Y/S/H Junior Faculty Forum, June 5-6 2019 Request for Submissions (including IP)

Yale/Stanford/Harvard Junior Faculty Forum

June 5-6, 2019, Yale Law School

Yale, Stanford, and Harvard Law Schools announce the 20th session of the Junior Faculty Forum to be held at Yale Law School on June 5-6, 2019.

The Forum’s objective is to encourage the work of scholars recently appointed to a tenure-track position by providing experience in the pursuit of scholarship and the nature of the scholarly exchange. Meetings are held each year, rotating among Yale, Stanford, and Harvard. Twelve to twenty scholars (with one to seven years in teaching) will be chosen on a blind basis to present their work at the Forum. One or more senior scholars will comment on each paper. The audience will include the participating junior faculty, faculty from the host institutions, and invited guests. The goal is discourse both on the merits of particular papers and on appropriate methodologies for doing work in that genre. We hope that comment and discussion will communicate what counts as good work among successful senior scholars and will also challenge and improve the standards that now obtain. The Forum also hopes to increase the sense of community among American legal scholars generally, particularly by strengthening ties between new and veteran professors.

TOPICS: Each year the Forum invites submissions on selected legal topics. For the upcoming 2019 meeting, the topics will cover the following areas of the law:

- Antitrust

- Bankruptcy

- Civil Litigation and Dispute Resolution

- Contracts and Commercial Law

- Corporate and Securities Law

- Intellectual Property

- International Business Law

- Private Law Theory and Comparative Private Law

- Property, Estates, and Unjust Enrichment

- Taxation

- Torts

A jury of accomplished scholars, with expertise in the particular subject area, will choose the papers to be presented. There is no publication commitment. Yale, Stanford, or Harvard will pay presenters’ and commentators’ travel expenses, though international flights may be only partially reimbursed.

QUALIFICATIONS: Authors who teach law in the U.S. in a tenured or tenure-track position and have not been teaching at either of those ranks for a total of more than seven years are eligible to submit their work. American citizens or permanent residents teaching abroad are also eligible provided that they have held a faculty position or the equivalent, including positions comparable to junior faculty positions in research institutions, for less than seven years and that they earned their last degree after 2009. We accept jointly authored submissions, but each of the coauthors must be individually eligible to participate in the Forum. Papers that will be published prior to Forum are not eligible. There is no limit on the number of submissions by any individual author. Faculty from Yale, Stanford, and Harvard Law Schools are not eligible.

PAPER SUBMISSION PROCEDURE: Electronic submissions should be sent to Katherine Pothin ([email protected]) with the subject line “Junior Faculty Forum.” The deadline for submissions is February 1, 2019. Please remove all references to the author(s) in the paper. Please include in the text of the email a cover note listing your name, the title of your paper, any coauthors, and under which topic your paper falls. Each paper may only be considered under one topic. Any questions about the submission procedure should be directed both to Christine Jolls ([email protected]) and her assistant, Katherine Pothin ([email protected]).

FURTHER INFORMATION: Inquiries concerning the Forum should be sent to Christine Jolls ([email protected]) or Yair Listokin ([email protected]) at Yale Law School, Norman Spaulding ([email protected]) at Stanford Law School, or Matthew Stephenson ([email protected]) or Rebecca Tushnet ([email protected]) at Harvard Law School.

ISHTIP at Penn, part 1

International Society for the History and Theory of Intellectual Property (ISHTIP) Program 2015

 

Center for Technology, Innovation, and Competition (Penn Law) and the Cinema Studies Program (Penn Arts and Sciences)

 

Early Career, Panel 1 | Peter Jaszi (American University), Moderator

 

Megan Rae Blakely (University of Glasgow) | Intellectual Property and Intangible Culture Heritage in Celtic-derived Cultures

 

Intangible side of IP: owning rights.  We think of developing countries as having culture and developed as having knowledge, but that is a false binary.  Intangible cultural heritage: there’s a quote saying the UK has none to protect. 

 

Tangification: the process of tangible propertization of ICH—ossified and stuck, prevented from evolving and being practiced. 

 

1970 World Heritage Convention: European focused, monuments etc. Berne/TRIPS: conventional IP.  2003 ICH Convention: response to 1970 convention, used language of safeguarding rather than propertizing and protecting.  2003 definition was very broad: practices, expressions, knowledge, skills, instruments, objects, artefacts, cultural spaces, etc. ICH is constantly recreated by the practicing community and must be allowed to evolve. Festivals, performing arts, social practices, etc. Would have to alter it to protect it with IP, which is our default way of protecting things.  US, UK and Ireland are not signatories to 2003 convention, which imposes obligation to list/index ICH; promote awareness, education, and int’l participation; urgent safeguarding of ICH at risk of dying out.

 

ICH provides identity and continuity; continuous recreation. Tangification comes out of IGH, with fixation and ossification and closed-list definitions. Tangification is prerequisite to propertization—necessary but not sufficient for propertization.  Likewise propertization is necessary but not sufficient for commodification, and commodification is necessary but not sufficient to become a commodity/lose cultural meaning.

 

Don’t need propertization even w/tangification and value. Tartan: repurposed to represent clans.  Now there’s a registry for tartan, run by gov’t, taken back from clans.  Wales: Eisteddfod, a language, dance, singing festival—Welsh was removed from courts in 1500s; not until last century was Welsh brought back into legal system and education. Ireland: tourism promotion—when does it become commercial cultural branding?  What it means to be Irish as a tourism/government priority as opposed to community practices of ICH.

 

Recognize power of legal categorization on diverse forms of ICH; create level playing field.

 

Fiona Macmillan: ICH is often understood as resistance to power; lists of ICH are almost entirely used by developing countries. There is often an interest in tourism.  As IP scholars, we always think of commodification through propertization.  But tourism is through another mechanism.

 

Xan Sarah Chacko (University of California, Davis) | Protective Pictures: The Role of the Image in Plant Patents

 

What counts as patentable material has changed with the law, science, and technology. Images have gone from color photos to electrophoresis images of specific gene markers that allegedly produce the result.  Tracks changes in illustration: shift from pure description to explication of the underlying innovation in the images. How do patent visuals fit into longer history of representation in scientific discourse?

 

1930 Plant Patent Act: 17 years of exclusivity for new varieties of asexually propagated plants. Images of plants provide proof of uniqueness: patentability is based on novelty; inventors didn’t have to show method of production, only the novel features. Examining procedure: They were supposed to be artistic/competent, not mechanical drawings, and faithfully represent the appearance of the plant and disclose its distinctive characteristics capable of visual description. Drawings strictly adhered to because they formed the claim.  Most plant patents in this period were roses: image was crucial to show novelty. US breeders created fewer new varieties after 1930 compared to before, looking at horticultural societies’ registration systems which were used to make priority claims. Rise of color photography: color had to be depicted if color was claimed as part of the plant.

 

1970: Plant Variety Protection Act: Visualization of disease resistance is shown by a table.  Visualization as comparison: shows size of seeds, for example.  Photograph takes on value, but not objectivity. Optical consistency alleviates the burden of objectivity; the main objective is to have matching, not naïve realism.

 

1980: Diamond v. Chakrabarty: Tomato plants exhibiting continuous light tolerance—method; plant; gene may all be controlled—genotypic information is part of the patent, showing sequences of genetic markers. New kinds of representation. But even in 2012, we have older forms of representation with images of a cherry including a cut-open cherry, calling back to the tradition of still lives.  Romantic reference? Most of the pages of the application for the cherry are filled w/DNA code.

