And We Quote...
in cra-briefings30 · October 15, 2005
Consider first the realm of economics. Many say that we now live in an ‘information economy’ or a ‘knowledge economy’. But what is more fundamentally true is that we now have an economy powered by human creativity, the ability to create in meaningful new forms.
— Richard Florida writing in The Rise of the Creative Class
Alliance Activities
in cra-briefings30 · October 15, 2005
The chair of the Indigenous People’s Caucus, Greg Young-Ing, attended WIPO’s Intergovernmental Committee on Traditional Knowledge, Genetic Resources and Folklore in Geneva, June 6th to 10th 2005. He took part in an Informal Indigenous caucus whose participants made a joint opening statement, and made a statement on behalf of the Alliance. Young-Ing’s intervention began by introducing the CRA/ADC and the work of the Indigenous Peoples’ Caucus.
…I would like to outline a basic model, concerning the use of TCEs [Traditional Cultural Expressions] that we have been developing out of our on-going exchange with Indigenous artists, which are also related to this discussion. Indigenous artists assert that they have inherited the TCEs developed by their ancestors as a sacred trust. And, further, that Indigenous peoples, and particularly Indigenous Artists, have the exclusive responsibility for the continuance of TCEs: both in their original forms and their contemporary innovative forms, based on principles of Customary Law. Indigenous Artists also assert that, based on Customary Law, they have
- a primary right to access and promote TCEs;
- an exclusive licence to promote and innovate TCEs as a cultural representation and expression of the identity of Indigenous peoples. And, further
- if TCEs are to be accessed and/or used by non–Indigenous peoples or corporations, it must be done so based on prior and informed consent (PIC) and an agreed to understanding of possible regulation and remuneration.
Indigenous artists are responsible to their collective Indigenous nations to respect Customary Law in the use of TCEs and TCE innovations. The Indigenous nation, as a collective, in turn grants the Indigenous artist a. permission to use and innovate TCEs – a concept which could be called "Indigenous National Artistic Licence". Therefore, through this relationship, Indigenous Artists have a moral right to use and innovate TCEs. But Non–Indigenous people and corporations do not have such a right. Without PRIOR INFORMED CONSENT, by what basis, other than misappropriation and inappropriate and immoral use of IPRs, should non–Indigenous people and corporations have such a right?
Nonetheless, TCEs are commonly misappropriated and misrepresented by non–Indigenous individuals and corporations. Consequently misappropriated TCEs acquired without PRIOR INFORMED CONSENT appear on an array of commercial products including: umbrellas, lampshades, books, films, posters alcohol labels, clothing, and sports team and other corporate logos – including the recently trademarked logo of the 2010 Olympic Games in Vancouver. These misappropriations are often offensive to Indigenous peoples and in many of these cases the TCE misappropriators have used the Intellectual Property Rights System to protect their misappropriations This results in the ridiculous situation where Indigenous peoples have lost access to and control over their own Traditional Knowledge and illustrate the reality that it is treated as if it is in the Public Domain.
The resolution of this general problem is indeed one of the key tasks before us in this forum and other international UN forums such as UNESCO, the CBD and the Working Group on Indigenous Populations, and the Permanent Forum on Indigenous Issues. However, in lieu of Indigenous Artists, and Artists in general, recent disappointment with negotiations in the UNESCO Convention on the Protection of Cultural Contents and Artistic Expression regarding of the protection of Artists rights, I would like to suggest that the WIPO IGC has done more advanced work toward a resolution of these problems and, more so than other fora, is well positioned to take decisive and progressive actions.
The following are excerpts from the Joint Statement of the Informal Indigenous Consultative Forum:
As always, we …thank the Secretariat for &hellipcontinuing efforts to brief and consult Indigenous Peoples’ representatives in our preparations is truly committed. We particularly appreciate their impartial facilitation of the informal consultative forum which occurred on June 5, 2006.
