Module 9: Activism

Learning objective

Explore the methods by which similarly situated groups mobilized to persuade intellectual property gatekeepers to allow or protect their desired intellectual property outcomes.

Case Study #1: The Swedish Pirate Party

Challenged Law

On July 1, 2005, Swedish Parliament, the Riksdag, amended its copyright law to comply with a 2004 European Union directive requiring all member nations to ban downloads of copyrighted material absent the rights-holder’s consent. Before the end of the year, a Swedish court handed down the country’s first conviction and fine for an illegal download.

Local Factors

Swedes were well poised to organize against the tightening copyright law because of the following local factors:

• (1) the Swedish government was an early adopter of public high speed broadband, so downloading was particularly easy.
• (2) Swedes were culturally predisposed to understand the property right as a dispensable tool for public good rather than a natural right of the holder
• (3) a grassroots think tank named Piratebyran (or “Piracy Bureau”) had been publicly contesting copyright protection in Sweden since 2003.

Founding the Pirate Party

On New Years Day of 2006, just months after the first file-sharing prosecution, an IT entrepreneur named Rickard Falkvinge formed Piratpartiet, the Swedish Pirate Party.

Neither Falkvinge nor his co-founders had any formal political experience when they made the decision to start the party. They did know that the party needed 2,000 signatures to formally register with the Swedish Election Authority, Valmyndigheten, so they hosted a website for citizens to publicly declare their membership and then reached out in person to collect physical signatures.

Once formally registered, the party recruited candidates for the Riksdag elections in September, drafted a party platform, fundraised, and built local organizations in both urban and rural areas throughout Sweden.

Drafting the Pirate Party's Platform

The Pirate Party articulated its copyright policy goals as part of a larger effort to expand freedom of access to culture and protect fundamental rights.

The party issues its platform in numbered versions. Since Feburary 2006, the platform has featured three core principles: fundamental copyright reform, abolition of patents, and government respect for personal privacy.

Under the subheading "Free Our Culture," the Pirate Party declares three detailed policy aims: to reduce copyright protection for any work to five years after its publication, to exempt all derivative works from copyright protection, and to narrowly limit specific exceptions for this general rule to those granted by explicit statutory enactment.

The current edition, titled "Pirate Party Declaration of Principles 3.2," describes an ongoing movement to clear legal obstacles from the path of "the emerging information society."

Version 3.2 also announces the party's open stance toward partnering with any political alliance to achieve its strategic objectives: "Our goal is to use a tie breaker position in parliament as leverage."

The Pirate Bay

The Motion Picture Association of America and its local affiliate, the APB, reacted to the mobilization by bringing suit against the country's largest facilitator of illegal downloads: the Pirate Bay.

Leading up to the suit, American rights-holders had spent considerable resources shutting down U.S. file sharing services like Napster, Grokster, and Morpheus, as well as Bittorrent tracker search engines (which enable one computer to download a copyrighted work more efficiently by connecting it to multiple other computers, each tasked with transferring a small piece of the original file) like Suprnova, Elite Torrents, TorrentSpy, and eDonkey.

As the largest and most infamous Bittorent tracker search engine, the Pirate Bay was a particularly conspicuous facilitator of unchecked illegal downloading, and it was headquartered in Sweden. The Pirate Bay was designed by Gottfrig Svartholm, a former member of the Piratebyran think tank.

Shutting down the Pirate Bay was facilitated by existing EU Directives, and the Riksdag’s implementing legislation was as well. If Sweden refused to enforce its intellectual property laws against The Pirate Bay, the U.S. was empowered to lodge a World Trade Organization dispute resolution proceeding and bring punitive trade sanctions until Sweden complied.

The prospect of U.S. sanctions for Sweden, being a small country dependent on international trade, were sufficient to secure the government's compliance. Furthermore, prospects were heightened to strong probabilities when the U.S. Motion Picture Association of America contacted and directly pressured the Swedish Ministry of Justice to act.

On May 31, 2006, Sweden's government capitulated and granted domestic police a search warrant to raid the Pirate Bay's local facilities and seize its file servers.

September 2006 Riksdag Elections

The clampdown provoked domestic street protests and international media attention. The Pirate Party’s membership shot up by the thousands, especially after the Pirate Bay resurfaced in the Netherlands. To be clear, the Pirate Party has no formal connection to the Pirate Bay or to the Pirate Bureau think tank, but the public perceived the three as substantially linked.

