the patent in most other countries.

Scope is defined by claims made in a patent application. Claims establish the boundaries of the patent owner's rights. which are exclusionary, e.g., exclude others from making, using, selling, offering to sell, and importing the patented invention or process or importing a product made by a process patented in the importing country. To determine infringement, the alleged infringing product or process is compared to the claims contain the patent.

While patents are established under statutory law the role of case law, especially in the United States, has played a critical role in extending what can be subject to patent. Two examples will demonstrate; software and genetic patents. First, in the 1981 U.S. case of Diamond v. Diehr the Supreme Court ordered the Patent & Trademark Office to grant a patent on an invention even though computer software was used. Until that time software was considered algorithms or mathematical formulas in the abstract not to be subject to patent. However, the court concluded that software used to operate a device controlling execution of a physical process was patentable. U.S. statutory law, i.e., the Patent Act, was subsequently amended to grant software patents, e.g., the one click Amazon purchasing program.

Second, in the case of genetic patents, the U.S. Patent Office denied patents to living material including genes until 1980. The Patent Office, among other things, believed that because genes were not visible it was not possible to assess originality. In 1980, the Supreme Court in Diamond v Chakrabarty reinterpreted existing law, i.e., there was no change in the law itself. The case involved a patent for a genetically engineered microorganism that breaks down crude oil. The Court observed that Congress had the power to limit such patents but by failing to legislate specifically about genetic patents it had, in effect, allowed gene patenting. The Court’s rationale was based on the term ‘manufacture’ in Section 101 of the U.S. Patent Act: “the production of articles for use from raw materials prepared by giving to these materials new forms, qualities, properties, or combinations whether by hand labor or by machinery.” Genes, the Court concluded, were material, i.e., they had tangible material form, even though invisible to the naked eye. Again the Patent Act was amended to permit patents for genetic material. And in the case of the Harvard mouse genetically engineered to highly susceptible to cancer, patents are now available in the U.S. for higher organisms, not just genetic material. By contrast, the Canadian Supreme Court has denied the patentability of the Harvard mouse and other higher organisms.

Registered Industrial Design

Industrial designs are also a form of codified knowledge. Unlike copyright and trademarks, however, knowledge is always fixed as meaning in a utilitarian matrix. Industrial design involves the arrangement of elements or details that contribute a distinctive aesthetic appearance rather than a function to a good. In this sense there is a relationship between copyright protecting a work of art and industrial design. Both involve aesthetics but in the case of a copyright the aesthetic element is fixed in a matrix that has no utilitarian value. By contrast an industrial design is fixed in a utilitarian matrix, e.g., a coffee cup without a design is still a coffee cup.

Industrial design protection can be obtained by both Natural and Legal Persons. It is important to note, however, that industrial design evolved from copyright in the British tradition but from patents in the United States where they are called ‘design patents’. Design protection is granted for a fixed time period (for example, 14 years in the United States) after which the design enters the public domain. Registration and payment of fees are generally required. Industrial design cannot be renewed.

The first design-related legislation in Britain was the Designing & Printing of Linen Act of 1787. The Copyright of Design Act of 1839 extended protection to other textiles but it was not until the Design Act of 1842 that protection was extended to other manufactures including designs made up of functional elements (UK Patent Office 2001). In the United States, an 1842 statute granted design patents to new and original designs for manufactured products and printing on fabric.

Aesthetic design is fundamentally different from technical or functional design such as a more fuel-efficient automobile engine. Its impact on consumer behavior involves what can be called “the best looking thing that works”. If a consumer does not like the way a product looks, he or she may not even try it. Industrial designs are, however, the ‘weak sister’ among formal IPRs such as copyright, patents and trademarks. Duration is one indication, in the U.S., for example, it is 14 years for an industrial design, 70 years for a corporate copyright and 20 years for a patent. Nonetheless, the aesthetic dimension - the ‘look and feel’ of a good or service – or its industrial design has always and continues to play an important role in market competition.

Trademark

Trademarks (and marks of origin) are devices such as a word, logo or other mark pointing to the origin or ownership of a good or service that is reserved for the exclusive use of its owner as maker or seller. Today, its application has, de facto, been extended to ‘domain names’ on the internet or world-wide web. The World Intellectual Property Organization (WIPO) has thus established dispute settlement mechanisms to resolve ‘cyber squatting’, i.e. registering a domain name using the name or trademark of an established business enterprise or celebrity, e.g. Julie Roberts, with the intention of selling that registration to its recognized trademark holder for a profit. At the international level, however, only the Common Industrial Property Regime of the Andean Community of 2000 makes explicit reference to web domain names (Chartrand 2001). If a trademark takes the form of a logo, it emerges from the Arts; if it takes the form of a name or word then arguably it emerges from the HSS.

Trademarks and marks of origin, symbolize a Person – Natural or Legal – or a place, respectively. A ‘mark’ is reserved for the exclusive use of its owner as maker or seller. In market terms it embodies the ‘goodwill’ of a going concern, e.g., as a corporate logo. The matrix on which a mark is fixed, however, varies. When fixed on a working device or product like a bottle of wine the matrix is utilitarian; when fixed on a communications medium such as a billboard, letterhead, television or internet advertisement, the matrix is non-utilitarian.

The word ‘trademark’ entered the English language in 1838 (OED, trademark, n, a). Functionally, however, it traces back to ancient times and in Western Europe from at least the 13th century. This includes masons marks, goldsmith marks, paper makers’ watermarks and watermarks for the nobility as well as printers’ marks.

While the 1618 case of Southern v How is generally considered the birth of commercial trademark law in England, the first national trademark legislation was in fact enacted in France in 1857 followed by Britain in 1862. Subsequently, in Britain, the Trade Marks Registration Act of 1875 established the first Trade Marks Registry in the world which opened in London in 1876 (UK Patent Office 2003). In the United States, the first trademark law was passed in 1870 based on the patent and copyright clause of the Constitution. It was, however, subsequently repealed and replaced in 1881 with legislation based on the commerce clause of the Constitution.

Trademark-related rights, including appellations and indications of origin, have since been extended to embrace: advertising slogans, certification marks, collective marks, guarantee marks, labels and emblems, service marks, trade names, well known and distinctive signs and WWW domain names. They arguably extend or will be extended to ‘house marks’ used by biogenetic engineers as well as holographic, sound and olfactory marks as virtual reality becomes an increasingly profitable and sophisticated marketplace.