ENHANCED PARTICIPATORY MECHANISMS We would like congratulate and offer our thanks to the member states for the supporting the informal panel session this morning. It is our submission that such developments at the IGC are truly progressive and respectful of the imperative role that Indigenous Peoples play in the development of this Committees’ work. We do, however, believe it is important to state that this panel is not a substitute for more enhanced participation in the Sessions themselves within or prior to the discussions under each agenda item.
ESTABLISHMENT OF VOLUNTARY FUND We strongly support the establishment of a Voluntary Fund. Since the European Union’s proposal at the First Session of the IGC there has been a unanimous agreement–in–principle to establish such a Fund. We respectfully submit that the time has come.
REVISED PROVISIONS With regard to the Revised Provisions for the protection of traditional cultural expressions and traditional knowledge, the informal consultative forum participants would like to strongly encourage the further development of both sets of these provisions by this Committee, such as open–ended working groups or open–ended experts groups with the participation of Indigenous Peoples.
INDIGENOUS CUSTOMARY LAW Finally, we would like to make a substantive call for a prioritization of IGC’s work on the role of Indigenous customary law in protecting, preserving and maintaining Indigenous TCEs and TK. A study on the role of Indigenous customary law within the IP system was approved by the IGC at its Third Session and we have yet to seen any progress in this area. It is our submission that this work on Indigenous customary law is absolutely integral to the further developments of both the TCE and TK Provisions.
Updates
in cra-briefings30 · October 15, 2005
PROJECTS TO CATALOGUE TRADITIONAL KNOWLEDGE
There is great concern being expressed internationally over the state of traditional knowledge (TK), including a fear that it is being lost over time. There is also recognition that TK continues to be exploited improperly. This concern is particularly prevalent with respect to patents, where traditional knowledge in the form of medicines, treatments and cures has been patented by large companies and removed from the public domain. In response, and as a means of tracking traditional knowledge, several groups have commenced projects to catalogue traditional knowledge. Projects are occurring through WIPO www.wipo.int/tk/en and the American Association for the Advancement of Science http://shr.aaas.org/tek.
ACCESS COPYRIGHT SIGNS FIRST DIGITAL BILATERAL AGREEMENT
In its August newsletter to creator affiliates Access Copyright announced that it had signed the first international digital bilateral agreement with its American counterpart the Copyright Clearance Center. The agreement will allow Access Copyright to offer a digital add-on to its comprehensive photocopying licensees in the corporate, non-profit and government sectors.
These new licenses will allow users to convert legally obtained print documents into digital files, print from digital sources, scan, fax and e-mail digital works as well as post material to their intranets (but not the Internet). The license is inclusions-based, meaning that it only covers the works of copyright owners who have specifically assigned their digital rights to Access Copyright—approximately 220,000 works to date. It also means that only those creators who have assigned these digital rights will receive the additional royalties from the license. For more information see www.accesscopyright.ca
WIPO STANDING COMMITTEE ON COPYRIGHT AND RELATED RIGHTS
Further to its meetings in November 2004, WIPO has engaged in an international consulting process regarding the impact of copyright and related rights in the broadcasting sector. This consultation process has been ongoing and the next meeting of the standing committee on copyright and related rights has not been scheduled. For information on WIPO’s meeting schedule please visit: http://www.wipo.int/meetings/en/topic.jsp?group_id=15
Litigation
in cra-briefings30 · October 15, 2005
UNIVERSAL MUSIC AUSTRALIA Pty Ltd. v. SHARMAN LICENSE HOLDINGS Ltd [2005] F.C.A. 1242 (Australia)
On September 5, 2005 The Federal Court in Australia dealt what could be the knock out blow to the on-line file sharing service KAZAA. Judge Murray Wilcox found Sharman Networks, owner of KAZAA, liable for copyright infringement occurring over the KAZAA network despite the fact that warnings were posted on the web page discouraging users from engaging in infringing activities. The Judge found that Sharman did nothing to stop users from deliberately and knowingly stealing copyright protected materials. In what could be a financially damaging case for KAZAA , the court ordered that Sharman pay 90% of the music industry’s costs and that the program be altered to exclude copyright protected material from that which can be traded over their networks. Sharman has vowed to appeal the decision. For more information on this recent verdict please see www.news.com.com or for the text of the decision please see www.austlii.edu.au