 

Q: how were drawings used to establish scope of claim and full disclosure of the claim through the image?

 

A: In the first act, the disclosure is the image—even in the text, they can’t tell you how they produced this particular variety—it could have been found in a field.  1970s: post-genomic world it is the genes that are referenced, even if the attribute is color, height, etc. 

 

Silbey: what do the outtakes and drafts look like before the patent is filed?

 

Henrique Carvalho (Birkbeck, University of London) | Drahos’s Ontological Skepticism: Ontological skepticism = reluctance to believe in existence of IP objects.  Cariou v. Prince: most interesting part of litigation for him was Prince’s deposition, which at times read as an Abbott & Costello Who’s On First routine.  (Note that there are copyright claims around that routine!)  Prince claims it’s a painting, not a scanned photograph.  He painted the features “on” the photograph.  He rephotographed images: a “real” photograph, not an image I torn out of the magazine.  He claims it wasn’t a photo of a photo, but a photo of a page. Lawyer and artist use the same word in different senses.  Of course Prince is a prankster, but the gap between them is deeper.  Carve reality up differently.

 

Intangibles are abstract objects.  But they “exist.”  Hard to measure, control, evaluate—hard to believe in?  Peter Drahos was not the first to express skepticism, but did so in articulate and detailed way.  Stakes his skepticism in Philosophy of IP by explaining that property rights entail relations between two people and between a person and an object. But in IP abstract objects are a convenient legal fiction, expanding the commodity production possibilities of capitalism.

 

Drahos asks: by recognizing IP rights, is the law forced to recognize “spooky” entities, universals, Plato’s eternal forms. Gives two alternatives: either only particulars exist and universals are just convenient fictions/mental projections (the Stoic alternative). Or abstract objects exist and aren’t reducible to particulars. 

 

Stoics: they would have us say that universals don’t exist but are still real/subsist in particulars. But that’s hard to understand.  This is a difficulty with the Stoic position. 

 

Type/token: artifacts could be tokens—pieces of paper marked with ink; while type is the abstact object, a particular novel. Two different concrete objects are still the “same novel.”  Nothing spooky about these types. If we say John and Paul are wearing the same tie, we don’t mean that a piece of cloth holds their necks together. We don’t need to believe there is a platonic tie somewhere in another realm of existence to make the type/token distinction.  Types don’t have a specific spatial/temporal location; but they don’t have to be “elsewhere.”  They have multiple tokens/are repeatable. And they may have some spatiotemporal properties: date of creation.  Types can share material predicates w/their tokens, such as “being made of silk.”

 

Drahos dismisses a philosophical approach because it doesn’t connect existential concerns over abstract objects to questions about power.  Drahos implicitly still sides w/the realists/denies abstract objects exist.  Suspension of disbelief has material consequences in decisions on infringement, in which judges/YouTube algorithms are called on to determine whether an item is plaintiff’s work.  Abstract objects serve as the basis of identity judgments.  Using fictional entities = judgments are actually pragmatic/based on convention. But abstractness comes in degrees: it could be not-concrete, or it could be vague.  Identity criteria used in making judgments are key.  Drahos says: Identity conditions of abstract objects are themselves matters of conventional judgments.  But: We need not deny the existence of abstract objects, nor to say that without law all there is are physical objects, to reach this conclusion.

 

Mike Madison: what seems to matter in your framing is pragmatics of legal constructions of objects w/in legal systems v. constructions of objects in art worlds, tech worlds, etc. That’s where the interesting stuff will be—Kevin Collins has written about the type/token distinction. Practical payoff will be most interesting/usable for this community of scholars.

 

Omri Rachum-Twaig (Tel Aviv University) | Genre Theory and Copyright Law: The Common Building Blocks of Creativity

 

Genre as speech act: semantics, syntax, and pragmatics: a system of rules underlying creative activity or works of authorship. Institutional approach to genre: shared social conventions. Analogical approach: genre as biological species or family resemblance—can evolve over time.

 

Genre theory refers to common building blocks of text (including music, visual arts, any type of meaningful object); genre theory sees these building blocks as basis for creative activity. One perspective: author’s—give the necessary tools and constraints for authors to create to begin with. (Cognitive psych understanding of genre.) Also as meaning making tool from audience’s perspective. Allows audience to extract meaning out of creative products and to attach value ot them.  Both ideas and expression can be building blocks for development and creation of genres.

 

Case study: detective story. Edgar Allan Poe v. Arthur Conan Doyle. Very well documented development of genre, still existing and growing; has two central and dominant “first” authors who are chronologically proximate. Similarities b/t Poe’s Dupin & Doyle’s Holmes: dualities—detective and companion; detective combines imagination of poet/mind of mathematician; no interest in intimate relationships; heavy pipe smoker, enjoys long strolls at night, connected to prefect of police; uses logical deduction. Similarities exist both at high and low levels of abstraction—the Locked Room Mystery appears in both detectives’ stories: Murders in the Rue Morgue: murder in upper floor apartment, locked room; window shut closed after murderer fled; in Poe the murderer is orangutan from Southeast Asia accompanied by a French sailor and in Doyle it’s an Aboriginal “little black man” from Southeast Asia accompanied by a former British Marine soldier. Given today’s copyright, he thinks this would be copyright infringement. Cf. Salinger.  (I don’t agree—if you look at all the movie cases, these similarities are unlikely to be enough, though it might make it past a motion to dismiss.)

 

Implications: mismatch b/t legal norm and creativity—genre theory supports the use of expression as common building blocks.  Help rethink normative justification for derivative works; challenges conceptual separation between derivative works and reproductions.  (I think we should reserve derivative works for translation into new mediums, for much this reason.)

 

Q: market dynamics: massive increase in pulp detective novels, for example. The sensation novel is a branch.  Very popular translated (French) author (sp?) into English.  There’s a question of how publishers work, how these works are being marketed, how the contracts are worded.  Underpinning the typology is economic relations that produce/reproduce genre characteristics. Copyright suppresses that discussion through fetishization of originality.

 

A: Agrees there were precedents but Poe and Doyle were well known and very close in their stories.  Looking for inner reasons/processes of author when s/he chooses, consciously or unconsciously, to use specific types of previous knowledge whether idea or expression.  (But that’s not distinct from economics.  Dickens got paid by the word; Dumas by the line—and now you know something about why their distinctive styles are the way they are.  Today, publishers happily tell their good authors which types of books are selling and get them to write those types of books—I know of many examples.)

IP/Gender part 2

KEYNOTE
Introduced by
Michael Carroll, Professor of Law and Director, Program on Information Justice and Intellectual Property, American University Washington College of Law

Justin Hughes, Senior Advisor to the Undersecretary of Commerce for Intellectual Property, Head of United States Delegation to the World Intellectual Property Organization, and Professor of Law at Yeshiva University Cardozo School of Law

In Geneva, working on GRTKF: Genetic resources, traditional knowledge, and folklore—but we don’t use the term folklore any more; now it’s traditional cultural expressions.

1967, last Berne revision; question of folklore came up, resulting in opaque provision arguably providing for some protection. Traditional problem: no author on whom to hang ownership. 1967 revision tried to recognize that this would be conferring a copyright on people who were unknown.