Registration and the payment of fees are generally required. A trademark is granted only for new marks so as not to confuse the public. It is available to both Natural and Legal Persons. But unlike other forms of IPRs, trademarks can be renewed, potentially in perpetuity.

Sui Generis

Sui generis in Latin means “of its own kind”. There are a number of recognized sui generis property rights. These include breeders’ rights for lines of plants and animals generated using pre-genomic selective breeding technology; a special depository right for microorganisms in lieu of traditional patent requirements of a written description and drawings; special rights for visual artists of recognized stature; special rights for architectural works; and, special rights for integrated circuit typographies beginning with the American ‘Chip Protection Act’.

In many jurisdictions there are also utility patents which cover improvements to existing patented products or processes. Similarly, the European Commission’s Directive on the Legal Protection of Databases is an example of:

a new form of copyright in databases, one that extends to contents previously in the public domain and otherwise not copyrightable. It narrowly restricted the application of the principle of allowing exclusions for “fair use” in research, and it permitted virtually indefinite renewal of copyright protection for databases without requiring the substantial addition of new and original content.” (David 2000, 6)

It can be anticipated that many new sui generis rights will emerge as nations compete by combining different elements drawn from their own traditions governing copyright, designs, patents, trademarks, trade secrets & know-how. The only constraint under the WTO and other international trade rules is national treatment

Contractual

While know-how and trade secrets are often used as synonyms they need not be so. In the case of management and franchises, for example, know-how is usually accessible to third parties when being used. Single elements may be kept secret but the overall concept cannot be. Where in a nation’s judicial hierarchy infringement of trade secrets or know-how may be heard varies, e.g., in the United States it is at the State level. Some international conventions, e.g., TRIPS and the Andean Pact Industrial Property Convention recognize infringement of both. In effect, when a senior executive moves from a company in one country to one in another signatory country, an international ‘legal’ lobotomy is in force; the executive and new employer may both be held liable for any infringement. In William Gibson’s future world of Neuromancer, corporations (and governments) protect their know-how and trade secrets by implanting “neural bombs” (Gibson 1984). If an employee’s loyalty slips, the bomb goes off killing or mentally maiming: the bottom line - the knowledge is protected.

Know-how and trade secrets use a person – natural or legal - to embed knowledge in material form. Secrecy is used to protect both types and in most countries there is no formal statute. Trade secrets and know-how are the least formally protected of all intellectual property rights.

Know-How

The term “know-how” entered the English language in 1838 (OED, know-how). It refers literally to knowing how to do something, e.g., how to run a construction project. It includes knowledge and experience of an administrative, commercial, financial or technical nature used in running a business or performing a profession. It is experiential in nature, i.e., it is acquired through practice and experience. It also tends to be ‘personal & tacit’ rather than ‘codified’ and embodied in an individual rather than in an external matrix. In most countries, know-how is protected by contract binding employees and other agents to confidentiality. When a natural or legal person (including a government) discovers that know-how has been revealed by an agent without permission, legal recourse is available through breach of contract before the courts. No registration is required. Know-how can be protected without time limit. It can emerge from any of the three knowledge domains – NES, HSS or the Arts.

Trade Secrets

Trade secrets involve information of a technical or commercial nature that is not in the public domain nor generally available. It may be a formula, pattern, physical device, idea, process, compilation of information or other information that provides a competitive advantage in the marketplace. It is generally protected by contracts that bind employees and other agents to confidentiality. Normally the courts require that a trade secret be treated by its owner in such a manner that it can reasonably be expected to prevent the public or competitors from learning about it except by improper acquisition or theft. In the case of electronic data this includes using encryption and “password” technologies. The most famous trade secret is the formula for Coca-Cola. A trade secret may be embodied in written or other codified form or it may be personal & tacit in a natural person. No registration is required. There is no time limit as long as it remains secret. It may emerge from any of the three knowledge domains – NES, HSS or the Arts.

Copyright

Copyright is traditionally granted to creators of artistic and literary works. These rights have, however, been extended over time to include:

artistic works such as choreography; drawings, motion pictures, musical compositions, paintings, photographs, sculptures and works of architecture;

literary works such as novels, poems, plays and reference works, and,

commercial or utilitarian works such as advertisements, computer programs, databases, maps, newspapers and software.

Copyright is granted to natural and legal persons. When granted to a natural person it endures for the life of the artist/creator plus a fixed number of years that varies between countries, e.g., in Canada for fifty and in the United States for seventy years. Copyrights granted to legal persons are also for a fixed number of years that also varies between countries.

Bundle of rights rights to control 1) reproduction of the work, 2) preparation of derivative works, 3) distribution of copies of the work, 4) public performances of the work and 5) public display of the work Adaptation, Translation

As noted above, over time copyright protection has been extended from books to maps and charts, sheet music, photographs, sound recordings and motion pictures. Until the 1980s, however, copyright was, in all Anglosphere countries, restricted to ‘works of art’. With introduction of software copyright, however, utilitarian works received copyright protection for the first time, and probably not the last. Copyright can emerge from any of the three knowledge domains – NES, HSS or the Arts – and can be obtained by natural and legal persons.

Two additional observations are in order. First, the first patent provision in the United States was a footnote to the copyright provisions of the 1784 South Carolina “Act for the Encouragement of Arts and Sciences.” What makes this provision important is that it so closely coupled patent with copyright protection, assigning the former as most appropriate to “machines”, and the latter to “books”, with little difference in their treatment. The Constitutional Convention of 1787 was influenced by this Act and spoke also of securing exclusive rights for “Authors and Inventors” to “promote the Progress of Science and useful Arts”. Neither copyright nor patents for invention were, however, explicitly mentioned (David 1992).

Second, there is the question of works by employees. Under Anglosphere copyright all works created by an employee are, unless by contract stated otherwise, the property of the employer. The employee cannot even claim paternity to his or her work. This is not the case under the Civil Code where paternity of the employee is preserved.

In the constitutional monarchies of the British Commonwealth, the State also exercises ‘Crown copyright’ over works created by servants of Her Majesty. In the United States, there is no equivalent of Crown copyright but rather a tradition that tax payers having paid for such work they fall into the public domain. In the case of patents, any invention created during company time by an employee is, by contract, automatically licensed to the employer but the patent application must be done in the name of the employee, i.e., paternity is maintained. This is the case in both Common Law and Civil Code countries.