HUNSTMAN v. SODERBERG UNITED STATES DISTRICT COURT, COLORADO
The Motion Picture Association of America (MPAA) and a number of prominent film directors have commenced a law suit against Family Flicks Inc. and Play it Clean Video for copyright infringement. This action comes from the Family Flicks and Play it Clean’s practice of removing the violent and sexual content from videos and making them available in new versions. The MPAA asserts that this is infringement of the copyright in the original version of the films. The EFF has filed an amicus (friend of the court) brief in support of the Family Flicks and Play it Clean Video asserting that this use is fair use of the copyrighted material. Though this case is only in the early stages, more information can be obtained from www.eff.org
AUTHORS TAKE GOOGLE TO COURT
The Authors Guild representing, 8,000 writers in the US, has filed suit in US District Court in Manhattan against Google for its Print Library program, the just-announced effort to digitize the world’s libraries – the mission being “to organize the world’s information making it more universally accessible and useful”. [See CRA Briefings #29] The lawsuit seeks class action status, damages and an injunction to halt further infringement. Goggle stands accused of “massive copyright infringement at the expense of the rights of individual writers”. According to the suit, five libraries have agreements with Google to scan their holdings and make them available on-line without contacting any authors. Nick Taylor president of the Authors Guild, calls the library scheme a “plain and brazen violation of copyright law&hellipt is not up to Google or anyone other than the authors, the rightful owners of these copyrights, to decide whether and how their works will be copied.”
Google’s has not admitted that anything in its program constitutes infringement of copyright. Despite this it has an opt-out provision stating that the wish of authors who do not want to be involved will be respected provided they advise Google Print directly.
For more information see: www.copyrightclassaction.com and www.authorsguild.org.
Global Artists' Issues: focus on international piracy
in cra-briefings30 · October 15, 2005
Few people are unaware that the piracy of copyright protected material is a major international problem. Numerous strategies and approaches have been employed internationally to curb the activity which comes in two forms, (1) the production and sale of pirated goods and (2) Internet piracy.
Sale of pirated goods is a problem on a global scale, and is visible in the phenomenon of DVD’s being offered for sale while a film is still being shown in theatres. Monitoring the flow of these kinds of goods is challenging and occurs, for the most part, on a national level. However, the American “Watch Lists” of problem countries published by the Office of the US Trade Representative is a strong indication of the global nature of the piracy problem. The Watch List has two categories : the 36 countries on the “Watch List”, and the 13 on the “Priority Watch List”. One may not expect Canada to figure as a problem country in piracy. Nonetheless, Canada is on the US Watch List. Canada is seen as a flow-through nation, a conduit for pirated goods from Asia in to the United States. Canada has also been criticized by the US Trade Representative for the delay in its ratification the WIPO treaties. Of particular concern is the implementation for technological protection measures and treatment of Internet Service Providers.
For more information on the watch list please see the office of the United States Trade Representative at www.ustr.gov
Given the problems countries are experiencing monitoring and controlling the flow of pirated goods both within their boarders and across them, here is a short review of some ways they are used to battle these problems.
Taiwan
In 2005 Taiwan was moved from the Priority Watch List to the Watch List in light of revisions to its copyright act in 2004 and the strengthening of its enforcement efforts. These are detailed in the Performance Report on IP Protection in Taiwan 2004 of the Ministry of Economic Affairs. The revisions to Taiwan’s copyright act included protection for technological protection measures, an increased in penalties and in the powers granted to boarder officials, and a strengthening of the language around enforcement. The Taiwanese government has appointed an intellectual property policy force of 220 officers, and now offers monetary incentives to informants who give leads on IP crimes. Despite all of these efforts the download of music over the internet increased 15% in 2004 over 2003 figures.