Jamie Boyle: Western IP system focused on rewarding innovation and creativity and thereby undervalued source materials. Indigenous people began claiming a place at the table in discussions. (Terminology: not indigenous people but local culture: Carribean nations, Kenyans say: we don’t have indigenous people, but we do have local culture.)

Following TRIPs, there was a sentiment that rich countries had forced an overly strong one-sided system of strong IP on developing countries. Hughes thinks that TRIPs was a big package, not one-sided, and the overall package brought good and bad. The important thing is not whether the sentiment was right but that it was there and remains with us, triggering calls to rebalance the system. Typically: calls for more exceptions, more compulsory licenses, more tech transfer—weakening of exclusive rights. But in GRTKF it’s the opposite—rebalancing IP means establishing new rights and making them really strong. But it’s not just about wealth, at least for representatives of developing nations (though it may be for rich countries)—recognition, control, and privacy are also concerns of the developing nations. Central government rhetoric is more economic; distinct but allied camps of demandeurs.

IP has never had problems bringing new forms of property into the tent, though often unsuccessfully: sui generis protection for mask works for integrated circuits, database protection (EU, Korea, a handful of other countries). Important: the justification here is completely different. Copyright: need financial incentives to elicit creation of new stuff. TCE and TK: the stuff is already created.

WIPO’s been exploring this for a decade, creating a huge text with multiple proposals. By summer 2010: 18,000 words! Many bracketed, extensive commentary; nearly impossible to make sense of it. How could it take so long to do so little? First, process of international discussion has become more inclusive and thus more difficult. Second, too much political intent and not enough technical expertise. Not enough willingness to reach reasonable results: too much idealism and too much cynicism. Finally, fundamental disagreements that need to be addressed but aren’t.

What do we mean by TCE? Ask traditional folklorists and they’ll say there’s no coherent definition. Gov’t officials are trying to do what folklorists, indigenous people, and anthropologists say they can’t—that’ll go well. Current proposed definition has 50-60 different ideas about what it might be. Lack of discipline/understanding of how to write public international law—“popular tales” and “stories.” Someone inserted “moldings.” Pottery and terra cotta are included. “Folk drama” and “plays, ceremonies, and rituals.” This is why the document bloated. And this is the relatively easy part.

OK, convene experts to clean it up. Working group met in 2010: each country was supposed to send one expert in his/her personal capacity. That should tell you how political the process is—would you really want to pick one expert from each country to fix a global medical/pollution/etc. problem? Also, you need experts in public international law, experts in anthropology, etc.; picking one from each country won’t provide that. US supports the meetings, but they point to a fundamental error in WIPO—the WIPO committee system was supposed to be expert already.

Committee managed to reduce the list to 25 items. Only 2400 words of actual text, approx. size of WIPO Copyright Treaty. Went back to bigger intergovernmental committee. Everyone whose favorite word had gone out came back in. Text grew by 1000 words, but the real problem was that the delegates didn’t seem to see that markers of compromise had been laid down. Maybe they’re too idealistic—insist on perfect result; maybe they’re so cynical they think that the only possibility is continuing conflict and they want to highlight differences between developed/developing countries; maybe some are simply unaware that the proposal was the result of compromise.

Gender: Three groups attend these meetings—Geneva diplomatic corps; government officials; experts. His feeling: gender balance is better with Anglophone and Francophone countries and developed countries.

Who should benefit from protecting TCE and how should the rights be controlled? Easy to say indigenous people should decide, but after that it gets very hard. Developed countries find themselves in position of standing with indigenous peoples against (Hughes said defending) some proposals from developing countries: proposals sometimes put government in charge of controlling, even owning, TCE. But is it clear that central governments are worse than the traditional control mechanisms of indigenous peoples, for example that oppress women or that are matriarchal? The money a country earns often stops at the capital, doesn’t go to the farmers. But the central government might be the most enlightened on human rights. So the challenge is flexibility.

Limitations and exceptions: you want to make sure everyone within the local community can still enjoy their TCE and not be stopped by the elders. One proposal: Free exchange, transmission of TCE within the community—very difficult to capture in law. Another competing idea: maybe rights should extend only to uses outside the membership, or outside the traditional context. US prefers the second idea because the US is a diaspora nation; we want to protect the capacity of our immigrants to enjoy the culture they brought with them. Gender issues arise because immigrant communities may allow women, gay people, young people more power in the immigrant community than perhaps in the country of origin. The US is not sure its message on this is getting through.

Q: about biopiracy.

A: He’s just dealing with TCE. With biopiracy, a key conflict is that some developing nations want patents to be invalidated if they’re based on material for which there was not free, prior and adequate consent given for it to be used. Others agree with developed nations, because there are global health crises that need addressing (and, though Hughes didn’t make it explicit, the idea is that the incentive to research them would be harmed if the resulting patents were at risk).

TCE is not so much about big corporations stealing stuff from indigenous groups (even the Lion King song was from a specific composer who himself used traditional rhythms etc.) as about generations of sketchy anthropological practices. Repatriation of art is another issue, but WIPO isn’t going to engage with that.

Q: will rights help without resources?

A: no, won’t change exodus of young people to cities; slow decline of indigenous communities. Some people see GIs as a way to reverse cultural change, and he’s written a lot about that. You can do some things to empower communities, but not all. Can certainly create protection for secret cultural expressions.

Q: Your description of copyright as incentive is loaded, given that Western creators have noncopyright incentives to create too, right? E.g., open source. Also, what about protecting creative spaces, rather than protecting individual artists? That is, what’s at stake is not just persons but processes, conditions under which works are created.

A: GIs sometimes do protect creative spaces, and sometimes don’t. Many of the most successful GIs have destroyed traditional knowledge—GI creates demand; supply ramps up to meet it, tossing TK out the window. Port production is a classic example—traditional methods are gone and production is industrialized. If a Botswanan GI takes off: Instead of being made by a Botswanan, you will find stuff made by a machine in Botswana.

On the first point, could say that incentives are the official ideology; but he also believes there’s a wide range of creative activity that doesn’t require the incentive, without invalidating the incentive argument. Poetry has never paid for anyone to support themselves. Mainly written by rich gentry until very recently. Open source software is written by people with good jobs: the landed gentry of the modern technological era. But incentives are necessary for films that cost $50 million and drugs that cost $250 million. We can’t tell where the incentives are needed or will be needed. If you don’t need incentives, then don’t use them—write open source. Most of software industry is not open source (100,000 commercial programmers in India); large corporations like open source.

Q: how to distinguish between adaptation and copying of the TCE?

A: comfortable with the necessity of line-drawing to implement a “copying not ok, adaptation ok” rule. Hard decisions, yes, but can develop judges who can do this, especially protecting against slavish copying for commercial purposes. In the US, that might be extremely beneficial for Native American communities, where the current protection is TM-like. The issues are what can insiders do v. outsiders. Picasso was tremendously influenced by African art. Would we want him to have to have taken a license to do what he did?

Q: how do you draw lines between TCE and copyrightable work?

A: we acknowledge that TCE is evolving, not hermetically sealed, but then we confront the question of how to protect today’s versions—copyright is time limited. Who chooses what regime? Excellent question, no particular insight on it.

PANEL 3
Margaret Chon, Associate Dean for Research, Seattle University School of Law
Moderator

Bita Amani, Associate Professor of Law, Queen's University Faculty of Law, Canada
Restitution, Repatriation and Resistance: Reframing the Biopiracy Dialogue Towards Women’s Work
What states should do when faced with competing demands for rights—human rights v. property rights. Corrective justice for a state to its internal communities who were historically disenfranchised by the state on which they’re now made to rely for rights and reparations.