There is, however, one prominent Anglosphere exception to employer copyright: the university. Following the tradition of academic freedom, copyright to works by professors is, by contract, theirs and theirs alone. This exception has, arguably, resulted in the separation of the financial and career interests of scholars from that of their host institutions. Multinational communications conglomerates have, in effect, filled the gap between the two. Four or five global firms now control copyright for the world’s most prestigious scientific journals written by academics employed by universities and colleges and often paying ‘page fees’ to have their works published. This in an industry in which publish or perish is the rule. In turn, employers – the universities - now pay escalating library subscription fees for works authored by their own employees. This has resulted in a shrinking supply of periodical publications for students in all knowledge domains (The Economist, August 5, 2004). In response to these educational and financial costs, the Association of Research Libraries in the United States, among others, are developing web-based alternatives to ‘commercial’ academic publishing.

There are two distinct global legal traditions regarding literary and artistic works. Under Anglosphere Common Law there is copyright, i.e., the right to copy. Under the French Civil Code which in one form or another is used in most non-English speaking countries there is author’s rights or droit d’auteur.

While over the centuries English and French systems governing the right to copy a work diverged, they began essentially the same. The author had, until 1710 in England and 1777 in France, no rights, only liabilities and privileges flowing from the royal prerogative. Creativity was the gift of God. The natural person was but a vessel and the fruits of God’s inspiration belonged to His Representative on Earth, the King. This was part and parcel of the Divine Right of Kings.

Common Law

The root of English copyright in fact lays not in the rights but rather in the liability of authors specifically for libel and pre-publication or content censorship. Libel refers to written slander while defamation refers to verbal or oral slander. Before printing was introduced to England defamation was the primary problem simply because so few people could read let alone write. For example, consider the Magna Carta of 1215, the first step in limiting the royal prerogative of the English Crown:

It is a curious fact, and one which marks the state of literary knowledge, even amongst the nobility, in those days, that out of the twenty-six barons who subscribed this important bill of right, only three could write their own names, the signatures of the remainder, according to the term, only made their marks. (Timperley 1838, 59)

It was in 1476 that William Caxton set up the first printing press on English soil. He was followed by foreigners who soon made up a majority in the trade for the next forty years (Harvey 2005, 173). It is important to note that the printing press was the first engine of mass production. The fixed costs of the press and typesetting spread out over longer and longer runs of the same work reduced average total cost per unit.

The legal foundation for copyright in print was laid by Henry VII at the end of the War of the Roses (1455-1485). This was built upon first his Tudor and then by his Stuart successors. This legal edifice stood until 1640 while its spirit continued after the Statute of Queen Anne in 1709/10 and, arguably, is still with us today.

In the first year of his reign Henry VII appointed Peter Actors as Stationer to the King (Harvey 2005, 175). This began the practice of prerogative licenses to print specific titles and/or types of works, e.g., almanacs, prayer books, statutes etc. Also known as a printing patent it represented the right to a copy, i.e., a specific title or category of works in contrast to copyright, i.e., the right to copy, granted exclusively to members of the Stationers’ Company of London.

Stationers’ copyright was acquired by copying the title of a work on the Company’s Register, hence ‘copy-right’. During the Middle Ages many rights were derived by copying one’s name and explaining one’s ‘title’ to property on a register, e.g., to gain the right to farm a piece of land, one’s name had to be inscribed on a register of tenants. This granted ‘copyhold’ to the land. It was from this practice that copyright registration began continuing in the United States until 1984.

Stationers’ copyright was perpetual and inheritable. Infringements by other members were adjudicated by the Company’s own court. A Stationer occasionally would pay an author a one-time honorarium but all subsequent rights belonged to the registering Stationer. In fact in 1667 when John Milton sold Paradise Lost to Samuel Simmons, a member of the Stationers’ Company of London, he became one of the first authors to receive ‘copy-money’ for a second printing (Timperley 1839, 544). The lowly status of the living author at the beginning of the age of print resulted from, among other things, the enormous backlog of manuscripts from antiquity and the Middle Ages being converted into print. Such older works by well-known but long dead authors were the initial best-sellers.

The exclusive privilege of the Stationers’ Company to print was formalized by Henry VII’s granddaughter, Queen Mary (1553-1558), who in 1557 granted the Royal Charter of Stationers’ Company of London. This charter was similar to one proposed to but rejected by Henry VIII in 1542. He considered its powers too wide. The Charter was subsequently renewed by Elizabeth I in 1588/59; amplified by Charles II in 1684; and confirmed by William and Mary in 1690. In fact, it continues to this day as the charter of the company.

The powers granted to them by these charters are of such a nature as would not be very fit to be acted upon in the present times. They had the rights of the inquisition itself over all literary compositions - might search houses for any books which they deemed obnoxious to the State, or their own interests – might enter, as often as they pleased, any place, house, shop, chamber, or building, belonging to any stamper, printer, binder, or seller of any manner of book~ might seize, take away, have burn, or convert to their own use whatever they should think was printed contrary to the form of any statute, act or proclamation, made or to be made and these odious privileges were often acted upon, as may be seen in the lives of the early printers, and in the company’s accounts (Timperley 1839, 325).

There were therefore two distinct types of early copyright – printing patents and Stationer’s copyright. In both cases the author had no rights, only privileges. These two continued, with Parliamentary approval, until 1709 when an Act was passed by Parliament entitled: An Act for the Encouragement of Learning, by Vesting the Copies of Printed Books in the Authors or Purchasers of such Copies, during the Times therein mentioned, (8 Anne, c.19). Commonly known as the Statute of Queen Anne it was passed in 1709 but came into effect in April 1710.

Both forms of copyright – printing patents and Stationers’ perpetual copyright -were abolished. The Statute of Queen Anne had three objectives. First, it was intended to break the Stationers’ Company monopoly and end both perpetual Stationers’ copyright and prerogative printing patents. Second, it was to end piracy by placing Scotland and England under the same law. Later Irish piracy was similarly brought under control in 1739 by an Act of Parliament (12 Geo. c. 36). Third, it was intended to achieve the first two objectives by, for the first time, recognizing the author as initial owner of copyright in a work and to thereby encourage production of new works. However, all rights of the author were subject to assignment to a proprietor.

