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Intellectual Property Rights and the Public Domain Running Head: GLOBALIZATION, INTELLECTUAL PROPERTY, AND THE PUBLIC

DOMAIN

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The Impact of Globalization on the Public Domain and Intellectual Property Rights Annotated Bibliography Robyn Ward Emporia State University

Intellectual Property Rights and the Public Domain The Impact of Globalization on the Public Domain and Intellectual Property Rights Introduction According to the Universal Declaration of Human Rights Article 27 “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits”…(UNESCO report Towards Knowledge Societies, p.117) Intellectual Property Rights (IPR) and the Public Domain will be considered within the context of the Global Information Infrastructure. A case will be made that current standards of IPR need to change in the current information environment. Information has become commoditized but unlike other resources is not exhaustive,

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rather it is enhanced when able to be used. Private control of information especially in the scientific and technological fields has negatively impacted public access to knowledge. As one considers Intellectual Property Rights, it is easy to consider the Public Domain as the polar opposite as expressed by Eva Hummungs Wirtén in her article Out of Sight and Out of Mind. But this perception is too simplistic and harmful to our understanding of both. Both Kim Nayyer and Anju Jain discuss the harmonization of intellectual property laws and how this negatively impacts least developed countries. John Barlow also touches on these concepts in his article Intellectual Property, Information Age. Who owns the creation of new knowledge and when should someone’s monopoly on a creation end? This is articulately addressed in both the movie Diva and the book No Trespassing; Authorship, Intellectual Property Rights and the Boundaries of Globalization by Eva Hummungs Wirtén. Intellectual Property is an important aspect of knowledge creation and should be protected. This is defended by the World Intellectual Property Organization. But there are other means for authors/creators to share their works such as through Open Source communities like Creative Commons, which enables a broader look at copyright and promotes the sharing of knowledge for the common good. Intellectual Property Rights and the Public Domain need to be redefined and changed for this new global information environment. There are camps on extreme sides of the discussion but we need to come to some median. Both issues are important for our global society but we need to find a way to implement without marginalization.

Intellectual Property Rights and the Public Domain Annotated Bibliography Barlow, J. P. (2002). Intellectual property, information age. In A. Thierer & W. Crews (Eds.), Copy fights: The future of intellectual property in the information age (pp. 37-41). Washington, D.C.: CATO Institute.

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(1) Authority of the author: John Perry Barlow is cofounder of the Electronic Frontier Foundation. Since 1998 he has been a fellow at Harvard Law School’s Berkman Center for Internet and Society. He has written numerous articles on the topic including his “Declaration of Independence of Cyberspace”. (2) Relevance: “Since the Telecommuications Reform Act of 1996, we have seen an extraordinary concentration of capital and access control and ownership of what they call “content” in the hands of a very few organizations” (p.37). The article is a call for society to fight against the encroachment of Intellectual Property Rights and the governance of those by a few large corporations. (3) Contribution to our understanding of the GII: The author makes the argument that information is not a physical good. It is wrong to assume that there will be a scarcity or value of information as with material goods. He talks of the ecology of ideas (p.38) in that information is more valuable only when it is shared between two minds to expand and create new information/knowledge. (4) Coverage: The author advises that if “we’re going to enter into an economy where the principal article of commerce is indistinguishable from speech, efforts to control that article of commerce will inevitably control speech” (p.38). (5) Point of view/bias: The view of the author is one of fighting for the public domain, making ideas free and open for use in order to create anew and to ensure this freedom for not only ourselves but for the future. Creative Commons. (2007). Creative commons: Share, reuse, and remix – legally. Retrieved June 17, 2007, from http://creativecommons.org/ (1) Authority of the author: Lawrence Lessig founder and CEO of Creative Commons is also Professor of Law at Stanford University and is founder of the school’s Center for Internet and Society. He has written books on Internet law and constitutional law. He is very involved in copyright law and contributes significantly to open source movements. For more see his website

Intellectual Property Rights and the Public Domain http://www.lessig.org/.