Move from sacredness of life created to scarcity of life invented and commoditized. Disvaluing of women’s work looms large. What women do with plants depends on their relationships within larger structures. Women as gatherers, farmers, keepers of traditional knowledge, adapters of varieties. She would treat all contested instances as cultural expression—even what’s conventionally called biopiracy—as a way to emphasize cultural construction, as well as freedom of expression rights. Instead of exclusion, focus on right to enjoyment: a moral and material interest, without tying that to exclusive rights of the dominant property regime.

Difficulty articulating rights impels a shift to focusing on remedies instead. Unjust enrichment as the appropriate approach. You don’t have to figure out who owns what; can recognize stewardship as a grounds for awarding relief. Disgorgement of profits discourages misbehavior, instead of breach of contract theories which encourage efficient breach.

Jillian De Gezelle, Executive Director, Remedia
Q’eqchi Maya Reproductive Ethnomedicine and the Accelerated Loss of Women’s Traditional Knowledge in Southern Belize
Q’eqchi midwives were dying out when she went to do her research. Male traditional healers were still available. Women’s reproductive health was traditionally the province of women, but now men are taking their place even though they feel it’s not culturally appropriate; lack of women is the cause. Loss of traditional knowledge is greatest among women, who desire better education/resulting greater job opportunities. Remedia is documenting women’s traditional knowledge to reverse the fragmentation of grandmothers’ and great-grandmothers’ knowledge.

Many traditional plants for reproductive uses—her work provides some evidence that some of the plants mimic human estrogens, accounting for their efficacy. One species killed breast cancer cells.

Causes of trouble: Immigration has disrupted traditional networks of education; Belize ministry of health has strongly discouraged traditional midwifery so women are afraid to teach new healers even though it’s not illegal; women lack confidence and devalue their own competence, especially when others do as well; women are tied to domestic obligations and can’t travel widely.

Remedia is developing a women’s traditional plant garden, for use in traditional treatments, research, conservation, and educating a new generation.

Avoid bias: look for practices of knowledge in hidden realms. Focus research on areas of knowledge most in danger of being lost/disappearing most rapidly.

What was once women’s knowledge is now men’s knowledge: IP is a version of that. Ethnobotanists feel we don’t have the tools and knowhow to deal with IP—if we publish species names, that may enable biopiracy. New thinking: publish specifics to establish prior art. This is confusing and ethnobotanists are looking for ideas to preserve and revitalize TK.

Nadia De Leon, Adjunct Professor, Western Kentucky University
Protecting and Commercializing Fluid Tradition: Molas as Women's Global Folk Art
Molas are made exclusively by Kuna women; have become commercialized through tourism. Materials have been updated for modern conditions. Results in change in gender roles and change in Panamanian policy for folk art.

As a result of independence struggle, the Kuna committed to send their children to Panamanian schools and the government committed to protect the traditions and ways of life of the Kuna. The Kuna have autonomy and representation in the central congress; health care provided by the central government.

Kuna cosmology considers women the bearers of original knowledge; control family finances, but not positions of religious or political power. Inheritance is matrilineal; marriage is matrilocal. Four gender roles: men, women, biological women who are men and biological men who are women, defined not by sexual orientation but by obligation/roles fulfilled.

Mola means blouse; now hung on walls but originally made for wearing. Techniques are derived from trade; components come from other countries (needles, scissors, thread, etc.)—emergent tradition that continuously evolves. Making a mola is a sacred duty for self and others in family who can’t make for themselves.

Panamanian government has used mola as general symbol of Panamanianness—used designs in businesses, government, etc. Argument that this is appropriative, but some Kuna also use mola to identify themselves as Panamanian.

Mola income has changed a subsistence economy towards a cash economy. Women-run cooperative producing molas has become quite powerful; sells molas that are incorporated into lots of other products.

Panama prohibited the import of imitation molas (mass produced, printed). Kuna General Congress also prohibited teaching mola making to non-Kuna women. Exclusive and perpetual IP rights for TCE, not just molas—drawing, history.

Q: Justin Hughes cautioned about industrial production taking over. Is that a risk?

A: there have been a lot of changes over time; pieces created for sale are very different than those created for themselves—use colors they’d never use for themselves. Collectives have encouraged return to geometric designs because outsiders see them as more “authentic,” but she hasn’t heard of a move to greater industrialization. Hard to make these other than by hand, especially in the region of production. May have 30 women sitting together stitching one little piece at a time for Christmas decorations, but that’s it.

PANEL 4 Gender Perspectives on the Future of Traditional Cultural Expression Scholarship
Christine Haight Farley, Associate Dean for Faculty and Academic Affairs and Professor of Law, American University Washington College of Law
Moderator

Dorothy Noyes, Associate Professor of English, Comparative Studies, & Anthropology
Ohio State University
Major takeaway of feminist movement: personal is political. Intimate personal relationships can be more oppressive than power at a distance, but proposals to protect TCE ignore close-in power—privileges senior men, local elites, first possible claimant; means accepting their definitions of the boundaries of the community. Prior consent of the community allows lots of slippages; benefits certain actors. Consider how Western actors negotiate in war—US visits the Pashtun male elder—means handing over more power to the senior men.

WIPO gives too much attention to identity maintenance as the point of folklore—for women, can be about transmission of knowledge; can use archaic forms to say things otherwise unsayable. Lullabies; often coded. Habermasian version of Western society tends to privilege visibility. For weak actors, visibility is vulnerability. May want it, but it’s fraught with economic and political dangers. Weapons of weak work only because they’re seen as trivial or ignored. Many women’s traditions need not to be owned but disowned, claimed but disclaimed. Many women’s oral traditions are different from men’s and men may not know this; may not need to know this.

Women are being told: don’t go to university; we need you to stay home and keep weaving. Nobody in Peru can afford to eat quinoa any more now that Westerners are all eating it. Disciplining of women’s folklore as it becomes visible as an economic asset—happening now to make it more palatable for circulation; traditions are no longer available for covert expression or other kinds of performative work. Public male authority can coincide with covert female influence in some traditions. Making the covert visible can raise resentment, anxiety—backfire when outsiders make gender into a category.

Review strategies of disowning: compare strategies like microcredit oriented towards women to see how this works best. Collaborate with communities involved to define the conditions of the lifeworld that enable or impede traditional forms. Consider the risk of preserving hollow forms: you need the extended family structures, the free time, the other conditions to really preserve the TCEs. Otherwise you build a maquiladora and a museum of culture right next door; this is not success.

Instead of talking about how to arm the vulnerable, think about disarming the predators. We are focusing on the supply of exotic cultural goods; we’re naturalizing the demand. We need at least as much to do the ethnography of insatiable Western demand, as we’ve done for racism. Consumer demand is in many ways gendered—who’s taking all that hoodia?

We are in a moment of cultural warming. North likes to believe it can import from South things it’s without—health, culture, closeness to nature, sex. The intensity of our demand risks creating cultural desertification.

And then I had to go--thanks for another great conference!

The Eighth Annual IP/Gender: Mapping the Connections: Gender and Traditional Cultural Expressions

[note: my pick for standout this morning is Sylvia Kang’ara’s explanation of what we understand property to be—both clear and very rich.]