The Act also explicitly recognized the financial interests of “proprietors” who, by assignment acquired an author's copyright. This compromise continues to haunt copyright reform in modern times:

… It is certainly true that the works of creators will not be the subject of mass production and distribution if entrepreneurs cannot be assured of realizing a reasonable return… The problem therefore lies in finding the proper equilibrium which allows a creator to pursue his rights, and to benefit from the use of his works, but which also assures the entrepreneur reasonable returns (Keyes & Brunet 1977: 2).

Nonetheless, the Stationers’ pressed for a return to perpetual copyright.

Although the 1710 statute aimed to abolish monopolies, monopolistic booksellers attempted to forge a case, which would nullify its scheme and provide eternal protection for their businesses. We can see that in the actions brought after 1731 when statutory copyright protection began to expire. They even colluded to accomplish their goal. A series of these actions [were] known as the “Battle of the Booksellers'' (Shirata 2000).

They also told tragic tales of piracy ruining authors, honest businessmen, their wives and children – the original tale of the starving artist. Literary works were the inheritances of innocents and pirates were, in effect, stealing from the mouths of babies. Such tales were adopted by those advocating authors’ rights and used to illustrate the problems of lax copyright protection for authors.

It was not, however, until 1769 that a definitive legal decision was delivered by the Court of King’s Bench in Millar v. Taylor: It found in favour of a natural, perpetual copyright (Commons 1924: 275). The plot of the booksellers was, however, ultimately defeated in 1774 by the House of Lords in Donaldson v. Beckett. Its decision established the basic concept of Anglo-American copyright. When an author fixes his creation in a tangible medium he obtains a common law right that is eternal in nature. However, he loses this right with publication, or, ‘dedication to the public’.

While Millar v. Taylor was overturned it successfully established in the public mind the Myth of the Creator expressed in Chaffe’s words:

… intellectual property is, after all, the only absolute possession in the world... The man who brings out of nothingness some child of his thought has rights therein which cannot belong to any other sort of property… (Chaffe 1945)

… The change, however, was less a boon to authors than to publishers, for it meant that copyright was to have another function. Rather than being simply the right of a publisher to be protected against piracy, copyright would henceforth be a concept embracing all the rights that an author might have in his published work. And since copyright was still available to the publisher, the change meant also that the publisher as copyright owner would have the same rights as the author. (Paterson 1968)

In effect this is the situation of copyright today under the Common Law tradition. All rights of the author can be assigned to another. And in the case of an employee copyright belongs to the employer. This includes in an even more extreme form the situation in the United States. Thus while the U.S. overthrew the monarchy by the Revolution of 1776, it adopted English Common Law with all of its precedents. A will be seen in France a completely new legal system followed the Revolution of 1789, first known as the Napoleonic Code and today as the Civil Code, was established.

Civil Code

In France the situation was similar to England before 1710 until 1777. The Code de la librairie (the Publisher’s Code) established royal regulation of Parisian publishing in 1723 and was then extended to the entire nation in 1744. Like England until 1710, it contained no legal recognition of authors. Printing patents were also granted by the Sovereign.

In 1777, however, things changed dramatically. A set of royal decrees were issued that broke up the publishing monopoly of the Paris Publishers’ and Printers’ Guild. In recognizing the author for the first time the decree granted privilèges d’auteur or author’s privilege in perpetuity. Publishers’ privileges (privilèges en librairie), by contrast, were limited to the lifetime of the author and nonrenewable (Hesse 1990, 113). The publisher became nothing more than an agent of the author. In effect France adopted the 1769 decision of the Court of King’s Bench in Millar v. Taylor: It found in favour of a natural and perpetual copyright. However, unlike the English decision, in France this natural right of the author could not be assigned.

During the French Revolution, however, the perpetual copyright of the author was, in turn, sacrificed in favour of the public domain. Copyright was limited to the life of the author plus ten years because the revolutionaries wanted to convert the author, a creature of royal privilege, into a public servant, the model citizen. Their focus was the public domain (Hesse 1990, 130). In this Ginsburg finds a shared objective between the French revolutionaries and their American cousins (Ginsberg 1990). The specific public good, however, remained implicit as ‘learning’ in the Anglosphere but explicit in the French as the ‘public domain’ - a term that only entered “Anglo-American discourse through the French of the Berne Convention” (M. Rose 2003, 84) in 1886. The public domain is where private intellectual property goes after monopoly protection runs out and where it becomes a true ‘public good’, free for all! In the Anglosphere tradition it might be called the ‘intellectual commons’.

As in the United States the question of copyright during the French Revolution was controversial as reflected in the intellectual gymnastics of Condorcet. Initially he rejected all copyright – author’s and printer’s rights - in favour of the public domain. However, the course of the Revolution forced Condorcet to rationalize copyright as a necessary evil. No serious books were being published because of rampant piracy and anonymous counter-revolutionary and partisan pamphlets and tracts proliferated. Copyright, or rather author’s rights, would flush the author out into the public domain where Madame Guillotine could greet him. It would also stop piracy and encourage printers to be good citizens and publish good books.

Thus unlike the United States, the French revolutionaries drew fully on natural rights recognizing the absolute moral rights of the author/creator/inventor. In this they relied heavily on the contemporary thinking of Immanuel Kant who considered an author’s work not as an object but rather an extension of personality and subject to protection as such, i.e., a human right. So accepted was this view that for over 150 years in France there was no statutory law defining moral rights. It was, in fact, only in 1957 that French statutory law formally recognized the moral rights of the author (Sarruaute 1968).

Moral rights are separate and distinct from economic rights. The three most important among many are: (1) the paternity right - the right to be identified as the creator of a work and protected from plagiarism; (2) the integrity right - the right to protection against alteration or deformation of one’s work, and the right to make changes in it; and, (3) the publication right (Hurt 1966, 424) – including the right not to publish at all or to withdraw it from publication. The most succinct expression of their nature is “inalienable, unattachable, impresciptible and unrenounceable” (Andean Community, Common Provisions on Copyright and Neighboring Rights, Article 11, 1993). These rights apply to employees as well as freelancers. Such rights were subsequently expanded to include droite d’ suite (right of following sales) and public lending rights for authors of books held in public libraries.

Nonetheless moral rights have significant economic implications: They obviously enhance bargaining power of a Creator in any contractual negotiations. They can also stop any subsequent use of the work, e.g., the ‘colourization’ controversy (of black & white motion pictures) in the United States could not happen in France because the director of the motion picture is the rights holder not the owner of the negative as in the Anglosphere.