The underage, non-voting population made up the largest part of the swell in membership. Swedish schools regularly hold mock elections, and the Pirate Party took approximately 40 percent of the 2006 student vote. In response, the Pirate Party decided to invest its resources and political capital in the actual votes these members would eventually represent. The party organized “Young Pirates” student groups.

The voting age population in 2006 was less inclined to support the Pirate Party than its underage membership base, especially not at the cost of foregoing the chance to vote for one of the ruling parties. Compounding that disinclination was a July 2006 article in Sweden's daily paper revealing that The Pirate Bay was profiting substantially through advertising revenue. This seemed out of step with the public service ethos The Pirate Bay's leaders had championed to justify risking the country's reputation on their venture. Again, although the Pirate Party has no formal connection to the Pirate Bay, the public perceived them as interconnected.

When the ballots were cast, Piratpartiet earned less than one percent of the vote and therefore failed to qualify for a seat in the Riksdag in 2006.

June 2009 European Parliament Elections

The Swedish Pirate Party was more successful securing seats in the supranational body where U.S. businesses had originally worked to change European copyright law in 2004. It gained 2 of 736 seats in the June 2009 elections for European Parliament.

Turnout for the 2009 European Parliament elections was relatively paltry. The Pirate Party surged as support for its competitors lagged. Piratpartiet earned more than seven percent of the Swedish vote, most of which it picked up from Sweden's Left Party.

The Party's two elected Members of European Parliament (MEPs) are anti-software patent activist and former technology executive Christian Engstrom and 22 year old, former student Amelia Andersdotter.

Present Day

The Pirate Party now has 49,000 members.

If the party gains Riksdag representation after this year's elections on September 19th, its non-partisan stance will provide the flexibility either to bring the Red-Green voting bloc to power or alternatively to increase the narrow majority currently enjoyed by the existing ruling bloc.

Still, even before the polls close in 2010, it is certain that the Pirate Party has expanded its influence over the last three years. All of Sweden's major left wing parties now voice public support for liberalizing copyright penalties for private individuals who download for non-commercial personal use. This is the most important and sought after plank of the Pirate Party's platform.

Case Study #2: "Click Wrap" Licenses and the Uniform Commercial Code

Model Laws

For organizations who wish to maintain autonomy over their message and political power, for instance by keeping them away from electoral constituencies, another effective channel for mobilization is to influence the development of model laws. By inviting legal experts to convene with stakeholders and drafting an idealized version of the law, interest groups can give concrete specificity to their positions and also encourage legal communities to offer policy alternatives and critiques.

Mechanics of the UCC

In the United States, contract law is largely governed at the state level. To promote national uniformity of contract law, a prominent organization of legal scholars and practitioners named the American Law Institute (ALI) works with the National Conference of Commissioners on Uniform State Laws (NCCUSL) to publish the Uniform Commercial Code (UCC), a comprehensive, nonbinding model set of contract laws which it upholds as the ideal version of state law. The UCC is not published on behalf of any one set of political interests or legal perspectives. That aura of objectivity, which the ALI-NCCUSL sustains by opening their drafting process to legal practitioners and scholars of all political stripes, backgrounds, and sources of expertise, is what encourages state legislatures tp customarily enact these model laws with few alterations. In 1994, the ALI began work with the NCCUSL to craft an addendum to the existing UCC for “click wrap” licenses.

Mechanics of "Click Wrap" Licenses

Since the 1980’s, mass distribution software companies had been encasing their products in plastic wrappers called “shrink wrap” and including with each product a document listing contract terms between the software producer and the purchaser. Sometimes, software companies claimed that any customer who tore open the shrink wrap in order to open a purchased software product had, in doing so, agreed implicitly to the listed contract terms on the document enclosed in the packaging. Software companies referred to this practice as “shrink wrap” licensing. More commonly, they claimed that any customer who continued to use the product after having had an opportunity to read the listed contract terms on the document enclosed in the same packing had agreed implicitly to the terms of the document. When continued use of the product consisted of loading the software onto the customer’s hard-drive, the practice became known as “click wrap” licensing.