Nigeria
Nigeria is experiencing problems related to piracy common in many developing nations. Nevertheless, it is not mentioned on the Piracy Watch Lists. There is a limited indigenous publishing industry in Nigeria and the majority of books are imported from overseas. On average, a book costs the equivalent of a months’ take-home pay for a university lecturer. There is a heavy reliance in the educational sector on photocopying as a result. Only recently has a reprographic rights organization has been established in Nigeria; it will soon be in a position to negotiate licenses for photocopying.
For more information on the Nigerian RRO visit www.ifrro.org.
Beyond photocopying, the chief worry about piracy concerns situations where pirated goods are available at a lower cost than the authentic work in open markets. The overriding circumstance affecting Nigeria’s literary and cultural community is the lack of a strong indigenous publishing industry. But for the culture as a whole, the effects of piracy over the long term will include the disappearance of indigenous traditional knowledge. For more information on the situation in Nigeria, please see www.bellagiopublishingnetwork.org/newsletter26-27/oyinloye.htm or www.independentng.com/Sunday/vijun260503.htm
Finland
Finland is on the American Watch list as part of the European Union whose focus is on patent issues rather than copyright or creators’ rights. Finland has strong laws to prevent piracy both within the country and at its boarders, but it is contemplating reinforcing these laws. The Finnish parliament is considering banning the importation of pirated works even where the importation is a single copy of a work for personal use. This step would deter citizens from purchasing pirated goods outside the country and bringing them into Finland – thus giving boarder officials some of the broadest anti-piracy powers in the world.
Piracy over the Internet
The names Kazaa, Grokster, Napster, Bittorrent and eDonkey punctuate the debate about Internet piracy. The common thread of these programs is the fact that they all enable users to “share” files over peer-to-peer (P2P) networks. This is the most common means of copyright infringement on the Internet today. There has been a lengthy legal process connected to P2P networks, some of it related to the protection of the privacy of users, and some of it addresses the illegality of the services.
The Court decision in the Napster case several years ago seemed like a big win for the Recording Industry Association of America (RIAA) in its battle against illegal file sharing over the Internet. The Napster system shut down by that decision was a first generation P2P network whose electronic files were stored on a centralized network. It was the existence of the central network, the “cache” of illegal files, which had rendered Napster liable.
Even before the Napster decision, a second generation of P2P software was evolving. This software was the first incarnation of Kazaa and Grokster, and it linked users’ computers to one another, removing the need for a centralized server. In order to slow the use of these media, recording companies and others populated the networks with corrupt files. As down-loaders became annoyed with this, a third generation of P2P began to develop. This P2P generation relied on users’ computers with large storage capacities acting as supernodes to speed up the downloading process. However, even G3 P2P which may have sheltered the companies and programmers from liability could not shelter users. This is evidenced by the efforts of the RIAA since 2003 to initiate more than 14,000 law suits against infringers in the United States. The effort to protect the identities of the users, put P2P on the morph again.
With generation four P2P, the current version dominated by Bittorrent and eDonkey, downloading is stratified meaning that portions of songs are downloaded from a number of users computers simultaneously, making the identification of users practically impossible for now. Software developers suggest that this is a move to protect the privacy of users rather than to encourage infringement.
The MGM v. Grokster decision of the United States Supreme Court and the Kazaa decision in Australia have added a new perspective to the piracy debate. In these decisions the courts have determined that where a service provider promotes the use of that service in a way that infringes copyright, the service provider can be liable for that infringement. These decisions have led a number of organizations to state that their devices are not intended to be used to infringe copyright, though, in light of the Kazaa Australia decision the effectiveness of such statements may be called into question. The creators and owners of P2P software do not seem to be backing down and many more appeals and incarnations of P2P technology are sure to evolve.
For more information on the latest developments in P2P technology please see: www.slyck.com/newsphp?story=407
Congratulations and Announcements
in cra-briefings30 · October 15, 2005
Ismail Kadare, Albanian novelist and poet, is the inaugural winner of the Man Booker International Prize.
The 2005 UNESCO prize for Arab Culture has been awarded to Algerian Writer Tahar Ouettar, and French Academic Michel Lagarde.
To make an announcement in Congratulations please e-mail vjones@sympatico.ca