In summary, with respect to contemporary copyright the Anglosphere ranks, in decreasing order of precedence, the rights of the Proprietor, the Creator and the Public as public domain. By contrast, in the French or Civil Code tradition the rank ordering is the Public, the Creator and the Proprietor.

Other Legal Traditions

In the developing or Third World (or the South) there are historically varied traditions governing copyright. Early Islamic jurists, for example, recognized a creator's rights or copyright and offered protection against piracy. However, traditional Islamic law treats infringement as a breach of ethics, not as a criminal act of theft for which amputation of the right hand is mandated. Rather, punishment took the form of defamation of the infringer and the casting of shame on his tribe. Only in recent years have formal copyright statutes been adopted in many Islamic countries, e.g. Saudi Arabia 1989.

In much of the Third World, however, a different tradition exists which recognizes 'collective' or 'communal' or 'folkloric' copyright. This contrasts with the Western individual-based concept of intellectual property rights. Folkloric copyright recognizes rights to all kinds of knowledge, ideas and innovations produced in what can be called 'the intellectual commons', e.g. in villages among farmers, in forests among tribal peoples, and even in universities among academics. Such rights are not limited to the lifetime of an individual but rather exist in perpetuity with a specific group or an entire people. In 1984, UNESCO produced a Draft Treaty for the Protection of Expressions of Folklore against Illicit Exploitation and Other Prejudicial Action . It is not yet in force.

In the Fourth World of 'aboriginal', "indigenous' or 'native' peoples, intellectual property rights are, like in much of the Third World, rooted in a concept of collective or communal intellectual property existing in perpetuity, i.e. not limited to the life of an individual creator plus some arbitrary number of years after his or her death. To tribal peoples, a song, story or icon does not belong to an individual but to the collective. Rights are often exercised by only one individual in each generation, often through matrilineal descent.

Unlike the Third World, aboriginal nations do not constitute 'States'. They therefore seldom participate on the international stage. Beyond the 1984 draft treaty on folkloric copyright, UNESCO passed a Recommendation on Safeguarding Traditional Cultures and Folklore in 1989. Another instrument was drafted by indigenous peoples themselves in 1994: International Covenant on the Rights of Indigenous Nations. This 'pseudo' covenant articulates a distinctive Fourth World approach to intellectual property rights. To date, however, 'folkloric' nor 'aboriginal heritage rights' have no standing in the courts of the world.

Public Domain & Cultural Property

All IPRs eventually end. When such rights lapse the subject matter falls into the public domain becoming a public good freely available to one and all. As will be seen, however, some works even though now in the public domain may be ‘nationalized’ as part of a Nation-States patrimony. These constitute part of a nation’s cultural property. In addition there are some works and subject matter that are simply not covered by IPRs that similarly are cultural property. I will now examine both terms – the public domain and cultural property.

Public Domain

In a sense the public domain is an unexplored country whose borders can be outlined but whose interior remains unknown, unexplored and uncharted. Thus James Boyle notes that the 2001 Duke University law conference on the public domain was “the first conference on the subject” (Boyle 2003a, 1). Furthermore, he identifies David Lange’s 1981 article “Recognizing the Public Domain” as having “really initiated contemporary study of the subject” (Boyle 2003b, 59). In this unknown country resides the vast bulk of human knowledge acquired through all four faculties of knowing in all knowledge domains and practices throughout human experience including pre-history. To paraphrase Rosenberg on science, the body of knowledge called the public domain consists of an immense pool to which small annual increments are made at the frontier. The true significance of the public domain is diminished, rather than enhanced, by extreme emphasis on the importance of the most recent increment to that pool, e.g., IPRs (Rosenberg 1994, 143).

For the competitiveness of nations in a global knowledge-based economy, such ignorance cannot continue. To cure it, however, requires accepting the inherent limitations imposed by the immeasurability and incommensurability of knowledge. Accordingly, trans-disciplinary induction is used and a circumambulation of the question conducted looking at it from a number of different perspectives and interpreting findings as symbolic of its numinous meaning (Neumann 1954, 7). Put another way: “A definition can be but one of many definitions, each surely a function of perspective and agenda” (Lange 2003, 463). At this time, I will examine the public domain as:

economic commons;

legal principle and precedent, and,

constitutional & cultural history.

As previously noted, like technological change in economics, the public domain is, in law, traditionally treated as a residuum. Traditionally in economics after the contribution of changes in capital, labour and natural resources to economic growth has been calculated, the residual is technological change. In law, after new knowledge has been ‘privatized’ as intellectual property, what remains is the public domain (David 2000, 15). In this sense, the public domain is the opposite of property (Boyle 2003a).

Extending the parallel, the public domain is where knowledge is at home as a public good, i.e., non-excludable and non-rivalrous, acting, as will be seen below, like disembodied exogenous technological change. Everyone has the right to know; it falls from heaven like manna (Scherer 1971, 347). Knowledge covered by intellectual property rights, on the other hand, is rivalrous and excludable by law, if not by nature. It is embodied (fixed) in a work of aesthetic or technological intelligence that is the possession of its creator (or, more usually under Common Law, a corporate proprietor) who determines access and application. To put it another way, where intellectual property rights privatizes or encloses new knowledge (Boyle 2003b) and limits access through price and other mechanisms, knowledge in the public domain is free to all without cost or restriction.

The public domain has also been considered an intellectual or public knowledge commons (David 2000). In general, an economic commons is a natural resource shared by all but owned by none. Problems of over-use and depletion of such common resources, e.g., fish in the seas beyond the territorial limits of any Nation-State, has been called the “tragedy of the commons” (Hardin 1968). Mainstream economics recommends creation of property rights, i.e., privatize ownership of the resource to guarantee its survival through the operation of self-interest on the part of its new owner or owners (e.g., Demsetz 1967).

This argument has been extended to the encouragement of new knowledge through intellectual property rights that, in effect, privatize new knowledge. The economic rational is that given the public goods nature of knowledge, a producer cannot capture revenues to cover costs, let alone earn profits, in the absence of such rights. The resulting monopoly, e.g., copyrights and patents, are justified, however, by full public disclosure of new knowledge, e.g., through full patent application disclosure or publication and its eventual total and complete absorption into the public domain. Society benefits because expansion of the public domain contributes to economic growth by enriching the knowledge base of everyone who wants to know.