As the practice expanded, academic critics and consumer groups increasingly challenged the enforceability of these licenses, because software consumers did not have a chance to read the terms until they had purchased their software products and brought them home. Imagine the software consumer takes her purchased product home. She opens the package and begins to install the software. The installation process ceases and presents the user with a “License Agreement” stating that express and implied warranties and consequential damages are all disclaimed if she continues to install. If she refuses, she has no cost-neutral option. She must spend the time and transportation or shipping costs to return the product, select a new product, and compensate for the time lost in that process. Alternatively, she can agree to the license and thus bare the risk that the software she bought is defective, even though she has no control over, or information about, the software company whose products she consumes.

The ALI Provides An Entryway

The ALI and the NCCUSL assigned the task of authoring a new “click wrap” addendum, under proposed UCC Article 2B, to the Drafting Committee on Revision of U.C.C. Article 2. The drafting committee published an initial set of draft model laws in which it suggested that "click wrap" licenses were valid contracts and should therefore be enforceable. Members of the American Law Institute realized that this was a controversial position. The ALI invited potential critics of the drafts to a number of committee meetings to consider potential objections, and also solicited memos and letters.

Criticism from Copyright Scholars

This opportunity provided a pathway for legal scholars well versed in the intricacies and consequences of legal doctrine to explain their positions to a set of de facto legal gatekeepers. Legal scholars like Cem Kaner, Pamela Samuelson, and David Nimmer used the pathway to represent the consumers of software and other copyrighted works in Drafting Committee meetings and via law review articles for an academic conferences with an adjoining journal symposia. They articulated two primary criticisms: first, the inevitable difficulties and inconsistencies which courts would face in enforcing these laws, and second, the likely economic consequences which this legal shift would exact on the software market and related markets.

Legal Argument

Although the software companies framed the legal shift contained in the initial draft as an isolated change to contract law, Pamela Samuelson expanded that frame by pointing to the conflicts between state contract law and federal copyright law which would bedevil the state and federal court system if the proposed Article 2B was implemented across the country at the state level.

Federal Preemption

The United States Constitution limits the federal government's power, but also grants federal law supremacy over contradictory state law for laws the federal government promulgates within those limits. The federal government's Copyright Laws are within proper Constitutional limits.

When the federal government decides to regulate a specific industry or segment of interstate commerce, the practices it makes illegal are not the only elements of federal law which trump state law. Additionally, the practices it necessarily decides are not illegal become federal rights which state law cannot take away. In this way, federal law "preempts" state law.

For example, by not barring resale of books, the courts have found that Congress intended book publishers to lose the right to control their works after they first sell them. Thus, book consumers have a federal right to resell their copyrighted works; and any state contract law which permits book sellers to sell their books under licenses which restrict that federal right will be declared invalid in court.

If Article 2B were to validate shrink wrap or "click wrap" licenses contracting away consumers' rights which federal copyright policy granted, state contract law and federal copyright law would conflict, and courts would likely invalidate this element of each state's law once given the chance to do so on a state-by-state basis.

The potential contradiction between federal and state law in this situation would likely create complicated legal disputes: disputes which would be counterproductive to the goal of unifying contract law to facilitate interstate commerce.

Additional Legal Issues

Furthermore, as copyright scholar David Nimmer pointed out, if mass market click wrap licenses were validated by proposed Article 2B, all software vendors could deprive consumers of choice and competition by using the same "take-it-or-leave-it" click wrap licenses across the industry. Nimmer suggested that this would amount to "'private legislation' that serves to alter en masse the public's rights granted under the Copyright Act."

Economic Argument

Cem Kaner explained in public meetings and with published formal letters how the proposed legal changes would shift the relationship between software companies and their customers. “Whether or not you agree with me, it’s important that you understand that the ground rules are about to change,” he wrote in a March 1996 magazine article.

Kaner customarily explained the software companies’ valid concerns. If contract law was not altered to limit their liability for the consequences of faulty products, the software companies would have to raise the prices of their products to continue to profit and sustain their industry. That liability derived from the legal ban on sellers disclaiming rudimentary warranties about their products, the high burden for sellers to disclaim additional “implied” warranties (e.g., by selling goods, the seller implicitly promises that the goods are suitable to fulfill the ordinary purposes for which such goods are customarily used, and can be sued for breach of contract if the goods are not suitable), and the expansive costs of “consequential damages,” which subject the seller of faulty software to all of the software consumers’ costs, for instance the costs of retrieving lost computer data. The software companies were using “click wrap” licenses to change these default terms into contract provisions which place more of the financial burden on software consumers to fix the problems caused by faulty software. Consumers would have to take more of their own precautions to ensure that the software they purchased and used did not create costly problems.