Opening Remarks
Ann Shalleck, Director, Women and the Law Program American University Washington College of Law

Family law is historically the locus of the traditional, the cultural—deals with altruism and solidarity as dominant components rather than individualism and arms-length bargaining. Feminism challenges that exceptionalism in a variety of ways and understand how its development as an exceptional realm is linked to separation of market and family.

Colonial project: Negotiation between colonial powers and local elites: power over economy became colonial/allocated to colonizer; local elites were given some stake in the economy, but large control over family. Decolonization/nation-building: family and family law became a site for struggles about who controls the definition of the natural, traditional, cultural. Family as a site for production overlaps with family as a site of cultural production. Family affects how benefits get distributed—both economic and cultural.

An Ethnographic Framing of Legal Protection for Traditional Cultural Expressions
Moderator: Peter Jaszi, Director, Glushko-Samuelson Intellectual Property Law Clinic, American University Washington College of Law

Women’s work in the home, and the home work of other family members, is invisible—trying to make that visible.

Lorraine Aragon, Associate Professor of Anthropology, University of North Carolina – Chapel Hill
Indonesian textiles: commodification correlates with a reduction in women’s authority. Textiles are a key example for Adam Smith discussing how the division of labor constitutes the invisible hand of the market. Contrast to Indonesia, where women are working on production of cloth not impersonally; they know who the cloth will clothe and the production is collaborative. Done within a kin/society framework. Cloths themselves are gendered female, exchanged in marriage for knives, jewelry, livestock. Women marry into kin groups with their cloths.

Visual iconography in textiles is understood to have a matching counterpart for men in ritual speech. Men have the verbal/oral domain; women speak with cloth. Legally: authorship exists, but practically there is no assertion of individual authorship. Indonesia also has protection for cultural property. State asserts ownership of folklore on behalf of creators; scope is vast and includes dances, calligraphy, artworks, stories. Divides world into modern individuals and traditional groups: one produces modern commodities and the other produces works with use value. Men get put into the first group and women into the second.

Fixation of culture into owned objects is problematic; saying the state owns them collectively is also a problem.

There are ideals of balance between men and women; women control domestic economies. They can inherit wealth, handle money. Household economy is often focused on nuclear family working as a unit. Europeans wanted to deal with the men, even in areas traditionally passed through women (land). These things linger into postcolonial law.

Women are not inferior cosmologically in Indonesia, but they have to beat the odds to gain power and status. Domestic economy, rural horticultural households, have really shrunk over the past few decades, and that’s where women were most powerful.

Commoditization of textiles further diminishes that authority. Loss of gendered production techniques (plant dyes); differences in ability to travel between men and women. Bark cloth: has no commodity value; women retain control over its production; it has almost vanished. Like all textile types, has ritual qualities. Worn by ritual specialists, including elder women and male transvestites whose ritual role is to unite male and female.

Some dyes are taboo to men—symbolic connection between fluids and female fluids. This retains women’s control over the process. As these textiles become attractive to tourists/external markets, they have been marketed in larger areas. Men start to become entrepreneurs—they see in Bali that tourists like X, and they come back and direct women what to make so it can be sold. Become mediators with the market; may have more language skills/English than their wives and daughters. Small factories; introduction of chemical dyes allow men to move into control/positions as designers. Some women’s cooperative groups are trying to maintain older production processes/women’s control.

Commoditization: women are asked to “empty themselves” of creativity to serve the interests of the employer. Creativity becomes about specialized knowledge, autonomy—linked to mobility; not just a personal trait. Creativity is now being remapped on Indonesia as a nation—its “ownership” of batik and the “personality” expressed thereby. Indonesians don’t need a label saying “Batik Indonesia” for themselves—newly developed labeling is for export. Ethnicity, Inc.

Cultural protection seems to promise economic development gains for producers and protection of tradition; tension between these things is rarely recognized.

Boatema Boateng, Associate Professor of Communication, University of California – San Diego
Ghana
Kente cloth: each symbol has a specific meaning. Unlike the male breadwinner/female housewife scenario of classic Western analysis, women’s economic roles in African societies were vital—patriarchy was a distortion of realigning towards Western domination, creating hierarchy where there had been balance before. Focus on gender norms does not fully capture male and female roles in Yoruba society, which gives more attention to seniority.

Women produce dyes used by men to produce adinkra cloth.

Women have registered individual adinkra designs as their own. Gives women an advantage in the masculinized spaces of the law. Men are feminized with respect to the law protecting traditional cultural expression.

Ross Coggins’ poem The Development Set offers a stinging and still relevant critique of professional self-perpetuating development advice. Interrogate protection of traditional cultural expressions in the context of the larger development agenda, structural adjustment programs, etc. Structural adjustment has had adverse consequences for women; how can TCEs possibly function effectively for reversing the significant structural constraints on women’s rights? Must challenge changes in IP regulation that have curtailed the possibility of achieving development through tech transfer. Unless TCEs are harnessed to initiatives that challenge constraints on women’s lives and IP frameworks that put developing nations in the status of producers of raw materials, they have limited potential. Category of TCE itself runs risk of reinforcing distinctions between third- and fourth-world countries and developed world.

African feminist insights: it’s not just about male dominance and female subjugation. Extend gender analysis of development to patriarchal modern state. African female scholars are exploited as producers of raw material for finished goods produced by Western scholars. This is similar to how TCEs work in IP law. Don’t reinforce status of African women, men, and TCE as mere raw material.

Jane Anderson, Assistant Professor of Anthropology, University of Massachusetts – Amherst
Australia
Dispute over improved accessiblity of certain materials, including photos/recordings: Historical documents to some; methods of control to others. Descendants of people captured in the photos: they were not collected freely; there was no discussion of future use; subjects were not considered to have rights. Circulation of photos thus reflects colonial history. Copyright upholds liberal individualism in the archive, continuing to marginalize indigenous people. They didn’t make the photo/recording, so their labor isn’t valued. Indigenous people have to come up with different arguments for access, copying, and control. They are not the public contemplated by the archive.

Indigenous informants are nameless while the recorder/archive keeper is named. Reminds us who has legal rights and who doesn’t.

Imagine that a community wants its own archive; they don’t want to have to travel days to see their own history; they don’t like people turning up with documents they don’t own that are taken to be about them. Colonial archive v. local sites; old works v. present recordings as part of the archive; new relations of control. Very few may be literate—presents problems for digital archives. Can access be made less dependent on written commands? Cataloging and classifying may be of less concern to the community as identifying specific individuals. Legacy of colonial collecting practices continue—indigenous peoples still aren’t owners of materials made/taken from them (including genetic material). Information necessary to make informed decisions is hard to find.

Q: What would need to happen for women to see more benefits of commercialization in Indonesia?

Aragon: Not sure—wage labor could be improved for women doing low-level work. Ask the women. There’s always a focus on the final product, instead of looking at the process and how the workers are being treated. That would be a start.

PANEL 2
Marc Perlman, Associate Professor of Music and Ethnomusicology, Brown University
Moderator

Alicia Ory De Nicola, Research Associate in Anthropology, University College London
Male Printers, Female Designers: Geographic Indication and the Role of Caste, Class and Gender in Indian Traditional Textile Printing

Conflicting local and national interests. Bagru: North Indian printing cluster, handblock printing. Newly adopted GI; already well known in India but the idea is to tell international consumers that there is something unique. Locals have stopped wearing cotton-printed cloth, though. Chinese imports replaced them. Local printers now are looking for global consumer; struggle to adapt. Very difficult for designers—in the past, the artisan was the creator, given patronage. Chemical dyes changed matters. Printers step in to deal with market realities. Two separate communities: printers are male heads of households, working as families. The designers now come from urban areas, well-educated at design schools; access to English and to travel which local printers don’t have—become critical in selling textiles in a global market.