The public domain, however, is unlike any natural resource commons. Most obviously, the public domain is artificial - it is human-made. And, as Herbert Simons stresses, there is a need for a clear epistemological distinction between the sciences of nature and “the sciences of the artificial” (quoting Simons, Layton 1988, 91). Similarly, a clear distinction must be made between the economics of the public domain and those of natural resources.

In many ways the public domain is the inverse of a natural resource commons. First, use of the public domain does not reduce the quantity of resources available to others. Second, in its normal state the public domain grows and will continue to grow until the collapse of human civilization in its contemporary incarnation. Such growth may be slowed by IPRs and other impediments but the biological need to know insures growth of the public domain. Third, while there can be no subtractions from the public domain through use, additions are not simply additive. Rather, additions combine with existing knowledge mutating and generating yet more new knowledge. Or, in terms of Isaac Newton’s famous aphorism: “If I have seen further it is by standing on the shoulders of Giants.” The public domain is not a domain of scarcity but of fertile abundance. In this sense the public domain, unlike any natural resources commons, exhibits increasing returns to scale.

Cultural Property

While all knowledge eventually enters the public domain some of it, in effect, is nationalized to become ‘cultural property’, i.e., part of national or even global patrimony. It then becomes subject to domestic market restrictions as well as export and import controls of varying severity in the form of cultural property rights (CPRs). It is important to note that it is not the content or function of a work that becomes cultural property but rather the ‘original’ matrix in which it is fixed, e.g., a Guttenberg Bible or Faraday’s first electric motor of 1821.

The modern concept of cultural property was birthed by Henri ‘Abbe’ Grégoire (1750–1831) during the height of the French Revolution. His success can be judged relative to the fact that:

Public responsibility for the conservation of artifacts of historic or aesthetic value is now acknowledged everywhere. One way or another the state will ensure preservation of a Stonehenge or a Grand Canyon as well as a great many lesser cultural icons. (Sax 1990, 1142)

Commissioned by the National Convention in 1794, Grégoire, produced three reports, the first of which was entitled: Report on the Destruction Brought About by Vandalism, and on the Means to Quell It.Grégoire coined the term ‘vandalism’. In effect he asked:

Why should caring for paintings, books, and buildings be a concern of the nation? Why, especially in a republic that was beginning radically anew, should monuments redolent of the values of the old regime be respected? (Sax 1990, 1144)

He framed his answer, in Republican terms, by asking in turn: What does the spirit of liberty require? He offered three answers:

First, that liberty is only realized where the talent and creative energies of the individual flourish. Second, that only where tolerance for difference and respect for creativity exist can that flourishing occur. And third, that the pursuit of knowledge and repudiation of ignorance are essential to a process where talent and creativity will blossom. (Sax 1990, 1155)

Two qualifications are needed to the above description of Law as it relates to knowledge. First, rights of creators vary significantly between Anglosphere Common Law and European Civil Code traditions. Thus under the Civil Code artists/authors/creators enjoy imprescriptable moral rights, i.e., they cannot be signed away by contract. This includes employees. Such rights are viewed as human rights based on the Kantian convention that original works are extensions of their creator’s personality. Where in the Anglosphere moral rights are recognized, e.g., in Canada, they remain subject to waiver if not outright assignment to a proprietor. This reflects among other things the Anglosphere legal fiction that Natural and Legal Persons enjoy the same rights. Imprescriptible rights significantly enhance the bargaining power of individual creators, an increasingly important question in a knowledge-based economy characterized by increasingly contract and self-employment rather than a life long employer.

Second, in the course of the current digital revolution content is being converted from analogue to digital format. By this act a new term of copyright begins for each new fixation. There has also been an outbreak of ‘patent wars’ where instead of an incentive to creativity, legal protection becomes a weapon in market competition. A similar development is taking place with respect to ‘copyright abuse’ by rights holders.

Traditional

At the extreme, cultural property includes all the artifacts of daily national life. Traditionally, however, it is restricted to a limited range of things or rather artifacts distinguishable from the ordinary by their aesthetic value, cultural significance, rarity and/or age. Designated or listed works– artworks, books, buildings, monuments, et al – usually can be bought and sold domestically (within limits imposed by the State) but not necessarily internationally. Traditional cultural property is thus subject to differing national policies limiting both domestic and international trade.

The traditional cultural property economy is populated by artists, collectors, dealers and auction houses, museums, art historians, archaeologists, ethnographers and, of course, national cultural officials (Merryman 2005). A significant problem is theft and subsequent illicit import and export of traditional cultural property between countries. Thomas Hoving, former curator of the Metropolitan Museum of Art, and subsequently president of Hoving Associates, estimated that, ounce for ounce, art and antiquities are more valuable than heroin; they yield a higher rate of return at less risk and face significantly less punitive criminal punishments (Chartrand 1992). In fact, since the time of Abbe Grégoire, protection of traditional cultural property has been extended beyond Nations to all of humanity. Arguably this gained clearest expression with the 2003 UNESCO Declaration on the Intentional Destruction of Cultural Property made in response to Taliban destruction of the colossal Bamiyan Buddhas in 2001.

Contemporary

In the 20th century the concept of cultural property was extended to State protection or rather support of contemporary creation. Thus in the 1947 General Agreement on Tariffs and Trade (GATT), there are four provisions making a distinction between cultural and other goods and services in international trade. First, quotas are protectionist measures that run counter to the free circulation of goods under Article XI. However, an exemption is granted in Article III (10) with respect to cinema exhibition. Second, Article IV is entirely devoted to special arrangements for fixing quotas in the film industry. This provision represented a compromise between the USA film industry and the Europeans keen to maintain quotas first established between 1919 and 1939. They have since been extended to television and other so-called ‘cultural industries’.

Third, under Article XX (a), restrictions on free trade are permitted to protect public morals. To the degree public morals are part of national culture then foreign cultural goods threatening public morals may be restricted. The most obvious example is Islamic societies which hold fundamentally different values from the West about the image of women. Similarly, controversy about sex and violence in books, film, video and TV has also traditionally been used to justify restrictions on cultural goods imported from more 'liberal' countries. The classic example was ‘kiddie porn’ once exported from Scandinavian countries. Social science research in those countries, at the time, suggested no harm flowing from such products. Under international pressure, however, the trade has since ceased. Multilateral instruments dealing with trade in obscene materials and artifacts in fact form part of the contemporary multilateral intellectual & cultural property rights regime

Fourth, under Article XX (f) of GATT, exceptions to free trade allow protection of traditional cultural property including artistic, historic and archaeological treasures. Similarly, Article 36 of the Treaty of Rome, which created the European Union, exempts cultural treasures from the general prohibition on quantitative restrictions on trade.