After articulating his opponents’ position, Kaner's argument then deconstructed those concerns and transitioned into a systematic critique of the proposed legal changes to explain how they would cause problems for the mass market consumer. The proposed Article 2B would dramatically shift contract law and permit the software companies to disclaim and thus eliminate both express and implied warranties with “click wrap” licenses. The increased leverage for software sellers, Kamer argued, would not motivate them to convert their savings into lower costs for their software consumers. Rather, it would motivate the sellers to spend less money testing their products for major problems or for fixing those problems before releasing their products onto the open market.

On its own, such a shift would have drastic consequences. But copyright scholar David Nimmer, among others, explained how the trajectory for future developments across copyright industries (i.e., not just software) would likely shift if state legislatures enacted the version of Article 2B which the ALI Drafting Committee was considering. Nimmer predicted that American consumers would only have the option to buy poetry, art, novels, and feature films from online retail content stores which used an authorization "click wrap" license screen to disclaim all potential warranties.

McManis Amendment

In May of 1997, Professor Charles McManis offered a motion at a Drafting Committee meeting to amend the initial drafts of the proposed Article 2B. The McManis Amendment addressed the legal preemption issue head on, by prohibiting any mass market software license from contracting between a software producer and a consumer in any way that alters the rights provided by federal copyright legislation. It was adopted by a slim majority.

The McManis Amendment provoked a backlash of criticism from software companies who wanted to use mass market licenses to contract around federal copyright law. This dispute about contract and copyright law was largely hashed out in an academic conference at the University of California at Berkeley.

UC Berkeley UCC 2B Conference/California Law Review Symposia

The University of California at Berkeley's Center for Law and Technology hosted a conference in April 1998 to explore the legal implications of proposed Article 2B: specifically how state contract law would intersect with federal copyright law. The conference was cosponsored by the ALI and brought together practitioners and law professors with differing views about that intersection.

A number of useful policy recommendations were discussed and debated, and the conference ultimately had a major impact on the development and ultimate demise of Article 2B. The main thrust of the conference held that "click wrap" licenses did not give consumers the opportunity to meaningfully assent to or reject the terms of non-negotiable mass licenses which they wouldn't see until after they purchased the product and opened its packaging. Though the keynote speaker was Raymond Nimmer, the Reporter to the Drafting Committee, who articulated opposition to the McManis Amendment because he believed Article 2B was already "neutral" in its effects on federal copyright law, the other major thrust was that state contract law and federal copyright law would come into serious conflict and produce an unproductive patchwork of inconsistent laws across the country.

Effects of the Conference/Symposia

By the time a series of academic papers by the conference attendees were published in 1999 in a California Law Review symposium volume dedicated to Article 2B, the ALI and the NCCUSL were sufficiently persuaded that Article 2B's interference with federal copyright law was a fatal flaw.

The NCCUSL issued a declaration that any final version of Article 2B should contain a provision which allows courts to invalidate mass market software licenses that were "unconscionable," and the ALI had deferred approval of the Article pending further consideration of its relationship to federal copyright law.

Finally, in April 1999, ALI-NCCUSL announced that the two groups would not issue Article 2B in a press release.

The NNCUSL later published its own recommendations to validate click-wrap licenses under a model law with a separate title: The Uniform Computer Information Transactions Act. Only two of fifty state legislatures adopted the measure.

Case Study #3: Copyright Law and Folklore

Inadequate Protection for Traditional Knowledge under International and Domestic Law

[FILL ME IN]

The international copyright regime which bounds signatory nations to a specific conception of intellectual property permits little room for alternative value systems. In sharp contrast to American IP norms, many indigenous groups look to intellectual property as a means of protecting the dilution of their cultures rather than treating it as a regulatory system for commoditizing ideas and expressions to sell them in the global marketplace. In order to build up organizational capacity, indigenous groups across the globe have organized through the United Nations to protect their local traditions not merely from theft but often from sale as well.

Because a number of indigenous groups view cultural knowledge and ancient expressions in myths and artwork to be collectively owned and safeguarded, they envision intellectual property as a matter of sovereignty and self-determination. These groups have organized and articulated goals at the international level to gradually escalate their capacity, resources, and even their demands on national governments. Their major grievances are absence of sufficient remuneration for global commercial use of indigenous expressions, widespread disregard for indigenous communal rights, misrepresentation of sacred indigenous cultural elements, and unauthorized publication of sensitive information and privately maintained folklore.