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(2) Relevance: Creative Commons (CC) is a nonprofit organization founded in 2001 with the help of The Center for the Public Domain. It “provides free tools that let authors, scientists, artists, and educators easily mark their creative work with the freedoms they want it to carry”. (3) Contribution to our understanding of the GII: The argument held by Creative Commons is that there are currently two extreme poles that represent copyright: “anarchy” and “all rights reserved”. CC wants to bridge these poles by providing a fair balance for copyright by having a “single goal that unites Creative Commons’ current and future projects that will build a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules”. Creative Commons makes available its resources on a global scale. (4) Coverage: Creative Commons provides a Web application to help individuals either contribute their creative works to the public domain, or retain their copyright while licensing them as free for certain uses under certain conditions. Creative Commons' licenses are for creative works such as “websites, scholarship, music, film, photography, literature, courseware, etc”. (5) Point of view/bias: The goals of Creative Commons seems to be fair and balanced regarding making available a way to give credit to authors while at the same time giving authors/creators opportunity to share all or certain aspects of creations toward the public domain or the commons. Hemmungs Wirtén, E. (2004). Genies in bottles and bottled-up geniuses: Two cases of upset relatives and a public domain (ch.6). In E. H. Wirtén, No trespassing; Authorship, intellectual property rights and the boundaries of globalization (pp. 125-148). Toronto, Canada: University of Toronto Press. (1) Authority of the author: Eva Hemmungs Wirtén is Senior Lecturer in Library and Information Science and Associate Professor [Docent] in Comparative Literature, in the Department of ALM (Archival Science, Library and Information Science, Museology) at Uppsala University. Her research includes topics of intellectual property/the public domain, the history/theory/philosophy of information, and print culture/book history. http://www.abm.uu.se/evahw/

Intellectual Property Rights and the Public Domain (2) Relevance: In 1878 Victor Hugo declared before the Congrès Littéraire

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International in Paris “Let us acknowledge literary property but, at the same time, let us found the public domain’ (p.125). He continues that only the author and society are invested in literature…“the heir does not make the book: he cannot have the rights of the author (p.127). (3) Contribution to our understanding of the GII: Globalization benefits exporters rather than importers regarding intellectual property rights which fundamentally serve domestic and national agendas rather than global agendas (p.137). The author also discusses that TRIPS and the WTO organize the world according to relationships between national governments and how is this beneficial to those inevitably left out? (p.139). (4) Coverage: This chapter covers the intellectual property right versus the public domain by representing two cases that occurred during the same time period. One dealing with the Margaret Mitchell estate and the publication of The Wind Done Gone. And the second case concerning Victor Hugo’s descendents claiming rights to content used in François Cérésa’s book Cosette ou le temps des illustions from Les Miserables. In both circumstances it was descendents making claim of intellectual rights that they did not create. Descendents lost in both cases. The author also discusses that the public domain is still conceptualized as place and space and the Internet is considered as the last open frontier (p.143) and why there is so much debate. (5) Point of view/bias: The author makes an articulate and supportive case for works being made available for the public and that discussion needs to occur and a revised view and written standards for intellectual property need to be addressed especially with such matters being influenced on a global scale. Hemmungs Wirtén, E. (2006). Out of sight and out of mind: On the cultural hegemony of intellectual property (critique). Cultural Studies, 20 (2-3), 282-291. Retrieved June 23, 2007 from Informaworld database. (1) Authority of the author: Eva Hemmungs Wirtén is Senior Lecturer in Library and Information Science and Associate Professor [Docent] in Comparative Literature, in the Department of ALM (Archival Science, Library and Information Science,

Intellectual Property Rights and the Public Domain Museology) at Uppsala University. Her research includes topics of intellectual property/the public domain, the history/theory/philosophy of information, and print culture/book history. http://www.abm.uu.se/evahw

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(2) Relevance: This article is a critique of the critique of intellectual property rights. The author addresses the expansion of intellectual property and how the public domain has “emerged as the positive other” (p.282). (3) Contribution to our understanding of the GII: The author argues that intellectual property rights, “especially within the larger context of globalization”; produce an “unequal ordering of the global cultural and political economy” (p.283). (4) Coverage: Attempts of defining public domain and the commons are many and confusing. She addresses two concepts, free/dom and creativity, which have lead to the critique of the IP system and also to the defense of the value of the public domain. The Western concept of authorship is based on the ideas of individuality and originality which defeats the purpose of truly understanding creativity. The concept of creativity = innovation “disposes us not to question ideals of uniqueness and originality” (p.286). Then on the other hand the public domain is compared to the American West, which brings to mind ideals of “freedom, wideopen spaces, ingenuity and creativity” (p.288). The author ultimately argues that IP and the commons cannot be considered “static opposites, but as constituents of a field in constant flux” (p.290). (5) Point of view/bias: The author argues that the critique of IP is too simplistic and that there are other factors that aren’t considered in the argument. “The ongoing copyright wars have resulted in a polarization of debate and ways of thinking that sometimes hide the complexities of the problem at hand” (p.282). Jain, A. (2006). Intellectual property rights under globalization. In T. Sabanna, Intellectual property rights under globalization (pp.19-40). New Delhi, India: Serials Publications. (1) Authority of the author: Dr. Anju Jain is Head of the Department of Economics at Ganga Singh College in India. (2) Relevance: Issues of production, protection and exploitation of intellectual property are becoming increasingly important under globalization. These issues