With the fall of the Berlin Wall, a new era began. Some argue that global conflict based on ideology was replaced by the clash of cultures. (Huntington 1993) It will be where the “tectonic plates” of different cultures meet that conflicts will erupt. The 1990s tragedy in the Balkans between Catholic Croats, Orthodox Serbs and Moslem Bosnians who share a common language (Serbo-Croatian) and a common ethnic background (Southern Slavs) demonstrates that it takes only one significant cultural difference (in this case, religion) to lead to genocide, ethnic cleansing and cultural vandalism.

Yet more subtle and simmering differences and disputes between allies, long suppressed in the bi-polar global struggle, have also re-surfaced. Some such differences find expression in the concept of ‘cultural sovereignty’. The term has been current in Canada since introduced at the height of the struggle for Quebec independence during the 1970s. It speaks to a world (or a Nation State) in which military and economic sovereignty has been compromised, if not totally surrendered, through alliances with others. In such a world sovereignty can openly be expressed only through the ‘soft power’ of culture. Since that time, the term has attained the global diplomatic stage.

Cultural sovereignty, in effect, involves the struggle to be heard at home and abroad above the booming voice of the American entertainment industry that has succeeded in penetrating the cultural marketplace of every nation on earth. The one remaining superpower is thus also a global cultural colossus spanning East, West, North and South. Fuelled in part by the peculiar pricing methods used in the entertainment arts, i.e. a rate per viewer rather than the production cost of the work itself, the high technical standards embodied in American entertainment arts programming have set the bar for audiences around the world. As domestic audience dollars flow to American programming, however, they flow out of a country leaving the local arts industry poorer financially and culturally in that local production is not encouraged.

On the economic front Canada, France and Sweden, among others, continue to press the World Trade Organization to maintain its exemption of cultural goods and services from free trade. These countries, together with others, have created a web of international film and television co-production agreements intended to generate the high production standards demanded by audiences at home, abroad and especially in the American marketplace itself. In effect, these countries are manipulating the regulatory environment to engineer a financially viable arts industry through control of the electromagnetic spectrum and other communications media. In these efforts, the Canadian attempt to build ‘Hollywood North’ has led the way. With innovation of the Internet, similar questions of cultural sovereignty are arising, e.g., the success of Google search and book scanning led France and the European Union to respond with counter-measures to compete.

The right of Nation States to subsidize and otherwise support their domestic cultural industries – free of free trade restrictions - was recognized by the 2005 UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions. At the conference, one hundred and forty-eight countries approved; the United States and Israel voted against; and, four abstained. This highlights again the ‘exceptionalism’ of the United States with respect to both intellectual and cultural property rights.

Intangible

Traditional and contemporary cultural property invokes State protection for the preservation and/or production of works that codify or tool knowledge into an extra-somatic matrix called an ‘artifact’. This may be a book, building, machine, motion picture, painting, scientific instrument, sound recording, tapestry, et al. Intangible cultural property, on the other hand, invokes State protection for the preservation and transmission of tacit personal knowledge, i.e., knowledge fixed in a Natural Person that cannot easily be encoded.

That tacit personal knowledge finds expression in performance (or demonstration) was one of the insights of philosopher of science Michael Polanyi ([1958], 1962). For Polanyi, we ‘indwell’ in our codes (languages) and our tools as extensions of ourselves. They become subsidiary to our focal consciousness. We feel where the hammer hits the nail not the hand holding it. The tacit ability to manipulate code and tool matter/energy to serve human purpose constitutes technology in its original sense of ‘reasoned art’ – from the ancient Greek techne meaning art and logos meaning reason. Tacit knowledge, in turn, has become a bone of contention in discussion about the emerging knowledge-based economy (Cowan, David & Foray, 2000).

Intangible cultural property has specific meaning for three groups of people: (i) preliterate and tribal peoples of the Third and Fourth Worlds; contemporary artists, artisans and technicians facing de-skilling; and, so-called ‘Living Treasures’.

(i) Preliterate & Tribal Peoples

In preliterate societies knowledge is transmitted orally, usually through the mnemonics of chant, ritual and storytelling, enforced through religious practice and taboo. The association of rhythmic or repetitively patterned utterances with supernatural knowledge endured well into historical times. Among the ancient Arabs, for example, the word for poet was sha'ir, “the knower”, a person endowed by the spirits with knowledge (Jaynes 1978).

Oral tradition remains the dominant form of inter-generational and intra-generational transfer of knowledge among peoples of the Fourth World – aboriginal or indigenous peoples. It can only be transmitted and the fabric of the culture maintained through person-to-person communication. It is not codified extra-somatically. To many tribal peoples, a song, story or icon does not belong to an individual but to the collective. Rights are often exercised by only one individual in each generation, often through matrilineal descent.

The intellectual property rights regime, however, is based on three principles: (a) fixation of knowledge in material matrix; (b) limited duration of rights before knowledge enters the public domain; and, (c) rights are granted only to a Person – Natural or Legal. This means that: (a) ephemeral works such as the spoken word are not protected; (b) tribal traditions granting rights in perpetuity – as long as the rivers flow and the sun shines – have no legal standing because the knowledge is in the public domain; and, (c) family lines, clans or tribes are not Persons in a legal sense and hence can have no standing in court unless they incorporate and adopt alien ways of governance.

The question of “appropriation” has arisen in the artistic community regarding the telling of tales and creation of works of art based on Fourth World cultures. At the extreme, the term is ‘cultural vampirism’. On the one hand, some in the First World community recognize ownership by Fourth World peoples of their own cultural property. On the other hand, there are those who believe if artists restrict themselves to their own culture all humanity will be deprived of cultural richness.

An apocryphal example of appropriation is the alleged mid-1980s case of the thunderbird motif used by the Kwakiutl people of west coast Canada. Kwakiutl women knitted woolen sweaters using this design. A pair of Japanese businessmen saw the sweaters on a tour and promptly mass produced them for sale in Asia. Apparently over $100 million in sales were made. Not a penny was returned to the Kwakiutl people. And because such images are considered to be in the public domain the Kwakiutl had no standing in court to seek damages and compensation for the appropriation of their cultural property for the profit of others.