WIPO’s 1998-1999 Fact Finding Missions

The United Nation's World Intellectual Property Organization reacted to the call for respecting indigenous folklore and local customary institutions protecting it by designing nine fact-finding missions covering twenty eight countries to determine the expectations and IP needs of indigenous groups demanding IP reform.

Indigenous representatives informed WIPO officials about mounting obstacles to protecting their own local intellectual property practices, coping with the documentation of sacred elements of their cultures, and staving off the ongoing misappropriation of indigenous expressions by American entertainment industries.

Collecting Reactions to Existing IP Regimes

WIPO organized the respondents' assessments of specific national regimes and published a report. Some respondents favored national public royalty systems for the appropriation of indigenous cultures, and others disapproved of any entrenched system for selling folklore. Some favored government documentation of indigenous folklore, and others felt that would facilitate misappropriation by providing an easy access catalog for individuals seeking new cultural symbols to commoditize.

Collecting Policy Ideas

WIPO also collected local perspectives on how best to organize indigenous populations around intellectual property reform. Some suggested that local customary norms would have to adopt some of the principles of copyright law in order to take advantage of copyright protection. Others called for education/awareness programs, stronger restrictions against public access to their folklore, collective drafting of regional model laws, public funds for legal aid, and more prolonged efforts to clarify existing legal rights for indigenous communities.

Mobilization of Indigenous Communities

The following are a collection of indigenous declarations defining and seeking protection for traditional knowledge.

Model Law for the Protection of Traditional Knowledge and Expressions of Culture Act of 2002

In the Pacific region, indigenous mobilization helped spur the [fModel Law for the Protection of Traditional Knowledge and Expressions of Culture Act of 2002. The Model Law was designed after conferral sessions between representatives from New Zealand, American Camoa, the Cook Islands, and Fiji Islands, Micronesia, French Polynesia, Guam, Palau, Tonga, Vanuatu, Papua New Guinea, Wallis and Futuna, New Caladonia, France, and Australia. The Model Law grants two sets of rights to the owners of traditional knowledge, moral rights and traditional culture rights.

Clause 13 grants moral rights to the "traditional owners of traditional knowledge or expressions of culture." Under Article 13, traditional owners of traditional knowledge and expressions of culture have the right of attribution, the right not to have ownership falsely attributed to them; and the right not to have their traditional knowledge and expressions of culture subject to derogatory treatment. The rights continue in force in perpetuity and are inalienable, and cannot be waived or transferred.

Traditional cultural rights comprise of the right of traditional owners to give their prior and informed consent (or not) to a range of non-customary uses of their traditional knowledge or expressions of culture and the right of traditional owners to use their traditional knowledge or expressions of culture in the ways listed in clause 7(2) in the exercise of their traditional cultural rights.

Prospective users who want to use traditional knowledge in accordance with customary rules need not seek permission to do so. Prospective users who want to use the traditional knowledge in a non-customary manner, as defined in clause 7(2) must seek obtain permission to do so by consulting the Cultural Authority of the country or by contacting the traditional owners directly.

Clause 11 clarifies that traditional cultural rights do not override intellectual property rights.

Clause criminal--FILL ME IN

what about this:Pacific Regional Framework for the Protection of Traditional Knowledge and Expressions of Culture, 2009

The Mataatua Declaration, New Zealand, 1993

One of the most notable global declarations of these grievances was the Mataatua Declaration on Cultural and Intellectual Property Rights of Indigenous Peoples, forged after a conference in June of 1993. The conference was hosted by the nine tribes of Mataatua in New Zealand, and over 150 delegates from fourteen countries attended.

The Declaration exclaimed that indigenous groups were the exclusive owners and primary beneficiaries of indigenous knowledge and folklore, and that all forms of misappropriation, whether discriminatory depiction or commercial exploitation, "must cease."

Suggesting Political Tactics

The Declaration provided suggestions for indigenous groups across the world, which was an essential element to mobilizing a globally dispersed political base. In a section labeled "Recommendations," indigeneous groups were instructed to define their own intellectual property practices and develop a code for external users to observe which included sanctions for misuse.