Intellectual Property Rights and the Public Domain will have a wide technological and political impact. (3) Contribution to our understanding of the GII: Due to obligations defined in the Trade Related Aspects of Intellectual Property System (TRIPS) members of the

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World Trade Organization (WTO) are supposed to implement national systems of intellectual property rights following an agreed set of minimum standards (p.19). But these obligations for harmonization does not benefit and can harm those developing countries that are not equal economically or politically. (4) Coverage: The author covers the history of intellectual property rights, what it is, recent trends, and how it is perceived and implemented on a global scale as it relates to the promotion and protection of community rights, traditional medicine, non-governmental organizations, and developed and developing nations. (5) Point of view/bias: Current intellectual property rights law is still limiting and acting in a tangible environment that is not transitioning well to the intangible or information environment. The terms of patents, copyright, and trademarks need to be readdressed for the global environment especially for the type of goods that are now being traded (i.e. information). The emphasis of IP should be on competition and not restriction. Mann, C. C. (September, 1998). Who will own your next good idea? The Atlantic Monthly, 282(3), 57-82. Retrieved June 27, 2007, from Academic Search Premier Publications database. (1) Authority of the author: Charles Mann is a correspondent for Science and The Atlantic Monthly. He is a three-time National Magazine Award finalist and has won awards from the American Bar Association, the Margaret Sanger Foundation, the American Institute of Physics, and the Alfred P. Sloan Foundation. He is a coauthor of a number of books. (2) Relevance: Charles Mann argues that as “digital technology drives the potential value of copyright to ever greater heights, that same technology threatens to make it next to worthless” (p.58). This “paradox” fosters two creations: one of complete anti-copyright and the other to strengthen copyright even more. (3) Contribution to our understanding of the GII: “Because copyright is the mechanism for establishing ownership, it is increasingly seen as the key to wealth

Intellectual Property Rights and the Public Domain in the information age” (p.58). (4) Coverage: The article is written almost nine years ago, but the concepts remain the same. Electronic paper technology and e-books is a main focus of the article and how this technology affects copyright. It was quite interesting seeing the

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beginning hype of a technology that is continuing to be developed still ten years later. The author addresses pirating and how it is being brazenly utilized in other countries. The author also covers the history of copyright, interviews a number of players in the field for different viewpoints. (5) Point of view/bias: The author represented both sides of the intellectual property and public domain argument. The bias from the author seems to be that “Copyright should not impede artistic efforts to explain our times” (p.82). Perception and regulation of copyright must change in the new age of the Internet. Nayyer, K. (January, 2002). Globalization of information: Intellectual property law implications. First Monday, 7(1). Retrieved June 17, 2007, from http://www.firstmonday.org/issues/issue7_1/nayyer/index.html (1) Authority of the author: Kim Nayyer is a research lawyer in Canada. She earned her LL.B from Osgoode Hall Law School in Toronto and her M.L.I.S. from the University of Alberta in Edmonton. She is also a regular contributor to slaw.ca, a “co-operative weblog about Canadian legal research and IT”. (2) Relevance: Strengthened IP is negatively affecting the balance of the public interest. “Copyright law was intended to achieve a balance between preserving a public domain or commons of ideas and providing incentive for creative endeavors” (¶35). This is not occurring, and current laws are endangering the concept of the public domain. (3) Contribution to our understanding of the GII: Globalization and “the ease of transborder (or borderless) information flow is leading to worldwide similarities in intellectual property laws and rights” (¶29). Globalization of intellectual property rights brings equity and access into focus as main issues that need to be addressed. (4) Coverage: The article is a discussion of current literature on globalization of information on intellectual property laws and that the trend is to strengthen and

Intellectual Property Rights and the Public Domain standardize intellectual property in favor of IP producing nations and transnational corporations.