Another aspect of Third (the developing countries of the South) and Fourth World knowledge is traditional environmental knowledge, or TEK, defined as a body of knowledge built up by a people through generations of living in close contact with a specific natural environment. The exploitation of TEK by biotech firms has led to charges of ‘biopiracy’ (Duffield 2002), i.e., stealing the work of others for one’s own profit. Among the leading and most articulate critics is India-born Vandana Shiva (1999). As she has noted, for many Indian farmers “IPR” stands for “intellectual piracy rights”. A case in point is the neem tree, which has been cultivated and nurtured by Indian peasant farmers for millennia as a biopesticide and medicine. American and Japanese corporations “patented” the medicinal and pesticide properties of the tree with no royalties accruing to Indian farmers.

In response Third World countries have increasing sought to protect their biological as well as cultural resources. India, for example, is compiling a 30-million-page electronic encyclopedia of its traditional medical knowledge (as well as yoga positions). Ancient texts in Arabic, Bengalis and Sanskrit are being translated into five global languages - English, French, German, Japanese and Spanish - in an effort to establish ‘prior art’ and prevent others from claiming intellectual property rights (Biswas 2005).

There are thus similarities between Third and Fourth World peoples. However, the Third World is made up of sovereign Nation States. They can pass laws and sign international agreements requiring “national treatment”. Peoples of the Fourth World, on the other hand, are unable to do so. Rather, they must depend on national and international institutions if their cultural property is to be legally recognized. In this regard the 2005 UNESCO Convention on Intangible Cultural Property represents the most fully articulated international expression of global concern.

(ii) Contemporary Artists, Artisans & Technicians

Since the dawn of the Industrial Age, the work of artists, artisans and technicians has been progressively displaced by machines including computers and motion picture projectors. In many cases tacit skills and techniques developed over generations and transmitted through person-to-person communication including performance and demonstration have been lost.

In Science and Technology this is justifiably called progress. It is well documented that what usually begins as a manual protocol of a researcher is passed on eventually becoming embodied in generations of an instrument that are progressively more opaque until finally it becomes a ‘black box’ (Baird 2004; Rosenberg 1994; Cambrosio & Keating 1988). At this point the protocol becomes subsidiary to the researcher allowing focal attention to shift to the next question. Effectively there is no need for a human operator at all. Push button A then B and then get results! New knowledge displaces the old because it is generally superior – the point of the Enlightenment.

In the Arts and Humanities, however, it is not progress in any aesthetic or cognitive sense but rather economics that is at play. New knowledge does not necessarily displace old in these knowledge domains. Rather superior aesthetic and cognitive knowledge is too often displaced or ‘dumbed down’ due to market forces. Thus new knowledge is not necessarily superior but rather cheaper than the old.

Craft or hand methods generally produce superior aesthetic and sometimes technical results but are not subject to mass production and therefore do not enjoy economies of scale. With a limited market for expensive hand-made things there can be but few with the skills necessary to produce them. The knowledge acquired and passed on over generations can thus be lost, forever, in but one How to maintain such intangible cultural property or craft knowledge yielding superior aesthetic results is the point of a movement called ‘Living Traditions’ (White & Hart 1990).

In the ‘live’ performing arts it has similarly been recognized (Baumol & Bowen 1966) that an income gap exists between what it costs to perform a live Mozart concerto and what ticket buyers in a middle class democracy can reasonably afford relative to alternative entertainment opportunities including recordings. It takes the same number of players and time to practice and perform the concerto today as it did in the time of Mozart himself. There are, however, no labour savings devices available. But costs have gone up so much faster than ticket prices that there simply should be, for strict financial reasons, no live Mozart concerto performed evermore.

Yet the ‘live’ performance is qualitatively different and arguably aesthetically superior to the machine-recorded one (Baumol & Oates 1972, 1974, 1976, Tullock 1974, 1976). Should knowledge of how to play Mozart with violin, flute, piano et al with excellence in front of a live audience be allowed to fade away for market reasons? To economist John Maynard Keynes, father of the Arts Council of Great Britain, the answer was no. Rather public subsidy was appropriate to ensure a reasonable supply of a ‘merit good’ that the market itself cannot profitably afford to produce. Put simply: the social and cultural benefits outweigh the costs. In this example traditional, contemporary and intangible cultural property find a common need for State sponsorship through Time.

Alas some important intangible cultural property has been lost to the live performing arts. As I understand it, between 1929 (with birth of the movie palace followed by the Second World War) and the early 1960s no major performing arts venue was erected anywhere in the world. The architects of La Scala, of Carnegie Hall and Massey Hall who knew site lines and acoustics as experiential art forms did not pass on the knowledge to future generations. Their knowledge was not needed nor applied. No apprentices learned the ways of the masters. The knowledge was lost.

When in the 1960s an enormous cultural building boom occurred across the West this knowledge was lacking, or rather, we were ignorant of how to duplicate let alone exceed past master builders. Initially the result was concrete ‘barns’ with bad site lines for the audience and terrible acoustics. Since that time experience has accumulated but generally through Science and Technology enframing and enabling physical nature rather than application of the intangible cultural property of master builders. Again, the 2005 UNESCO Convention on Intangible Cultural Property arguably represents the most fully articulated multilateral expression of global concern.

(iii) Living Treasures

A Living Treasure is a Natural Person who embodies or fixes in their person the cultural knowledge (or some significant part thereof) of an entire People – tribal, communal, regional, national or global. Such Treasures possess a high degree of the knowledge and skills required to perform and/or re-create specific aspects of a community’s intangible cultural heritage. The institution - formal and informal - is well established in many Asian nations.

As with contemporary artists, artisans and technicians, however, Living Treasures are often the last link to skills and techniques of the ancestors. Unlike the West, however, in the Third and Fourth Worlds it is too often not just a technique but an entire culture and its knowledge that is lost with their passing. To ‘link back’ is the meaning of the Latin word re-ligio. In this sense Living Treasures are numinous personalities commanding respect if not reverence linking the Past and Present with the promise that old knowledge will continue to the Future. Again, new knowledge is not necessarily superior to old in the Arts & Humanities. And again, the 2005 UNESCO Convention on Intangible Cultural Property represents the most fully articulated multilateral expression of global concern.

To 4.0 The Multilateral Regime

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