Demands on States

The Declaration also demanded that individual state governments recognize indigenous groups' rights as the keepers of their cultural expressions and incorporate notions of multi-generational, cooperative, collective ownership over culturally significant items.

Kari-Oca Declaration and the Indigenous People's Earth Charter, 1992

Indigenous groups Asia, Africa, Europe and the Pacific promulgated the Kari-Oca Declaration and the Indigenous People's Earth Charter in Brazil in 1992 and reaffirmed in Indonesia in 2002. The section on culture, science and intellectual property, declares that:

1. Material culture is being used by the nonindigenous to gain access to our lands and resources, thus destroying our cultures.
2. Most of the media at this conference were only interested in the pictures which will be sold for profit. This is another case of exploitation of indigenous peoples. This does not advance the cause of indigenous peoples.
3. As creators and carriers of civilizations which have given and continue to share knowledge, experience, and values with humanity, we require that our right to intellectual and cultural properties be guaranteed and that the mechanism for each implementation be in favour of our peoples and studied in depth and implemented. This respect must include the right over genetic resources, genebanks, biotechnology, and knowledge of biodiversity programs.
4. We should list the suspect museums and institutions that have misused our cultural and intellectual properties.
5. The protection, norms, and mechanisms of artistic and artisan creation of our peoples must be established and implemented in order to avoid plunder, plagiarism, undue exposure, and use.
6. When indigenous peoples leave their communities, they should make every effort to return to the community.
7. In many instances, our songs, dances, and ceremonies have been viewed as the only aspects of our lives. In some instances, we have been asked to change a ceremony or a song to suit the occasion. This is racism.
8. At local, national, and international levels, governments must commit funds to new and existing resources to education and training for indigenous peoples, to achieve their sustainable development, to contribute and to participate in sustainable and equitable development at all levels. Particular attention should be given to indigenous women, children, and youth.
9. All kinds of folkloric discrimination must be stopped and forbidden.

Santa Cruz de la Sierra Statement on Intellectual Property, Bolivia, 1994

The Coordinating Body of the Indigenous Peoples of the Amazon Basin (COICA) organized the International Consultation on Intellectual Property Rights and Biodiversity held at Santa Cruz de la Sierra, Bolivia in September 1994. The COICA Statement echoed the self determination theme of the Mataatua Declaration. It declares that

"For members of indigenous peoples, knowledge and determination of the use of resources are collective and intergenerational. No .. individuals or communities, nor the Government, can sell or transfer ownership of [cultural] resources which are the property of the people and which each generation has an obligation to safeguard for the next."

"Work must be conducted on the design of a protection and recognition system which is in accordance with ..our own conception, and mechanisms must be developed .. which will prevent appropriation of our resources and knowledge."

"There must be appropriate mechanisms for maintaining and ensuring the right of Indigenous peoples to deny indiscriminate access to the [cultural] resources of our communities or peoples and making it possible to contest patents or other exclusive rights to what is essentially Indigenous."

Julayinbul Statement on Indigenous Intellectual Property Rights, Australia, 1993

The Conference on Cultural and Intellectual Property held at Jingarrba adopted the Julayinbul Statement on Indigenous Intellectual Property Rights. The declaration reaffirms the right of Indigenous Peoples and Nations "to define for themselves their own intellectual property, acknowledging ..the uniqueness of their own particular heritage..." It states that "Aboriginal intellectual property, within Aboriginal Common Law, is an inherent, inalienable right which cannot be terminated, extinguished, or taken .. Any use of the intellectual property of Aboriginal Nations and Peoples may only be done in accordance with Aboriginal Common Law, and any unauthorised use is strictly prohibited."

Domestic Sui Generis Regimes

Visit the section on Traditional Knowledge#Examples of Nation Specific Rules Governing Traditional Knowledge Traditional Knowledge for examples of Sui Generis legal regimes.

Examples of Indigenous Protection of IP Rights

Training about IP Rights and Technology Uses

In 2008, two members of a Maasai community from Laikipia, Kenya and an expert from the National Museums of Kenya traveled to the American Folklife Center (AFC) and the Center for Documentary Studies (CDS) in the USA for intensive, hands-on training in documentary techniques and archival skills necessary for effective community-based cultural conservation. WIPO provided IP training. A video about the training is available [javascript:popup_window('/multimedia/en/cultural_heritage/maasai/index.html',360,320) here]. In August 2009, WIPO provided the Maasai community in Kenya with digital technology to record their cultural heritage. WIPO trained attendees, providing them with requisite technical skills, a digital camera, sound recording equipment and a laptop to document and digitize their cultural heritage on an on-going basis.