GI protection means the idea of creativity goes back from the designers to the villagers—designers have taken discourse of creativity for themselves; GI is a stamp meaning it was created and that the creative value came from Bagru. But the printers still really need the designers to reach a global market. When you feminize a commodity, you lose a lot of its cultural capital. Here, to an urban middle-class space, losing cultural capital of male head of household’s labor. As part of the household income for male head of household labor, it’s more important economically than it might be to a middle-class household.

In response to questions: she didn’t set out to study this, but people kept bringing it up—they’d been convinced by NGOs/government that this would make them more competitive, since other people had gotten GIs already.

There is a preexisting cultural reputation—Indira Ghandi, Bollywood actresses go to get Bagru saris; the hope is for internationalization of that fame. Also a desire for recognition of worthiness.

Q: but then what happens with diminishing returns when everyone gets a GI—history of appelations for wine?

A: She believes that it won’t be as successful on the international level. Some middle class women have 100s of saris, each from somewhere specific and with specific uses. But she doesn’t think that will replicate.

Middle-class designers are taught a responsibility towards villages: go to village as a source of inspiration and to have connections to those villages. One way for NGOs, designers, and government to see themselves doing that is to follow development schemes.

Q: counterfeiting as an issue?

A: Yes, but not the way you probably mean it. As design companies get bigger and go into rural areas, taking on the idea of creativity themselves, they want to protect their prints. They have printers build walls around the commons to protect their designs. When they were local designs, they were shared by the community. There are copying issues, but really only for designers, not for printers.

Sylvia Kang’ara, Assistant Professor of Law, University of Washington School of Law
Gender and African Traditional Cultural Expression: What does Intellectual Property Have to Do With It?

Property gives a catalog of things that will be recognized as property interests; things outside that catalog are not property. So a system has to explain its catalog. Treating TCE as copyright, TM, etc. is a way of fitting cultural expressions into the catalog without convincing the system that it needs to reopen the catalog comprehensively. Accepts the closed catalog.

Property law also tells us the formal prerequisites for creating an interest. Tells us it’s important for citizens to understand how their interests are created so they can behave accordingly (make a deed, identify owners, engage in transactions). Writing is a key example: the idea is that it gives society notice that a particular interest has been created in a particular person. Without a writing, you have a problem. TCE: how can we register an interest to tell the world? The requirement of signalling gives property law coherence; prevents everyone from claiming everything.

Property law also tells us who is the right holder. Who has a right that they can enforce? Who has a duty to honor that interest? Can conflict with other systems—e.g., a family system. If a right is allocated within the family differently, as a matter of family-based production, you can have a conflict. Using legal language and structure can be costly, especially for women.

Property law also assigns penalties for violation. Remedies may differ. Personal property often has fewer remedies available than intellectual property.

Does receiving traditional wisdom within the family create a status as rights-bearer in that traditional wisdom? What about the perhaps unique formulation used by the speaker of that traditional wisdom?

TCEs are gendered: women may not benefit from them though production takes place in the family. May have unique significance for women because they have spiritual significance. Without a way to say that what women produce in the family is of value it doesn’t make it into the catalog of property law. Catalog needs to be expanded.

Transferability: a key component of Western property. To be property, it needs to be transferable. We need to change that requirement to recognize TCE.

Linking the thing to the individual: exclusive control. This is also not a part of TCE. Expression belongs in/to the community. As long as property law is wedded to exclusive individual control we have a problem. Must recognize work of women within family structures, without consigning women to the traditional or ignoring changes taking place economically.

Q: could say property also functions to enable licensing. In a world of TCE, what kind of licensing would we imagine?

A: Hasn’t focused on that, but it would require a lot of lawyers! Explicit determination of who holds what interest so that they can have the capacity to license. Unless we expand the doctrine, she doesn’t know it can even be done in many countries. What is going on is preservation of culture against unraveling/stealing. Licensing out is a different matter. Distinct from protectionism/preservation.

Q: some responses to historical injustices of property propose to limit scope of property rights. Property law has not been very gender generous. Broadening the catalog may address it rhetorically, but what about distributively?

A: She sees the choice as keeping two spheres separate or broadening legalization. She would prefer progressives to redefine the core of property rights. Retake private law and infuse it with progressive ideas. We can no longer be players at the margins. Spheres will interact whether we like it or not, and that’s where the greatest injustice is. We need to get in on the action, define the terms: what value is, what rights are, who holds rights (head of household only v. others).

Nkiru Nzegwu, Professor of Africana Studies, Binghamton University
The Swakopmund Protocol: An African Response to IP Rights Discourse
Would like to take gender out entirely.

Art is not anonymous; cultures ascribe identity to artist even without signatures, if you know the context. Women could identify the name of the woman who adapted a certain design from Portuguese slavers and brought it into her cloth. So we start with the question: who are the individuals? Anthropology has tried to abandon assumption that cultures are static, but pervades other disciplines, especially when they discuss indigenous peoples (Europe has no indigenous peoples left in this discourse).

Mechanisms for cultural transmission: rules for who gets to learn a practice, within and without the family. African mechanisms are not recognized by intellectual property.

Gender is tied to colonialism and exploitation that came with disparagement of women’s centers of power. Recoup that by dealing with the processes/structures that put gender in place. When gender comes in, research focuses on domination and subordination, but not all hierarchies are problematic and gender has a way of making all hierarchies problematic. We need a visionary model where there is no gender and domination/subordination is thrown out. Not saying gender doesn’t matter today but that in the aspirational world we should be able to look at IP without gender.

Evangelical Christianity and evangelical Islam have come into conflict, doing everything possible to degrade, disparage, and eliminate African cultural traditions that don’t have gender problems.

Swakopmund Protocol: 9 nations ratified a protocol on TCEs, making it regional law (only 6 required). Background: biopiracy/hoodia controversy; South African government licensed the knowledge. Global economic imperative to play within the boundaries—can’t get anything from the system unless you participate and recoup what you have identified over the years as relevant knowledge.

International consensus: claimed that community ownership was an oddity: but corporations aren’t individuals but have been given human attributes and human rights. Laws and definitions are not static; they are shaped to fit purpose.

IP without IP part 3

Session III: At the Boundaries of IP (I): Traditional Knowledge

Rosemary Coombe & Peter Jaszi

Jaszi: If you have a new scheme, who gets the rights? One notion: take traditional understandings of the allocation of authority and apply them in the new legal regime. That’s now formally represented in the WIPO draft guidelines for traditional cultural expression/folklore.

Jaszi told a story about a traditional fishery management scheme where the managers (a local adat council in Indonesia) told him about effective measures used to prevent overfishing by locals. He asked what they did about outsiders, and they thought of it as entirely outside their remit. He now asks whether it makes sense to translate a traditional scheme that was purely internal to legal rights against the rest of the world, which was never part of the tradition one way or another.

On the whole, local adat regulation without any statutory regulation did a pretty good job of protecting the boundary between the secret and the public. His argument applies to public and disclosed traditional cultural expressions, not secret ones.