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(5) Point of view/bias: Ms. Nayyer argues that globalization of information is a trend toward harmonization or standardization of intellectual property laws in the direction of greater IP protection and that this is primarily benefiting IP producing nations and corporations. Quéau, P. (2000). Defining the world’s public property: Who owns knowledge? Retrieved June 17, 2007, from http://www.globalpolicy.org/globaliz/special/patent.htm (1) Authority of the author: Phillipe Quéau is the Director of the Unesco Information and Informatics Division and a specialist in new information and communication technologies, with a particular interest in computer graphics, virtual reality, televirtuality and cyber-communities. He has written three books in which he analyzes the technical evolution and the artistic implications of computer imaging, artificial intelligence and virtual reality. (2) Relevance: Mr. Quéau questions the purpose of intellectual property and argues that that “IP is to protect the general interest by ensuring the universal distribution of knowledge and inventions in exchange for an exploitation monopoly conferred on the authors” (¶19). But for how long can or should we extend this time period for such a monopoly. When does this time become detrimental to society? (3) Contribution to our understanding of the GII: The author suggests ways to improve intellectual property and transfer of information on a global scale. Developing countries are the losers with the establishment of TRIPS and are negatively affected economically, environmentally and socially. (4) Coverage: According to the author, the concept of the public domain needs to be “revitalized, strengthened and protected against the veracity of private interest” especially during this time of private interest using knowledge as a means for wealth (¶11). It is more advantageous for humanity to have ideas and knowledge circulate freely than to limit their circulation (¶21). (5) Point of view/bias: The author argues that changes to intellectual property rights are a politically motivated by the shifting of power to countries that export or

Intellectual Property Rights and the Public Domain import intellectual products from social groups such as researchers, educators, users, etc. Silberman, I. (Producer), & Beineix, J. J. (Director). (1981). Diva [Motion picture].

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(Available from Anchor Bay Entertainment, Inc., 1699 Stutz Dr., Troy, MI 48084) (1) Authority of the author: Jean-Jacques Beineix is a French film director. Diva is based on a novel based on the same name written by Daniel Odier who writes under the pseudonym of Delacorta. (2) Relevance: Scenes in the movie touch on themes pertaining to the public domain and intellectual property. One particular scene addresses this when the opera singer is speaking at a press conference discussing why she does not record her music and she explains, “I sing because I love to sing. Alone, I can’t. I need the public…music comes and goes don’t try to keep it. Commerce should adapt to art and not art adapt to commerce” (scene 11). (3) Contribution to our understanding of the GII: The movie touched on IP and Public Domain on an international level. There was a discussion between the opera singer and her manager concerning the threat of a pirated recording getting out to the pubic especially since Taiwan doesn’t have strict copyright laws. This brought into the picture of how complicated ownership rights can transcend internationally. (4) Coverage: In Diva the issues of intellectual property rights and the public domain are weaved into the stories of an opera singer who creates and performs for the love of music and a fan who records her singing for his own use. Greater forces come into play as knowledge of the recording gets out and two music pirates from Taiwan try to blackmail the singer with the recording while her agent is trying to outplay the pirates by forcing the opera singer to begin recording. (5) Point of view/bias: Two innocent individuals, the creator (opera singer) and the commons (Jules her fan) get caught up in the greater rules and chaos of a world full of greed and want of money. It was a very intriguing movie and brought a personal perspective to the debate of intellectual property versus public domain. World Intellectual Property Organization (WIPO). (2007). Retrieved June 17, 2007, from http://www.wipo.int/portal/index.html.en

Intellectual Property Rights and the Public Domain (1) Authority of the author: The World Intellectual Property Organization is an agency of the United Nations consisting of 184 Nation States and overseas and contributes to IP standards on a global scale. (2) Relevance: According to the WIPO website the organization is “dedicated to developing a balanced and accessible international intellectual property system, which rewards creativity, stimulates innovation and contributes to economic development while safeguarding the public interest”. (3) Contribution to our understanding of the GII: WIPO’s vision is that intellectual

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property is “an important tool for the economic, social and cultural development of all countries”. (4) Coverage: The website covers an array of information concerning intellectual property right issues such as: conferences, treaties, policies, areas for research on patents, trademarks, industrial designs, copyright, and IP for development, etc. It also provides information about WIPO, its services, news, events, activities, and further resources. (5) Point of view/bias: WIPO likes to portray an image of aiding developing countries, but there has been critical analysis of its governance of intellectual property promoting the interests of corporations and developed countries. There is also argument that WIPO is not democratic in procedure.