Contracting IP Rights at The Garma Festival, Gulkula, Australia

The Garma Festival is a celebration of the Yolngu cultural inheritance. Regarded as Australia's most significant Indigenous cultural exchange event, the Garma Festival attracts around clan groups from north east Arnhem Land, as well as representatives from clan groups and neighbouring Indigenous peoples throughout Arnhem Land, the Northern Territory and Australia. Garma is organised by the Yothu Yindi Foundation, a not-for-profit Aboriginal charitable corporation with charitable status. All attendance fees and other revenues received go to the operation of the Foundation's programs and projects, such as Garma, to achieve the following outcomes:

Encouraging and developing economic opportunities for Yolngu through education, training, employment and enterprise development

Sharing knowledge and culture, thereby fostering greater understanding between indigenous and non-indigenous Australians

Nurturing and maintaining of Yolngu cultural traditions and practices

Garma Festival organizers require that attendees sign the General Authority to Make a Record of the Festival contract if attendees seek to take photographs or make any other recording of the event. It is inappropriate to take any photographs of Yolngu without first seeking the permission of a senior elder.

Seeking Consent from the Sto:lo Nation for use of Cultural Heritage

Sto:lo Nation Heritage Policy requires users of Sto:lo Nation cultural heritage to seek consent from the Nation and to give proper attribution. It prohibits users from misrepresenting their affiliation with Sto:lo Nation. The policy allows for the fair use of excerpts of cultural heritage, except for property that is confidential, secret, or private, if the heritage is used for educational, informational, commentary, or purposes other than profit, as long as the Stó:lō owner is properly referenced. Prior consent is still encouraged for this use, but is not required.

Seeking Prior Informed Consent for Ethnomusicological Recordings in Indonesia

A video discussion and tips are available here.

Using Trademarks to protect IP

The Gab Titui Cultural Centre, Thursday Island in the Torres Strait Islands, Australia, is a public keeping place for historical Islander artefacts and traditional and modern art. It registered a trademark to use for Torres Straits cultural material. (AU Trade Mark number 994221)

The Silver Hand Program in Alaska, US, uses the Silver Hand Logo and tag to promote authentic Alaskan Native art made in the state. A permit to use the tag is awarded for two years from the date issued and must be renewed every two years to remain active. Only eighteen year old, full-time residents of Alaska, who can verify Alaska Native tribal enrollment and who produce art exclusively in the state are eligible for the seal. Only original artwork, not reproductions, may be identified with the Silver Hand seal.

In 1999, the Pauktuutit Inuit Women’s Association of Canada sought to protect their intellectual property rights in the amauti, a traditional Inuit women's parka when a representative from Donna Karan, NY, a fashion designer, visited the western artic, seeking inspiration for the 2000 fashion line. The Pauktuutit Inuit Women's Association mobilized a media and letter writing campaign to put a stop to this misappropriation of Inuit culture. The plan to protect the amauti involved three stages: seeking the thoughts and opinions of the key stakeholders — Inuit clothing producers, completed in May 2001 at a workshop in Rankin Inlet, Nunavut. The next stage involved developing a national inventory or registry to recognize all the seamstresses and designers and to document the regional variations in designs. The third stage envisioned an association of manufacturers who will share a trademark or mark of authenticity that will guarantee the consumer that they are buying a true handcrafted product. As of Feb. 18, 2010, no trademark mentioning Amauti was located on the Canadian Intellectual Property Office Trademark Database.

Background Sources

General

BOOK: Susan K. Sell, Private Power, Public Law: The Globalization of Intellectual Property Rights. Cambridge: Cambridge University Press, 2003.

Sweden's Pirate Party

WIKI: Wikipedia: Pirate Party (Sweden)

SCHOLARLY ARTICLE: Miaoran Li, "The Pirate Party and the Pirate Bay: How the Pirate Bay Influences Sweden and International Copyright Relations," 21 Pace International Law Review 281, 2009.

SCHOLARLY ARTICLE: Jonas Anderson, "For the Good of the Net: The Pirate Bay As a Strategic Sovereign," Cultural Machine, Volume 10: 2009.