Coombe: She is engaged in a meta-ethnography regarding marks that designate origin. She rejects the idea of tradition as something that precedes IP. Tradition comes into being through networks of attention, in negotiation with IP and international governmental regimes. It’s called upon to recognize and reify itself in response to larger pressures.

She’s especially interested in how weird versions of IP are deployed in the service of particular values, and positioned in relation to other human rights.

Concerns for gender, class, generational, etc. equity. You can’t expect IP to do everything, but it should be subject to the same analysis as other regimes that govern social accumulation.

Marks certifying sustainability are starting to proliferate. They’re trying to restructure market incentives to achieve social aspirations—linking environmental and equity concerns under the rhetoric of sustainability.

You always have to ask about the regulation of such terms. The Peruvian government is using these marks in a completely cynical way, destroying communities by creating conflicting interests and encouraging modern ceramics. For tequila, the GI used to encourage monoculture, destroying other crops; now they’ve begun GIs for other forms of mezcal and revitalized varieties that had previously been nearly extinct, creating new economic enterprises. There are success stories—including museums for learning about the different histories of agave cultivation. It’s a rural development project—a lot is being built around a fairly thin IP protection.

Gordon: From what she knows of GIs, she thought that they don’t require a particular quality—making something absolutely identical in the wrong place, it’s not allowed to use the name (e.g., feta). She thinks that Coombe’s optimism about the effects of GIs, when done well, is leading her to exaggerate how much sense they make.

Coombe: She disagrees—a GI is a word you use when a product has characteristics that are uniquely tied to the area or the producers.

Dreyfuss: but how do you tell? She thinks (the beverage sometimes known as) champagne tastes the same no matter where it’s from.

Coombe: The ones she’s interested in have extensive quality controls.

(Benkler put up a news story about residents of Lesbos objecting to the use of “lesbian” by a gay rights group.)

Jaszi: the label gets us confused, pushes us to classic European IP categories which may not always have the same meaning in new places.

Coombe: Even the TRIPs definition is very confused.

Sprigman: Doesn’t like the Euro. view, which is an attempt not just to prohibit the use of “roquefort” on Maine cheese but to prevent “roquefort-style.”

Coombe agrees this is nuts, but thinks that GIs can provide development opportunities. One of Sprigman’s examples, in which development in Portugal is opposed to development in South Africa, illustrates her point: we need to assess the equity components by building in distributional considerations.

Dreyfuss: The Europeans don’t believe that cheese from Maine can be roquefort-style—there is a public-regarding function to keeping the word from being more generic.

Sprigman: But different champagnes taste different—it’s a method, not a thing. So what are the French complaining about?

Dreyfuss: They’re afraid the meaning will change, and it will be less good at doing what words are supposed to do. (Comment: the problem is that there’s no necessary connection between the halves of that sentence. Words change meaning all the time, and still do what they’re supposed to do. We have standards for judging when the change in meaning has been harmful instead of just different—many of them provided by George Orwell. If there really aren’t differences between Maine feta and Greek feta, then the GI is a lie, and people will wrongly treat them differently. Fred Schauer’s writings on the meaning of discrimination come to mind.)

Jaszi: In many places, traditional artists are afraid of competition from nearby, semi-mechanized production. That raises strategic questions.

IP may always be a bit of a sideshow—what else will government do to support these practices? That’s often what’s missing—funding, market access, etc.

Coombe: True, but people who come up with non-IP solutions usually offer contractual solutions that look just like GIs.

Biagioli: Interesting that here there is no author at all, for the first time in IP.

My comment: From the discussion, I have the thought, which is far from original, that the argument for GIs is not about information at all. The European rule is designed to keep consumers valuing—or really, not even knowing that they are valuing, just presuming it in the background—the idea of local production, regardless of any effects on tangible or measurable qualities.

Oliar: The goal of GIs is not consumer information, but preserving certain types of production. It doesn’t make any sense from a TM perspective to say that anything made in Scotland is Scotch, or that you can’t advertise “roquefort-style.” If your goal is encouraging sales of products produced by disadvantaged groups, it would be even better to say that no one else can make that particular cheese. (Copyright/patent, not TM.)

Participants talked about this proposition for a while. Framed this way, the argument for GIs sounds a lot like a classic tariff/barrier to trade, whose distributional effects are highly debatable because of the efficiency costs (not to mention the effects on other groups that would like to make the cheese and might have distributional claims of their own).

Recent reading: cultural property and same-sex marriage

Marc R. Poirier, The Cultural Property Claim within the Same Sex Marriage Controversy—from the abstract:

This article argues that traditionalist opposition to same sex marriage can be understood as a cultural property claim - the sort of claim that is often made by Native American tribes and other indigenous or subordinated cultural groups of a right to control the uses of sacred or culturally central rituals, places and objects. Ultimately, the article disagrees with the traditionalist position, and suggests several arguments against allowing traditionalists to claim a property-like right to exclude same sex couples from marriage. Nevertheless, the stakes in the part of the marriage equality controversy that centers around name and status are not adequately understood, and this article offers an analytical advance by bringing the idea of a cultural property claim to bear.

In the end, I wish the piece had engaged more with the cultural property debates—Poirer cites Michael Brown’s Who Owns Native Culture? but only in a footnote—but it was still a persuasive analogy.

Gender & IP, Panel 3

Diane Zimmerman, NYU, comments: The papers here confirm how nuts we are about issues of gender. Zimmerman thinks IP may be more neutral than other fields, but it’s not neutral in terms of the life situations that get played out under the IP rubric. The papers also confirm that we should fear overprotection. Gender-specific denigrating commercial uses need a powerful fair use tradition allowing commenters to fight back.

Finally, this day demonstrates the marginality of IP – it’s a background tool and helps in some instances but it isn’t the thing that most people rely on most of the time to engage in creative activities and get them out to the public. We need to think carefully about what people actually want – Goswami’s paper points out that there’s no such thing as a group of people who want to protect traditional knowledge in a single way; they want many different things, from commercial rights to nonuse by outsiders. What are the economic structures that allow people who do important work to get that work recognized and marketed in the way they want? It is an economic issue, not an IP issue.

Ann Bartow, South Carolina, Gender as Intellectual Property: The Propertization of Women: Her topic is pink, the color of femaleness. Pink is a color for girls in a way that there is no color for boys – maybe for babies, but after that, blue is the color of depression and Viagra. (But see this history of pink/blue for babies.) There’s no enduring cultural connection between men and a particular color, because men are the standard and women are the other.

The pink color of fiberglass insulation as a trademark is one of the Supreme Court’s examples of how color alone can be a mark. In Qualitex, the Court recognized that the Abercrombie spectrum didn’t make much sense for color – what is the generic or descriptive color of a dry-cleaning pad? Is it arbitrary or functional?

Bartow thinks that people use pink in TMs in an instrumental way, a functional way. Many of the 8000 TMs that use pink are for women’s products. When men adopt pink they usually do so humorously, or insultingly – the pink triangle was used by the Nazis to denigrate homosexuals. Now there have been significant attempts to take back the pink triangle, but remember the origins.

Can TMs denigrate women? That’s one strain in Bartow’s analysis. The other is plain old confusion – TMs intentionally impute values and meanings to goods and services that we’re supposed to buy – femaleness and subordination.

Why is Owens-Corning fiberglass insulation pink? Her guess – it looks friendlier, like cotton candy. Victoria’s Secret also has a valuable PINK trademark. (And gee, what could it possibly mean for women to walk around with PINK on their chests or backsides?)

Communicative pink: on Our Bodies, Ourselves; Code Pink (antiwar group); Carolina Girl design that takes the South Carolina flag and makes it pink; on a “Women for Peace” banner. Decorative pink: on products for girls, on Camel’s new No. 9 cigarettes. Pornography pink is also common. (It’s not only pink that aids in the pornification of ads for women; Bartow showed an ad for Clinique moisturizing lotion that looked like a money shot.)

Pink ribbons for breast cancer: Barbara Ehrenreich wrote a powerful critique of this a while back that Bartow’s drawing on. Antiabortion groups use the pink ribbon to promote the theory that abortion causes breast cancer, because there are no TM rights preventing that.

Pink vacuum cleaners (traditionally feminine), pink boxing gloves (transgressive but cute), the Little Pink Tool Kit (to avoid icky boy germs), pink golf clubs (pinked up by Wilson for “the cure”). Message: buying our product helps women.

The locker room for the opposing team at Iowa is painted pink – it’s supposed to make the visitors feel gay and underperform.

All these pink marks are intended to signal otherness: (1) this is for women, (2) buying this helps women, and/or (3) this is a women-related product for men. TM owners free-ride on the existing meaning of symbols and appropriate them for private use.

Elizabeth Judge, University of Ottawa, Canada, Eyeing IP: Gender, Senses, and the Visualization of Intellectual Property: IP law favors the visual as an object of legal protection; subject matter based on other senses is less likely to get protection. This has gendered consequences for access to IP and for access to IP rights. The framing and interpretation of IP has been based on peculiar and narrow epistemologies, especially with respect to how personality is expressed.

If we take the IP system seriously on its own terms, then it’s creating skewed incentives to create visually.

If the media women create in are not within the incentivized areas, IP’s bias limits or redirects them. We should be, normatively, sensing IP rather than looking at it.

Examples: requirements of drawings for patents and industrial designs; stronger protection for graphic than literary characters in TM and copyright; traditional emphasis on the visual in defining what can be a TM; the way personality is defined by visual aspects for the right of publicity. Assumptions: knowledge comes from vision.

Her examples are Canadian, but other systems have the same features.

Industrial Design Act: design means features of shape, configuration, pattern or ornament that “appeal to and are judged solely by the eye.” Aesthetics shouldn’t be limited to the visual – you can lure customers in other ways.

Trademarks: TRIPs allows countries to limit TMs to visually perceptible marks, but doesn’t require it. Canada hasn’t made many moves to accept scent, sound, touch TMs etc. A mark is defined by its purpose, something used to distinguish goods and services. It could include nontraditional marks, but the interpretation has been almost entirely visual – the Federal Court of Canada has pointed to “something that can be represented visually.”

Playboy TM toupees – Playboy registered the picture and wrote out PLAYBOY. On the actual hairpieces, PLAYBOY was nowhere to be found. Instead, salespeople told customers that these were PLAYBOY toupees. The question was whether they were using the mark – the Federal Court said no, there was no use without a visual indication. The case doesn’t necessarily stand for the proposition that sound marks aren’t registrable, but that a registered visual mark isn’t being “used” when salespeople just say the word. But it’s been read more broadly.

If you register musical marks, you get a registration in the distinguishing capacity of the notation, not the music as played. From a cognitive perspective, marks based on other senses should be registrable.

Potential sex differences in sex; Women’s smell memory/odor identification is consistently stronger than men’s.

One concern is providing proper notice to potential competitors. But technology advances, and there are solutions.

Copyright: on its face, the law is sense-neutral – “whatever may be the mode or form of its expression” – but the types of works are generally defined with respect to the visual. For fictional characters, medium matters. Literary characters get less protection than graphic or audiovisual characters – looks win out over personality. Example: the Michelin man, whose image is protected regardless of the other characteristics he exhibits.

Under Canadian law, an “artistic work” requires visual expression.

Janet Cardiff, an experimental artist whose multimedia work focuses on sounds. The experience of the work changes as one moves through space. Under the Copyright Act, she’s not an artist, because it’s only visual media that are “artistic works.”

We should change how we see IP – start sensing it instead. This would be a more sophisticated view of “recognition” both cognitively and psychologically. This is a call for IP expansion, equalizing access to IP rights – it is not in conflict with a call for making IP rights less deep. More user rights, shorter duration, etc. are all consistent with more expansive subject matter.

Ruchira Goswami, West Bengal National University of Juridical Sciences, Calcutta, India, Intellectual Property Rights of Indigenous Peoples: A Gendered Perspective from India: Three different examples (1) embroidery, (2) painting, (3) folk music—all three are from the eastern part of India, and all are done by women and therefore unacknowledged by the overall community. There is no protection for these cultural protections in the current legal regime.

International law: supposed to confirm rights of indigenous peoples over intangible cultural practices and traditions. “IP” has started to become part of that language of self-determination.

The copyright regime is inconsistent with traditional cultural productions – problems of authorship, originality, fixation, duration.

Kantha embroidery– in Bangladesh and West Bengal – began with women weaving blankets and became more sophisticated. The art isn’t dying; women have access to the markets, because many are being trained in kantha. The problem is one of ownership: there are traditional motifs, and then there are urban designers who are ordering new designs and having them done. Traditional motifs are gradually being lost. Women are not designers any more, but are responding to the demands of the market. It isn’t an expression of culture.

Madhubani painting and authentication – from Bihar, line drawings using vegetable dye for color. Lots of human figures, reflecting common scenes and folk texts. They’re easy to replicate and sell at 1/10^th the price; the women making the paintings have no legal protection for copying. The creators are indigenous and there is no legal protection for their traditional knowledge because India doesn’t recognize “indigenous” as a relevant category.

Folk music and expropriation – there is a growing market for such music. The lyrics are the same, but the history has been removed. For example, Goswani discussed (and sang!) a song about migrant laborers in Assam who want a better life and are deceived about their prospects. There’s a traditional version, and a modern version available on a CD with a completely different presentation, absent the pathos of the original. Is this a violation of the moral right of the community? It’s not a religious desecration, and the song isn’t lost, but the history and the protest are lost. This hybridization is dangerous.

Central issue: remuneration. Economic returns are desirable – but at what cost? Of course these communities want to access the market and make money. Is authenticity important when your basic needs aren’t being met? Protection has to be a combination of economic returns and compensation for moral right violations. Recognition is important as well – it’s not enough to say that this is traditional music on your CD, but you have to give a history of the community and its struggle.

Problems: IP is exclusionist and individualistic, which is unfamiliar and uncomfortable to women. Human rights discourse is also male-centric. Moreover, women’s rights discourse is weak in South Asia. How can we step outside these paradigms to find the right solution?

Farley: The visual requirements aren’t homogenous – certain visual requirements meet the needs of having a definite scope for the law’s protection. But Qualitex discusses difficulties in uniform perception of the visual – differences in shades.

Judge: Canada needs a similar discussion of the ontological status of marks and our relative capabilities of representing and distinguishing different sense impressions.

Farley: Visual stimuli give us visceral reactions, as Farley’s negative reaction to Bartow’s multiple images of pink. We can call that functional.

Bartow: The Iowa coach suggested that the locker room was a “calming” color.

Q: Chanel No. 5 smells very distinctive; why shouldn’t there be TM rights in it? Copying it is passing off. (I presume through post-sale confusion, since the buyer and the person who applies it would presumably know if the competitor’s bottle were properly lableled.)