SCHOLARLY ARTICLE: Henry Chu, "Sweden's Pirate Party Battles Web Laws," Los Angeles Times, 27.12.09.

NEWS ARTICLE: "Swedish Pirate Party gains votes in European elections," The Independent, 08.06.09.

SCHOLARLY ARTICLE: Marie Demker, A New Era of Party Politics in a Globalised World. The Concept of Virtue Parties, University Of Gothenburg: The Quality of Government Institute, September 2008.

NEWS ARTICLE: Quinn Norton, "A Nation Divided Over Piracy," Wired, 17.08.06.

NEWS ARTICLE: Quinn Norton, "Secrets of the Pirate Bay," Wired, 16.08.06.

NEWS ARTICLE: Quinn Norton, "Pirate Bay Bloodied But Unbowed," Wired, 06.06.06.

NEWS ARTICLE: Ann Harrison, "The Pirate Bay: Here To Stay?," Wired, 13.03.06.

NEWS ARTICLE: "Sweden Convicts First File-Sharer," BBC News 25.11.05.

"Click Wrap" Licenses and the Uniform Commercial Code

WIKI: Wikipedia: Uniform Commercial Code

Garry L. Founds, "Shrinkwrap and Clickwrap Agreements: 2B or Not 2B?", 52 Federal Communications Law Journal 99, 1999.

SCHOLARLY ARTICLE: Pamela Samuelson and Kurt Opsahl,"Licensing Information in the Global Information Market: Freedom of Contract Meets Public Policy," 21 European Intellectual Property Review 386, 1999.

SCHOLARLY ARTICLE: Pamela Samuelson, "Symposium: Intellectual Property and Contract Law for the Information Age: Foreword," 87 California Law Review 1, 1999.

SCHOLARLY ARTICLE: Nimmer D, Brown E & Frischling G, "Symposium: The Metamorphosis of Contract into Expand," 87 California Law Review 17, 1999.

SCHOLARLY ARTICLE: Charles McManis, "Symposium: Privatization or Shrink-Wrapping of American Copyright Law," 87 California Law Review 173, 1999.

MAGAZINE ARTICLE: Pamela Samuelson, "Legally Speaking: Does Information Really Want to be Licensed?," 41 Communications of the ACM 9, September 1998.

WEBSITE: UCC 2B Conference Website, 25.04.08.

REPORT: Subcommitteee On Software Contracting Of the Uniform Commercial Code Committee, Briefing Paper: Proposed UCC Article 2B, American Bar Association, 24.07.97.

MAGAZINE ARTICLE: Pamela Samuelson, "Legally Speaking: The Never-Ending Struggle for Balance," 40 Communications of the ACM 5, May 1997.

MEMO: Cem Kaner, Uniform Commercial Code Article 2B A New Law of Software Quality, 3 Software Quality Assurance 10, March 1996.

Copyright Law and Folklore

TEXTBOOK: "Traditional Knowledge, Traditional Cultural Expressions, and Intellectual Property Law in the Asia-Pacific Region." Ed. Christoph Antons. New York: Wolters Kluwer, 2009.

BOOK: Debora J. Halbert, Resisting Intellectual Property. New York: Routledge, 2005.

WORLD BANK POLICY RESEARCH REPORT: J. Michael Finger and and Philip Schuler, "Poor People's Knowledge: Promoting Intellectual Property in Developing Countries." 15.04.04.

MEETING REPORT: Secretariat of the Pacific Community, "2nd SPC/PIFS/NESCO Working Group For Legal Experts on the Protection of Traditional Knowledge and Expressions of Culture." New Caledonia, 2003.

ARTICLE: Srividhya Ragavan, "Protection of Traditional Knowledge." 2 Minn. Intell. Prop. Rev. 1, available here

Contributors

This module was created by Dmitriy Tishyevich. It was then edited by a team including Sebastian Diaz, William Fisher, Urs Gasser, Adam Holland, Kimberley Isbell, Colin Maclay, Andrew Moshirnia, and Chris Peterson.

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Introduction

Course Materials:

• Module 1: Copyright and the Public Domain
• Module 2: The International Framework
• Module 3: The Scope of Copyright Law
• Module 4: Rights, Exceptions, and Limitations
• Module 5: Managing Rights
• Module 6: Creative Approaches and Alternatives
• Module 7: Enforcement
• Module 8: Traditional Knowledge
• Module 9: Activism
• Glossary

The Rotisserie